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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Elliot, R (on the application of) v Secretary Of State For Home Department [2001] EWHC Admin 559 (18th July, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/559.html Cite as: [2001] EWHC Admin 559

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SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE PETER ELLIOT, R v. [2001] EWHC Admin 559 (18th July, 2001)

Case No: CO/263/2000
Neutral Citation Number: [2001] EWHC Admin 559
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 18th July 2001

"The Secretary of State considers that it would not be unjust to order return because of the nature of the offence created by sections 9 and 24 of the Bribery Ordinance. In summary, his reasons for so concluding are as follows:
(1) There has been no clear authority under the Convention to the effect that a State's responsibility is engaged if a person is returned or extradited to a jurisdiction in which any trial might violate Article 6. The European Court has noted that "the Convention does not require the Contracting parties to impose its standard on [third] States'': Drozd and Janousek v France [1992] 14 EHRR 745. At most, even if in principle a State's responsibility can be engaged in such a case, the European Court is likely to require a clear risk of a ´flagrant denial' of the rights in Article 6 in the requesting jurisdiction: see Launder v the United kingdom (supra) at page 20)
(2) In any event, the Secretary of State considers that sections 9 and 24 of the Bribery Ordinance would not be held by the European Court to violate Article 6(2) of the Convention, because (a) the ´presumption' is rebuttable (b) section 24 does not deprive Mr Elliot of all means of defending himself and (c) the HKSAR courts enjoy a genuine freedom of assessment at trial in deciding whether or not the advantage alleged to have been accepted by Mr Elliot was accepted without lawful authority or reasonable excuse. It follows that the Secretary of State does not consider there to be a real risk of any denial, still less a "flagrant'' denial, of Article 6 rights.
(3) The Secretary of State considers that, if (a) sections 9 and 24 of the Bribery Ordinance were considered applying English law (including Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951 and, more recently, R v Director of Public prosecutions ex parte Kebilene and others [1999] 3 WLR 972, especially the judgment of Lord Hope), and (b) the main provisions of the Human Rights Act 1998 [´the 1998 Act'] were in force or it was otherwise permissible to challenge unambiguous primary legislation on the basis of incompatibility with the convention, it is by no means clear that sections 9 and 24 of the Bribery Ordinance would be held to be incompatible with the provisions of the 1998 Act.
(4) The Secretary of State considers in any event that, given the principles set out in Lee Kwong-kut and Kebilene, the judgment as to whether in all the circumstances sections 9 and 24 of the Bribery Ordinance do violate the presumption of innocence in an unjustifiable manner is pre-eminently one for the HKSAR courts. Local factors and needs play an important part in making the judgment. The Secretary of State notes in this respect the recognition in the Privy Council (on appeal from Hong Kong) and in the Hong Kong courts of (a) the problems created by bribery in Hong Kong and (b) the difficulty of proving bribery.
(5) The Secretary of State considers that the HKSAR courts would be likely at least to derive considerable assistance from the principles set out in Lee Kwong-kut (as they have done in other cases following Lee Kwong-kut - see for example the case cited by Professor Yash Gai: Attorney-General v Hui Hin Hong [1995] 5 HKPLR 100), and from Lord Hope's judgment in Kebilene, whether or not technically obliged to apply Privy Council decisions on appeal from Hong Kong (such as Lee Kwong-kut). The Secretary of State, in any event, is satisfied that the HKSAR courts would properly and fairly consider and determine any challenge based on an alleged unjustifiable interference with the presumption of innocence."

