Factual and Procedural Background
The Appellant, a sole trader operating from a warehouse in The City, sold clothing and footwear bearing well-known brand names. The London Borough Authority, responsible for enforcing trade mark legislation, investigated the Appellant's activities and seized goods suspected to be counterfeit. The Appellant acknowledged that the goods were counterfeit but asserted he believed them to be genuine based on his supplier's assurances and produced invoices and paperwork to support his account. Proceedings were initiated against the Appellant under s.92 of the Trade Marks Act 1994 ("the 1994 Act"), charging him with two counts of unauthorised use of a trade mark. At a preparatory hearing, two preliminary legal questions were raised concerning the burden of proof imposed by s.92(5) and its compatibility with Article 6(2) of the European Convention on Human Rights. The Crown Court Judge ruled that s.92(5) imposes a persuasive (legal) burden on the defendant and that this is not incompatible with the Convention. The Appellant appealed both rulings.
Legal Issues Presented
- Does section 92(5) of the Trade Marks Act 1994 impose a persuasive (legal) burden or merely an evidential burden on the defendant?
- If s.92(5) imposes a persuasive burden, is this reverse burden incompatible with Article 6(2) of the European Convention on Human Rights, which guarantees the presumption of innocence?
Arguments of the Parties
Appellant's Arguments
- The wording of s.92(5), particularly the use of the word "show" rather than "prove," suggests only an evidential burden should be imposed.
- The imposition of a persuasive burden infringes the presumption of innocence under Article 6(2) of the Convention.
- By application of the Human Rights Act 1998, s.92(5) should be "read down" to impose only an evidential burden.
- The defence under s.92(5) relates to an essential element of the offence, making the imposition of a legal burden incompatible with the Convention.
- Reliance on the Court of Appeal decision in Johnstone, which suggested s.92(5) imposes an evidential burden.
Respondent's Arguments
- The language of s.92(5) is classic statutory wording imposing a persuasive burden on the accused.
- The offence under s.92 is regulatory, not requiring proof of dishonesty or mens rea beyond the specified elements.
- The presumption of innocence is not infringed because the defence under s.92(5) is not an essential element of the offence.
- Imposing only an evidential burden would create practical difficulties for enforcement authorities and undermine consumer protection.
- The imposition of a legal burden is justified, proportionate, and compatible with the Convention given the policy considerations and the nature of the offence.
- Disagreement with the Johnstone decision on this point, noting that it was obiter, lacked adversarial argument, and caused concern among enforcement bodies.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Jayasena v The Queen (1970 AC 618) |
Clarification of evidential burden versus legal burden distinction. |
Used to explain that evidential burden requires raising an issue, while legal burden requires proof on balance of probabilities. |
| R v Johnstone (2002 EWCA Crim 194) |
Contextual background on the Trade Marks Act 1994 and guidance on burden under s.92(5). |
Referenced for its obiter views favoring an evidential burden under s.92(5), but court declined to follow due to lack of adversarial argument and consultation. |
| Woolmington v Director of Public Prosecutions (1935 AC 462) |
Golden thread principle: prosecution bears burden of proof unless statutory exception. |
Recognized statutory exceptions exist; court considered s.92(5) as such an exception imposing a legal burden. |
| R v Warner (1969 2 AC 256) |
Exceptions to the rule that prosecution must prove every element of the offence. |
Supported the view that legal burdens on defendants are exceptional and require clear statutory language. |
| Sweet v Parsley (1970 AC 132) |
Considerations of mens rea and burden of proof in criminal offences. |
Used to discuss the balance between public interest and presumption of innocence in statutory construction. |
| R v Hunt (1987 AC 352) |
Statutory interpretation of burden of proof and exceptions to fundamental criminal law principles. |
Confirmed that imposition of legal burden on defendant must be clearly expressed and is exceptional. |
| R v Lambert (2001 UKHL 206) |
Interpretation of reverse burden provisions and compatibility with Human Rights Act 1998 and ECHR Article 6(2). |
Discussed "reading down" statutory provisions imposing legal burdens to evidential burdens to preserve Convention compatibility. |
| Torbay Council v Singh (1999 2 Cr App Rep 451) |
Clarification that s.92 offence does not require proof of dishonesty. |
Supported the view that s.92(5) imposes a legal burden without requiring mens rea. |
| R v Keane (2001 FSR 63) |
Interpretation of mens rea in relation to s.92 offences. |
