| CRIME — Failing to deliver up company’s books — Statutory defence — Charge of failing to deliver up books and papers in course of winding up — Statutory defence to prove no intent to defraud — Whether imposing legal or evidential burden on accused — Insolvency Act 1986, ss 208(1)(c)(4) — Human Rights Act 1998, s 3(1), Sch 1, Pt I, art 6(2)
R (Griffin) v Richmond Magistrates’ Court [2008] EWHC 84 (Admin); [2008] WLR (D) 13
QBD: Dyson LJ and Jack J: 25 January 2008
The statutory defence under s208(4) of the Insolvency Act 1986, available to a defendant to a charge under s208(1)(c) of the Act, imposed a legal burden of proof which was not incompatible with art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Queen’s Bench Divisional Court so held when granting the claimant, Robert Griffin, judicial review of the decision of District Judge Day who, sitting at Richmond Magistrates’ Court on 19 September 2007, had refused to state a case for the opinion of the High Court and declared that the application was frivolous. On 2 August 2007 before District Judge Day sitting at Richmond Magistrates’ Court the claimant had been found guilty of, inter alia, failing to deliver up books and papers in course of the winding up of a company of which he was an officer, contrary to s 208(1)(c) of the Insolvency Act 1986 of. In order to progress the appeal and to save costs the Divisional Court dealt with the matter without requiring the District Judge to state a case, and quashed the claimant’s conviction under s 208 of the 1986 Act.
JACK J said that under s208(4) of the 1986 Act it was a defence for a person charged under s208(1)(c) to prove that he had had no intent to defraud. Two issues were raised: (i) whether s208(4) should be read as imposing a legal burden of proof on a defendant, or should be read down as imposing only an evidential burden in order to comply with art 6(2) of the Convention; and (ii), that issue apart, whether there were grounds for the Divisional Court to interfere with the judge’s conclusion that the offence had been made out. In order to prove an offence under s208(1)(c) the prosecution had to establish that the defendant officer of the company had not delivered up to the liquidator company books and papers which he had in his custody or had under his control, and which he was required by law to deliver up. He faced punishment because he had failed to do what the law required of him in a situation where there would ordinarily be little doubt what his duty was. The opportunity he was given by s208(4) to prove he had no intent to defraud would ordinarily involve him showing why it was that the items had not been delivered up. There was some parallel with s206 of the 1986 Act which had been treated as imposing a legal burden by the House of Lords despite the severe maximum penalty carried by that section. The reason why delivery up had not occurred was a matter much more likely to be within the knowledge of the defendant than within the knowledge of the prosecution. All those factors pointed to the conclusion that it was reasonable in the case of section 208(1)(c) for the balance between the presumption of innocence and the reverse burden in s208(4)(a) to be struck in favour of the latter. S 208(4)(a) was not to be read down as providing an evidential burden only, but should be construed as imposing a legal burden which was not inconsistent with art 6(2) of the Convention. The district judge had been right to approach the offence on the basis that s208(4) imposed a legal burden on the claimant. On the facts of the case His Lordship had reached a clear view that the defence of absence of intent to defraud had been made out on the evidence despite the claimant not having given evidence. The decision of the district judge could not stand and the conviction under s 208 would be quashed.
DYSON LJ agreed.
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