(back to preceding text)

    30.  Both R v Lambert and R v Johnstone are recent decisions of the House, binding on all lower courts for what they decide. Nothing said in R v Johnstone suggests an intention to depart from or modify the earlier decision, which should not be treated as superseded or implicitly overruled. Differences of emphasis (and Lord Steyn was not a lone voice in R v Lambert) are explicable by the difference in the subject matter of the two cases. Section 5 of the Misuse of Drugs Act 1971 and section 92 of the Trade Marks Act 1994 were directed to serious social and economic problems. But the justifiability and fairness of the respective exoneration provisions had to be judged in the particular context of each case. I have already identified the potential consequence to a section 5 defendant who failed, perhaps narrowly, to make good his section 28 defence. He might be, but fail to prove that he was, entirely ignorant of what he was carrying. By contrast, the offences under section 92 are committed only if the act in question is done by a person "with a view to gain for himself or another, or with intent to cause loss to another." Thus these are offences committed (if committed) by dealers, traders, market operators, who could reasonably be expected (as Lord Nicholls pointed out) to exercise some care about the provenance of goods in which they deal. The penalty imposed for breaches of section 92 may be severe (see, for example, R v Gleeson [2001] EWCA Crim 2023, [2002] 1 Cr App R (S) 485, but that is because the potential profits of fraudulent trading are often great.

    31.  The task of the court is never to decide whether a reverse burden should be imposed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence. It may nonetheless be questioned whether (as the Court of Appeal ruled in para 52D) "the assumption should be that Parliament would not have made an exception without good reason". Such an approach may lead the court to give too much weight to the enactment under review and too little to the presumption of innocence and the obligation imposed on it by section 3.

    32.  The House was not addressed on the cases decided in Attorney General's Reference No 1 of 2004. In the absence of argument, I would incline to agree with the Court of Appeal's conclusion in each case and would in particular agree that R v Carass [2002] 1 WLR 1714 was wrongly decided. I would not endorse the guidance given by the Court of Appeal in para 52 of its judgment save to the extent, that it is in accordance with the opinions of the House in these cases which must, unless and until revised or supplemented, be regarded as the primary domestic authority on reverse burdens.

    33.  On a number of occasions the House has gained valuable insights from the reasoning of Commonwealth judges deciding issues under different human rights instruments: see, for example, Lord Steyn in R v Lambert, paras 34, 35 and 40, and Lord Nicholls in R v Johnstone, para 49. I am accordingly grateful to counsel for exploring in detail, and addressing the House on, the treatment of reverse burdens in other jurisdictions. In the result, I do not think I should be justified in lengthening this opinion by a review of the cases relied on. Some caution is in any event called for in considering different enactments decided under different constitutional arrangements. But, even more important, the United Kingdom courts must take their lead from Strasbourg. In the United Kingdom cases I have discussed our domestic courts have been trying, loyally and (as I think) successfully, to give full and fair effect to the Strasbourg jurisprudence.

    34.  On 26 June 2001 Mr Sheldrake was convicted by justices sitting at Colchester of being in charge of a motor car in a public place on 9 February 2001 after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to section 5(1)(b) of the Road Traffic Act 1988. He was well over the limit: he was arrested at 8.40 pm, and on an average rate of elimination of alcohol would not have been below the limit until 11.40 am the next day.

    35.  Section 5 of the 1988 Act, so far as material, provides:

"(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."

    36.  Mr Sheldrake gave evidence of his efforts to arrange alternative transport home, but the justices were unconvinced. On his behalf it was argued that section 5(2) infringed the presumption of innocence guaranteed by article 6(2) if it were interpreted so as to impose a legal burden upon him. He argued that once the prosecutor had proved that he was in charge of a motor car in a public place while over the prescribed limit, it was presumed that he would have driven the car while over the limit unless he proved otherwise. If he failed to discharge the legal burden he would be convicted on the basis that he would have driven the car whilst over the limit. The risk of driving was an essential element of the offence, and the prosecution should be required to prove the presence of that risk beyond all reasonable doubt. Section 5(2) should be interpreted as imposing upon him an evidential burden only. The justices were of opinion that he had not proved, on a balance of probabilities, that there was no likelihood of his driving whilst in excess of the prescribed limit. They concluded, for reasons which they gave, that section 5(2) did not interfere with the presumption of innocence but that, if it did, it pursued a legitimate aim and was proportionate. The justices appear to have been very expertly advised. At the request of Mr Sheldrake the justices stated a case for the opinion of the High Court which by a majority (Clarke LJ and Jack J, Henriques J dissenting) allowed the appeal and quashed Mr Sheldrake's conviction because the justices had not applied the correct test to the facts found: [2003] EWHC 273 (Admin); [2004] QB 487.

