QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE HENRIQUES
MR JUSTICE JACK
| PETER SHELDRAKE
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
Smith Bernal Wordwave Limited, 190 Fleet Street
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Jonathan Ashley-Norman for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Clarke:
"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."
"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.
"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
"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."
The Presumption of Innocence
"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt."
"We are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only."
The view of the committee has, however, until very recently been steadfastly ignored over the last 30 years and reverse burdens of proof which have been construed as legal burdens have proliferated rather than withered: see eg R v Hunt (Richard)  AC 352 per Lord Griffiths at p 376 A. Recently the position has changed as a result of cases like Kebilene and Lambert; see eg section 118(2) of the Terrorism Act 2000 referred to below.
"34 In McIntosh v Lord Advocate  3 WLR 107, Lord Bingham of Cornhill recently referred to the judgment of Sachs J of the South African Constitutional Court in State v Coetzee  2 LRC 593. It is worth setting out the eloquent explanation by Sachs J of the significance of the presumption of innocence in full, pp 677-678, para 220:
'There is a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book … Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption … The list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.'
The logic of this reasoning is inescapable. It is nevertheless right to say that in a constitutional democracy limited inroads on the presumption of innocence may be justified."
"Presumptions of fact or law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider (paragraph 64 of the report), paragraph 2 of article 6 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words 'according to law' were construed exclusively with reference [to] domestic law. Such a situation could not be reconciled with the object and purpose of article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law (see, inter alia, Sunday Times v United Kingdom (1979) 2 EHRR 245, para 55). Article 6(2) does not therefore regard presumptions of fact or law provided in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is a stake and maintain the rights of the defence."
"This test is dependent upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than necessary."
Similarly, in Kebilene Lord Hope said at p 384 G, after quoting that passage from Salabiaku, that as a matter of general principle a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual. He referred in that context to Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, paragraph 69. I shall return below to the question how that fair balance should be achieved.
Derogation from Article 6(2)
"Taking into account that section 28 deals directly with situation where the accused is denying moral blameworthiness and that the maximum penalty is life imprisonment, I conclude that the appellant's argument is to be preferred. It follows that section 28 derogates from the presumption of innocence".
It is not absolutely clear to me whether he expressed that conclusion by the application of ordinary common law principles of construction or having regard to the HRA and the Convention. However, in either event, he held that the same conclusion should be reached on broader grounds. He did so in a passage which has already become classic.
"I would, however, also reach this conclusion on broader grounds. The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance. I do not have in mind cases within the narrow exception "limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities": R v Edwards  QB 27, 40; R v Hunt (Richard)  AC 352; section 101 of the Magistrates' Courts Act 1980. There are other cases where the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption to transfer the legal burden to the accused, eg the hypothetical case of transferring the burden of disproving provocation to an accused. In R v Whyte (1988) 51 DLR (4th) 481 the Canadian Supreme Court rejected an argument that as a matter of principle a constitutional presumption of innocence only applies to elements of the offence and not excuses. Giving the judgment of the court Dickson CJC observed, at p 493:
"The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision of the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused."
I would adopt this reasoning. In the present case the defence under section 28 is one directly bearing on the moral blameworthiness of the accused. It is this factor alone which could justify a maximum sentence of life imprisonment. In my view there is an inroad on the presumption even if an issue under section 28 is in strict law regarded as a pure defence "
I have set that passage out in detail because it seems to me to point the way forward clearly in this class of case.
"Therefore a defendant can be "in charge" although neither driving nor attempting to drive. Clearly however the mischief aimed at is to prevent driving while unfit through drink. The offence of being "in charge" must therefore be intended to convict those who are not driving and have not yet done more than a preparatory act towards driving, but who in all the circumstances have already formed or may yet form the intention to drive the vehicle, and may try to drive it whilst still unfit."
"Such a reading would in my view be compatible with the convention rights since, even if this may create evidential difficulties for the prosecution as I accept, it ensures that the defendant does not have the legal onus of proving the matters referred to in section 28(2) which whether they are regarded as part of the offence or as a riposte to the offence prima facie established are of crucial importance. It is not enough that the defendant in seeking to establish the evidential burden should merely mouth the words of the section. The defendant must establish that the evidential burden is satisfied. It seems to me that given that that reading is "possible" courts must give effect to it in cases where Convention rights can be relied upon."
