Sheldrake v Director of Public Prosecutions

A statutory reverse burden concerning an accused’s likelihood of driving while over the alcohol limit derogates from the presumption of innocence under article 6(2) of the Convention. The interference pursues a legitimate aim and is justified, but imposing a legal burden is proportionate only where the prosecution shows that it is necessary. The prosecution failed to do so in relation to section 5(2) of the Road Traffic Act 1988. The provision was therefore read down under section 3(1) of the Human Rights Act 1998 so that the accused bears only an evidential burden. Once an arguable case is raised, the prosecution must prove beyond reasonable doubt that there was a real, non-fanciful risk of driving while over the prescribed limit.

The appellant was convicted by magistrates of being in charge of a motor vehicle while over the prescribed alcohol limit, contrary to section 5(1)(b) of the Road Traffic Act 1988. Section 5(2) required him to prove that there was no likelihood of driving while still over the limit.

The magistrates stated a case asking whether the provision imposed an unlawful reverse burden under article 6(2) of the Convention, whether any interference was justified and proportionate, and whether section 3(1) of the Human Rights Act 1998 permitted a compatible interpretation. A previous two-judge court had been unable to agree, so the matter was reheard by three judges.

1. By a majority, appeal allowed. Clarke LJ and Jack J held that section 5(1)(b), read with section 5(2), makes an inroad on the presumption of innocence. Although likelihood of driving is expressed as a defence, it forms part of the substance or gravamen of the offence because the mischief is the risk of driving while unfit.
2. The provision pursues the legitimate aim of protecting the public from drink driving. The relevant circumstances, including present or future intention to drive, may be particularly within the accused’s knowledge. That justifies some reverse burden, but not necessarily a legal burden.
3. The controlling test is necessity. The state must show a pressing necessity for imposing a legal rather than an evidential burden. The seriousness and moral character of the offence, the possibility of imprisonment, and the importance of avoiding conviction where the prosecution has not proved an essential feature all weighed against a legal burden. The evidential burden would not materially defeat the statutory purpose.
4. Section 5(2) was therefore not proportionate if construed as imposing a legal burden. Under section 3(1) of the Human Rights Act 1998, it was read down to require the accused to demonstrate from the evidence an arguable case that there was no likelihood of driving while still over the limit.
5. Once that evidential burden is discharged, the prosecution must prove beyond reasonable doubt that there was a real risk of driving while over the limit. Likelihood means a real risk which ought not to be ignored, rather than a probability exceeding 50 per cent. The conviction was quashed because the magistrates had not applied those tests. A defendant’s costs order was made out of central funds for periods without public funding.
6. Henriques J dissented on proportionality. He considered the legal burden necessary and proportionate, having regard to the public danger, the accused’s knowledge of relevant circumstances, the practical difficulties for prosecutors, and the need to respect Parliament’s judgment.

The appellant was convicted by justices in North East Essex on 26 June 2001. The justices stated a case for the opinion of the High Court on 18 September 2001. A two-judge Divisional Court was unable to agree and directed a rehearing. The three-judge Divisional Court allowed the appeal by a majority and quashed the conviction.