5. For the applicant, Miss Montgomery QC submitted that there is no sign that the Secretary of State considered the facts, his reasoning in paragraph 18 is confused and inconsistent and his counsel's submissions cannot be a substitute for evidence as to his reasons. Sub paragraph (1) is defective in not considering the terms of Article 6, and no proper conclusion could be reached in sub paragraph (2) as to whether there has been a flagrant denial of Article 6 rights without a consideration of the facts. Whereas sub-paragraphs (1) and (2) assume that potential violation of article 6 is a matter for the Secretary of State, sub-paragraphs (4) and (5) show an abdication of responsibility by the Secretary of State, wrong in law, in suggesting that fairness is a matter for the HKSAR courts not him. Further, sub-paragraph (3)'s conclusion that it is by no means clear that the Bribery Ordinance would be held incompatible with the Human Rights Act 1998 is at variance with the conclusion in sub-paragraph (2) that Article 6 was not violated. These matters, submitted Miss Montgomery, show that no adequate consideration was given by the Secretary of State to the reverse burden of proof. In so far as the Secretary of State decided that s24 did not violate Article 6(2) and the presumption of innocence in Article 11(1) of the Hong Kong Bill of Rights he was also wrong in law.
6. In support of these submissions she took us first to the Hong Kong legislation, then to the facts and, finally, to the English, European and South African authorities.
7. There are, it is common ground, three elements of a s9 offence by an agent- first, absence of lawful authority or reasonable excuse, secondly, soliciting or accepting and, thirdly, acting in relation to his principal's affairs. The first element, she submitted, is the most important and, by s24, the burden of proof in relation to it is cast on the defence. S14(1) of the Ordinance empowers the Commissioner to require by notice a person suspected of an offence to furnish a written statement of his property, expenditure and liabilities and s14(4) imposes an obligation to respond in the time specified in the notice. By s20(b), a failure to comply with such a notice "may be adduced in evidence and made the subject of comment by the court and the prosecution".
8. As to the facts, charges 1 and 2 relate to arrangements between the applicant's employer, Standard Bank, and the Agriculture Bank of China for the deposit by Standard Bank of US $30 million and US$ 20 million. The defence is that, although money was received by the applicant it was passed on by him to persons in China. Charges 3 to 6 relate to discounting bills of exchange for which the applicant admits he benefited from returned commission. His defence is that these payments were made in relation to a previous business before he joined Standard Bank and he passed the benefit to his former partner Mr Clements. Unwillingness of defence witnesses to go to Hong Kong, Miss Montgomery submitted, will reduce the impact of their evidence, although it could still be provided by other means e.g. on commission, or video link.
9. As to the law, Miss Montgomery submitted that there is a single strand discernible from all jurisdictions, namely, the court looks at what is at stake and balances the interests of society against those of the defendant, taking into account such factors as the severity of punishment possible, the nature of the crime and the way in which the burden of proof operates. A proportionate rebuttable reverse burden will be upheld. Because of the existence of this single legal strand, the Secretary of State was not justified in seeking to tease out individual strands. In support of this submission, Miss Montgomery took us to a number of authorities.
10. In Salabiaku v France 13 EHRR 379 the applicant had been acquitted of the criminal offence of unlawful importation of narcotics, but convicted of the customs offence of smuggling which was punishable by up to 3 months imprisonment. The French Customs Code deemed liability for the offence where possession was proved. That presumption was irrebuttable but its severity was moderated by the courts' unfettered power of assessment of the evidence, so that an accused could exculpate himself by force majeure from an event it was absolutely impossible to avoid. The ECHR held that there was no breach of Article 6(2). In paragraph 27 of its judgment, the court said

"Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence".
In paragraph 28 the court said:
"Presumptions of fact or law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law... Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."

Miss Montgomery stressed that Salabiaku was concerned principally with customs law, not the wider scene of dangerous drugs. It asserted the need to strike a balance, which is consistent with the English authorities.
In Hoang v France 16 EHRR 53 the applicant had been convicted of unlawful narcotics importation and customs evasion. The ECHR rejected his complaint that the presumption relied on against Salabiaku and three other presumptions under the French Customs Code breached Article 6(2). He did not rely on the statutory defence to the three other presumptions that he had acted from necessity or as a result of an unavoidable mistake. In paragraph 34 of its judgment the ECHR said the applicant "was not in fact deprived of all means of defending himself...he could try to demonstrate that he had acted from necessity or as a result of unavoidable mistake. The presumpton of his responsibility was not an irrebuttable one". In paragraph 36 the court pointed out that the French Court of Appeal had refrained from automatic reliance on the presumptions.
11. In AG of Hong Kong v Lee Kwong-kut the Privy Council considered the impact of Article 11(1) of the Hong Kong Bill of Rights, which asserts

"the right to be presumed innocent until proved guilty according to law"

on two different provisions in Hong Kong Ordinances. In the first appeal it was held that Article 11(1) was contravened by a provision which criminalised possession of anything reasonably suspected of having been stolen or unlawfully obtained by a person, who does not give an account to the satisfaction of the magistrate how he came by the same. In the second appeal it was held that Article 11(1) was not infringed by an absolute prohibition on engaging in activities with others who you know or have reasonable grounds to believe carry on drug trafficking, with special statutory defences which the defendant had to prove on the balance of probabilities: such an onus was held to be justifiable in the context of the war against drug trafficking. At 962 Lord Woolf, giving the opinion of the Privy Council, cited the judgment of Lawton LJ in Edwards [1975] QB 27 at 39 to 40 where he referred to the evolution of

"an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged...it is limited to offences arising under enactment's which prohibit the doing of an act saving specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception".