    37.  The area of disagreement in the High Court was narrow. All three members held that the likelihood of the defendant driving whilst over the limit was the gravamen of the offence under section 5(1)(b). All three members considered that section 5(2), read with section 5(1)(b), violated the presumption of innocence because it enabled a defendant to be convicted even though the court was not sure that there was a likelihood of his driving. All three members held that section 5(2) pursued a legitimate aim, since the likelihood of a defendant driving usually involved consideration of his present or future intention to drive, a matter which was particularly within his knowledge and difficult for the prosecution to counter unless there was at least some burden on the defendant to put forward his case. The majority concluded (contrary to the view of Henriques J) that it was not necessary to accomplish the objective of the 1988 Act to impose a legal burden on the defendant to show that there was no likelihood of his driving whilst over the limit, and therefore it was disproportionate to do so. All members were agreed that, if it were necessary and appropriate, section 5(2) could be read down so as to impose an evidential burden only.

    38.  The lineal ancestor of section 5(1)(b) is section 12 of the Licensing Act 1872, quoted in para 6 above. To establish an offence against that provision it was plainly unnecessary to prove any likelihood that the defendant would drive the carriage (or, for that matter, discharge the firearm). The offence was based on the obvious risk of mishap if a person were drunk in the situations specified. Section 15(1) of the Road Traffic Act 1930 made it an offence to drive or attempt to drive or to be in charge of a motor vehicle on a road or other public place when under the influence of drink or drugs to such an extent as to be incapable of having proper control of the vehicle. The maximum penalty did not vary according to whether the offence was driving, attempting to drive or being in charge. No special defence was provided. But a person liable to be charged under this section was not to be liable under section 12 of the 1872 Act. Section 9 of the Road Traffic Act 1956 recast this offence in relation to a person in charge of a car on a road or other public place but not driving it while unfit. It was also provided that a person should be deemed for purposes of the section not to have been in charge of the car if he proved that at the material time the circumstances were such that there was no likelihood of his driving the car so long as he remained unfit. These provisions were re-enacted in section 6 of the Road Traffic Act 1960 and were elaborated in the Road Traffic Act 1962. The Road Safety Act 1967 introduced the now familiar breathalyser regime. Section 1(1) was directed to those driving or attempting to drive while over the limit, section 1(2) to those in charge of a motor vehicle while over the limit. On a second conviction, or if convicted on indictment, the former were liable to more severe penalties than the latter. To the latter, a ground of exoneration was made available to the effect now found in section 5(2) of the 1988 Act. There were thus parallel regulatory provisions in force applicable to those in charge of vehicles on roads or public places, one based on unfitness to drive (section 6 of the 1960 Act, derived from section 9 of the 1956 Act and section 15 of the 1930 Act) and one based on exceeding the prescribed limit (section 1 of the 1967 Act). This dichotomy was preserved in sections 5 and 6 of the Road Traffic Act 1972 and endures in sections 4 and 5 of the 1988 Act.

    39.  In Director of Public Prosecutions v Watkins [1989] QB 821, 829, Taylor LJ said, with reference to section 5 of the 1972 Act (the equivalent of section 4 of the 1988 Act):

"In regard to that section two broad propositions are clear. First, the offence of being 'in charge' is the lowest in the scale of three charges relating to driving and drink. The two higher in the scale are driving and attempting to drive. Therefore a defendant can be 'in charge' although neither driving nor attempting to drive. Clearly however the mischief aimed at is to prevent driving when 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."

