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Glover, ‘Sheldrake, Regulatory Offences and Reverse Legal Burdens of Proof’, [2006] 4 Web JCLI http://webjcli.ncl.ac.uk/2006/issue4/sheldrake4.html

Sheldrake, Regulatory Offences and Reverse Legal Burdens of Proof
Richard Glover LLB, MSc, Solicitor
Senior Lecturer in Law, School of Legal Studies, University of Wolverhampton R.Glover@wlv.ac.uk 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.

Summary
This 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 from Sheldrake. 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 largely overlooked 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 in charge’, 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 burden may normally be presumed.

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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 Sheldrake The House of Lords in Sheldrake - “too simple and only partly correct” Parliament’s intention A contextual approach: Sheldrake and Attorney-General’s 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’ offences Regulatory offences and reverse legal burdens: the ‘licensing approach’ Regulatory offences: the conventional approach The ‘licensing’ approach, legal burdens and Sheldrake Conclusion Bibliography

Introduction
The 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 exceeds the 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 to exceed the prescribed limit”. The defendant appealed successfully to the Divisional Court on the ground that the legal burden 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 certain standard. 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, Miller v Minister of Pensions [1947] 2 All ER 372, 373-4. “Legal burden” was Lord Denning’s preferred term (Denning 1945) but alternative renderings of legal burden include the “probative” burden (DPP v Morgan [1976] AC 182) and the “persuasive” burden (Williams 1961).) However, the House of Lords allowed the Director of Public Prosecution’s appeal (which was heard together with Attorney-General’s Reference No 4

The defendant can be taken to have accepted a reverse legal burden as a condition of being ‘licensed’ to engage in the activity. [2003] 1 WLR 1736 and Davies v Health and Safety Executive [2002] EWCA Crim 2949. that the section 5(2) defence does not form part of the gravamen of ‘being drunk in charge’. is inadequate. Further. Is the section 5(2) defence part of the gravamen of the section 5(1)(b) offence? The gravamen of an offence The wording of the section 5(2) defence . which concern conduct that is quite literally licensed. First. if a person voluntarily engages in a lawful activity that presents a serious risk or danger to public health and safety. It is submitted that it is particularly appropriate for road traffic offences such as ‘being drunk in charge’.3 of 2002) and upheld the reverse legal burden on the basis that either it did not interfere with the presumption of innocence or. Rather. It is submitted that while the decision in the Lords was welcome there were. it is contended that the conventional approach to distinguishing between regulatory and ‘truly criminal’ offences. in particular. it was a proportionate response to the threat to society posed by the damage. principally on the basis of moral stigma or blame. if it did. when Lord Bingham assumed a violation of the presumption 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 as Johnstone [2003] UKHL 28. the ‘licensing’ approach. It is contended that these arguments are not as compelling as has been suggested in the case law and academic journals and. Consequently there was no breach of the presumption of innocence in Sheldrake. That is. with respect. 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. two important deficiencies in the judgment. deaths and injuries caused by unfit drivers. and perhaps more importantly.“It is a defence for a person…to prove…” suggests that it is an express statutory exception to the “golden thread” rule in . This classification is not made in order to diminish the seriousness of the offence. According to this 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 serious risk or danger to public health and safety. It is submitted that this approach may be taken a step further. an offence concerned with that activity may be described as regulatory. Secondly. either on its own or when combined with other considerations such as a defendant’s ‘peculiar knowledge’. An offence may be classified 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. their Lordships did not engage sufficiently with the strong arguments made in the Divisional Court and elsewhere regarding the gravamen of the offence.

as an essential element. [2002] 2 AC 545. Dickson CJC in Whyte (1988) 51 DLR. p 277). a matter of convenience in expression” (Williams 1982. Jeffries and Stephan1979. 2 SCR 3. CC and Zuma 1995 1 SACR 568. which ignores human rights considerations and analysis of the so-called gravamen or essence of an offence. para 18: . CC. Williams argued that the distinction between offences and exceptions (or defences) lacks logic and is often “purely verbal.28(2). It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance…” Lord Steyn also quoted. It is argued that an offence may be interpreted as including. 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). Williams 1988. (4th) 481. A 1976. para 10. Robinson 1982. so far as their meanings are concerned. para 30). 493 to the same effect. The concern is that the presumption of innocence will be infringed if the gravamen of an offence includes a defence provision. is likely to be regarded as inadequate. approvingly. Zuckerman. p 234). After all. it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. most recently by Glanville Williams (Williams 1982 and 1988. para 35: “…the distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. for which the defendant has the legal burden. pp 414-5. Others include: Stone. Indeed. it is also apparent from recent case law concerning legal burdens that a literal approach to legislation.4 Woolmington v DPP [1935] AC 462 that the legal burden of proof is usually on the prosecution. This analysis of the gravamen has been developed over a number of years. HL construed the Misuse of Drugs Act 1971 s. which similarly commences with: “it shall be a defence for the accused to prove…” as only imposing an evidential burden on the defendant on the basis of such an analysis. pp 376-7). As Dickson CJC stated in the Canadian Supreme Court in Whyte (1988) 1 DLR (4th) 481. However. It is a view that has been endorsed in Canada and also elsewhere in the common law world: for example. Lord Steyn put it more prosaically in Lambert [2001] UKHL 37. p 280. For example. the House of Lords in their landmark judgment in Lambert [2001] UKHL 37. However. identical” (Stone 1944. their views have been followed and considered in numerous other cases since and are of undoubted authority (Lord Bingham Sheldrake [2004] UKHL 43. 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. a provision that was drafted as part of a defence. J 1944. in South Africa: Coetzee 1997 3 SA 527. 493. more recently this view was endorsed by Roberts and Zuckerman 2004. illustrating his argument by reference to a colourful example drawn from Stone: “…the proposition ‘All animals have four legs except gorillas’ and the proposition ‘All animals which are not gorillas have four legs’ are.

