Case Summary
The case involves a man convicted of possession of a controlled drug, cocaine, with intent to supply, contrary to section 5 of the Misuse of Drugs Act 1971, sentenced to seven years imprisonment. The appellant argued on the basis of section 28 (3) (b) (i) of the Act that he had no knowledge or reason to belief that he was in possession of a controlled drug.
The certified questions remitted to the House of Lords include:1) whether there knowledge of possession of a controlled drug is an essential element of the offence; 2) if 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 on the accused; and finally, 3) if an appeal lodged after the Human Rights Act 1998 came into force could 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.
It was alleged by the appellant that the direction of the judge violated Article 6 of the Convention rights by requiring the defendant to discharge the legal burden of proof, and the applicability of the HRA at a time of the prosecution. The HL rejected the appeal and did not consider the HRA 1998 could be applied retroactively, but also held s.28 of the MDA 1971 should be read in light of the Convention rights, as requiring the accused only an evidential burden of proof.
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