At 969c, having referred to the terms of the judgment in Salabiaku already cited, Lord Woolf said

"This statement provides a valuable illustration of the collective effect of the decision in other jurisdictions apart from Canada to which their Lordships have been referred on equivalent provisions to Article 11(1) in other constitutional documents. Even though they are not subject to any express limitation they are considered to have an implicit degree of flexibility. The situation is the same in relation to Article 11(1). This implicit flexibility allows a balance to be drawn between the interest of the person charged and the State."

At 969f he went on

"Some exceptions will be justifiable, others will not. Whether they are justifiable will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which Article 11(1) enshrines. The less significant the departure from the normal principle the simpler it will be to justify exceptions. If the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is that the exception will be regarded as unacceptable. In deciding what are the essential ingredients, the language of the relevant statutory provision will be important. However what will be decisive will be the substance and reality of the language creating the offence rather than its form. If the exception requires certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless...´´it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.""

Lord Woolf went on to refer to the two-stage approach adopted by the courts of Canada which

"in the end tend to come to the same conclusion as would be reached in other jurisdictions."

At 973c, in a passage on which Miss Montgomery particularly relied, Lord Woolf said, by reference to the provisions under consideration in the first appeal,

"The substantive effect of the statutory provision is to place the onus on the defence to establish that he can give an explanation as to his innocent possession of the property. That is the most significant element of the offence. It reduces the burden on the prosecution to proving possession by the defendant and facts from which a reasonable suspicion can be inferred that the property has been stolen or obtained unlawfully, matters which are likely to be a formality in the majority of cases. It therefore, contravenes Article 11(1) of the Hong Kong Bill."

At 973d, by reference to the other provisions under consideration, Lord Woolf said

"Unless the prosecution can prove that the defendant has been involved in a transaction involving the relevant person's proceeds of drug trafficking...and that at the time he had the necessary knowledge or reasonable grounds to believe the specified facts the defendant is entitled to be acquitted. However once the defendant knows or has reasonable grounds to believe that the relevant person is a person who carries on or has carried out drug trafficking or has benefited from drug trafficking, then the defendant knows that he is at risk of committing an offence and that he can only safely deal with that person if he is in a position to satisfy "

the section. At 973g he went on

"It would be extremely difficult, if not virtually impossible, for the prosecution to fulfil the burden of proving that the defendant had not taken those steps. In the context of the war against drug trafficking, for a defendant to bear that onus... is manifestly reasonable and clearly does not offendArticle 11(1). "

12. In R v DPP ex parte Kebilene [2000] 2 AC 326, Miss Montgomery accepted that what was said in relation to burden is obiter. But she relied on passages in the judgment of Lord Bingham of Cornhill CJ in the Divisional Court at 344f, 345d and 346c, asserting the incompatibility with the presumption of innocence and Article 6(2) of the provisions of s16A of the Prevention of Terrorism (Temporary Provisions) Act 1989. This makes it an offence to possess an article in circumstances giving rise to a reasonable suspicion that it is for acts of terrorism, the burden being on the defence to prove that that was not the purpose and a burden being placed on the defendant in relation to proof of possession. This judgment was reversed in the House of Lords. At 378 to 379 in the House of Lords, Lord Hope of Craighead observed that, in deciding whether a statutory provision is vulnerable to challenge on the ground of incompatibility with Article 6(2), it is first necessary to distinguish between the shifting evidential burden and the ultimate persuasive burden on the balance of probabilities on a defendant. Statutory presumptions placing an evidential burden on the accused do not breach the presumption of innocence. As to persuasive burdens, a mandatory presumption of guilt as to an essential element of the offence is inconsistent with the presumption of innocence. A discretionary presumption of guilt may not be inconsistent, depending on the tribunal of facts' view as to the cogency of the evidence. Provisions in relation to an exemption or proviso which the accused must establish to avoid conviction, but which are not an essential element of the offence, may or may not violate the presumption of innocence depending on the circumstances. At 386c Lord Hope adopted 3 questions, suggested by counsel, for considering where the balance lies:

