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Glover, Sheldrake,Regulatory Offences and Reverse Legal Burdens of Proof, [2006] 4Web JCLI

http://webjcli.ncl.ac.uk/2006/issue4/sheldrake4.html

Sheldrake, Regulatory Offences andReverse Legal Burdens of Proof

Richard Glover LLB, MSc, SolicitorSenior Lecturer in Law, School of Legal Studies, University of Wolverhampton

[email protected]

Copyright Richard Glover 2006. First published in Web Journal of Current Legal

Issues.

This article is based on a paper delivered to the Socio-Legal Studies Conference at the

University of Liverpool in March 2005.

SummaryThis article examines the reverse legal burden of proof upheld by the House of Lords in

Sheldrake v The Director of Public Prosecutions [2004] UKHL 43 in relation to the

offence being drunk in charge of a motor vehicle, contrary to the Road Traffic Act 1988

s.5(1)(b), and the defence under s5(2). It considers two main arguments that arose fromSheldrake. First, that the section 5(2) defence that there was no likelihood of the defendant

driving while over the limit forms part of the gravamen of the section 5(1)(b) offence and

that, accordingly, a reverse legal burden amounts to a breach of the presumption of

innocence. It is argued that this analysis, approved by the Divisional Court but largelyoverlooked by the House of Lords, is per Lord Bingham too simple and only partially

correct. Secondly, it will be considered whether some offences, such as being drunk incharge, may be classified as regulatory on the basis that the offence was concerned with a

lawful activity that the defendant voluntarily engaged in that presented a serious risk or

danger to public health and safety. It is argued that in this context a reverse legal burdenmay normally be presumed.

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http://webjcli.ncl.ac.uk/2006/issue4/sheldrake4.htmlmailto:[email protected]:[email protected]://webjcli.ncl.ac.uk/2006/issue4/sheldrake4.html


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Contents

Introduction

Is the section 5(2) defence part of the gravamen of the section 5(1)(b) offence?

The gravamen of an offence

The Divisional Court in SheldrakeThe House of Lords in Sheldrake - too simple and only partly correct

Parliaments intentionA contextual approach: Sheldrake and Attorney-Generals Reference (No 4 of 2002)

The regulatory offence being drunk in charge

The presumption of innocence and the nature of the offence

Regulatory and truly criminal offencesRegulatory offences and reverse legal burdens: the licensing approach

Regulatory offences: the conventional approach

The licensing approach, legal burdens and SheldrakeConclusion

Bibliography

IntroductionThe facts in Sheldrake were not complex. The defendant was convicted in the magistrates

court of being found 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 exceedsthe prescribed limit, contrary to the Road Traffic Act 1988 s5(1)(b) (hereafter being

drunk in charge). The Act provides a defence under section 5(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 toexceed the prescribed limit.

The defendant appealed successfully to the Divisional Court on the ground that the legalburden imposed on him by this defence interfered with the presumption of innocence

guaranteed under article 6(2) of the European Convention on Human Rights and

Fundamental Freedoms. (Legal burden, for these purposes, may be defined as the legal

obligation to prove (or disprove) a fact in issue and, ultimately, to prove a case to a certainstandard. This will be beyond reasonable doubt, if the onus lies on the prosecution, or

on the balance of probabilities, if the onus lies on the defence, Denning J,Millerv

Minister of Pensions [1947] 2 All ER 372, 373-4. Legal burden was Lord Denningspreferred term (Denning 1945) but alternative renderings of legal burden include the

probative burden (DPPvMorgan [1976] AC 182) and the persuasive burden

(Williams 1961).) However, the House of Lords allowed the Director of PublicProsecutions appeal (which was heard together withAttorney-Generals Reference No 4

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of 2002) and upheld the reverse legal burden on the basis that either it did not interfere

with the presumption of innocence or, if it did, it was a proportionate response to the

threat to society posed by the damage, deaths and injuries caused by unfit drivers.

It is submitted that while the decision in the Lords was welcome there were, with respect,

two important deficiencies in the judgment. First, their Lordships did not engagesufficiently with the strong arguments made in the Divisional Court and elsewhere

regarding the gravamen of the offence. It is contended that these arguments are not as

compelling as has been suggested in the case law and academic journals and, in particular,that the section 5(2) defence does not form part of the gravamen of being drunk in

charge. Consequently there was no breach of the presumption of innocence in Sheldrake.

Secondly, and perhaps more importantly, when Lord Bingham assumed a violation of thepresumption of innocence and examined wider justifications for the reverse legal burden

he did not consider the nature of the offence or an alternative approach to reverse burdens

discernible from earlier decisions such asJohnstone [2003] UKHL 28; [2003] 1 WLR

1736 andDavies vHealth and Safety Executive [2002] EWCA Crim 2949. According tothis approach a reverse legal burden may be justified for some regulatory offences on the

basis that the defendant voluntarily engaged in a lawful activity that presented a seriousrisk or danger to public health and safety.

It is submitted that this approach may be taken a step further. An offence may beclassified as regulatory on the basis of this justification for differential treatment of crimes

and regulatory offences and the courts may normally presume that a reverse legal burden

will be justified. That is, if a person voluntarily engages in a lawful activity that presents a

serious risk or danger to public health and safety, an offence concerned with that activitymay be described as regulatory. The defendant can be taken to have accepted a reverse

legal burden as a condition of being licensed to engage in the activity.

This classification is not made in order to diminish the seriousness of the offence. Rather,

it is contended that the conventional approach to distinguishing between regulatory and

truly criminal offences, principally on the basis of moral stigma or blame, is inadequate.Further, the licensing approach, either on its own or when combined with other

considerations such as a defendants peculiar knowledge, provides much clearer

guidance to the courts as to the allocation of the legal burden than has been available in

recent judgments from the appellate courts. It is submitted that it is particularlyappropriate for road traffic offences such as being drunk in charge, which concern

conduct that is quite literally licensed.

Is the section 5(2) defence part of the gravamen of thesection 5(1)(b) offence?The gravamen of an offence

The wording of the section 5(2) defence - It is a defence for a personto prove

suggests that it is an express statutory exception to the golden thread rule in

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Woolmington vDPP[1935] AC 462 that the legal burden of proof is usually on the

prosecution. Indeed, this wording was described by Clarke LJ in the Divisional Court as

a classic legislative tool for imposing such a burden [2003] EWHC 273 (Admin), para10. However, it is also apparent from recent case law concerning legal burdens that a

literal approach to legislation, which ignores human rights considerations and analysis of

the so-called gravamen or essence of an offence, is likely to be regarded as inadequate.For example, the House of Lords in their landmark judgment inLambert[2001] UKHL

37; [2002] 2 AC 545, HL construed the Misuse of Drugs Act 1971 s.28(2), which

similarly commences with: it shall be a defence for the accused to prove as onlyimposing an evidential burden on the defendant on the basis of such an analysis. As the

House of Lords was principally concerned with the retrospective application of the Human

Rights Act 1998 their Lordships comments on reverse burdens were strictly obiter.

However, their views have been followed and considered in numerous other cases sinceand are of undoubted authority (Lord Bingham Sheldrake [2004] UKHL 43, para 30).

