Sheldrake v Director of Public Prosecutions

This is an appeal by way of case stated by the appellant, Peter Sheldrake, against his conviction by justices in North East Essex on 26 June 2001. On that date he was convicted of being in charge of a motor vehicle on 9 February 2001 at Stanway after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit, contrary to Section 5(1)(b) of the Road Traffic Act 1988 (“the 1988 Act”). On 23 July 2001 he was sentenced to a community punishment order of 160 hours, his licence was endorsed with 10 penalty points and he was ordered to pay costs of £395. The justices stated a case for the opinion of the High Court on 18 September 2001. On 1 March 2002 this court suspended the operation of the community punishment order, pending the appeal. The appeal came on for hearing on 7 October 2002 before Latham LJ and McCombe J They were however unable to agree and directed a rehearing before a three judge court. We are that court.

The essential question for decision in this appeal is whether, having regard to article 6(2) of the European Convention on Human rights (“the Convention”) and section 3(1) of the Human Rights Act 1998 (“the HRA”), the reverse onus of proof provision in section 5(2) of the 1988 Act imposes a legal or evidential burden on an accused charged with an offence contrary to section 5(1)(b).

Section 5 of the 1988 Act provides:

“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.”

Offences under section 5(1)(a) and 5(1)(b) are triable summarily. Section 5(1)(a) carries a maximum of six months imprisonment and a fine on level 5. Disqualification is mandatory. Section 5(1)(b) carries a maximum of three months and a fine on level 4. Disqualification is discretionary. See section 9 and schedule 2 of the Road Traffic Offenders Act 1988.

Article 6(2) of the Convention provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

The justices found the following facts in paragraph 2 of the case:

“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.

The justices posed these questions for the opinion of the court.

“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 held that the provisions of section 5(2) of the 1988 Act did not infringe article 6(2) of the Convention. They said that the presumption of innocence preserved by article 6(2) was not compromised because the prosecution had to prove that the appellant was in charge of the vehicle which did not involve any presumption that he was likely to drive it. They rejected the appellant’s contention that the likelihood of driving was an essential element of the offence. They further held that, if they were wrong about that, section 5(1)(b) and section 5(2) pursued a legitimate aim, namely preserving public safety by seeking to prevent persons taking to the road whilst unfit to drive by reason of alcohol or drugs. Finally they held that the measures imposed by the statute were proportionate to the legitimate aim pursued.

It is common ground that, if section 5(2) of the 1988 Act is construed without regard to section 3(1) of the HRA, it imposes a legal or persuasive burden on an accused charged with an offence under section 5(1)(b) to prove 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. It is also common ground that a legal burden and a persuasive burden are the same and that, where such a burden is imposed on an accused, he must prove the relevant facts on the balance of probabilities. I shall refer to such a burden as a legal burden.

The parties were correct to agree that the burden is a legal burden because, as has been said in a number of cases, the expression ‘it is a defence … to prove’ certain facts is a classic legislative tool for imposing such a burden: see eg R v Lambert [2002] QB 1112 (CA), [2001] UKHL 37 [2002] 2 AC 545 (HL), per Lord Hope, Lord Clyde and Lord Hutton at paragraphs 76, 132 and 182 respectively and S v London Borough of Havering [2002] EWCA Crim 2558, 20 November 2002, per Rose LJ giving the judgment of the court which had been prepared by Davis J at paragraph 19.

Mr James Turner QC submits on behalf of the appellant that the imposition of a legal burden is contrary to article 6(2) of the Convention because it derogates from the presumption of innocence. He does not however submit that the court should grant a declaration of incompatibility under section 4(2) of the HRA. He submits that section 5(2) of the 1988 Act should be construed so as to be compatible with the Convention under section 3(1) of the HRA, which provides:

“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.”

He submits that section 5(2) can be construed as being compatible with the Convention by being what is known as ‘read down’ so as to provide that an evidential burden is placed upon the defendant such that, once that burden is discharged, the legal burden of negativing the defence is on the Crown. He further submits that it is for the Crown to show that it was necessary for a legal burden to be imposed on the defence and that they have failed to do so.

Before considering the particular questions posed by the justices it is I think appropriate to say something about the principles applied by the courts where the Crown relies upon provisions which impose a legal burden on the accused. There have now been quite a number of cases which have considered such provisions in different contexts since the House of Lords considered the problem in R v DPP ex p Kebilene [2000] 2 AC 326 and Lambert.

The question arises in each case whether there is a conflict between the presumption of innocence enshrined in article 6(2) of the Convention and the particular reverse onus provision which is under scrutiny. In paragraphs 32 to 34 of his speech in Lambert Lord Steyn set out some of the history of article 6(2). I will not therefore repeat it here, save to underline three aspects of the points which he makes. I do so because they highlight the importance of the presumption.

The first is the common law approach stated by Viscount Sankey LC in Woolmington v Director of Public Prosecutions [1935] AC 462, 461:

“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.”

The second is the view expressed by the Criminal Law Revision Committee in its 11^th Report, Evidence (General) (1972) (Cmnd 4991) in paragraph 140:

“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) [1987] 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.

The third can be seen from paragraph 34 of Lord Steyn’s speech:

“34

In McIntosh v Lord Advocate [2001] 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 [1997] 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.”

In several of the cases the courts have taken as a starting point this statement of the European Court of Human Rights (“ECHR”) in paragraph 28 of its judgment in Salabiaku v France (1988) 13 EHRR 378, 386:

“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.”

Thus Lord Steyn quoted part of that passage in the last part of paragraph 34 of his speech and added:

“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 Lőnnroth v Sweden (1982) 5 EHRR 35, 52, paragraph 69. I shall return below to the question how that fair balance should be achieved.

It may be said that this part of the discussion in the House of Lords in Lambert is obiter because the House decided that article 6 of the ECHR had no application because the trial took place before the HRA came into force. However, the reasoning in this part of Lambert has since been followed in the Court of Appeal, as for example in R v Carass [2001] EWCA Crim 2845, [2002] 1 WLR 1715, and in my opinion we should follow it.

In Lambert the court was considering the offence of possession of a controlled drug with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971. Section 5 was expressly subject to section 28, which provided in subsection (2) that, subject to subsection (3), it was a defence for the accused to prove that he neither knew of nor suspected nor had any reason to suspect the existence of some fact alleged by the prosecution which it was necessary for the prosecution to prove if he was to be convicted of the offence charged.

The Court of Appeal posed two questions under this head. As identified by Lord Slynn at paragraph 3, the first was in substance whether it was an essential element of the offence of possession with intent to supply that the accused knew that he had a controlled drug in his possession and the second was whether section 28(2) imposed a legal or evidential burden on the accused.

In considering the answer to the first question most of their lordships considered in the first place the true construction of section 28(2) applying ordinary principles of construction and without regard to the HRA or the Convention. As I read their speeches, Lord Slynn, Lord Hope, Lord Clyde and Lord Hutton held at paragraphs 16, 71, 128 and 181-2 respectively that the answer to the first question was no. Thus it was held that on the true construction of that subsection, applying ordinary principles of construction and without reference to the HRA, it imposed a legal burden on the accused to prove absence of relevant knowledge, suspicion or reason to suspect.

To my mind the same is true here. Thus it was held in DPP v Watkins [1989] 1 QB 821 that once the accused had assumed control of the vehicle he was “in charge” of it within the meaning of the predecessor of section 5(1)(b) of the 1988 Act and that there was no burden of proof on the prosecution in regard to the likelihood of the accused driving: see in particular per Taylor LJ, with whom Henry J agreed, at p 832 F.

However, that was not the end of the matter in Lambert. The House considered further (and to my mind somewhat different) questions. The first, as identified by Lord Steyn, was whether section 5(3) read with section 28(2) and (3) made an inroad on article 6(2) of the Convention and the second was, if so, whether section 28(2) was justified and proportionate. The same questions arise in the instant case. They are: (1) whether section 5(1)(b) of the 1988 Act, read with section 5(2), makes an inroad on or derogates from article 6(2) of the Convention, (2) if so, whether section 5(2) is justified, (3) if so, whether section 5(2) is proportionate if it imposes a legal burden on the accused and (4) if not, whether it can and should be read down under section 3(1) of the HRA as imposing only an evidential burden on the accused. I will consider the principles relevant to these questions under the headings ‘derogation from article 6(2)’, ‘justification’, ‘proportionality’ and ‘section 3(1)’.

