(back to preceding text)

    48. The second issue can only affect the appellant's case if he succeeds on the third issue as to retrospectivity. But the appellant does not need to succeed on the third issue if he is to succeed on his first issue. If he is right on the first issue, which has nothing to do with his article 6(2) Convention right, it must follow that there was a fundamental defect in the summing up by the trial judge.

    49. The Crown case against the appellant depended upon the evidence of police officers who said that on 25 November 1998 they were in the railway station at Runcorn. Prior to the arrival of the London to Liverpool train at 1.30pm they saw two men in the reception hall. One of them was carrying a duffle bag. When the train arrived the appellant got off the train, crossed the bridge and went into the booking hall. The two men who had been waiting outside came in to the booking hall and approached him. One of them said "Steve", and the appellant acknowledged that this was his name and shook hands. All three men then left the booking hall and went to two cars which were in the car park. The appellant and one man got into one car and the other man got into another. About two minutes later the appellant returned to the reception area with a duffle bag. He tried to make a call from his mobile phone. He then went into a phone kiosk, where the police went up to him, identified themselves as police and asked him what he had in the bag. The appellant said, "I don't know, I've just been paid to pick it up". The bag contained two kilogrammes of cocaine at 76% purity which was worth over £140,000.

    50. The appellant's defence was that he did not know what was in the duffle bag. He said in evidence that he had had a phone call the previous evening from a man named John who was in the business of printing tee shirts. He later met John and received from him an envelope which he assumed to contain money. He said that he had in the past driven up to Liverpool to drop off money for him. He got onto the train thinking that he was going to Liverpool. While he was on the train John phoned him and told him to get off at Runcorn. When he got off the train he walked over to a man named Jebb whom he knew and to whom he had also spoken when he was on the train. What normally happened when he met Jebb was that he gave the money to him and took back from him a few packages of tee shirts. On this occasion Jebb was with another man, who handed the appellant the duffle bag. The appellant said that when he asked, "What's this?" Jebb said that it was a bit of scrap for John and then that it was scrap gold. When he was in the car he looked into the bag and Jebb said that it was scrap jewellery but told him to stop rooting about in the bag. When the appellant said that he was just having a look Jebb threatened him, pointing to something under his left arm. The appellant thought that he was going to be shot. As he got out of the car Jebb said that he was to take the bag or he would shoot him and his girlfriend. He went to the telephone to warn his girlfriend and to ask John why he had to take the duffle bag. His case was that at no stage did he suspect that the bag contained controlled drugs and that in any event he was acting under duress.

    51. The trial judge (HHJ Hale) told the jury in the course of his summing up that the real issue in the case was that raised by the defendant who said that, while he accepted all that the prosecution had to prove, he had a defence because he did not know what was in the bag. He gave the following direction:

"Now, members of the jury the law is this. A person who is in possession of a controlled drug shall be acquitted if he proves that he neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug. He doesn't have to know the type of drug but he must prove that he neither believed nor suspected nor had reason to suspect that the substance or product was a controlled drug.

Now whenever the criminal law requires a defendant to prove a defence of this type, then he does not have to prove it to the same high standard that the prosecution have to prove their burden. The prosecution have to make you sure of anything that they have to prove. A defendant has a lower standard of proof. Is it more probable than not, on the balance of probability. So you will have to consider whether the defendant probably didn't know or believe or had reason to suspect that the bag contained controlled drugs of some sort. If you think he probably didn't know, having considered all the evidence, you will find him not guilty and you need not go on to consider any of the other matters I am about to refer to."

He then told the jury that if the defendant had not proved that defence on the balance of probabilities they would have to consider the question of duress, but that it was for the prosecution to prove that he was not acting under duress so that they sure that he was not.

