Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division)) Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)

Article 6(2) does not prohibit statutory presumptions or reverse burdens in criminal proceedings. A legal burden is compatible with the presumption of innocence only when it remains within reasonable limits and is proportionate to a legitimate objective. The court must examine the provision's substance and practical effect, the rights of the defence, the seriousness of the consequences, access to relevant evidence and the prosecution's difficulties.

A legal burden may therefore be justified where it concerns a true statutory defence, the matter lies particularly within the defendant's knowledge and conviction remains fair. It is unjustified where a broadly framed offence may catch blameless conduct, the defence is exceptionally difficult to prove and conviction carries severe punishment. Where possible, section 3 of the Human Rights Act 1998 requires an incompatible legal burden to be read as evidential.

These conjoined proceedings concerned reverse burdens imposed by section 5(2) of the Road Traffic Act 1988 and section 11(2) of the Terrorism Act 2000.

In Director of Public Prosecutions v Sheldrake, magistrates convicted the respondent of being in charge of a vehicle while over the prescribed alcohol limit. The High Court allowed his appeal and quashed the conviction: [2003] EWHC 273 (Admin); [2004] QB 487. The Director appealed.

In Attorney General's Reference No 4 of 2002, the Crown Court acquitted A of belonging and professing to belong to a proscribed organisation. The Court of Appeal held that section 11(2) imposed a legal burden compatible with article 6(2): [2003] EWCA Crim 762; [2003] 3 WLR 1153. The common issue was whether each reverse legal burden unjustifiably infringed the presumption of innocence and, if so, whether section 3 of the Human Rights Act 1998 required an evidential reading.

1. Disposition. Lord Bingham delivered the leading speech. Lord Steyn and Lord Phillips agreed with it. The House unanimously allowed the Director's appeal in Director of Public Prosecutions v Sheldrake, reinstated the magistrates' decision and held that section 5(2) of the Road Traffic Act 1988 imposes a legal burden. On the terrorism reference, the House held unanimously that section 11(2) adds no ingredient to the offence in section 11(1), but divided three to two over the nature of its burden.

2. General approach. Per Lord Bingham, presumptions and reverse burdens are not inherently contrary to article 6(2). Their substance and effect must remain within reasonable limits and preserve a fair trial. Relevant matters include the importance of what is at stake, the opportunity to rebut the presumption, the rights of the defence, the tribunal's ability to assess the evidence, the defendant's access to the relevant facts and the prosecution's practical difficulties. The court reviews the balance selected by Parliament but must give full weight to the presumption of innocence.

3. Road traffic offence. Per Lord Bingham, with all members agreeing in the result, likelihood of driving is not an ingredient of being in charge while over the limit. Section 5(2) supplies a ground of exoneration from an offence already established by proof that the defendant was in charge while over the prescribed limit. The defendant has a full opportunity to prove a matter closely conditioned by his own knowledge and intentions. Requiring proof on the balance of probabilities was neither arbitrary nor disproportionate and did not make the conviction unfair.

4. Terrorism offence. Per Lord Bingham, supported by Lord Steyn and Lord Phillips, Parliament intended section 11(2) to impose a legal burden, but that burden created an unjustified risk of unfair conviction. Section 11(1) was broad enough to catch conduct lacking blameworthiness; proving lifelong non-participation in a proscribed organisation's activities could be exceptionally difficult; the provision lacked flexibility; and conviction carried up to ten years' imprisonment. Section 3 of the Human Rights Act 1998 therefore required section 11(2) to operate as though section 118(2) applied, imposing only an evidential burden. Lord Rodger and Lord Carswell dissented on this issue, considering the legal burden fair because the prosecution first had to prove every ingredient in section 11(1) and subsection (2) merely conferred an additional defence.

5. Freedom of expression. Lord Bingham considered that criminalising a profession of membership interfered with article 10 but pursued legitimate national-security and crime-prevention aims and was prescribed by law. The House declined to answer the remaining article 10 proportionality question because it did not require decision in the reference.

1. House of Lords: In Attorney General's Reference No 4 of 2002; Sheldrake v Director of Public Prosecutions [2004] UKHL 43, the Director's appeal was allowed unanimously. The House reinstated the magistrates' decision. By a three-to-two majority it rejected the Court of Appeal's answer that section 11(2) imposed a Convention-compatible legal burden.
2. Court of Appeal (Criminal Division): On the Attorney General's reference, the court held that section 11(1) contained all the ingredients of the offence and that section 11(2) imposed a legal burden compatible with article 6(2): [2003] EWCA Crim 762; [2003] 3 WLR 1153. It referred the questions to the House under section 36(3) of the Criminal Justice Act 1972.
3. High Court, Administrative Court: By a majority, the court allowed Mr Sheldrake's case-stated appeal and quashed his conviction because the justices had not applied the correct test: [2003] EWHC 273 (Admin); [2004] QB 487.
4. Crown Court: A was acquitted of belonging and professing to belong to a proscribed organisation. The trial proceeded on the agreed basis that section 11(2) imposed only an evidential burden.
5. Magistrates' court: Mr Sheldrake was convicted under section 5(1)(b) of the Road Traffic Act 1988. The justices held that he had not proved the section 5(2) defence on the balance of probabilities.