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		[2006] 4 Web JCLI

Sheldrake Regulatory Offences and Reverse Legal Burdens of Proof

Richard Glover LLB, MSc, Solicitor

Senior Lecturer in Law, School of Legal Studies, University of Wolverhampton

R.Glover@wlv.ac.uk

Copyright © Richard Glover 2006. First Published in Web Journal of Current Legal Issues.

This article is based on a paper delivered to the Socio-Legal Studies Conference at the University of Liverpool in March 2005.

Summary

This article examines the reverse legal burden of proof upheld by the House of Lords in Sheldrake v The Director of Public Prosecutions [2004] UKHL 43 in relation to the offence ‘being drunk in charge’ of a motor vehicle, contrary to the Road Traffic Act 1988 s.5(1)(b), and the defence under s5(2). It considers two main arguments that arose from Sheldrake. First, that the section 5(2) defence that there was no likelihood of the defendant driving while over the limit forms part of the gravamen of the section 5(1)(b) offence and that, accordingly, a reverse legal burden amounts to a breach of the presumption of innocence. It is argued that this analysis, approved by the Divisional Court but largely overlooked by the House of Lords, is per Lord Bingham “too simple and only partially correct”. Secondly, it will be considered whether some offences, such as ‘being drunk in charge’, may be classified as regulatory on the basis that the offence was concerned with a lawful activity that the defendant voluntarily engaged in that presented a serious risk or danger to public health and safety. It is argued that in this context a reverse legal burden may normally be presumed.

Contents

Introduction
Is the section 5(2) defence part of the gravamen of the section 5(1)(b) offence?

The gravamen of an offence
The Divisional Court in Sheldrake

The House of Lords in Sheldrake - “too simple and only partly correct”

Parliament’s intention
A contextual approach: Sheldrake and Attorney-General’s Reference (No 4 of 2002)

The regulatory offence ‘being drunk in charge’

The presumption of innocence and the nature of the offence
Regulatory and ‘truly criminal’ offences
Regulatory offences and reverse legal burdens: the ‘licensing approach’
Regulatory offences: the conventional approach
The ‘licensing’ approach, legal burdens and Sheldrake

Conclusion

Bibliography

Introduction

The facts in Sheldrake were not complex. The defendant was convicted in the magistrates’ court of “being found 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”, contrary to the Road Traffic Act 1988 s5(1)(b) (hereafter ‘being drunk in charge’). The Act provides a defence under section 5(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”.

The defendant appealed successfully to the Divisional Court on the ground that the legal burden imposed on him by this defence interfered with the presumption of innocence guaranteed under article 6(2) of the European Convention on Human Rights and Fundamental Freedoms. (‘Legal burden’, for these purposes, may be defined as the legal obligation to prove (or disprove) a fact in issue and, ultimately, to prove a case to a certain standard. This will be “beyond reasonable doubt”, if the onus lies on the prosecution, or “on the balance of probabilities”, if the onus lies on the defence, Denning J, Miller v Minister of Pensions [1947] 2 All ER 372, 373-4. “Legal burden” was Lord Denning’s preferred term (Denning 1945) but alternative renderings of legal burden include the “probative” burden (DPP v Morgan [1976] AC 182) and the “persuasive” burden (Williams 1961).) However, the House of Lords allowed the Director of Public Prosecution’s appeal (which was heard together with Attorney-General’s Reference No 4 of 2002) and upheld the reverse legal burden on the basis that either it did not interfere with the presumption of innocence or, if it did, it was a proportionate response to the threat to society posed by the damage, deaths and injuries caused by unfit drivers.

It is submitted that while the decision in the Lords was welcome there were, with respect, two important deficiencies in the judgment. First, their Lordships did not engage sufficiently with the strong arguments made in the Divisional Court and elsewhere regarding the gravamen of the offence. It is contended that these arguments are not as compelling as has been suggested in the case law and academic journals and, in particular, that the section 5(2) defence does not form part of the gravamen of ‘being drunk in charge’. Consequently there was no breach of the presumption of innocence in Sheldrake.

Secondly, and perhaps more importantly, when Lord Bingham assumed a violation of the presumption of innocence and examined wider justifications for the reverse legal burden he did not consider the nature of the offence or an alternative approach to reverse burdens discernible from earlier decisions such as Johnstone [2003] UKHL 28; [2003] 1 WLR 1736 and Davies v Health and Safety Executive [2002] EWCA Crim 2949.  According to this approach a reverse legal burden may be justified for some regulatory offences on the basis that the defendant voluntarily engaged in a lawful activity that presented a serious risk or danger to public health and safety.

It is submitted that this approach may be taken a step further. An offence may be classified as regulatory on the basis of this justification for differential treatment of crimes and regulatory offences and the courts may normally presume that a reverse legal burden will be justified. That is, if a person voluntarily engages in a lawful activity that presents a serious risk or danger to public health and safety, an offence concerned with that activity may be described as regulatory. The defendant can be taken to have accepted a reverse legal burden as a condition of being ‘licensed’ to engage in the activity.

This classification is not made in order to diminish the seriousness of the offence. Rather, it is contended that the conventional approach to distinguishing between regulatory and ‘truly criminal’ offences, principally on the basis of moral stigma or blame, is inadequate. Further, the ‘licensing’ approach, either on its own or when combined with other considerations such as a defendant’s ‘peculiar knowledge’, provides much clearer guidance to the courts as to the allocation of the legal burden than has been available in recent judgments from the appellate courts. It is submitted that it is particularly appropriate for road traffic offences such as ‘being drunk in charge’, which concern conduct that is quite literally licensed.  

Is the section 5(2) defence part of the gravamen of the section 5(1)(b) offence?

The gravamen of an offence 

The wording of the section 5(2) defence - “It is a defence for a person…to prove…” suggests that it is an express statutory exception to the “golden thread” rule in Woolmington v DPP [1935] AC 462 that the legal burden of proof is usually on the prosecution. Indeed, this wording was described by Clarke LJ in the Divisional Court as “a classic legislative tool for imposing such a burden” [2003] EWHC 273 (Admin), para 10. However, it is also apparent from recent case law concerning legal burdens that a literal approach to legislation, which ignores human rights considerations and analysis of the so-called gravamen or essence of an offence, is likely to be regarded as inadequate. For example, the House of Lords in their landmark judgment in Lambert [2001] UKHL 37; [2002] 2 AC 545, HL construed the Misuse of Drugs Act 1971 s.28(2), which similarly commences with: “it shall be a defence for the accused to prove…” as only imposing an evidential burden on the defendant on the basis of such an analysis. As the House of Lords was principally concerned with the retrospective application of the Human Rights Act 1998 their Lordships’ comments on reverse burdens were strictly obiter. However, their views have been followed and considered in numerous other cases since and are of undoubted authority (Lord Bingham Sheldrake [2004] UKHL 43, para 30).