contrary to the presumption of innocence and the ‘golden thread’ principle in Woolmington (para 64). was persuaded by the gravamen analysis. as is well known. Their Lordships upheld the section 5(2) . “so far as it is possible to do so. However.“too simple and only partly correct” The House of Lords unanimously allowed the Director of Public Prosecution’s appeal and declined to read down an evidential burden. Edwards [1975] QB 27 and Hunt [1987] AC 352. 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. it is also apparent from Strasbourg case law. primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. The House of Lords in Sheldrake . it should be noted that the 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. The Divisional Court held that a legitimate aim was being pursued by the legislation. but that the reverse legal burden was not necessary to accomplish that aim. The Divisional Court in Sheldrake The Divisional Court. para 30 (Admin)). as only imposing an evidential burden on the defendant. para 18). The less demanding ‘evidential burden’ may be defined as the burden of adducing evidence. drawing on Lambert. he would be convicted even though a court would not be sure of an element of the offence. Further. it was held that if the defendant failed to prove the section 5(2) defence. 221-2. the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused”. However. The Court held that the section 5(2) defence was part of the gravamen of the section 5(1)(b) offence. notably Salabiaku v France (1988) 13 EHRR 379 that “limited inroads on the presumption of innocence may be justified” where a legitimate aim is being pursued and the interference is both necessary and proportionate to the problem concerned (Clarke LJ. 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). on the balance of probabilities. both express and implied. Sheldrake [2003] EWHC 273 (Admin). being subject to qualification at common law by M’Naghten’s Case (1843) 10 Cl & Fin 200 and by statutory exception. the Woolmington principle is not absolute. It followed that the interference with the presumption of innocence was not a proportionate response to the problem (para 83) and accordingly the Divisional Court ‘read down’ the ‘defence’ under the Human Rights Act 1998 s. Accordingly. as Lord Jauncey stated in Jayasena v R [1970] 1 All ER 219.3(1). namely to preserve public safety by seeking to tackle the problem of ‘drink driving’.5 “If an accused is required to prove some fact on the balance of probabilities to avoid conviction.

as it had been to their Lordships’ landmark judgment in Lambert. p 73). p 254): some people may believe that abortion should be prohibited but allow for a specific defence for medical abortions on certain grounds. para 40). Appellant counsel quoted Taylor LJ in DPP v Watkins [1989] QB 821 in support of the view that “likelihood of driving” is part of the gravamen of the offence. consequently. namely to indicate a reason which is not necessarily a conclusive one” (Campbell 1987. Campbell argued that an offence relates to behaviour “against which the law takes there to be a prima facie reason”. and may try to drive it whilst still unfit”. p 79). their Lordships neglected to consider the gravamen at any length. Here. Other people may not believe that abortion should .Contrary to Williams’s view. it is suggested. Campbell illustrated this by reference to an example from Williams (Williams 1982. disappointingly. implied that the gravamen argument was not as compelling as it first appeared and that it also overlooked the historical background to the particular provision.The nearest their Lordships came to an active analysis of the gravamen was Lord Bingham’s telling comment that appellant counsel’s argument regarding the gravamen was “too simple and only partly correct” ([2004] UKHL 43. no question of interference with the presumption of innocence could arise. This was despite the fact that analysis of the gravamen was clearly central to the Divisional Court’s decision. The 1872 and 1930 Acts criminalised the conduct of those who were in charge of carriages and cars respectively when drunk or unfit. but who. Sheldrake [2003] EWHC 273 (Admin). para 29. para 40). The Divisional Court had earlier relied on this comment. in all the circumstances have already formed or may yet form the intention to drive the vehicle. it is important whether the defence appears as an exception to or as part of the offence in order to understand the nature and purpose of the legislation. 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. 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.6 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. but made no reference to the likelihood of driving” ([2004] UKHL 43. This. para 41). Campbell does not use “prima facie” in its conventional legal sense but “in the sense in which it is used by most philosophers of practical reasoning. 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. while a defence relates to “exonerating conditions”. Lord Bingham’s comments about simplicity also echo Campbell’s 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. However. Taylor LJ said at 829B-C: “…a defendant can be ‘in charge’ although neither driving not attempting to drive.

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. O’Connell quotes the Minister of Transport. This is not. simply a verbal distinction but “a disagreement about which types of argument validly support the view that abortion is sometimes permissible” (Campbell 1987. perhaps. and that it is just as ungentlemanly to be discourteous or to play the fool on the King’s highway as it would be for a man to push his wife off her chair at the Sunday tea table and grab two pieces of cake” (O’Connell 1998. the underlying value judgments are” (Campbell 1987. p84). Proof that there was no likelihood of the defendant driving while over the limit is sufficient excuse. while the other argued that ‘The Highway Code’ would have the best results. Section 5(2) gives him an escape route. That is.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. One version – ‘being drunk in charge’ (with a defence that there was no likelihood 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. This is more than just a verbal distinction but one based on a genuine disagreement about the nature of the offence. which is said to constitute the essence of the offence. as describing the principles behind the latter as: “…it goes upon the basis that this is what the decent drivers will do. para 84). 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. . As Campbell noted: “The reason why it is often difficult to know whether. A person who has drunk more than the limit should take steps to put it out of his power to drive. which it is quite easy for him to take in a genuine case. p129). This reflects. we should assign something to the offence or defence side is not because the offence/defence distinction is itself opaque but because. from the News Chronicle. despite William’s contention to the contrary. 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. Herbert Morrison. it is a fundamental disagreement about when abortion is permissible. 17 July 1931. Arguably. The second version of the offence.7 be prohibited. in general. in creating or interpreting the law. It is this disagreement which is at the heart of the issue. frequently. derived from an analysis of the gravamen – ‘being drunk in charge when there is a likelihood of driving while over the limit prescribed for alcohol’ . contrasting approaches to road safety identified by O’Connell (O’Connell 1998). but only where it is not performed by a doctor on medical grounds. If there is no likelihood of driving the conduct is not blameworthy. as he is the person best placed to know and establish whether he was likely to drive the vehicle” ([2004] UKHL 43. p 81). One approach took road safety seriously and sought legislative restrictions.

