Sheldrake v Director of Public Prosecutions

The House considered whether statutory reverse burdens in criminal law — specifically section 5(2) of the Road Traffic Act 1988 and section 11(2) of the Terrorism Act 2000 — unjustifiably infringe the presumption of innocence in article 6(2) ECHR. The court applied Strasbourg authorities (in particular Salabiaku) and domestic authorities (including R v Lambert and R v Johnstone) and examined the interpretative duty under section 3 of the Human Rights Act 1998.

Key holdings: section 5(2) of the Road Traffic Act 1988, read conventionally, imposes a legal (persuasive) burden on the defendant to prove on the balance of probabilities that there was no likelihood of driving while over the limit and, on the facts and in principle, this did not violate article 6(2). Section 11(2) of the Terrorism Act 2000 prima facie imposes a legal burden, but because of the breadth of section 11(1) and the real risk of convicting persons whose conduct may be blameless, the court read down section 11(2) under section 3 of the Human Rights Act so that it operates as an evidential burden only.

The appeals concerned two separate challenges to statutory "reverse burdens" — one arising from the conviction of Mr Sheldrake for being in charge of a motor vehicle while over the prescribed alcohol limit (Road Traffic Act 1988, s 5(1)(b)), and the other from an Attorney General's reference questioning the construction and compatibility of section 11(2) of the Terrorism Act 2000 after the acquittal of a defendant (A) charged with membership or professing membership of a proscribed organisation.

Background and procedural history:

• Sheldrake: convicted by justices at Colchester; on a case stated the High Court by majority quashed the conviction; Director of Public Prosecutions appealed to the House.
• Attorney General's Reference No 4 of 2002: Crown sought guidance on the ingredients of the offence in section 11(1) and whether the defence in section 11(2) imposes a legal burden compatible with article 6(2) and article 10. The Court of Appeal answered those questions and referred to the House under section 36(3) of the Criminal Justice Act 1972.

Nature of relief sought and issues:

• Whether the statutory provisions impose a legal (persuasive) burden on an accused or only an evidential burden;
• Whether any legal burden infringes the presumption of innocence under article 6(2) ECHR; and
• Whether, if incompatible, the provisions can be read down under section 3 of the Human Rights Act 1998 to impose only an evidential burden.

Court’s reasoning (concise):

• The court reviewed domestic and Strasbourg authority, emphasising that presumptions or reverse burdens are not forbidden in principle but must be within reasonable limits, proportionate and must preserve the rights of the defence (Salabiaku and subsequent Strasbourg jurisprudence).
• Applying this framework, section 5(2) (the Road Traffic provision) was held by Lord Bingham to impose a legal burden; that burden was proportionate because the offence criminalises being in charge while unfit, the issue of likelihood of driving lies peculiarly within the defendant's knowledge and the legislative aim (preventing driving while unfit) is legitimate and proportionately addressed.
• Section 11(1) of the Terrorism Act 2000 is broad and could capture persons whose conduct is not blameworthy; although Parliament clearly intended section 11(2) as a legal burden, on principle and applying section 3 HRA the court read that subsection down so that it imposes an evidential burden only. That reading preserved Convention rights while giving effect, as far as possible, to Parliament's intent.

The House therefore reinstated the justices' decision in Sheldrake and answered the Attorney General's question by directing that section 11(2) be treated as imposing an evidential burden.

The House allowed the Director of Public Prosecutions' appeal in Sheldrake (reinstating the magistrates' decision): section 5(2) of the Road Traffic Act 1988, read conventionally, imposes a legal burden on the accused and this was compatible with article 6(2) on the facts and in principle. In the Attorney General's Reference the House held that although section 11(2) of the Terrorism Act 2000, read literally, imposes a legal burden, it should be read down under section 3 of the Human Rights Act 1998 so as to impose an evidential (not persuasive) burden, because a legal burden would risk unfair convictions of persons whose conduct may be blameless.

Sheldrake: conviction by justices at Colchester; case stated to the High Court (Administrative Court) [2003] EWHC 273 (Admin), appeal allowed by majority; Director of Public Prosecutions appealed to the House of Lords ([2004] UKHL 43). Attorney General's Reference No 4 of 2002: referred to Court of Appeal ([2003] EWCA Crim 762), then referred to the House under section 36(3) Criminal Justice Act 1972; final determination by the House of Lords [2004] UKHL 43.