WEDNESDAY OCTOBER 11 2000
COURT
OF APPEAL Criminal Division
Entrapment
is no defence in English law
Published October 11, 2000 Regina v Shannon
Before Lord Justice Potter, Mr Justice Hidden and Judge Ann Goddard, QC
Judgment September 14, 2000
Where a defendant sought to exclude
evidence on the ground that he had been enticed to commit an offence by an agent
provocateur, the entrapment was not in itself sufficient to require exclusion
without careful consideration of further questions arising in the particular
case which might affect the fairness of the proceedings. The present state
of English authority remained that the exercise of the judge's discretion was
concerned with, and constrained by the effect of the entrapment on the fairness
of the proceedings in the procedural sense, bearing in mind that entrapment, as
such, was not a defence in English law.
The Court of Appeal, Criminal
Division, so held in a reserved judgment dismissing an appeal by John James
Shannon (also known as Alford) against his conviction in May 1999 at Snaresbrook
Crown Court before Judge Robbins of one offence of supplying cocaine, a class A
controlled drug, and one offence of supplying cannabis resin, a class B
controlled drug, for which he was respectively sentenced to nine months and two
months imprisonment, to run concurrently.
A confiscation order was made
in the sum of £300 to be paid forthwith, with 14 days imprisonment in default
and he was also ordered to pay £3,000 towards the costs of the prosecution. He
was acquitted of an offence of offering to supply a class A drug.
Mr
David Charles Etherington, QC and Miss Jennifer Dempster for the appellant; Mr
Martin Hicks for the Crown.
LORD JUSTICE POTTER, giving the judgment of
the court, said that the appellant had supplied just over two grams of cocaine,
worth about £200, and a small amount of cannabis resin worth about £40 on the
same date to a News of the World journalist posing as an Arab sheikh in an
elaborate stratagem designed to obtain evidence of drug offences against him.
Prior to the trial the judge held a voir dire hearing for the purpose of
determining an application by the defence to exclude all the prosecution
evidence on the ground that it was agent provocateur evidence unfairly obtained
contrary to section 78 of the Police and Criminal Evidence Act 1984 which
deprived the appellant of a fair trial guaranteed by article 6 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
The judge ruled the evidence admissible and the appellant was convicted
of supplying the small quantities of cocaine and cannabis resin which formed the
subjects of counts 1 and 2.
His grounds of appeal against conviction
stated that the judge's failure to exclude the prosecution evidence under
section 78 of the 1984 Act and/or at common law was unreasonable and that the
judge erred in ruling that there had been no entrapment and that the activities
of the journalist and his colleagues did not constitute acts of agents
provocateurs.
It was clear from the authorities, particularly R v
Chalkley ((1998) QB 848), that in the case of applications under section 78 to
exclude evidence on the ground of entrapment, while the facts and circumstances
amounting to such entrapment might be taken into account, and in an appropriate
case might prove decisive, the principal focus of the judge's attention had to
be upon the procedural fairness of the proceedings, the nature and reliability
of the prosecution evidence and the fullness and fairness of the opportunity
available to the defendant to deal with the evidence which the prosecution
sought to adduce.
Thus, the question whether section 78 had effectively
introduced a defence of entrapment into English law was not susceptible of an
unqualified answer.
It was plain that in R v Smurthwaite ((1994) 1 All
ER 898) the court contemplated that an affirmative answer to the question
whether the defendant was enticed to commit an offence was a key consideration
for the judge when considering whether to exclude the evidence thus obtained.
However, it was not in itself sufficient to require exclusion without
careful consideration of the further questions posed, together with any special
considerations arising in the particular case which might affect the fairness of
the proceedings.
That being so the ultimate question was not whether the
bringing of proceedings was fair, in the sense of appropriate, in entrapment
cases? It was whether the fairness of the proceedings would be adversely
affected by admitting the evidence of the agent provocateur or evidence which
was available as the result of his action or activities.
So, for
instance, if there was good reason to question the credibility of evidence given
by an agent provocateur, or which cast doubt on the reliability of other
evidence procured by or resulting from his actions, and that question was not
susceptible of being properly or fairly resolved in the course of the
proceedings from available, admissible and untainted evidence, then the judge
might readily conclude that such evidence should be excluded.
