4 OVERBROAD
OR UNNECESSARY
CRIMINAL OFFENCES
Strict liability drug driving
offence
84. The Bill creates a new criminal offence of
"drug driving": driving or being in charge of a motor
vehicle with the concentration of a specified controlled drug
in the body being above the specified limit for that drug.[33]
The new offence is a "strict liability" offence (that
is, an offence which is committed regardless of whether the accused
had a culpable state of mind), modelled on the existing offence
of drink driving.[34]
The purpose of the new offence is to enable more effective action
to be taken against people driving under the influence of drugs,
by enabling action to be taken without the need to prove impairment.
85. The Bill provides for a defence if the drug
in question was taken in accordance with medical advice.[35]
This defence places what is known as an "evidential burden"
of proof on the defendant: that is, if the accused adduces evidence
that properly raises the issue, it will be for the prosecution
to prove, beyond reasonable doubt, that the drug was not in fact
taken in accordance with medical advice.[36]
This represents an important safeguard against the new offence
having a discriminatory impact on disabled people.
86. The Bill also provides for a defence if the
accused can prove that there was no likelihood of them driving
the vehicle while the proportion of the drug in his or her body
remained likely to exceed the specified limit.[37]
This defence places a "legal burden" of proof on the
accused: that is, it is for the defendant to prove, on the balance
of probabilities, that he or she would not have been likely to
drive. Defences to criminal offences which place the legal burden
of proof on the accused may infringe the presumption of innocence
in Article 6(2) ECHR. However, the equivalent provision concerning
a defence to the drink-driving offence has been held to be compatible
with the ECHR by the House of Lords Judicial Committee, on the
basis that the matter was so dependent on the defendant's knowledge
that it was more appropriate for the defendant to have to prove
that they would not have been likely to drive.[38]
The Government's analysis in the ECHR Memorandum that the reverse
burden in the Bill is ECHR compatible is therefore correct.
87. The Bill does not provide a defence, however,
for a defendant whose drink was "spiked" with the relevant
drug. The ECHR memorandum acknowledges that there may be arguments
that the absence of such a defence infringes the Article 6 presumption
of innocence, as it would mean that someone whose drink was genuinely
spiked could be found guilty of the offence through no fault of
their own.
88. We asked the Government if there is any reason
why the Bill could not include a defence which would prevent the
injustice of strict liability for the offence in a case where
a drink has been genuinely spiked, by placing the legal burden
of proving the defence on the defendant. In its response the Government
offers two justifications for not including such a defence.
89. First, it argues that the inclusion of a
"spiked drinks" defence to the new offence would create
a difference of approach between the new offence and the drink
driving offence in ss. 4 and 5 of the Road Traffic Act 1988 on
which it is modelled. That other offence is also a strict liability
offence, but the Government "understands" that the lack
of a spiked drinks defence has not resulted in any injustice with
regard to that offence, because s. 34 of the Road Traffic Offenders
Act 1988 allows for a court not to order an obligatory disqualification
from driving in circumstances where there are special reasons
to warrant this. It is recognised, the Government says, that a
genuinely spiked drink is a "relevant consideration"
for a special reasons hearing. The same statutory provision would
also apply to the new drug driving offence, so that too would
not in practice lead to a mandatory disqualification from driving
in the case of a genuinely spiked drink.
90. We are mindful of the apparent increase in
recent years of incidents of spiking drinks in public places,
in particular with so-called "date-rape drugs", and
that this is a particular problem for women. We are also anxious
about the impact of strict liability criminal convictions on individuals'
CRB checks, even where disqualification from driving may have
been avoided through a special reasons hearing. In our view, maintaining
symmetry with a strict liability offence contained in legislation
enacted in 1988, and relying on a provision which related to the
nature of the sentence, rather than to criminal liability, in
order to prevent possible injustice, are not strong enough justifications
for failing to include a "spiked drinks" defence in
the Bill. We also see no reason in principle why such a defence
could not also be inserted into the Act setting out the equivalent
drink driving offence by this Bill.
91. The Government's second and separate reason
for not including a "spiked drinks" defence is that
"a defendant would have nothing to lose from seeking to rely
on a spiked drink defence if one were available—which could
introduce substantial extra difficulties for prosecutions."
