Roger Sliney v London Borough of Havering
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rose,Mr Justice Davis |
| Judgment Date | 20 November 2002 |
| Neutral Citation | [2002] EWCA Crim 2558 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2001/05792 S4 |
| Date | 20 November 2002 |
[2002] EWCA Crim 2558
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Rose
Mr Justice Hughes and
Mr Justice Davis
Case No: 2001/05792 S4
Mr Lionel Swift QC and Mr Nick Ham(instructed by the London Borough of Havering) for the Respondent
Mr Bernard Tetlow (instructed by Kenneth Elliot) for the Appellant
1. This is the judgment of the Court, which has been prepared by Mr Justice Davis but to which the other members have contributed. Mr Sliney appeals from a ruling of HH Judge Woollam given at a preparatory hearing at the Crown Court at Snaresbrook on 17 th October 2001. The appeal raises questions of general importance in the context of proceedings brought pursuant to s.92 of the Trade Marks Act 1994 ("the 1994 Act")
Background
2. The background, shortly put, is this. The appellant is a sole trader who operates from a warehouse at Upminster in Essex. The appellant sells, among other things, clothing, sportswear and footwear bearing well-known brand names. His activities were the subject of investigation by the London Borough of Havering who under the applicable legislation were the relevant body entrusted with the duty of enforcing the relevant trade mark legislation. In pursuance of their functions, the Authority seized certain goods being offered for sale to members of the public by the appellant. The Authority formed the view that the appellant was selling counterfeit goods. In due course they interviewed the appellant. The interview was lengthy. At the interview the appellant did not dispute the Authority's statement (based on examination of the goods by manufacturers' representatives) that the garments identified in fact were counterfeit. But what he said was that, at the time he was offering them for sale, so far as he was concerned they were "dead genuine"; that the people to whom he was in the habit of selling goods would not have accepted goods which were not "the real thing"; that the goods all appeared to be of excellent quality; and that the supplier from whom he had purchased the goods (whom he named) was someone with whom he had dealt openly, being a person from whom he had without problem bought clothing and other such goods for at least three years previously and who (so he said) had vouched for their authenticity (albeit not having produced documentary support of their origin). In addition he produced certain invoices (he said that he had accounted for all VAT due) and other paperwork in respect of purchases from his supplier. He stated that the fact that he bought and sold the goods relatively cheaply was to be explained by (as he understood) his supplier being able to negotiate bulk purchases at a large discount and by (as he stated) the items often being, in his understanding, clearance lines.
3. In the event the Authority bought proceedings against the appellant on the 25 th May 2001. In its amended version (dated 17 th October 2001) the indictment charged the appellant with two counts of unauthorised use of a trademark contrary to s.92 (1) (c) of the 1994 Act.
4. Section 92 of the 1994 Act provides as follows:
" (1) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—
(a) applies to goods or their packaging a sign identical to, or likely to be mistaken for, a registered trade mark or
(b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or
(c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).
(2) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—
(a) applies a sign identical to, or likely to be mistaken for, a registered trade mark to material intended to be used—
(i) for labelling or packaging goods,
(ii) as a business paper in relation to goods, or
(iii) for advertising goods, or
(b) uses in the course of a business material bearing such a sign for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods, or
(c) has in his possession, custody or control in the course of a business any such material with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).
(3) A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor—
(a) makes an article specifically designed or adapted for making copies of a sign identical to, or likely to be mistaken for, a registered trade mark, or
(b) has such an article in his possession, custody or control in the course of a business,
knowing or having reason to believe that it has been, or is to be, used to produce goods, or material for labelling or packaging goods, as a business paper in relation to goods, or for advertising goods.
(4) A person does not commit an offence under this section unless—
(a) the goods are goods in respect of which the trade mark is registered, or
(b) the trade mark has a reputation in the United Kingdom and the use of the sign takes or would take unfair advantage of, or is or would be detrimental to, the distinctive character or the repute of the trade mark.
(5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark.
(6) A person guilty of an offence under this section is 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 a fine or imprisonment for a term not exceeding ten years, or both."
5. The matter came on for hearing on the 17 th October 2001. Although it is not entirely obvious why this was regarded as a potentially complex or lengthy matter, the parties and the Judge proceeded on the footing that the hearing was to be treated as a preparatory hearing for the purposes of section 29 of the Criminal Procedure and Investigations Act 1996. Two preliminary questions were raised by the appellant. The first question was this: does s.92 (5) of the 1994 Act impose a persuasive, rather than merely evidential, burden on the defendant? The second question was this: if it does, is this reverse burden incompatible with Article 6 (2) of the European Convention on Human Rights? The Judge, in a ruling which is a model of clarity, answered that first question in the affirmative: that is, she decided that the section imposed a persuasive burden on the appellant. She answered the second question in the negative: that is, she decided that the imposition of such burden on the appellant was not incompatible with the Convention. The appellant, by leave given by the Judge herself (see s.35 (1) (3) of the Criminal Procedure and Investigations Act 1996), appeals against both parts of such ruling.
6. The importance of the first question is this. As has been long established, there is a pronounced difference between what is known as the legal (or persuasive) burden and what is known as the evidential burden. If a legal burden is imposed upon the accused then the matter in question is to be taken as proved against the accused unless he satisfies the jury on the balance of probabilities to the contrary. If an evidential burden is imposed upon the accused then the matter in question is to be taken as proved against the accused unless there is sufficient evidence to raise an issue on that matter: and, if there is sufficient evidence, then the burden falls on the prosecution to satisfy the jury as to that matter to the ordinary criminal standard, that is to say beyond reasonable doubt. Familiar common law examples (amongst others) of evidential burdens, so called, can be found in issues of self-defence, provocation and duress. The phrase "evidential burden" is, in truth, an inapposite phrase, certainly if phrased as "evidential burden of proof". As pointed out by Lord Devlin in Jayasena v The Queen 1970 AC 618 (at p624):
"Their Lordships do not understand what is meant by the phrase 'evidential burden of proof,' They understand, of course, that in trial by jury a party may be required to adduce some evidence in support of his case, whether on the general issue or on a particular issue, before that issue is left to the jury. How much evidence has to be adduced depends upon the nature of the requirement. It may be such evidence as, if believed and left uncontradicted and unexplained, could be accepted by the jury as proof. It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof. The essence of the appellant's case is that he has not got to provide any sort of proof that he was acting in private defence. So it is a misnomer to call whatever it is that he has to provide a burden of proof…"
The phrase "evidential burden", at...
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