Road Safety Act 1967. agreed that a distinction could be maintained if it was embodied in “an authoritative form of words”. p 282). Parliament appears to have been anxious to remedy a perceived injustice but was also not overly sympathetic to the person found ‘drunk in . 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. In Sheldrake their Lordships were persuaded that Parliament intended the distinction and that it had not been arbitrarily constructed by parliamentary draftsmen. it is contended that there may be a genuine distinction and to suggest otherwise is. Road Traffic Act 1956 s9(1) (s9(1)(b) – the new ‘defence’. See also Williams 1982 and Ashworth 2004.8 Parliament’s 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. p 247). as is clear from the debates in Parliament during the passage of the Road Traffic Act 1956 and contemporary press reports. which demonstrated that the defence did not appear until 1956. Nevertheless. as stated by Ashworth 2005. There had been considerable public disquiet about the predecessor offence to section 5(1) (b). (NB it was the 1956 Act which introduced the defence and not the 1930 Act. as Zuckerman has commented: “The legislature does not seem to adopt any consistent terms to mark the exceptions referred to in the rule and there is no uniformity of drafting” (Zuckerman 1976. p 247). p 877). That Parliament intended the distinction between offence and defence in section 5 is apparent from Lord Bingham’s historical projection of the offence. some eighty-four years after the genesis of the offence: Intoxicating Liquor (Licensing) Act 1872 s12 – ‘being drunk in charge of a carriage. which are. “a misguided over-simplification” which “fails to do justice to the subtlety of our ordinary thinking” (Campbell 1987. present here (Stone 1944. Road Traffic Act 1972 and Road Traffic Act 1988) ([2004] UKHL 43. it is submitted. which was re-enacted in subsequent road traffic acts: Road Traffic Act 1960. p 218). para 38). It is suggested that this meets Ashworth’s criticism in relation to Johnstone (Ashworth 2004. although the defence appeared to be closely linked with the mens rea of the offence and moral blameworthiness it was clear to the Lords that on this occasion Parliament intended the distinction. the apparent pioneer of the analysis of the gravamen of an offence. cattle or steam engine’ (no defence as to likelihood of driving). which might be applied equally to Sheldrake. Accordingly. pp 413-4. The leading article in The Times for the 30 May 1955 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. horse. Road Traffic Act 1930 s15(1) – ‘being drunk in charge of a motor vehicle’ (no defence as to likelihood of driving). It is also worth noting that Julius Stone. as Campbell commented. p 82).

cols 1006-1007). para 19. and the noble Earl. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention rights” (Lord Nicholls. Lord Howe. or intend to do so. The Times lead article for the 4 July 1955 (at 9d) stressed the Bill’s importance for Parliament: “They have the casualty lists – 5. are not the objects of any great sympathy…if I had my way I would never allow anybody convicted of such an offence to drive a car again” (Lord Lucas 1955. particularly in the light of a sharp increase in reported road casualties in 1954 there was an 18 per cent increase (Lord Mancroft 1954. Lord Brabazon of Tara. 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. We have. or while they are driving. 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 586).9 charge’. The Earl of Selkirk. Lord Mancroft. a motor car. para 51). para 28). and may require the court to depart from the legislative intention of Parliament” ([2004] UKHL 43. Notwithstanding this historical background it was. col 637). in thinking that people convicted of being under the influence of drink while in charge of. 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 drive a motor vehicle” (Lord Brabazon 1955. The court’s role is one of review.000 or more killed on the roads every year. 10 times as many killed and more than 30 times as many slightly hurt”. Also see Johnstone [2003] UKHL 28. col 582). remarked that “we require a higher standard of discipline on the roads” (The Earl of Selkirk 1954. of course. he must also have had in mind further dicta from the recent judgment in Ghaidan v GodinMendoza: “Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. This was “a national scandal”. . Lord Bingham referred to the courts’ interpretative obligation under the Human Rights Act 1998 s3 as “a very strong and far-reaching one. as is evident from the debate in the House of Lords: “I join with the noble Lord. to try to find some means of getting over this technical difficulty” (Lord Mancroft 1955. col 567) and Lord Mancroft commented specifically in relation to ‘being drunk in charge’ that “…we should be quite right if we erred on the side of strictness” (Lord Mancroft 1955. [2004] UKHL 30. for the Government. It is submitted that this tends to suggest that the Government intended a reverse legal burden. open to their Lordships in Sheldrake to interpret section 5(2) as only imposing an evidential burden on the defendant. col 637) by increased regulation of road transport. therefore. although critical of the amendment stated: “…the Government want to do exactly what he wants to do. who introduced the Bill in the Lords. col 586). However.

(b) showed good cause for his illegal entry and (c) made an asylum claim as soon as was reasonably practicable. He appeared to approve gravamen analysis when he stated that the presumption of innocence was engaged by a reverse burden (paras 28 and 36). he did. [2000] 2 AC 326. were entitled to uphold a legal rather than an evidential burden on the defendant and to take into account other Convention rights.10 That is. 1422. which concerned the application of the statutory defence 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. who again delivered the majority judgment (6-3). which was clearly inapplicable to sections 3 and 31 as the statutory defence applied to a number of other offences under the same Act and the Immigration Act 1971 (para 32). in which case it is clear that the presumption of innocence was not engaged.) This principle now appears firmly established. ex p Kebilene [1999] UKHL 43. WLR 1403. However. Moore-Bick LJ’s judgment was. recognise the limits of gravamen analysis. as is evident from the decision of an enlarged Privy Council sitting in Attorney-General for Jersey v Holley [2005] UKPC 23. 711C-D. was troubled by the House of Lords’ decision in Sheldrake and contrasted it with the conjoined . with respect. which will be the subject of further discussion in the second part to this article. at least. (Lord Hoffman has criticised the use of the term ‘deference’ because of its “overtones of servility. Lord Nicholls. at least. PC. Nonetheless. as in Brown v Stott [2000] UKPC D3. or perhaps gratuitous concession” R (ProLife Alliance) v BBC [2003] UKHL 23. 380-381). 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. Parliament’s intentions also appear to have been of particular importance in the recent case Makuwa [2006] EWCA Crim 175. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. paras 75-762. p215). His Lordship acknowledged that particular attention should be paid to Parliament’s actual intentions (para 33). stated: “The law of homicide is a highly sensitive and highly controversial area of the criminal law. 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). the Courts should generally defer (11) to the Legislature or. In light of the above it is submitted that their Lordships in Sheldrake. The question was whether there was an onus on a refugee to prove that he (a) presented himself without delay to the authorities. rather confused. there were sound policy reasons for imposing a reverse legal burden. in his case note in the Criminal Law Review (Ashworth 2005. allow them a discretionary area of judgment (R v DPP. In these circumstances it is not open to judges now to change (‘develop’) the common law and thereby depart from the law as declared by Parliament” (para 22). article 2). A contextual approach: Sheldrake and Attorney-General’s Reference (No 4 of 2002) Ashworth. as had been the case in Sheldrake. That is. [2003] 1 AC 681.

