R v Edwards

JurisdictionEngland & Wales
Judgment Date21 May 1974
Judgment citation (vLex)[1974] EWCA Crim J0521-6
Docket NumberNo. 4815/A/73
CourtCourt of Appeal (Criminal Division)
Date21 May 1974
Errington Edwards

[1974] EWCA Crim J0521-6


The Lord Chief Justice of England (Lord Widgery)

Lord Justice Lawton


Mr. Justice Ashworth

No. 4815/A/73



Royal Courts of Justice

MR. M. UNDERHILL, Q.C., and MR. H. BOYD appeared on behalf of the Appellant.

MR. H. J. LEONARD. Q.C., and MR. J. WALKER-SMITH appeared on behalf of the Crown.


The judgment which I am about to read has been read and approved by the Lord Chief Justice and is the judgment of the Court.


On the 15th October, 1973 this Appellant was convicted at the Inner London Crown Court of selling by retail intoxicating liquor without holding a justices' licence authorising such a sale contrary to Section 160(1)(a) of the Licensing Act, 1964. He was sentenced to six months' imprisonment to run consecutively to sentences totalling twenty-one months' imprisonment which had been imposed upon him on the 23rd May, 1973 for unlawfully gaming and for no less than three offences of selling by retail intoxicating liquor without a justices' licence.


He appealed against his conviction. His appeal was heard on the 24th April, 1974 and dismissed. The Court decided to give its reasons later as the main point in the appeal seemed to raise a question of importance, namely, whether on a charge under Section 160(1)(a) the prosecution should call evidence to prove that the defendant did not hold a justices' licence. The prosecution, following the practice of many years in the Metropolitan Police District and probably one followed generally throughout England and Wales, did not call any such evidence, leaving the defendant to prove, if he could, that he did hold a justices' licence. As a further ground, the Appellant submitted that there was no evidence, or no sufficient evidence, to prove that he had sold intoxicating liquor at all.


At all material times since September 1967 the Appellant had been the lessee of premises at 7 and 7a Railton Road, Brixton. On the 6th October, 1972 he went to Brixton Police Station to report that someone had smashed his windows at No. 7. From the 13th October until the 16th October, 1972 two Police Officers kept observation on these premises between 8 p.m. and 4 a.m. each day. During this period they saw 323 people enter No. 7, mostly late at night after the public houses had closed. On the 13th October, 1972 at 8.10 p.m. these Officers saw the defendant go to No. 7 and unlock the door. He went in and came out again at 8.137 p.m., going to No. 15 Railton Road. On the 21st October, 1972 shortly after midnight a number of Police Officers went to No. 7, being in possession of a warrant given under Section 187 of Licensing Act, 1964. the basement they found about 70 people, most of whom were drinking beer. The basement was fitted up as a bar. The Appellant was not present when the warrant was executed. He was seen by a Police Officer on the 1st November, 1972 and told he would be reported for the offence in respect of which he has been convicted. He said: "Haven't you had enough money out of me already" and walked away. At his trial he was unrepresented. He did not give evidence but made an unsworn statement, the effect of which was to suggest that he had not been in occupation of the premises. The Appellant made no submission based on the prosecution's omission to call any evidence to prove that no jtistices' licence had been granted to him.


When a submission based on this omission was first made to this Court it seemed a surprising one as those who practise and sit in Criminal Courts have long thought that the burden of proving at a licence has been granted to authorise the doing of an act which is prohibited by statute unless a licence to do it is held rests upon the defendant. See R. v. Oliver (1944) King's Bench 68 and John v. Humphreys (1955) 1 Weekly Law Reports 352. Stone's Justices Manual, 1973 edition, which is, of course, the text book used in Magistrate' Courts, where most cases of this kind are dealt with, states the law as follows (Vol. 1, page 89(n)): "Where a person is charged with doing an act except under and in accordance with the terms of a licence, permit or other authority granted by or on behalf of a Government department, the burden of proving the possession of a licence, permit or other authority rests on the defendant, and there is no obligation on the prosecution to establish a prima facie case on this issue."