"This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute."
In Kebilene at p 386 C-D Lord Hope had adopted three questions suggested by Mr Pannick QC, who was counsel for the DPP, as a convenient way of breaking down the broad issue of balance into its essential components. The questions were: (1) what does the prosecution have to prove to transfer the onus to the defence? (2) what is the likely burden on the accused – does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his own knowledge or (which Lord Hope added) to which he readily has access? and (3) what is the nature of the threat faced by society which the provision is designed to combat? Those are indeed helpful questions, but it is clear from Lambert that Lord Hope's view is that the essential question is whether it is necessary to hold that the reverse onus provision must be treated as imposing a legal burden on the accused.
60. Furthermore, what we would glean from R v Lambert is that albeit it may be possible to justify imposing a legal or persuasive burden, the onus on those seeking to persuade the court that that is necessary in any case is a high one. Lord Steyn says that expressly and we believe that view to be consistent with all the other speeches including Lord Hutton's dissenting speech. Thus the proper approach has to be that if a reverse burden is to be imposed on an accused it must be justified and in particular it must be demonstrated why a legal or persuasive rather than an evidential burden is necessary."
The Court of Appeal applied that test of necessity to an offence of concealing of debts of a company in anticipation of a winding up contrary to section 206(1)(a) of the Insolvency Act 1986 and to the reverse onus provision in section 206(4). This provides that "it is a defence - (a) for a person charged under paragraph (a) or (f) of subsection (1) … to prove that he had no intent to defraud". Subsection (4) would have been construed as imposing a legal burden of proof but was read down so as to impose an evidential burden of proof because the test of necessity was not satisfied.
"The Terrorism Act 2000 contains several provisions which say that it shall be a defence for a person to prove something. For example section 57(2) provides that it shall be a defence for him to prove that his possession of an article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism. But section 118(2), which applies to a number of provisions of the Act including section 57(2) which say that it is a defence for a person to prove something, provides:
"If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not." "
"Thus it seems to us that the jury in the instant case should have been directed that the burden was on the prosecution to prove that each defendant was in possession of the package. There was then cast upon each defendant the burden of demonstrating from the evidence an arguable case that he neither believed, nor suspected, nor had reason to suspect that the package contained a controlled drug, the last sentence encapsulating the effect of the decision of the House in Lambert. If they had done so, as here they undoubtedly had, it was for the prosecution to disprove the appellants' case to the criminal standard. In effect that amounts to proof by the prosecution of knowledge, belief, suspicion or reason to suspect."
"In everyday usage one meaning of the word likely, perhaps its primary meaning, is probable, in the sense of more likely than not. This is not its only meaning. If I am going to walk on Kinder Scout and ask whether it is likely to rain, I am using likely in a different sense. I am inquiring whether there is a real risk of rain, a risk that ought not to be ignored. In which sense is likely being used in this subsection?"
"That assumption shall not be made if the accused proves -
(a) that he consumed alcohol before he provided the specimen and –
(i) in relation to an offence under section 3A, after the time of the alleged offence, and
(ii) otherwise, after he had ceased to drive or attempt to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and
(b) that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, would not have been such as to impair his ability to drive properly …"
"The present case is, in our view, different from both Lambert and Carass in material respects. First, the offence of driving while over the legal limit is not an offence which requires the court to ascertain the intent of the accused at all. Conviction follows after a scientific test which is intended to be exact as possible. Second, in most cases, such test is exact or, to the extent it is less than exact, the inexactness will work in favour of the accused. Thirdly, it is the accused himself who, by drinking after the event, defeats the aim of the legislature by doing something which makes the scientific test potentially unreliable. There is a distinct danger that in many (perhaps the majority) of cases the accused will have taken alcohol after the event for the precise purpose of defeating the scientific test. Fourthly, the relevant scientific evidence to set against the result ascertained from the specimen of breath or blood is all within the knowledge (or means of access) of the accused rather than the Crown. This evidence will include:
(1) the amount which the accused had to drink after the incident;
(2) what is called the "blood-breath" ratio, important for calculating the rate at which the body absorbs alcohol;
(3) the rate at which his body eliminates alcohol over time;
(4) the accused's body weight."
"A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy."