    52. The jury's verdict shows that they must have held that the appellant had failed to show on a balance of probabilities that he did not know or believe or have reason to suspect that the duffle bag contained controlled drugs and that they were also sure that he was not acting under duress. I think that it is unclear what they would have made of the case if they had been told that proof of knowledge that the bag contained controlled drugs was an essential element of the offence of possession which the prosecution had to prove to the required standard so that they were sure of what was being alleged. On the other hand I take a different view as to what the position would have been if they had been told that that it was for the appellant to provide evidence to support his defence of lack of knowledge that the product or substance was a controlled drug but that this was an evidential burden only which did not require him to prove anything. In that event the direction as to where the burden of proof lay would have been indistinguishable from that which the trial judge gave as to the defence of duress. As the jury rejected that defence the weight to be attached to which depended crucially upon what they made of the appellant's evidence, it is safe to assume that they would have reached the same decision with regard to this defence also. I have no doubt that Mr Owen QC for the appellant was right not to take the opportunity which was offered to him to contend otherwise.

"Possession" under the Misuse of Drugs Act 1971

    53. Before I turn to the first issue I must say something about the structure of the Misuse of Drugs Act 1971 with particular reference to the question of possession. It is necessary for me to do this in order to set the scene for an examination of the first and second issues.

    54. Section 5 of the 1971 Act is one of a group of sections containing various restrictions relating to controlled drugs. These include restrictions on their importation and exportation and their production and supply. Section 5 restricts the possession of controlled drugs. The leading provision is that in subsection (1) which provides that, subject to regulations for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession. The offences are created by subsection (2), which provides that it is an offence for a person to have a controlled drug in his possession, and subsection (3), which provides that it is an offence for a person to have a controlled drug, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of the Act. Schedule 4 to the Act, which deals with the prosecution and punishment of offences, lays down more severe penalties for a section 5(3) offence when it is prosecuted on indictment than it does for a section 5(2) offence.

    55. There are also differences in regard to the penalties for a section 5(2) offence which is prosecuted summarily. These depend upon whether the drug involved is a class A, B or C drug. As my noble and learned friend Lord Steyn has pointed out, the maximum sentence for the section 5(3) offence is one of life imprisonment. But that is so only in the case of a class A drug. In the case of a class B drug the maximum sentence is 14 years imprisonment. In the case of a class C drug it is 5 years imprisonment. In practice the sentences which are imposed for this offence are determinate rather than indeterminate sentences. But it is right to say that the offence sometimes attracts very long periods of imprisonment. The periods of imprisonment vary according to the class of drug involved.

    56. The Act also provides a person who is found to be in possession of a controlled drug with a number of defences. Section 5(4) contains a defence which is available in the case of a charge of simple possession under section 5(2) of the Act. It is a defence which proceeds on the assumption that the person knew or suspected that the thing which was in his possession was a controlled drug. Section 28 deals with the defences of lack of knowledge.

    57. The Act does not contain a definition of "possession", except that section 37(3) provides that for the purposes of the Act the things which a person has in his possession shall be taken to include any thing subject to his control which is in the custody of another. But it is well settled that the expression embraces both a factual and a mental element. The factual element is that of control, as section 37(3) indicates. Unless the thing is in the person's control, albeit while it is in the custody of another, it cannot be said to be in his possession. The mental element is that of knowledge. It is the extent of the knowledge which has to be established that is in dispute in this case. This is the point raised by the first issue. The directions which were given to the jury by the trial judge were to the effect that, while it was necessary for the prosecution to prove that the person knew that the thing was in his control, it was not necessary for the prosecution to prove that he knew that the thing was a controlled drug.

    58. I shall have to examine the provisions of the 1971 Act and the meaning of the word "possession" further when I am dealing with the first and second issues. For the time being it is sufficient to notice that at the time of the trial the directions which were given to the jury by the trial judge were in accordance with the law as it was understood to be at that time. According to this understanding, the mental element is satisfied if it is proved that the person knew that he had the thing in or subject to his control or, if it was in a container such as a bag, that it contained the thing which upon examination was found to be a controlled drug.