The question which arises under this head has been variously put. At paragraph 35 Lord Steyn contrasted the submissions on either side. The appellant defendant’s submission was that the defence put forward under section 28(2) was an ingredient of the offence under section 5(3) because knowledge of the existence and control of the contents of the container, ie of the drugs, is the gravamen of the offence for which the legislature prescribed of life imprisonment. The DPP’s submission was that what the offence does is to make the defendant responsible for ensuring that he does not take into his possession containers which in fact contain drugs.

Lord Steyn said in paragraph 35:

“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.

He continued:

“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 [1975] QB 27, 40; R v Hunt (Richard) [1987] 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 (4^th) 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.

Mr Turner submits that, if that principle is applied to section 5 of the 1988 Act, the same conclusion should be reached as in Lambert because, although the likelihood of the accused driving is not formally part of the offence, it is the gravamen of the offence under section 5(1)(b). He relies upon this statement made by Taylor LJ in Watkins at p 829 B-C, after he had said that the offence of “in charge” was the lowest of the three charges relating to driving and drink:

“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.”

I respectfully agree. As Taylor LJ put it, the offence is aimed at those who may try to drive the vehicle while still unfit through drink or, differently expressed, put themselves in a situation where there is a risk that they may drive a vehicle while still unfit. The offence carries a maximum of three months’ imprisonment, which would only be likely to be invoked if a person convicted of the offence was either a persistent offender or was well over the limit and likely to drive. Thus I would accept Mr Turner’s submission that likelihood of driving is part of the gravamen of the offence.

In these circumstances I would hold that the position here was the same as in Lambert, namely that section 5(1)(b) read with section 5(2) makes an inroad on or derogates from the presumption of innocence in article 6(2). To adopt Dickson CJ in Whyte, section 5(2) violates the presumption of innocence because it enables an accused to be convicted even though the court is not sure that there is a likelihood or risk of his driving. I would therefore answer the first question posed by the justices in the negative.

It is common ground that there are circumstances in which it is permissible for states to interfere with the presumption of innocence by legislation. In Lambert the House of Lords was of the view that possession of drugs with intent to supply was such a case. Thus Lord Steyn said in paragraph 36 that he was satisfied that there was an objective justification for some interference with the burden of proof in prosecutions under section 5 of the 1971 Act. The basis of his view was, first, that drugs are typically secreted in containers enabling the person in possession to say that he was unaware of the contents and, second, that such defences are commonplace and pose real difficulties for the police and prosecuting authorities.

It is common ground that there was a similar objective justification here to impose upon the accused a burden with regard to the likelihood of his driving. The rationale for that justification is, in my view, that the likelihood or otherwise of the accused driving will normally involve consideration of the accused’s present or future intention to drive. That is a matter which is particularly within the knowledge of the accused. It may be difficult for the prosecution to deal with, unless there is at least some burden on the accused to put forward his case. I would therefore answer the first part of the second question posed in the case in the affirmative. Thus the justices were entitled to be satisfied that a legitimate aim was being pursued by the legislation. The second part of the second question raises the issue of proportionality.

I should perhaps add that, as I understand the relevant principles, if it were held that there was no objective justification for some interference with the burden of proof, the correct course would be to make a declaration of incompatibility with respect to the offending reverse onus provision.

The first question under this head is what is the correct approach to the question in what circumstances the state is entitled to impose a legal burden as opposed to an evidential burden on the accused. As further discussed below, there has been some criticism of the expression ‘evidential burden’. However, its meaning is clear. As put in paragraph 138 of the Criminal Law Revision Committee Report referred to above, an evidential burden means that the relevant matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but that, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury or the justices on the matter beyond reasonable doubt. I will return below to the question how that would apply in practice in this case.

It is in this regard that the court must strike the fair balance between the demands of the general interest of the community and the protection of the fundamental rights of the individual, which is referred to by Lord Hope in Kebilene and touched on in paragraph 19 above. How should that balance be struck?

In this regard, I have been somewhat puzzled by the relationship between proportionality and the possibility of reading down the relevant provision in accordance with section 3(1) of the HRA. I at one time thought that, if it is possible to read down the relevant provision, it must be read down so as to impose an evidential burden and not a legal burden on the accused. It seemed to me that some support for that conclusion could be derived from the speech of Lord Slynn in Lambert.

In paragraph 17 Lord Slynn said that it was not necessary to determine whether a legal burden was justified or proportionate, but then set out the provisions of section 3(1) of the HRA, which begin with the words “So far as it is possible to do so … ”. He then said that he had no doubt that it was “possible”, without doing violence to the language or the objective of the section, to read the words as imposing only the evidential burden of proof. He added:

“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.”

On that view it seemed to me that the question was not or might not be whether it is necessary to provide a legal onus but whether it is possible to read down the section. Lord Clyde seemed to me to have approached the problem in a similar way: see paragraph 157. However, on further consideration it seems to me that it is not quite as simple as that, as appears in particular from the speeches of Lord Steyn and Lord Hope.

As I read the speeches of Lord Steyn and Lord Hope, the issue of proportionality falls to be considered before the question whether the provision can be read down in accordance with section 3(1) of the HRA arises. This is because section 3(1) provides that legislation must be read and given effect in a way which is compatible with the Convention. If the imposition of the legal onus on the accused is proportionate, there is no breach of an accused’s Convention rights, including his rights under article 6(2), because the interference with the presumption of innocence is justified and it follows that there is no need to read down the relevant provision in order to make it compatible with Convention. It is compatible without any reading down.

On the other hand, if the imposition of a legal burden is not proportionate, the question arises whether the relevant provision can be read down so as to provide an evidential burden which is compatible with the Convention instead of a legal burden which is not. It is, as I see it, for that reason that Lord Steyn considered section 3(1) of the HRA in paragraph 42 only after he had considered the issue of proportionality.

It is in deciding whether the relevant provision is proportionate that, as Lord Steyn said in paragraph 37, the burden is on the state to show that the legislative means adopted were not greater than necessary. He observed that, where there is an objective justification for some inroad on the presumption of innocence, the legislature has a choice, namely whether to impose a legal or evidential burden on the accused. In paragraph 38 he said that the principle of proportionality required the House to consider whether there was a “pressing necessity to impose a legal rather than evidential burden on the accused”.

In paragraph 88 Lord Hope said that it was now well settled that a balance had to be struck as stated above and added:

“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.

In Carass the Court of Appeal Criminal Division summarised the position thus:

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.

There have been a number of cases since Carass, but I do not read any of them as contradicting the conclusion that the test is one of necessity: se eg R v Daniel [2002] EWCA Crim 959, 22 March 2002, per Auld LJ, giving the judgment of the court at paragraph 24. The question is therefore whether it is necessary to construe section 5(2) as imposing a legal burden of proof and not an evidential burden.

In considering that question it is, I think, appropriate to compare the effect of imposing a legal as opposed to an evidential burden on the accused. If the burden imposed by section 5(2) is legal it is for the accused to prove on the balance of probabilities that there is no likelihood of his driving while still over the limit.

That is to be contrasted with the position if the burden is evidential. There has been some criticism of the use of the expression evidential burden: see eg Lynch v DPP [2001] EWHC Admin 882, [2002] 2 All ER 854, per Pill LJ at paragraphs 22 and 23 and Daniel per Auld LJ at paragraph 26. However, both Pill LJ and Auld LJ recognised that it has been used in the cases and it is to my mind sensible to continue to use it provided that it is recognised that all that is required to discharge the burden is to identify evidence raising the issue.