"(1) what does the prosecution have to prove in order to transfer the onus to the defence?
(2) what is the burden on the accused - does it relate to something which is likely to be difficult for him to prove, or does it relate to something likely to be within his knowledge or (I would add) to which he readily has access?
(3) what is the nature of the threat faced by society which the provision is designed to combat?"

Having considered each question in relation to s16A he concluded at 387g:

"It would not be appropriate for us in this case to attempt to resolve the difficult question whether the balance between the needs of society and the presumption of innocence has been struck in the right place. But it seems to me that this is a question which is still open to argument."

Miss Montgomery submitted that the Secretary of State does not seem to have asked, still less answered, the 3 questions referred to by Lord Hope. At 397-398 Lord Hobhouse, having referred to Salabiaku and Hoang identified arguable points in relation to whether s16A is incompatible with the Convention and said at 398b:

"The judgments and decisions of the European Court of Human Rights and the Commission (account of which must be taken under s2 of the Act) show that they are not necessarily incompatible with the Convention."

He referred to the difficulty of the concepts and commented that Lord Woolf's approach in Lee Kwong-kut "may have been more stringent than is required under the European Convention."
13. In the light of these authorities, Miss Montgomery submitted that there is no divergence between the approaches shown by the European and English courts. Accordingly, she submitted, there is no justification for the Secretary of State to say that Article 6 would not be violated unless he looks at the way it operates. A correct approach by the Secretary of State would necessarily involve him in analysing the legal provisions in Hong Kong and considering their application in this case. She relied on Soering v UK 11 EHRR 439. In paragraph 113 of the judgment the court said

"the right to a fair trial in criminal proceedings, embodied in Article 6, holds a prominent place in a democratic society. The court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risked suffering a flagrant denial of a fair trial in the requesting country. "

She submitted that leaves open whether, in an extradition case, it is relevant that there is a risk of an unfair trial contrary to Article 6. In Drozd and Janousek v France and Spain 14 EHRR 745 a person convicted in Andorra chose to serve his sentence in France and sought to challenge the fairness of his trial in Andorra which is not a party to the European Convention. It was held that there was no jurisdiction to examine the merits from the point of view of Article 6. Paragraph 110 of the judgment states:

"France was not obliged to verify whether the proceedings which resulted in conviction were compatible with all the requirements of Article 6 of the Convention. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international co-operation in the administration of justice, and which is in principal in the interests of the person concerned. The contracting state is however obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice. "

Miss Montgomery submitted that this authority emphasises the need for some assessment of possible violation even in a country not bound by the Convention and, where something so fundamental as a reverse burden arises, some assessment is necessary. The Secretary of State's conclusions in paragraph 18 that there either was not (2) or might not (3) be a violation is both surprising and unjustified in the absence of supporting reasons. She submitted that the most important element of the offence charged against the applicant casts a burden on him in the form of a mandatory presumption on the balance of probabilities in circumstances where such a presumption was unnecessary because of the compulsory interrogation provisions of s14. Furthermore, the presumption applies to all corruption cases not just those involving public bodies. Furthermore, the defence is under real difficulty in establishing the necessary facts because of the unwillingness of defence witnesses to attend and the delay which has already occurred. There is in the present case no freedom of assessment by the court as occurred in Salabiaku and Hoang. The gravity of the offence is to be gauged by the maximum punishment of seven years.
14. Miss Montgomery also took us to the Law Commission Report on Corruption [1998 No 248] and the discussion of the presumption of corruption in Part IV of that Report. She did not suggest that the Law Commission expressed any clear or concluded view as to the impact of Article 6 in the light of the Strasbourg decisions. Indeed, at paragraph 4.36, the Commission said it was difficult to be sure whether the presumption of corrupt receipt unless the contrary is proved under s2 of the Prevention of Corruption Act 1916 is likely to be regarded as a breach of Article 6.
15. Miss Montgomery referred us to Manamela [2000] 5 LR C 65 where the South African Constitutional Court held that a reverse burden was not proportionate in a handling case, in that an evidential burden which would have been less invasive could have been used. She also relied on Brown v Stott [2001] 2 WLR 817 where the Privy Council held that there was no incompatibility with a defendant's rights under Article 6 for the prosecution to rely on an admission that the defendant was the driver of a motor car, that admission having been obtained under compulsion pursuant to s172 of the Road Traffic Act 1988. At 825b Lord Bingham of Cornhill said:

"what a fair trial requires cannot, however, be the subject of a single unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done. "

Lord Bingham went on to review the Strasbourg jurisprudence in relation to the presumption of innocence and quoted a passage from the speech of Lord Hope in ex parte Kebilene at 385

"the cases show that although Article 6(2) in absolute terms is not regarded as imposing absolute prohibition on reverse onus clauses whether they be evidential (presumptions of fact) or persuasive (presumptions of law). In each case the question would be whether the presumption is within reasonable limits."

At 836b Lord Bingham said:

"The jurisprudence of the European Court very clearly establishes that while the overall facts of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within Article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard- edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree....The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which the balance has been described as inherent in the whole of the Convention."

At 852a Lord Hope identified the questions which the jurisprudence of the European Court requires to be addressed in relation to alleged incompatibility with an Article 6 right:

"(1) is the right which is in question an absolute right, or is it a right which is open to modification or restriction because it is not absolute?
(2) if it is not absolute does the modification or restriction which is contended for have a legitimate aim in the public interest?
(3) if so, is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised?"

16. Miss Montgomery submitted, in the light of her review of the authorities, that there is no whisper of a division between the English, Strasbourg and Commonwealth approaches. The governing principal is that a balance must be struck between society and the individual. All jurisdictions accept that there may be a reverse onus but it is necessary to analysise the facts of the particular case to decide whether there is a violation. She submitted that there was no sign that the Secretary of State recognised that single principal and applied it conscientiously in the present case, nor any sign of the necessary process of analysis to reach a rational and legally unimpeachable decision. She accepted that the Secretary of State is not able to judge local factors to a nicety. He can and must weigh what factors point away from extradition so that he does not violate Article 6. She accepted the Secretary of State could reach a conclusion that it was right to return the applicant to Hong Kong but he could only properly do so having taken the relevant facts into account.
17. On behalf of the Secretary of State Mr Eadie submitted that he had asked himself the right questions in accordance with ex parte Launder No 1, namely whether it would be wrong, unjust or oppressive to return the applicant and had given a clear answer in the first sentence of paragraph 18 that it would not. It was legitimate for him to approach that question by reference to the European authorities such as Janousek and Soering, dealing with extradition by reference to whether there may be a flagrant denial of justice and by reference to other European authorities dealing with reverse onus, such as Salabiaku and Hoang and the English authorities in the Privy Council and House of Lords in a domestic context. By those separate yardsticks the over-arching question of whether it is just to return the applicant can be properly judged. There is, he submitted, no difference between the principle to be applied in reverse onus cases. But the broadly stated principles in Salabiaku as to balance have to be applied to particular facts. He submitted that on the authorities there appears to be a difference of approach in that the Strasbourg jurisprudence is more permissive to reverse onus cases than Lord Woolf's approach in Lee Kwong-kut : Lord Woolf's analysis places particular emphasis on the ingredients of the criminal offence, whereas the Strasbourg approach does not. In consequence, the Secretary of State was able to give a fairly confident conclusion in relation to the European authorities whereas his conclusion based on the English authorities was necessarily more guarded. Despite this more guarded conclusion, he was entitled to reach the clear conclusion that it would not be unjust to order the applicant's return. So far from abdicating his responsibilities, in paragraph 18(4) and (5) he properly recognised that the matters relevant to whether a return was just could not be resolved by him at this stage as local factors and needs were important and had to be properly determined locally. He expressly considered the most important relevant factors, namely the ingredients of the offence, the reverse burden and the penalty, defence difficulties in relation to witnesses and the broad justification for the legislation.