    59. As the Lord Justice General (Rodger) said in Salmon v H M Advocate, 1999 JC 67, 78E, after a careful review of the English and Scottish authorities including R v McNamara (1988) 87 Cr App R 246, the prosecution discharge their initial burden by proving that the accused knew that there was something in the bag and that it contained something which turned out to be the controlled drug and that the bag and its contents were under his control. It is not necessary for the prosecution to prove that he knew that the thing was in law a controlled drug for him to be found to be in possession of it. Then there are the statutory defences. If the accused says that he did not know or suspect or have reason to suspect that the bag contained the substance which turned out to be a controlled drug (section 28(2)) or that he did not know or suspect or have reason to suspect that the substance or product was a controlled drug (section 28(3)(b)(i)), the judge's task is to direct the jury to consider whether they are satisfied, on the balance of probabilities, that the defence has been made out: Salmon v H M Advocate, p 79E-F, G-H. That, as I have said, is what the law was understood to be at the date of the trial.

    60. As I have just observed, the directions which the trial judge gave on this matter were in accordance with the law as it was understood to be at the time of the trial. Mr Owen QC for the appellant submitted that this understanding was wrong. Relying to a great extent on the speech of Lord Reid in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 and your Lordships' decision in B v Director of Public Prosecutions [2000] 2 AC 428, he said that the mental element in the offence of possession of a controlled drug was not satisfied unless the prosecution proved that the defendant knew that the substance or product in his possession was a controlled drug. He said that the offences described in section 5 of the 1971 Act required proof of possession not of a container or an article of whose character the defendant was unaware but of a controlled drug. Knowledge that it was a controlled drug must be taken to be an essential element in the mens rea of the offence.

    61. I would reject this argument. I consider the settled law to be correct on this point. As far as the Misuse of Drugs Act 1971 is concerned, there are two elements to possession. There is the physical element, and there is the mental element. The physical element involves proof that the thing is in the custody of the defendant or subject to his control. The mental element involves proof of knowledge that the thing exists and that it is in his possession. Proof of knowledge that the thing is an article of a particular kind, quality or description is not required. It is not necessary for the prosecution to prove that the defendant knew that the thing was a controlled drug which the law makes it an offence to possess. I observe that Mr Owen did not submit that it was necessary for the prosecution to prove that the defendant was aware that the thing was a class A, B or C drug, as the case may be, although the class into which the drug falls will usually be relevant to any sentence he may receive.

    62. The long title of the 1971 Act states that it is an Act to make new provision with respect to dangerous or otherwise harmful drugs. It was enacted against the background of two important decisions of this House relating to legislation which it repealed: the Drugs (Prevention of Misuse) Act 1964 and the Dangerous Drugs Act 1965. In Warner v Metropolitan Police Commissioner [1969] 2 AC 256, in which the appellant had been convicted of an offence contrary to section 1 of the 1964 Act, it was held by the majority (Lord Reid dissenting) that the prosecution had only to prove that the accused knew of the existence of the thing and that it was in general not a defence for him to say that he believed the thing to be something else such as scent and not drugs. Lord Pearce said at p 305F:

"I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word 'possess.'"

    63. In Sweet v Parsley [1970] AC 132 the appellant was convicted of a contravention of the Dangerous Drugs Act 1965 in that she was concerned in the management of premises which were used for the smoking of cannabis although this was a farmhouse which she visited infrequently and the prosecutor conceded that she was unaware that the premises were used for that purpose. The conviction was quashed on the ground that the offence of which she had been convicted was not an absolute offence. Lord Reid observed at p 150B-D that there were at least two possible ways in which the public scandal of persons being convicted on a serious charge who were in no way blameworthy could be avoided without placing on the prosecutor the full burden of proving mens rea in cases where to do so would lead to many acquittals which were unjust:

"Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method…The other method would be in effect to substitute in appropriate classes of cases gross negligence for mens rea in the full sense as the mental element necessary to constitute the crime."

