Regina v Lambert

The House considered (1) whether the Human Rights Act 1998 permits an appellant to rely in an appeal after 2 October 2000 on an alleged breach of Convention rights at a trial held before that date; (2) whether possession under section 5 of the Misuse of Drugs Act 1971 requires proof that the accused knew the substance was a controlled drug; and (3) whether section 28(2) and (3) of the 1971 Act, which had been understood to place a legal (persuasive) burden on the accused to prove lack of knowledge, was compatible with Article 6(2) ECHR.

The House held that the Human Rights Act does not permit an appellant to rely, on appeal, upon alleged breaches by a trial court of Convention rights where the trial and conviction took place before the Act came into force, save where the scheme of sections 7 and 22 expressly permits retrospective reliance in proceedings brought by or at the instigation of a public authority. The House held that, for the purposes of section 5 of the 1971 Act, possession comprises physical control and knowledge of having the item in one’s control; it is not necessary for the prosecution to prove that the accused knew the thing was a controlled drug. The House accepted that, as originally worded, section 28(2) and (3) created a persuasive burden on the accused and thus made an inroad on the presumption of innocence, but concluded that the provisions could, and should, be read under section 3 of the Human Rights Act 1998 so as to impose only an evidential burden (i.e. the accused must adduce sufficient evidence to raise the issue, after which the prosecution must disprove it beyond reasonable doubt). Finally, applying those principles to the facts, the House dismissed the appeal because the appellant could not rely on the 1998 Act retrospectively and, in any event, the jury would inevitably have convicted on an evidential-burden direction.

The appellant was convicted at the Crown Court, Warrington, on 9 April 1999 of possession of two kilograms of cocaine with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971 and was sentenced to seven years' imprisonment. He relied at trial on section 28 of the 1971 Act, asserting that he neither believed nor suspected nor had reason to suspect that the bag he carried contained a controlled drug. The trial judge directed the jury in accordance with the law then understood: once the prosecution proved control of the container and that it contained a controlled drug, the accused bore a legal burden to prove lack of knowledge on the balance of probabilities.

The appellant appealed. On 31 July 2000 the Court of Appeal dismissed the appeal but certified three questions for the House: (1) whether knowledge that the thing was a controlled drug is an essential element of the offence under section 5; (2) whether a direction that the accused bears a legal burden under section 28 infringes Article 6(2); and (3) whether an appeal after the Human Rights Act 1998 came into force can rely on alleged breaches at a trial before that date.

The House analysed the scope and retrospective effect of the Human Rights Act 1998 (notably sections 3, 6, 7 and 22), the structure of the Misuse of Drugs Act 1971 (sections 5 and 28 and section 37(3)), and relevant authorities on possession and burdens of proof. It framed the issues as: (i) jurisdiction/retrospectivity under the 1998 Act; (ii) whether section 5, read with section 28, derogates from Article 6(2); and (iii) if so, whether that derogation can be justified or remedied by reading the statute under section 3.

The House concluded: (i) the 1998 Act does not generally permit reliance on Convention rights in respect of convictions obtained before its commencement except in the limited manner provided by section 22(4) (proceedings brought by or at the instigation of a public authority); (ii) the prosecution need only prove control of the container and that it contained a controlled drug — not that the accused knew it to be a controlled drug; (iii) although section 28 as worded imposes a legal burden and so inroads on the presumption of innocence, the interpretative obligation in section 3 permits the court to read the words "prove" and "if he proves" as requiring only that the accused adduces sufficient evidence to raise the issue (an evidential burden), after which the prosecution must disprove the defence beyond reasonable doubt. Applying these principles, the House dismissed the appeal: the appellant could not rely on the 1998 Act to challenge the trial judge’s pre-commencement direction, and on the facts a properly directed jury would inevitably have convicted.

Appeal dismissed. The House held that (1) the Human Rights Act 1998 does not generally allow defendants to rely on Convention breaches at trials held before the Act came into force except as expressly permitted by sections such as 22(4); (2) possession under section 5 of the Misuse of Drugs Act 1971 requires proof of control and knowledge of having the item in one’s control but not knowledge that it is a controlled drug; (3) while section 28 as worded imposed a legal (persuasive) burden on the accused and thus impinged article 6(2), section 3 of the 1998 Act allows the words to be read so as to impose only an evidential burden; and (4) on the facts the conviction was safe and the appeal failed.

Convicted at Crown Court, Warrington, 9 April 1999. Appeal to the Court of Appeal (Criminal Division) dismissed (judgment reported at [2001] 2 WLR 211; judgment delivered 31 July 2000) with certification of questions. Leave to appeal to the House of Lords granted; appeal heard and judgment given by the House of Lords, 5 July 2001 ([2001] UKHL 37).