Sheldrake v DPP

Date

14 October 2004

Legislation

ss.5(1) and 5(2) Road Traffic Act 1988
ss.11(1) and 11(2) Terrorism Act 2000, Art 6(2), Part I Schedule 1
s.3(1) Human Rights Act 1998

Keywords

Burden of Proof; Legal and Evidential Burdens; Reverse Burden of Proof; Defence; Presumption of Innocence; Right to a Fair Trial; Road Traffic; Terrorism

Counsel

James Turner QC, Jamas Hodivala and Allan Compton for Sheldrake, David Perry, and Jonathon Ashley-Norman, for the DPP, Tim Owen QC, Anne Richardson and Danny Friedman for the acquitted person, David Perry and Gareth Patterson for the Attorney General

Solicitors:

Budd Martin Burrett for Sheldrake. Michael Purdon for the acquitted person.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell.

Court:

House of Lords

Reported:

[2004] U.K.H.L. 43, [2005] 1 A.C. 264, [2005] 1 All E.R. 237, [2004] 3 W.L.R. 976, (2004) 168 J.P. 669, [2005] 1 Cr App R 28, 17 B.H.R.C. 339, (2005) 169 J.P.N. 19, [2005] R.T.R. 2, (2004) 148 S.J.L.B. 1216, [2004] H.R.L.R. 44.

Summary:

The hearing before the House of Lords arose as a result of 2 different cases.

In the first case, the Defendant (D) was charged under s. 5(1)(b) of the Road Traffic Act 1988 with being in charge of a motor vehicle after having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit. The D had attempted to raise the defence provided for under s.5(2) namely that there was no likelihood of him driving the vehicle while over the limit but this failed. The D appealed by way of case stated and argued that unless it placed only an evidential burden, the placing of the burden on the D to prove the defence under s.5(2) was contrary to the presumption of innocence under Art 6(2) of the HRA 1998. The Divisional Court allowed the appeal and consequently an appeal was made by the DPP to the HL.

In the second case the D was charged with belonging to and professing to belong to a proscribed organisation contrary to s.11(1) of the Terrorism Act 2000. The D argued that at the time when he became a member or professed to become a member of the organisation it had not yet been proscribed (a defence provided by s.11(2)). The court found that once the D had raised this as an issue and satisfied the evidential burden of proof it was for the Crown to then rebut the evidence rather than the D having to satisfy the legal burden as well. This prompted an appeal by the Attorney General to the CA. The Court of Appeal disagreed with the Judge below and held that the defence in s.11(2) imposed a legal burden on the D.

Both matters were dealt with together by the HL.

Decision:

  • Whether a provision imposing a burden of proof in a defendant was contrary to the presumption of innocence or the right to a fair trial has to be examined with reference to the particular circumstances of each case;
  • The offence set out under s.5(1)(b) of the RTA 1988 did not require proof that the Defendant was likely to drive whilst unfit, as proof of being in charge of a vehicle is not the same as proof of a likelihood of driving a vehicle;
  • S.5(2) of the RTA 1988 provided a defence to the above offence which could only be relied upon if the Defendant could prove i.e. satisfy the legal burden of proof, that there was no likelihood of him driving the car whilst unfit. Such a question is so subjective that it is appropriate that the legal burden should lie on the Defendant to prove on a balance of probabilities. Such a provision was reasonable;
  • S.11(2) of the Terrorism Act 2000 does not add a new element to the offence as set out under s.11(1), but is a provision providing a defence and imposing a legal burden on the D;
  • However, there was a real risk that a person may not be able to establish the defence under s.11(2) in that it could be almost impossible for a D to prove on a balance of probabilities that he did not take part in the activities of an organisation whilst it was proscribed. However, such a D may nevertheless be innocent of the offence under s.11(1) and that given this offence carries a possible sentence of 10 years imprisonment, s.11(2) breaches the presumption of innocence, is unreasonable, and cannot be justified solely due to its aim of preventing terrorism;
  • In accordance with s.3(2) of the HRA 1998, s.11(2) of the Terrorism Act 2000 must be "read down" so that it is read to impose an evidential burden only.

See also A-G’s Reference No 1 of 2004 and R v Johnstone on defences such as s.92(5) of the Trade Marks Act 1994 that reverse burdens of proof.


Reviewed 18 August 2010