This analysis of the gravamen has been developed over a number of years, most recently by Glanville Williams (Williams 1982 and 1988. Others include: Stone, J 1944; Jeffries and Stephan1979; Robinson 1982; Zuckerman, A 1976, pp 414-5; more recently this view was endorsed by Roberts and Zuckerman 2004, pp 376-7). It is argued that an offence may be interpreted as including, as an essential element, a provision that was drafted as part of a defence. Williams argued that the distinction between offences and exceptions (or defences) lacks logic and is often “purely verbal, a matter of convenience in expression” (Williams 1982, p 234), illustrating his argument by reference to a colourful example drawn from Stone:

 “…the proposition ‘All animals have four legs except gorillas’ and the proposition ‘All animals which are not gorillas have four legs’ are, so far as their meanings are concerned, identical” (Stone 1944, p 280; Williams 1988, p 277).

Lord Steyn put it more prosaically in Lambert [2001] UKHL 37, para 35:

“…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…”

Lord Steyn also quoted, approvingly, Dickson CJC in Whyte (1988) 51 DLR. (4th) 481, 493 to the same effect. It is a view that has been endorsed in Canada and also elsewhere in the common law world: for example, in South Africa: Coetzee 1997 3 SA 527, CC and Zuma 1995 1 SACR 568, CC. The concern is that the presumption of innocence will be infringed if the gravamen of an offence includes a defence provision, for which the defendant has the legal burden. As Dickson CJC stated in the Canadian Supreme Court in Whyte (1988) 1 DLR (4th) 481, 493; 2 SCR 3, para 18:

“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”.

The Divisional Court in Sheldrake

The Divisional Court, drawing on Lambert, was persuaded by the gravamen analysis. The Court held that the section 5(2) defence was part of the gravamen of the section 5(1)(b) offence. That is:  ‘It is an offence for a person to be drunk in charge of a motor vehicle if there is a likelihood that person will drive while over the prescribed limit for alcohol’ ([2003] EWHC 273 (Admin), para 30 (Admin)). Accordingly, it was held that if the defendant failed to prove the section 5(2) defence, on the balance of probabilities, he would be convicted even though a court would not be sure of an element of the offence, contrary to the presumption of innocence and the ‘golden thread’ principle in Woolmington (para 64). However, as is well known, the Woolmington principle is not absolute, being subject to qualification at common law by M’Naghten’s Case (1843) 10 Cl & Fin 200 and by statutory exception, both express and implied, Edwards [1975] QB 27 and Hunt [1987] AC 352. Further, it is also apparent from Strasbourg case law, notably Salabiaku v France (1988) 13 EHRR 379 that “limited inroads on the presumption of innocence may be justified” where a legitimate aim is being pursued and the interference is both necessary and proportionate to the problem concerned (Clarke LJ, Sheldrake [2003] EWHC 273 (Admin), para 18).

The Divisional Court held that a legitimate aim was being pursued by the legislation, namely to preserve public safety by seeking to tackle the problem of ‘drink driving’, but that the reverse legal burden was not necessary to accomplish that aim. It followed that the interference with the presumption of innocence was not a proportionate response to the problem (para 83) and accordingly the Divisional Court ‘read down’ the ‘defence’ under the Human Rights Act 1998 s.3(1), “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”, as only imposing an evidential burden on the defendant. The less demanding ‘evidential burden’ may be defined as the burden of adducing evidence, or the obligation to show that there is sufficient evidence to satisfy a judge in a trial on indictment that an issue can be left to a jury to decide. However, it should be noted that the description of the evidential burden as part of the burden of proof is widely regarded as confusing: a party that has an evidential burden does not have to actually prove anything, as Lord Jauncey stated in Jayasena v R [1970] 1 All ER 219, 221-2.  

The House of Lords in Sheldrake - “too simple and only partly correct”

The House of Lords unanimously allowed the Director of Public Prosecution’s appeal and declined to read down an evidential burden. Their Lordships upheld the section 5(2) defence as an express statutory exception to Woolmington and held that the reverse legal burden did not go beyond what was necessary ([2004] UKHL 43, para 41). Lord Bingham was fairly clear (“the likelihood of driving is not an ingredient of the section 5(1)(b) offence…”(para 49)) that the defence was not part of the gravamen of the offence and, consequently, no question of interference with the presumption of innocence could arise. However, disappointingly, their Lordships neglected to consider the gravamen at any length. This was despite the fact that analysis of the gravamen was clearly central to the Divisional Court’s decision, as it had been to their Lordships’ landmark judgment in Lambert. 

Appellant counsel quoted Taylor LJ in DPP v Watkins [1989] QB 821 in support of the view that “likelihood of driving” is part of the gravamen of the offence. Taylor LJ said at 829B-C: “…a defendant can be ‘in charge’ although neither driving not 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”. The Divisional Court had earlier relied on this comment, Sheldrake [2003] EWHC 273 (Admin), para 29.The nearest their Lordships came to an active analysis of the gravamen was Lord Bingham’s telling comment that appellant counsel’s argument regarding the gravamen was “too simple and only partly correct” ([2004] UKHL 43, para 40). This, it is suggested, implied that the gravamen argument was not as compelling as it first appeared and that it also overlooked the historical background to the particular provision. Lord Bingham noted that the reason for the offence (“the mischief aimed at”) was to prevent people driving when unfit through drink but also commented:

“But the ingredients of the offence make no reference to doing a preparatory act towards driving or forming an intention to drive. The 1872 and 1930 Acts criminalised the conduct of those who were in charge of carriages and cars respectively when drunk or unfit, but made no reference to the likelihood of driving” ([2004] UKHL 43, para 40).

Lord Bingham’s comments about simplicity also echo Campbell’s contention that the distinction between offence and defence is not as simple as Williams and others have suggested and is certainly more than a mere matter of words (Campbell 1987, p 73). Campbell argued that an offence relates to behaviour “against which the law takes there to be a prima facie reason”, while a defence relates to “exonerating conditions”. Here, Campbell does not use “prima facie” in its conventional legal sense but “in the sense in which it is used by most philosophers of practical reasoning, namely to indicate a reason which is not necessarily a conclusive one” (Campbell 1987, p 79).Contrary to Williams’s view, it is important whether the defence appears as an exception to or as part of the offence in order to understand the nature and purpose of the legislation. Campbell illustrated this by reference to an example from Williams (Williams 1982, p 254): some people may believe that abortion should be prohibited but allow for a specific defence for medical abortions on certain grounds. Other people may not believe that abortion should be prohibited, in general, but only where it is not performed by a doctor on medical grounds. This is not, despite William’s contention to the contrary, simply a verbal distinction but “a disagreement about which types of argument validly support the view that abortion is sometimes permissible” (Campbell 1987, p 81). That is, it is a fundamental disagreement about when abortion is permissible.

If we apply this analysis to the Road Traffic Act 1988 s5(1)(b) it is plain that there is also more than just a verbal distinction between the two rival interpretations of the offence that may be identified. One version – ‘being drunk in charge’ (with a defence that there was no likelihood of driving while over the limit prescribed for alcohol) is derived from the view that ‘being drunk in charge’ is sufficiently blameworthy conduct on its own. Proof that there was no likelihood of the defendant driving while over the limit is sufficient excuse. As Lord Carswell commented:

“Being in charge of a vehicle while over the limit is in itself such an anti-social act that Parliament has long since made it an offence. A person who has drunk more than the limit should take steps to put it out of his power to drive. Section 5(2) gives him an escape route, which it is quite easy for him to take in a genuine case, as he is the person best placed to know and establish whether he was likely to drive the vehicle” ([2004] UKHL 43, para 84).