On the one hand. that when compared to Sheldrake this places “a particular construction” on innocence (Ashworth 2005. In the latter. was misplaced as he overlooked the particular nature of the offence. para 49). whether asleep in the back or sitting in the driver’s seat. It should be apparent from the above that the section 5(2) defence is not part of the gravamen of ‘being drunk in charge’. . However. 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. para 60). For example. the offence under section 11(1) is “of extraordinary breadth” and appears to cover individuals who have done nothing actually “blameworthy or properly criminal”. which was concerned with the Terrorism Act 2000 s. p 219). Ashworth suggested. or in an historical analysis of the legislation. accordingly. Attorney-General’s Reference (No 4 of 2002). an evidential burden was read down as being imposed on a defendant because a person “who is innocent of any blameworthy or properly criminal conduct” could otherwise fall within the section ([2004] UKHL 43. section 5(1)(b) does cover blameworthy (if not as serious) conduct. history appears an inadequate guide to the allocation of the legal burden on its own. more directly: “…the likelihood of driving is not an ingredient of the section 5(1)(b) offence…” ([2004] UKHL 43. para 47). By contrast. Accordingly. he did not know that it was” (Lord Bingham [2004] UKHL 43. Nevertheless. It is submitted that the intoxicated person in charge of a vehicle.11 appeal. even if it might not be regarded as ‘truly criminal’. the concern that there was a breach of the presumption of innocence did not arise in Sheldrake. Although their Lordships largely overlooked the issue. p219). He was not entirely clear at first but later stated. Lord Bingham did indicate that this was his view. which will now be examined. is engaged in conduct worthy of blame on its own. which will be further examined in the second part to this article.11. section 11 makes it “a defence…to prove”. the different results from the two appeals are more understandable than is implied if a more contextual approach is taken. their Lordships do not seem to have been influenced by this and. if it was. On the other hand. a person who “joined an organisation when it was not a terrorist organisation or when. with respect. but in wider considerations. para 51). with respect. Ashworth’s apparent sympathy for the person “who has had a few drinks and decides to sleep in the back of his or her car” (Ashworth 2005. However. somewhat critically. despite its apparent importance in Sheldrake. despite Lord Rodger’s doubts ([2004] UKHL 43. His Lordship 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. In relation to Attorney-General’s Reference (No 4 of 2002) it is also worth noting that the legislative 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 offence…if 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”).

4.1 That is. It follows that legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. given that the presumption of innocence is not absolute. Prinsloo 1996 3 BCLR 293. 8. para 38. Domestically it has been widely cited in relation to reverse legal burdens. para 28. para 18. Lord Bingham assumed that the presumption of innocence had been infringed: “It may not be very profitable to debate whether section 5(2) infringes the presumption of innocence.12 The regulatory offence ‘being drunk in charge’ The presumption of innocence and the nature of the offence In Sheldrake. held that the imposition of a legal burden did not go beyond what was necessary and so the conviction was not unfair. [2000] 2 AC 326. para 30. Lord Bingham resurrected Lambert in Sheldrake [2004] UKHL 43. 385 Lord Hope. It may be assumed that it does” ([2004] UKHL 43. he considered whether the interference was justified and. 694C Lord Hope and Lord Bingham at 704D. convincing and compelling” Mbatha. as noted above. 388. Salabiaku was followed in Hoang v France [1992] 16 EHRR 53 and more recently in King v UK (2003) Application No 00013881/02.03. It is not immediately apparent why he made these assumptions because. [2004] UKHL 43. In accordance with Strasbourg jurisprudence Lord Bingham considered whether the provision was directed to a legitimate object. It was proportionate to the threat to society posed by damage. “[t]he test is dependent upon the circumstances of the individual case. Lord Woolf described it as “Strasbourg’s equivalent of Woolmington v DPP” Attorney General’s Reference (No 1 of 2004) [2004] All ER (D) 318 (Apr). for example: R v DPP. . This was reminiscent of the South African Constitutional Court. which Lord Bingham referred to at length. 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. he believed the opposite. deaths and injuries caused by unfit drivers and did not amount to an unreasonable limit on the presumption of innocence ([2004] UKHL 43. paras 11-13. He did not follow Lord Nicholls’s alternative approach (and like Lord Steyn obiter) in Johnstone [2003] UKHL 28. para 34). para 41). CA. which has held that any justification for infringing the presumption of innocence must be “clear. and Brown v Stott [2000] UKPC D3. The principle of proportionality must be observed” Lambert [2001] UKHL 37. Although this enlarged Court of Appeal said Johnstone was to be preferred (para 52). [2003] 1 AC 681. CC. para 41). It follows that he also assumed that the gravamen of ‘being drunk in charge’ included “the likelihood of driving” as per section 5(2). applying Lord Steyn’s test in Lambert. para 49. ex p Kebilene [1999] UKHL 43. It is a “significant difference in emphasis” to Lord Steyn’s approach and was endorsed by Lord Woolf as a more “flexible” approach in Attorney General’s Reference (No 1 of 2004) [2004] All ER (D) 318 (Apr). CA. was “within reasonable limits” and was not arbitrary. which was to ask if “…there is a compelling reason why it is fair and reasonable” to impose a reverse legal burden. 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 defendant’s opportunity to 1 In accordance with Salabiaku v France (1988) 13 EHRR 379.

That is. para 21). is required for an “examination of all the facts and circumstances of the particular provision as applied in the particular case”. which. declared by Parliament to be a crime. Muhamad [2003] QB 1031. but on examination of all the facts and circumstances of the particular provision as applied in the particular case” ([2004] UKHL 43. B (a minor) v DPP [2000] AC 428. for example: Sweet v Parsley [1969] 1 All ER 347. Security concerns (presumably about terrorism) were said not to exempt member states of the Convention from observing basic standards of fairness. in a similar vein to Lord Nicholls in Johnstone [2004] UKHL 28. 922 who famously distinguished between “…a class of acts…which are not criminal in any real sense. HL. contrary to the Licensing Act 1872 s. As noted above. which would. have provided them with useful guidance as to the allocation of the legal burden. flexibility in the application of the presumption. Regulatory and ‘truly criminal’ offences The distinction between regulatory and ‘truly criminal’ offences is not novel. as is apparent from Smith & Hogan: “An act either is. Unfortunately. R (Grundy & Co Excavations Ltd and Sean Parry) v Halton Magistrates’ Court. maintenance of defence rights. 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. DC. DC. Lambert [2001] UKHL 37 [2002] 2 AC 545. This remains the most usual method of distinguishing between the two types of offence but it has also been controversial. Lord Bingham briefly referred to the distinction [2004] UKHL 43. ex p the Forestry Commission [2003] EWHC 272. neither he nor his colleagues considered the “particular” nature of the offence. It was Wright J in Sherras v De Rutzen [1895] 1 QB 918. Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1. The distinction was repeated in later cases. CA. but are acts which in the public interest are prohibited under a penalty” (rather than imprisonment) in order to explain the lack of need for mens rea in strict liability offences. His comment that the forerunner of section 5(1)(b). CA. PC and more recently in Blake [1997] 1 All ER 963. retention by the court of the power to assess the evidence. HL. para 50. the strict liability offence of being drunk in charge of any carriage. HL. the importance of what is at stake and difficulties of proof.12: “may be thought not” to be regulatory tends to suggest that he agreed with the Divisional Court’s assessment of section 5(1)(b) as ‘truly criminal’. Mitchell J said [in London Borough of Harrow v Shah [1999] 3 All ER 302. horse. Warner [1969] 2 AC 256. or is not. Lord Bingham appears to have been influenced by historical context. para 6.13 rebut the presumption. it is contended. . Finally. he stated: “The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb. it is suggested. cattle or steam engine. He also referred to the defendant’s opportunity to meet the offence with a statutory defence. Harrow London Borough Council v Shah [1999] 3 All ER 302. their Lordships did not consider whether the offence was regulatory or ‘truly criminal’.

