Forestry — Felling trees — Whether felling licence required — Burden of proof — Whether burden of proof on defendants to show that felling came within exceptions to requirement for a felling licence
appellants were convicted by Haywards Heath justices of an offence of felling
growing trees without the authority of a felling licence contrary to section 17
of the Forestry Act 1967 — On appeal against conviction, the appellants
contended that in accordance with established principles the burden of proof fell
on the respondent Forestry Commission as prosecution to establish that a
felling licence was required for felling the trees in question — The respondent
contended that it was for the appellants to prove on a balance of probabilities
that the felling of the trees came within one or more exceptions to the
requirement for a felling licence set out in section 9 of the 1967 Act
section 9 by reference, so that it is an offence to fell growing trees without
a licence unless one or other of the exceptions applies — The exceptions to the
general criminal burden of proof are shown by authority to apply where the
subject-matter of the exception is peculiarly within the knowledge of the
defendant, easy for the defendant to establish on a balance of probabilities,
but in practical terms exceedingly difficult, if not impossible, for the
prosecution to negative — Such was the position with regard to the exceptions
in section 9 of the 1967 Act — Accordingly, the case fell within one of the
rare exceptions to the general rule relating to the burden of proof in criminal
cases and it was for the appellants to establish, on a balance of
probabilities, that they fell within one or other of the exceptions in section
9
The following
cases are referred to in this report.
R v Alath Construction Ltd [1990] 1 WLR 1255; [1991] 1 EGLR
285
R v Edwards [1975] QB 27
R v Hunt [1987] AC 352; [1986] 3 WLR 1115; [1987] 1 All ER 1;
(1986) 84 Cr App R 163; [1987] Crim LR 263, HL
This was an
appeal by Malcolm George Grace and Patricia Margaret Grace against a conviction
by Haywards Heath justices of felling trees without a felling licence contrary
to section 17 of the Forestry Act 1967 following a prosecution by the respondent
Forestry Commission.
Geoffrey
Conlin (instructed by Ralph Haeems & Co) appeared for the appellants; Peter
Birts QC (instructed by the Ministry of Agriculture, Fisheries and Food)
represented the respondents.
Giving the
judgment of the court, JUDGE GOWER said: The court has to rule upon a
preliminary point on the burden of proof. The appeal is against a conviction,
by the justices at Haywards Heath on March 19 1990, of the appellants of an
offence of allegedly felling growing trees without the authority of a felling
licence issued by the Forestry Commissioners under section 9(1) of the Forestry
Act 1967, as amended.
The short
point which we have to determine is whether the burden is upon the respondents
to this appeal — in other words, the prosecution — to establish that a felling
licence was required for the felling of the particular trees in question in
this case or whether there is a burden cast upon the appellants, the defendants
in other words, to prove on the balance of probabilities that the felling of
the trees came within one or more of the exceptions to the requirement for a
felling licence set out in the various subsections of section 9 of the Forestry
Act 1967.
The way in
which Mr Conlin, for the appellants, argues it is first of all to rely upon the
principle fundamental to the criminal law in this country, namely that it is
for the prosecution to leave the court sure upon the whole of the evidence of
all elements essential to the proof of a criminal charge. Starting from that
fundamental, and, if I may say so, extremely sound premise, he goes on to argue
that, on the authority of a passage cited in the case of R v Alath
Construction Ltd [1990] 1 WLR 1255* from the speech of Lord Griffiths in
the case of R v Hunt [1987] AC 352 at p 374, the language of the
relevant sections and subsections of the Forestry Act 1967 is such that it
would not be open to this court to depart from the ordinary criminal burden of
proof. For these reasons, it is necessary to look very carefully at R v Alath
Construction Ltd. In essence, what the Court of Appeal decided in that case
was that where there was an allegation that a
upon the defendant to bring himself within the exceptions specified in the
order or within the enabling provisions of the statute under which the order
was made. The speech of Lord Griffiths is quoted in Alath at p 1258 E-F
where he says:
I would
summarise the position thus far by saying that Woolmington v Director
of Public Prosecutions [1935] AC 462
— that is the
famous golden thread running through the web of the English criminal law cases
—
did not lay
down a rule that the burden of proving a statutory defence only lay upon the
defendant if the statute specifically so provided: that a statute can, on its
true construction, place a burden of proof on the defendant although it does
not do so expressly: that if a burden of proof is placed on the defendant it is
the same burden whether the case be tried summarily or on indictment, namely, a
burden that has to be discharged on the balance of probabilities. The real
difficulty in these cases lies in determining upon whom Parliament intended to
place the burden of proof when the statute has not expressly so provided. It
presents particularly difficult problems of construction when what might be
regarded as a matter of defence appears in a clause creating the offence rather
than in some subsequent proviso from which it may more readily be inferred that
it was intended to provide for a separate defence which a defendant must set up
and prove if he wishes to avail himself of it.
*Editor’s
note: Also reported at [1991] 1 EGLR 285.
The judgment
in Alath goes on at p 1258 H:
Later Lord
Griffiths said at p 374:
‘However,
their Lordships were in agreement that if the linguistic construction of the
statute did not clearly indicate upon whom the burden should lie the court
should look to other considerations to determine the intention of Parliament
such as the mischief at which the Act was aimed and practical considerations
affecting the burden of proof and, in particular, the case or difficulty that
the respective parties would encounter in discharging the burden. I regard this
last consideration as one of great importance for surely Parliament can never
lightly be taken to have intended to impose an onerous duty on a defendant to
prove his innocence in a criminal case, and a court should be very slow to draw
any such inference from the language of a statute. When all the cases are
analysed, those in which the courts have held that the burden lies on the
defendant are cases in which the burden can be easily discharged.’
