Attorney General Reference No. 1 of 2004

Attorney General Reference No. 1 of 2004

A statutory provision imposing a legal burden on the defendant will only be compatible with Article 6(2) ECHR if justified and proportionate, considering the nature of the offence, the facts to be proved, and the public interest. Where not justified, the provision should be read down to impose only an evidential burden. In the context of insolvency offences, a legal burden is not justified for section 357(1) IA 1986 (fraudulent disposal of property), but is justified for section 353(1)(b) IA 1986 (failure to inform official receiver of disposal). For unlawful eviction, murder (suicide pact), and witness intimidation, the legal burden is justified. Preparatory hearings must only be held...

Parties
Appellant: Regina; Respondent: Edwards; Respondent: Denton & Jackson; Respondent: Hendley; Respondent: Crowley; Applicant: Attorney General
Jurisdiction
England and Wales
Judgment Date
29 April 2004
Procedural Posture
Criminal Appeal and Attorney General's Reference / Court of Appeal (criminal Division) Judgment
Outcome
Attorney General's Reference answered in part; appeals allowed in part and dismissed in part.
Legal Topics
Reverse Burden of Proof, Article 6 ECHR, Presumption of Innocence, Preparatory Hearings, Statutory Interpretation, Proportionality, Evidential Vs Legal Burden, Abuse of Process
Criminal Law Human Rights Law Insolvency Law Landlord and Tenant Law Reverse Burden of Proof Article 6 ECHR Presumption of Innocence Preparatory Hearings +4 more

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Parties

Regina

Appellant

Edwards

Respondent

Denton & Jackson

Respondent

Hendley

Respondent

Crowley

Respondent

Attorney General

Applicant

Procedural Posture

Criminal Appeal and Attorney General's Reference / Court of Appeal (criminal Division) Judgment

Legal Issues

  1. 1 Whether statutory reverse burdens of proof in various offences are compatible with Article 6(2) ECHR (presumption of innocence)
  2. 2 Whether such burdens can be read down to evidential burdens under section 3 Human Rights Act 1998
  3. 3 When preparatory hearings are appropriate under the Criminal Procedure and Investigations Act 1996

Ratio Decidendi

A statutory provision imposing a legal burden on the defendant will only be compatible with Article 6(2) ECHR if justified and proportionate, considering the nature of the offence, the facts to be proved, and the public interest. Where not justified, the provision should be read down to impose only an evidential burden. In the context of insolvency offences, a legal burden is not justified for section 357(1) IA 1986 (fraudulent disposal of property), but is justified for section 353(1)(b) IA 1986 (failure to inform official receiver of disposal). For unlawful eviction, murder (suicide pact), and witness intimidation, the legal burden is justified. Preparatory hearings must only be held...

Court Disposition

Attorney General's Reference answered in part; appeals allowed in part and dismissed in part.

Orders

  • Section 352 IA 1986 read with section 357(1): legal burden breaches Article 6(2); must be read down to evidential burden.
  • Section 352 IA 1986 read with section 353(1): legal burden does not breach Article 6(2); is justified.