NI: Court of Appeal clarifies law on legal burdens in unnotified procession case

The Court of Appeal has found that section 6(8) of the Public Processions (Northern Ireland) Act 1998 can be interpreted as applying a legal burden of proof on defendants accused of taking part in unnotified processions.

The appellant, Mr Jamie Bryson, had been charged with four offences of taking part in unnotified processions in January and February 2013, contrary to section 6(7) of the Public Processions (Northern Ireland) Act 1998.

Under section 6(8) of the Act, it is a defence if the accused can prove “he did not know of, and neither suspected nor had reason to suspect, the failure to satisfy the requirements of this section or (as the case may be) the difference of date, time or route.”

It was found by the Presiding District Judge that the accused had not satisfied the requirements of this defence on the balance of probabilities. However, it was submitted by the appellant that section 6(8) of the 1998 Act raised an evidential rather than a legal burden upon him.

The Presiding District Judge noted that the mischief at which the offence in section 6(7) was aimed was the minimisation of the opportunity for public tension and disorder as well as securing effective policing.

She considered that the provisions were of great importance to the wider public interest and the peaceful regulation of society.

In determining that issue the Presiding District Judge considered whether a legal burden was reasonable and proportionate or arbitrary.

She noted that the matters which the court must consider for the purposes of the defence were matters that were within the knowledge of the appellant and could be readily proved by him.

He had the opportunity to give evidence, call witnesses and cross-examine witnesses. She was satisfied that the imposition of a legal burden was proportionate, within reasonable limits and not arbitrary.

The Court of Appeal, first found that it had jurisdiction to consider the appeal despite the fact that the appeal had not been transmitted to the Court of Appeal within the statutory time limit.

It was noted that “We accept that the delay was not the fault of the appellant personally. The issue in this case is one that may be helpful in removing any doubt about the law. We consider that this case is very close to the borderline. If we conclude that the delay is irremediable we would be deprived of jurisdiction. On balance we have decided that we can address the questions despite the delay.”

They then cited Sheldrake v DPP UKHL 43 as the leading case on the issue of whether a burden placed upon a defendant in a criminal statute is a legal or evidential burden.

The principles were summarized in paragraph 21 of that case, and stated that the overriding concern was that a trial be fair and that burdens be proportionate and reasonable.

The paragraph continued: “Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption.”

Further: “Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”

In the present case, it was found that “the issue of whether the appellant knew that the parade was unnotified or had a suspicion to that effect was a matter plainly within his own knowledge. He had every opportunity to bring forward such evidence as he wished to deal with that matter.”

Counsel for the appellant accepted that whether the appellant knew that there had been a failure to satisfy the notification requirements was within his own knowledge but submitted that the police could have gathered evidence in aid of the conviction by erecting signs and advising those in the procession by loudspeakers or otherwise of the lack of notification.

The Court recognised that such evidence would have been admissible but found that “in the absence of extensive signage and broadcasting equipment the implication is that the police would have been powerless to achieve the evidence upon which a conviction would have to be based.”

As a result, it was clearly more appropriate for the legal burden to be placed on the appellant. The burden was not arbitrary or beyond reasonable limits, and the District Judge had therefore been correct in her approach.

  • by Rachel Killean for Irish Legal News
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