The second version of the offence, derived from an analysis of the gravamen – ‘being drunk in charge when there is a likelihood of driving while over the limit prescribed for alcohol’ - originates from an argument that ‘being drunk in charge’ is only blameworthy where there is a likelihood of the defendant driving while over the limit, which is said to constitute the essence of the offence. If there is no likelihood of driving the conduct is not blameworthy.

This is more than just a verbal distinction but one based on a genuine disagreement about the nature of the offence. Arguably, the first argument treats the offence more seriously than the second as it seeks to regulate the preparatory conduct before a person drives while unfit and make it an offence. This reflects, perhaps, contrasting approaches to road safety identified by O’Connell (O’Connell 1998). One approach took road safety seriously and sought legislative restrictions, while the other argued that ‘The Highway Code’ would have the best results. O’Connell quotes the Minister of Transport, Herbert Morrison, from the News Chronicle, 17 July 1931, as describing the principles behind the latter as: “…it goes upon the basis that this is what the decent drivers will do, and that it is just as ungentlemanly to be discourteous or to play the fool on the King’s highway as it would be for a man to push his wife off her chair at the Sunday tea table and grab two pieces of cake” (O’Connell 1998, p129).

It is this disagreement which is at the heart of the issue. As Campbell noted:

“The reason why it is often difficult to know whether, in creating or interpreting the law, we should assign something to the offence or defence side is not because the offence/defence distinction is itself opaque but because, frequently, the underlying value judgments are” (Campbell 1987, p84).

Parliament’s intention

Whether Parliament actually intended the distinction between an offence and an exception (or a defence) in a piece of legislation may often be a moot point, as Zuckerman has commented: “The legislature does not seem to adopt any consistent terms to mark the exceptions referred to in the rule and there is no uniformity of drafting” (Zuckerman 1976, pp 413-4. See also Williams 1982 and Ashworth 2004, p 247). Nevertheless, it is contended that there may be a genuine distinction and to suggest otherwise is, as Campbell commented, “a misguided over-simplification” which “fails to do justice to the subtlety of our ordinary thinking” (Campbell 1987, p 82).

In Sheldrake their Lordships were persuaded that Parliament intended the distinction and that it had not been arbitrarily constructed by parliamentary draftsmen.

That Parliament intended the distinction between offence and defence in section 5 is apparent from Lord Bingham’s historical projection of the offence, which demonstrated that the defence did not appear until 1956, some eighty-four years after the genesis of the offence:

Intoxicating Liquor (Licensing) Act 1872 s12 – ‘being drunk in charge of a carriage, horse, cattle or steam engine’ (no defence as to likelihood of driving).

Road Traffic Act 1930 s15(1) – ‘being drunk in charge of a motor vehicle’ (no defence as to likelihood of driving).

Road Traffic Act 1956 s9(1) (s9(1)(b) – the new ‘defence’. which was re-enacted in subsequent road traffic acts: Road Traffic Act 1960; Road Safety Act 1967; Road Traffic Act 1972 and Road Traffic Act 1988) ([2004] UKHL 43, para 38). (NB it was the 1956 Act which introduced the defence and not the 1930 Act, as stated by Ashworth 2005, p 218).

Accordingly, although the defence appeared to be closely linked with the mens rea of the offence and moral blameworthiness it was clear to the Lords that on this occasion Parliament intended the distinction. It is suggested that this meets Ashworth’s criticism in relation to Johnstone (Ashworth 2004, p 247), which might be applied equally to Sheldrake, that the deference shown by the Lords was misplaced because there is little evidence of Parliament considering the impact of a reverse legal burden on the presumption of innocence before the Human Rights Act 1998. It is also worth noting that Julius Stone, the apparent pioneer of the analysis of the gravamen of an offence, agreed that a distinction could be maintained if it was embodied in “an authoritative form of words”, which are, it is submitted, present here (Stone 1944, p 282).

There had been considerable public disquiet about the predecessor offence to section 5(1)(b), as is clear from the debates in Parliament during the passage of the Road Traffic Act 1956 and contemporary press reports. The leading article in The Times for the 30 May 1955 suggested that a defence against ‘being drunk in charge’ would be equitable and CD Rolph in The New Statesman and Nation listed a number of recent controversial ‘drunk in charge’ decisions (1955, p 877). Parliament appears to have been anxious to remedy a perceived injustice but was also not overly sympathetic to the person found ‘drunk in charge’, as is evident from the debate in the House of Lords:

“I join with the noble Lord, Lord Brabazon of Tara, and the noble Earl, Lord Howe, in thinking that people convicted of being under the influence of drink while in charge of, or while they are driving, a motor car, or intend to do so, are not the objects of any great sympathy…if I had my way I would never allow anybody convicted of such an offence to drive a car again” (Lord Lucas 1955, cols 1006-1007).

It is apparent from the records in Hansard (implicitly if not expressly) that the Government was content for a legal onus to be on the defendant when it drafted the Road Traffic Act 1956. An amendment to the Bill was suggested in the Lords “which puts upon the accused the onus of showing that he had no intention of driving or attempting to drive a motor vehicle” (Lord Brabazon 1955, col 582). Lord Mancroft, for the Government, although critical of the amendment stated: “…the Government want to do exactly what he wants to do. We have, therefore, to try to find some means of getting over this technical difficulty” (Lord Mancroft 1955, col 586). It is submitted that this tends to suggest that the Government intended a reverse legal burden.

The reverse legal burden was certainly in-keeping with the tenor of the 1956 Act to “keep death off the road” (Lord Mancroft 1954, col 637) by increased regulation of road transport, particularly in the light of a sharp increase in reported road casualties in 1954 - there was an 18 per cent increase (Lord Mancroft 1954, col 637). The Times lead article for the 4 July 1955 (at 9d) stressed the Bill’s importance for Parliament: “They have the casualty lists – 5,000 or more killed on the roads every year, 10 times as many killed and more than 30 times as many slightly hurt”. This was “a national scandal”. The Earl of Selkirk, who introduced the Bill in the Lords, remarked that “we require a higher standard of discipline on the roads” (The Earl of Selkirk 1954, col 567) and Lord Mancroft commented specifically in relation to ‘being drunk in charge’ that “…we should be quite right if we erred on the side of strictness” (Lord Mancroft 1955, col 586).

Notwithstanding this historical background it was, of course, open to their Lordships in Sheldrake to interpret section 5(2) as only imposing an evidential burden on the defendant. Lord Bingham referred to the courts’ interpretative obligation under the Human Rights Act 1998 s3 as “a very strong and far-reaching one, and may require the court to depart from the legislative intention of Parliament” ([2004] UKHL 43, para 28). However, he must also have had in mind further dicta from the recent judgment in Ghaidan v Godin-Mendoza: 

“Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court’s role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention rights” (Lord Nicholls, [2004] UKHL 30, para 19. Also see Johnstone [2003] UKHL 28, para 51).