Nonetheless. p348). which can be stated to be to secure ‘public welfare’ (to use the equivalent American term for regulatory offences) rather than ‘punishment’ (Sayre 1933). Regulatory offences and reverse legal burdens: the ‘licensing approach’ It is argued that it is a particularly important to draw the distinction between crimes and regulatory offences in the light of an alternative approach to reverse legal burdens discernible from the House of Lords’ judgment in Johnstone. JC 2002. because it can provide courts with ready guidance on the validity of a reverse legal burden. it is more likely that one can be justified for a regulatory offence and. It is the courts which take it upon themselves to decide whether it is ‘real’ or ‘quasi’ crime. The importance of the lawfulness of the regulated activity in the ‘licensing’ approach is apparent if we consider the general aim of regulatory legislation. Public health and safety were considered in Lord Diplock’s justification for strict liability in Sweet v Parsley [1970] AC 132. p 125). In Sheldrake [2003] EWHC 273. 163 “…where the subject-matter of a statute is the regulation of a particular activity . paras 76-82 (Admin) and in R (Grundy & Co Excavations Ltd and Sean Parry) v Halton Magistrates’ Court. it is submitted that it is useful. 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 (although sometimes a persuasive one as well) (Roberts and Zuckerman 2004. albeit obiter. However. because the defendant voluntarily engaged in a lawful activity that presented a serious risk or danger to public health and safety. it is contended that one may normally be presumed. Clarke LJ overlooked the remainder of Cory J’s remarks 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. That is. carries little or no stigma and does not involve ‘the disgrace of criminality’ is only a quasi-crime” (Smith. at least in part. They do so on the basis that an offence which. and the Court of Appeal’s judgment in Davies v Health and Safety Executive [2002] EWCA Crim 2949.14 This is a peculiar notion of ‘truth’. in particular. in the public eye. para 80 Clarke LJ considered Cory J’s ‘public protection’ justification for differential treatment of regulatory and ‘truly criminal’ offences examined in Wholesale Travel Group (1991) 84 DLR (4th) 161 (following the earlier decision in Sault Ste Marie [1978] 40 CCC (2d) 353. As Clarke LJ argued in the Divisional Court in Sheldrake [2003] EWHC 273. paras 42-48. depending on how the distinction is drawn. The truth is that it is a crime. ex p The Forestry Commission [2003] EWHC 272. indeed. DC (decided on the same day) the correct approach to these types of offences “points the way” in determining whether it is necessary to impose a legal burden on a defendant. 357) but held that ‘public protection’ is a characteristic of most criminal offences and not just regulatory offences. Both seemed to suggest that a reverse legal burden might be justified.

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. CA. Tuckey LJ held that the Act was regulatory and the need for regulation was demonstrated by statistics. However. as is evident from Lord Nicholls’ comment that a reverse legal burden was compatible with article 6(2): “For these reasons. which pre-dated Johnstone and which was also concerned with trade mark offences. It was said that there was a significant risk to the economy. safety or morals. under the Health and Safety at Work Act 1974 ss3(1) and 33(1). Indeed. it was noted (p 624) that the Department of Trade and Industry estimated in December 2001 that the cost to the UK economy of counterfeiting 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. this may be doubted. Further. In R v S [2003] 1 Cr App R 602. It was less clear in Johnstone that the offence was regulatory because of the maximum sentence of ten years’ imprisonment. 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 (probably for gain) and are in charge of it. the court may feel driven to infer an intention of Parliament to impose. so far as is reasonably practicable. which imposed a reverse legal burden on the defendant.15 involving potential danger to public health. Therefore. a reverse legal burden was justified: “Those who trade in brand products are aware of the need to be on guard against counterfeit goods. 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 it…Where the enforcing authority can show that this [safety standard] has not been achieved it 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). and the section 40 defence. to the health and safety of consumers. a higher duty of care on those 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. which are . There was also a risk. by penal sanctions.000 people. in terms of the quality of counterfeit and ‘pirate’ goods. in which citizens have a choice whether they participate or not. partly on this basis. Johnstone was concerned with the offence of unauthorised use of a trade mark. contrary to the Trade Marks Act 1994 s92. 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). which was also concerned with the Trade Marks Act 1994 (Ashworth 2004. in contrast to the judgment in R v S. p 247). Ashworth noted that there was no express reference to the ‘regulatory’ nature of the offence in the judgment.

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. 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. assumed to have made the choice to engage in the regulated activity”. while in the criminal context. It has been argued that simply delineating an offence as regulatory ought not to be sufficient to transfer an onus onto a defendant (Stuart. This is because the defendant can be taken to have accepted the reverse legal burden as a condition of being ‘licensed’ to engage in the particular activity. 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 risk to public health or safety. There is some evidence to suggest that Cory J may have also believed that this could form a basis for definition: “It is useful to distinguish between conduct which. Nevertheless. such as the defendant’s ‘peculiar knowledge’ of the subject matter of the offence that weighed in the balance when determining the validity of the reverse legal burden. That is. by virtue of its inherent danger or the risk it engenders for others.16 substantially the same as those given by Rose LJ in R v S…” ([2003] UKHL 28. In both Johnstone and Davies there were other relevant factors. However. This definition may not apply in all circumstances. the licensing argument would not apply” (p 214). 1992. by virtue of the licensing argument. a rebuttable presumption does not necessarily transfer the onus and does provide useful guidance for the courts. it is submitted that central to both decisions was the idea that a person who voluntarily engages in a lawful activity that presents a serious risk or danger to public health and safety has a certain responsibility. 212: “Thus. would generally alert a reasonable person to the probability that the conduct would be regulated. In the latter circumstances. from that conduct which is so mundane and apparently harmless that no thought would ordinarily be given to its potentially regulated nature. an offence such as using a television without a licence (Wireless Telegraphy Act 1949 s1) would not be classed as . for example. Consequently. It is 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. the ‘licensing argument’ would not apply because the defendant would not be aware of having engaged in a regulated activity that presented a risk or danger to others. the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment. This approach draws on Cory J’s ‘licensing justification’ for differential treatment of crimes and regulatory offences in Wholesale Travel Group (1991) 84 DLR (4th) 161. the regulated defendant is. para 54).