Not
surprisingly, Mr Conlin relies heavily upon those concluding words as affording
strong support to his argument.
To continue
with the judgment from Alath, at p 1259 B-C there is a further citation
from Lord Griffiths’ speech at p 375 of the report in R v Hunt:
‘In Reg
v Edwards [1975] QB 27, 39-40 the Court of Appeal expressed their
conclusion in the form of an exception to what they said was the fundamental
rule of our criminal law that the prosecution must prove every element of the
offence charged. They said that the exception ‘is limited to offences arising
under enactments which prohibit the doing of an act save in specified
circumstances or by persons of specified classes or with specified
qualifications or with the licence or permission of specified authorities’.’
In our
judgment, those words are of very great importance in the present context. Mr
Conlin, in the course of his argument, made the point that the offence in the Alath
case lay in ignoring the provisions of the tree preservation order and not in
contravening a statutory provision prohibiting the doing of a particular act.
Upon that basis very largely, Mr Conlin founds his argument that the present
case is to be distinguished from that of Alath. His argument is that we
have to look at the wording of the Forestry Act 1967, which is the Act creating
the offence. He draws our attention to section 17, which provides:
Anyone who
fells a tree without the authority of a felling licence, the case being one in
which section 9(1) of this Act applies so as to require such a licence, shall
be guilty of an offence . . . and liable on summary conviction to a fine . . .
His argument
is that if we apply the reasoning in Lord Griffiths’ speech, as set out at p
1258 F-H, this is a case in which the exceptions to the requirements for a
felling licence are set out in a section antecedent to the one which creates
the offence. His argument, therefore, is that it is not a case in which the
construction of the statute presents any linguistic difficulty and that
therefore we ought to apply the ordinary criminal law rules as to the burden of
proof.
In the
judgment of the court, this reasoning is not sound. First of all, if one looks
at the words of section 17, their effect in reality is to incorporate within
them the whole of section 9 in so far as that section establishes the requirement
for a felling licence and sets out exceptions to the requirement. In order to
give meaning to section 17 one has to go back to section 9 and incorporate it
by reference to section 17, so that, in effect, section 17 is saying that it is
an offence to fell growing trees, and one inserts the word ‘growing’, which Mr
Birts has invited us to do, that it is an offence to fell growing trees without
a licence unless one or other of the exceptions applies.
Having said
that, it is then necessary to look again at Lord Griffiths’ speech cited in the
Alath case, to which I have already referred: ‘the exception ‘is limited
to offences arising under enactments which prohibit the doing of an act save in
specified circumstances or by persons of specified classes or with specified
qualifications or with the licence or permission of specified
authorities’.’ If one looks at the
exceptions, as set out in subsections (2), (3) and (4) of section 9 of the
Forestry Act 1967, in many respects although not in every respect, those
exceptions fall squarely within the principle enunciated by the Court of Appeal
in the Edwards case, to which Lord Griffiths had referred.
One then
considers the practicalities of the situation, the purpose of the legislation.
The way in which Mr Birts has aptly put it is to argue that the purpose of
section 9 is to cast a protective cloak over the whole of forestry in this
country by requiring that a felling licence should be obtained before any
growing tree is felled, unless the felling of such a tree is within one or
other of the exceptions set out in the statute. Going on from there, one looks
again at the general principle which applies to exceptions to the general
criminal burden of proof. There is a long line of authority, which, in effect,
is encapsulated both in the Edwards case and in that part of Lord
Griffiths’ speech cited in the Alath case, to the effect that such
exceptions are to apply where the subject-matter of the exception is peculiarly
within the knowledge of the defendant, easy for the defendant to establish on a
balance of probabilities, but in practical terms exceedingly difficult, if not
impossible, for the prosecution to negative.
If one looks
at section 9(2), once trees have been felled and the wood cut up and removed,
it is likely to be very difficult to prove that the tree was not at least of
the diameter specified, for example, in subsection (2)(a). So far as
subsection (3) is concerned, so also it would be very difficult, if not
impossible in many cases, for the Forestry Commission to prove the cubic
content of cut trees. Those matters are well within the knowledge and
competence of a defendant to prove on a balance of probabilities. Much the same
considerations apply to (a) of subsection (4), namely where it is said
that the felling is for the prevention of danger or the prevention or abatement
of a nuisance. It is not difficult to visualise circumstances in which once a
tree is felled it would be very difficult, if not impossible, for the Forestry
Commission to negative an assertion that the felling of the tree was in the
interests of preventing danger, or indeed in some cases for the prevention or
abatement of a nuisance, whereas these are matters peculiarly within the
knowledge of the owner of the tree or person responsible for the tree, who
would have little difficulty in producing evidence to prove such matters upon a
balance of probabilities. If one goes on to look, for example, at the remaining
exception set out under subsection (4) where no licence is required if the felling
is in compliance with any obligation imposed by or under an Act of Parliament,
that would be a very simple matter for a defendant to establish; so also would
(c), namely where the felling is carried out by, or at least request of,
an electricity board for the reasons there set out.
For all these
reasons, without going into further and more tedious detail about it, we are
satisfied that this case falls within one of the very rare exceptions to the
general rule relating to the burden of proof in criminal cases, and that it is
for the appellants to establish, if they can, upon a balance of probabilities,
that they fall within one or other of the exceptions set out in section 9 of
the Forestry Act 1967.