Confirmed that mens rea relating to infringement fact is not required, reinforcing the nature of s.92 offence. |
| R v DPP ex parte Kebilene (2001 2 AC 326) |
Balancing individual rights and public interest in assessing Convention compatibility. |
Referenced to emphasize deference to Parliament in economic regulation and consumer protection contexts. |
| R v Poplar Housing Association (2002 QB 48) |
Limits on interpretative elasticity under Human Rights Act s.3. |
Used to illustrate that reading down cannot stretch statutory language beyond possible limits. |
| Lynch v DPP (2002 1 Cr App Rep 32) |
Critique of use of "proof" in evidential burden context and Human Rights Act interpretation. |
Supported caution in construing statutory language imposing burdens on defendants. |
| R v Daniel (2002 EWCA Crim 959) |
Similar observations to Lynch on burden of proof terminology. |
Reinforced the approach to burden of proof and evidential issues. |
| Carass (2002 Cr App Rep 4) |
Application of Human Rights Act s.3 to read down reverse legal burdens. |
Confirmed that reading down is possible in appropriate cases. |
| Salabiaku v France (1988 13 EHRR 379) |
Permissibility and limits of presumptions in criminal law under ECHR Article 6(2). |
Supported principle that reverse burdens must be confined within reasonable limits. |
| Sporring & Lonnroth v Sweden (5 EHRR 35) |
Requirement to balance community interests and individual rights under Article 6. |
Used to emphasize proportionality in imposing reverse burdens. |
| Bates v UK (unrep 16 January 1996) |
Example where reverse legal burden was upheld as compatible with Convention. |
Referenced as a precedent supporting justified imposition of legal burden. |
| R v Drummond (2002 EWCA Crim s27) |
Example of justified reverse legal burden upheld by court. |
Used to illustrate circumstances where legal burden on defendant is proportionate. |
Court's Reasoning and Analysis
The Court began by distinguishing between evidential and legal (persuasive) burdens, emphasizing that a legal burden requires the defendant to prove the defence on the balance of probabilities, whereas an evidential burden only requires raising an issue to be rebutted by the prosecution beyond reasonable doubt. The Court analyzed the language of s.92(5), concluding that the phrase "It is a defence for a person charged ... to show" is classic statutory wording imposing a legal burden. The use of "show" was interpreted synonymously with "prove," supported by analogous statutory provisions.
Contextual and policy considerations reinforced this interpretation: the 1994 Act aims to combat counterfeiting and protect consumers and trademark proprietors, requiring effective enforcement mechanisms. The offence under s.92 is regulatory and does not require proof of dishonesty or mens rea beyond the specified elements, which focus on unauthorised use with a view to gain or intent to cause loss. The defence under s.92(5) is not an ingredient of the offence but a statutory exclusion.
The Court considered the compatibility of this legal burden with Article 6(2) of the European Convention, recognizing that reverse legal burdens are not per se incompatible but require justification and proportionality. The Court weighed factors including the public interest in preventing counterfeiting, the accused's better knowledge of the defence matters, the practical difficulties of imposing only an evidential burden, and the regulatory nature of the offence. It found the imposition of a legal burden to be justified, proportionate, and compatible with the Convention.
The Court acknowledged the contrasting obiter guidance in the Johnstone case but distinguished it on the basis of procedural and consultative deficiencies and the absence of detailed adversarial argument. The Court rejected the appellant's submission that s.92(5) should be read down under the Human Rights Act 1998 to impose only an evidential burden, concluding that the statutory language and policy considerations preclude such a reading.
Finally, the Court agreed with the Crown Court Judge's direction to the jury that, once the prosecution proves the offence elements, it is for the defendant to prove the defence under s.92(5) on the balance of probabilities.
Holding and Implications
The Court DISMISSED the appeal, affirming that section 92(5) of the Trade Marks Act 1994 imposes a legal (persuasive) burden on the defendant to prove the defence on the balance of probabilities.
This holding confirms that the statutory defence under s.92(5) is not an element of the offence but a statutory exclusion requiring proof by the accused, and that this imposition is compatible with the presumption of innocence under Article 6(2) of the European Convention on Human Rights. The decision supports robust enforcement of trade mark offences, balancing consumer protection and public interest against individual rights. No new precedent was established altering the fundamental principles of burden of proof but the ruling clarifies the interpretation of s.92(5) and its compatibility with human rights law.