This objection is in substance the same as that set out in the
Government's ECHR memorandum, where it says that the existence
of such a defence "would render the new offence virtually
inoperable, since anyone could claim this and there would be significant
evidential difficulties in disputing it."[39]
92. In our view, the Government's objection does
not hold good if such a defence imposed the legal burden of proof,
as opposed to the evidential burden of proof, on the defendant:
that is, if the Bill provided for a defence only if the defendant
can prove that the drug was present in their body due to the intervention
of a third party without the defendant's knowledge or consent.
93. We are concerned that the new strict liability
offence as presently drafted is incompatible with the presumption
of innocence in the absence of a spiked drinks defence which casts
the legal burden of proof on the defendant. We recommend that
the Bill be amended to introduce a "spiked drinks" defence
which places a legal burden of proof on the defendant: that is,
it is for the defendant to prove, on the balance of probabilities,
that his or her drink was spiked.
94. The following amendment to the Bill would
give effect to this recommendation:
Clause 29, page 29, line 10, after sub-paragraph
(5) insert new sub-paragraph—
'( ) It is a defence for a person ("D")
charged with an offence by virtue of subsection (1) to prove that
at the time D is alleged to have committed the offence the drug
was in D's body as a result of the intervention of a third party
without D's knowledge or consent.'
95. We also recommend that the same defence be
made available to the drink driving offence in s. 4 of the Road
Traffic Act 1988 on which the new offence in the Bill is modelled.
Scandalising the court
96. At Committee stage, an amendment to the Bill
was tabled which would have abolished the common law offence of
scandalising the court, which was recently used by the Attorney
General of Northern Ireland to attempt to prosecute Rt Hon Peter
Hain MP over statements made in his published memoirs. The Government
received the amendment positively but wanted time for the Law
Commission to report on the issue.[40]
97. The Law Commission's consultation on scandalising
the court, a part of their larger ongoing consultation on the
law of contempt, was launched on 10 August, closed on 19 October
and was brought forward to tie in with the Government's consideration
of abolition under this Bill. We expect the Law Commission to
make recommendations to the Government shortly. We have not taken
evidence on this aspect of the Bill but we note that the offence
has not been successfully prosecuted since 1931 and can be used
to restrict freedom of speech disproportionately.
98. We support the abolition of the outdated
common law offence of scandalising the court, the continued existence
of which represents an unjustifiable restriction on freedom of
speech.
Insulting words or behaviour
99. At Committee stage an amendment was also
tabled which would remove "insulting" words or behaviour
from the scope of the criminal offence in s. 5 of the Public Order
Act 1986.
100. Section 5 provides that a person is guilty
of an offence if he uses threatening, abusive or insulting words
or behaviour, or disorderly behaviour, or displays any writing,
sign or other visible representation which is abusive, threatening
or insulting, within the hearing or sight of a person likely to
be caused harassment, alarm or distress thereby.
101. Both we and our predecessor Committee have
called for the scope of section 5 to be reduced by removing the
reference to "insulting", because of its disproportionate
impact on freedom of expression.[41]
The Government published a consultation on reform of section 5
in October 2011. The consultation closed in January 2012, but
no Government response has yet been published.
102. We understand the sensitivities with certain
communities on this issue, but nonetheless we support an amendment
to the Bill which reduces the scope of s. 5 Public Order Act 1986
on the basis that criminalising insulting words or behaviour constitutes
a disproportionate interference with freedom of expression.
33 Cl. 29, inserting new s.5A Road Traffic Act 1988,
and Sched. 15. Back
34
Section 5 Road Traffic Act 1988. Back
35
New s. 5A(3) Road Traffic Act 1988. Back
36
New s. 5A(5) Road Traffic Act 1988. Back
37
New s. 5A(6) Road Traffic Act 1988. Back
38
Sheldrake v DPP [2004] UKHL 43. Back
39
ECHR Memorandum, para. 178. Back
40
HL Deb 2 July cols 562-564 (Lord McNally). Back
41
Demonstrating respect for rights? A human rights approach to
policing protest, 7th Report of 2008-09, HL Paper
47/HC 320; Legislative Scrutiny: Protection of Freedoms Bill,
18th Report of 2010-12, HL Paper 195/HC 1490, paras
157-8. Back
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