If, on the
other hand, the unfairness complained of was no more than the visceral reaction
that it was in principle unfair as a matter of policy, or wrong as a matter of
law, for a person to be prosecuted for a crime which he would not have committed
without the incitement or encouragement of others, then that was not of itself
sufficient, unless the behaviour of the police, or someone acting on behalf of
or in league with the police, and/or the prosecuting authority had been such as
to justify a stay on the ground of abuse of process.
In that connection
their Lordships had been referred, as was the trial judge, to a case in the
European Court of Human Rights, Teixeira de Castro v Portugal Application
25829/94 ((1999) 28 EHRR 101).
The end result of that case, couched as
it was in terms of incitement and causation, was not necessarily at odds with
English law.
Paragraph 34 stated: The Court reiterates that the
admissibility of evidence is primarily a matter for regulation by national law
and as a general rule it is for the national courts to assess the evidence
before them. The court's task under the Convention is ... to ascertain whether
the proceedings as a whole, including the way in which evidence was taken, were
fair.
The Court concluded (at paragraph 39): ... the two police
officers' actions went beyond those of undercover agents because they instigated
the offence and there is nothing to suggest that without their intervention it
would have been committed.
The approach of the Human Rights Court was
not inconsistent with that in R v Smurthwaite, that is, to consider whether it
was a case of causative incitement which would have rendered the evidence open
to exclusion. However, the Court went on to say: That intervention and its use
in the impugned criminal proceedings meant that, right from the outset, the
applicant was definitely deprived of a fair trial. Consequently, there has been
a violation of article 6.1. In reliance on that last passage, it was argued
before their Lordships that the Human Rights Court propounded a fundamental
fairness objection of general application that, in cases of incitement or
instigation by an agent provocateur, the court should not entertain a
prosecution at all, regardless of the question of whether the trial as a whole
could be a fair one in the procedural sense; or, put another way, that such
circumstances rendered any trial by definition unfair. Their Lordships did not
accept that, in the context considered by the Human Rights Court, the sentence
quoted fell to be read so widely. First, it was open to be read in its context
simply as the court's conclusion on the facts and circumstances of the
particular case. Second, if not so read, it was not clear how it was to be
reconciled with the observations concerning the admissibility of evidence in
national courts expressed at paragraph 34 of the decision, harmonising as they
did with the view expressed in Schenck v Switzerland Application 10862/84
(Series A No 140; (1988) 13 EHRR 242). Third, in that connection, there was no
analysis or discussion of the meaning or scope of the expression fair trial as
used in article 6. In particular, no separate consideration was given to the
strands of procedural fairness and abuse of process reviewed and applied in R v
Chalkley. That was a factor of considerable importance because the judgment in
Teixeira was specifically directed to the actions of police officers and the
safeguards, in the form of judicial controls, properly to be applied to them in
the course of their investigations as agents of the state. Finally, in the case
of such police investigations, the Human Rights Court appeared to have drawn the
line at the point of actual incitement (see paragraph 37), the word instigated
in paragraph 40 falling to be read in that sense. In the case before their
Lordships, however, the judge, who was in any event not dealing with the
activities of the police, found, rightly, that the evidence fell short of
establishing actual incitement or instigation of the offences concerned.
Accordingly, applying the principles of English law set out above, their
Lordships were unable to find error in the exercise of the judge's discretion in
dismissing the application under section 78 of the 1994 Act, and the appeal
would be dismissed. Solicitors: Hedley Saunders & Co; Crown Prosecution
Service, London Area Secretariat.
THURSDAY OCTOBER 26 2000
Law Report
Code
was breached in search of robbery victim's premises
COURT OF APPEAL
Regina v Sanghera
Before Lord Woolf, Lord Chief Justice, Mrs Justice Steel and Mr Justice
Butterfield
Judgment October 16, 2000
An occupier was not deprived of the protection of Code B of the Police and
Criminal Evidence Act 1984 (s.66) Codes of Practice merely because he was viewed
as a victim of crime rather than as a suspect when his premises were searched.
