Grundy & Co Excavations Ltd., R (on the application of) & Anor v Halton Division Magistrates Court

Under sections 9 and 17 of the Forestry Act 1967, the statutory exceptions to the requirement for a felling licence place a legal burden on the accused. The prosecution must prove that the accused felled the trees. Where it is accepted that no licence was issued, the accused must prove on the balance of probabilities that an exception applied. That burden is compatible with article 6(2) because, in this regulatory context, imposing a legal rather than evidential burden is necessary and proportionate. The offence is one of strict liability, subject only to the mental element inherent in proving the act of felling.

The claimants sought judicial review of rulings made by District Judge Dodd at Halton Magistrates Court in proceedings alleging that they had felled 86 trees without a felling licence, contrary to section 17 of the Forestry Act 1967. The issues were whether the prosecution had to disprove the statutory exceptions or whether the claimants bore the burden of proving them, and whether the prosecution had to establish mens rea beyond the mental element involved in felling. Permission was granted by Sullivan J on 29 May 2002 and the matter was heard by the Divisional Court.

1. Application dismissed. The District Judge had reached the correct conclusions.
2. Sections 9(2) to 9(4) of the Forestry Act 1967, together with relevant regulations, create exceptions to the general requirement for a felling licence. Applying R v Edwards [1975] 1 QB 27, R v Hunt (Richard) [1987] AC 352 and section 101 of the Magistrates Courts Act 1980, the burden of proving those exceptions is a legal burden on the accused.
3. The conclusion followed from the statutory language, including the express description of the provisions as exceptions; the structure of sections 9 and 17; and practical considerations. The Commission could not realistically negative every statutory and regulatory exception, whereas the relevant facts should ordinarily be within the accused’s knowledge.
4. The prosecution must prove that the accused felled the trees. Where, as here, it is common ground that no licence was issued, the accused must prove on the balance of probabilities that the felling fell within an exception. It was unnecessary finally to decide who bore the burden of proving that felling was authorised by a licence, although the court’s provisional view was that this too would ordinarily be a legal burden on the accused where compliance with licence conditions was disputed.
5. The offence was regulatory and quasi-criminal. Applying the principles discussed in Gammon Ltd v A-G of Hong Kong [1985] 1 AC 1, R v Lambert [2001] UKHL 37 and R v Muhamad (Mithun) [2002] EWCA Crim 1856, the presumption of mens rea was displaced. The prosecution therefore needed to prove no mental state beyond that involved in proving that the trees were felled.
6. The reverse legal burden derogated from article 6(2) of the Convention, but was justified and proportionate under section 3(1) of the Human Rights Act 1998. A legal burden was necessary to make the regulatory scheme workable and was not unfair in the circumstances.
7. Grundy was ordered to pay the interested party £9,693.75 in costs.

Permission to apply for judicial review was granted by Sullivan J on 29 May 2002. The Divisional Court dismissed the application and upheld the District Judge’s rulings.