That is, the Courts should generally defer (11) to the Legislature or, at least, allow them a discretionary area of judgment (R v DPP, ex p Kebilene [1999] UKHL 43; [2000] 2 AC 326, 380-381).  (Lord Hoffman has criticised the use of the term ‘deference’ because of its “overtones of servility, or perhaps gratuitous concession” R (ProLife Alliance) v BBC [2003] UKHL 23, paras 75-762; WLR 1403, 1422.) This principle now appears firmly established, as is evident from the decision of an enlarged Privy Council sitting in Attorney-General for Jersey v Holley [2005] UKPC 23. Lord Nicholls, who again delivered the majority judgment (6-3), stated:

“The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change (‘develop’) the common law and thereby depart from the law as declared by Parliament” (para 22).

Parliament’s intentions also appear to have been of particular importance in the recent case Makuwa [2006] EWCA Crim 175, which concerned the application of the statutory defence provided by the Immigration and Asylum Act 1999 s31(1) to an offence under the Forgery and Counterfeiting Act 1981 s3 of using a false instrument. The question was whether there was an onus on a refugee to prove that he (a) presented himself without delay to the authorities; (b) showed good cause for his illegal entry and (c) made an asylum claim as soon as was reasonably practicable. Moore-Bick LJ’s judgment was, with respect, rather confused. He appeared to approve gravamen analysis when he stated that the presumption of innocence was engaged by a reverse burden (paras 28 and 36). However, he then stated that the statutory defence did not impose on the defendant the burden of disproving an essential ingredient of the offence (para 32), in which case it is clear that the presumption of innocence was not engaged. Nonetheless, he did, at least, recognise the limits of gravamen analysis, which was clearly inapplicable to sections 3 and 31 as the statutory defence applied to a number of other offences under the same Act and the Immigration Act 1971 (para 32). His Lordship acknowledged that particular attention should be paid to Parliament’s actual intentions (para 33), as had been the case in Sheldrake.

In light of the above it is submitted that their Lordships in Sheldrake, as in Brown v Stott [2000] UKPC D3; [2003] 1 AC 681, 711C-D, PC, were entitled to uphold a legal rather than an evidential burden on the defendant and to take into account other Convention rights, namely the right to life of members of the public exposed to the increased danger of accidents from unfit drivers (European Convention on Human Rights and Fundamental Freedoms, article 2). That is, there were sound policy reasons for imposing a reverse legal burden, which will be the subject of further discussion in the second part to this article.

A contextual approach: Sheldrake and Attorney-General’s Reference (No 4 of 2002)

Ashworth, in his case note in the Criminal Law Review (Ashworth 2005, p215), was troubled by the House of Lords’ decision in Sheldrake and contrasted it with the conjoined appeal, Attorney-General’s Reference (No 4 of 2002), which was concerned with the Terrorism Act 2000 s.11. In the latter, an evidential burden was read down as being imposed on a defendant because a person “who is innocent of any blameworthy or properly criminal conduct” could otherwise fall within the section ([2004] UKHL 43, para 51). Ashworth suggested, somewhat critically, that when compared to Sheldrake this places “a particular construction” on innocence (Ashworth 2005, p219). However, with respect, the different results from the two appeals are more understandable than is implied if a more contextual approach is taken.

On the one hand, the offence under section 11(1) is “of extraordinary breadth” and appears to cover individuals who have done nothing actually “blameworthy or properly criminal”. For example, a person who “joined an organisation when it was not a terrorist organisation or when, if it was, he did not know that it was” (Lord Bingham [2004] UKHL 43, para 47). On the other hand, section 5(1)(b) does cover blameworthy (if not as serious) conduct. It is submitted that the intoxicated person in charge of a vehicle, whether asleep in the back or sitting in the driver’s seat, is engaged in conduct worthy of blame on its own, even if it might not be regarded as ‘truly criminal’. Ashworth’s apparent sympathy for the person “who has had a few drinks and decides to sleep in the back of his or her car” (Ashworth 2005, p 219), with respect, was misplaced as he overlooked the particular nature of the offence, which will be further examined in the second part to this article.

In relation to Attorney-General’s Reference (No 4 of 2002) it is also worth noting that the legislative predecessors to section 11(2) of the Terrorism Act 2000 (contained in the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1989 ss1(6) and 2(3)) referred to the person belonging to a proscribed organisation being: “not guilty of an offence…if he shows” essentially the same points as in section 11(2) of the 2000 Act (ie “(a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member and (b) that he has not taken part in the activities of the organisation at any time while it was proscribed”). By contrast, section 11 makes it “a defence…to prove”, suggesting a deliberate change from the defendant bearing an evidential burden in relation to an element of the offence to bearing a legal burden in relation to his defence, despite Lord Rodger’s doubts ([2004] UKHL 43, para 60). Nevertheless, their Lordships do not seem to have been influenced by this and, accordingly, history appears an inadequate guide to the allocation of the legal burden on its own, despite its apparent importance in Sheldrake.

It should be apparent from the above that the section 5(2) defence is not part of the gravamen of ‘being drunk in charge’. Accordingly, the concern that there was a breach of the presumption of innocence did not arise in Sheldrake. Although their Lordships largely overlooked the issue, Lord Bingham did indicate that this was his view. He was not entirely clear at first but later stated, more directly: “…the likelihood of driving is not an ingredient of the section 5(1)(b) offence…” ([2004] UKHL 43, para 49). However, His Lordship also believed that the stronger argument for a reverse legal burden in section 5(2) lay not in an analysis of the gravamen of the offence alone, or in an historical analysis of the legislation, but in wider considerations, which will now be examined. 

The regulatory offence ‘being drunk in charge’   

The presumption of innocence and the nature of the offence

In Sheldrake, Lord Bingham assumed that the presumption of innocence had been infringed: “It may not be very profitable to debate whether section 5(2) infringes the presumption of innocence. It may be assumed that it does” ([2004] UKHL 43, para 41). It follows that he also assumed that the gravamen of ‘being drunk in charge’ included “the likelihood of driving” as per section 5(2).  It is not immediately apparent why he made these assumptions because, as noted above, he believed the opposite. We may presume that it was for the sake of argument and because he thought the stronger case for a reverse legal burden lay in wider considerations.

In accordance with Strasbourg jurisprudence Lord Bingham considered whether the provision was directed to a legitimate object, was “within reasonable limits” and was not arbitrary. [1] That is, given that the presumption of innocence is not absolute, he considered whether the interference was justified and, applying Lord Steyn’s test in Lambert, “[t]he test is dependent upon the circumstances of the individual case. It follows that legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed” Lambert [2001] UKHL 37, para 34), held that the imposition of a legal burden did not go beyond what was necessary and so the conviction was not unfair. It was proportionate to the threat to society posed by damage, deaths and injuries caused by unfit drivers and did not amount to an unreasonable limit on the presumption of innocence ([2004] UKHL 43, para 41). He did not follow Lord Nicholls’s alternative approach (and like Lord Steyn obiter) in Johnstone [2003] UKHL 28, para 49, which was to ask if “…there is a compelling reason why it is fair and reasonable” to impose a reverse legal burden. This was reminiscent of the South African Constitutional Court, which has held that any justification for infringing the presumption of innocence must be “clear, convincing and compelling” Mbatha; Prinsloo 1996 3 BCLR 293, CC. It is a “significant difference in emphasis” to Lord Steyn’s approach and was endorsed by Lord Woolf as a more “flexible” approach in Attorney General’s Reference (No 1 of 2004) [2004] All ER (D) 318 (Apr), para 38, CA. Although this enlarged Court of Appeal said Johnstone was to be preferred (para 52), Lord Bingham resurrected Lambert in Sheldrake [2004] UKHL 43, para 30. 

