Charles, R v

For an offence of breaching an anti-social behaviour order under Crime and Disorder Act 1998, section 1(10), the defendant bears only an evidential burden to raise a reasonable excuse. Once that issue arises on the evidence, the Crown bears the legal burden of proving beyond reasonable doubt that there was no reasonable excuse.

Whether a statutory exception shifts a legal burden depends on the construction of the particular offence. Section 1(10) did not displace the fundamental rule that the prosecution proves guilt. That conclusion was reinforced by the potentially broad and imprecise terms of ASBOs and by the fact that breach may criminalise conduct which is otherwise lawful.

The appellant was subject to a post-conviction anti-social behaviour order which prohibited conduct causing, or likely to cause, harassment, alarm or distress. He was prosecuted after an incident involving a tenant at a property he let.

At the Crown Court at Woolwich, the trial judge directed the jury that the appellant bore the legal burden of proving reasonable excuse. The jury convicted him of breaching the order but did not reach a verdict on a separate charge of assault occasioning actual bodily harm. The judge certified the burden-of-proof issue for the Court of Appeal.

The central question was whether, on a prosecution under section 1(10), the Crown or the defendant bears the legal burden concerning absence of reasonable excuse.

1. Appeal allowed. The conviction for breach of the anti-social behaviour order was quashed. The trial judge had wrongly directed that the appellant bore the legal burden of proving reasonable excuse.
2. Section 1(10) of the Crime and Disorder Act 1998 creates an offence where a person does a prohibited act without reasonable excuse. Properly construed, it imposes only an evidential burden on the defendant. If reasonable excuse is raised on the evidence, the Crown must prove beyond reasonable doubt that the defendant had no reasonable excuse.
3. The starting point was the fundamental principle in Woolmington v DPP [1935] AC 462 that the prosecution proves guilt. The limited exception described in R v Edwards [1925] 1 Q.B. 27, and treated in R v Hunt [1987] 1 A.C. 352 as a guide to construction, applies where an enactment prohibits conduct subject to a true proviso, exemption or equivalent qualification. It does not arise merely because the offence contains the words reasonable excuse.
4. The statutory context strongly indicated that Parliament did not intend to shift the legal burden. ASBO terms were left to courts and could be broad or imprecise. Breach could also criminalise conduct which Parliament had not otherwise made criminal. The court approved the analogous approach in R v Evans (Dorothy) [2004] EWCA Crim 3102 and R v Nicholson [2006] EWCA Crim 1518.
5. Having heard submissions, the court held that a retrial would not be proportionate and made no order for one.

• Court of Appeal (Criminal Division) allowed the appeal, quashed the conviction for breach of the anti-social behaviour order, and declined to order a retrial.
• Crown Court at Woolwich convicted the appellant after directing the jury that he bore the legal burden of proving reasonable excuse. The judge certified that burden-of-proof issue for appeal.