Human Rights Interpretation and Reverse Onus Provisions: Is a Human Rights-Compatible Interpretation ‘Possible’?”

Webster v R [2010] EWCA Crim 2819 (01 December 2010)

The recent decision of the England and Wales Court of Appeal in Webster v R provides guidance concerning:

• the interpretation of the right to a ‘Fair Hearing’ under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic);
• the interpretation of the right to be presumed innocent until proven guilty under s 25(1) of the Charter;
• the operation of the requirement that all statutory provisions be interpreted in a manner compatible with human rights under s 32(1) of the Charter; and
• when a right can be justifiably limited under s 7 of the Charter.

Facts

The applicant, Matthew Webster, was charged with corrupting a public official.  Webster sold educational equipment to local schools.  Webster offered Cambridge Country Council’s educational procurement officer ‘Christmas gifts’ for helping him throughout the year.  Gifts included a DVD player and £100.

Pursuant to s 2 of the Prevention of Corruption Act 1916 (‘PC Act’) gifts are deemed to be given corruptly, within the meaning of the Public Bodies Corrupt Practices Act 1989, unless the contrary is proven.

Webster appealed against the conviction.  It was held that the jury would not have found him guilty had the presumption of guilt not arisen on the facts.  The appeal proceeded on the ground that s 2 of the PC Act was contrary to the applicant’s right to a fair trial and that the presumption of innocence had not been applied as required by art 6 of the European Convention of Human Rights.

Decision

The Court adopted the following methodology in determining whether the statutory provision was incompatible with the Convention:

1.       Does the statute interfere with rights enunciated in the Convention?

2.       If so, does the statute pursue a legitimate objective?

3.       If so, are the means by which this purpose is pursued necessary, reasonable and proportionate?

4.       Where interference with the right is unnecessary, unreasonable or disproportionate, can the provision be read down so that the right is not infringed?

Inconsistency with the European Convention

The Court held that the presumption of innocence is not an absolute right; rather, it is something that is integral to the right to a fair trial.  The right is infringed where the defendant is found guilty unless he or she can disprove the prosecution’s accusation of guilt.

By presuming guilt in all situations where a gift is made to a public official, the Court held that s 2 of the PC Act clearly interfered with the applicant’s right to a fair trial and to the presumption of innocence.

Was infringement of the right to a fair trial justified?

The Court held that the Convention does not prohibit factual presumptions, but requires States to place reasonable limitations on them.  In determining whether a presumption was reasonable, the Court considered whether the defendant had an opportunity to rebut the presumption, whether the Court retained the power to assess the evidence, the importance of the issues at stake and whether it was ‘extremely difficult, if not impossible’ for the prosecution to prove its case in the absence of the presumption.

In ascertaining the importance of the issue at stake, the Court considered the legislative history of the provision.  The reversal of the presumption of innocence was introduced in order to combat the problem of the corruption of public officials during World War II and the limited State resources available to detect it.  The Court found that this justification was no longer necessary and therefore could not justify infringement of the right to a fair trial.

Citing the US Supreme Court decision in Leary v United States [1969] 23 L Ed 2d 57 at 82, the Court noted that a presumption of fact will only be justified where it can be said with ‘substantial assurance’ that it reasonably flows from the fact upon which it depends.  That any gift given to a person in their role as a public official was necessarily corrupt did not have this certainty.

Reading down the infringing provision

While the statutory language unambiguously intended to reverse the presumption of innocence, the Court nonetheless held that the provision could be read down so as not to infringe Webster’s rights.  The Court emphasised that interpretation in line with the Convention was the primary remedial element of the Human Rights Act 1998 (UK).

Relevance to the Victorian Charter

This decision provides important guidance when interpreting the Victorian Charter.

The decision is useful in outlining the situations in which the right to the presumption of innocence can be justifiably infringed under s 7.  The Court emphasised that a presumption of facts can only be relied upon where there is ‘substantial assurance’ that the fact exists on the evidence provided.  The decision also indicates which factors can be weighed in order to determine justification.  The inference from these categories is that the State requires strong justification to infringe the right to the presumption of innocence.

In R v Momcilovic [2010] VCSA 50, the Victorian Court of Appeal unanimously held that clear, cogent and persuasive evidence must be used to demonstrate any justification to infringe human rights.  The Court’s decision in Webster indicates that evidence such as legislative history can be used.

Webster differs from the Victorian position in that emphasis is placed upon the primacy of interpreting statutes in line with the Convention, even where interpretation contradicts the express language of the provision.  By contrast, as held in Momcilovic, the Victorian Charter does not create a ‘special’ overarching rule of statutory interpretation.

The decision is at www.bailii.org/ew/cases/EWCA/Crim/2010/2819.html.

Jessica Simson, Seasonal Clerk, Mallesons Stephen Jaques