A judge erred in concluding that a search of premises two days after an alleged
armed robbery had taken place was a routine scene of crime search for which the
consent of the occupier was not required.
The Court of Appeal, Criminal Division, so held in dismissing the appeal of
Rashpal Sanghera against his conviction on June 5, 2000 at Cardiff Crown Court
(Judge David Morris and a jury) for theft for which he was sentenced to four
months imprisonment.
Code B provides: “1.3 This code applies to searches of premises: (a)
undertaken for the purposes of an investigation into an alleged offence, with
the occupier’s consent, other than ... routine scenes of crime searches...”
Mr Alun Jones, QC, for the appellant; Mr Keith G. Thomas for the Crown.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the
appellant was a postmaster. On Saturday June 26, 1999 he had claimed to be the
victim of an armed robbery.
At the request of the police he had handed over the keys to the post office. On
the Sunday he had been taken by the police to the post office to assist as a
victim.
On the Monday a police search authorisation had been completed. The words
“search with consent” had been ticked. The authorisation was never signed
and consent was never obtained from the appellant and his wife.
In the process of a search on the Monday the police discovered £4,390 in cash
in a box above a safe. The next day an application was made to the chief
constable to monitor the post office. A surveillance device was attached and the
appellant was observed seeking to look in the box where the money had been
found.
At the appellant’s trial for theft he had argued that evidence of what had
been found on the premises should not be given because it had been unlawfully
obtained since the search had been conducted in breach of Code B for the
searching of premises.
Under paragraph 1.3 the code did not apply to routine scenes of crime searches.
The Crown had contended that what had occurred had been a routine scene of crime
search.
In the court’s judgment, whereas the search commenced as a routine scene of
crime search, it was certainly not a routine scene of crime search by the time
the money was detected. The exception in the code was not intended to cover
circumstances where a prolonged occupation of premises was required.
The Crown’s second argument was that the code was designed to protect those
under suspicion and not victims, therefore since at the material time the
appellant was regarded as a victim there was no contravention of the code.
In the court’s judgment, that approach was in error. The code should be
regarded as applying generally to the search of premises. An occupier was not
deprived of the protection of the code merely because, at the time, he was
viewed as a victim rather than as a suspect.
The judge had wrongly concluded that there had been no breach of the code. After
the initial search on first arriving at the premises the police should have
obtained the written consent of the appellant and his wife.
However, the judge had concluded that if he was wrong on the breach of the code
it would not be unfair under section 78 of the Police and Criminal Evidence Act
1984 for the evidence to be admitted.
The judge had said that it would be open to the appellant to provide any
explanation for the £4,390, as it would have been at the time of its discovery.
The fact that the appellant had not been there could be pointed out to the jury,
as could any breach of the code. It was relevant that the appellant had invited
the police to the premises in the first place.
The appellant had relied on R v Keenan ((1990) 2 QB 54) and argued that the
judge was wrong in so far as he had referred to the ability of the appellant to
give evidence to the jury about the money.
In the court’s judgment, the present case could be distinguished from Keenan.
The appellant was not challenging the fact of the discovery of the money. His
only complaint was that he would have wanted to be present during the search.
There was no issue as to the reliability of the evidence. That was a different
situation from Keenan.
Clearly there had been a lack of appreciation by the police of what the code had
required of them. Hitherto, it had not been clear what was required.
There was no suggestion that the police had been acting other than bona fide. If
the police had asked for written consent there was no reason to think that that
would not have been forthcoming, although the appellant would have asked to be
present.
In those circumstances, in giving effect to section 78, the judge had exercised
his discretion in the appropriate manner.
The court had to be fair to the prosecution as well as the defence. The money
was in the box and if there was no innocent explanation for it the appellant was
guilty of theft.
If the judge had acceded to the defence submissions, the police’s failure
would have had the consequence of interfering with the achievement of justice.
It was right that the matter should have been left to the jury.
Solicitors: Bartlett Beynon & Kang, Birmingham; Crown Prosecution Service,
Newport, Gwent.