In his submissions on behalf of Mr Sheldrake, Mr Turner QC relied on this passage, the ratio of which (he suggested) applied equally to section 5 of the 1988 Act, with which this appeal is concerned. Since the mischief aimed at by section 5(1)(b) is to prevent driving when unfit through drink, the likelihood of a person driving is (as the High Court held) the gravamen of the offence. The effect of section 5(2) is accordingly to impose on the defendant a burden to disprove an important ingredient of the offence which, if not disproved, will be presumed against him. Thus the presumption of innocence is seriously infringed.

    40.  This analysis is in my opinion too simple and only partly correct. There is an obvious risk that a person may cause death, injury or damage if he drives or attempts to drive a car when excessive consumption of alcohol has made him unfit (I use that adjective compendiously) to do so. That is why such conduct has been made a criminal offence. There is also an obvious risk that if a person is in control of a car when unfit he may drive it, with the consequent risk of causing death, injury or damage already noted. That is why it has been made a criminal offence to be in charge of a car in that condition. Taylor LJ was right that "the mischief aimed at is to prevent driving when unfit through drink". But the ingredients of the offence make no reference to doing a preparatory act towards driving or forming an intention to drive. The 1872 and 1930 Acts criminalised the conduct of those who were in charge of carriages and cars respectively when drunk or unfit, but made no reference to the likelihood of driving. There could, as I understood counsel to accept, be no ground of complaint if the offence of being unfit when in charge of a motor vehicle, as laid down in 1930, had remained unaltered. As has been shown, Parliament has modified that provision in favour of the defendant. If he can show that there was no likelihood of his driving while unfit, he is deemed not to have been in charge for purposes of section 4 of the 1988 Act and has a defence under section 5(2). There appears to be no very good reason (other than history) for the adoption of these different legislative techniques, but the outcome is effectively the same. The defendant can exonerate himself if he can show that the risk which led to the creation of the offence did not in his case exist. If he fails to establish this ground of exoneration, a possibility (but not a probability) would remain that he would not have been likely to drive. But he would fall squarely within the class of those whose conduct Parliament has, since 1930, legislated to criminalise. In DPP v Watkins [1989] QB 821 it was recognised, in my view rightly, that the offence does not require proof that a defendant is likely to drive: see pp 829D, 832E, 833A. This is not in my view an oppressive outcome, since a person in charge of a car when unfit to drive it may properly be expected to divest himself of the power to do so (as by giving the keys to someone else) or put it out of his power to do so (as by going well away). It may be, as was submitted in argument and suggested by Taylor LJ in DPP v Watkins at p 830, that the words "in charge" have been too broadly interpreted and applied, but that is not a question which falls for decision in this appeal.

    41.  It may not be very profitable to debate whether section 5(2) infringes the presumption of innocence. It may be assumed that it does. Plainly the provision is directed to a legitimate object: the prevention of death, injury and damage caused by unfit drivers. Does the provision meet the tests of acceptability identified in the Strasbourg jurisprudence? In my view, it plainly does. I do not regard the burden placed on the defendant as beyond reasonable limits or in any way arbitrary. It is not objectionable to criminalise a defendant's conduct in these circumstances without requiring a prosecutor to prove criminal intent. The defendant has a full opportunity to show that there was no likelihood of his driving, a matter so closely conditioned by his own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities that he would not have been likely to drive than for the prosecutor to prove, beyond reasonable doubt, that he would. I do not think that imposition of a legal burden went beyond what was necessary. If a driver tries and fails to establish a defence under section 5(2), I would not regard the resulting conviction as unfair, as the House held that it might or would be in R v Lambert. I find no reason to conclude that the conviction of Mr Sheldrake was tainted by any hint of unfairness.

    42.  In seeking to uphold the majority decision of the High Court, Mr Turner relied on the Eleventh Report of the Criminal Law Revision Committee (Evidence (General), Cmnd 4991, 1972, para 140) to urge that all burdens on the defence, including that in section 5(2), should be evidential only. Whatever the merits of this sweeping proposal, its adoption is not mandated by Strasbourg authority as it now stands. Lord Griffiths' observation in R v Hunt (Richard) [1987] AC 352, 376 remains apposite:

"My Lords, such a fundamental change is, in my view, a matter for Parliament and not a decision of your Lordships' House."