"The objective of regulatory legislation is to protect the public (such as employees, common consumers and motorists to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves the shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and social interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care."
i) It is to my mind wrong to regard the question whether there was a likelihood or otherwise of the accused driving as a defence, except in narrow common law terms. It is part of the essence or substance of the offence because the seriousness of the offence itself depends upon the risk of driving; it is driving while over the limit which threatens lives and property on the roads.
ii) Although the offence has some regulatory aspects, it is a truly criminal offence which is so treated by the public because of the risk of the accused driving while over the limit.
iii) In these circumstances one would expect the burden of proving an essential feature of the offence to be on the prosecution because otherwise an accused can be convicted even though the prosecution has failed to make the justices sure that that essential feature was present.
iv) The only feature of the case which points to the possible necessity that the legal burden of proof should be on the accused is the point made in paragraphs 33 and 60 above, and stressed by Henriques J, namely that the likelihood or otherwise of the accused driving will normally involve consideration of the accused's present or future intention to drive, which is a matter which is particularly within the knowledge of the accused and may be difficult for the prosecution to deal with.
v) I agree that that is a factor tending to point towards a legal burden but, in my view, once the accused has indicated that his evidence is or will be that he did not intend to drive, the prosecution will in the vast majority of the cases be able to test that against other circumstances and, depending upon the particular facts, by evidence. Courts are well used to testing the state of mind of defendants and often reject their evidence as unreliable.
vi) I am not persuaded that there will in practice be real difficulty in the prosecution knowing or the court deciding whether the accused has sufficiently raised the question whether there was no likelihood of his driving to satisfy the evidential burden of proof.
vii) Moreover, it is important to note that the test of 'likelihood to drive' is a low one; it means a real, as opposed to a fanciful, risk. It seems to me that it will be the rare case indeed in which the defence would fail on the balance of probabilities but in which the justices would acquit because they were not sure that there was a real risk of the accused driving.
viii) I am also not persuaded that any significant difficulties would arise from the fact that only the accused knows when he last had a drink or from the fact that the accused knows his body weight. The prosecution case involves proving the amount of alcohol in fact in the accused's body. I do not see that there is any difficulty (whatever the incidence of the burden of proof) in the court deciding when the accused would no longer be over the limit based upon the amount of alcohol in his body when tested and his size and weight.
ix) Finally, I do not think that it can be relevant to speculate as to what police forces might improperly do, if the burden were on the prosecution.
Section 3(1) of the HRA
"It is a defence for a person charged with an offence under subsection 5(1)(b) above to demonstrate from the evidence an arguable case 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."
i) I would answer the first question posed by the justices and set out in paragraph 7 above no and the first question posed in paragraph 25 above yes because the defence in section 5(2) of the 1988 Act does interfere with the presumption of innocence and makes an inroad on or derogates from article 6(2) of the Convention.
ii) I would answer the first part of the second question posed by the justices and the second question posed in paragraph 25 yes because a legitimate aim was being pursued by section 5(2) and, subject to iii) below, section 5(2) is justified.
iii) I would answer the second part of the second question posed by the justices and the third question posed in paragraph 25 no because section 5(2) is not proportionate if it imposes a legal burden, as it does unless read down under section 3(1) of the HRA.
iv) I would answer the third question posed by the justices and the fourth question posed in paragraph 25 yes because section 5(2) can and should be read down so as to impose an evidential burden on the accused.
v) The accused satisfies the evidential burden if he demonstrates from the evidence an arguable case that at the time he is alleged to have committed the offence there was no likelihood of his driving whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.
vi) If the accused satisfies the evidential burden, it is for the prosecution to prove beyond reasonable doubt that the circumstances were not such that there was no likelihood of his driving whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit. Put positively, that means that the prosecution must prove that there was a real risk, in the sense of a risk that ought not to be ignored, of his driving whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.
vii) It follows that I would allow the appeal and quash the conviction because the justices did not apply those tests to the facts which they found.
Mr Justice Henriques:
i) whether section 5(1)(b) of the Road Traffic Act 1988 read with section 5(2) makes an inroad on or derogates from article 6(2) of the Convention;
ii) if so, whether section 5(2) is justified;
iii) if so, whether section 5(2) is proportionate if it imposes a legal burden on the accused; and
iv) if not, whether it can and should be read down under section 3(1) of the Human Rights Act as imposing only an evidential burden on the accused.