18. In support of these submissions, Mr Eadie dealt first with the facts. In relation to the first charge, the flow of money to the applicant is documented. In relation to the second charge there are no records because the payments to the applicant are said to have been made in cash. The defence in relation to charge 1 is that the money was received as agent for Chinese nationals not in relation to his principal's affairs. The defence in relation to charge 2 is that no cash was ever received. The issue as to whether receipt was in connection with the principal's affairs was an element which the prosecution must prove and there is no category of documents relevant to this issue falling within s14. In relation to charge 2 the issue is between the applicant and Heng as to whether or not cash was paid. In consequence the reverse onus provisions have no role to play in relation to charge 1 or to charge 2. As to charges 3 to 6, there is documentary evidence showing the flow of money to the applicant's bank account. The defence is that it was thereafter paid out on unspecified dates to Clements, who was the applicant's former partner: if that is right, it is a matter solely within the applicant's knowledge. The other strand of the defence is that the applicant had the authority of his superior at Standard Bank, Mr Wilde, a prosecution witness, who knew of these old business activities before the applicant joined Standard Bank. There is no suggestion that Mr Wilde, will not be able to give evidence in Hong Kong and he, if the applicant is right, will be able to support the defence case.
19. As to the European authorities on extradition, Mr Eadie submitted that Janousek establishes that there has to be a real risk of a flagrant denial of justice, not merely a possible violation of Article 6, before a state's responsibility is engaged: he relies on paragraph 110 of the judgment already cited. In Launder Application 2729/95 the Commission rejected, as manifestly ill-founded, a complaint of a breach of Article 6 where it was open to the applicant, if extradited to Hong Kong, to raise an objection before the HKSAR court as to whether a fair trial could take place. Furthermore, he submitted, Salabiaku shows that the presumption of innocence is not solely confined to the procedure at trial but can apply to domestic law, states are free to define the elements of offences within their jurisdiction, including creating offences of strict liability, and there are presumptions of fact and law in all jurisdictions, which are permissible by reference to the concept of reasonableness; the real concern is with irrebuttable presumptions whereby a defendant is deprived of the means of defending himself. Hoang shows that the distinction between persuasive and evidential burdens plays no role in Strasbourg (see the dissenting opinion in the Commission at pages 76 and 77). At paragraph 34 of the judgment, the court concluded, that although the Paris Court of Appeal had applied four presumptions against the defendant, he was not deprived of all means of defending himself as there was a defence of acting from necessity or as a result of unavoidable mistake so the presumption of responsibility was not irrebuttable. At paragraph 36, the court pointed out that the Court of Appeal had weighed the evidence before it and refrained from any automatic reliance on the presumption.
20. Accordingly, Mr Eadie submitted that the Strasbourg jurisprudence relies on whether a defendant has been deprived of all means of defending himself, whether the presumptions are rebutttable and whether the court can rely on a defendant's evidence or is obliged to convict.
21. Mr Eadie further relied on four Commission decisions. In Bates (Application No 26280/95) the Commission declared inadmissible a complaint in relation to the reverse onus under s5(5) of the Dangerous Dogs Act 1991 which presumed that a dog was a Pitbull Terrier unless the contrary was shown by the accused. The Commission pointed out that the applicant had the opportunity to defend himself and produce evidence. In ´X' (Application 5124/71), the Commission rejected a complaint that in relation to an offence of living on earnings the presumption of knowingly living on the immoral earnings of prostitution unless the contrary was proved was a violation of Article 6(2). In ´H' (Application No 15023/89) the Commission declared inadmissible a complaint in relation to the burden of proof on the defence under the McNaghton Rules in relation to insanity. In AG v Malta (Application No 16641/90) the Commission rejected as inadmissible a complaint about a reverse onus provision presuming a company director guilty of an offence by a company unless he proved the offence was committed without his knowledge and that he exercised due diligence. The Commission stressed that the presumption was not irrebuttable.
22. As to the English authorities, Mr Eadie submitted that although, as in Salabiaku, they require a balance to be struck, Lord Woolf at 972e in Lee Kwong-kut said that normally:

"the court can ask itself whether under the provision in question, the prosecution is required to prove the important elements of the offence; while the defendant is reasonably given the burden of establishing a proviso or an exemption or the like of the type indicated by Lawton LJ, if this is the situation Article 11(1) is not contravened."

At 973a, however, Lord Woolf also referred to:

"the need to balance the interests of the individual in society which are at the heart of the justification of an exception to the general rule."