This analysis of the gravamen has been developed over a number of years, most recently

by Glanville Williams (Williams 1982 and 1988. Others include: Stone, J 1944; Jeffriesand Stephan1979; Robinson 1982; Zuckerman, A 1976, pp 414-5; more recently this view

was endorsed by Roberts and Zuckerman 2004, pp 376-7). It is argued that an offencemay be interpreted as including, as an essential element, a provision that was drafted as

part of a defence. Williams argued that the distinction between offences and exceptions

(or defences) lacks logic and is often purely verbal, a matter of convenience inexpression (Williams 1982, p 234), illustrating his argument by reference to a colourful

example drawn from Stone:

the proposition All animals have four legs except gorillas and theproposition All animals which are not gorillas have four legs are, so far as their

meanings are concerned, identical (Stone 1944, p 280; Williams 1988, p 277).

Lord Steyn put it more prosaically inLambert[2001] UKHL 37, para 35:

the distinction between constituent elements of the crime and defensive issueswill 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 defenceswithin it. It is necessary to concentrate not on technicalities and niceties of

language but rather on matters of substance

Lord Steyn also quoted, approvingly, Dickson CJC in Whyte (1988) 51 DLR. (4th) 481,

493 to the same effect. It is a view that has been endorsed in Canada and also elsewhere in

the common law world: for example, in South Africa: Coetzee 1997 3 SA 527, CC andZuma 1995 1 SACR 568, CC. The concern is that the presumption of innocence will be

infringed if the gravamen of an offence includes a defence provision, for which the

defendant has the legal burden. As Dickson CJC stated in the Canadian Supreme Court in

Whyte (1988) 1 DLR (4th) 481, 493; 2 SCR 3, para 18:

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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 itpermits a conviction in spite of a reasonable doubt in the mind of the trier of fact

as to the guilt of the accused.

The Divisional Court in Sheldrake

The Divisional Court, drawing on Lambert, was persuaded by the gravamen analysis. TheCourt held that the section 5(2) defence was part of the gravamen of the section 5(1)(b)

offence. That is: It is an offence for a person to be drunk in charge of a motor vehicle if

there is a likelihood that person will drive while over the prescribed limit for alcohol

([2003] EWHC 273 (Admin), para 30 (Admin)). Accordingly, it was held that if thedefendant failed to prove the section 5(2) defence, on the balance of probabilities, he

would be convicted even though a court would not be sure of an element of the offence,

contrary to the presumption of innocence and the golden thread principle in

Woolmington (para 64). However, as is well known, the Woolmington principle is notabsolute, being subject to qualification at common law byMNaghtens Case (1843) 10 Cl

& Fin 200 and by statutory exception, both express and implied,Edwards [1975] QB 27andHunt[1987] AC 352. Further, it is also apparent from Strasbourg case law, notably

Salabiaku vFrance (1988) 13 EHRR 379 that limited inroads on the presumption of

innocence may be justified where a legitimate aim is being pursued and the interferenceis both necessary and proportionate to the problem concerned (Clarke LJ, Sheldrake

[2003] EWHC 273 (Admin), para 18).

The Divisional Court held that a legitimate aim was being pursued by the legislation,namely to preserve public safety by seeking to tackle the problem of drink driving, but

that the reverse legal burden was not necessary to accomplish that aim. It followed that the

interference with the presumption of innocence was not a proportionate response to theproblem (para 83) and accordingly the Divisional Court read down the defence under

the Human Rights Act 1998 s.3(1), 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 compatiblewith the Convention rights, as only imposing an evidential burden on the defendant. The

less demanding evidential burden may be defined as the burden of adducing evidence, or

the obligation to show that there is sufficient evidence to satisfy a judge in a trial on

indictment that an issue can be left to a jury to decide. However, it should be noted thatthe description of the evidential burden as part of the burden of proof is widely regarded

as confusing: a party that has an evidential burden does not have to actually prove

anything, as Lord Jauncey stated inJayasena vR [1970] 1 All ER 219, 221-2.

The House of Lords in Sheldrake - too simple and only partlycorrect

The House of Lords unanimously allowed the Director of Public Prosecutions appeal and

declined to read down an evidential burden. Their Lordships upheld the section 5(2)

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defence as an express statutory exception to Woolmington and held that the reverse legal

burden did not go beyond what was necessary ([2004] UKHL 43, para 41). Lord Bingham

was fairly clear (the likelihood of driving is not an ingredient of the section 5(1)(b)offence(para 49)) that the defence was not part of the gravamen of the offence and,

consequently, no question of interference with the presumption of innocence could arise.

However, disappointingly, their Lordships neglected to consider the gravamen at anylength. This was despite the fact that analysis of the gravamen was clearly central to the

Divisional Courts decision, as it had been to their Lordships landmark judgment in

Lambert.

Appellant counsel quoted Taylor LJ inDPPv Watkins [1989] QB 821 in support of the

view that likelihood of driving is part of the gravamen of the offence. Taylor LJ said at

829B-C: a defendant can be in charge although neither driving not attempting todrive. 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 drivethe vehicle, and may try to drive it whilst still unfit. The Divisional Court had earlier

relied on this comment, Sheldrake [2003] EWHC 273 (Admin), para 29.The nearest theirLordships came to an active analysis of the gravamen was Lord Binghams telling

comment that appellant counsels argument regarding the gravamen was too simple and

only partly correct ([2004] UKHL 43, para 40). This, it is suggested, implied that thegravamen argument was not as compelling as it first appeared and that it also overlooked

the historical background to the particular provision. Lord Bingham noted that the reason

for the offence (the mischief aimed at) was to prevent people driving when unfit through

drink but also commented:

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 Actscriminalised 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 ([2004] UKHL 43, para 40).

Lord Binghams comments about simplicity also echo Campbells contention that the

distinction between offence and defence is not as simple as Williams and others have

suggested and is certainly more than a mere matter of words (Campbell 1987, p 73).Campbell argued that an offence relates to behaviour against which the law takes there to

be a prima facie reason, while a defence relates to exonerating conditions. Here,

Campbell does not use prima facie in its conventional legal sense but in the sense inwhich it is used by most philosophers of practical reasoning, namely to indicate a reason

which is not necessarily a conclusive one (Campbell 1987, p 79).Contrary to Williamss

view, it is important whether the defence appears as an exception to or as part of theoffence in order to understand the nature and purpose of the legislation. Campbell

illustrated this by reference to an example from Williams (Williams 1982, p 254): some

people may believe that abortion should be prohibited but allow for a specific defence for

medical abortions on certain grounds. Other people may not believe that abortion should

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be prohibited, in general, but only where it is not performed by a doctor on medical

grounds. This is not, despite Williams contention to the contrary, simply a verbal

distinction but a disagreement about which types of argument validly support the viewthat abortion is sometimes permissible (Campbell 1987, p 81). That is, it is a fundamental

disagreement about when abortion is permissible.

If we apply this analysis to the Road Traffic Act 1988 s5(1)(b) it is plain that there is also

more than just a verbal distinction between the two rival interpretations of the offence that

may be identified. One version being drunk in charge (with a defence that there was nolikelihood of driving while over the limit prescribed for alcohol) is derived from the view

that being drunk in charge is sufficiently blameworthy conduct on its own. Proof that

there was no likelihood of the defendant driving while over the limit is sufficient excuse.

As Lord Carswell commented:

Being in charge of a vehicle while over the limit is in itself such an anti-social act

that Parliament has long since made it an offence. A person who has drunk more

than the limit should take steps to put it out of his power to drive. Section 5(2)gives him an escape route, which it is quite easy for him to take in a genuine case,

as he is the person best placed to know and establish whether he was likely todrive the vehicle ([2004] UKHL 43, para 84).