    64. The structure of the 1971 Act shows that what Parliament decided to do was to follow what Lord Pearce said was needed to satisfy the meaning of the word "possession" and to adopt the first of the two methods suggested by Lord Reid for avoiding the conviction of those who are not blameworthy. This is indicated most clearly by the words used to describe the defences mentioned in section 5(4) of the Act. This subsection provides:

"(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."

    65. The defences afforded by this subsection depend upon proof that the accused who is proved to have had a controlled drug in his possession acted as he did "knowing or suspecting it to be a controlled drug". The burden of "proving" that this is what he knew or suspected is placed on the accused. The inclusion of these words in each of paragraphs (a) and (b) of subsection (4) confirms that proof that the controlled drug was in the possession of the accused does not depend upon proof that the accused knew or suspected that the thing was a controlled drug. If it did, the words which I have quoted would have been omitted as they refer to something which, on this hypothesis, the prosecution would have to establish in every case in order to prove that the accused had the controlled drug in his possession. The words of the statute are wholly inconsistent with the appellant's argument.

    66. Further confirmation that this was the approach selected by Parliament can be found in the wording of section 28. Subsection (2) of this section provides:

"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."

    67. The function of this provision, which has often been overlooked, was explained by the Lord Justice General (Rodger) in Salmon v H M Advocate, 1999 JC 67. At pp 73H-74A and 74D-F he said:

". . . it is perhaps worth emphasising that subsection (2) of section 28 is concerned with the accused's state of knowledge as to some fact which the Crown must prove if it is to succeed in the prosecution rather than with the fact itself. So, for instance, in McNamara it was necessary for the Crown to prove that there was organic matter in the box on the back of the appellant's motor cycle and that it was cannabis resin. The function of subsection (2) is to give an accused person in the position of McNamara a defence - which subsection (3) does not afford him - if he proves that he neither knew nor suspected nor had reason to suspect that the organic matter was in the box

. . .

Subsections (2) and (3) of section 28 are both designed to come into play at a stage when the Crown have proved all that they need to prove in order to establish guilt either of a contravention of section 4(3)(b) or of a contravention of section 5(3). So the Crown will have proved that the accused was delivering a package containing cocaine, for example, and was thus concerned in the supplying of cocaine; or that he was in possession of a package containing ecstasy with intent to supply it. At that stage section 28(2) provides that the accused is nonetheless to be acquitted if he proves that he neither knew or suspected nor had reason to suspect the existence of a fact which the Crown required to prove, for example, that there was powder - which proved to be cocaine - or that there were tablets - which proved to be ecstasy - in the package which he was delivering or in the package which he possessed."

    68. The contrast which is drawn in these passages between the facts that the Crown must prove and the state of knowledge of the accused is to be found in the language of section 28(2) itself. It demonstrates that what Parliament chose to do was to define the offence in such a way as to require the Crown to prove the facts from which, in appropriate cases, the inference could be drawn that the accused was in possession of the thing which, upon examination and analysis, was shown to be a controlled drug. It left it to the accused to raise the question of lack of knowledge as a defence. In B v Director of Public Prosecutions [2000] 2 AC 428, 460C-D, Lord Nicholls of Birkenhead said that the starting-point for a court as to the necessary mental element in the case of statutory offences is the established common law presumption that mens rea is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. I would hold that the necessary contrary intention has been indicated in the present case.