The cases have not all described the effect of a burden being held to be evidential in the same way. For example they sometimes refer to the accused adducing evidence or giving evidence or sufficient evidence to raise the issue: see eg Lambert per Lord Steyn at paragraph 42 and per Lord Hope at paragraphs 92 to 94 and Carass at paragraph 62.

As Lord Hope observed at paragraph 92 in Lambert, Parliament has recently recognised the force of the argument that as a general rule statutory provisions which require the accused to prove something as a defence should be read and given effect to as if they imposed only an evidential and not a legal burden. He added:

“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.” ”

So, here, the accused would have to adduce evidence that there was no likelihood of his driving while still over the limit which was sufficient to raise the issue whether there was no such likelihood. If he did so, the prosecution would have to prove beyond reasonable doubt that the defence that there was no likelihood of his driving was not established. Put like that, the question seems unnecessarily complicated. However, it can to my mind be restated positively.

That it is permissible to restate the question positively can perhaps be seen from the decision of the Court of Appeal Criminal Division in R v Lang and Deadman [2002] EWCA Crim 298, 5 February 2002, where the court was considering section 5(3) of the Misuse of Drugs Act 1991, which was of course the very section discussed in Lambert in which the House of Lords expressed the view that section 28(2) should be read down so as to provide for an evidential burden of proof. In paragraph 31 Pitchford J, giving the judgment of the court, which included Kennedy LJ and Aikens J, said this:

“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.”

That seems to me to be an illuminating passage for two reasons. The first is that it clarifies what the cases mean when they refer to adducing evidence or giving evidence. They mean demonstrating from the evidence. As I see it, the evidence can be given by the prosecution or by the defence. It might take the form of something said to the police at the scene, or something said in interview or something said by the defendant or anyone else in the witness box, provided in each case that it is put in evidence. I am not sure whether the question whether the accused has raised an arguable case is a matter for the judge or jury, although I would have thought that it was a matter for the judge, as with, for example, provocation or self-defence; but that is not relevant here because in a case before the justices it is for them to decide both the question whether the accused has raised an arguable case and, if so, the question whether the prosecution has discharged the burden on it.

The second reason is that Lang and Deadman shows that, although strictly the burden is on the prosecution to negative the defence, it can be expressed positively. Here the defence in section 5(2) is that there was no likelihood of the accused driving while still over the limit. If the subsection is read literally, in order to prove that the defence is not made out, it might be said that the prosecution must prove that there was not no likelihood of his driving or, less inelegantly, that the circumstances were not such that there was no likelihood of his driving. It would however make more sense to put the same point positively.

If it is put positively, the question would be whether the justices were sure that there was a likelihood of the accused driving. However, that would I think be misleading unless it were made clear what was meant by likelihood in this context. It cannot mean more probable than not because that would not mean that the circumstances were not such that there was no likelihood of his driving. The answer lies in the fact that the word ‘likely’ and ‘likelihood’ may have very different meanings depending on the context.

Context is always of great importance. It is of particular importance here. Lord Nicholls demonstrated the point when considering the expression “likely to suffer significant harm” in section 31(2)(a) of the Children Act 1989 in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at p 584 G:

“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?”

In my opinion much the same can be said of the word ‘likelihood’ and the same question should be asked. Thus, if the justices must be sure that there was a likelihood of the accused driving while still over the limit, the context shows that ‘likelihood’ is being used in the second of the two meanings attributed to ‘likely’ by Lord Nicholls. The question can thus be restated as whether the justices are sure that there was a risk, that is a real risk which ought not to be ignored, of the accused driving while still over the limit. As I see it, the contrast is between a real risk and a fanciful risk.

Two aspects of the context seem to me to lead to that conclusion. The first is that ‘likelihood’ is being used as the reverse (or perhaps obverse) of ‘no likelihood’ because of the express terms of section 5(2), and ‘no likelihood’ ordinarily carries a meaning similar to ‘no risk of’. The second is the purpose of the offence created by section 5(1)(b), as demonstrated from the extract from the judgment of Taylor LJ in Watkins at p 829 C which I have already quoted, namely that the offence is intended to convict those who have already formed “or may yet form the intention to drive the vehicle, and may try to drive it whilst still unfit”. Put another way, Taylor LJ was saying that the section was designed to convict where there is a risk of the accused driving while over the limit.

For these reasons, if section 5(2) is treated as imposing an evidential burden, it would be for the accused to demonstrate from the evidence an arguable case that there was no likelihood of his driving while still over the limit and, if he did so, it would be for the prosecution to satisfy the justices so that they were sure that there was a real risk of his driving while over the limit, in the sense of a risk which ought not to be ignored or, put another way, was not fanciful. To my mind this is not a high test for the prosecution to satisfy.

The question is then whether the prosecution have shown that it is necessary to impose a legal burden on the accused. In my opinion they have failed to discharge that burden.

Mr Ashley-Norman submits with force that whether the accused intended to drive is something within his knowledge which he can readily prove and which it is difficult for the prosecution to gainsay. Thus he submits that, if a driver says that he did not intend to drive, there is little the prosecution can do. It follows, he submits, that unless a legal burden is imposed, convictions will be difficult to achieve, which is highly undesirable given the purpose of the legislation having regard to the mischief at which it is aimed. That purpose is, he submits, to convict those who have already formed the intention of driving or may yet form that intention while still over the limit and who may drive with consequent danger to others and themselves.

I see the force of those submissions, but I am not persuaded that they satisfy the test of necessity. It is true that, where an accused says, perhaps to the police at the scene or in interview, that he did not intend to drive or that he had made arrangements for a taxi, it may not be easy to adduce evidence to the contrary. However, there are very many aspects of the criminal law in which the state of mind of the accused is of crucial importance but where the burden of proving it is on the prosecution.

Moreover, it is to my mind important here to note that the intention of the accused to drive at a particular time is only one factor in deciding whether there is a risk that he may drive while still over the limit. A man’s intention may change, especially at night when influenced by alcohol.

The risk of subsequent driving can be illustrated by the facts of the present case. It may be that the accused did not intend to drive when well over the limit on the evening of 9 February. The question was, however, whether there was a risk of his driving while still over the limit when he woke up on 10 February, since the justices found that he would still be over the limit until about 1140 am. If an evidential burden were applied and the accused raised an arguable case, it would be for the justices to decide whether there remained a risk of his driving. I see no reason why they should not have been able to do so without injustice to either party.

It seems to me that in the vast majority of cases there will be evidence from which the justices can decide whether there was such a risk or not and I can see no reason why they should not have to be sure of that. I do not consider that the requirement in this respect of the criminal standard of proof will make section 5(1)(b) less effective in achieving its purpose to any significant effect. The alternative is that the accused can be convicted even though the justices are not sure that there was a risk of the accused driving in circumstances where the existence of a risk of his driving is part of the substance of the offence.

We were referred to a number of cases, which were said to be of assistance one way or the other. However, to my mind they are of limited assistance. Each statute gives rise to different considerations, so that it is unlikely to be helpful to consider what decisions have been made in different cases under different statutes concerned with different subject matters. Nevertheless, I should I think refer briefly to some of the cases to which we were referred.

I refer first to R v Drummond [2002] EWCA Crim 527, 7 March 2002, which was a breathalyser case and is thus potentially closer to the instant case than many of the others. The judgment of the court was given by Longmore LJ, the other members of the court being Johnson J and the Recorder of Manchester. The appellant was convicted of causing death by careless driving with excess alcohol contrary to section 3A(1)(b) of the 1988 Act. The offence occurred some time before 1042 pm, he was arrested at home at about 1120 pm and he was breathalysed at the police station at about 1202 am. He said that he had consumed alcohol after arriving home.

Section 15 of the Road Traffic Offenders Act 1988 Act applies to proceedings for an offence under sections 3A, 4 and 5 of the 1988 Act. It thus applies to offences under section 5(1)(b). Section 15(2) provides that, subject to subsection (3), it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence is not less than in the specimen. Section 15(3) provides:

“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 question in Drummond was whether section 15 imposed a legal burden on the accused and, if so, whether it was justified and, as Longmore LJ put it at paragraph 34, no greater than necessary. The court thus applied the test of necessity identified above. It held that section 15 did impose a legal burden and that it was both justified and necessary. The essence of its reasoning can be seen in paragraph 31:

“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.”

