Source: All England Reporter
Publisher Citation: [2005] All ER (D) 151 (Nov)
Neutral Citation: [2005] EWCA Crim 2865
Court: Court of Appeal, Criminal Division

Kennedy LJ, Bell and Dobbs JJ

Representation Michael Ivers (assigned by the Registrar of Criminal Appeals) for the defendant in the first appeal.
  Frances Webber and Richard Thomas (assigned by the Registrar of Criminal Appeals) for the defendant in the second appeal.
  John Hulme (instructed by the Crown Prosecution Service) for the Crown.
Judgment Dates: 11 November 2005


Criminal evidence - Burden of proof - Statutory provisions imposing burden of proof on defendant - Provision requiring defendant to prove manner of entry to United Kingdom - Whether legal or evidential burden - Standard of proof - Whether court obliged to consider Refugee Convention in interpreting provision - Asylum and Immigration Act 2004, s 2.

The Case

The court heard two appeals together as each raised issues relating to the offence contrary to s2 of the Asylum and Immigration Act 2004. Were there to have been ambiguity in the terms of the 2004 Act, art31 of the Refugee Convention might have assisted in its interpretation; however, there was no ambiguity in the relevant part of s2 of the 2004 Act. The burden of proof on the defendant under s2 of the 2004 Act was a legal burden, which did not unjustifiably infringe the presumption of innocence. There was no incompatibility between the terms of the statute and the requirements of the European Convention on Human Rights. The standard of proof was on a balance of probabilities.

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