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Senior Lecturer in Law, University of Sunderland
[email protected]

Copyright © Simon Cooper 2003
First published in Web Journal of Current Legal Issues
* I am grateful to the anonymous referee for comments on an earlier draft of this piece.

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This note examines the recent case of Sheldrake v DPP [2003] EWHC 273 (Admin) which decides that a defendant charged with an offence under the Road Traffic Act 1988, s 5(1) (b), i.e. being in charge of a motor vehicle in a public place after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit, should bear a legal burden of proof in relation to the defence provided for in s 5(2). Section 5(2) provides it is a defence 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 in excess of the prescribed limit. It highlights the difficulties faced by the courts when trying to assess whether placing a legal burden of proof on a defendant is compatible with the presumption of innocence in Article 6(2) of the European Convention, enshrined into English Law by the Human Rights Act 1998.

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Introduction
The Facts
The Decision on Appeal
The Issues

The European Jurisprudence
The English Jurisprudence

Application to the Present Case
Comment and Critique

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The law of evidence recognises more than one type of burden of proof. Where a defendant is obliged to prove an element of his defence (or disprove at least one element of the offence) this is most commonly referred to as a ‘legal burden’. If the defendant has such a burden and fails to persuade the jury (or magistrates) that his defence is more probably true than not, he will stand convicted. In other cases, the burden placed on the defendant is not quite as demanding. This lesser burden will be to present some evidence of the defence and the question of whether or not this evidence is fit to be considered by the jury is one for the trial judge. This is most commonly referred to as the defendant's ‘evidential burden’ and provided the judge (or magistrates) conclude that there is some fit evidence of the defence, it is then the duty of the prosecution to disprove the existence of that defence to the requisite standard of proof namely, beyond reasonable doubt.
Any student of the law of evidence soon becomes familiar with the dictum of Viscount Sankey LC in Woolmington v DPP [1935] AC 462, 461 where he said:

This famous statement of the nature of the legal burden of proof in criminal trials is, in effect, simply a restatement of a fundamental presumption that underpins our criminal justice system namely, that a person is presumed to be innocent until proven guilty. In McIntosh v Lord Advocate [2001] 3 WLR 107, Lord Bingham of Cornhill referred to the judgment of Sachs J in State v Coetzee [1997] 2 LRC 593 where the significance of this presumption was explained. The learned judge said:

Despite the presumption of innocence and the famous statement of Viscount Sankey, neither the courts nor the legislature have been slow to impose a legal burden of proof on a defendant in a criminal case. At common law, as Viscount Sankey himself recognised, if a defendant runs the defence of insanity then he will bear the legal burden of proof on that issue. In addition there are numerous statutes that expressly place the legal burden of proof on the defendant, together with other statutes which the courts have interpreted as placing the legal burden of proof on the defendant ‘by necessary implication’. In research conducted by Ashworth and Blake, it was found that no less than 40% of trials in the Crown Court required the defendant to prove either a statutory defence or disprove at least one element of the offence (Ashworth and Blake 1996). Failure to do so would result in conviction and it seems quite clear that in our constitutional democracy, significant inroads on the presumption of innocence have been made.

Whenever the common law or statute places a burden of proof on a defendant, whether expressly or by implication, consideration must now be given to the jurisprudence concerning the presumption of innocence that has arisen as a result of the European Convention on Human Rights (ECHR). Article 6(2) of ECHR states that ‘Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law’. Now that the Human Rights Act 1988 is in force, the court has power to make a declaration that provisions in legislation are incompatible with a right under the Convention. Unsurprisingly perhaps, the appellate courts have, on several recent occasions, been faced with arguments that placing a legal burden of proof on a defendant in a criminal case contravenes Article 6(2) of the Convention. The essence of the argument is not difficult to appreciate. If the defendant faces the possibility of conviction on the basis that the specified offence deems (or presumes) certain essential facts to exist unless the defendant can prove to the contrary, that derogates from the presumption of innocence and is contrary to Article 6(2). The same argument can be advanced if a statute requires that a defendant be convicted unless he can prove certain facts as part of his defence. It is the most recent decision in this area, Sheldrake v DPP [2003] EWHC 273, which forms the subject of this casenote.