Lord Woolf's approach, submitted Mr Eadie, carries through the analysis of Lord Bingham of Cornhill in ex parte Kebilene at 344c

"the task of the court is...to study the substantial effect of a legislative provision said to infringe the presumption of innocence in order to decide whether in practical terms it does or not."

Lord Bingham went on to refer to the gravamen of the offence and its crucial ingredients of possession and terrorist purpose neither of which needed to be proved by the prosecution to the criminal standard. In the House of Lords Lord Hope at 385f was critical of Lord Bingham for not taking justification into account, though it appears at 345c Lord Bingham did have regard to justification factors, while not being persuaded that they altered his conclusion. All the members of the House of Lords in ex parte Kebilene concluded that whether s16A was compatible with Article 6(2) was capable of argument. (see Lord Steyn, with whom Lord Slynn agreed, at 365h and 372a and Lord Cooke at 374b in addition to the speeches of Lord Hope and Lord Hobhouse already cited).
23. Mr Eadie further submitted that, until the facts of a particular case are known, it may be very difficult to form a judgment, so the Secretary of State's views can only be preliminary and regard must be had to the importance of local factors. Mr Eadie also relied on the passage in the speech of Lord Hobhouse in ex parte Kebilene at 398c which highlights the possible difference between Lord Woolf's approach in Lee Kwong-kut and the European jurisprudence. It is also a matter for the debate, submitted Mr Eadie, as to how Lord Woolf's approach fits in with that of Lord Hope in ex parte Kebilene. In the light of these considerations, Mr Eadie submitted, there is no necessary inconsistency in the Secretary of State reaching a clearer conclusion by reference to the Strasbourg jurisprudence than to the English jurisprudence.
24. It has been necessary, not only as a matter of courtesy but also as an aid to analysis, to rehearse the very helpful submissions to this court at some length. But the conclusions which follow can in our judgment, be shortly stated and they are unaffected by the House of Lords decision in R v Lambert 5th July 2001 [2001] UKHL 37 handed down after we heard argument in this case.
25. It is clear beyond peradventure that the Secretary of State correctly directed himself by reference to ex parte Launder No 1 and clearly answered the crucial question that it was not unjust to return the applicant to Hong Kong because of the nature of the offences created by the Bribery Ordinance. Paragraph 18(1) of his decision unimpeachably rehearses the effect of the Strasbourg jurisprudence, namely, a clear risk of a flagrant denial of Article 6 rights in the requesting jurisdiction is necessary before extradition could be refused. (see Soering and Janousek). The Secretary of State was also entitled to conclude that the HKSAR courts enjoy freedom of assessment at trial and there is no real risk of any denial, still less a flagrant denial, of Article 6 rights. Furthermore, the Secretary of State was entitled to conclude that Lee Kwong-kut and ex parte Kebilene do not demonstrate that ss9 and 24 of the Bribery Ordinance would be held incompatible with the provisions of the Human Rights Act.
26. Happily, it is not necessary to the decision in this case for this court to embark on the unenviable task of seeking to reconcile express and implied divergences of view between members of the House of Lords in the opinion in Lee Kwong-kut ( this was a Privy Council case) and the judgments and speeches in ex parte Kebilene. Nor was that the task of the Secretary of State. His role was to decide whether the applicant's return to Hong Kong would be wrong, unjust or oppressive; ours is to decide whether the reasons he gave for concluding that it would not can be impeached.
27. As all the speeches in the House of Lords in ex parte Kebilene made clear in a non-extradition context, issues affecting fairness of trial are, usually, best decided at the trial itself. In our judgment that principle generally applies also in an extradition context, unless there are special circumstances, such as a real risk of denial of a fair trial at the hands of the requesting state. In the present case, therefore, the Secretary of State was right to point out that he is not a trier of fact and to stress the importance of local factors. He had proper regard, when considering the fairness of the presumption, to its rebuttable nature and to the fact that the applicant was not deprived of all means of defending himself. He was entitled to conclude that the European authorities do not preclude extradition in the present case and that the HKSAR courts will properly consider the English authorities in relation to the presumption of innocence. His conclusion that there is no real risk of any denial in Hong Kong of Article 6 rights cannot be faulted.
28. Accordingly this application fails.