R v Lambert
| Jurisdiction | England & Wales |
| Judgment Date | 31 July 2000 |
| Judgment citation (vLex) | [2000] EWCA Crim J0731-1 |
| Docket Number | Case No: 99/3794/Y2, 99/5370/Z4, 00/0869/X1 1999/05370/Z4 2000/00865/X1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 July 2000 |
[2000] EWCA Crim J0731-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Rougiermr Justice Rougier and
Mr Justice Bell
Case No: 99/3794/Y2, 99/5370/Z4, 00/0869/X1
1999/03794/y2
1999/05370/Z4
2000/00865/X1
MR TIM OWEN QC and MISS REBECCA TROWLER appeared on behalf of THE APPELLANT STEVEN LAMBERT
MR J P HEDGECOE and MR S M MILLS (31.7.00) appeared on behalf of THE CROWN
MR IAN A MACDONALD QC and MR RAJIV MENON appeared on behalf of THE APPELLANT MOHAMMED MUDASSIR ALI
MR A D CONRAD QC and MISS Z NIELD appeared on behalf of THE CROWN
MR IAN A MACDONALD QC and MR RAJIV MENON appeared on behalf of THE APPELLANT SHIRLEY JORDAN
MR MICHAEL D L WORSLEY and MR DAVID PERRY appeared on behalf of THE CROWN
JUDGMENTJUDGMENTJUDGMENT
LORD WOOLF CJ:
These three appeals have been heard together because they raise related issues involving the Human Rights Act 1998 (the "1998 Act"). The principal issue is as to the effect of the 1998 Act on statutory provisions, that provide a benefit to a defendant, who is being tried for a criminal offence, but require him to prove certain facts which the statute specifies before he can obtain that benefit.
The facts of the individual cases cannot affect the outcome. If the appellants are correct in their respective contentions their appeals succeed. It is therefore only necessary to note that Steven Lambert was convicted at the Crown Court at Warrington of possessing a controlled drug of class A with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971 ("the 1971 Act") on 9th April 1999, Shirley Jordan was found guilty of the murder of her son at Inner London Crown Court on 30 th September 1999 and Mohammed Mudassir Ali was found guilty of the murder of his wife at Manchester Crown Court on 13 August 1999.
In the cases of Jordan and Ali the jury 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) Homicide act 1957 ("1957 Act"). Section 2 of the 1957 Act provides:
"(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.
(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it."
Since 1957 under section 2 it has been established that the defendant is required to prove that he is suffering from diminished responsibility in accordance with section 2(1) and that the standard of proof is the balance of probabilities. The issue has to be determined by the jury which may disagree with the medical evidence, but the aetiology of the abnormality is a matter to be determined by the expert evidence ( R v Byrne [1960] 2 QB 396).
The statutory provisions relevant to an offence of being in possession of a controlled drug are sections 5 and 28 of the 1971 Act. Those provisions are in the following terms:
"5(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession.
(2) Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above.
(3) Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act.
(4) In any proceedings for an offence under subsection (2) above in which it is proved that the accused had a controlled drug in his possession, it shall be a defence for him to prove -
(a) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to destroy the drug or to deliver it into the custody of a person lawfully entitled to take custody of it; or
(b) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person.
(5) �
(6) Nothing in subsection (4) � above shall prejudice any defence which it is open to a person charged with an offence under this section to raise apart from that subsection.
28(1) This section applies to offences under any of the following provisions of this Act, that is to say section 4(2) and (3), section 5(2) and (3), section 6(2) and section 9.
(2) Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.
(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused -
(a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof -
(i)if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
(ii)if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not as the material time have been committing any offence to which this section applies.
(4) Nothing in this section shall prejudice any defence which it is open to a person charged with an offence to which this section applies to raise apart from this section.
The language of section 5 makes it clear that it creates two offences. One involves merely possession and the other, of which Mr Lambert was found guilty, which involves the additional element of intent to supply. Both offences are subject to section 28 but only the offence under subsection (2), which does not involve an intent to supply, has the additional "defence" under subsection 5(4).
1.Unless the 1998 Act has altered the position it is clear that not only is 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 are required to be proved is on a balance of probabilities. It is insufficient for a defendant to merely raise a doubt.
The attitude of the common law to the burden of proof being placed on a defendant
The common law is fiercely resistant to a burden of proof being placed on a defendant. This is the "golden thread" of English law identified by Lord Sankey in his classic statement in Woolmington v DPP [1935] AC 462 at p481. There is, however, what has been regarded as a well established exception in the case of insanity. It is an exception because of what is another equally glittering thread of English law. This is that the proof of the commission of any offence requires the existence of a guilty mind and the ability to prove this depends on courts being able to rely on the presumption of mental capacity in the absence of evidence to the contrary (see Viscount Kilmuir in Bratty v A.G. Northern Ireland [1963] AC 386 at p 407)
Parliament has created many exceptions to the general rules. When it does so it must use clear language if it is to successfully achieve its purpose. The sections involved in the present appeals are examples of it successfully achieving this objective. A statute can require a defendant to do no more than satisfy an evidential burden. (When this is so, the issue will be required to be left for the jury to determine. Then it will be determined in the defendant's favour unless the prosecution satisfy the jury to the contrary.) The other approach which a statute can adopt is that the defendant has to satisfy a persuasive burden. (That is to satisfy the jury on the balance of possibilities that he is entitled to succeed on...
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