Earlier in his judgment Lord Bingham had suggested that there were a number of relevant factors that ought to be taken into account in determining whether infringements on the presumption of innocence were within reasonable limits: the defendant’s opportunity to rebut the presumption; maintenance of defence rights; flexibility in the application of the presumption; retention by the court of the power to assess the evidence; the importance of what is at stake and difficulties of proof. Security concerns (presumably about terrorism) were said not to exempt member states of the Convention from observing basic standards of fairness. Finally, in a similar vein to Lord Nicholls in Johnstone [2004] UKHL 28, para 50, he stated:

“The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case” ([2004] UKHL 43, para 21).

As noted above, Lord Bingham appears to have been influenced by historical context. He also referred to the defendant’s opportunity to meet the offence with a statutory defence. Unfortunately, neither he nor his colleagues considered the “particular” nature of the offence, which, it is suggested, is required for an “examination of all the facts and circumstances of the particular provision as applied in the particular case”. That is, their Lordships did not consider whether the offence was regulatory or ‘truly criminal’, which would, it is contended, have provided them with useful guidance as to the allocation of the legal burden.  Lord Bingham briefly referred to the distinction [2004] UKHL 43, para 6. His comment that the forerunner of section 5(1)(b), the strict liability offence of being drunk in charge of any carriage, horse, cattle or steam engine, contrary to the Licensing Act 1872 s.12: “may be thought not” to be regulatory tends to suggest that he agreed with the Divisional Court’s assessment of section 5(1)(b) as ‘truly criminal’.

Regulatory and ‘truly criminal’ offences

The distinction between regulatory and ‘truly criminal’ offences is not novel. It was Wright J in Sherras v De Rutzen [1895] 1 QB 918, 922 who famously distinguished between “…a class of acts…which are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty” (rather than imprisonment) in order to explain the lack of need for mens rea in strict liability offences. The distinction was repeated in later cases, for example: Sweet v Parsley [1969] 1 All ER 347, HL; Warner [1969] 2 AC 256, HL; Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1, PC and more recently in Blake [1997] 1 All ER 963, CA; Harrow London Borough Council v Shah  [1999] 3 All ER 302, DC; B (a minor) v DPP [2000] AC 428; Lambert [2001] UKHL 37 [2002] 2 AC 545, HL; Muhamad [2003] QB 1031, CA; R (Grundy & Co Excavations Ltd and Sean Parry) v Halton Magistrates’ Court, ex p the Forestry Commission [2003] EWHC 272, DC. This remains the most usual method of distinguishing between the two types of offence but it has also been controversial, as is apparent from Smith & Hogan:

“An act either is, or is not, declared by Parliament to be a crime. Mitchell J said [in London Borough of Harrow v Shah [1999] 3 All ER 302, DC] that he did not regard the offence of selling a lottery ticket to a child under 16 as ‘truly criminal in character’ although it was punishable on indictment with two years’ imprisonment. This is a peculiar notion of ‘truth’. The truth is that it is a crime. It is the courts which take it upon themselves to decide whether it is ‘real’ or ‘quasi’ crime. They do so on the basis that an offence which, in the public eye, carries little or no stigma and does not involve ‘the disgrace of criminality’ is only a quasi-crime” (Smith, JC 2002, p 125).

Nonetheless, depending on how the distinction is drawn, it is submitted that it is useful, in particular, because it can provide courts with ready guidance on the validity of a reverse legal burden. That is, it is more likely that one can be justified for a regulatory offence and, indeed, it is contended that one may normally be presumed. As Clarke LJ argued in the Divisional Court in Sheldrake [2003] EWHC 273, paras 76-82 (Admin) and in R (Grundy & Co Excavations Ltd and Sean Parry) v Halton Magistrates’ Court, ex p The Forestry Commission [2003] EWHC 272, paras 42-48, DC (decided on the same day) the correct approach to these types of offences “points the way” in determining whether it is necessary to impose a legal burden on a defendant.

Regulatory offences and reverse legal burdens: the ‘licensing approach'

It is argued that it is a particularly important to draw the distinction between crimes and regulatory offences in the light of an alternative approach to reverse legal burdens discernible from the House of Lords’ judgment in Johnstone, albeit obiter, and the Court of Appeal’s judgment in Davies v Health and Safety Executive [2002] EWCA Crim 2949. Both seemed to suggest that a reverse legal burden might be justified, at least in part, because the defendant voluntarily engaged in a lawful activity that presented a serious risk or danger to public health and safety.

The justification for presuming a legal burden may be imposed on the defendant is not that it is simply one of the general “duties of citizenship” that Roberts and Zuckerman used principally to justify the imposition of an evidential burden on a defendant (although sometimes a persuasive one as well) (Roberts and Zuckerman 2004, p348). The importance of the lawfulness of the regulated activity in the ‘licensing’ approach is apparent if we consider the general aim of regulatory legislation, which can be stated to be to secure ‘public welfare’ (to use the equivalent American term for regulatory offences) rather than ‘punishment’ (Sayre 1933). In Sheldrake [2003] EWHC 273, para 80 Clarke LJ considered Cory J’s ‘public protection’ justification for differential treatment of regulatory and ‘truly criminal’ offences examined in Wholesale Travel Group (1991) 84 DLR (4^th) 161 (following the earlier decision in Sault Ste Marie [1978] 40 CCC (2d) 353, 357) but held that ‘public protection’ is a characteristic of most criminal offences and not just regulatory offences. However, Clarke LJ overlooked the remainder of Cory J’s remarks that the public are to be protected from the “adverse effects of otherwise lawful activity” (para 78) perhaps suggesting that Clarke LJ had not fully appreciated this basis for the differential treatment of these two types of offence. Public health and safety were considered in Lord Diplock’s justification for strict liability in Sweet v Parsley [1970] AC 132, 163

“…where the subject-matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals, in which citizens have a choice whether they participate or not, the court may feel driven to infer an intention of Parliament to impose, by penal sanctions, a higher duty of care on those who choose to participate and to place on them an obligation to take whatever measures may be necessary to prevent the prohibited act…”

Whether ‘morals’ would be sufficient may be debatable.

