Lambert, R v.

Factual and Procedural Background

The Appellant was arrested on 25 November 1998 in a car park outside The City railway station while carrying a duffle-bag that contained two kilograms of cocaine valued at approximately £140,000. He was charged with possession of a class A controlled drug with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971 (“the 1971 Act”).

At trial in April 1999 the Appellant invoked section 28 of the 1971 Act, asserting that he neither knew nor suspected that the bag contained drugs. The trial judge directed the jury that, although the prosecution had to prove physical possession of the bag and the fact that its contents were a controlled drug, the Appellant bore the legal burden (on the balance of probabilities) of proving lack of knowledge. The jury convicted and the Appellant was sentenced to seven years’ imprisonment.

The Court of Appeal (Criminal Division) dismissed an appeal on 31 July 2000 but certified three questions of general public importance. The present appeal was heard by the House of Lords (sitting judicially) and judgment was delivered on 5 July 2001.

Legal Issues Presented

1. Whether knowledge that a substance is a controlled drug is an essential element of the offence under section 5 of the 1971 Act.
2. Whether placing a legal (as opposed to merely evidential) burden on a defendant under section 28 infringes the presumption of innocence guaranteed by Article 6(2) of the European Convention on Human Rights.
3. Whether, after commencement of the Human Rights Act 1998 (“HRA 1998”), a defendant may rely on Convention rights in an appeal arising from a trial that concluded before the Act came into force (“retrospectivity”).

Arguments of the Parties

Appellant’s Arguments

• Knowledge that the substance was a controlled drug is a constituent element of the offence; therefore the prosecution must prove it.
• Section 28(2)–(3) violates Article 6(2) by reversing the burden of proof on that essential element.
• Sections 6, 7 and 22(4) HRA 1998 permit reliance on Convention rights in this appeal, notwithstanding that the conviction pre-dated 2 October 2000.
• If section 28 is read down under section 3 HRA 1998 the burden becomes evidential only, which would have required a different jury direction.

Respondent’s Arguments

• The prosecution need prove only (a) custody or control of the container, (b) the defendant’s knowledge of that custody or control, and (c) the fact that the contents were a controlled drug; knowledge of the drug’s nature is not an element of the offence.
• Any reverse legal burden in section 28 is objectively justified and proportionate given the social harm of drug trafficking.
• The HRA 1998 is not retrospective; sections 6 and 7 cannot be invoked to impugn a conviction that was lawful when recorded.
• Even if the burden were evidential only, the overwhelming evidence means the conviction is safe.

Table of Precedents Cited

Court’s Reasoning and Analysis

1. Essential elements of the offence. The House confirmed that the prosecution need only prove (i) physical custody or control of the container, (ii) the defendant’s awareness of that custody or control, and (iii) that the contents were, in fact, a controlled drug. Proof that the defendant knew the nature of the substance is not an ingredient of the offence.

2. Compatibility of the reverse burden. A majority accepted that, looked at in isolation, imposing a legal burden might conflict with Article 6(2). However, opinions diverged:

• Some Law Lords held that any conflict could be eliminated by applying section 3 HRA 1998 so that “prove” in section 28 is read as imposing only an evidential burden.
• Others considered that, even if the burden remained persuasive, it was justified and proportionate given the difficulties of prosecuting sophisticated drug offences.

3. Retrospectivity. A majority concluded that the HRA 1998 has no general retrospective effect. Section 22(4) extends Convention arguments to pre-Act conduct only where the appeal itself is “proceedings brought by or at the instigation of a public authority,” which does not cover an ordinary criminal appeal by a convicted defendant. Therefore the Appellant could not rely on Article 6(2) to challenge a summing-up delivered before 2 October 2000.

4. Safety of the conviction. All members of the House agreed that, on the facts, the evidence of guilt was overwhelming; even under an evidential-burden direction the jury would inevitably have convicted.

Holding and Implications

Holding: The appeal was DISMISSED; the conviction and sentence stand.

Implications:

• Knowledge that a substance is a controlled drug is not an element the prosecution must prove under section 5 of the 1971 Act.
• The Human Rights Act 1998 is not generally retrospective; defendants cannot invoke Convention rights to attack pre-Act convictions, save in the limited circumstances envisaged by section 22(4).
• For trials occurring after 2 October 2000 courts must, so far as possible, read section 28 as imposing only an evidential burden, thereby aligning the provision with Article 6(2).
• The decision provides authoritative guidance on the interface between statutory reverse burdens and the presumption of innocence, and clarifies the limited scope of HRA 1998 retrospectivity.