    43.  As an alternative fall-back submission Mr Turner argued that a presumption could be justified only if the facts presumed flow inexorably from the facts proved or if there was a rational connection between the fact proved and the fact presumed. Here, the likelihood of Mr Sheldrake driving did not, he said, flow inexorably from his being drunk and in charge of the car in a public place nor was there a rational connection between the latter fact and the likelihood of his driving. I am not sure that these propositions find much support in the Strasbourg jurisprudence, although sometimes the fact presumed would flow all but inexorably from the fact proved (as perhaps in the case of knowingly living on immoral earnings: see para 10 above) and the closer the connection between the fact proved and the fact presumed the more reasonable the presumption would usually be. Conversely, the more far-fetched a presumption is, the more suspect it is likely to be. But it cannot be necessary that the facts presumed flow inexorably from the facts proved, since in such an event there would scarcely be a need for any presumption, and rarely, if ever, would a statutory presumption lack a rational connection with a fact proved. I do not however think that Mr Sheldrake's conviction, properly analysed, rested on a presumption that he was likely to drive. It rested on his being in charge of a car while unfit in a public place. If it rested on a presumption that he was likely to drive, that did indeed flow directly from proof of his unfitness while in charge and his inability to show, despite a full opportunity to do so, that there was no likelihood of his driving.

    44.  I would allow the Director's appeal, reinstate the justices' decision and answer the certified question by saying that the burden of proof provision in section 5(2) of the Road Traffic Act 1988 imposes a legal burden on an accused who is charged with an offence contrary to section 5(1)(b) of that Act.

    45.  This reference by the Attorney General under section 36 of the Criminal Justice Act 1972 was prompted by the acquittal of A (as I shall call the defendant) in the Crown Court on 22 May 2002. He had been indicted (so far as relevant to the reference) on two courts, both charging offences against section 11(1) of the Terrorism Act 2000: being a member (count 1) of a proscribed organisation, namely Hamas-Izz al-Din al-Qassem Brigades ("Hamas IDQ"); and (count 2) professing to be a member of that organisation. It was common ground at trial that section 11(2) imposed on the defendant an evidential burden only. But despite this, at the conclusion of the evidence and following legal argument, the trial judge ruled that there was no case to answer on these counts and a verdict of not guilty was entered on each. The questions referred by the Attorney General for the opinion of the Court of Appeal were twofold:

(1)  What are the ingredients of an offence contrary to section 11(1) of the Terrorism Act 2000?

(2)  Does the defence contained in section 11(2) of the Terrorism Act 2000 impose a legal, rather than an evidential, burden of proof on an accused, and if so, is such a legal burden compatible with the European Convention and, in particular, articles 6(2) and 10 of the Convention?

In its judgment given on 21 March 2003 ([2003] EWCA Crim 762, [2003] 3 WLR 1153, Latham LJ, Hunt and Hedley JJ) the Court of Appeal answered (1) that the ingredients of the offence were set out fully in section 11(1), and (2) that the defence in section 11(2) imposed a legal rather than an evidential burden and was compatible with article 6(2) of the Convention and would not, save perhaps in circumstances difficult to envisage in the abstract, infringe a person's rights under article 10. On application made by counsel for A, the Court of Appeal referred the Attorney General's questions to the House under section 36(3) of the 1972 Act.