The second version of the offence, derived from an analysis of the gravamen beingdrunk in charge when there is a likelihood of driving while over the limit prescribed for

alcohol - originates from an argument that being drunk in charge is only blameworthy

where there is a likelihood of the defendant driving while over the limit, which is said to

constitute the essence of the offence. If there is no likelihood of driving the conduct is notblameworthy.

This is more than just a verbal distinction but one based on a genuine disagreement aboutthe nature of the offence. Arguably, the first argument treats the offence more seriously

than the second as it seeks to regulate the preparatory conduct before a person drives

while unfit and make it an offence. This reflects, perhaps, contrasting approaches to roadsafety identified by OConnell (OConnell 1998). One approach took road safety seriously

and sought legislative restrictions, while the other argued that The Highway Code would

have the best results. OConnell quotes the Minister of Transport, Herbert Morrison, from

the News Chronicle, 17 July 1931, as describing the principles behind the latter as: itgoes upon the basis that this is what the decent drivers will do, and that it is just as

ungentlemanly to be discourteous or to play the fool on the Kings highway as it would be

for a man to push his wife off her chair at the Sunday tea table and grab two pieces ofcake (OConnell 1998, p129).

It is this disagreement which is at the heart of the issue. As Campbell noted:

The reason why it is often difficult to know whether, in creating or interpreting

the law, we should assign something to the offence or defence side is not because

the offence/defence distinction is itself opaque but because, frequently, the

underlying value judgments are (Campbell 1987, p84).

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Parliaments intention

Whether Parliament actually intended the distinction between an offence and an exception

(or a defence) in a piece of legislation may often be a moot point, as Zuckerman has

commented: The legislature does not seem to adopt any consistent terms to mark theexceptions referred to in the rule and there is no uniformity of drafting (Zuckerman 1976,

pp 413-4. See also Williams 1982 and Ashworth 2004, p 247). Nevertheless, it is

contended that there may be a genuine distinction and to suggest otherwise is, asCampbell commented, a misguided over-simplification which fails to do justice to the

subtlety of our ordinary thinking (Campbell 1987, p 82).

In Sheldrake their Lordships were persuaded that Parliament intended the distinction andthat it had not been arbitrarily constructed by parliamentary draftsmen. That Parliament

intended the distinction between offence and defence in section 5 is apparent from Lord

Binghams historical projection of the offence, which demonstrated that the defence did

not appear until 1956, some eighty-four years after the genesis of the offence:

Intoxicating Liquor (Licensing) Act 1872 s12 being drunk in charge of a carriage,horse, cattle or steam engine (no defence as to likelihood of driving).

Road Traffic Act 1930 s15(1) being drunk in charge of a motor vehicle (no defence as

to likelihood of driving).Road Traffic Act 1956 s9(1) (s9(1)(b) the new defence. which was re-enacted in

subsequent road traffic acts: Road Traffic Act 1960; Road Safety Act 1967; Road Traffic

Act 1972 and Road Traffic Act 1988) ([2004] UKHL 43, para 38). (NB it was the 1956

Act which introduced the defence and not the 1930 Act, as stated by Ashworth 2005, p218).

Accordingly, although the defence appeared to be closely linked with the mens rea of theoffence and moral blameworthiness it was clear to the Lords that on this occasion

Parliament intended the distinction. It is suggested that this meets Ashworths criticism in

relation toJohnstone (Ashworth 2004, p 247), which might be applied equally toSheldrake, that the deference shown by the Lords was misplaced because there is little

evidence of Parliament considering the impact of a reverse legal burden on the

presumption of innocence before the Human Rights Act 1998. It is also worth noting that

Julius Stone, the apparent pioneer of the analysis of the gravamen of an offence, agreedthat a distinction could be maintained if it was embodied in an authoritative form of

words, which are, it is submitted, present here (Stone 1944, p 282).

There had been considerable public disquiet about the predecessor offence to section 5(1)

(b), as is clear from the debates in Parliament during the passage of the Road Traffic Act

1956 and contemporary press reports. The leading article in The Times for the 30 May1955 suggested that a defence against being drunk in charge would be equitable and CD

Rolph in The New Statesman and Nation listed a number of recent controversial drunk in

charge decisions (1955, p 877). Parliament appears to have been anxious to remedy a

perceived injustice but was also not overly sympathetic to the person found drunk in

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charge, as is evident from the debate in the House of Lords:

I join with the noble Lord, Lord Brabazon of Tara, and the noble Earl, LordHowe, in thinking that people convicted of being under the influence of drink

while in charge of, or while they are driving, a motor car, or intend to do so, are

not the objects of any great sympathyif I had my way I would never allowanybody convicted of such an offence to drive a car again (Lord Lucas 1955, cols

1006-1007).

It is apparent from the records in Hansard (implicitly if not expressly) that the

Government was content for a legal onus to be on the defendant when it drafted the Road

Traffic Act 1956. An amendment to the Bill was suggested in the Lords which puts upon

the accused the onus of showing that he had no intention of driving or attempting to drivea motor vehicle (Lord Brabazon 1955, col 582). Lord Mancroft, for the Government,

although critical of the amendment stated: the Government want to do exactly what he

wants to do. We have, therefore, to try to find some means of getting over this technical

difficulty (Lord Mancroft 1955, col 586). It is submitted that this tends to suggest that theGovernment intended a reverse legal burden.

The reverse legal burden was certainly in-keeping with the tenor of the 1956 Act to keep

death off the road (Lord Mancroft 1954, col 637) by increased regulation of road

transport, particularly in the light of a sharp increase in reported road casualties in 1954 -there was an 18 per cent increase (Lord Mancroft 1954, col 637). The Times lead article

for the 4 July 1955 (at 9d) stressed the Bills importance for Parliament: They have the

casualty lists 5,000 or more killed on the roads every year, 10 times as many killed and

more than 30 times as many slightly hurt. This was a national scandal. The Earl ofSelkirk, who introduced the Bill in the Lords, remarked that we require a higher standard

of discipline on the roads (The Earl of Selkirk 1954, col 567) and Lord Mancroft

commented specifically in relation to being drunk in charge that we should be quiteright if we erred on the side of strictness (Lord Mancroft 1955, col 586).

Notwithstanding this historical background it was, of course, open to their Lordships inSheldrake to interpret section 5(2) as only imposing an evidential burden on the defendant.

Lord Bingham referred to the courts interpretative obligation under the Human Rights

Act 1998 s3 as a very strong and far-reaching one, and may require the court to depart

from the legislative intention of Parliament ([2004] UKHL 43, para 28). However, hemust also have had in mind furtherdicta from the recent judgment in Ghaidan v Godin-

Mendoza:

Parliament is charged with the primary responsibility for deciding the best way of

dealing with social problems. The courts role is one of review. The court will

reach a different conclusion from the legislature only when it is apparent that thelegislature has attached insufficient importance to a persons Convention rights

(Lord Nicholls, [2004] UKHL 30, para 19. Also seeJohnstone [2003] UKHL 28,

para 51).

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That is, the Courts should generally defer (11) to the Legislature or, at least, allow them a

discretionary area of judgment (R v DPP, ex p Kebilene [1999] UKHL 43; [2000] 2 AC

326, 380-381). (Lord Hoffman has criticised the use of the term deference because of itsovertones of servility, or perhaps gratuitous concessionR (ProLife Alliance) vBBC

[2003] UKHL 23, paras 75-762; WLR 1403, 1422.) This principle now appears firmly

established, as is evident from the decision of an enlarged Privy Council sitting inAttorney-General for Jersey vHolley [2005] UKPC 23. Lord Nicholls, who again

delivered the majority judgment (6-3), stated:

The law of homicide is a highly sensitive and highly controversial area of the

criminal law. In 1957 Parliament altered the common law relating to provocation

and declared what the law on this subject should thenceforth be. In these

circumstances it is not open to judges now to change (develop) the common lawand thereby depart from the law as declared by Parliament (para 22).