That reasoning shows how far the facts of that case are from this. Although, as explained above, the intent or intention of the accused to drive is potentially relevant to the likelihood of his driving, none of the other factors referred to in Drummond applies here. That is especially true of the third and fourth factors identified in paragraph 31 quoted above. I do not think that there is anything in the reasoning in that case which points to the conclusion that it was necessary to impose a legal burden on the accused here.

Mr Ashley-Norman also places some reliance upon Lynch. This court was there considering section 139(1) of the Criminal Justice Act 1988 which provides in substance that, subject to subsections (4) and (5), any person who has an article which has a blade or is sharply pointed, shall be guilty of an offence. Subsection (4) provides that it shall be a defence for the accused to prove that he had good reason or lawful authority for having the article with him in a public place.

The court in Lynch considered whether the fair balance to which I have referred above permitted the existence of a reverse onus in the context of section 139. It held that it did. Pill LJ gave a number of reasons in paragraph 28 and Poole J gave a further reason in paragraph 30. It is not easy to see where in Lynch the court considered the crucial question, which is not whether a reverse onus can be justified but whether, that being the case, it is necessary to provide for a legal and not simply an evidential burden. However, assuming that the court did address that question and decide that it was necessary, I do not think that the reasons which were held to determine it in that case are of particular assistance in resolving the question which arises in the instant case on very different facts under a very different statute.

In S v London Borough of Havering the court was concerned with a charge under section 92(1) of the Trade Marks Act 1994, which provides that a person commits an offence who, with a view to gain for himself or with intent to cause loss to another, does various things including offering for hire goods which bear a registered trademark. By section 92(5) it is a defence for the accused to show that he believed on reasonable grounds that the use of the sign was not an infringement of the registered trademark. The offence carried a maximum sentence of ten years’ imprisonment. The prosecution case was that, if the section was treated as imposing an evidential burden then there would be grave and possibly insuperable problems in rebutting such a defence beyond reasonable doubt.

The court held (among many other things) that, assuming section 92(5) to derogate from the presumption of innocence in article 6(2) of the Convention, there is a heavy burden on the prosecution to justify a reverse legal burden provision as “necessary, justified and proportionate”: see paragraph 47. However, it held that the prosecution discharged the burden. It summarised its reasons in paragraph 48. None of them seems to me to have a direct bearing on the correct approach to the instant case.

As I read the summary, the court was struck by the fact that the Trade Marks Act is consumer legislation and that section 92 creates what is is in the nature of a regulatory offence and that an effective and workable regime could not sensibly depend on proof by the prosecution in every case, for example, of a trader’s absence of belief on reasonable grounds that the goods were genuine. Moreover it accepted the prosecution submission that the imposition of only an evidential burden would cause insuperable problems for trading standard departments. The case is thus a far cry from the present.

The same is true of the last case to which I should refer. It is Davies v Health and Safety Executive [2002] EWCA Crim 2949, 18 December 2002, where the court comprised Tuckey LJ, Douglas Brown J and His Honour Judge Gordon. It was a prosecution under sections 3(1) and 33(1) of the Health and Safety at Work Act 1974, which make it an offence for an employer to fail to discharge his undertaking in such a way as to ensure, as far as practicable that various persons are not thereby exposed to risks to their health and safety. Section 40 provides that it shall be for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty.

Tuckey LJ, giving the judgment of the court, held that the defence under section 40 imposed a legal burden on the accused and that it made an inroad into the presumption of innocence. The court then (at paragraph 10) asked the questions posed above, namely whether the state had justified that inroad as no greater than was “necessary, justified and proportionate”. It held that it was. Again, the case is very different from this because, as Tuckey LJ put it at paragraph 15, the health and safety legislation is regulatory rather than prescriptive. He distinguished between “truly criminal and regulatory offences” and held that this was in the latter class. He also drew attention to the fact there was no risk of imprisonment, although it is fair to say that there was a such a risk in S v London Borough of Havering. Finally the court was struck by the problems which would be faced by a radical change in the regime of the Act as it had operated to date.

The crucial distinction between cases like Davies and cases like this can be seen from two particular paragraphs of the judgment in that case. The first is paragraph 15, where the court points to the importance of the distinction between regulatory legislation and prescriptive legislation in the balancing exercise. It set out this important statement made by Lord Clyde in Lambert at paragraph 154:

“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 second paragraph is paragraph 16, where the court in Davies set out and (as I read it) adopted the reasons given for the distinction between truly criminal and regulatory offences spelt out by Cory J in the Canadian Supreme Court in R v Wholesale Travel Group (1991) 3 SCR 154. This is part of Cory J’s judgment quoted in Davies:

“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.”

That distinction is further discussed in a judgment which is also handed down today in a case in which Jack J and I happen to be involved, namely R on the application of Grundy and Co Excavation Ltd v Halton Magistrates’ Court [2003] EWHC Admin 273 (QB), where the claimants were prosecuted by the Forestry Commission for felling trees without a licence. It is an important distinction in deciding whether or not it is necessary to impose a legal burden of proof on the accused. Necessity is not of course an absolute concept. What is or is not necessary depends upon all the circumstances, which is not surprising since it is the essential criterion by which the court judges whether it would be proportionate to impose a legal burden on the accused and proportionality is a flexible concept.

The distinction between the correct approach to cases of a regulatory type and to cases which are truly criminal and involve moral fault or (as it is sometimes put) moral obloquy seems to me to point the way here. Mr Ashley-Norman submits that section 5(1)(b) of the 1988 Act is not a truly criminal statute but is regulatory in nature. I would not, however, accept that submission. Of course, as Cory J observed, some regulatory legislation is designed to protect motorists and section 5 of the 1988 Act no doubt has the protection of motorists, and indeed the public, as a significant part of its purpose; but all (or almost all) legislation which provides for criminal offences is intended to protect the public or a section of the public.

To my mind section 5, including section 5(1)(b), is designed to punish acts involving moral fault. Driving or attempting to drive a car when over the limit is now publicly regarded as a serious criminal offence involving inherently wrongful conduct. So too, as I see it, is the offence of being in charge of a car while over the limit at a time when there is a real risk of the accused driving the car while still over the limit. The burden of proving that the accused was driving or attempting to drive is on the prosecution. So too should the burden of proving that there is real risk of the accused who is in charge when over the limit, once the issue has been raised by the accused by pointing to some evidence that there was no likelihood of his doing so.

Since preparing a draft of this judgment I have seen copies of the judgments of both Henriques J and Jack J in draft. I have reconsidered the question in the light of their conclusions. I have not, however, changed my view that the prosecution has failed to show that it is necessary to impose a legal burden on the accused to prove that there was no likelihood of his driving while still over the limit. In short I agree with the reasoning of Jack J and prefer it to that of Henriques J. The key points are these:

In conclusion, I would hold that the prosecution has failed to show that it is necessary to impose a legal burden on the accused to show that there was no likelihood of his driving while still over the limit. I do not think that to impose a legal burden on the prosecution to prove that there was a real risk of his driving will cause undue problems for prosecutors. It is not a heavy burden and should be capable of proof on the facts of the great majority of cases, if not all cases. It follows that I would hold that it has not been shown to be proportionate to impose a legal burden.

I would add that I recognise, as Henriques J has demonstrated, that due regard must be paid to the approach adopted by Parliament. It is, however, ultimately a matter for the court whether it was necessary to impose a legal burden on the accused. It is only recently that it has been recognised that, in the context of reverse burdens which derogate from the presumption of innocence enshrined in article 6(2) of the Convention, the question whether the particular provision should be construed as imposing a legal burden or read down as imposing an evidential burden is whether it was necessary to impose a legal burden. The test is not a lower test such as whether it was reasonable to do so. It is not clear to me that, in enacting section 5(2), Parliament itself addressed the question whether it was necessary, as opposed to (say) reasonable, to impose a legal burden.

