R v Johnstone
The reverse burden in the defence to the offence of selling counterfeit goods bearing a registered trade mark was justified, because the defence concerned matters within the defendant's knowledge.
Facts
Mr Johnstone was charged with offences under section 92 of the Trade Marks Act 1994 of selling bootleg recordings bearing the names of well known performers, which were registered trade marks. Section 92(5) provided a defence if the defendant showed that he believed on reasonable grounds that the use of the sign was not an infringement of the registered trade mark. The question was whether the defence imposed a legal burden on the defendant, and whether this was compatible with article 6(2).
Legal principle
The House of Lords held that section 92(5) imposed a legal burden on the defendant, and that this was justified. Lord Nicholls said that the more serious the offence, the more compelling the justification for a reverse burden would need to be, but that here there were compelling reasons: counterfeiting was a serious problem for legitimate traders and consumers, the defence related to facts within the defendant's own knowledge, such as where he had obtained the goods, and those who trade in branded products are aware of the need to be on guard against counterfeit goods. The reverse burden was therefore proportionate.
Related cases on burden and standard of proof
- Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] 1 AC 11
- Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563
- Miller v Minister of Pensions [1947] 2 All ER 372
- R v Edwards [1975] QB 27
- R v Galbraith [1981] 1 WLR 1039
- R v Hunt [1987] AC 352
- R v Lambert [2001] UKHL 37, [2002] 2 AC 545
- Salabiaku v France (1988) 13 EHRR 379
Studying evidence? Our tutors help you understand and apply cases like this in essays, problem questions and exams. Request a quote or browse our law notes.
This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
