Keogh v R.

A reverse legal burden imposed on a defendant in respect of a substantial mental element of a criminal offence significantly infringes the presumption of innocence under Article 6(2). Its compatibility depends on justification and proportionality, including whether it is necessary for the effective operation of the offence.

Where the prosecution can practically prove the defendant’s knowledge or reasonable cause to believe from the disclosed material, surrounding facts and service history, a legal burden is unjustifiable. Under Official Secrets Act 1989, sections 2(3) and 3(4) must therefore be read as imposing an evidential, rather than legal, burden.

The appellant, a Crown servant, was charged with unauthorised disclosure offences under sections 2 and 3 of the Official Secrets Act 1989. The prosecution alleged that he copied a highly confidential record concerning a meeting between the Prime Minister and the President of the United States, and passed it to a political researcher.

At a preliminary hearing, Aikens J held that the statutory defences in sections 2(3) and 3(4), which on their natural meaning placed legal burdens on a defendant concerning knowledge and reasonable cause to believe, were compatible with Article 6. The appellant challenged that ruling. The central issue was whether those reverse legal burdens were compatible with the presumption of innocence.

1. Appeal allowed. Sections 2(3) and 3(4) of the Official Secrets Act 1989, if read as imposing legal burdens, were incompatible with Article 6(2). They were to be read down so that a defendant bears only an evidential burden, in a manner analogous to section 118 of the Terrorism Act 2000.

2. The statutory defences did not concern a peripheral exemption from otherwise complete strict-liability offences. In reality, the offences would not be committed where the defendant lacked knowledge, or reasonable cause to believe, in the matters specified in sections 2(3) and 3(4). A legal burden would therefore require the defendant to disprove a substantial ingredient of criminality and could permit conviction despite a reasonable doubt about that mental element.

3. The Court followed the Article 6 approach explained in R v Lambert [2002] 2 AC 545, R v Johnstone [2003] 1 WLR 1736 and Sheldrake v DPP [2004] UKHL 43. The task was to assess whether Parliament’s enacted burden unjustifiably infringed the presumption of innocence. The critical question here was whether a legal burden was necessary for the effective operation of sections 2 and 3.

4. The lower court had construed the absence of reasonable cause to believe that disclosure would be damaging as requiring proof of reasonable cause to believe that disclosure would not be damaging. That was incorrect. A Crown servant or contractor need only show that nothing known, or which should have been known in the course of duties and service, ought to have alerted that person to the likelihood of damaging disclosure.

5. The prosecution could ordinarily prove the requisite mental element from the nature of the disclosed material, the extrinsic facts establishing damage, and the defendant’s service records. Its burden was no harder than in section 5, which requires proof of comparable knowledge for outsiders. A trial would in practice proceed on the basis that the prosecution advanced its positive case on mens rea from the outset. The reverse legal burdens were consequently unnecessary, disproportionate and unjustifiable.

• Court of Appeal (Criminal Division): Allowed the appellant’s appeal and held that the reverse legal burdens in sections 2(3) and 3(4) must be read as evidential burdens.
• Preliminary hearing before Aikens J: On 15 December 2006, ruled that the natural construction of sections 2(3) and 3(4) was compatible with Article 6.