Regina v. Lambert, (2001)
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Regina v. Lambert, (2001)
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Clyde Lord Hutton OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSEREGINAv.LAMBERT(APPELLANT)(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))ON 5 JULY 2001[2001] UKHL 37LORD SLYNN OF HADLEY1. On 9 April 1999 the appellant was convicted of possession of a controlled drug, cocaine, with intent to supply, contrary to section 5 of the Misuse of Drugs Act 1971 and was sentenced to seven years imprisonment. He relied on section 28(3)(b)(i) of that Act asserting that he did not believe or suspect, or have reason to suspect that the bag which he carried contained a controlled drug and in particular cocaine. The judge directed the jury in accordance with what was accepted to be the law at the time, that the prosecution had to prove only that he had and knew that he had, the bag in his possession and that the bag contained a controlled drug. To establish the defence under section 28 (3) he had to prove on the balance of probabilities that he did not know that the bag contained a controlled drug. This was thus the legal rather than the merely evidential burden.2. The Court of Appeal held that a defendant did not have to know that he was in possession of controlled drugs or the precise controlled drug which was the subject of the offence. It was also clear that Parliament had intended to provide a defence on which a defendant could rely if he could establish that he had no suspicion as to the nature of the contents of the container in which drugs had been found. Moreover there was an objective justification for the provisions of the Act which were not disproportionate so that they did not contravene Article 6 of the Convention. The appeal was accordingly dismissed.3. The Court however certified three questions. The first in substance is whether it is an essential element of the offence of possession of a controlled drug under section 5 of the 1971 Act that the accused knew that he had a controlled drug in his possession; secondly whether in a charge contrary to section 5 the judge was right to direct the jury that the onus of proving the defence under section 28(2) imposed a legal rather than an evidential of burden of proof that the accused neither believed nor suspected nor had reason to suspect that the substance in question was a controlled drug. The third question asked whether the accused could, on an appeal after the Human Rights Act 1998 came into force, rely on an alleged breach of Convention rights by the investigating or prosecuting authority at a trial which took place before the Human Rights Act 1998 came into force.4. On this appeal to your Lordships the appellant has contended that the direction by the judge, that the burden on the accused to establish the defence was a legal burden, violated Article 6 of the Convention rights set out in the Schedule to the 1998 Act. The essential preliminary question in the appeal, and it is an important question, is therefore whether an appellant can rely on the Act at a time when the Act is in force (i.e. after 2 October 2000) in respect of a prosecution and conviction at a date when the Act was not in force. In a sophisticated and forceful argument Mr Starmer has contended that he plainly can. He takes two different routes. The first is that section 6 of the 1998 Act provides "(1)..It is unlawful for a public authority to act in a way which is incompatible with a Convention right" (and by virtue of sub sections 6(3) and (4) "public authority" includes a Court and the Judicial Committee of the House) unless by sub section (2) as the result of or in the case of "one or more provisions of primary legislation, the authority could not have acted differently".5. A second route is by combination of section 7 and section 22 of the Act. They read:"7-(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6 (1) may(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or(b) rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful Act."22-(4) Paragraph (b) of sub section (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the Act in question took place; but otherwise that sub section does not apply to an Act taking place before the coming into force of that section".6. It is clear that the 1998 Act must be given its full import and that long or well entrenched ideas may have to be put aside, sacred cows culled. Since, however, the Act did not come into force (apart from limited provisions) until the Secretary of State had appointed a day or days for the Act or parts of it to come into force, and since there is a presumption against retrospectivity in legislation, it is not to be assumed ...See the full content of this document
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