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The appellant was charged with the offence of being in charge of a motor vehicle in a public place after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit, contrary to Road Traffic Act 1988 s 5(1) (b). In his defence, the appellant relied on s 5(2) which provides:

 

The magistrates found the following facts proved:

Allowing the appeal and quashing the conviction, the court held that:

In reaching its decision in Sheldrake, the court reviewed both the European and the English jurisprudence.

The leading case is Salabiaku v France (1988) 13 EHRR 379 and in several of the cases the courts have taken the following statement from Salabiaku as a starting point:

It follows then that the presumption of innocence is not absolute and that interference with it may be justified. The question then is when will such interference be justified? This can be a difficult question to answer. Indeed, in this particular case the court whilst showing unanimity on the issue that s 5(2) imposed a legal burden, was divided on whether or not the imposition of that burden was proportionate and justified.

The leading English case is R v Lambert [2001] 2 Cr App R 511, HL. Here, the court was considering the offence of possession of a controlled drug with intent to supply contrary to the Misuse of Drugs Act 1971. Section 28 of the 1971 Act provides that it is a defence for the accused to prove that he neither knew of nor suspected nor had any reason to suspect the existence of some fact alleged by the prosecution which it was necessary for the prosecution to prove. The House of Lords held that, applying ordinary principles of construction and without reference to the Human Rights Act, s 28 imposed a legal burden of proof on the accused to prove an absence of relevant knowledge, suspicion or reason to suspect. The House then considered whether placing a legal burden of proof on an accused derogated from Article 6(2) of the Convention. It was held that a statute may place a legal burden of proof on a defendant, despite Article 6(2), in pursuit of a legitimate aim so long as the nature of the burden is proportionate to the aim to be achieved.
Lord Steyn cited with approval a statement made by Dickson CJ in the Canadian Supreme Court decision of R v Whyte (1988) 51 DLR (4^th) 481 where it was said:

His Lordship observed that in order to determine whether legitimate aim and proportionality are satisfied it is necessary to take account of numerous factors, including the gravity of the conduct, the seriousness of the offence, the precise justification for placing the burden on the accused, and the degree of difficulty that the accused may have in discharging that burden.

Lord Hope of Craighead said that:

The House of Lords held that a legal burden imposed by Misuse of Drugs Act 1971 s 28 would be disproportionate and not justified. It would therefore follow that s 28 was incompatible with Article 6(2) and the presumption of innocence. However, in order to avoid this outcome, the House of Lords relied on Human Rights Act 1998 s 3(1) to ‘read down’ the words of s 28 and conclude that the section imposed only an evidential burden on the accused. The Human Rights Act s 3(1) provides that legislation must be read and given effect in a way which is compatible with the Convention if it is possible to do so. Lord Hope of Craighead said:

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Clarke LJ, having considered Lambert, concluded that the likelihood or otherwise of the accused driving, involving a consideration of the accused’s present or future intentions, provided an objective justification for placing some burden upon him. The likelihood of the accused driving is a matter which is particularly within the knowledge of the accused and difficult for the prosecution to deal with unless there is at least some burden placed upon the accused to put forward his case.

However, the more difficult issue is whether that burden is legal or evidential. It is in this regard that the court must strike a fair balance between the general interests of the community and the fundamental freedoms and rights of the individual. If imposition of a legal burden is a disproportionate response to the legitimate aim of the statute then, prima facie, the imposition of a legal burden on the accused will conflict with the presumption of innocence in Article 6(2).

Clarke LJ and Jack J (Henriques J dissenting) concluded that imposing a legal burden of proof upon the accused was a disproportionate response to the aim and objective of the statute. In reaching that conclusion the court recognised that the statute had, as its core aim, the protection of the public from the danger that intoxicated motorists in charge of vehicles might drive them on the roads, with all the consequent threats to life and property that raises. Such action involves moral fault and the offence is now recognised by the public as being ‘truly criminal’ in nature.

However, it was agreed that almost all criminal offences are intended to protect the public and merely because the likelihood of the accused driving is a matter particularly within the knowledge of the accused and may be difficult for the prosecution to deal with does not, of itself, provide sufficient justification for concluding that the imposition of a legal burden was justified and proportionate. Many offences require the prosecution to prove an element concerned with the accused’s intention and this offence raised no particular difficulties of proof sufficient to justify imposing a burden him. The majority concluded that the prosecution will be able to test an assertion by the accused that he did not intend to drive by relying on such other evidence as might be available and that the courts are well used to testing the state of mind of defendants.