WEDNESDAY NOVEMBER 01 2000
Law Report
Multiple
harassment charge not duplicitous
QUEEN’S BENCH DIVISIONAL COURT
Director of Public Prosecutions v Dunn Before Lord
Justice Pill and Mr Justice Bell
Judgment October 4, 2000
A harassment charge which had two complainants was not necessarily
duplicitous because the charge in it was not aimed at both of the
complainants together on at least two occasions.
The Queen’s Bench Divisional Court so held in allowing the appeal of
the Director of Public Prosecutions against the decision of Cambridge
Crown Court (Judge O’Brian and justices) to allow the appeal of Robert
Dunn against his conviction by Ely Justices of harassment contrary to
section 2 of of the Protection from Harassment Act 1997.
Mr Dunn was accused by a neighbouring couple of a course of harassment
against them, or sometimes against them by misuse of their property, at
different times in the presence of one or other of the neighbours or
sometimes in their absence.
Mr Dunn was convicted on a single indictment dealing with all the
incidents of harassment against both persons. He appealed to the crown
court which considered the indictment to be duplicitous and allowed the
appeal.
Section 1 of the Protection from Harassment Act 1997 provides:
“(1) A person must not pursue a course of conduct — (a) which
amounts to harassment of another, and (b) which he knows or ought to
know amounts to harassment of the other.”
Section 2 provides:
“(1) A person who pursues a course of conduct in breach of section 1
is guilty of an offence.”
Miss Sally Hobson for Mr Dunn; Mr Charles Myatt for the prosecution.
MR JUSTICE BELL said that it was not the case that a harassment charge
which had two complainants could only be free of duplicity where the
charge was aimed at both of them together on at least two occasions.
The conduct might have been aimed at both of them together although only
one was present. A course of conduct might readily amount to harassment
of a number of victims.
The use of the singular in section 1 of the 1997 Act involved the
plural. That conclusion seemed to his Lordship to make good sense.
Lord Justice Pill agreed.
Solicitors: Hall, Ennion & Young, Ely; Crown
Prosecution Service, Cambridge.

The Times September 19 2000 CT OF
APPEAL, CRIMINAL DIV
Statements
must not be translations
Regina v Raynor
A witness statement for the purposes of sections
5A(3)(a) and 5B of the Magistrates' Courts Act 1980, as inserted by the
Criminal Procedure and Investigations Act 1996, had to be the statement
of the witness and not a translation of what was said to an interpreter.
The Court of Appeal, Criminal Division (Lord Justice Latham, Mr Justice
Collins and Judge Zucker, QC) so stated on July 10, 2000 when dismissing
the appeal of Stephen Raynor against convictions at Bournemouth Crown
Court (Mr Assistant Recorder Bowes and a jury) for assault occasioning
actual bodily harm and common assault.
The appellant appealed against the rejection of his submission that no
true committal had occurred since two of the statements, although signed
by the witnesses, were not witness statements within the 1980 Act
because they were translations of what was said to interpreters and not
statements of the witnesses themselves.
LORD JUSTICE LATHAM said that witness statements for the purposes of
sections 5A(3)(a) and 5B of the 1980 Act, as inserted, could only be so
described if they were in truth statements of the witnesses, and these
statements were not.
R v Derodra ([2000] 1 Cr App R 410 was not helpful since it dealt with a
different issue relating to sections 23 and 24 of the Criminal Justice
Act 1988.
However, in the instant case, no relevant prejudice had resulted.

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FRIDAY OCTOBER 20 2000 The Times
Drunken
conduct on board aircraft
COURT OF APPEAL CRIMINAL DIVISION
Published October 20, 2000
Regina v Ayodeji
Before Mr Justice Collins and Mr Justice Maurice Kay
Judgment August 31, 2000
The offence of being drunk on an aircraft included conduct which caused
aircraft passengers to become frightened.
The Court of Appeal, Criminal Division so held when dismissing an appeal
by Mr Julian Ayodeji against his sentence of eight months imprisonment
imposed on May 26, 2000 by Judge Crocker at Isleworth Crown Court for an
offence of being drunk on an aircraft contrary to article 57 of the Air
Navigation (No 2) (Order) (SI 1995 No 1970), made pursuant to sections
60 and 61 of the Civil Aviation Act 1982.