Regulatory offences: the conventional approach In the Divisional Court in Sheldrake [2003] EWHC 273 (Admin). There may also be some debate about what amounts to ‘a serious risk or danger’. para 80. Nevertheless. as it was in the Lords.17 regulatory under the ‘licensing’ approach. It was “a serious criminal offence involving inherently wrongful conduct” (para 81). This emphasises that some acts. paras 77-78 Clarke LJ drew on Wholesale Travel Group (through reference to Davies v Health and Safety Executive [2002] EWCA Crim 2949) but did so to distinguish between crimes and regulatory offences on the conventional basis provided by Sherras v De Rutzen. are “universally recognized as crimes” but that some conduct is prohibited: “…not because it is inherently wrongful. especially those who are particularly vulnerable. even if it is the usual basis. to name but a few) from the potentially adverse effects of otherwise lawful activity” [1991] 3 SCR 154. However. (1991) 84 DLR (4th) 161. quoted by Clarke LJ. such as murder or theft. A further problem with this approach is that as social values change. There is no obvious risk to the public from this conduct and it may not be regarded as ‘truly criminal’. Many may be . but because unregulated activity would result in dangerous conditions being imposed upon members of society. he concluded ‘being drunk in charge’ was ‘truly criminal’ because the gravamen of the offence included the likelihood of the defendant driving while over the prescribed limit for alcohol [2003] EWHC 273 (Admin). consumers and motorists. 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 and also by virtue of the literal requirement for a licence to drive. it avoids the pitfalls contained in the conventional approach to defining regulatory offences considered below. so the level of stigma that may attach to certain conduct may also change and it is notable that Lord Clyde. if his analysis of the gravamen is rejected. was more cautious when he referred to regulatory offences in Lambert [2001] UKHL 37. para 154: “These kinds of cases may properly be seen as not truly criminal. and so less clearly ‘truly criminal’ on these terms. Further. Consequently. 205. Indeed. the offence immediately appears less blameworthy. 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 in Brown v Stott [2001] 2 All ER 97 at p116F and by Lord Steyn when he spoke at p121J of the subject inviting special regulation” (para 130). It is submitted that it is a regulatory offence but is more adequately described as such in the conventional sense outlined below. less deserving of stigma. The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees. It is submitted that this tends to suggest that moral stigma and blame is an unreliable and uncertain basis on which to distinguish between regulatory and ‘truly criminal’ offences.

paras 72-77 (Admin). A more recent example is Alphacell Ltd v Woodward [1972] AC 824. para 51 Lord Bingham referred to this as a consideration for determining whether the reverse burden was justified in Attorney-General’s Reference (No 4 of 2002).) Whether an offence was imprisonable or not was 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). 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. such as Exxon Valdez. The contrary was held in Shah. such as the cases concerning the drug Thalidomide. CA. Many may carry with them no real social disgrace or infamy” [Emphasis added]. was ‘truly criminal’ because the maximum term was two years’ imprisonment. Surely stigma and moral blame attached to these defendants. market operators. the decisions in Harrow London Borough Council v Shah [1999] 3 All ER 302. (See also Clarke LJ’s comments in the Divisional Court [2003] EWHC 273. CA the Court of Appeal was uncertain whether the offence of materially contributing to insolvency by gambling. CA where the defendant sold meat unfit for human consumption. That moral stigma or blame is an inadequate basis should be immediately apparent from traditional regulatory cases such as Hobbs v Winchester Corporation [1910] 2 KB 471. Further. on the one hand. in Muhamad [2003] QB 1031. it is submitted that the ‘licensing’ approach is generally to be preferred and is particularly suited to offences such as ‘being drunk in charge’. do not deserve strong sanctions. 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 distinguished Johnstone and Lambert (para 30). The ‘licensing’ approach. the courts have not always been consistent when applying this criterion and we may contrast. in particular. the offence was ‘truly criminal’ (at 967). contrary to the Insolvency Act 1986 s362(1). Accordingly. whether on the other hand. as it did to more profound failures of regulation. who could reasonably be expected…to exercise some care about the provenance of goods in which they deal” (para 30). In relation to offences under the Trade Marks Act 1994 he stated: “…these are offences committed (if committed) by dealers. in accordance with Wright J’s definition in Sherras v De Rutzen. (22) ) In Sheldrake [2004] UKHL 43. 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. regulation can be effective if defendants cannot be imprisoned and. However. In Blake. We may also want to question whether. cases involving gross breaches of regulation. “what is at stake?”. . HL where the defendant company polluted a river. that an offence must be ‘truly criminal’ if it is punishable by imprisonment. traders.18 relatively trivial and only involve a monetary penalty. DC and Blake [1997] 1 All ER 963. for example. the oil spillage from the Exxon Valdez and the Bhopal and Chernobyl disasters? It has been argued.

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. PC) not being driven by intoxicated people.19 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 of unsafe counterfeit and ‘pirate’ goods. even if drivers have not obtained the requisite licence. p 452) a driver’s 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”. In L v DPP [2003] QB 137. as “potentially instruments of death and injury” (Lord Steyn. As there are considerable risks involved in driving. A defendant may be presumed to have accepted a reverse legal burden as a condition of being licensed to engage in the activity. 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 neither…This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the state but because the possession and use of cars (like for example shotguns. there is a strong public interest in cars. They have: “…placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility…those persons who enter a regulated field are in the best position to control the harm which may result and they should therefore be held responsible for it” (p213). is it not. This applies. Brown v Stott [2000] UKPC D3. The parallel with weapons and also health and safety legislation seems particularly apposite in Sheldrake despite Clarke LJ’s comments to the contrary in the Divisional Court (paras 71 and 75). subject to certain . 215: “…by virtue of the decision to enter the regulated field. 709. Accordingly. as was suggested by Cory J in Wholesale Travel Group (1991) 84 DLR (4th) 161. CA concerning the possession of a lock-knife. the possession of which is very regulated) are recognised to have the potential to cause grave injury”. contrary to the Criminal Justice Act 1988 s139. [2003] 1 AC 681. arguably. quite correct to describe it as a “privilege” or “indulgence” to be permitted to engage in this activity. the regulated person can be taken to have accepted certain terms and conditions of entry”. 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 ‘being drunk in charge’. 705. Equally. Further. [2003] 1 AC 681. Pill LJ approved a reverse legal burden as proportionate to the social problem of knives being carried in public without good reason (148-149). it is submitted. in fact. As Webb has noted (Webb 1989. As Lord Bingham noted in Brown v Stott [2000] UKPC D3.

