Matthews, R. v

A statutory defence requiring an accused to prove a good reason for carrying a bladed article in public imposes a persuasive burden. It makes an inroad into the presumption of innocence because the defence bears directly on moral blameworthiness.

That burden is nevertheless compatible with Article 6(2) where it pursues the legitimate aim of protecting the public, concerns a matter peculiarly within the accused’s knowledge, and is proportionate. The court must strike a fair balance between the community interest and individual rights, giving appropriate weight to Parliament’s judgment. The burden must go no further than necessary.

The appellant was convicted at the Crown Court at Woolwich of possessing a knife in a public place contrary to Criminal Justice Act 1988, section 139. He said that he was carrying it to cut lino for a friend. The judge directed the jury that he had to prove, on the balance of probabilities, that he had a good reason.

He appealed on the ground that the statutory reverse burden in section 139(4) and (5) was incompatible with Article 6 of the European Convention on Human Rights. The appeal followed the Divisional Court’s decision in Lynch v DPP [2002] 1 Cr App R 32, which upheld the provision’s compatibility.

1. Appeal dismissed. The ordinary meaning of section 139(4) and (5) of the Criminal Justice Act 1988 placed a persuasive, rather than merely evidential, burden on an accused to establish good reason or lawful authority for carrying a bladed article.

2. That burden made an inroad into Article 6(2). The offence involved moral blameworthiness, and the statutory defences bore directly upon it. There was, however, objective justification for a qualification of the presumption of innocence because the reason for carrying the article was peculiarly within the accused’s knowledge.

3. The court applied the proportionality approach explained in R v Lambert [2001] UKHL 37 and adopted the reasoning in Lynch v DPP [2002] 1 Cr App R 32. Section 139 required the prosecution first to prove knowing possession of the bladed article. It served the strong public interest in deterring its carriage without good reason. The tribunal remained obliged to scrutinise all the evidence when deciding whether a good reason existed.

4. The provision was materially distinguishable from the reverse burden considered in R v Lambert. The risk of conviction despite a reasonable doubt about knowledge was different, and the maximum sentence was far lower than life imprisonment. Appropriate deference was also due to Parliament’s assessment of how to protect the public from bladed articles in public places.

5. The persuasive burden struck a fair balance and went no further than necessary to achieve the statutory aim. Section 139 was therefore not incompatible with Article 6(2), so no reading down under section 3(1) of the Human Rights Act 1998 arose. The trial direction was correct and the conviction stood.

• Court of Appeal (Criminal Division): dismissed the appeal and held that section 139 of the Criminal Justice Act 1988 was compatible with Article 6(2).
• Crown Court at Woolwich: convicted the appellant by a 10:2 majority of possessing a bladed article in a public place, and imposed 60 hours’ community service.