Mr Jeremy J. Hayes, assigned by the Registrar of Criminal Appeals, for
the appellant; the prosecution did not appear and was not represented.
MR JUSTICE MAURICE KAY said that the appellant boarded a six-and-a-half
hour flight to Heathrow. He became very drunk, persistently smoked in
his seat when told not to, smoked in the lavatory where he urinated on
the floor and stubbed out a cigarette against a bulkhead. That caused
ash to fall between the floor panels and a fire extinguisher had to be
used. He became abusive and pushed a stewardess who tried to put his
seat in an upright position.
The appellant submitted that the remark made by the sentencing judge
that “passengers must have been terrified” suggested that he wrongly
sentenced on the basis of the more serious offence of endangering an
aircraft, which had been ordered to remain on file.
His Lordship said that the facts disclosed a particularly bad example of
the offence of being drunk on an aircraft. The reason why it carried a
substantial maximum sentence was precisely because of the terror and
insecurity that such behaviour generated in the minds of wholly innocent
passengers nearby.
On this occasion the behaviour lasted a substantial period of time, took
a particularly unpleasant form, and the incident involving the use of
the fire extinguisher no doubt unsettled, and highly probably terrified
passengers.
The sentencing remark was justified, the sentence appropriate and the
appeal would be dismissed.
The Times September 5 2000 COURT OF APPEAL -
CRIMINAL DIVISION
Defence
onus no breach of presumption
Regina v Lambert
Regina v Ali
Regina v Jordan
Before Lord Woolf, Lord Chief Justice, Mr Justice Rougier and Mr Justice
Bell
Judgment July 31, 2000
The presumption of innocence, enshrined in English common law and given
effect in article 6 of the Convention for the Protection of Human Rights
and Fundamental Freedoms, was not breached by the provisions of section
2(2) of the Homicide Act 1957 and sections 5(4) and 28 of the Misuse of
Drugs Act 1971, which provided defendants who could prove certain
specified facts with a defence to a charge of murder or possession of
drugs.
The Court of Appeal, Criminal Division, so held in a reserved judgment
dismissing the appeals of
(i) Steven Lambert against his conviction at Warrington Crown Court (Judge
Hale and a jury) on April 9, 1999 for possession of a class A drug with
intent to supply;
(ii) Mudassir Mohammed Ali against his conviction at Manchester Crown
Court (Judge Davies, QC and a jury) on August 13, 1999 for murder; and
(iii) Shirley Jordan against her conviction at Inner London Crown Court
(Judge van der Werff and a jury) on September 30, 1999 for murder.
Mr Tim Owen, QC and Ms Rebecca Trowler, assigned by the Registrar of
Criminal Appeals, for Lambert; Mr John Hedgecoe for the Crown.
Mr Ian Macdonald, QC and Mr Rajiv Menon, assigned by the Registrar of
Criminal Appeals, for Ali; Mr Alan Conrad, QC and Ms Zoe Nield for the
Crown.
Mr Ian Macdonald, QC and Mr Rajiv Menon, assigned by the Registrar of
Criminal Appeals, for Jordan; Mr Michael Worsley, QC and Mr David Perry
for the Crown.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the
three appeals raised related issues involving the Human Rights Act 1998.
The principal issue was as to the effect of the 1998 Act on statutory
provisions that provided a benefit to a defendant who was being tried for
a criminal offence but required him to prove certain facts which the
statute specified before he could obtain that benefit.
In the cases of Jordan and Ali the jury had rejected the contention of the
defence that they should be found not guilty of murder but guilty of
manslaughter by reason of diminished responsibility under section 2(2) of
the Homicide Act 1957.
Under section 2 the defendant was required to prove that he was suffering
from diminished responsibility in accordance with section 2(1) and the
standard of proof was the balance of probabilities.
The statutory provisions relevant to an offence of being in possession of
a controlled drug were sections 5 and 28 of the 1971 Act.