    46.  The Terrorism Act 2000 is a far-reaching measure enacted to counter the all-too-familiar scourge of international terrorism. Part II (sections 3-13) provides a regime for the proscription (and deproscription) of terrorist organisations. Part III (sections 14-31) is entitled "Terrorist Property". These two Parts of the Act provide for a wide range of criminal offences relating to proscribed organisations and terrorist property: inviting support for a proscribed organisation (section 12(1); knowingly arranging meetings to support or further the activities of a proscribed organisation, or to be addressed by a member of such an organisation (section 12(2)); addressing a meeting to encourage support for such an organisation (section 12(3)); wearing or carrying insignia suggesting membership or support of such an organisation (section 13(1); soliciting or receiving or providing money or other property for purposes of terrorism (section 15(1), (2) and (3)); using or possessing money or other property for the purposes of terrorism (section 16(1) and (2)); making an arrangement for money or other property to be made available for purposes of terrorism (section 17); making an arrangement which facilitates the retention or control of terrorist property by concealment, removal from the jurisdiction, transfer to nominees or in any other way (section 18(1)). Further offences relating to terrorism are enacted by sections 39(2), 54(1), (2) and (3), 56(1), 57(1), 58(1) and 59. These offences supplement existing criminal offences such as causing an explosion (section 2 of the Explosive Substances Act 1883) or conspiracy to cause an explosion (section 3 of the 1883 Act) or conspiracy to commit a crime abroad (section 1A of the Criminal Law Act 1977, inserted by section 5(1) of the Criminal Justice (Terrorism and Conspiracy) Act 1998). Where the prosecutor has evidence implicating the defendant in the commission of any of these offences, all of which (save that under section 13 of the 2000 Act) expose a defendant tried on indictment to very severe maximum penalties, it would be standard practice to charge the defendant with whichever offence was supported by the available evidence.

    47.  The indictment preferred against A did not charge him with any of the foregoing offences but with belonging to and professing to belong to a proscribed organisation. Section 11(1) of the 2000 Act, so far as relevant, provides:

"11  Membership

(1)  A person commits an offence if he belongs or professes to belong to a proscribed organisation.

(2)  It is a defence for a person charged with an offence under subsection (1) to prove—

(a)  that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and

(b)  that he has not taken part in the activities of the organisation at any time while it was proscribed.

(3)  A person guilty of an offence under this section shall be liable—

(a)  on conviction on indictment, to imprisonment for a term not exceeding ten years, to a fine or to both, or

(b)  on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

(4)  In subsection (2) 'proscribed' means proscribed for the purposes of any of the following—

(a)  this Act; ….."

Section 11(1), considered on its own, is a provision of extraordinary breadth. It would cover a person who joined an organisation when it was not a terrorist organisation or when, if it was, he did not know that it was. It would cover a person who joined an organisation when it was not proscribed or, if it was, he did not know that it was. It would cover a person who joined such an organisation as an immature juvenile. It would cover someone who joined such an organisation abroad in a country where it was not prosribed and came to this country ignorant that it was proscribed here (as illustrated by R v Hundal and Dhaliwal [2004] EWCA Crim 389). It would cover a person who wished to dissociate himself from an organisation he had earlier joined, perhaps in good faith, but had no means of doing so, or no means of doing so which did not expose him to the risk of serious injury or assassination. If section 11(1) is read on its own, some of those liable to be convicted and punished for belonging to a proscribed organisation may be guilty of no conduct which could reasonably be regarded as blameworthy or such as should properly attract criminal sanctions. Mr Owen QC, for A, pointed out that no international convention directed to countering terrorism requires the criminalisation of nominal membership of a proscribed organisation; only a minority of states seek to penalise nominal membership; and Lord Lloyd of Berwick in the Report of his Inquiry into Legislation against Terrorism (Cm 3420, October 1996, paragraph 6.11) did not recommend that course.

    48.  "Profess" is a strange expression to find in a criminal statute, and it is not defined. Of various meanings given to it by the Oxford English Dictionary it is far from clear, in my opinion, whether it should be understood to denote an open affirmation of belonging to an organisation or an acknowledgement of such belonging, and whether (in either case) such affirmation or acknowledgement, to fall within section 11(1), would have to be true. This was a material consideration in the case of A, who arrived in this country in April 2001, some three weeks after Hamas IDQ had been duly proscribed under the 2000 Act. There was evidence that he had said, more than once, "I am Hamas", which may well have been a reference to Hamas IDQ, the proscribed organisation, rather than to a charitable organisation, not proscribed, known simply as Hamas. But those to whom he said this were far from sure whether he spoke seriously or in jest, and the trial judge concluded that on the evidence "a jury could reasonably conclude that [A] was perhaps some latter day Walter Mitty or Billy Liar". The scope of "profess" is in my view so uncertain that some of those liable to be convicted and punished for professing to belong to a proscribed organisation may be guilty of no conduct which could reasonably be regarded as blameworthy or such as should properly attract criminal sanctions.