Parliaments intentions also appear to have been of particular importance in the recent

caseMakuwa [2006] EWCA Crim 175, which concerned the application of the statutorydefence provided by the Immigration and Asylum Act 1999 s31(1) to an offence under the

Forgery and Counterfeiting Act 1981 s3 of using a false instrument. The question waswhether there was an onus on a refugee to prove that he (a) presented himself without

delay to the authorities; (b) showed good cause for his illegal entry and (c) made an

asylum claim as soon as was reasonably practicable. Moore-Bick LJs judgment was, withrespect, rather confused. He appeared to approve gravamen analysis when he stated that

the presumption of innocence was engaged by a reverse burden (paras 28 and 36).

However, he then stated that the statutory defence did not impose on the defendant the

burden of disproving an essential ingredient of the offence (para 32), in which case it isclear that the presumption of innocence was not engaged. Nonetheless, he did, at least,

recognise the limits of gravamen analysis, which was clearly inapplicable to sections 3

and 31 as the statutory defence applied to a number of other offences under the same Actand the Immigration Act 1971 (para 32). His Lordship acknowledged that particular

attention should be paid to Parliaments actual intentions (para 33), as had been the case in

Sheldrake.

In light of the above it is submitted that their Lordships in Sheldrake, as inBrown v Stott

[2000] UKPC D3; [2003] 1 AC 681, 711C-D, PC, were entitled to uphold a legal rather

than an evidential burden on the defendant and to take into account other Conventionrights, namely the right to life of members of the public exposed to the increased danger

of accidents from unfit drivers (European Convention on Human Rights and Fundamental

Freedoms, article 2). That is, there were sound policy reasons for imposing a reverse legalburden, which will be the subject of further discussion in the second part to this article.

A contextual approach: Sheldrake andAttorney-Generals Reference (No 4 of2002)

Ashworth, in his case note in the Criminal Law Review (Ashworth 2005, p215), was

troubled by the House of Lords decision in Sheldrake and contrasted it with the conjoined

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appeal,Attorney-Generals Reference (No 4 of 2002), which was concerned with the

Terrorism Act 2000 s.11. In the latter, an evidential burden was read down as being

imposed on a defendant because a person who is innocent of any blameworthy orproperly criminal conduct could otherwise fall within the section ([2004] UKHL 43, para

51). Ashworth suggested, somewhat critically, that when compared to Sheldrake this

places a particular construction on innocence (Ashworth 2005, p219). However, withrespect, the different results from the two appeals are more understandable than is implied

if a more contextual approach is taken.

On the one hand, the offence under section 11(1) is of extraordinary breadth and

appears to cover individuals who have done nothing actually blameworthy or properly

criminal. For example, 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 (Lord Bingham [2004] UKHL43, para 47). On the other hand, section 5(1)(b) does cover blameworthy (if not as serious)

conduct. It is submitted that the intoxicated person in charge of a vehicle, whether asleep

in the back or sitting in the drivers seat, is engaged in conduct worthy of blame on its

own, even if it might not be regarded as truly criminal. Ashworths apparent sympathyfor the person who has had a few drinks and decides to sleep in the back of his or her

car (Ashworth 2005, p 219), with respect, was misplaced as he overlooked the particularnature of the offence, which will be further examined in the second part to this article.

In relation toAttorney-Generals Reference (No 4 of 2002) it is also worth noting that thelegislative predecessors to section 11(2) of the Terrorism Act 2000 (contained in the

Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1989 ss1(6) and 2(3))

referred to the person belonging to a proscribed organisation being: not guilty of an

offenceif he shows essentially the same points as in section 11(2) of the 2000 Act (ie(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). By contrast, section11 makes it a defenceto prove, suggesting a deliberate change from the defendant

bearing an evidential burden in relation to an element of the offence to bearing a legal

burden in relation to his defence, despite Lord Rodgers doubts ([2004] UKHL 43, para60). Nevertheless, their Lordships do not seem to have been influenced by this and,

accordingly, history appears an inadequate guide to the allocation of the legal burden on

its own, despite its apparent importance in Sheldrake.

It should be apparent from the above that the section 5(2) defence is not part of the

gravamen of being drunk in charge. Accordingly, the concern that there was a breach of

the presumption of innocence did not arise in Sheldrake. Although their Lordships largelyoverlooked the issue, Lord Bingham did indicate that this was his view. He was not

entirely clear at first but later stated, more directly: the likelihood of driving is not an

ingredient of the section 5(1)(b) offence ([2004] UKHL 43, para 49). However, HisLordship also believed that the stronger argument for a reverse legal burden in section

5(2) lay not in an analysis of the gravamen of the offence alone, or in an historical analysis

of the legislation, but in wider considerations, which will now be examined.

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The regulatory offence being drunk in charge

The presumption of innocence and the nature of the offence

In Sheldrake,Lord Bingham assumed that the presumption of innocence had been

infringed: It may not be very profitable to debate whether section 5(2) infringes thepresumption of innocence. It may be assumed that it does ([2004] UKHL 43, para 41). It

follows that he also assumed that the gravamen of being drunk in charge included thelikelihood of driving aspersection 5(2). It is not immediately apparent why he made

these assumptions because, as noted above, he believed the opposite. We may presume

that it was for the sake of argument and because he thought the stronger case for a reverse

legal burden lay in wider considerations.

In accordance with Strasbourg jurisprudence Lord Bingham considered whether the

provision was directed to a legitimate object, was within reasonable limits and was notarbitrary.1 That is, given that the presumption of innocence is not absolute, he considered

whether the interference was justified and, applying Lord Steyns testinLambert, [t]hetest is dependent upon the circumstances of the individual case. It follows that legislativeinterference with the presumption of innocence requires justification and must not be

greater than is necessary. The principle of proportionality must be observed Lambert

[2001] UKHL 37, para 34),held that the imposition of a legal burden did not go beyond

what was necessary and so the conviction was not unfair. It was proportionate to the threatto society posed by damage, deaths and injuries caused by unfit drivers and did not

amount to an unreasonable limit on the presumption of innocence ([2004] UKHL 43, para

41). He did not follow Lord Nichollss alternative approach (and like Lord Steyn obiter)inJohnstone [2003] UKHL 28, para 49, which was to ask if there is a compelling

reason why it is fair and reasonable to impose a reverse legal burden. This was

reminiscent of the South African Constitutional Court, which has held that anyjustification for infringing the presumption of innocence must be clear, convincing and

compellingMbatha; Prinsloo 1996 3 BCLR 293, CC. It is a significant difference in

emphasis to Lord Steyns approach and was endorsed by Lord Woolf as a more

flexible approach inAttorney Generals Reference (No 1 of 2004) [2004] All ER (D)318 (Apr), para 38, CA. Although this enlarged Court of Appeal saidJohnstone was to be

preferred (para 52), Lord Bingham resurrectedLambertin Sheldrake [2004] UKHL 43,

para 30.