    69. I do not think that it is surprising that Parliament made that choice in view of the difficulties which the prosecution would face if it had to prove in every case that the accused knew that the thing was a controlled drug. Taken to its logical conclusion, a requirement to prove mens rea as to the gravamen of the offence would extend to proof of knowledge that it was a controlled drug of the class alleged, as different penalties apply to each class. The legislation has clearly not gone that far, as section 28(3)(a) shows. As it is not a defence for the accused to prove that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged, it is plain that this is not something that the prosecution need establish. Proof of possession of the substance or product is sufficient. Strict liability follows, subject to the defences which are provided for by the statute

    70. In most cases possession of a container such as a bag or a tin will enable the inference to be drawn that the accused was in possession of its contents, and in most cases where the substance or product is out in the open such as where it is found on the accused's mantlepiece or at his bedside there will be other facts and circumstances from which that inference can be drawn. The problem arises in regard to proof that he knew that the thing in the container, on the mantlepiece or at his bedside was a controlled drug. The fact that the tablet or powder was a controlled drug may be capable of being proved only after careful examination and analysis. Inferences can be drawn if it is found in the company of other material which is used in connection with the supplying or use of controlled drugs. But if it is found on its own and its appearance is all that there is to go by, it may be very difficult for the prosecution to prove that the accused knew that it was a controlled drug.

    71. I think that there are sound reasons of policy for construing the legislation in such a way as not to put the initial burden of proving knowledge of that fact on the Crown. On this issue therefore I would reject the appellant's argument. But this brings me to the question whether the burden which then rests on the accused to raise the question of his knowledge as a defence is a persuasive burden - in which case he must establish his defence on the balance of probabilities - or an evidential burden only which leaves the burden of proof throughout on the Crown.

    72. As I have said, the view hitherto has been that the burden on the accused is a persuasive burden. The wording of section 28(2) and (3), in which the words "to prove" and "if he proves" are used, supports this view. The ordinary meaning of these words is that there is a persuasive burden that must be discharged. But the appellant has raised the question whether this reading of the words used in these subsections is compatible with his article 6(2) Convention right. This is the second issue.

    73. Article 6(2) of the Convention provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. There is an important question as to whether a statutory provision which transfers the burden of proof to the accused can ever be compatible with that presumption. But for the purposes of this case it is necessary only to answer the particular questions which have been raised. They are (a) whether the provisions of sections 28(2) and 28(3)(b)(i) of the 1971 Act, which according to the ordinary meaning of the words used require the accused to prove the defences mentioned there on the balance of probabilities, are incompatible with the Convention right; and (b), if so, whether they can be read and given effect to under section 3 of the 1998 Act in a way which is compatible with it.

    74. Mr Owen made it clear that the arguments which he presented on these questions were not directed to the defences which are mentioned in section 5(4) of the 1971 Act. This was because section 5(4) relates to things which the accused must establish if he wishes to avoid conviction but are not an essential element of the offence: see R v Edwards [1975] QB 27, 39-40. In that case the Court of Appeal said that, where an enactment prohibits the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications, it is for the defendant to prove that he was entitled to do the prohibited act. In R v Hunt [1987] AC 352, 375 Lord Griffiths said that he had little doubt that the occasions upon which a statute would be construed as imposing a burden of proof on a defendant which did not fall within that formulation would be exceedingly rare. It was to cases falling outside that formulation that Mr Owen directed his argument.

    75. The section 5(4) defence has not been raised in this case, but I would not wish to be taken as accepting that exceptions of that kind are always immune from challenge on Convention grounds. As I see it, there are three distinct questions, and all three questions need to be asked and answered.

    76. The first question is whether, upon the construction of the enactment, the defence is an exception of the kind described in R v Edwards. The second is whether the language used by Parliament, according to its ordinary meaning, has modified the golden thread rule as described by Viscount Sankey LC in Woolmington v Director of Public Prosecutions [1935] AC 462, 481. This rule requires that, subject to the defence of insanity and to any statutory exception which transfers the burden of proof in the case of a particular offence laid down in an enactment, the prosecution must always prove its entire case beyond reasonable doubt. This question too is a question of construction. In a case of a provision such as that found in section 5(4), where the words used are "it shall be a defence for him to prove", the answer to it is plain on the face of the enactment. A provision which takes this form is understood to be an express statutory exception to the golden thread rule.