R v Lambert

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD SLYNN OF HADLEY,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD CLYDE,LORD HUTTON
Judgment Date05 Jul 2001
Neutral Citation[2001] UKHL 37

[2001] UKHL 37

HOUSE OF LORDS

Lord Slynn of Hadley

Lord Steyn

Lord Hope of Craighead

Lord Clyde

Lord Hutton

Regina
and
Lambert
(Appellant)

(On Appeal From the Court of Appeal (Criminal Division))

LORD SLYNN OF HADLEY
1

On 9 April 1999 the appellant was convicted of possession of a controlled drug, cocaine, with intent to supply, contrary to section 5 of the Misuse of Drugs Act 1971 and was sentenced to seven years imprisonment. He relied on section 28(3)(b)(i) of that Act asserting that he did not believe or suspect, or have reason to suspect that the bag which he carried contained a controlled drug and in particular cocaine. The judge directed the jury in accordance with what was accepted to be the law at the time, that the prosecution had to prove only that he had and knew that he had, the bag in his possession and that the bag contained a controlled drug. To establish the defence under section 28 (3) he had to prove on the balance of probabilities that he did not know that the bag contained a controlled drug. This was thus the legal rather than the merely evidential burden.

2

The Court of Appeal held that a defendant did not have to know that he was in possession of controlled drugs or the precise controlled drug which was the subject of the offence. It was also clear that Parliament had intended to provide a defence on which a defendant could rely if he could establish that he had no suspicion as to the nature of the contents of the container in which drugs had been found. Moreover there was an objective justification for the provisions of the Act which were not disproportionate so that they did not contravene Article 6 of the Convention. The appeal was accordingly dismissed.

3

The Court however certified three questions. The first in substance is whether it is an essential element of the offence of possession of a controlled drug under section 5 of the 1971 Act that the accused knew that he had a controlled drug in his possession; secondly whether in a charge contrary to section 5 the judge was right to direct the jury that the onus of proving the defence under section 28(2) imposed a legal rather than an evidential of burden of proof that the accused neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug. The third question asked whether the accused could, on an appeal after the Human Rights Act 1998 came into force, rely on an alleged breach of Convention rights by the investigating or prosecuting authority at a trial which took place before the Human Rights Act 1998 came into force.

4

On this appeal to your Lordships the appellant has contended that the direction by the judge, that the burden on the accused to establish the defence was a legal burden, violated Article 6 of the Convention rights set out in the Schedule to the 1998 Act. The essential preliminary question in the appeal, and it is an important question, is therefore whether an appellant can rely on the Act at a time when the Act is in force (i.e. after 2 October 2000) in respect of a prosecution and conviction at a date when the Act was not in force. In a sophisticated and forceful argument Mr Starmer has contended that he plainly can. He takes two different routes. The first is that section 6 of the 1998 Act provides "(1).. It is unlawful for a public authority to act in a way which is incompatible with a Convention right" (and by virtue of sub sections 6(3) and (4) "public authority" includes a Court and the Judicial Committee of the House) unless by sub section (2) as the result of or in the case of "one or more provisions of primary legislation, the authority could not have acted differently".

5

A second route is by combination of section 7 and section 22 of the Act. They read:

"7-(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6 (1) may –

  • (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

  • (b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful Act.

"22-(4) Paragraph (b) of sub section (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the Act in question took place; but otherwise that sub section does not apply to an Act taking place before the coming into force of that section".

6

It is clear that the 1998 Act must be given its full import and that long or well entrenched ideas may have to be put aside, sacred cows culled. Since, however, the Act did not come into force (apart from limited provisions) until the Secretary of State had appointed a day or days for the Act or parts of it to come into force, and since there is a presumption against retrospectivity in legislation, it is not to be assumed a priori that Convention rights, however commendable, are to be enforceable in national courts in respect of past events. The question is whether the Act has provided for rights to be enforceable in respect of such past events or more precisely whether a court reviewing the legality of a direction to a jury at a criminal trial given before the Act came into force, which was in accordance with the law at the time, has to be judged by the standards of the Convention.

7

Section 6 does not deal specifically with pre-October 2000 Acts. Section 22 does and so it is appropriate to begin with section 22. It is on the face of it of limited scope. It provides that section 7(1)(b) applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place. By section 7(1)(b) a person who claims that a public authority has acted (or purports to act) in a way which section 6(1) makes unlawful may "rely on Convention rights in any legal proceedings". But otherwise section 7(1)(b) "does not apply to an act taking place before the coming into force of that section". Section 7(1)(a) is not applicable. For the purpose of section 7(1)(b) only, the expression "legal proceedings includes (a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal".

8

Thus for section 7(1)(b) to apply "whenever the Act took place" (by virtue of section 22(4)) the proceedings must have been brought by or at the instigation of a public authority. Here the prosecuting authority brought the proceedings in the first place though the claim is not that that authority acted in a way which section 6(1) makes unlawful. The claim is really that the judge in summing up acted contrary to Article 6 of the Convention rights by his summing up that the burden provided for in section 28(4) of the 1971 Act was a legal burden.

9

It is to be noted that section 7(6) distinguishes between proceedings brought by a public authority and "an appeal against the decision of a court" whereas section 22(4) extends the application of section 7(1)(b) only where proceedings are brought by a public authority. This appears to indicate that an appeal by an unsuccessful defendant is not to be treated as a proceeding brought by or at the instigation of a public authority albeit in other contexts an appeal may be considered to be part of the proceedings initiated by a particular party.

10

After a fuller consideration of this point than that which took place in R v DPP, Ex p Kebilene [2000] 2 AC 326 it seems to me that Parliament was not intending in this case that on an appeal Convention rights could be relied upon in respect of a conviction which took place before the Act came into force. It cannot be said that there is no good policy reason for this result since it may well have been thought undesirable that convictions lawful when made, should have to be set aside as a result of considering Convention rights only subsequently enforceable in national courts. Moreover it is plain as Mr Perry contended that the effect of opening up an examination of convictions prior to the coming into force of the Act, could lead to great confusion and uncertainty.

11

If this is right, where there is a specific time extension of the applicability of a Convention right, which is limited in content and which does not apply to an appeal like the present, it would be surprising if section 6 which has no express provision extending its effect, produced a contrary result so as to be applicable to acts which took place before the Convention rights became part of domestic law. Equally, it would be surprising if section 3, which again has no express retroactive effect, could succeed where section 22(4) and section 7(1)(b) fail. The fact that Convention rights could be relied on at the Court of Human Rights does not make such a result less surprising.

12

Moreover, even if there is a basis for the contention that the appellant's argument based on sections 7 and 22 do not involve retrospectivity, it seems to me that the obvious effect of section 6 as interpreted by the appellant is to impose on the House the current duty of quashing retrospectively a conviction which was good as the law stood at the time.

13

Even of course accepting that a trial today must observe Article 6 of the Convention rights and that an Appeal Court and the House in the way it proceeds must give effect to Article 6, it is a very different thing to say that the words "It is unlawful for a public authority to act in a way which is incompatible with Convention rights" (emphasis added) means that the House must rule that had the Convention been in force (which it was not) the direction of the judge to the jury would have been incompatible with Convention rights and that means that "it is unlawful" for the judge to have directed as he did. I agree with Sir Andrew Morritt, Vice Chancellor in para. 21 of his judgment in Wilson v The First...

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