Earlier in his judgment Lord Bingham had suggested that there were a number of relevant

factors that ought to be taken into account in determining whether infringements on the

presumption of innocence were within reasonable limits: the defendants opportunity to

1 In accordance with Salabiaku v France (1988) 13 EHRR 379, 388, para 28, which Lord Binghamreferred to at length, [2004] UKHL 43, paras 11-13. Salabiaku was followed inHoangvFrance [1992] 16

EHRR 53 and more recently inKingv UK(2003) Application No 00013881/02, 8.4.03. Domestically it

has been widely cited in relation to reverse legal burdens, for example:R v DPP, ex p Kebilene [1999]

UKHL 43; [2000] 2 AC 326,385 Lord Hope, andBrown v Stott[2000] UKPC D3; [2003] 1 AC 681,

694C Lord Hope and Lord Bingham at 704D. Lord Woolf described it as Strasbourgs equivalent of

Woolmington v DPPAttorney Generals Reference (No 1 of 2004) [2004] All ER (D) 318 (Apr), para 18,

CA.

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rebut the presumption; maintenance of defence rights; flexibility in the application of the

presumption; retention by the court of the power to assess the evidence; the importance of

what is at stake and difficulties of proof. Security concerns (presumably about terrorism)were said not to exempt member states of the Convention from observing basic standards

of fairness. Finally, in a similar vein to Lord Nicholls inJohnstone [2004] UKHL28, para

50, he stated:

The justifiability of any infringement of the presumption of innocence cannot be

resolved by any rule of thumb, but on examination of all the facts andcircumstances of the particular provision as applied in the particular case ([2004]

UKHL 43, para 21).

As noted above, Lord Bingham appears to have been influenced by historical context. Healso referred to the defendants opportunity to meet the offence with a statutory defence.

Unfortunately, neither he nor his colleagues considered the particular nature of the

offence, which, it is suggested, is required for an examination of all the facts and

circumstances of the particular provision as applied in the particular case. That is, theirLordships did not consider whether the offence was regulatory or truly criminal, which

would, it is contended, have provided them with useful guidance as to the allocation of thelegal burden. Lord Bingham briefly referred to the distinction [2004] UKHL 43, para 6.

His comment that the forerunner of section 5(1)(b), the strict liability offence of being

drunk in charge of any carriage, horse, cattle or steam engine, contrary to the LicensingAct 1872 s.12: may be thought not to be regulatory tends to suggest that he agreed with

the Divisional Courts assessment of section 5(1)(b) as truly criminal.

Regulatory and truly criminal offences

The distinction between regulatory and truly criminal offences is not novel. It was

Wright J in Sherras v De Rutzen[1895] 1 QB 918, 922 who famously distinguishedbetween a class of actswhich are not criminal in any real sense, but are acts which in

the public interest are prohibited under a penalty (rather than imprisonment) in order to

explain the lack of need formens rea in strict liability offences. The distinction wasrepeated in later cases, for example: Sweetv Parsley [1969] 1 All ER 347, HL; Warner

[1969] 2 AC 256, HL; Gammon (Hong Kong) Ltdv Attorney-General of Hong Kong

[1985] AC 1, PC and more recently inBlake [1997] 1 All ER 963, CA;Harrow London

Borough Councilv Shah [1999] 3 All ER 302, DC;B (a minor) v DPP[2000] AC 428;Lambert[2001] UKHL 37 [2002] 2 AC 545, HL;Muhamad[2003] QB 1031, CA;R

(Grundy & Co Excavations Ltd and Sean Parry) v Halton Magistrates Court, ex p the

Forestry Commission [2003] EWHC 272, DC. This remains the most usual method ofdistinguishing between the two types of offence but it has also been controversial, as is

apparent from Smith & Hogan:

An act either is, or is not, declared by Parliament to be a crime. Mitchell J said [in

London Borough of Harrow v Shah [1999] 3 All ER 302, DC] that he did not

regard the offence of selling a lottery ticket to a child under 16 as truly criminal in

character although it was punishable on indictment with two years imprisonment.

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This is a peculiar notion of truth. The truth is that it is a crime. It is the courts

which take it upon themselves to decide whether it is real or quasi crime. They

do so on the basis that an offence which, in the public eye, carries little or nostigma and does not involve the disgrace of criminality is only a quasi-crime

(Smith, JC 2002, p 125).

Nonetheless, depending on how the distinction is drawn, it is submitted that it is useful, in

particular, because it can provide courts with ready guidance on the validity of a reverse

legal burden. That is, it is more likely that one can be justified for a regulatory offenceand, indeed, it is contended that one may normally be presumed. As Clarke LJ argued in

the Divisional Court in Sheldrake [2003] EWHC 273, paras 76-82 (Admin) and inR

(Grundy & Co Excavations Ltd and Sean Parry) v Halton Magistrates Court, ex p The

Forestry Commission [2003] EWHC 272, paras 42-48, DC (decided on the same day) thecorrect approach to these types of offences points the way in determining whether it is

necessary to impose a legal burden on a defendant.

Regulatory offences and reverse legal burdens: the licensing approach

It is argued that it is a particularly important to draw the distinction between crimes andregulatory offences in the light of an alternative approach to reverse legal burdens

discernible from the House of Lordsjudgment inJohnstone, albeit obiter,and the Court

of Appeals judgment inDavies v Health and Safety Executive [2002] EWCA Crim 2949.Both seemed to suggest that a reverse legal burden might be justified, at least in part,

because the defendant voluntarily engaged in a lawful activity that presented a serious risk

or danger to public health and safety.

The justification for presuming a legal burden may be imposed on the defendant is not that

it is simply one of the general duties of citizenship that Roberts and Zuckerman used

principally to justify the imposition of an evidential burden on a defendant (althoughsometimes a persuasive one as well) (Roberts and Zuckerman 2004, p348). The

importance of the lawfulness of the regulated activity in the licensing approach is

apparent if we consider the general aim of regulatory legislation, which can be stated to beto secure public welfare (to use the equivalent American term for regulatory offences)

rather than punishment (Sayre 1933).In Sheldrake [2003] EWHC 273, para 80 Clarke

LJ considered Cory Js public protection justification for differential treatment of

regulatory and truly criminal offences examined in Wholesale Travel Group (1991) 84DLR (4th) 161(following the earlier decision in Sault Ste Marie [1978] 40 CCC (2d) 353,

357) but held that public protection is a characteristic of most criminal offences and not

just regulatory offences. However, Clarke LJ overlooked the remainder of Cory Jsremarks that the public are to be protected from the adverse effects of otherwise lawful

activity (para 78) perhaps suggesting that Clarke LJ had not fully appreciated this basis

for the differential treatment of these two types of offence. Public health and safety wereconsidered in Lord Diplocks justification for strict liability in SweetvParsley [1970] AC

132, 163

where the subject-matter of a statute is the regulation of a particular activity

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involving potential danger to public health, safety or morals, in which citizens

have a choice whether they participate or not, the court may feel driven to infer an

intention of Parliament to impose, by penal sanctions, a higher duty of care onthose who choose to participate and to place on them an obligation to take

whatever measures may be necessary to prevent the prohibited act

Whether morals would be sufficient may be debatable.

Johnstone was concerned with the offence of unauthorised use of a trade mark, contrary tothe Trade Marks Act 1994 s92. It was said that there was a significant risk to the

economy. InR v S[2003] 1 Cr App R 602, CA, which pre-datedJohnstone and which was

also concerned with trade mark offences, it was noted (p 624) that the Department of

Trade and Industry estimated in December 2001 that the cost to the UK economy ofcounterfeiting or intellectual property crime generally was 9 billion per year and that it

was responsible for prospective job losses in legitimate businesses of over 4,000 people.