Johnstone was concerned with the offence of unauthorised use of a trade mark, contrary to the Trade Marks Act 1994 s92. It was said that there was a significant risk to the economy. In R v S [2003] 1 Cr App R 602, CA, which pre-dated Johnstone and which was also concerned with trade mark offences, it was noted (p 624) that the Department of Trade and Industry estimated in December 2001 that the cost to the UK economy of counterfeiting or intellectual property crime generally was £9 billion per year and that it was responsible for prospective job losses in legitimate businesses of over 4,000 people. There was also a risk, in terms of the quality of counterfeit and ‘pirate’ goods, to the health and safety of consumers. Therefore, partly on this basis, a reverse legal burden was justified:

“Those who trade in brand products are aware of the need to be on guard against counterfeit goods. They are aware of the need to deal with reputable suppliers and keep records and of the risks they take if they do not” (para 52).

Davies v Health and Safety Executive [2002] EWCA Crim 2949 concerned the offence of failing to conduct an undertaking so that people are not exposed to risks to their health or safety, so far as is reasonably practicable, under the Health and Safety at Work Act 1974 ss3(1) and 33(1), and the section 40 defence, which imposed a reverse legal burden on the defendant. Tuckey LJ held that the Act was regulatory and the need for regulation was demonstrated by statistics. Further, he stated:

“The reversal of the burden of proof takes into account the fact that duty holders are persons who have chosen to engage in work or commercial activity (probably for gain) and are in charge of it. They are not therefore unengaged or disinterested members of the public and in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it…Where the enforcing authority can show that this [safety standard] has not been achieved it is not unjustifiable or unfair to ask the duty holder who has created or is in control of the risk to show that it was not reasonably practicable for him to have done more than he did to prevent or avoid it” (para 25).

It was less clear in Johnstone that the offence was regulatory because of the maximum sentence of ten years’ imprisonment. Indeed, Ashworth noted that there was no express reference to the ‘regulatory’ nature of the offence in the judgment, in contrast to the judgment in R v S, which was also concerned with the Trade Marks Act 1994 (Ashworth 2004, p 247). However, this may be doubted, as is evident from Lord Nicholls’ comment that a reverse legal burden was compatible with article 6(2): “For these reasons, which are substantially the same as those given by Rose LJ in R v S…” ([2003] UKHL 28, para 54).

In both Johnstone and Davies there were other relevant factors, such as the defendant’s ‘peculiar knowledge’ of the subject matter of the offence that weighed in the balance when determining the validity of the reverse legal burden.  Nevertheless, it is submitted that central to both decisions was the idea that a person who voluntarily engages in a lawful activity that presents a serious risk or danger to public health and safety has a certain responsibility. Consequently, where charged with an offence connected with the activity it should be for that person to bear the onus of proof in relation to any defence. It is submitted that this idea may also be used to classify an offence as regulatory in the first place and that the courts can normally presume that a reverse legal burden will be justified as a reasonable limit on the presumption of innocence. This is because the defendant can be taken to have accepted the reverse legal burden as a condition of being ‘licensed’ to engage in the particular activity. It has been argued that simply delineating an offence as regulatory ought not to be sufficient to transfer an onus onto a defendant (Stuart, 1992. However, a rebuttable presumption does not necessarily transfer the onus and does provide useful guidance for the courts.

This approach draws on Cory J’s ‘licensing justification’ for differential treatment of crimes and regulatory offences in Wholesale Travel Group (1991) 84 DLR (4^th) 161, 212:

“Thus, while in the criminal context, the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is, by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity”.

It is submitted that the ‘licensing justification’ may be taken a step further and used as a means of actually defining offences as regulatory rather than simply justifying differential treatment of crimes and regulatory offences. There is some evidence to suggest that Cory J may have also believed that this could form a basis for definition:

“It is useful to distinguish between conduct which, by virtue of its inherent danger or the risk it engenders for others, would generally alert a reasonable person to the probability that the conduct would be regulated, from that conduct which is so mundane and apparently harmless that no thought would ordinarily be given to its potentially regulated nature. In the latter circumstances, the licensing argument would not apply” (p 214).

That is, the ‘licensing argument’ would not apply because the defendant would not be aware of having engaged in a regulated activity that presented a risk or danger to others.  It is suggested that this is close to saying that the offence was not itself regulatory because the defendant had not voluntarily engaged in a lawful activity that presented a serious risk to public health or safety.

This definition may not apply in all circumstances, for example, an offence such as using a television without a licence (Wireless Telegraphy Act 1949 s1) would not be classed as regulatory under the ‘licensing’ approach. There is no obvious risk to the public from this conduct and it may not be regarded as ‘truly criminal’. It is submitted that it is a regulatory offence but is more adequately described as such in the conventional sense outlined below. There may also be some debate about what amounts to ‘a serious risk or danger’. Nevertheless, it is contended that the ‘licensing’ approach is particularly appropriate to road traffic offences because of the serious risk or danger to public health and safety and also by virtue of the literal requirement for a licence to drive.  Further, it avoids the pitfalls contained in the conventional approach to defining regulatory offences considered below.

Regulatory offences: the conventional approach

In the Divisional Court in Sheldrake [2003] EWHC 273 (Admin), paras 77-78  Clarke LJ drew on Wholesale Travel Group (through reference to Davies v Health and Safety Executive [2002] EWCA Crim 2949) but did so to distinguish between crimes and regulatory offences on the conventional basis provided by Sherras v De Rutzen. This emphasises that some acts, such as murder or theft, are “universally recognized as crimes” but that some conduct is prohibited:

“…not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable. The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity” [1991] 3 SCR 154; (1991) 84 DLR (4^th) 161, 205.

Consequently, he concluded ‘being drunk in charge’ was ‘truly criminal’ because the gravamen of the offence included the likelihood of the defendant driving while over the prescribed limit for alcohol [2003] EWHC 273 (Admin), para 80. It was “a serious criminal offence involving inherently wrongful conduct” (para 81). However, if his analysis of the gravamen is rejected, as it was in the Lords, the offence immediately appears less blameworthy, less deserving of stigma, and so less clearly ‘truly criminal’ on these terms. Indeed, Henriques J in his dissenting judgment stated:

“Whilst not without some punitive element section 5 forms part of the regulatory regime spoken of by Lord Bingham in Brown v Stott [2001] 2 All ER 97 at p116F and by Lord Steyn when he spoke at p121J of the subject inviting special regulation” (para 130).

It is submitted that this tends to suggest that moral stigma and blame is an unreliable and uncertain basis on which to distinguish between regulatory and ‘truly criminal’ offences, even if it is the usual basis. A further problem with this approach is that as social values change, so the level of stigma that may attach to certain conduct may also change and it is notable that Lord Clyde, quoted by Clarke LJ, was more cautious when he referred to regulatory offences in Lambert [2001] UKHL 37, para 154:

“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” [Emphasis added].

That moral stigma or blame is an inadequate basis should be immediately apparent from traditional regulatory cases such as Hobbs v Winchester Corporation [1910] 2 KB 471, CA where the defendant sold meat unfit for human consumption. A more recent example is Alphacell Ltd v Woodward [1972] AC 824, HL where the defendant company polluted a river. Surely stigma and moral blame attached to these defendants, as it did to more profound failures of regulation, such as the cases concerning the drug Thalidomide; the oil spillage from the Exxon Valdez and the Bhopal and Chernobyl disasters? 

