Drug Dealing and the Presumption of Innocence: The Human Rights Act (Almost) Bites

In R v Lambert the House of Lords held (Lord Steyn dissenting) that the Human Rights Act 1998 has no general retroactive effect. Their Lordships proceeded to indicate (Lord Hutton dissenting) that ‘reverse onus clauses’ requiring defendants charged with drug dealing to prove ‘no knowledge’ defences could only be compatible with Article 6(2) of the European Convention on Human Rights if they were ‘read-down’ to impose merely evidential burdens. This article concentrates on the second, strictly obiter point. Though a welcome demonstration of judicial commitment to human rights protection, their Lordships' reasoning is shown to be contrary to established evidentiary concepts and analysis, and a questionable policy strategy. Lambert is amongst the most significant early decisions on points of evidence under the Human Rights Act 1998. At the same time as important questions are left undecided and new uncertainties are introduced into settled legal doctrines, their Lordships' speeches provide many pointers and intimations of future developments in the post-Human Rights Act law of evidence.