There was also a risk, in terms of the quality of counterfeit and pirate goods, to the

health and safety of consumers. Therefore, partly on this basis, a reverse legal burden wasjustified:

Those who trade in brand products are aware of the need to be on guard against

counterfeit goods. They are aware of the need to deal with reputable suppliers and

keep records and of the risks they take if they do not (para 52).

Davies v Health and Safety Executive [2002] EWCA Crim 2949 concerned the offence of

failing to conduct an undertaking so that people are not exposed to risks to their health or

safety, so far as is reasonably practicable, under the Health and Safety at Work Act 1974ss3(1) and 33(1), and the section 40 defence, which imposed a reverse legal burden on the

defendant. Tuckey LJ held that the Act was regulatory and the need for regulation was

demonstrated by statistics. Further, he stated:

The reversal of the burden of proof takes into account the fact that duty holders

are persons who have chosen to engage in work or commercial activity (probablyfor gain) and are in charge of it. They are not therefore unengaged or disinterested

members of the public and in choosing to operate in a regulated sphere of activity

they must be taken to have accepted the regulatory controls that go with itWhere

the enforcing authority can show that this [safety standard] has not been achievedit is not unjustifiable or unfair to ask the duty holder who has created or is in

control of the risk to show that it was not reasonably practicable for him to have

done more than he did to prevent or avoid it (para 25).

It was less clear inJohnstone that the offence was regulatory because of the maximum

sentence of ten years imprisonment. Indeed, Ashworth noted that there was no expressreference to the regulatory nature of the offence in the judgment, in contrast to the

judgment inR v S, which was also concerned with the Trade Marks Act 1994(Ashworth

2004, p 247). However, this may be doubted, as is evident from Lord Nicholls comment

that a reverse legal burden was compatible with article 6(2): For these reasons, which are

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substantially the same as those given by Rose LJ inR v S ([2003] UKHL 28, para 54).

In bothJohnstone andDavies there were other relevant factors, such as the defendantspeculiar knowledge of the subject matter of the offence that weighed in the balance

when determining the validity of the reverse legal burden. Nevertheless, it is submitted

that central to both decisions was the idea that a person who voluntarily engages in alawful activity that presents a serious risk or danger to public health and safety has a

certain responsibility. Consequently, where charged with an offence connected with the

activity it should be for that person to bear the onus of proof in relation to any defence. Itis submitted that this idea may also be used to classify an offence as regulatory in the first

place and that the courts can normally presume that a reverse legal burden will be justified

as a reasonable limit on the presumption of innocence. This is because the defendant can

be taken to have accepted the reverse legal burden as a condition of being licensed toengage in the particular activity. It has been argued that simply delineating an offence as

regulatory ought not to be sufficient to transfer an onus onto a defendant (Stuart, 1992.

However, a rebuttable presumption does not necessarily transfer the onus and does

provide useful guidance for the courts.

This approach draws on Cory Js licensing justification for differential treatment ofcrimes and regulatory offences in Wholesale Travel Group (1991) 84 DLR (4th) 161, 212:

Thus, while in the criminal context, the essential question to be determined iswhether the accused has made the choice to act in the manner alleged in the

indictment, the regulated defendant is, by virtue of the licensing argument,

assumed to have made the choice to engage in the regulated activity.

It is submitted that the licensing justification may be taken a step further and used as a

means of actually defining offences as regulatory rather than simply justifying differential

treatment of crimes and regulatory offences. There is some evidence to suggest that Cory Jmay have also believed that this could form a basis for definition:

It is useful to distinguish between conduct which, by virtue of its inherent dangeror the risk it engenders for others, would generally alert a reasonable person to the

probability that the conduct would be regulated, from that conduct which is so

mundane and apparently harmless that no thought would ordinarily be given to its

potentially regulated nature. In the latter circumstances, the licensing argumentwould not apply (p 214).

That is, the licensing argument would not apply because the defendant would not beaware of having engaged in a regulated activity that presented a risk or danger to others.

It is suggested that this is close to saying that the offence was not itself regulatory because

the defendant had not voluntarily engaged in a lawful activity that presented a serious riskto public health or safety.

This definition may not apply in all circumstances, for example, an offence such as using

a television without a licence (Wireless Telegraphy Act 1949 s1) would not be classed as

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regulatory under the licensing approach. There is no obvious risk to the public from this

conduct and it may not be regarded as truly criminal. It is submitted that it is a regulatory

offence but is more adequately described as such in the conventional sense outlinedbelow. There may also be some debate about what amounts to a serious risk or danger.

Nevertheless, it is contended that the licensing approach is particularly appropriate to

road traffic offences because of the serious risk or danger to public health and safety andalso by virtue of the literal requirement for a licence to drive. Further, it avoids the pitfalls

contained in the conventional approach to defining regulatory offences considered below.

Regulatory offences: the conventional approach

In the Divisional Court in Sheldrake [2003] EWHC 273 (Admin), paras 77-78 Clarke LJ

drew on Wholesale Travel Group (through reference toDavies v Health and SafetyExecutive [2002] EWCA Crim 2949)but did so to distinguish between crimes and

regulatory offences on the conventional basis provided by Sherras vDe Rutzen. This

emphasises that some acts, such as murder or theft, are universally recognized as crimes

but that some conduct is prohibited:

not because it is inherently wrongful, but because unregulated activity wouldresult in dangerous conditions being imposed upon members of society, especially

those who are particularly vulnerable. The objective of regulatory legislation is to

protect the public or broad segments of the public (such as employees, consumersand motorists, to name but a few) from the potentially adverse effects of otherwise

lawful activity [1991] 3 SCR 154; (1991) 84 DLR (4th) 161, 205.

Consequently, he concluded being drunk in charge was truly criminal because thegravamen of the offence included the likelihood of the defendant driving while over the

prescribed limit for alcohol [2003] EWHC 273 (Admin), para 80. It was a serious

criminal offence involving inherently wrongful conduct (para 81). However, if hisanalysis of the gravamen is rejected, as it was in the Lords, the offence immediately

appears less blameworthy, less deserving of stigma, and so less clearly truly criminal on

these terms. Indeed, Henriques J in his dissenting judgment stated:

Whilst not without some punitive element section 5 forms part of the regulatory

regime spoken of by Lord Bingham inBrown v Stott[2001] 2 All ER 97 at p116F

and by Lord Steyn when he spoke at p121J of the subject inviting specialregulation (para 130).

It is submitted that this tends to suggest that moral stigma and blame is an unreliable anduncertain basis on which to distinguish between regulatory and truly criminal offences,

even if it is the usual basis. A further problem with this approach is that as social values

change, so the level of stigma that may attach to certain conduct may also change and it isnotable that Lord Clyde, quoted by Clarke LJ, was more cautious when he referred to

regulatory offences inLambert[2001] UKHL 37, para 154:

These kinds of cases may properly be seen as not truly criminal. Many may be

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relatively trivial and only involve a monetary penalty. Many may carry with them

no real social disgrace or infamy [Emphasis added].

That moral stigma or blame is an inadequate basis should be immediately apparent from

traditional regulatory cases such asHobbs v Winchester Corporation [1910] 2 KB 471,

CA where the defendant sold meat unfit for human consumption. A more recent exampleisAlphacell Ltdv Woodward[1972] AC 824, HLwhere the defendant company polluted

a river. Surely stigma and moral blame attached to these defendants, as it did to more

profound failures of regulation, such as the cases concerning the drug Thalidomide; the oilspillage from the Exxon Valdez and the Bhopal and Chernobyl disasters?