The remaining question is whether it is possible to read down section 5(2) so that it imposes only an evidential burden. In my opinion it is, just as it was in Lambert and Carass. As I see it, section 5(2) can be read as follows:

“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.”

Given that it is possible to read the section in that way, it follows that it should be so read under section 3(1) of the HRA because it is necessary to do so in order to ensure that it is compatible with the Convention.

In his judgment Henriques J says that, if he had favoured a ‘reading down’ of section 5(2), he would have used the words ‘adduced sufficient evidence to raise the issue’ in substitution for the words ‘demonstrate from the evidence in the case’ suggested above. He refers both to the speeches of Lord Steyn and Lord Hope in Lambert and to the provisions of section 118(2) of the Terrorism Act 2000. In these circumstances I should stress that I read the two expressions as having the same meaning: see paragraphs 48 to 52 above. The reason I prefer the expression ‘demonstrate from the evidence in the case’, which I took from Lang and Deadman, is that it makes clear that it is not necessary for evidence to be given as part of the defence case to raise the issue. As I see it, a person ‘adduces evidence’ within the meaning of that expression even though the evidence given may be part of the evidence given by the prosecution and not necessarily by the defence.

My conclusions may be summarised as follows:

I have had the advantage of reading the judgments of Clarke LJ and Jack J. Whilst dissenting as to the eventual outcome of this appeal there is substantial agreement between us as to the law and the proper approach of the Courts in deciding where to draw the line between the basic rule that the persuasive burden of proof should be on the prosecution and the exceptions that necessity demands to be made to the contrary.

It is my view that the reverse legal burden in section 5(2) of the Road Traffic Act 1988 is justified and proportionate.

At paragraph 25 of his judgment Clarke LJ has I believe extracted the critical questions from R v Lambert [2002] 2 AC 545 (HL) namely:

We are agreed as to i) namely that there is derogation from the presumption of innocence in article 6(2). I agree that although the likelihood of the accused driving is not formally part of the offence, it is the gravamen of the offence under section 5(1)(b).

Further we are agreed as to ii) namely that there is an objective justification here to impose upon the accused a burden. Parliament was engaged in seeking to control those who take charge of their motor vehicles having consumed an excess of alcohol. The likelihood of driving is within the knowledge of the accused and outside the knowledge of the prosecution.

It is on the issue of proportionality that my views depart from those of Clarke LJ and Jack J. I consider it to be necessary to construe section 5(2) as imposing a reverse legal burden and not an evidential burden for reasons I will develop in this judgment. Had I not reached this conclusion I would have concluded that section 5(2) could be read down under section 3(1) of the Human Rights Act.

Lord Steyn at paragraph 38 in Lambert observed:

“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.

In contrast the maximum sentence for being in charge with excess alcohol is 3 months imprisonment and I agree with Jack J that it is a power seldom exercised save in the case of repeat offending. Furthermore disqualification from driving is discretionary whilst it is mandatory in cases of driving or attempting to drive with excess alcohol. It is to be noted that in the instant case notwithstanding a reading more than 4 times in excess of the prescribed limit the appellant was not disqualified from driving.

In assessing proportionality the maximum sentence (for this offence 3 months imprisonment and discretionary disqualification and a fine) and the standard sentence published in Wilkinsons Road Traffic Offences as a fine on level 4, 10 Penalty Points and no disqualification are highly relevant. Since the inherent danger of the reverse burden technique is that an innocent accused may fail on the balance of probabilities to establish his innocence – the consequences of failure are relevant.

A number of recent decisions have upheld reverse burdens as being reasonable and proportionate. In R v Lambert, Ali and Jordan [2001] 2 WLR 211 the Court of Appeal Criminal Division decided that section 2 of the Homicide Act 1957 placing the onus of proving the partial defence of diminished responsibility on the defendant was compatible with article 6(2).

In Lynch v DPP [2002] 2 All ER 854 the Divisional Court, (Pill LJ and Poole J) held that the provision requiring a defendant to prove a good reason for having with him a bladed instrument under section 139 of the Criminal Justice Act 1988 does not conflict with article 6(2). The Court enunciated three critical factors:

In R v Drummond [2002] EWCA Crim 527 the Court of Appeal Criminal Division, Longmore LJ, Johnson J and the Recorder of Manchester, upheld the compatibility in section 15 of the Road Traffic Act 1988 stating that it shall be assumed that the proportion of alcohol in a drivers blood was the same at the time of driving as it was at the time of the blood test unless the defendant was able to prove otherwise. Longmore LJ stated:

“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.”

Factors one, two and four are all relevant to the instant case. The offence of being in charge does not require the Court to ascertain the intent of the accused at all. Conviction follows after a scientific test with any inexactitude working in favour of the accused. Further in the event of scientific evidence being relied upon to ascertain whether the accused would still have remained over the limit when next he drove, all the relevant scientific evidence was within the knowledge or means of access of the accused rather than the prosecution. I consider that these three factors coupled with the fact that the same statute is under consideration militates in favour of the reverse legal burden remaining in section 5(2).

In S v London Borough of Havering [2002] EWCA Crim 2558 the Court of Appeal Criminal Division, Rose LJ, Hughes J and Davis J, justified the reverse legal burden provision under section 92(1) of the Trade Marks Act 1994 notwithstanding the fact that the maximum sentence for the relevant offence was 10 years imprisonment. The factors considered relevant by the Court were:

I have found this judgment of considerable assistance and with minimal adjustment it’s wording can be related to section 5(2) of the Road Traffic Act.

Most recently the Court of Appeal Criminal Division, Tuckey LJ, Douglas Brown J and Judge Gordon, upheld the reverse legal burden in section 40 of the Health and Safety at Work Act in Davies v Health and Safety Executive [2002] EWCA Crim 2949. Tuckey LJ justified the reverse legal burden on the following bases:

The case of R v Carass [2001] EWCA Crim 2845, [2002] 1 WLR 1715, was citied and relied upon by Mr Turner QC for the Appellant. Waller LJ, Rougier J and Stanley Burnton J sitting in the Court of Appeal Criminal Division held that there was no justification for imposing a legal burden rather than an evidential burden of proof on a Defendant who raised a defence under section 206(4) of the Insolvency Act 1986. Waller LJ said this:

“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”

As a matter of judgment the Court decided there was no justification for a reverse legal burden on the defendant. Paramount in their deliberations appears to have been the third of Mr Pannick’s questions approved by Lord Hope in Ex p Kebilene [2002] 2 AC 326 namely ‘What is the nature of the threat faced by society which the provision is designed to combat?’ The nearest the Court could get to it was ‘The provision operates to make it for the defendant to prove matters which the prosecution would be highly unlikely to be able to know about and which it might be difficult, if not impossible for them to rebut’. Suffice to say for present purposes that no threat to society was identifiable comparable with that posed by drunken driving.

The case carries rather less weight than otherwise it might by reason of Auld LJ’s observations in R v Daniel [2002] EWCA Crim 959. Sitting with Newman J and Roderick Evans J he said:

“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 find no assistance from either case nor from R v Lang and Deadman [2002] EWCA 298 another case concerning section 5(3) of the Misuse of Drugs Act 1971 where an evidential burden only was placed upon the Defendants.

In assessing proportionality and striking the balance three elements were identified by Mr Pannick QC in ex p Kebilene [2000] 2 AC 326. I have concluded that each points to the reverse legal burden in section 5(2) being proportionate.

In the same case Lord Bingham of Cornhill said at p 116:

“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.”

In R v Drummond Longmore LJ stated:

“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).

