Regina v. Lambert

For possession under section 5 of the Misuse of Drugs Act 1971, the prosecution must prove control of the thing and knowledge of its existence. It need not prove knowledge that the thing was a controlled drug.

A legal burden requiring the accused to prove the section 28 defence of lack of knowledge would disproportionately impair the presumption of innocence. For trials to which the Human Rights Act 1998 applies, section 28 must therefore be read as imposing only an evidential burden.

An appellant cannot rely on that Act to challenge an allegedly incompatible judicial direction given before its relevant provisions commenced. A conviction need not be quashed where a properly directed jury would inevitably have convicted.

Regina v. Lambert concerned an appeal against a conviction for possessing cocaine with intent to supply under section 5(3) of the Misuse of Drugs Act 1971. The appellant carried a bag containing two kilograms of cocaine. He maintained that he neither knew nor suspected that it contained a controlled drug and also relied on duress.

The trial judge directed the jury that the appellant had to prove lack of knowledge on the balance of probabilities under section 28. The Court of Appeal (Criminal Division) dismissed his appeal: [2001] 2 WLR 211.

The House considered whether knowledge that the substance was a controlled drug formed an ingredient of possession, whether the reverse legal burden was compatible with article 6(2), and whether the Human Rights Act 1998 could be invoked against a judicial act occurring before its commencement.

1. Disposition. The House unanimously dismissed the appeal. The conviction was safe, although the Law Lords divided on the retrospectivity of the Human Rights Act 1998 and on the compatibility of the legal burden conventionally attributed to section 28 of the Misuse of Drugs Act 1971.

2. Ingredients of possession. Lord Slynn, Lord Hope, Lord Clyde and Lord Hutton held that section 5 does not require the prosecution to prove that the accused knew the thing in his possession was a controlled drug. It must prove custody or control, knowledge of the thing and its presence, and that the thing was in fact the controlled drug alleged. For an offence under section 5(3), it must also prove intent to supply. Lack of knowledge of the nature of the thing is addressed by section 28.

3. Retrospectivity. Lord Slynn, Lord Hope, Lord Clyde and Lord Hutton held that an appellant could not use sections 6 and 7 of the Human Rights Act 1998 to impugn a trial judge’s direction given before those provisions commenced. Section 22(4) did not make an appeal against a pre-commencement judicial act retrospectively subject to Convention rights. Lord Steyn dissented on this point. He considered that section 6(1) regulated the House’s present conduct and prevented it from upholding a conviction obtained incompatibly with a Convention right.

4. Reverse burden. Lord Slynn, Lord Steyn, Lord Hope and Lord Clyde concluded that a persuasive burden under section 28 would be disproportionate and incompatible with article 6(2). Although easing the prosecution of drug offences was a legitimate objective, an evidential burden was sufficient. Under section 3 of the Human Rights Act 1998, “prove” and “proves” must therefore be read, in cases to which that Act applies, as requiring sufficient evidence to raise the issue. The prosecution must then disprove the defence beyond reasonable doubt. Lord Hutton dissented, considering a persuasive burden justified by the seriousness of drug trafficking and the difficulty of proving knowledge.

5. Safety. All five Law Lords concluded that a direction imposing only an evidential burden would not have altered the verdict. The jury had rejected the closely related defence of duress, and the evidence made conviction inevitable. The appeal was therefore dismissed.

1. House of Lords: The appeal in Regina v. Lambert was dismissed unanimously: [2001] UKHL 37.
2. Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The court’s decision is reported at [2001] 2 WLR 211.
3. Crown Court at Warrington: The appellant was convicted of possession of a class A controlled drug with intent to supply and sentenced to seven years’ imprisonment.