It has been argued, in accordance with Wright J’s definition in Sherras v De Rutzen, that an offence must be ‘truly criminal’ if it is punishable by imprisonment. (22) ) In Sheldrake [2004] UKHL 43, para 51 Lord Bingham referred to this as a consideration for determining whether the reverse burden was justified in Attorney-General’s Reference (No 4 of 2002).  Presumably this falls under the more general factors listed by Lord Bingham at paragraph 21 as relevant to the validity of a reverse legal burden and, in particular, “what is at stake?”. (See also Clarke LJ’s comments in the Divisional Court [2003] EWHC 273, paras 72-77 (Admin).) Whether an offence was imprisonable or not was regarded by Ruby and Julien as a more useful distinction than that between ‘truly criminal’ and regulatory offences made in Wholesale Travel Group (Ruby and Julien 1992). However, the courts have not always been consistent when applying this criterion and we may contrast, for example, the decisions in Harrow London Borough Council v Shah [1999] 3 All ER 302, DC and Blake [1997] 1 All ER 963, CA.  In Blake, Hirst LJ held that since the offence of using a station for wireless telegraphy without a licence was subject to a term of two years’ imprisonment, the offence was ‘truly criminal’ (at 967). The contrary was held in Shah. Further, in Muhamad [2003] QB 1031, CA the Court of Appeal was uncertain whether the offence of materially contributing to insolvency by gambling, contrary to the Insolvency Act 1986 s362(1), was ‘truly criminal’ because the maximum term was two years’ imprisonment.

We may also want to question whether, on the one hand, regulation can be effective if defendants cannot be imprisoned and, whether on the other hand, cases involving gross breaches of regulation, such as Exxon Valdez, do not deserve strong sanctions. Accordingly, it is submitted that the ‘licensing’ approach is generally to be preferred and is particularly suited to offences such as ‘being drunk in charge’. 

The ‘licensing’ approach, legal burdens and Sheldrake

In Sheldrake Lord Bingham made passing reference to the context and the nature of the offence as relevant issues when he distinguished Johnstone and Lambert (para 30). In relation to offences under the Trade Marks Act 1994 he stated:

“…these are offences committed (if committed) by dealers, traders, market operators, who could reasonably be expected…to exercise some care about the provenance of goods in which they deal” (para 30).

We might add (even if Lord Bingham did not) that they have freely chosen to engage in a lawful activity that presents a serious risk or danger to public health and safety in terms of unsafe counterfeit and ‘pirate’ goods. Accordingly, it is submitted, the offence may be described as regulatory according to the ‘licensing’ approach and it follows that the courts can normally presume that a reverse legal burden will be justified. A defendant may be presumed to have accepted a reverse legal burden as a condition of being licensed to engage in the activity. As Webb has noted (Webb 1989, p 452) a driver’s licence is a particularly good example of this type of situation:

“The fact that an accused is participating in a regulated activity and has met the initial ‘entrance requirements’ leads to a legally imposed or assumed awareness on his part of the risks associated with that activity”.

Further, as was suggested by Cory J in Wholesale Travel Group (1991) 84 DLR (4^th) 161, 215: “…by virtue of the decision to enter the regulated field, the regulated person can be taken to have accepted certain terms and conditions of entry”. This applies, arguably, even if drivers have not obtained the requisite licence. They have:

“…placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility…those persons who enter a regulated field are in the best position to control the harm which may result and they should therefore be held responsible for it” (p213).

It is submitted that reverse legal burdens will normally be justified in cases concerning regulatory offences (as defined according to the ‘licensing approach’) such as ‘being drunk in charge’. As Lord Bingham noted in Brown v Stott [2000] UKPC D3; [2003] 1 AC 681, 705, PC.

“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…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”.

The parallel with weapons and also health and safety legislation seems particularly apposite in Sheldrake despite Clarke LJ’s comments to the contrary in the Divisional Court (paras 71 and 75). In L v DPP [2003] QB 137, CA concerning the possession of a lock-knife, contrary to the Criminal Justice Act 1988 s139, Pill LJ approved a reverse legal burden as proportionate to the social problem of knives being carried in public without good reason (148-149). Equally, there is a strong public interest in cars, as “potentially instruments of death and injury” (Lord Steyn, Brown v Stott [2000] UKPC D3; [2003] 1 AC 681, 709, PC) not being driven by intoxicated people. As there are considerable risks involved in driving, is it not, in fact, quite correct to describe it as a “privilege” or “indulgence” to be permitted to engage in this activity, subject to certain terms and conditions of entry? These can be said to include acceptance of a reverse legal burden for the section 5(2) defence.

As with the strict liability regulatory offender, a driver cannot be said to be a “blameless innocent” if he has to prove there was no likelihood of him driving while over the prescribed limit for alcohol. This would be to ignore the context of the offence as the driver has freely chosen to engage in the dangerous activity and should accept the consequences of that responsibility. It is suggested that in these circumstances, as with strict liability offences, the individual’s supposed innocence “flows from the law’s traditional tendency to view the criminal act only in the context of its immediate past” and not in the context of the individual’s ‘licence’ to engage in the activity (Richardson 1987, pp 295-6).

A well-established strict liability principle, that may also be usefully applied here, is that a person who engages in conduct that creates a risk and takes a profit from that risk ought to be liable if that risk materialises and there are serious consequences (Hobbs v Winchester Corporation [1910] 2 KB 471, CA. The same principle was applied by Lord Diplock in Sweet v Parsley [1970] AC 132, 163). It is also worth noting that regulatory offences are usually directed at the consequences of conduct rather than the conduct itself, which is more characteristic of ‘truly criminal’ offences. Farwell LJ asked in Hobbs v Winchester Corporation [1910] 2 KB 471, 481, CA:

“Who is to take the risk of the meat being unsound, the butcher or the public? In my opinion the Legislature intended that the butcher should take the risk and that the public should be protected, irrespective of the guilt or innocence of the butcher”.

The consequence for the butcher is conviction when he was without fault. For the public, the consequences are illness or worse. We might equally ask: “Who should take the risk of the driver who is ‘drunk in charge’ driving - the driver or the public?”  The risk for the driver is that he will be convicted of the offence even though he was not going to drive while over the prescribed limit for alcohol, but this is clearly mitigated by the section 5(2) defence. The risk to the public is that an intoxicated driver will drive and the potential consequences of that are apparent from transport statistics, which notably were not referred to in either the Divisional Court or the House of Lords in Sheldrake. 

The latest road casualty statistics for 2005, although indicating a continued downward trend, reveal the human cost of road transport:

“There were 271,017 reported casualties on roads in Great Britain in 2005…3,201 people were killed. 28,954 were seriously injured and 238,862 were slightly injured…There were 198,735 road accidents involving personal injury...Of these, 27,942 involved death or serious injury…There were 141 child fatalities…The number of children killed or seriously injured in 2005 was 3,472”. Road Casualties in Great Britain Main Results: 2005, Department for Transport Statistics Bulletin (06) 26, (June 2006).

