Choudhury & Anor, R v

Under Misuse of Drugs Act 1971, section 28 imposes an evidential, not a persuasive, burden on an accused who relies on lack of knowledge or suspicion. The prosecution retains the burden of proving guilt throughout.

A direction placing the persuasive burden on an accused is a fundamental error and violates article 6(2). It does not invariably make a conviction unsafe. The appellate court must assess the particular circumstances and decide whether it can exclude the real possibility that the jury convicted although not sure of the accused’s knowledge. Strong prosecution evidence will not suffice where that possibility remains.

Choudhury and Abbas were separately convicted at Birmingham Crown Court of possessing diamorphine after police stopped a car driven by Abbas and found two holdalls containing more than 39 kilograms of heroin. The prosecution alleged that both appellants had joint control of the holdalls and knew their contents. Each denied knowledge; Choudhury also denied control.

At both trials, the recorder gave inconsistent directions on section 28 of the Misuse of Drugs Act 1971. Although the jury were initially told that the prosecution had to prove knowledge, they were later told that each appellant had to prove lack of knowledge or suspicion on the balance of probabilities. The appeals concerned whether that misdirection rendered the convictions unsafe.

1. Appeals allowed. The convictions were unsafe and were quashed. A retrial was ordered on a fresh indictment.

2. Section 28 of the Misuse of Drugs Act 1971, read compatibly with the Human Rights Act 1998, placed only an evidential burden on the appellants. The prosecution retained the persuasive burden of proving knowledge, suspicion or reason to suspect that the holdalls contained controlled drugs. The contrary directions were clear misdirections.

3. The error was fundamental and violated article 6(2) of the European Convention. However, following R v Lambert [2008] 2 AC 545, such an error does not inevitably make a conviction unsafe. The question is whether the particular circumstances show that a properly directed jury would inevitably have convicted.

4. Although the prosecution evidence was very strong, the court could not exclude the possibility that either jury convicted while unsure that the appellant knew the holdalls contained drugs. The first jury had failed to reach a verdict on Abbas, and the second jury specifically sought a repetition of the erroneous section 28 direction. The convictions could therefore have rested on a false legal basis.

5. The separate complaint concerning the direction on Choudhury’s control of the holdalls was rejected. The recorder had adequately identified control as a matter the prosecution had to prove and left its factual determination to the jury.

6. Given the seriousness of the alleged offending and the strength of the evidence, the interests of justice required a retrial. The appellants were remanded in custody pending it.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 3179, allowed both appeals against conviction, quashed the convictions and ordered a retrial.
• Birmingham Crown Court: Choudhury was convicted on 2 October 2007. Abbas’s first jury could not reach a verdict; he was convicted after a retrial on 11 January 2008. Both were sentenced on 22 February 2008.