"The principle of proportionality requires the House to consider whether there was a pressing necessity to impose a legal rather than evidential burden on an accused".
In Lambert the charge was possession of Class A drug with intent to supply and the statute required that once the prosecution proved the drugs to be in the possession of the defendant and that he knew the package contained something it was for the accused to prove on a balance of probabilities that he did not know that the package contained drugs. The statute obliged the Court to convict if the version of the accused was as likely to be true as not. The maximum sentence was life imprisonment and thus as Lord Steyn put it the burden of showing that only a reverse legal burden can overcome the difficulties of the prosecution in drugs cases was a heavy one.
i) The requirement is merely to prove something within the defendant's own knowledge.
ii) The offence carries a penalty significantly lower than the life imprisonment under the Misuse of Drugs Act (in fact 2 years imprisonment).
iii) An accused who carries a bladed instrument knows at the time he commits the act in question that his conduct amounts to a criminal offence unless he can bring himself within the exemption specified within the section. In a prosecution under the Misuse of Drugs Act the accused may not know that he is carrying drugs at all.
Each of these considerations applies in the instant case.
"First the offence of driving while over the legal limit is not an offence which requires the Court to ascertain the intent of the accused at all. Conviction follows a scientific test, which is intended to be as exact as possible. Second in most cases such a test is exact, or to the extent it is less than exact, the inexactness will work in favour of the accused. Thirdly, it is the accused himself who, by drinking after the event, defeats the aim of the legislature by doing something, which makes the scientific test potentially unreliable. There is a distinct danger that in many (perhaps the majority of cases) the accused will have taken alcohol after the event for the precise purpose of defeating the scientific test. Fourthly the relevant scientific evidence to set against the result ascertained from the specimen of breath or blood is all within the knowledge (or means of access) of the accused rather than the Crown."
i) There was a very important policy consideration namely protecting consumers from activities of counterfeiters.
ii) The subject matter of the defence was peculiarly within the knowledge of the accused.
iii) The requirement that the prosecution must prove a trader's absence of belief on reasonable grounds that goods were genuine would result in a regime, which was neither workable nor effective.
iv) An offence under section 92 involved serious dishonesty but limited moral obloquy.
v) The important elements of the offence have to be proved by the prosecution beyond reasonable doubt.
vi) The maximum sentence of 10 years was to be contrasted with the life sentence in Lambert.
vii) If the burden upon the defence was merely evidential enormous if not insuperable problems would confront trading standards officers. An assertion in interview would result in the Crown having to prove beyond reasonable doubt the negative of an absence of belief and the more elusive negative of an absence of reasonable grounds for such belief.
i) There is an important policy consideration namely the protection of the public from those who drink to excess and take charge of their motor vehicles.
ii) The likelihood of driving is peculiarly within the knowledge of the accused and outside the knowledge of the prosecution.
iii) A regime requiring the prosecution to prove that there was a likelihood of driving would be neither workable nor effective.
iv) The offence if unrestrained may have grave consequences.
v) The important elements (being in charge and excess alcohol) have to be proved by the prosecution beyond reasonable doubt.
vi) The maximum sentence of 3 months imprisonment and discretionary disqualification is to be contrasted with the life sentence in Lambert.
vii) Insuperable difficulties could confront the police in the event of an evidential burden.
i) The act is regulatory and the need for regulation was demonstrated by statistics.
ii) The reversal of burden of proof takes into account the fact that duty holders are persons who have chosen to engage in work or commercial activity and are in charge of it. The regulatory regime imposes a continuing duty to ensure a state of affairs, a safety standard.
iii) If all the defendant had to do was raise the defence to require the prosecution to disprove it, the focus of the statutory scheme would be changed. The prosecution might face considerable difficulties in assuming this burden of proof where the only relevant expertise was with the defendant.
iv) The defendant in cases where the reverse burden applies does not face imprisonment.
Again each one of these considerations slightly modified persuades me that the reverse legal burden under consideration is justifiable and proportionate.