So far as Magistrates' Courts are concerned this statement of the law is founded on Section 81 of the Magistrates' Courts Act, 1952, which provides that on the hearing of an information or complaint in those Courts the onus of proving exceptions, exemptions, provisoes, excuses and qualifications shifts from the prosecution to the accused. Mr, Leonard on behalf of the prosecution submitted that Section 81 is a statutory statement of a common law rule applicable in all Criminal Courts. If it were not the law would be in an unsatisfactory state, because the burden of proof in summary trials would be different from that in trials on indictment.


Mr. Underhill (the Appellant's counsel) submitted, however, that at common law the burden of proving an exception, exemption, proviso, excuse or qualification only shifts when the facts constituting it are peculiarly within the accused's own knowledge and that they were not in this case because the Licensing Act, 1964 requires the clerk to the licensing justices for a licensing district to keep a register of licences, containing particulars of all justices' licences granted in the district, the premises for which they were granted, the names of the owners of those premises, and the names of the holders of the licences (see Section 30(1)). It follows, submitted Mr. Underhill, that the Brixton Police had available to them in their own area a public source of knowledge which they could go to at any reasonable time (see Section 34(2)). If the rule about shifting the onus of proof only applies when the facts initiating the operation of the exception are peculiarly in the accused's own knowledge, there is much to be said for Mr, Underbill's submission.


Mr. Underhill accepted that there are three exceptions to the fundamental rule of our criminal law that the prosecution must prove every element of the alleged offence. The first relates to insanity and the second to those cases in which a statute expressly imposes a burden of proof upon an accused. The third exception has been under consideration in this appeal and questions have arisen as to its nature and the circumstances in which it applies.


The phrase which Mr. Underhill used in making his submission, namely, "facts peculiarly within the accused's own knowledge" has been used many times in text books and judgments: for examples, see John v. Humphreys (Supra) per lord Goddard, Chief Justice, at page 327; Phipson on Evidence, 11th Edition at page 108; and Cross on Evidence, 3rd Edition, at page 81. It has been taken from the judgment of Mr. Justice Bayley in R. v. Turner (1816) 5 Maule and Selwyn 206 at page 211. If the rule only applies when the facts constituting exculpation are peculiarly within the defendant's own knowledge, we would have expected to have found reported cases giving some help as to how the Courts were to decide this. a query arises, should the Judge or the jury decide who had what knowledge? Should evidence be called on this issue? If not, why not? In the century and a half since 1816 this Appellant is unlikely to have been the first defendant wishing to query the extent of the prosecution's knowledge. Counsel brought no such cases to our attention and we have found none for ourselves.


Despite the many times in the cases and text books reference has been made to the words used by Mr. Justice Bayley in R. v. Turner (Supra), we thought it necessary to examine that case carefully in its historical setting. For many decades before R. v. Turner (Supra) there had been much discussion amongst lawyers as to how negative averments were to be pleaded in informations and indictments.


By the end of the 17th century a pleading distinction was drawn between a proviso in a statute and an exception; see Hale's Pleas of the Crown (which was written about 1650) 1800 Ed. Vol. 2 Pages 170-1 and Jones v. Axen (1696) 1 Ld. Hay 119. Exceptions had to be pleaded and disproved whereas there was no need either to plead or disprove provisoes. In R. v. Jarvis (Hil. term 30 Geo. 2 and referred to in a note to the report of R. v. Stone (1801) 1 East, 640 at page 644) Lord Mansfield stated the rule as follows: "For it is a known distinction that what comes by way of proviso in a statute must be insisted on by way of defence by the party accused: but where exceptions are in the enacting part of a law, it must appear in the charge that the defendant does not fall within any of them."


In some cases, however, it was difficult to decide whether provisions in the enacting part of a statute were in the nature of a proviso. This is shown by the cases arising on certiorari out of the notorious game laws. These laws, which were statutory, prohibited those without certain qualifications (some ten in number set out in the statute 22 and 23 Car. 2, C.25) from keeping a gun or being in possession of game. The problem for those drafting informations under these laws and conducting prosecutions was whether the defendant's alleged lack of qualification should be pleaded and proved. By the end of the 18th century it seems to have been accepted that in actions for penalties under the game laws lack of qualifications did not have to be proved (see R. v. Stone (Supra) at pages 646, 650 and 654.) The problem of what had to be proved in a...

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