The Retrospective Effect of S. 6 of the Human Rights Act 1998

Published date01 October 2002
DOI10.1177/002201830206600509
Date01 October 2002
Subject MatterArticle
The
Retrospective
Effect
of
s.
6of
the
Human
Rights
Act
1998
Gavin Dingwall*
Abstract
When
the
House of Lords delivered its
judgment
in
Lambert,
comment
initially concerned
the
fact
that
their
Lordships held
that
the
legal
burden
of proof placed on defendants in s. 28 of
the
Misuse of Drugs
Act 1971 contravened
the
presumption
of innocence contained in Article
6(2) of
the
European
Convention on
Human
Rights. This was
indeed
a
major
and
potentially far-reaching finding,
but
it was in fact
obiter
dicta
for
the
House also held
that
adefendant
who
was convicted prior to s. 6 of
the
Human
Rights Act 1998 coming into force could
not
rely on
that
section in
an appeal after the Act came into force, except in certain carefully pre-
scribed circumstances.
It
is only
now
when
subsequent
case law has
challenged this finding
that
its importance has
been
fully recognised. This
article aims to respond to the academic neglect of this
point
through
a
careful scrutiny of
the
judgments
in Lambert
and
will argue that, despite
recent judicial criticism,
the
majority in
Lambert
deconstructed acomplex
statutory
framework to expose Parliament's limited
intention
to 'bring
rights
home'.
In
what
Roderick
Munday
has described as
one
of
the
most
important
evidence cases of
the
last decade,I
the
House of Lords in
Lambert'
held
that
the
legal
burden
of proof placed on defendants in s. 28 of
the
Misuse
of Drugs Act 1971 contravened
the
presumption of innocence guaran-
teed by Article 6(2) of
the
European Convention on
Human
Rights.
It
was held,
somewhat
spuriously,
that
the
section could be read as impos-
ing
an
evidential
burden
on
the
defendant instead; ameasure
which
the
House felt could be justified on
the
grounds of proportionality. This
ruling could obviously have amajor impact in subsequent cases
and
has
understandably generated considerable comment.3
The House, however, decided something else which has generated far
less comment,
but
which also has
the
potential to be far-reaching."
Lambert was originally convicted before the
Human
Rights Act 1998
came into force on 2 October 2000. Section 6 of the 1998 Act states
that
*University of Wales, Aberystwyth. I wish to
thank
my colleague Neil Kibble
who
once again
made
some valuable
comments
on an earlier draft of this article. The
usual disclaimer applies.
1R. Munday,
Evidence
(Butterworths: London, 2001) vi.
2 (2001) 3 WLR 206.
3 See G. Dingwall. 'Statutory Exceptions, Burdens of Proof
and
the
Human
Rights
Act 1998' (2002) 65(3) MLR 450
and
P. Roberts, 'Drug Dealing
and
the
Presumption of Innocence: The
Human
Rights Act (Almost) Bites' (2002) 6( 1) IJEP
17.
4 Two short articles appeared in the New Law Journal on this point after
the
Court of
Appeal
and
House of Lords
judgments
in
Lambert:
M. Swainston, 'The
Retrospective Effect of the
Human
Rights Act' (2001) 151
NU
576
and
P.
Ferguson, 'Criminal Convictions, Retrospectivity
and
Human
Rights' (2001) 151
NLJ 1443.
445

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