Unless the 1998 Act had altered the position it was clear that not only
was the obligation on a defendant relying on section 5(4) or section 28 to
prove the facts stated, but the standard of proof to which the facts were
required to be proved was on a balance of probabilities.
Common law attitude to burden of proof being placed on defendant
The common law was fiercely resistant to a burden of proof being placed on
a defendant. However, Parliament had created many exceptions to the
general rule.
When it did so it had to use clear language if it was to achieve its
purpose. The sections involved in the present appeals were examples of it
successfully achieving that objective.
A statute could require a defendant to do no more than satisfy an
evidential burden. That was to ensure that the issue was raised
sufficiently so as to require it to be left for the jury to determine.
It would be determined in the defendant's favour unless the prosecution
satisfied the jury to the contrary.
The other approach which a statute could adopt was that the defendant had
to satisfy a persuasive burden. That was to satisfy the jury on the
balance of possibilities that he was entitled to succeed on the issue.
Effect of Human Rights Act 1998
The 1998 Act could have a significant effect on statutory provisions which
purported to depart from the general rule that the onus should be on the
prosecution.
That was because of article 6 of the Convention which the 1998 Act made
part of domestic law.
Whether a statutory provision became law before or after the 1998 Act it
had to be read and given effect in a way which was compatible with
Convention rights and if that was not possible the court could make a
declaration of incompatibility: sections 3 and 4.
The appellants contended that article 6 now required the courts to depart
from the interpretation adopted hitherto of section 2 of the 1957 Act and
sections 5 and 28 of the 1971 Act.
Instead of being interpreted as placing a persuasive burden on the
defendant, to establish his case on the balance of probabilities, they
should be interpreted as placing an evidential burden only on the
defendant so that the general burden remained on the prosecution.
Were section 2 of the 1957 Act and sections 5 and 28 of the 1971 Act, as
applied hitherto under English law, in conflict with article 6?
In answering that question it was necessary to take into account the
jurisprudence of the European Court of Human Rights as required by section
2 of the 1998 Act.
In doing so it was necessary to have in mind the nature of the Convention
as an instrument for the protection of fundamental rights.
That justified the adoption of the approach described by Lord Wilberforce
in relation to the provisions of a written constitution in Minister of
Home Affairs v Fisher ([1980] AC 319, 329).
It involved giving a broad and purposive approach to the language of the
Convention, an approach which would make the Convention a valuable
protection of the fundamental rights of individual members of the public
as well as society as a whole.
Mr Owen had submitted that there could not be different standards of
fairness. That the court was prepared to accept as long as it was also
appreciated that what fairness required could differ depending on the
circumstances of the case.
Mr Owen had also submitted correctly that the Convention was to be
distinguished from the Canadian Charter of Rights and Freedoms and the
South African Constitution in that it did not contain any general savings
or limitations clause.
However, in practice the distinctions would probably not be significant
because the court did not have to ignore the wider interests of the public
in applying those provisions of the Convention which had no express
limitation: Murray v United Kingdom ((1994) 19 EHRR 193).
The position was well illustrated in Salabiaku v France ((1988) 13 EHRR
379, 388), when the Court of Human Rights said:
"Presumptions of fact or of law operate in every legal system.
Clearly, the Convention does not prohibit such presumptions in principle.
It does, however, require the contracting states to remain within certain
limits in this respect as regards criminal law."
Saliabaku was considered by Lord Hope of Craighead in R v Director of
Public Prosecutions, Ex parte Kebilene ([1999] 3 WLR 972, 997) where he
pointed out that account might be legitimately taken, in striking the
right balance, of the problem the legislation was designed to address.
He added: "As a matter of general principle therefore a fair balance
must be struck between the demands of the general interest of the
community and the protection of the fundamental rights of the
individual."
In doing that it was important to start with the structure of the
offences. If the defendant was being required to prove an essential of the
offence that would be more difficult to justify. If, however, what the
defendant was required to do was establish a special defence or exception
that would be less objectionable.
The extent of the inroad on the general principle was also important. It
was important to have in mind that article 6(2) was specifically directed
to the presumption of innocence of the criminal offence charged.