These statistics are stated to “refer to personal injury accidents on public roads (including footways) which became known to the police. Figures for deaths refer to persons who sustained injuries which caused death less than 30 days after the accident. This is the usual international definition…”.  The bulletin also notes that “research in the 1990s has shown that many non-fatal injury accidents are not reported to the police. In addition some casualties reported to the police are not recorded and the severity of injury tends to be underestimated. The combined effect of under-reporting, under-recording and misclassification suggests that there may be 2.76 times as many seriously injured casualties than are recorded in the national casualty figures and 1.70 slight casualties”. 

In terms of drink driving, the most recent statistics suggest that in 2003 7 per cent of all road casualties and 17 per cent of road deaths occurred when someone was driving over the legal limit for alcohol. Provisional estimates for 2004 suggest drink-drive related deaths of around 590 people (marginally up from 2003 and the highest figure since 1992); serious injuries of 2,350 and 17,000 casualties of all severities (DfT 2005, p24).

These figures are, with the exception of fatalities, lower than in 2003. However, it is suggested that they remain a serious cause for concern and, accordingly, it does not seem disproportionate, nor unfair, that the defendant bears the onus of proving that there was no likelihood of him driving while over the prescribed limit for alcohol, as remarked by Lord Bingham in Sheldrake [2004] UKHL 43, para 41. Further, equivalent Canadian provisions also create a reverse legal burden. Section 234(1) of the Canadian Criminal Code provides that “every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, while his ability to drive a motor vehicle is impaired by alcohol or a drug, is guilty of an indictable offence or an offence punishable on summary conviction”.  Section 237(1)(a) provides: “(1) In any proceedings under section 234 or 236, (a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care and control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion”. As Dickson CJ noted in relation to these provisions in Whyte [1988] 2 SCR 3, para 47:

“Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion. The position is admittedly a compromise. It is an attempt to balance the dangers posed by a person whose abilities to reason are impaired by alcohol with the desire to avoid absolute liability offences”

It is suggested that section 5(1)(b) is, like the Canadian provision, a “restrained parliamentary response to a pressing social problem” and “a minimal interference with the presumption of innocence” ([1988] 2 SCR 3, para 49). After all, there was no reason why the Government could not have legislated for an absolute offence and it is submitted that the legislature’s greater power to do so included the lesser power to provide a defence, albeit with a reverse legal onus. This is the so-called ‘greater includes the lesser’ argument (Jeffries and Stephan 1979, p1337 and Dripps 1987, p 1677) that has been successfully deployed elsewhere in the common law world (27) and which seems particularly relevant to ‘being drunk in charge’. Jeffries and Stephan trace the principle to Holmes J in Ferry v Ramsey 277 U.S. 88, 94 (1928). Elsewhere, Dickson J (as he then was) stated in R v City of Sault Ste Marie (1978) 85 DLR (3d) 161, 181 in relation to a reverse burden imposed to show lack of negligence in the pollution of water: “This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever”. Also see Coetzee 1997 3 SA 527, CC, para 88 where Kentridge AJ, dissenting in part with the main judgment, made substantially the same point.

However, this argument has been criticised as conceding too much to the legislature’s drafting of the offence. This is essentially the same argument considered above as to the gravamen of the offence (Paizes 1998, p421). In this context it is particularly notable that until the Road Traffic Act 1956 it was a strict liability offence under the Road Traffic Act 1930.

During the debate on the Road Traffic Bill 1956 in the Lords the existing law was said to be “causing great injustices up and down the country”. It was described as “a travesty of justice” (Lord Brabazon 1954, col 608), “as an ass” and as “a grave blot on justice” (Lord Lucas 1955, cols 583 and 1007). A number of examples of injustice were described by their Lordships. For example, Earl Jowitt referred (Earl Jowitt 1954, col 633) to a man who had left his car on the road outside his house without leaving on the lights. He became “rather drunk after dinner” and was wearing pyjamas when the police made enquiries about the car. They asked him to turn on the car’s lights and when he obliged he was prosecuted for ‘being drunk in charge’. In the Commons, the Joint Parliamentary Secretary to the Ministry of Transport and Civil Aviation, Hugh Molson, noted that the strict test in the 1930 Act had “aroused a good deal of public discussion. Recent decisions by the courts have [been]…regarded as unreasonable” (Molson 1955, col 790). Accordingly, the Legislature mitigated the position by introducing the equivalent of the section 5(2) defence.

Lord Bingham noted in Sheldrake [2005] UKHL 43, paras 21 and 40 that it should be borne in mind that it was open to states to create a strict liability offence and that Parliament had mitigated the strict position under the Road Traffic Act 1930. The implication is that when assessing the reasonableness of the reverse burden a court should defer to Parliament and take into account that it acted in a relatively restrained way by only imposing a legal burden on the defendant and by not making the offence subject to strict liability. Lord Rodger made the same point in his dissenting judgment in relation to the defence under the Terrorism Act 2000 s11(2) (paras 69 and 71). It is submitted that the defence, with its reverse legal burden created by the 1956 Act, was clearly a preferable alternative to strict liability for drivers and the same may be said of the equivalent section 5(2) provision under the 1988 Act. The idea that a reverse legal burden is an alternative to strict liability is one that was considered by FB Sayre as long ago as 1933 for public welfare offences punishable by imprisonment or a heavy fine, (Sayre 1933, p 79) and was referred to by Lord Reid in Sweet v Parsley [1970] AC 132, 150: “Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that, on balance of probabilities, he is innocent of any criminal intention. I find it a little surprising that more use has not been made of this method; but one of the bad effects of Woolmington v DPP may have been to discourage its use”. Lord Pearce described it as “a sensible half-way house” (p 157).

Conclusion

Their Lordships’ decision in Sheldrake was welcome but it also represents a missed opportunity to engage critically with the strong arguments regarding the gravamen of the offence that have been aired in the courts. It is contended that these arguments are less compelling than has been suggested and, as is apparent from Campbell’s criticism of Williams’s approach, particularly when applied to the facts in Sheldrake. It is clear, despite Lord Bingham’s hesitation, that the section 5(2) defence does not form part of the gravamen of ‘being drunk in charge’. Accordingly, there was no breach of the presumption of innocence in Sheldrake.

It was also a disappointment that their Lordships did not fully consider the nature of the offence ‘being drunk in charge’. Had they done so they might have had cause to reflect upon the alternative ‘licensing’ approach to reverse legal burdens suggested by the judgments in Johnstone, Davies v Health and Safety Executive and Wholesale Travel Group. According to this approach the defendant who voluntarily engages in an activity, which is lawful but which presents a serious risk or danger to public health and safety, can expect an offence concerned with the activity to be classified as regulatory. It is submitted that in this context the courts can normally presume that a reverse legal burden will be justified as a reasonable limit on the presumption of innocence. The defendant may be taken to have accepted a reverse legal burden as a condition of being ‘licensed’ to engage in the activity.  

The ‘licensing’ approach is not the only method of defining a regulatory offence but, it is suggested, it is particularly appropriate to road traffic offences, such as ‘being drunk in charge’, and may also have wider application. If a reverse legal burden is presumed it provides a degree of clarity and consistency that has been notably lacking in recent judgments from the appellate courts.

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