Carass, R v [2001] EWCA Crim 2845 (19th December, 2001)

Carass, R v [2001] EWCA Crim 2845 (19th December, 2001)

Section 206(4) of the Insolvency Act 1986 must be read as imposing only an evidential burden on the accused, not a legal/persuasive burden, to comply with Article 6(2) ECHR and the Human Rights Act 1998; the Court of Appeal has jurisdiction as a point of law was determined at a preparatory hearing.

Citation
[2001] EWCA Crim 2845
Parties
Prosecution: Regina; Appellant: Clive Louden Carass; Intervener: Department of Trade and Industry
Jurisdiction
England and Wales
Procedural Posture
Interlocutory Criminal Appeal / Appeal From Preparatory Hearing Under Section 9(11) Criminal Justice Act 1987
Outcome
appeal allowed
Legal Topics
Reverse Burden of Proof, Compatibility With European Convention on Human Rights, Interpretation of Statutory Defences, Human Rights Act 1998 Section 3, Insolvency Act 1986 Section 206
Criminal Law Human Rights Law Insolvency Law Reverse Burden of Proof Compatibility With European Convention on Human Rights Interpretation of Statutory Defences Human Rights Act 1998 Section 3 Insolvency Act 1986 Section 206

Case Brief

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Parties

Regina

Prosecution

Clive Louden Carass

Appellant

Department of Trade and Industry

Intervener

Procedural Posture

Interlocutory Criminal Appeal / Appeal From Preparatory Hearing Under Section 9(11) Criminal Justice Act 1987

Legal Issues

  1. 1 Whether section 206(4) of the Insolvency Act 1986 imposes a legal or evidential burden
  2. 2 Whether section 206(4) is incompatible with Article 6(2) ECHR
  3. 3 Whether the Court of Appeal has jurisdiction under section 9(11) Criminal Justice Act 1987

Ratio Decidendi

Section 206(4) of the Insolvency Act 1986 must be read as imposing only an evidential burden on the accused, not a legal/persuasive burden, to comply with Article 6(2) ECHR and the Human Rights Act 1998; the Court of Appeal has jurisdiction as a point of law was determined at a preparatory hearing.

Court Disposition

appeal allowed

Orders

  • Section 206(4) to be construed as imposing an evidential burden only; jury directions must reflect this interpretation.
  • No declaration of incompatibility; section is compatible when read down.