APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Pentland Lord Philip	[2011] HCJAC 104 Appeal No: NO. XC679/10 OPINION OF THE COURT delivered by LORD CLARKE in Appeal against Conviction by KEVIN GLANCY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Carroll, Solicitor/Advocate; Fitzpatrick & Co

Respondent: Wade QC, Advocate Depute; Crown Agent

25 October 2011

[1] On 23 September 2010 at Glasgow Sheriff Court, the appellant was found guilty by a majority verdict of the jury of the following charge:

"On 27 June 2010 at 40 Tarfside Oval, Glasgow being a public place you KEVIN GLANCY did have with you an article to which section 49 of the aftermentioned Act applies, namely a knife; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49(1)".

The appellant was sentenced to two years imprisonment from 28 June 2010.

[2] Section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 provides:

"Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence".

Section 49(2) provides:

"Subject to subsection (3) below this section applies to any article which has a blade or is sharply pointed".

Section 49(4) provides a statutory defence with which the present appeal is concerned. It is in the following terms:

"(4) It shall be a defence for a person charged with an offence under subsection (1) above to show that the person had a reasonable excuse or lawful authority for having the article with him in the public place".

The following subsection, subsection (5), provides examples of how the defence might arise:

"(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under subsection (1) above to show that he had the article with him -

(a) for use at work;

(b) for religious reasons; or

(c) as part of any national costume".

Section 49(2), as has been observed, is cast in wide terms but that is deliberate. It can cover a wide range of articles, for example, implements used in the garden or common household articles which may be used for innocent everyday purposes but which may also be used for extremely harmful purposes, as the experience of the courts shows. While section 47 of the same legislation deals separately with the prohibition of the carrying of offensive weapons, as defined in section 47(4), the court in Crowe v Waugh 1999 SLT 1181, under reference to the provisions of section 49, stressed that the purpose of the legislation, including section 49, was a general prohibition against carrying in a public place an article with a blade or point, and that the purpose of the legislation must be to protect the public from persons who may use such articles to cause injury or threaten others. In so doing they were endorsing the approach of the court in Lees v Lister 1994 SLT 1328.

[3] In the present case the appellant did not dispute that he was carrying the knife. He gave evidence that he had been in the house of a female friend near to his own home: his brother was in his own home and had telephoned asking him for a sharp knife to prepare food; he had taken the knife from his friend's house intending to take it across the road to his own home and give it to his brother. In the light of that evidence the Sheriff gave certain directions in relation to the section 49(4) defence.

[4] The first two grounds of appeal against conviction in the present appeal taken together are, in summary, that the sheriff in the present case, misdirected the jury in telling them that the onus of establishing the statutory defence, contained in section 49(4), lay with the appellant on a balance of probabilities. This was a misdirection, it was contended, since it offended the principles of article 6(2) of the ECHR with regard to the presumption of innocence and moreover section 49(1) of the Act interfered with convention rights provided under article 8(1) which by virtue of article 8(2) must not be interfered with any more than was necessary in a democratic society. Section 49(4) required to be read down so as to impose an evidential burden of proof as opposed to a persuasive or legal burden of proof

[5] In Donnelly v HMA 2009 SCCR 512 the appellant was convicted under section 49(1) of having in a public place a bladed item, namely a samurai sword. The appellant appealed on the ground, inter alia, that the sheriff erred in directing the jury that the appellant was required to satisfy the jury, on a balance of probabilities, that he had a good reason for having the sword. It was submitted that any burden of proof on the appellant in relation to the statutory defence was an evidential one only. It remained for the Crown to exclude the defence, once raised, beyond reasonable doubt. That submission was made under reference to article 6(2) of the ECHR. At paragraph 9 of the judgment of the court, Lord Carloway, in giving that judgment said

"The terms of the legislation are that the substantive offence consists of having a bladed weapon in public. The Crown must prove these facts beyond reasonable doubt. That is how the sheriff directed the jury. There is then a statutory defence, which Parliament has provided, whereby a particular accused can demonstrate that he had a good reason for carrying the bladed weapon on the balance of probability. For the same reasons which were given in L v Director of Public Prosecutions (Pill LJ at para.27) and R v Matthews (Field J, also at para.27), the court is satisfied that Parliament, in providing the reverse onus has gone no further than is legitimate to strike a fair balance between the general interests of the community and individual fundamental rights. Accordingly, the submission that the statutory defence is incompatible with article 6(2) is rejected."