Being in charge of a motor vehicle with excess alcohol is an important offence in the regime created by Parliament to prevent or restrict drunken driving. It is an important offence because many of those arrested would have gone on to drive their vehicles whilst in excess of the prescribed limit. It is a prevalentoffence. In 1997, 1998 and 1999 there were 3,580, 3,785 and 3,481 cases of being in charge with excess alcohol prosecuted to conviction in England and Wales. Since it is more often than not the physical condition of the accused that attracts the attention of the police, many of those prosecuted have an extremely high blood alcohol content. In the present case, the appellant was more than four times in excess of the prescribed limit. He was asleep at 10.30 p.m. slumped over the steering wheel of his car. Based on an average rate of elimination of alcohol, he would not have been below the prescribed limit until approximately 11.40 a.m. the following morning. He claimed he had attempted to make arrangements for transport with a friend.

In considering the nature of the threat faced by society, I would conclude that is a high one. Persons behind the wheel of a parked car who are grossly inebriated may decide at any moment to drive their vehicle with potentially fatal consequences.

I am of the opinion that the answers to each of those questions posed by Mr Pannick QC demonstrates that the reverse legal burden imposed upon a defendant by section 5(2) is a measured and proportionate response by Parliament to the threat posed by those who consume alcohol to excess and take charge of their motor vehicles.

A consideration of the regime consequent upon a ‘reading down’ of section 5(2) fortifies me in my views. I foresee a regime, which will cause undue difficulty for both the prosecution, and the Courts whilst affording guilty accused enhanced opportunities of an acquittal.

The remainder of the Court favour a reading down of section 5(2) so that it reads:

“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.”

For my part, had I favoured a ‘reading down’ of section 5(2) I would have used the words ‘adduce sufficient evidence to raise the issue’ in substitution for the words ‘demonstrate from the evidence an arguable case’. I take these words from the speeches of Lord Steyn at paragraph 42 and Lord Hope at paragraph 94 of Lambert.

It is also significant that when Parliament itself has provided for an evidential burden to be placed upon a defendant similar words are used in section 118 (2) of the Terrorism Act 2000.

“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.”

Section 53(2) of the Regulation of Investigatory Powers Act 2000 places the onus of proving to the contrary beyond a reasonable doubt on the prosecutor if sufficient evidence of that fact is adduced to raise an issue with respect to it.

Whether it be ‘demonstrate from the evidence an arguable case’ or ‘adduce sufficient evidence to raise the issue’ a Court will necessarily have to determine whether the burden has in fact passed to the prosecution. Prosecutors in the conduct of their case will need to know whether the burden has passed.

Many accused will have uttered exculpatory remarks at the roadside or at the police station as in the present case, namely that he intended sleeping there all night and only had the engine running to keep him warm. Some will say that a friend or relation or a taxi was on the way to collect them.

Lord Steyn at paragraph 39 in Lambert confronted this problem by suggesting that Judges adopt the practice enunciated in R v Duncan (1981) 73 Cr App R 359 of telling juries that incriminating parts of statements are likely to be true, whereas excuses do not carry the same weight. Professor Birch at p.809 of the Criminal Law Review 2001 said this of the speeches in Lambert:

“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.”

Determining the circumstances in which the issue is raised will create much case law. Experience has shown how easily the issue of provocation can be raised in a murder trial. Since it is raised so easily comparatively little difficulty is caused. A mere assertion by an accused at the scene of the crime that he was provoked by the deceased’s conduct would certainly raise the issue and thereafter the prosecution would know their task. If different standards are to apply to the task of raising different issues, great uncertainty will result. Will it suffice for an accused at the kerbside to assert that he was not going to drive until the following day?

When the burden does shift the prosecutor’s task may prove extremely difficult. He will have to judge in advance of trial whether to adduce expert evidence. If it appears necessary to adduce expert evidence, either to rebut an assertion of fact or to counter expert evidence adduced by the accused, the prosecutor’s expert will be bound to accept information from the accused which may or may not be true – e.g. as to when he had his last drink and the critical scientific material will all be within the knowledge or means of access of the accused namely his blood-breath ratio, the rate at which his body absorbs alcohol, and the rate at which his body eliminates alcohol and the accused’s body weight.

The prosecutor will also face difficulty in deciding whether to adduce factual evidence. If an accused states to the police that he has called a taxi from a firm, which he names, he has raised the defence. Is it to be for the prosecutor to adduce evidence from the taxi firm to disprove the assertion to the criminal standard?

Knowing that the burden of disproving the defence is likely to fall upon the prosecution the police may well feel constrained to act in one of two ways. Firstly, realising the problem of disproving a S.5(2) defence, they may decide to wait until a person in charge of a vehicle actually drives it with potential adverse consequence. Secondly the interview will be of much more significance since the burden is likely to be on the prosecution. Interviewing officers may feel obliged to wait until the suspect is sober. In the instant case the interview took place at 7.47 a.m. and lasted for a mere three minutes. The Justices in fact found, from expert evidence, that the appellant would not have been below the prescribed alcohol limit until 11.40 a.m. The appellant was granted bail at 8.19 a.m. Much longer periods of detention and significantly longer interviews are likely to result from the section being read down as proposed by my lords.

In making the conclusion I have I have had regard to the comparatively small number of genuinely innocent people who take charge of vehicles whilst above the prescribed limit. There will be doctors who go to the boot of their cars to remove a medical bag in an emergency or those excluded from their homes after a matrimonial dispute or those effectively clamped by a mechanical device. In such cases there is no real danger of an innocent person being convicted with the legal burden as at present on the accused.

My concern relates to the great majority of persons in charge of vehicles whilst over the prescribed limit. Facing an evidential burden only, they may well decide to plead not guilty having persuaded themselves that there was no likelihood of their driving. The ingenuity of defendants and their advisers in confronting the breathalyser legislation has been spectacular. It has encompassed offering blood samples from big toes, asserting that drinks have been laced, that mouthwash has contained high levels of alcohol, and even blood samples have been swallowed. In its ‘read down’ form I anticipate difficulties for prosecutors and courts alike. The law as presently formulated has created few difficulties and the very few appeals relating to ‘in charge offences’ see Wilkinsons Road Traffic Offences 20^th Edition Para 4.389 onwards, which would seem to indicate that a proper balance had been struck with a legal burden placed upon the defendant.

This is one of several reverse burden cases to come before the Courts in recent months and post Lambert. In Davis v Health and Safety Executive [2002] EWCA Crim 2949 Tuckey LJ sought to justify the reverse burden in section 40 of the Health and Safety at Work Act 1974 by distinguishing between regulatory offences and criminal offences – the former meriting a reverse burden because ‘the objection of regulatory legislation is to protect the public or broad segments of the public (such as employees, common consumers and motorists to name but a few) from the potentially adverse affects of otherwise lawful activity’.

Mr. Ashley Norman submitted that section 5 of the Road Traffic Act was regulatory in nature. 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 p 116 F and by Lord Steyn when he spoke at p 121 J of the subject inviting special regulation.

Finally in considering whether the reverse legal burden in section 5(2) is necessary in a democratic society the Court should show deference to the judgment of Parliament if appropriate. Parliament created a regime to prevent or restrict the driving of vehicles on the roads by those adversely affected by drink. There was a manifest need to restrain not only drivers affected by drink but these in charge of motor vehicles unless there was no likelihood of their driving. Parliament appreciated that only those in charge could know or speak of the circumstances which might give rise to their driving or otherwise. Further Parliament must have appreciated the importance of creating a regime, which worked and brought to justice those who had no defence to being in charge with excess alcohol. As Lord Steyn observed in Brown v Stott at p.121 letter g in relation to section 172 (the provision requiring a person to identify the driver of a car) ‘Parliament would also have been entitled to take into account that it was necessary to protect other convention rights, viz the right to life of members of the public exposed to the danger of accidents (see art 2(1)). On this aspect the legislature was in as good a position as a court to assess the gravity of the problem and the public interest in addressing it’.

Lord Steyn went on to consider whether in adopting the technique of requiring a keeper of a vehicle to identify a driver, ‘rather than a reverse burden technique it took more drastic action than was justified’. He said ‘that whilst this is ultimately a question for the Court it is not unreasonable to regard both techniques as permissible in the field of the driving of vehicles’.

