Webster v R

A statutory presumption which places a legal burden on an accused to disprove corrupt motive infringes the presumption of innocence under Article 6.2 unless it remains necessary, reasonable and proportionate in its current operation. The assessment requires particular attention to the likelihood of the presumed fact, the prosecution’s present evidential difficulties, the flexibility of the presumption, the rights of the defence and the seriousness of the consequences.

Section 2 of the Prevention of Corruption Act 1916, when applied to section 1(2) of the Public Bodies Corrupt Practices Act 1889, could be read under section 3 of the Human Rights Act 1998 as imposing an evidential burden only. The prosecution then retains the legal burden of proving corrupt motive beyond reasonable doubt.

The appellant, who supplied educational equipment to a county council, was tried at Cambridge Crown Court for corrupt gifts to two council employees. He was acquitted on three counts but convicted, by a majority, of giving one employee £100 in cash contrary to section 1(2) of the Public Bodies Corrupt Practices Act 1889.

At trial, section 2 of the Prevention of Corruption Act 1916 was treated as requiring him to prove on the balance of probabilities that the gift was not corrupt. He appealed against conviction, contending that this legal reverse burden was incompatible with Article 6.2 of the European Convention of Human Rights. The central issues were proportionality and whether section 3 of the Human Rights Act 1998 permitted the burden to be read down to an evidential one.

1. Appeal allowed. The conviction was unsafe because there was a real possibility that the jury convicted because the appellant failed to disprove corrupt motive, rather than because it was sure that he had acted corruptly.

2. Section 2 of the Prevention of Corruption Act 1916 plainly imposed a legal reverse burden. Once the prosecution proved a gift by a person holding or seeking a public-body contract to its employee, the giver had to prove that the gift was not a corrupt inducement or reward under section 1(2) of the Public Bodies Corrupt Practices Act 1889.

3. The court applied the Article 6.2 principles explained in Salabiaku v France [1988] 13 EHRR 379 and Sheldrake and Others [2004] UKHL 43. A reverse burden is not automatically impermissible, but it must be confined within reasonable limits and preserve a fair trial. The court must consider the accused’s opportunity to rebut the presumption, the rights of the defence, the court’s ability to assess the evidence, what is at stake, and the difficulty that the prosecution would otherwise face.

4. Although the presumption was a proportionate emergency response in 1916, it was no longer justified at the appellant’s trial. A gift to a public employee by a contractor did not probably imply corruption. Modern rules permitting adverse inferences from silence or late disclosure also meant that the prosecution no longer faced the historic difficulty of obtaining an explanation. The presumption operated inflexibly in relation to all such gifts, despite the serious criminal, social and commercial consequences of conviction.

5. Under section 3 of the Human Rights Act 1998, section 2 of the 1916 Act could be read down consistently with the underlying bribery offence. The accused need only raise evidence putting corrupt motive in issue. The prosecution must then prove corrupt motive to the criminal standard. A declaration of incompatibility was unnecessary.

• Court of Appeal (Criminal Division) — leave was granted and the appeal against conviction was allowed: [2010] EWCA Crim 2819.
• Crown Court at Cambridge — following trial before HHJ Bate and a jury, the appellant was convicted on one count under section 1(2) of the Public Bodies Corrupt Practices Act 1889 and acquitted on three others.