His Lordship in referring to "weapon" at two places in that passage was in error. The reference should have been to "article" having regard to the terms of the relevant statutory provision, namely section 49. Contrary to what was submitted in the present case, however, as we shall in due course demonstrate, this slip in language does not affect the validity of the reasoning contained in the passage just cited.

[6] In the present case, the solicitor-advocate for the appellant, Mr Carroll, was driven to invite us to hold that the decision in Donnelly was wrong. He accepted, too, that if the court saw any force in his submissions to that effect it would be necessary, standing the terms of the decision in Donnelly, to have the present appeal referred to a larger court. Mr Carroll's submission was that the decision in Donnelly was out of line with what he described as "the direction of travel" of decisions by other courts in other cases which had held that statutory legal burdens of proof were incompatible with convention rights. That "direction of travel" it was submitted, was signalled in Scotland by the decision in Henvey v HMA 2005 SLT 384. In that case, the court followed the decision of the House of Lords in R v Lambert [2002] 2 AC 545. In Lambert the House of Lords held that article 6(2) of the ECHR, which provides that everyone charged with a criminal offence is to be presumed innocent until proved guilty, required section 28 of the Misuse of Drugs Act 1972, which provides that it shall be a defence for an 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 was necessary for the prosecution to prove if he is to be convicted of the offence charged", had to be read as placing only an evidential burden on the accused. In Salabiaku v France (1988) 13 EHRR 379 the European Court of Human Rights at page 388, para.28 said this:

"Presumptions of fact or of law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law... Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."

As Lord Hope of Craighead observed RRG v DPP, Ex p. Kebilene [2000] AC 326 at page 385 under reference to, inter alia, the passage just cited from the case of Salabiaku:

"The cases show that, although article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumption of fact) or persuasive (presumption of law). In each case the question will be whether the presumption is within reasonable limits".

Lord Hope returned to the theme in R v Lambert at page 588, para.88 when he said:

"The test to be applied is whether the modification or limitation of that right (conferred by article 6(2)) pursues a legitimate aim and whether it satisfies the principle of proportionality:- It is now well settled that the principle which is to be applied requires a balance to be struck between the general interests of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute".

[7] The Divisional Court in England and Wales in the case of L v Director of Public Prosecutions [2003] QB 137 had to consider whether section 139 of the Criminal Justice Act 1988, which contains provisions for England and Wales very similar to those contained for Scotland in section 49 of the 1995 Act, and, in particular, which contains the following provision:

"(4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place"

was compatible with article 6(2) of the ECHR. The Court reached the conclusion that it was article 6(2) compatible since it struck a fair balance between the rights of the defendant and the interests of the public. The defendant in L sought leave of the Appeal Committee of the House of Lords to appeal but the application was refused. The topic was returned to, and considered, by the Court of Appeal in Regina v Matthews [2004] QB 690. The Court of Appeal approved, and applied, the decision in L holding that the relevant provisions contained in section 139(4) were proportionate, striking a fair balance between the general interests of the community and the protection of the fundamental rights of the individual. The Court of Appeal expressly approved of what Pill LJ had said in L at page 148, para.27:

"Parliament is entitled, without infringing the Convention, to deter the carrying of bladed or sharply pointed articles in public to the extent of placing the burden of proving good reason on the carrier".

In L the court had also held that there was a strong public interest in bladed articles not being carried in public without good reason and that under section 139(4) the defendant was only being required to prove something within his own knowledge. In the case of Matthews the defendant sought leave to appeal to the House of Lords but this application was rejected by the Appeal Committee of the House of Lords.

[8] In Sheldrake v DPP [2005] 1 AC 264 the approach to the compatibility of presumptions of fact and law in criminal law matters with article 6(2) of the ECHR as set out in the authorities just referred to was reiterated by Lord Bingham of Cornhill at para.21 of his speech in the following terms:

"From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary".

Again at paragraph 31 of his speech his Lordship put matters this way:

"The task of the court is never to decide whether a reverse burden should be imposed on the defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence".