For my part I do find the reverse burden technique permissible and proportionate and would in any event defer to Parliament and in so concluding I have had regard to the helpful guidance given by Laws LJ in his judgment in International Transport Roth GmbH v Home Secretary [2002] EWCA Civ 158, namely that first greater deference will be shown by the Courts to the considered will of Parliament than to decisions of the executive and secondly, more deference will be shown when the Convention itself requires a balance to be struck. The Road Traffic Acts are designed to protect the community’s right to protection of life, limb and property (under Articles 2 and 3 of the Convention and Article 1 of the First Protocol). Thirdly, more deference will be shown where the subject matter is peculiarly within Parliament’s constitutional domain rather than the Court’s. Matters of social policy include the control of those who may drink and drive and this is within Parliament’s domain. Finally more deference will be shown where the subject matter is peculiarly within Parliament’s expertise, rather than the Courts. Section 5 is part only of a legislative mass crafted and refined over the years by Parliament with the aim of making the roads safe.

All four of these considerations militate in favour of respecting Parliament’s judgment as expressed in section 5(2) of the Road Traffic Act 1988. For these several reasons I would answer the questions thus:

I have had the advantage of reading the judgments of Clarke LJ and Henriques J in this appeal. It has already given rise to disagreement between the members of the two judge Divisional Court before which it was first listed. I agree with the reasoning and conclusions of Clarke LJ. I will set out my own approach leading on to the essential issue on which views differ. I gratefully adopt the judgment of Clarke LJ for his statements of the facts, the issues, the questions which arise, and the manner in which they should be answered.

As motor vehicles have proliferated, so has the legislation concerned with road safety. One aspect which has been of particular concern to the general public and to Parliament has been the prevention of what is commonly called drink driving. It is trite that alcohol is a major cause of road accidents and the injuries and deaths which follow. Legislation making it a criminal offence to drive with an amount of alcohol in the body above a statutory limit was first enacted in the Road Safety Act 1967, when the term ‘the breathalyser’ entered common speech. The pre-existing offence of driving while unfit through drink had been found insufficient for a number of reasons.

The present body of offences relating to alcohol and driving are contained within the Road Traffic Act 1988 as amended. They comprise: causing death by careless driving when unfit through drink or drugs, or with alcohol exceeding the limit - section 3A; driving when unfit through drink or drugs, and attempting so to drive - section 4(1); being in charge of a vehicle on a road or public place when unfit through drink or drugs - section 4(2); driving with alcohol exceeding the limit, and attempting so to drive - section 5(1)(a); being in charge of a vehicle on a road or public place with alcohol exceeding the limit - section 5(1)(b). This sets the context for the last offence listed, which is that with which this appeal is concerned.

The law thus intends to prevent a person who is over the statutory limit for alcohol from driving by making it an offence for him to drive, by making it an offence for him to attempt to drive, and by making it an offence from him to be in charge of a vehicle (although he is not driving it, or attempting to drive it). If there is no likelihood of his driving while over the alcohol limit, he does not commit the last offence – section 5(2). With minor changes of wording section 5(2) mirrors section 4(3) which similarly provides in relation to the offence of being in charge when unfit through drink or drugs.

Offences under sections 4(1) and 5(1)(a) are punishable with imprisonment not exceeding 6 months or a fine not exceeding level 5. Sections 4(2) and 5(1)(b) are punishable with imprisonment not exceeding 3 months or a fine not exceeding level 4. So being in charge when unfit through drink or over the limit carries a possible prison sentence but is seen by Parliament as less serious than actually driving or attempting to drive. Likewise the latter carry mandatory disqualification from driving, while the being-in-charge offences carry discretionary disqualification.

The offence of being drunk or unfit in charge can be traced back through to section 12 of the Intoxicating Liquor (Licensing) Act 1872 – per Taylor LJ in DPP v Watkins [1989] 1 QB 821. That section referred to being drunk in charge ‘of any carriage, horse, cattle, or steam engine’. A carriage would then be horse-drawn. Animals, of course, require continuous control, whereas a motor vehicle only requires control when moving.

I have seen no figures for imprisonment for offences relating to being in charge. I would think that it was a power seldom exercised save where the offender had previously been convicted of a drink-driving offence.

A person who is in charge of a vehicle while unfit through drink, or while over the limit, is causing no immediate harm to himself or to anybody. The reason why he should not be in charge of a vehicle in those circumstances is that he may well drive in the future. If he has been drinking, he should not get into get into a situation where that may happen. It is not just a matter of his immediate intention. Even if he has no intention when he gets into the car of driving either then or until he is sober, his intention may later change, particularly if it is late at night and he needs to get home. The point is the likelihood of his driving when he should not. The public should not be put at that risk, and he should not be in charge of his vehicle while there is a likelihood of his driving while over the limit. That, it seems to me, is the problem (or mischief) at which sections 4(2) and 5(1)(b) are aimed. There is also another aspect: the existence of the offence enables police officers to intervene before a person drives or attempts to drive. The essence of the offence, however, remains in my view the creation of a situation where there is a risk of driving. This is supported by the passage quoted in paragraph 29 by Clarke LJ from the judgment of Taylor LJ in DPP v Watkins at page 829 B-C.

The cases recognise a distinction, or gradation, between offences which are truly criminal and those which are sometimes called regulatory or quasi-criminal. The relevance is that in general it is easier to justify an interference with the presumption of innocence the lower in the scale the offence is. Section 5 of the Road Traffic Act is part of the regulatory scheme which is designed to prevent persons driving while under the influence of alcohol and to protect other users of the roads from them. The same could be said of the Sexual Offences Acts and the protection, for example, of children. It is a matter of perception as to where in the scale of criminality the offence under consideration lies. It seems to me that the public perception of drink-driving offences has changed over the last 40 or 50 years, in part as a result of government publicity, and that these offences are now seen as more serious, more deserving of the description ‘crime’, than previously. So, although a drink-driver is unlikely to be thought of as ‘a criminal’ in the same way as a burglar may be, his offence carries considerable social opprobrium or censure. The most important factor here is that a defendant to a charge of being in charge while unfit through drink, or being in charge while over the limits, faces a possibility of imprisonment, albeit for a short period.

I follow the logic of Clarke LJ in paragraph 40 of his judgment that the question whether section 5(2) is a proportionate response to the problem concerning likelihood of driving should be considered before the question whether the section can be read down as providing an evidential rather than legal burden. For if it is proportionate, there is no infringement of article 6(2) and no need to consider reading the section down. Nonetheless, as his judgment shows, in deciding whether the section is proportionate it is necessary to look at the alternative to having a legal burden on the defendant. If the section can be read down to provide an evidential burden, then that is the alternative. It is then appropriate to see what difficulties such reading down might cause in furthering the aim of the legislature in creating the offence.

I agree that the test for proportionality is whether it is necessary that section 5(2) should lay a legal burden on the defendant, and that it is a high burden. I refer in particular to paragraphs 37 and 38 of Lord Steyn’s speech in Lambert, and paragraph 88 of the speech of Lord Hope. Lord Steyn refers to the description given in the Eleventh Report of the Criminal Law Revision Committee of the difference between a legal and evidential burden. He points out that with a legal burden being on a defendant there will always be the possibility of a conviction where an element of the offence has not been established to the criminal standard of proof, namely so that the court, or jury, is sure. This seems to me to be an important factor requiring this court to scrutinise the need for a legal burden rigorously. That said, it is also true that necessity is seldom absolute, and, in the context of proportionality it is inevitably to be tested by a balancing of factors.

In my discussion of the offence created by section 5(1)(b) and (2) I concluded that the essence of the offence was the creation of a situation where there was a risk of driving. If I am right, it is the essence of the offence in respect of which section 5(2) places a burden on the defendant.

If section 5(2) is read as placing an evidential burden on the defendant, what is required from the defendant to satisfy it? Lord Steyn states in the paragraph 37 that there must be sufficient evidence to raise the matter. It appears to have been in consequence of the decision of the House of Lords in R v DPP ex parte Kebeline [2000] 2 A.C. 326 (which related to a reverse burden provision in anti-terrorist legislation) that Parliament provided in section 118(2) of the Terrorism Act 2000 in relation to reverse burden provisions in offences under that Act:

“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.”