"With an evidential burden it will be for the defendant to produce some evidence that any concealment established against him was not with the intention to defraud. Common sense dictates that if concealment is proved the evidential burden will be quite a difficult burden for the defendant to surmount. If however he were to surmount it, then it would be less than satisfactory if he could still be convicted if the jury were not sure that he had intended to defraud"
"why should it be unreasonable to require a person, who has deliberately concealed a debt in circumstances where he knows he was obliged to disclose it, to prove that he did not intend to defraud or to conceal the state of his affairs. Such a burden does not seem to us to contravene Article 6(2)."
i) What does the prosecution have to prove?
a) The defendant was in charge of a vehicle on a road or public place.
b) At the time his blood/alcohol level content exceeded the prescribed limit.
Accepting as I do that some likelihood of driving is an element of the offence, the accused has nevertheless by his own conduct committed the act in question knowing that his conduct amounts to a criminal offence unless he can bring himself within section 5(2). Having drunk too much he has taken charge of a vehicle. He cannot have been duped. I feel no anxiety concerning wrongful convictions. The occasions on which a person is drunk and in charge of a vehicle with no likelihood of his driving will be rare and will be susceptible of an acquittal notwithstanding the reverse burden. It is the many persons drunk in charge who I apprehend will evade conviction if there is an evidential burden only upon the defence, which causes me to part company with the two other members of the Court.
ii) What is the likely burden on the accused?
Does it relate to something, which it is likely to be difficult for him to prove, or does it relate to something, which is likely to be within his own knowledge?
Section 5(2) creates no difficulty for the defendant with its reverse legal burden. He knows when he had his last drink, when he was intending next to drive and what his weight is. He can ascertain his blood breath ratio in order to calculate the rate at which his body absorbs alcohol and the rate at which his body eliminates alcohol over time.
iii) What is the nature of the threat faced by society, which the provision is designed to combat?
The threat posed to society by those who both drink and drive has occupied Parliament's attention almost continuously in the post war years. The effective prosecution of those who drink and drive is a matter of public interest. As Lord Steyn said in Brown v Stott  2 All ER 97 at p 120:
"It is a notorious fact that vehicles are potentially instruments of death and injury. The statistics placed before the Board show a high rate of fatal and other serious accidents involving vehicles in Great Britain".
"All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime which does not apply to members of the public who do neither. Section 172 of the 1988 Act forms part of that regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the state but because the possession and use of cars (like for example shotguns, the possession of which is very regulated) are recognised to have the potential to cause grave injury."
"We have come to the conclusion that the legislative interference with the presumption of innocence in section 15 of the Road Traffic Offenders Act 1988 amounts to an imposition of a persuasive burden on the defendant and that such interference is not only justified but is also no greater than necessary. It hardly needs to be said that driving while over the limit and causing death by dangerous driving in such circumstances are both social evils which Parliament sought to minimise by this legislation."
Drummond was concerned with the hip flask defence but as Longmore LJ pointed out the nature of the burden on the defendant could not be different for a section 3A offence (causing death whilst driving with excess alcohol) from what it is for a section 5 offence (driving with excess alcohol).
"It is a defence for a person charged with an offence under subsection 5 (1) (b) above to demonstrate from the evidence an arguable case 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."
"If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not."
"Within the majority some worrying views are expressed as to how this outcome might be avoided e.g. by regarding the exculpatory part of a mixed statement, which is technically evidence of the truth of its contents, as insufficient to satisfy the evidential burden."
1. No. You were not entitled to be satisfied that the statutory defence contained in 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. Yes. If you had found that prima facie there had been an interference with the presumption of innocence you 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.
3. Yes. If you had concluded that Section 5(2) did breach Article 6(2) the convention, the Court could have interpreted the legislation in a way that was compatible with the presumption of innocence by placing only an evidential burden upon the appellant. Having answered 2 in the affirmative I am not in favour of this method of interpretation.
Mr Justice Jack:
The Nature Of The Offence
"118(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not."
"Of course, once the defence is raised of reasonable excuse, it is for the prosecution in every case to negative it, and really the question one asks oneself in the present case is this: had the prosecution on the evidence negatived the possibility of reasonable excuse?"
LORD JUSTICE CLARKE: For the reasons given in the judgment which have been handed down, by a majority we answer the first question posed by the Justices "Yes" because the defence in section 5(2) of the 1988 Act does interfere with the presumption of innocence and makes an inroad on or derogates from Article 6(2) of the European Convention on Human Rights. We answer the first part of the second question posed by the Justices "Yes" because a legitimate aim was being pursued by section 5(2) and, subject to what we say below, section 5(2) is justified. We answer the second part of the second question posed by the Justices "No" because section 5(2) is not proportionate if it imposes a legal burden, as it does, unless read down under 3(1) of the Human Rights Act. We answer the third question posed by the Justices "Yes" because section 5(2) should be read down so as to impose an evidential burden on the accused. We set out in the judgment the principles which govern how the evidential burden is satisfied under the statute.
