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Onus of Proof in Drink Drive Cases: Reverse Burdens, Are They Legal?
Sheldrake v Director of Public Prosecutions
Queen's Bench, Divisional Court (2003) The Times, 25 February
 

Keywords
 
European Convention on Human Rights, Article 6(2); Human Rights Act 1998, ss. 3(1), Road Traffic Act 1988, s. 5(2); evidential burden; issue of proportionality; legal burden; presumption of innocence; reverse onus of proof
 

The statute
 
The Road Traffic Act 1988, s. 5 provides:
(1) If a person . . . (b) is in charge of a motor vehicle on a road or other public place, after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
(2) It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.
 

The European Convention
 
The European Convention on Human Rights 1953, Article 6(2) provides: 'Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.'
 

The facts
 
The defendant was found over the limit in his parked vehicle in a public place and claimed he had been trying to get a lift with a friend.
 

The law
 
The essential question for decision was whether, having regard to Article 6.2 of the Convention on Human Rights 1953 and s. 3(1) of the Human Rights Act 1998, the reverse onus of proof provision in s. 5(2) of the Road Traffic Act 1988, imposed a legal or evidential burden on an accused charged with an offence contrary to s. 5(1)(b) of that Act.
 
The Road Traffic Act 1988, s. 5(1)(b) read with s. 5(2) made an inroad on, or derogated from, the presumption of innocence in Article 6.2 of the Convention.
Section 5(2) of the 1988 Act violated the presumption of innocence because it enabled an accused to be convicted even though the court was not sure that there was a likelihood or risk of his driving.
 
A legitimate aim was being pursued by s. 5(2) in that the likelihood or otherwise of the accused driving would normally have involved consideration of the accused's present or future intention to drive.
 
That was a matter which was particularly within the knowledge of the accused. It might have been difficult for the prosecution to deal with, unless there was at least some burden on the accused to put forward his case.
Section 5 of the Road Traffic Act 1988, including s. 5(1)(b), was designed to punish acts involving moral fault. Driving or attempting to drive a car when over the limit was now publicly regarded as a serious criminal offence involving inherently wrongful conduct.
So too was the offence of being in charge of a car while over the limit at a time when there was a real risk of the accused driving the car while still over the limit.
The burden of proving that the accused was driving or attempting to drive was on the prosecution. So too should the burden of proving that there was real risk of the accused who was in charge when over the limit driving the car, once the issue had been raised by the accused by pointing to some evidence that there was no likelihood of his doing so.
 
The prosecution failed to show that it was necessary to impose a legal burden on the accused to show that there was no likelihood of his driving while still over the limit To impose a legal burden on the prosecution to prove that there was a real risk of his driving would not cause undue problems for prosecutors. It was not a heavy burden and should be capable of proof on the facts of the great majority of cases, if not all cases. Therefore, it had not been shown to be proportionate to impose a legal burden.
 
It was possible to read down s. 5(2) of the 1988 Act so that it imposed only an evidential burden, and it should have been so read under s. 3(1) of the Human Rights Act 1998 because it was necessary to do so in order to ensure that it was compatible with the European Convention on Human Rights 1953.
 
Section 5(2) of the Road Traffic Act 1988 could be read as follows:
It is a defence for a person charged with an offence under subsection (1)(b) above to demonstrate from the evidence an arguable case that at the time he was alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.
 
If the accused satisfied the evidential burden, it was for the prosecution to prove beyond reasonable doubt that the circumstances were not such that there was no likelihood of his driving while the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.
 
Put positively, that meant that the prosecution must have proved that there was a real risk, in the sense of a risk that ought not to have been ignored, of his driving whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.
 

Mr Justice Henriques: dissenting judgment
 
Mr Justice Henriques, dissenting on the issue of proportionality, said that while the Justices were not entitled to be satisfied that the statutory defence contained in s. 5(2) of the 1988 Act did not prima facie interfere with the presumption of innocence contained within Article 6.2 of the European Convention, if they had found that prima facie there had been an interference with the presumption of innocence they would have been entitled to be satisfied that a legitimate aim was being pursued by the legislation and that the measure imposed by the statute was proportionate to achieving that aim.
 

Decision of the majority
 
The reverse onus of proof provision in the Road Traffic Act 1988, s. 5(2) needed to be read down under the Human Rights Act 1998, s. 3(1) in order for it to be compatible with Article 6.2 of the European Convention on Human Rights 1953, so that it imposed only an evidential burden of proof on the accused.
 
The Queen's Bench Divisional Court so held by a majority (2 to 1) in allowing an appeal by Sheldrake by way of case stated by Justices against conviction of being in charge of a motor vehicle after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit, contrary to the Road Traffic Act 1988, s. 5(1)(b), for which he was sentenced to a community punishment order of 160 hours, his licence was endorsed with 10 penalty points and he was ordered to pay costs of £395.
 
It is important to note that Mr Justice Henriques dissented on the issue of proportionality, 'if they had found that prima facie there had been an interference with the presumption of innocence they would have been entitled to be satisfied that a legitimate aim was being pursued by the legislation and that the measure imposed by the statute was proportionate to achieving that aim'.

 
Comment
 
Since as long as I can remember, and going back centuries before that, it was completely alien for English judges to rewrite legislation.
'If the words of the Statute are clear, you must follow them, even though they lead to a manifest absurdity. The Courts have nothing to do with the question whether the Legislature has committed an absurdity.'
 
However, we are now told, in the light of Article 6.2 of the Convention on Human Rights 1953 and s. 3(1) of the Human Rights Act 1998, s. 5(2) could (not should) be read as follows:
It is a defence for a person charged with an offence under subsection (1)(b) above to demonstrate from the evidence an arguable case that at the time he was alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.
 
The court is clear in that it says the evidential burden is now sufficient; however, are we being told that we can change the words of a statute or that we should? The use of the word could is not a clear direction from the court.

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