Innocent until proven guilty’ is a phrase common to both English and European law; however, when the conviction of possession of controlled drugs required a reverse burden of proof upon the the defendant, it ran risk of violating the rights afforded citizens under the Convention.

Having been arrested and convicted of possession of £140,000 worth of class A drugs under section 5(3) of the Misuse of Drugs Act 1971, the appellant challenged the trial judges direction and that of the jury under article 6(2) of the European Convention for the Protection of Human Rights (ECHR) (Right to a fair trial).

Further citing that when section 28 of the 1971 Act placed an unfair burden of proof where taken in context with section 6 of the newly introduced Human Rights Act 1998 (HRA) (Right to a fair trial), it rendered the actions of the court void and thereby unlawful.

As point of fact, the HRA 1998 had been drafted and given royal assent in November 1998, but had not taken legal affect until 2nd October 2000; yet, contrastingly the appellant had been convicted on 9th April 1999; and so, relied upon the effects of the Convention and the HRA 1998 in order to undermine the courts decision to pass sentence.

Domestic legal position at the time prior to the 1998 Act was that when accused of possession of controlled drugs, the defendant was afforded reasonable protection through section 28(2) of the Misuse of Drugs Act 1971, which read:

“[I]n any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove that he is to be convicted of the offence charged.”

Misuse of Drugs Act 1971

This allowed the defendant to prove by balance of probability, that possession of such substances arose from ignorance of it’s existence rather than conscious choice.

Section 28(3)(b)(i) further allowed the defendant to seek acquittal by proving that he had no reason to suspect that whatever substance he possessed was a controlled drug.

When heard before the first court, the judge applied existing criminal procedure by directing the jury to assume that the defendant knew he had possession of the drugs, and that by reverse burden of proof it was for the defendant to demonstrate otherwise.

It was this approach that the appellant relied upon when citing the Convention rights and HRA 1998 principles, inasmuch as article 6(2) of the Convention stated that “everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”; yet, despite his protestations, the court reached summary conviction and he was sentenced to seven years in prison.

Having later brought his case before the Court of Appeal, his appeal was dismissed, while a number of questions were raised concerning both the presumption of innocence and the retroactive nature of the HRA 1998.

This allowed his case to be heard again in the House of Lords, where consideration of the hearing date (April 2001) enabled the House to examine the validity of his claim, after the effects of the HRA 1998 had begun.

Through the powers of section 6(1) of the HRA 1998, it was possible for individuals to hold a local authority liable for violations of the Convention, and that under English law, the House of Lords was exactly that.

However, the caveat to this argument was that the initial conviction was in fact prior to the 1998 Act, and that for perhaps obvious reasons, no express provision had been made to allow retroactive effect upon previously decided cases.

It was for that primary reason that the appeal, while occurring inside the watershed of human rights protection, was considered by extension, as nothing more than a decisive aspect to the whole case; while section 7(6) of the HRA 1998 alone denoted that appeals against the decisions of a court applied only to those matters brought by public bodies and not convicted criminals.

This translated that regardless of hypothetical arguments, the outcome would have remained the same, and so the appeal was again dismissed, while the House reminded the parties that:

“[A] true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance.”

Additional Note

The imposition of legal burden upon defendants under section 28 of the Misuse of Drugs Act 1971, was compared to the empowering effects of the Convention, and the House agreed that while the duty of the prosecution was an establishment of guilt, failure to convince a jury that the accused was ignorant as to the existence of an illegal substance should not determine the verdict, and ran counter to the principles of the 1998 Act.

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