It was also important to have in mind that legislation was passed by a
democratically elected Parliament and therefore the courts under the
Convention were entitled and should, as a matter of constitutional
principle, pay a degree of deference to the view of Parliament as to what
was in the interest of the public generally while upholding the rights of
the individual under the Convention.
Ali and Jordan
The court considered the cases of Ali and Jordan first because it had
found the answer self-evident. Mr Macdonald had contended that in some way
the alternative provided for by section 2 of the 1957 Act became an
ingredient of the offence at common law of murder.
Neither as a matter of form or substance was that correct. If the
defendant did not seek to rely on the section he would not be required to
prove anything. The count in the indictment did not refer to section 2.
There could be situations where there was an uncooperative defendant. Then
it would be very difficult for the prosecution to satisfy a jury of the
negative.
A defendant was not required to submit to an examination by a doctor and
it would not be desirable to change the law to require him to submit to an
examination.
The change in the law brought about by section 2 was of benefit to
defendants who were in a position to take advantage of it. It did not
matter whether it was treated as creating a defence to a charge to murder
or an exception or as dealing with the capacity to commit the offence of
murder, section 2 did not contravene article 6.
Lambert
The position was not as clear in the case of sections 5 and 28 of the 1971
Act.
So far as domestic law was concerned, the prosecution had to prove that
the defendant was in fact in possession of the named controlled drug and
that he had the intention to supply what was in fact a controlled drug.
In order to have possession, it was necessary to have knowledge of the
presence of the object of which it was said you were in possession.
Accordingly, if the drugs were contained in a box, it had to be proved the
defendant was aware that the box was not empty but contained contents.
Otherwise the defendant would not have possession of the contents as well
as the box.
What it was not necessary to prove was that the defendant knew the nature
of those contents. However, it was important that the prosecution were
clearly required to prove an identifiable actus reus and mens rea of the
offence.
For the purposes of the Convention, attention was to be paid to the
substance as well as the form of the statutory language creating the
offence.
Prior to the 1971 Act the increasing international concern over the supply
of drugs had been reflected in treaties to which this country was a party.
When the statutory history of the sections was taken into account it was
clear that Parliament had deliberately chosen to produce the result set
out already.
The court regarded the substance of the offence as being reflected in the
language of the sections. Sections 5(4) and 28 did not impose additional
ingredients which had to be proved to complete the offence but a way of
avoiding liability for what would otherwise be an offence.
The court could well understand why Parliament had wanted to limit the
amount of knowledge required for the commission of the offence and had
then mitigated that consequence by allowing the defendant to have a
special defence if he could establish that he had no suspicion as to the
nature of the contents of the box.
It was commonplace for a defendant to seek to avoid his guilt by saying
that he thought he had pornography or gold and not drugs in the box.
Such a defence was difficult to rebut. What the offence did was to make
the defendant responsible for making sure he did not take into his
possession containers which in fact contained drugs.
There was a clear social objective in discouraging trading in drugs. In
addition the level of sentence would reflect the extent to which the
defendant was responsible for the drugs being in his possession.
The court did not consider that the chosen course of the legislator
contravened article 6. There was an objective justification in the case of
drugs for the choice and it was not disproportionate.
Retrospectivity
In hearing these cases and giving its judgment, the court had assumed that
the 1998 Act was in force. It was entitled to do so because if it had been
necessary it could have deferred entering its judgment until after the Act
had come into force.
The judges had summed up to the jury on the law as it was at that time. It
had however been accepted by all parties that because of section 22(4)
together with sections 6 and 7 of the 1998 Act the court had to approach
the safety of any conviction as if the Act had been in force when the
judges summed up.
The court had reservations as to whether Parliament could have intended
such a result. It did, however, receive indirect support from Lord Steyn
in Kebilene (at p982) and the court accepted it was correct so far as
article 6 was concerned.
It should not however be assumed that non-compliance with the Convention
before the Act came into force would be regarded as a ground for extending
time for appealing.
Solicitors: CPS, Warrington; CPS, Manchester; CPS, Ludgate Hill.
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