I would thank counsel for the various corrections they made to the drafts. I find it is always impossible to have a draft, however short or long, without a whole series of errors so we are much obliged. We have received a draft certificate and, subject to any argument, our preliminary view is that if, Mr Ashley-Norman, you apply for a certificate we would be willing to certify the point in the form in which it is subject to any specific point.
MR TURNER: On the question I do not seek to persuade your Lordships than that it is perfectly proper to grant a certificate, although I have made some minor revisions to the question my learned friend has proposed. It is a grammatical effect. May I hand up my revised version. It is the same point.
LORD JUSTICE CLARKE: It seemed to us it pretty well encapsulates--
MR TURNER: It comes from your Lordship's paragraph 2. That is where we have lifted it from. It just seemed to me that the point as drafted one could have simply answered, on a strictly grammatical basis, "Yes" without saying more.
LORD JUSTICE CLARKE: Perhaps it ought to be clearer but I think it is essentially the same.
MR ASHLEY-NORMAN: I am content to defer to my learned friend on those matters.
LORD JUSTICE CLARKE: We certify Mr Turner's points.
MR ASHLEY-NORMAN: Your Lordship having pointed out one typographical error, might I be forgiven that I have identified two further errors in the final version.
LORD JUSTICE CLARKE: Where are they?
MR ASHLEY-NORMAN: The first is in the first paragraph. The suspension of the Community Punishment Order was on 1 March 2002, not 2001. The second is at paragraph 125 in the second sentence where the court is considering the difficulties that a prosecutor might face. It appears to me that that second sentence ought to be a question and the "he" and the "has" after the second comma should be the other way round.
LORD JUSTICE CLARKE: It should be "has he raised the defence?".
MR ASHLEY-NORMAN: Yes, my Lord.
LORD JUSTICE CLARKE: There are two alterations, one in paragraph 1 -- 1 March 2001 should be 1 March 2002, and the second be in paragraph 125, the second sentence should read, "If an accused states to the police that he has ... has he raised the defence?"
MR ASHLEY-NORMAN: Thank you. I do not know whether, having certified the point, my Lord would consider my application for leave at this stage or whether you would rather let it take its usual course.
LORD JUSTICE CLARKE: We will certainly consider your application. I think you need to apply to us for leave first and if we refuse you can apply to their Lordships.
MR ASHLEY-NORMAN: I do not need to open the facts and the public importance of it. In my submission they merit the grant of leave in this case.
LORD JUSTICE CLARKE: We have considered before you came as to what our approach should be to that. The position is that we recognise that the case has given rise to some judicial disagreement, both between us and the two members of the court who considered the matter before. We also recognise that in these circumstances the House of Lords may well wish to entertain an appeal, but we think that is a matter for their Lordships whether they wish to entertain an appeal. Is there any further order?
MR TURNER: The question I raised in my comments, the question of costs. There are, I am instructed, some, although relatively minor, costs that the appellant has had to pay in person both in the Magistrates' Court before he got legal aid and in relation to the appeal before public funding was granted. My application would be for a defendant's costs order out of central funds under section 16(5)(a) of the Prosecution of Offences Act 1985 in respect of any such periods as the appellant has not been legally aided both here and below.
LORD JUSTICE CLARKE: You surely have nothing to say about that Mr Ashley-Norman?
MR ASHLEY-NORMAN: My Lord, no.
LORD JUSTICE CLARKE: We will make a defendant's costs order out of central funds in respect of any period during which the defendant has not been publicly funded both here and below. Thank you. It has been a most interesting case. We shall wait to see what their Lordships have to say about it.
(The Court reconvened)
LORD JUSTICE CLARKE: Although we recently agreed to an amendment to paragraph 125 of the judgment, on considering it further, we are going to leave paragraph 125 as it was so the second sentence will read, "If an accused states to the police that he has called a taxi from a firm which he named, he has raised the defence". If we could leave it as it was before.