The decision in L was cited in argument before the House of Lords in Sheldrake. In Sheldrake two situations fell to be considered by their Lordships. On the one hand they unanimously held that the burden of proof imposed on a driver under section 5(1)(b) of the Road Traffic Act 1988 to show that, on the balance of probabilities, he had no intention of driving his vehicle, when he had consumed alcohol over the prescribed limit, did not go beyond what was reasonable and necessary. On the other hand the majority of their Lordships held that the imposition of a legal burden of proof under section 11(2) of the Terrorism Act 2000 regarding the offence of belonging to and professing to belong to a prescribed organisation was not a proportionate and justifiable legislative response to the threat of terrorism. Accordingly section 11(2) had to be read down as to impose on the defendant an evidential burden only. Mr Carroll seemed to consider that the decision of the majority of the House of Lords in relation to the effects of section 11(2) of the Terrorism Act 2000 supported his position that the decision in Donnelly fell to be considered as being wrong. The prevention of terrorism and the prevention of drug trafficking were, he submitted, clearly matters of great public concern. Such evils, he sought to suggest, raise greater public concern than persons carrying bladed or sharply pointed articles which may have a quite innocent purpose or use. Yet the House of Lords in Lambert and Sheldrake had considered that legal burdens of proof on defendants in the legislation dealing with these matters of grave public concern were incompatible with article 6(2). These cases pointed to the law having reached a destination in its direction of travel, namely that such presumptions must now be regarded as incompatible with article 6(2). That submission, however, completely flies in the face of what has been said and decided in the authorities taken as a whole which, as has been seen, require a careful examination of (a) the relevant statutory provisions in each case, (b) the measures that are taken in those provisions directed at the activity in question, which is made an offence, and (c) what justification can be made out for a departure from the presumption of innocence, balancing the interests of the public and the individual's fundamental rights. All those factors were addressed fully in the cases of L and Matthews which were followed in Donnelly. Nothing in the decisions of the House of Lords in Lambert or Sheldrake has impugned that approach in relation to section 49 and the outcome of applying it in the decisions in any of the aforementioned cases.

[9] For the foregoing reasons we consider Donnelly to have been correctly decided and that there is no substance in grounds of appeal 1 and 2 against conviction.

[10] Mr Carroll had concentrated his fire on these grounds of appeal but was reminded, just before he concluded, that he had a third ground of appeal which is in the following terms:

"3. esto the concept of a legal or persuasive burden rested upon the appellant, the learned Sheriff failed adequately to direct the jury in that regard.

i.                    At page 2, line 22 of the Charge to the jury, the sheriff states:

'The direction I will give you will be to take a different approach to the onus of proof than the one described by Mr Considine ....'".

When addressing the position of the defence from page 10, line 13, the learned sheriff refers to "a burden on the accused to prove something" and further explains to the jury at page 11, line 5, that the accused "has to satisfy you on a balance of probabilities that he had good reason for having the article".

[11] Again, reference is made to the "balance of probabilities". At no stage in the Charge to the Jury does the learned sheriff provide any direction on what is meant by the term "balance of probabilities" in the context of such a statutory defence.

[12] Mr Carroll said he wished to insist on this ground of appeal though he did not elaborate upon it to any great extent beyond the terms that have just been set out save to suggest that the jury would not find it easy, without further assistance, to know what was meant by the phrase "balance of probabilities" in the context of this case. The Advocate Depute's position in reply was shortly stated. The phrase, she said, was one of ordinary English usage and would be understood by the jury.

[13] We initially thought that there might be something to be said for the appellant's submission in this regard but we subsequently came across a previous decision of this court, not cited to us by either side of the bar, which we consider puts paid to it. In Agar v HMA 17 March 2000 (unreported) the Court was concerned with the statutory defence to charges under section 4(3)(b) of the Misuse of Drugs Act 1971 (the decision being given prior to the decision by the House of Lords in the case of Lambert). One of the grounds of appeal in that case, as in the present case, was that the trial judge had failed to direct the jury as to what was meant by reference to the jury finding itself satisfied "on the balance of probabilities". The response to that argument was succinctly put by the court and it was in accordance with the position adopted by the Crown in the present appeal. The court said this, at paragraph 8 of its opinion "However, these are simple English words and it is difficult to see how their meaning could be improved upon, particularly as it was emphasised - that the standard of proof was lower than that applicable to the Crown". We have been unable, ultimately, to conclude that there is any proper basis for distinguishing the decision of the court in that respect from the point taken in the present case, and, accordingly, the third ground of appeal against conviction requires to be rejected.

[14] It follows therefore that the appeal must be refused.