The majority, in accordance with Lambert, then ‘read down’ the provision in s 5(2) to reach the conclusion that it imposed only an evidential burden on the accused, thereby avoiding any incompatibility with Article 6(2).

It therefore follows that if the accused raises some fit evidence that there was no likelihood of his driving whilst the proportion of alcohol in his breath exceeded the prescribed limit, it is for the prosecution to prove beyond reasonable doubt that the circumstances were not such that there was no such likelihood. Put positively, the prosecution must prove that there was a real risk of his driving whilst in the prescribed condition.

This is the latest in a series of cases that has had to decide whether a burden placed on an accused person is legal or evidential. At present, the law in this area is in a real state of flux and it seems that until the courts have ruled upon each area where this is an issue, absolute certainty will not be achieved. Given the multitude of statutes that cast a burden on an accused that could well be a long process.

The crucial question remains, that if a statute expressly or impliedly shows an intention to reverse the burden of proof, exactly when will a legal burden be compatible or incompatible with Article 6(2)?

If the offence is a serious one, carrying a high maximum penalty, then it might be possible to conclude that casting a legal burden is likely to be incompatible. This was one of the factors that clearly influenced the House of Lords in Lambert. Yet this would seem to be an unreliable and hazardous method of prediction. In Sliney v London Borough of Havering [2002] EWCA Crim 2558, the defendant was charged with an offence under the Trade Marks Act 1994, s 92(1)(c). Section 92(5) of the Act provides:

The defendant argued that this section, properly construed, imposed only an evidential burden on him. It was held that the section imposed a legal burden on the defendant justified, in particular, by the difficulty that enforcement authorities would face in proving the absence of a reasonable belief should the burden be on the prosecution. The fact that a convicted defendant faced the possibility of up to 10 years imprisonment did not persuade the court that the burden should be construed as being merely evidential.

It is rather alarming that a defendant may face the possibility of such a serious sentence without the need for the prosecution to prove the presence of intention or recklessness. The ‘golden thread’ of Viscount Sankey seems to be in real danger of snapping!

If, on the other hand, the offence is relatively minor, perhaps regulatory in nature protecting a particular public interest, imposing a legal burden on the accused might well be viewed as compatible. In Davis v Health and Safety Executive [2002] EWCA Crim 2949, the court concluded that the Health and Safety at Work Act 1974 s 40, properly placed a legal burden on the defendant of proving ‘that it was not reasonably practicable to do more than was in fact done’ in relation to a duty of care owed to employees. Here, the court described the legislation as regulatory in nature, not truly criminal, and the defendant was not liable to any form of imprisonment on conviction. Hence, a legal burden was not incompatible with Article 6(2).

In between, there are a myriad of offences raising different and varied issues that are surely going to pose difficult questions of proportionality on which different people can, perhaps quite reasonably, take different views reaching different conclusions. The case in question here did exactly that, with Henriques J concluding that issues of proportionality militated in favour of the accused carrying a legal burden of proof.

It is also clear from this case that even within the same statutory regime, differing burdens may be placed on an accused depending upon the offence allegedly committed and the defence raised. The Road Traffic Offenders Act 1988 s 15, applies to any proceedings for an offence under the Road Traffic Act 1988 ss 3A, 4 and 5. It follows that s 15 applies to the offence in the present case, i.e. being in charge of a motor vehicle in a public place 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).
Section 15(2) provides that, subject to subsection (3), it shall be assumed that the proportion of alcohol in the accused’s breath...is not less than in the specimen. Section 15(3) provides:

In R v Drummond, [2002] EWCA Crim 527, [2002] RTR 21, the Court of Appeal concluded that this section placed a legal burden of proof on the accused. Longmore LJ stated:

So we now have the confusing position that the same statutory regime with the same legitimate aims and objectives (i.e. the prevention of intoxicated driving), gives rise to differing burdens of proof depending upon which specific offence the accused may be charged with.

Surely the time has now come to give further thought to the recommendations of the Criminal Law Revision Committee where in paragraph 140 of its 11^th Report it was said:

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Ashworth and Blake (1996) ‘The Presumption of Innocence in English Criminal Law’ [1996] Crim LR 306.

Criminal Law Revision Committee (1972), Eleventh Report Evidence (General), (London: HMSO) Cmnd 4991.