The risk to the public is that an intoxicated driver will drive and the potential consequences of that are apparent from transport statistics. 28. A well-established strict liability principle. that may also be usefully applied here. .954 were seriously injured and 238.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. This would be to ignore the context of the offence as the driver has freely chosen to engage in the dangerous activity and should accept the consequences of that responsibility. Farwell LJ asked in Hobbs v Winchester Corporation [1910] 2 KB 471. As with the strict liability regulatory offender. the individual’s supposed innocence “flows from the law’s traditional tendency to view the criminal act only in the context of its immediate past” and not in the context of the individual’s ‘licence’ to engage in the activity (Richardson 1987.735 road accidents involving personal injury.942 involved death or serious injury…There were 141 child fatalities…The number of children killed or seriously injured in 2005 was 3. (June 2006). but this is clearly mitigated by the section 5(2) defence. as with strict liability offences. the consequences are illness or worse. CA: “Who is to take the risk of the meat being unsound. Road Casualties in Great Britain Main Results: 2005. Department for Transport Statistics Bulletin (06) 26. although indicating a continued downward trend. 481.862 were slightly injured…There were 198. 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. The latest road casualty statistics for 2005.. For the public.201 people were killed. CA.472”. 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. It is suggested that in these circumstances. It is also worth noting that regulatory offences are usually directed at the consequences of conduct rather than the conduct itself. We might equally ask: “Who should take the risk of the driver who is ‘drunk in charge’ driving .Of these. The consequence for the butcher is conviction when he was without fault. which is more characteristic of ‘truly criminal’ offences. which notably were not referred to in either the Divisional Court or the House of Lords in Sheldrake.017 reported casualties on roads in Great Britain in 2005…3. pp 295-6). 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.20 terms and conditions of entry? These can be said to include acceptance of a reverse legal burden for the section 5(2) defence. irrespective of the guilt or innocence of the butcher”. 163).. The same principle was applied by Lord Diplock in Sweet v Parsley [1970] AC 132. reveal the human cost of road transport: “There were 271. 27.

he shall be deemed to have had the care and control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion”. This is the usual international definition…”. The combined effect of under-reporting. In addition some casualties reported to the police are not recorded and the severity of injury tends to be underestimated. serious injuries of 2. is guilty of an indictable offence or an offence punishable on summary conviction”. p24). that the defendant bears the onus of proving that there was no likelihood of him driving while over the prescribed limit for alcohol. with the exception of fatalities. It is suggested that section 5(1)(b) is. The position is admittedly a compromise. Provisional estimates for 2004 suggest drink-drive related deaths of around 590 people (marginally up from 2003 and the highest figure since 1992). The bulletin also notes that “research in the 1990s has shown that many non-fatal injury accidents are not reported to the police.000 casualties of all severities (DfT 2005. Figures for deaths refer to persons who sustained injuries which caused death less than 30 days after the accident. under-recording and misclassification suggests that there may be 2.21 These statistics are stated to “refer to personal injury accidents on public roads (including footways) which became known to the police. para 47: “Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion.350 and 17. there was no reason why the Government could not have legislated for an absolute offence and it is submitted that the legislature’s greater power to do so included the lesser power to provide a defence. After all. (a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle. lower than in 2003. equivalent Canadian provisions also create a reverse legal burden. 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 over the legal limit for alcohol. accordingly. while his ability to drive a motor vehicle is impaired by alcohol or a drug. These figures are. . it is suggested that they remain a serious cause for concern and. As Dickson CJ noted in relation to these provisions in Whyte [1988] 2 SCR 3. a “restrained parliamentary response to a pressing social problem” and “a minimal interference with the presumption of innocence” ([1988] 2 SCR 3. 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 absolute liability offences”. whether it is in motion or not. 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. para 41. it does not seem disproportionate. while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion. like the Canadian provision. Further. Section 237(1)(a) provides: “(1) In any proceedings under section 234 or 236. as remarked by Lord Bingham in Sheldrake [2004] UKHL 43.76 times as many seriously injured casualties than are recorded in the national casualty figures and 1. In terms of drink driving. nor unfair. para 49).70 slight casualties”. However.

Hugh Molson. col 790). with its reverse legal burden created by the 1956 Act. cols 583 and 1007). 94 (1928). Accordingly. so that. (Sayre 1933. paras 21 and 40 that it should be borne in mind that it was open to states to create a strict liability offence and that Parliament had mitigated the strict position under the Road Traffic Act 1930. Earl Jowitt referred (Earl Jowitt 1954. p 1677) that has been successfully deployed elsewhere in the common law world (27) and which seems particularly relevant to ‘being drunk in charge’. Elsewhere. noted that the strict test in the 1930 Act had “aroused a good deal of public discussion. 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”. col 608). For example. para 88 where Kentridge AJ. p421). he . this argument has been criticised as conceding too much to the legislature’s drafting of the offence. col 633) to a man who had left his car on the road outside his house without leaving on the lights. This is essentially the same argument considered above as to the gravamen of the offence (Paizes 1998. Lord Bingham noted in Sheldrake [2005] UKHL 43. 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 public welfare offences punishable by imprisonment or a heavy fine. the Legislature mitigated the position by introducing the equivalent of the section 5(2) defence. p1337 and Dripps 1987. CC. he must convince the jury that. once the necessary facts are proved. In the Commons. on balance of probabilities. 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 to strict liability. A number of examples of injustice were described by their Lordships. Recent decisions by the courts have [been]…regarded as unreasonable” (Molson 1955. In this context it is particularly notable that until the Road Traffic Act 1956 it was a strict liability offence under the Road Traffic Act 1930. 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). 150: “Parliament has not infrequently transferred the onus as regards mens rea to the accused. It is submitted that the defence. dissenting in part with the main judgment. However. 88. Also see Coetzee 1997 3 SA 527. 181 in relation to a reverse burden imposed to show 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”. This is the so-called ‘greater includes the lesser’ argument (Jeffries and Stephan 1979.22 albeit with a reverse legal onus. p 79) and was referred to by Lord Reid in Sweet v Parsley [1970] AC 132. He became “rather drunk after dinner” and was wearing pyjamas when the police made enquiries about the car. They asked him to turn on the car’s lights and when he obliged he was prosecuted for ‘being drunk in charge’. Jeffries and Stephan trace the principle to Holmes J in Ferry v Ramsey 277 U. made substantially the same point. Dickson J (as he then was) stated in R v City of Sault Ste Marie (1978) 85 DLR (3d) 161. the Joint Parliamentary Secretary to the Ministry of Transport and Civil Aviation. “as an ass” and as “a grave blot on justice” (Lord Lucas 1955.S. was clearly a preferable alternative to strict liability for drivers and the same may be said of the equivalent section 5(2) provision under the 1988 Act. It was described as “a travesty of justice” (Lord Brabazon 1954.

