R v Matthews (Mark Anthony)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Field,LORD JUSTICE MANTELL |
| Judgment Date | 25 March 2003 |
| Neutral Citation | [2003] EWCA Crim 813 |
| Docket Number | Case No: 200102613Z2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 March 2003 |
[2003] EWCA Crim 813
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HHJ CARROLL
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Mantell
Mr Justice Field and
H.H.J. Paget QC
Case No: 200102613Z2
Mr Philip Sinclair appeared for the Appellant
Mr Keith Stones and Mr Richard Hearnden appeared for the Respondent
On 6 April 2001, the appellant was convicted in the Crown Court at Woolwich (HHJ Carroll) by a majority of 10:2 of having a bladed article (a knife) in a public place without good reason or lawful authority contrary to s.139 of the Criminal Justice Act 1988 ("the 1988 Act").
The relevant parts of s. 139 provide:
"(1) Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence.
(2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocket knife.
(4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place.
(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him �
(a) for use at work;
(b) for religious reasons; or
(c) as part of any national costume.
(6) A person guilty of an offence under subsection (1) above shall be liable
(a) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both."
The relevant facts may be shortly stated. On 26 th November 2000 two police constables saw the appellant standing at a bus stop. The constables searched the appellant and found in his inside left jacket pocket an orange-handled knife with a blade that measured about 2 1/2 inches. He claimed in evidence that he told the constables that he had the knife for cutting lino but the officers disputed this. The appellant was arrested for possession of an offensive weapon and cautioned to which he replied, "Suck your mother". Later that day on legal advice he replied "no comment" to all the questions he was asked in a formal interview.
At the trial the issue for the jury was whether the appellant had had the knife for a good reason. The appellant said in evidence that he was carrying the knife on the Sunday in question because he was returning from a visit he had made to the flat of a friend of his, Kay Kelly, with the intention of cutting some lino for her. At Ms. Kelly's request he had agreed to cut the lino, but when he got to her flat she was not in and so he set off to catch a bus to his mother's without actually having cut any lino. Ms. Kelly gave evidence on the appellant's behalf. She said that the appellant had agreed to lay the lino on the Sunday but had not arrived; instead, he had called in the afternoon from the police station to say that he had been arrested.
The judge gave the standard direction to the jury telling them that it was for the appellant to prove that it was more likely than not that he had the knife for a good reason. As recorded above, the appellant was convicted by a majority of 10: 2. He was sentenced to 60 hours community service.
The appellant sought and was granted leave to appeal on the ground that s. 139 was a "reverse burden" provision, and as such was incompatible with Article 6 of the European Convention on Human Rights ("ECHR"). After leave to appeal had been granted but before the hearing of the appeal, the question whether s.139 was incompatible with Article 6 came before the Divisional Court in Lynch v DPP [2002] 1 Cr App R 32. The Divisional Court (Pill LJ and Poole J) held that s. 139 imposed a persuasive burden on the accused, but found that, even so, the section was not incompatible with Article 6.
The appellant's appeal was heard on 15 May 2002. In the course of the hearing the Court was told that the unsuccessful appellant in Lynch was petitioning the House of Lords for leave to appeal. It was therefore decided to adjourn giving judgment until the outcome of the petition was known. The Court has recently been informed that the petition for leave to appeal in Lynch has been refused and we now give judgment in the light of that state of affairs, having heard further argument on the recent decision of the Divisional Court in Sheldrake v DPP [2003] EWHC 273 (Admin).
Article 6 ECHR provides so far as is material:
"1. In the determination of �. any criminal charge against him, everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal established by law.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
Section 3 (1) of the Human Rights Act 1998 ("the 1998 Act") provides:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
The leading case on the impact of the 1988 Act on reverse onus clauses is R v Lambert [2002] 2 AC 545 [2001] UKHL 37. There the appellant had been convicted on 9 April 1999 of being in possession of 2 Kg of a Class A drug (cocaine) contrary to s. 5(3) of the Misuse of Drugs Act 1971 ("the 1971 Act"). S.28 (1) and (2) of the 1971Act provides:
"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 was 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 at the material time have been committing an offence to which this section applies."
The trial judge directed the jury that it was for the appellant to prove a defence provided for in s. 28 (3) on the balance of probabilities. The two principal questions argued in the House of Lords were whether the 1998 Act had retrospective effect and whether the reverse onus provision in s. 28 (2) and (3) of the 1971 Act was compatible with Article 6 ECHR.
Their Lordships by a majority (Lord Steyn dissenting) held that the 1998 Act did not have retrospective effect but they nonetheless gave their opinions on the incompatibility question. They expressly or implicitly accepted that, leaving s. 3(1) of the 1988 Act aside, the ordinary meaning of s. 28 (2) and (3) was that these provisions imposed on an accused a persuasive rather than merely an evidential burden. Lords Steyn, Hope and Clyde were of the view that so construed the provisions in s. 28 (2) and (3) were incompatible with Article 6 (2) but that, if the provisions imposed only an evidential burden they would not be incompatible with the Article. Lords Steyn, Hope and Clyde went on to construe the provisions pursuant to s. 3(1) of the 1998 Act and decided that they should be read as imposing an evidential burden only. The words "prove" and "proves" were to be read as meaning "give sufficient evidence".
Lord Slynn was inclined to the view that the imposition of a persuasive burden would not be justified under Article 6 (2) but did not think it necessary to come to a conclusion on the point since the provisions could be construed under s. 3 (1) as imposing only an evidential burden, an outcome that was compatible with Article 6(2). Lord Hutton held that the imposition by s. 28 (2) and (3) of a persuasive burden was not incompatible with Article 6 (2). He therefore did not read down the provisions pursuant to s. 3 (1).
There are four issues in this appeal:
(1) Putting s. 3 of the 1998 Act aside, does s. 139 (4) and (5) of the 1988 Act impose a persuasive or merely an evidential burden on the accused?
(2) If s. 139 (4) and (5) imposes a persuasive burden on the accused, do its provisions make an inroad into the right conferred by Article 6 (2)?
(3) If s. 139 (4) and (5) makes an inroad into the Article 6 (2) right, are its provisions incompatible with Article 6 (2) ECHR?
(4) If on their ordinary construction the provisions contained in s. 139 and (5) are incompatible...
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