It has been argued, in accordance with Wright Js definition in Sherras vDe Rutzen, that

an offence must be truly criminal if it is punishable by imprisonment. (22) )InSheldrake [2004] UKHL 43, para 51 Lord Bingham referred to this as a consideration for

determining whether the reverse burden was justified inAttorney-Generals Reference

(No 4 of 2002). Presumably this falls under the more general factors listed by Lord

Bingham at paragraph 21 as relevant to the validity of a reverse legal burden and, inparticular, what is at stake?. (See also Clarke LJs comments in the Divisional Court

[2003] EWHC 273, paras 72-77 (Admin).) Whether an offence was imprisonable or notwas regarded by Ruby and Julien as a more useful distinction than that between truly

criminal and regulatory offences made in Wholesale Travel Group (Ruby and Julien

1992). However, the courts have not always been consistent when applying this criterionand we may contrast, for example, the decisions inHarrow London Borough Councilv

Shah [1999] 3 All ER 302, DC andBlake [1997] 1 All ER 963, CA. InBlake, Hirst LJ

held that since the offence of using a station for wireless telegraphy without a licence was

subject to a term of two years imprisonment, the offence was truly criminal (at 967).The contrary was held in Shah. Further, inMuhamad[2003] QB 1031, CAthe Court of

Appeal was uncertain whether the offence of materially contributing to insolvency by

gambling, contrary to the Insolvency Act 1986 s362(1), was truly criminal because themaximum term was two years imprisonment.

We may also want to question whether, on the one hand, regulation can be effective ifdefendants cannot be imprisoned and, whether on the other hand, cases involving gross

breaches of regulation, such as Exxon Valdez, do not deserve strong sanctions.

Accordingly, it is submitted that the licensing approach is generally to be preferred and

is particularly suited to offences such as being drunk in charge.

The licensing approach, legal burdens and Sheldrake

In Sheldrake Lord Bingham made passing reference to the context and the nature of the

offence as relevant issues when he distinguishedJohnstone andLambert(para 30). In

relation to offences under the Trade Marks Act 1994 he stated:

these are offences committed (if committed) by dealers, traders, market

operators, who could reasonably be expectedto exercise some care about the

provenance of goods in which they deal (para 30).

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We might add (even if Lord Bingham did not) that they have freely chosen to engage in a

lawful activity that presents a serious risk or danger to public health and safety in terms ofunsafe counterfeit and pirate goods. Accordingly, it is submitted, the offence may be

described as regulatory according to the licensing approach and it follows that the courts

can normally presume that a reverse legal burden will be justified. A defendant may bepresumed to have accepted a reverse legal burden as a condition of being licensed to

engage in the activity. As Webb has noted (Webb 1989, p 452) a drivers licence is a

particularly good example of this type of situation:

The fact that an accused is participating in a regulated activity and has met the

initial entrance requirements leads to a legally imposed or assumed awareness on

his part of the risks associated with that activity.

Further, as was suggested by Cory J in Wholesale Travel Group (1991) 84 DLR (4th) 161,

215: by virtue of the decision to enter the regulated field, the regulated person can be

taken to have accepted certain terms and conditions of entry. This applies, arguably, evenif drivers have not obtained the requisite licence. They have:

placed themselves in a responsible relationship to the public generally and

must accept the consequences of that responsibilitythose persons who enter a

regulated field are in the best position to control the harm which may result andthey should therefore be held responsible for it (p213).

It is submitted that reverse legal burdens will normally be justified in cases concerning

regulatory offences (as defined according to the licensing approach) such as beingdrunk in charge. As Lord Bingham noted inBrown v Stott[2000] UKPC D3; [2003] 1

AC 681, 705, PC:

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

neitherThis regime is imposed not because owning or driving cars is a privilegeor 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.

The parallel with weapons and also health and safety legislation seems particularly

apposite in Sheldrake despite Clarke LJs comments to the contrary in the Divisional

Court (paras 71 and 75). InL v DPP[2003] QB 137, CA concerning the possession of alock-knife, contrary to the Criminal Justice Act 1988 s139, Pill LJ approved a reverse

legal burden as proportionate to the social problem of knives being carried in public

without good reason (148-149). Equally, there is a strong public interest in cars, aspotentially instruments of death and injury (Lord Steyn,Brown v Stott[2000] UKPC

D3; [2003] 1 AC 681, 709, PC) not being driven by intoxicated people. As there are

considerable risks involved in driving, is it not, in fact, quite correct to describe it as a

privilege or indulgence to be permitted to engage in this activity, subject to certain

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terms and conditions of entry? These can be said to include acceptance of a reverse legal

burden for the section 5(2) defence.

As with the strict liability regulatory offender, a driver cannot be said to be a blameless

innocent if he has to prove there was no likelihood of him driving while over the

prescribed limit for alcohol. This would be to ignore the context of the offence as thedriver has freely chosen to engage in the dangerous activity and should accept the

consequences of that responsibility. It is suggested that in these circumstances, as with

strict liability offences, the individuals supposed innocence flows from the lawstraditional tendency to view the criminal act only in the context of its immediate past and

not in the context of the individuals licence to engage in the activity (Richardson 1987,

pp 295-6).

A well-established strict liability principle, that may also be usefully applied here, is that a

person who engages in conduct that creates a risk and takes a profit from that risk ought to

be liable if that risk materialises and there are serious consequences (Hobbs v Winchester

Corporation [1910] 2 KB 471, CA. The same principle was applied by Lord Diplock inSweetv Parsley [1970] AC 132, 163). It is also worth noting that regulatory offences are

usually directed at the consequences of conduct rather than the conduct itself, which ismore characteristic of truly criminal offences. Farwell LJ asked inHobbs v Winchester

Corporation [1910] 2 KB 471, 481, CA:

Who is to take the risk of the meat being unsound, the butcher or the public? In

my opinion the Legislature intended that the butcher should take the risk and that

the public should be protected, irrespective of the guilt or innocence of the

butcher.

The consequence for the butcher is conviction when he was without fault. For the public,

the consequences are illness or worse. We might equally ask: Who should take the risk ofthe driver who is drunk in charge driving - the driver or the public? The risk for the

driver is that he will be convicted of the offence even though he was not going to drive

while over the prescribed limit for alcohol, but this is clearly mitigated by the section 5(2)defence. The risk to the public is that an intoxicated driver will drive and the potential

consequences of that are apparent from transport statistics, which notably were not

referred to in either the Divisional Court or the House of Lords in Sheldrake.

The latest road casualty statistics for 2005, although indicating a continued downward

trend, reveal the human cost of road transport:

There were 271,017 reported casualties on roads in Great Britain in 20053,201

people were killed. 28,954 were seriously injured and 238,862 were slightly

injuredThere were 198,735 road accidents involving personal injury...Of these,27,942 involved death or serious injuryThere were 141 child fatalitiesThe

number of children killed or seriously injured in 2005 was 3,472.Road

Casualties in Great Britain Main Results: 2005, Department for Transport

Statistics Bulletin (06) 26, (June 2006).

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These statistics are stated to refer to personal injury accidents on public roads (including

footways) which became known to the police. Figures for deaths refer to persons whosustained injuries which caused death less than 30 days after the accident. This is the usual

international definition. The bulletin also notes that research in the 1990s has shown

that many non-fatal injury accidents are not reported to the police. In addition somecasualties reported to the police are not recorded and the severity of injury tends to be

underestimated. The combined effect of under-reporting, under-recording and

misclassification suggests that there may be 2.76 times as many seriously injuredcasualties than are recorded in the national casualty figures and 1.70 slight casualties.

