Sheldrake v DPP

Introduction

1. This is an appeal by way of case stated by the appellant, Peter Sheldrake, against his conviction by justices in North East Essex on 26 June 200On that date he was convicted of being in charge of a motor vehicle on 9 February 2001 at Stanway after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit, contrary to Section 5(1)(b) of the Road Traffic Act 1988 (“the 1988 Act”). On 23 July 2001 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. The justices stated a case for the opinion of the High Court on 18 September 200On 1 March 2002 this court suspended the operation of the community punishment order, pending the appeal. The appeal came on for hearing on 7 October 2002 before Latham LJ and McCombe J They were however unable to agree and directed a rehearing before a three judge court. We are that court.

2. The essential question for decision in this appeal is whether, having regard to article 6(2) of the European Convention on Human rights (“the Convention”) and section 3(1) of the Human Rights Act 1998 (“the HRA”), the reverse onus of proof provision in section 5(2) of the 1988 Act imposes a legal or evidential burden on an accused charged with an offence contrary to section 5(1)(b).

The Statute

3.Section 5 of the 1988 Act provides:

“5. (1) If a person-

(a) drives or attempts to drive a motor vehicle on a road or other public place, or

(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 whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.

(3) The court may, in determining whether there was such a likelihood as is mentioned in subsection (2) above, disregard any injury to him and any damage to the vehicle.”

4. Offences under section 5(1)(a) and 5(1)(b) are triable summarily.Section 5(1)(a) carries a maximum of six months imprisonment and a fine on level 5. Disqualification is mandatory.Section 5(1)(b) carries a maximum of three months and a fine on level Disqualification is discretionary. See section 9 and schedule 2 of the Road Traffic Offenders Act 1988.

The Convention

5.Article 6(2) of the Convention provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

The Facts

6. The justices found the following facts in paragraph 2 of the case:

“i) On 9 February 2001, the appellant was found in his vehicle in a public place.

ii) The appellant was in charge of the vehicle whilst the proportion of alcohol in his breath exceeded the prescribed limit.

iii) The lower of the two specimens of breath provided was 144 microgrammes of alcohol in 100 millilitres of breath.

iv) Albeit the appellant made claim that he had attempted to make arrangements for transport with a friend, there was no corroborative evidence of this before us and on the appellant's own admission he had not pursued other measures available, for example, calling a taxi.

v) Expert evidence revealed that based on an average rate of elimination of alcohol, the appellant would not have been below the prescribed alcohol limit until approximately 1140 am on 10 February 2001. Furthermore, the expert witness was of the opinion that the appellant's rate of elimination of alcohol was likely to be less speedy than the average in so far as the appellant had not consumed alcohol in the six months prior to this incident.

vi) The cold weather conditions prevailing at that time could well have increased the likelihood of his driving in the absence of an alternative mode of transport.”

It was not in dispute that the appellant was in charge of the vehicle or that he was well over the limit. The justices held that the appellant had not proved on a balance of probabilities that there was no likelihood of his driving whilst in excess of the prescribed alcohol limit.

The Questions

7. The justices posed these questions for the opinion of the court.

“1. Were we entitled to be satisfied that the statutory defence contained within section 5(2) of the Road Traffic Act 1988 did not prima facie interfere with the presumption of innocence contained within Article 6(2) of the European Convention on Human Rights?

2. If we had found that prima facie there had been an interference with the presumption of innocence, were we 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?

3. If we had concluded that section 5(2) did breach Article 6(2) of the European Convention on Human Rights, would the court be able to interpret the legislation in a way that is compatible with the presumption of innocence by placing only an evidential burden upon the appellant?”

The Justices' Conclusions

8. The justices held that the provisions of section 5(2) of the 1988 Act did not infringe article 6(2) of the Convention. They said that the presumption of innocence preserved by article 6(2) was not compromised because the prosecution had to prove that the appellant was in charge of the vehicle which did not involve any presumption that he was likely to drive it. They rejected the appellant's contention that the likelihood of driving was an essential element of the offence. They further held that, if they were wrong about that, section 5(1)(b) and section 5(2) pursued a legitimate aim, namely preserving public safety by seeking to prevent persons taking to the road whilst unfit to drive by reason of alcohol or drugs. Finally they held that the measures imposed by the statute were proportionate to the legitimate aim pursued.

The Issues

9. It is common ground that, if section 5(2) of the 1988 Act is construed without regard to section 3(1) of the HRA, it imposes a legal or persuasive burden on an accused charged with an offence under section 5(1)(b) to prove that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit. It is also common ground that a legal burden and a persuasive burden are the same and that, where such a burden is imposed on an accused, he must prove the relevant facts on the balance of probabilities. I shall refer to such a burden as a legal burden.

10. The parties were correct to agree that the burden is a legal burden because, as has been said in a number of cases, the expression ‘it is a defence … to prove’ certain facts is a classic legislative tool for imposing such a burden: see eg R v Lambert[2002] QB 1112 (CA), [2001] UKHL 37 [2002] 2 AC 545 (HL), per Lord Hope, Lord Clyde and Lord Hutton at paragraphs 76, 132 and 182 respectively and S v London Borough of Havering [2002] EWCA Crim 2558, 20 November 2002, per Rose LJ giving the judgment of the court which had been prepared by Davis J at paragraph 19.

11. Mr James Turner QC submits on behalf of the appellant that the imposition of a legal burden is contrary to article 6(2) of the Convention because it derogates from the presumption of innocence. He does not however submit that the court should grant a declaration of incompatibility under section 4(2) of the HRA. He submits that section 5(2) of the 1988 Act should be construed so as to be compatible with the Convention under section 3(1) of the HRA, which provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

12. He submits that section 5(2) can be construed as being compatible with the Convention by being what is known as ‘read down’ so as to provide that an evidential burden is placed upon the defendant such that, once that burden is discharged, the legal burden of negativing the defence is on the Crown. He further submits that it is for the Crown to show that it was necessary for a legal burden to be imposed on the defence and that they have failed to do so.

Discussion

13. Before considering the particular questions posed by the justices it is I think appropriate to say something about the principles applied by the courts where the Crown relies upon provisions which impose a legal burden on the accused. There have now been quite a number of cases which have considered such provisions in different contexts since the House of Lords considered the problem in R v DPP ex p Kebilene [2000] 2 AC 326 and Lambert.

The Presumption of Innocence

14. The question arises in each case whether there is a conflict between the presumption of innocence enshrined in article 6(2) of the Convention and the particular reverse onus provision which is under scrutiny. In paragraphs 32 to 34 of his...