I agree that here the issue as to likelihood of driving must be raised on the evidence. I also agree that the relevant evidence might come either from the prosecution or the defence. In R v Lang and Deadman [2002] EWCA Crim 298, 5 February 2002 it was held that to satisfy the evidential burden the defendant must demonstrate from the evidence an arguable case. So that is the test.

If section 5(2) provides an evidential burden, what is it that the prosecution would have to prove once the evidential burden is satisfied? In Lambert the answer was straightforward: that the defendant did either know, or suspect, or have reason to suspect that he had in his possession a controlled drug. It may, though, be more difficult on the wording of a reverse burden provision to determine what it is that the prosecution would have to prove. If it cannot be achieved, then the section cannot be read down. Then, for the purpose of proportionality, some other comparison would be required.

It is not wholly straightforward to decide what the prosecution would have to prove if section 5(2) is read as imposing an evidential burden and that burden is satisfied by a defendant. In my view, however, it can be done, and can be done with sufficient certainty. I agree with the analysis of Clarke LJ in paragraphs 53 to 58 of his judgment. The prosecution would have to show that that there was not no likelihood of the defendant driving until he was below the limit. The double negative is important because ‘no likelihood’ has a particular meaning in ordinary speech and that meaning is not such that the two negatives can be treated at mutually cancelling. Thus, ‘there is not no likelihood of it raining today’ does not mean the same as ‘there is a likelihood of it raining today’. The former means there is some low chance of it raining; the latter would commonly be taken as indicating that it was likely to rain. Context is all. I agree with Clarke LJ that what the prosecution would have to prove was in effect that there was a real risk of the defendant’s driving while over the limit. I agree that it means a risk which should not be ignored. That is what the prosecution would have to prove, and that is what the magistrates would have to consider.

Having come thus far, it is next to consider whether, if section 5(2) is read as providing an evidential burden, that will result in the purpose of section 5(1)(b) with section 5(2) being sufficiently defeated that it justifies the imposition by section 5(2) of a legal burden. It probably comes to this: would it mean that a sufficient number of persons who should properly be convicted would, by reason of the difficulties that an evidential burden would cause the prosecution, escape conviction so that a legal burden is justified as necessary? That, it seems to me, is the nub of the appeal. It raises in a stark form the contrast between the public interest in obtaining convictions where appropriate and the greater public interest in ensuring that the innocent are not convicted: I refer to paragraph 17 of the judgment of Clarke LJ. Answering the question requires looking at how an evidential burden would work in practice.

Before considering some of the specific situations in which section 5(2) may operate, I should refer to the question of knowledge. The issue whether there was no likelihood of driving may relate to matters which are within the knowledge of the defendant and not within the knowledge of the prosecution. I accept that, where the matters raised by a defence are solely within the defendant’s knowledge, in some situations this may be a factor in establishing that a legal burden on the defendant is necessary and so proportionate. On the other hand, in the criminal law there are very many situations where the prosecution has to prove something which is not within its knowledge. Intent is a primary example. The prosecution commonly overcomes the difficulty by reliance on the circumstances to establish intent or whatever other matter it may be that is in issue. Here intent is but one aspect of the likelihood of a defendant driving before he has ceased to be over the limit. For a defendant’s driving intentions over that period may change. The court has to consider all the circumstances.

In some cases where a defendant is charged under section 5(1)(b) there will be no issue there was not a real likelihood or risk of his driving. They can be put on one side. Where the issue does arise, it seems to me most likely to arise in a limited number of situations.

One such situation is where the defendant says that he was going to remain in his car, perhaps sleeping, until he was below the limit. If the magistrates accept that evidence having measured it against the circumstances established by the remainder of the evidence, then they will have to decide whether there was a real risk that he might later nonetheless drive before his alcohol level dropped below the limit. That was the situation before the magistrates here. I refer to paragraph 63 of the judgment of Clarke LJ. I see no particular difficulty in this kind of situation.

Another situation is where the defendant says that he had asked his wife, a friend or a taxi to take him home. If he gives evidence to that effect, the magistrates can assess the truth of his statement. Again, of course, they will do so against the background of the circumstances established by the evidence. If he does not call his wife, the friend, someone from the taxi company, to support his statement and provides no adequate explanation for not doing so, that is a factor which the magistrates can take into account. But it may be that the evidence as to someone coming to collect him may come from what he said to the police by his car or at the police station. That evidence may emerge during the prosecution case. As an out-of-court statement not against interest it may strictly be inadmissible: but such evidence is commonly given without objection. In paragraph 52 of his judgment Clarke LJ suggests that the evidence might emerge in this way. If the defendant goes on to give evidence, then the position is as already considered. But a wily defendant might leave it on the basis of the prosecution case. The magistrates would first have to consider whether on the basis of this evidence they considered that the defendant had raised an arguable case that there was no likelihood of his driving. If they thought he had, they would have to go on to consider whether having regard to all the circumstances they were sure that there was a real risk of his driving. That prospect does not cause me concern.

A third situation would be where the defendant’s case is that he was going to leave his car and make his own way, perhaps walking. That again can be assessed against the circumstances established by the police evidence.

There are no doubt a number of other situations, or variations on these situations. Although an evidential burden will make the prosecution’s task harder, I do not so far see that it will create real difficulties in any substantial number of cases.

There is the question of what is sometimes called an ambush defence, namely a defence which is sprung on the prosecution without warning so they cannot gather evidence to answer it. An adjournment to enable evidence in rebuttal may not be a practical solution.

The defendant will have been asked questions by the police either at his car or at the police station. If he has not mentioned that, for example, he had already rung for a taxi, that will go to his credibility: section 34 of the Criminal Justice & Public Order Act 1994 may apply. It is true that the police will not have made enquiries which would have been open to them, had they known sooner, and so with an evidential burden the prosecution’s task will be the harder. I would question though, given the calls on police time, how extensive their enquiries in a case of this nature might in any event be.

In the course of writing this judgment I came across the case of Rowland v Thorpe [1970] 3 All ER 195. This concerned reasonable excuse for failing to provide a specimen at a police station contrary to section 3(3) of the Road Safety Act 1967. “Reasonable excuse” is now to be found in sections 6(4) and 7(6) of the Road Traffic Act 1988, relating respectively to roadside breath tests and to the giving of samples in a police station. In Rowland Lord Parker CJ stated at page 197c:

“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?”

In R v Harling [1970] RTR 441 it was held that, once raised, the absence of reasonable excuse must be proved to the criminal standard. Of course the issue of “reasonable excuse” for failing to provide a breath test, or a specimen, arises in a different factual situation to issues relating to likelihood of driving. It is nonetheless of interest that an evidential burden appears to have operated here for over 30 years.

I conclude that, taking account of the comparative seriousness of the offence, it is not necessary and proportionate that section 5(2) of the Road Traffic Act should impose a legal burden on a defendant.

I should lastly refer briefly to the case of R v Drummond [2002] EWCA Crim 527, 7 March 2002, because this also concerned an aspect of the drink-driving legislation. It concerned section 15(3) of the Act . That deals with the so-called hip flask defence, that is where the defendant has drunk alcohol between the driving and the giving of the sample. The section then places a burden on him to prove that, if he had not done so, he would not have exceeded the limit. The case thus concerned one aspect of the assessment of whether the defendant drove with alcohol in his body over the prescribed limit. It is an aspect which arises from the defendant’s own conduct (which on occasion will have been intended to defeat the legislation) and is particularly within his knowledge and outside that of the prosecution. It was held that the legal burden placed by the section on the defendant was proportionate. I see no inconsistency between the outcome of that case and holding that it is not proportionate that section 5(2) place a legal burden on a defendant. The reasoning set out in paragraph 31 of the judgment in Drummond cannot be adapted to section 5(2).

I would give the same answers to the questions posed by the case stated by the magistrates as would Clarke LJ.