In terms of drink driving, the most recent statistics suggest that in 2003 7 per cent of all

road casualties and 17 per cent of road deaths occurred when someone was driving overthe legal limit for alcohol. Provisional estimates for 2004 suggest drink-drive related

deaths of around 590 people (marginally up from 2003 and the highest figure since 1992);

serious injuries of 2,350 and 17,000 casualties of all severities (DfT 2005, p24).

These figures are, with the exception of fatalities, lower than in 2003. However, it is

suggested that they remain a serious cause for concern and, accordingly, it does not seemdisproportionate, nor unfair, that the defendant bears the onus of proving that there was no

likelihood of him driving while over the prescribed limit for alcohol, as remarked by Lord

Bingham in Sheldrake [2004] UKHL 43, para 41. Further, equivalent Canadian provisionsalso create a reverse legal burden. Section 234(1) of the Canadian Criminal Code provides

that every one who drives a motor vehicle or has the care or control of a motor vehicle,

whether it is in motion or not, while his ability to drive a motor vehicle is impaired by

alcohol or a drug, is guilty of an indictable offence or an offence punishable on summaryconviction. Section 237(1)(a) provides: (1) In any proceedings under section 234 or

236, (a) where it is proved that the accused occupied the seat ordinarily occupied by the

driver of a motor vehicle, he shall be deemed to have had the care and control of thevehicle unless he establishes that he did not enter or mount the vehicle for the purpose of

setting it in motion. As Dickson CJ noted in relation to these provisions in Whyte [1988]

2 SCR 3, para 47:

Parliament wished to discourage intoxicated people from even placing

themselves in a position where they could set a vehicle in motion, while at the

same time providing a way for a person to avoid liability when there was a reasonfor entering the vehicle other than to set it in motion. The position is admittedly a

compromise. It is an attempt to balance the dangers posed by a person whose

abilities to reason are impaired by alcohol with the desire to avoid absoluteliability offences.

It is suggested that section 5(1)(b) is, like the Canadian provision, a restrainedparliamentary response to a pressing social problem and a minimal interference with the

presumption of innocence ([1988] 2 SCR 3, para 49). After all, there was no reason why

the Government could not have legislated for an absolute offence and it is submitted that

the legislatures greater power to do so included the lesser power to provide a defence,

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albeit with a reverse legal onus. This is the so-called greater includes the lesser argument

(Jeffries and Stephan 1979, p1337 and Dripps 1987, p 1677) that has been successfully

deployed elsewhere in the common law world (27) and which seems particularly relevantto being drunk in charge. Jeffries and Stephan trace the principle to Holmes J inFerry v

Ramsey 277 U.S. 88, 94 (1928). Elsewhere, Dickson J (as he then was) stated inR v City

of Sault Ste Marie (1978) 85 DLR (3d) 161, 181 in relation to a reverse burden imposed toshow lack of negligence in the pollution of water: This would not seem unfair as the

alternative is absolute liability which denies an accused any defence whatsoever. Also

see Coetzee 1997 3 SA 527, CC, para 88 where Kentridge AJ, dissenting in part with themain judgment, made substantially the same point.However, this argument has been

criticised as conceding too much to the legislatures drafting of the offence. This is

essentially the same argument considered above as to the gravamen of the offence (Paizes

1998, p421). In this context it is particularly notable that until the Road Traffic Act 1956 itwas a strict liability offence under the Road Traffic Act 1930.

During the debate on the Road Traffic Bill 1956 in the Lords the existing law was said to

be causing great injustices up and down the country. It was described as a travesty ofjustice (Lord Brabazon 1954, col 608), as an ass and as a grave blot on justice (Lord

Lucas 1955, cols 583 and 1007). A number of examples of injustice were described bytheir Lordships. For example, Earl Jowitt referred (Earl Jowitt 1954, col 633) to a man

who had left his car on the road outside his house without leaving on the lights. He

became rather drunk after dinner and was wearing pyjamas when the police madeenquiries about the car. They asked him to turn on the cars lights and when he obliged he

was prosecuted for being drunk in charge. In the Commons, the Joint Parliamentary

Secretary to the Ministry of Transport and Civil Aviation, Hugh Molson, noted that the

strict test in the 1930 Act had aroused a good deal of public discussion. Recent decisionsby the courts have [been]regarded as unreasonable (Molson 1955, col 790).

Accordingly, the Legislature mitigated the position by introducing the equivalent of the

section 5(2) defence.

Lord Bingham noted in Sheldrake [2005] UKHL 43, paras 21 and 40 that it should be

borne in mind that it was open to states to create a strict liability offence and thatParliament had mitigated the strict position under the Road Traffic Act 1930. The

implication is that when assessing the reasonableness of the reverse burden a court should

defer to Parliament and take into account that it acted in a relatively restrained way by

only imposing a legal burden on the defendant and by not making the offence subject tostrict liability. Lord Rodger made the same point in his dissenting judgment in relation to

the defence under the Terrorism Act 2000 s11(2) (paras 69 and 71). It is submitted that the

defence, with its reverse legal burden created by the 1956 Act, was clearly a preferablealternative to strict liability for drivers and the same may be said of the equivalent section

5(2) provision under the 1988 Act. The idea that a reverse legal burden is an alternative to

strict liability is one that was considered by FB Sayre as long ago as 1933 for publicwelfare offences punishable by imprisonment or a heavy fine, (Sayre 1933, p 79) and was

referred to by Lord Reid in Sweetv Parsley [1970] AC 132, 150: Parliament has not

infrequently transferred the onus as regards mens rea to the accused, so that, once the

necessary facts are proved, he must convince the jury that, on balance of probabilities, he

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is innocent of any criminal intention. I find it a little surprising that more use has not been

made of this method; but one of the bad effects ofWoolmington v DPPmay have been to

discourage its use. Lord Pearce described it as a sensible half-way house (p 157).

ConclusionTheir Lordships decision in Sheldrake was welcome but it also represents a missed

opportunity to engage critically with the strong arguments regarding the gravamen of theoffence that have been aired in the courts. It is contended that these arguments are less

compelling than has been suggested and, as is apparent from Campbells criticism of

Williamss approach, particularly when applied to the facts in Sheldrake. It is clear,despite Lord Binghams hesitation, that the section 5(2) defence does not form part of the

gravamen of being drunk in charge. Accordingly, there was no breach of the

presumption of innocence in Sheldrake.

It was also a disappointment that their Lordships did not fully consider the nature of the

offence being drunk in charge. Had they done so they might have had cause to reflectupon the alternative licensing approach to reverse legal burdens suggested by the

judgments inJohnstone,Davies v Health and Safety Executive and Wholesale Travel

Group. According to this approach the defendant who voluntarily engages in an activity,

which is lawful but which presents a serious risk or danger to public health and safety, canexpect an offence concerned with the activity to be classified as regulatory. It is submitted

that in this context the courts can normally presume that a reverse legal burden will be

justified as a reasonable limit on the presumption of innocence. The defendant may betaken to have accepted a reverse legal burden as a condition of being licensed to engage

in the activity.

The licensing approach is not the only method of defining a regulatory offence but, it issuggested, it is particularly appropriate to road traffic offences, such as being drunk in

charge, and may also have wider application. If a reverse legal burden is presumed it

provides a degree of clarity and consistency that has been notably lacking in recentjudgments from the appellate courts.

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