(London: HMSO). A [2004] Johnstone Case Comment Criminal Law Review 244. it is particularly appropriate to road traffic offences. Conclusion Their Lordships’ decision in Sheldrake was welcome but it also represents a missed opportunity to engage critically with the strong arguments regarding the gravamen of the offence that have been aired in the courts. Lord (1955) HL Deb vol 191. despite Lord Bingham’s hesitation. as is apparent from Campbell’s criticism of Williams’s approach. A ‘Presumptions and Burdens’ (1945) 61 LQR 379 Department for Transport (2005) Road Casualties Great Britain: 2004 Annual Report. (London: Sweet and Maxwell). According to this approach the defendant who voluntarily engages in an activity. that the section 5(2) defence does not form part of the gravamen of ‘being drunk in charge’. 21 December 1954. The defendant may be taken to have accepted a reverse legal burden as a condition of being ‘licensed’ to engage in the activity. such as ‘being drunk in charge’. there was no breach of the presumption of innocence in Sheldrake. IH (ed) Criminal Law and Justice. cols 581-583. 28 February 1955. Brabazon of Tara. cols 605-610. Denning. particularly when applied to the facts in Sheldrake. 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. . It is contended that these arguments are less compelling than has been suggested and. but one of the bad effects of Woolmington v DPP may have been to discourage its use”. A [2005] Sheldrake Case Comment Criminal Law Review 215.23 is innocent of any criminal intention. Davies v Health and Safety Executive and Wholesale Travel Group. it is suggested. Had they done so they might have had cause to reflect upon the alternative ‘licensing’ approach to reverse legal burdens suggested by the judgments in Johnstone. I find it a little surprising that more use has not been made of this method. The ‘licensing’ approach is not the only method of defining a regulatory offence but. September 2005. (London: HMSO). It was also a disappointment that their Lordships did not fully consider the nature of the offence ‘being drunk in charge’. If a reverse legal burden is presumed it provides a degree of clarity and consistency that has been notably lacking in recent judgments from the appellate courts. Department for Transport Statistics Bulletin (06) 26. Accordingly. Department for Transport (2006) Road Casualties in Great Britain Main Results: 2005. Lord Pearce described it as “a sensible half-way house” (p 157). Lord (1954) HL Deb vol 190. (June 2006). Bibliography Ashworth. and may also have wider application. Campbell. can expect an offence concerned with the activity to be classified as regulatory. Brabazon of Tara. It is clear. K (1987) ‘Offence and Defence’ in Dennis. which is lawful but which presents a serious risk or danger to public health and safety. Ashworth.

cols 627-634. 2nd ed. Ruby. Paizes. A (2004) Criminal Evidence (London: OUP). Jeffries. (London: Butterworths). Lucas of Chilworth. Stone. cols 635-644. Lord (1955) HL Deb vol 191. Columbia Law Review 199 Rolph. Williams. Roberts. ‘Wholesale Travel: Presuming Guilt for Regulatory Offences is Constitutional but Wrong’ [1992] 8 Criminal Reports (Articles) 225. G (1982) ‘Offences and Defences’ 2 Legal Studies 233. K in ‘The Chapter and Regulatory Offences: A Wholesale Revision’ [1992] 14 Criminal Reports (Articles) 226. CD (1955) ‘Drink Driving’. 21 December 1954. JC (2002) Smith & Hogan Criminal Law. Mancroft. K [1989] ‘Regulatory Offences. cols 585-588. Mancroft. AAS (1976) ‘The Third Exception to the Woolmington Rule’ 92 Law Quarterly Review 402. 28 February 1955. 4th July 1955. G (1988) ‘The Logic of Exceptions’ Cambridge Law Journal 261. The Earl of (1954) HL Deb vol 190. Don. Webb. FB ‘Public Welfare Offenses’ (1933) 33 Columbia Law Review 55. Robinson. C and Julien. Lord (1955) HL Deb vol 191. June 25. Zuckerman. JC and Stephan. cols 1006-1010. 28 February 1955. Paul H [1982] ‘Criminal Law Defenses: A Systematic Analysis’. Molson. Williams. cols 583-584. Stuart. 10th ed. Lucas of Chilworth. Williams. PB (1979) ‘Defenses. gender and motoring 1896-1939 (Manchester: Manchester University Press). Sayre. J (1944) ‘Burden of proof and the judicial process: a commentary on Joseph Constantine Steamship Ltd v Imperial Smelting Corporation Ltd’ 60 Law Quarterly Review 262. O’Connell. D [1987] ‘The Constitutional Status of the Reasonable Doubt Rule’ 75 Cal Law Rev 1665. Lord (1955) HL Deb vol 191. G (1961) Criminal Law The General Part. P and Zuckerman. 14 March 1955. 21 December 1954. Richardson. . The New Statesman and Nation. A [1998] ‘A closer look at the presumption of innocence in our constitution: what is an accused presumed to be innocent of?’ 11 South African Journal of Criminal Justice 409. and Burden of Proof in the Criminal Law’ 88 Yale Law Journal 1325. Smith. S (1998) The car in British society: class. Lord (1954) HL Deb vol 190. 21 December 1954.24 Dripps. Earl (1954) HL Deb vol 190. the Mental Element and the Charter: Rough Road Ahead’ 21 Ottawa Law Review 419. Hugh (1955) HC Deb vol 543. Presumptions. Jowitt. (London: Stevens). Selkirk. G [1987] ‘Strict Liability for Regulatory Crime: the Empirical Research’ Criminal Law Review 295. p877. cols 779-793. cols 566-575.

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