The offence of felling trees without a licence under ss.9 and 17 Forestry Act 1967 was one of strict liability and there was a reverse burden of proof on the accused to show in his defence that one of the exceptions under s.9(2)-(4) applied.Application for judicial review of a trial judge's rulings on the burden of proof and mens rea in a case of felling trees without a licence contrary to s.17 Forestry Act 1967. The second claimant ('P') was employed by the first claimant ('Grundy') as a surveyor. Grundy's employees cut down 86 trees on the instructions of a landowner ('F') on F's land in order to make a hard standing. A felling licence under s.9(1) of the 1967 Act had not been obtained. P's case was that F had said that he was not aware that a licence was required. F pleaded guilty to felling the trees without a licence. P and Grundy pleaded not guilty and the trial judge was asked to rule on the burden of proof and mens rea. He held that the only burden of proof on the prosecutor was to prove that the accused felled the trees and that it was then for the accused to prove on the balance of probabilities either that he had a licence or that a licence was not required because one of the exceptions in s.9(2)-(4) and the relevant regulations applied. P and Grundy applied for judicial review of his rulings in favour of the prosecution. P and Grundy accepted that there was an evidential burden on the accused to show that one of the exceptions in s.9(2)-(4) applied. They argued that as to mens rea the prosecution had to prove that the accused did not have an honest and reasonable belief either that no licence had been granted or that an exception applied; alternatively that the prosecution had to establish recklessness. The issues were: (i) the burden of proof under s.17 of the 1967 Act; and (ii) the necessary mental element of the offence.HELD: (1) Applying the provisions of s.101 Magistrates Courts Act 1980 and the principles in R v Edwards (1975) 1 QB 27 and R v Richard Hunt (1987) AC 352, it was clear that there was a reverse burden on the accused to show that one of the exceptions in s.9(2)-(4) of the 1967 Act applied and that that burden was a legal burden and not merely an evidential burden. It followed that, subject to any necessary state of mind or mens rea, the prosecution had to prove that the accused felled the trees and if, as here, it was accepted that the trees were not felled pursuant to a licence, it was then for the accused to prove on the balance of probabilities that the facts satisfied one of the provisions in s.9(2)-(4). The reverse burden of proof provisions in ss.9 and 17 of the 1967 Act derogated from the presumption of innocence in Art.6(2) of the European Convention on Human Rights. However, the derogation was justified, because it was impossible to negative all defences in advance, and was proportionate. The legislative scheme would only really work if the burden was on the accused. (2) The offence under s.17 was one of strict liability. The offence was a regulatory offence. The licensing system was designed to protect the nation's trees. The presumption that mens rea was required was displaced because that was by clear implication the intention of the statute. The offence was an absolute offence and in order to prove the offence no state of mind had to be proved except that involved in proving that the accused felled the trees. That conclusion was not affected by the Human Rights Act 1998 or the European Convention on Human Rights. Strict liability offences were not objectionable in principle (Saliabaku v France (1988) 13 EHRR 378).Application dismissed.

[2003] EWHC Admin 272 (QB)

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