Attorney General Reference No. 1 of 2004

A reverse legal burden does not inherently breach Article 6(2). Its compatibility depends on substance, not drafting form. The prosecution must ordinarily retain the burden of proving the essential ingredients. A court must then assess the statutory objective, the realistic effect of the exception, the defendant’s access to the relevant facts, practical difficulties of proof, and whether the provision remains proportionate and permits a fair trial.

An evidential burden does not infringe Article 6(2). Where a legal burden is unjustified, section 3(1) of the Human Rights Act 1998 may permit it to be read as evidential. Preparatory hearings require the statutory criteria of complexity or likely length and likely substantial benefit; convenience alone is insufficient.

The court determined an Attorney General’s reference and four criminal appeals concerning reverse burdens of proof and preparatory hearings. The cases concerned bankruptcy offences, unlawful eviction, a suicide-pact defence to murder, and witness intimidation.

The reference followed an acquittal after a ruling at Ipswich Crown Court that section 352 of the Insolvency Act 1986 should be read down. Edwards appealed a contrary ruling on the same insolvency provisions. Denton and Jackson, Hendley, and Crowley appealed rulings or a conviction involving other statutory reverse burdens.

The central issue was when a reverse legal burden is compatible with Article 6(2), whether it can be read down under section 3(1) of the Human Rights Act 1998, and when a preparatory hearing may properly be ordered.

1. General approach. The court held that Article 6(2) permits reverse legal burdens in appropriate circumstances. The court should review Parliament’s choice with due regard to the statutory objective. It must consider the provision’s substance, whether the Crown proves the essential ingredients, the defendant’s access to the relevant facts, practical proof difficulties, and proportionality. The ultimate question is whether the exception prevents a fair trial. A merely evidential burden creates no Article 6(2) risk.
2. Reading down. Under section 3(1) of the Human Rights Act 1998, a reverse burden may be read as evidential where a legal burden would be incompatible. The operation of section 352 of the Insolvency Act 1986 may therefore differ according to the offence to which it applies.
3. Insolvency offences. Section 352, read with section 357(1), imposed an unjustified legal burden. Section 357(1) was exceptionally broad: it criminalised a disposal up to five years before bankruptcy without requiring the Crown to prove unusual circumstances, awareness of insolvency, or a minimum value. Fraud was an integral constituent of the offence. Section 352 therefore had to be read as imposing only an evidential burden. The court allowed Edwards’s appeal and treated R v Carass, [2002] 1 WLR 1714, as impliedly overruled.
4. Different insolvency result. Section 352, read with section 353(1)(b), was compatible with Article 6(2). Once the Crown proved failure to disclose an unusual disposal outside ordinary business or living expenditure, it was reasonable to require the bankrupt to prove lack of fraudulent or concealing intent.
5. Other reverse burdens. The legal burdens in section 1(2) of the Protection from Eviction Act 1977, section 4(2) of the Homicide Act 1957, and section 51(7) of the Criminal Justice and Public Order Act 1994 were justified and proportionate. The appeals of Denton and Jackson, Hendley, and Crowley were dismissed.
6. Preparatory hearings. A hearing under Part III of the Criminal Procedure and Investigations Act 1996 requires the section 29 criteria and likely substantial benefits for its specified purposes. Convenience, or a wish to obtain an interlocutory ruling, is insufficient. If no relevant material establishes those criteria, neither the Crown Court nor, ordinarily, the Court of Appeal has jurisdiction under that procedure.

• Court of Appeal (Criminal Division): Determined the Attorney General’s reference and the four appeals. It allowed Edwards’s appeal and dismissed the other appeals.
• Ipswich Crown Court: Mr Recorder Hamblen QC held that section 352 of the Insolvency Act 1986 imposed only an evidential burden when read with sections 353(1) and 357(1). The Attorney General referred points of law arising from that ruling.
• Winchester Crown Court: HHJ Hooton held in Edwards that section 352 imposed a compatible legal burden. That ruling was reversed.
• Woolwich Crown Court: HHJ Carroll held in Denton and Jackson that the statutory reverse burden was compatible with Article 6(2). That ruling was upheld.
• Crown Court: Douglas Brown J held in Hendley that section 4(2) of the Homicide Act 1957 imposed a legal burden. That ruling was upheld.
• Snaresbrook Crown Court: Crowley was convicted of witness intimidation after a jury direction based on section 51(7) of the Criminal Justice and Public Order Act 1994. Her conviction appeal was dismissed.