By revisiting two criminal appeal cases, the principle of burden of proof reversal is investigated using drink-driving and terrorism, in order to establish justification of such approaches within domestic law.

Director of Public Prosecutions v Sheldrake

In this matter, the defendant stood accused of being intoxicated while in charge of a parked motor vehicle, and yet despite having no evidence to suggest he intended to drive the car, he was convicted under section 5(1) of the Road Traffic Act 1988; at which point ,the case was appealed.

Attorney General’s Reference No 4 of 2002

In the second case, the defendant was accused under s.11(1) of the Terrorism Act 2000 of holding membership to a proscribed terrorist organisation, and publicly expressing his affiliation in such a way that could incite tensions between the public and the state, although subjective opinion cast doubts as to the credibility of the claims.

Article 6(2) of the Human Rights Act 1998 (HRA) (Right to a fair trial) provides that under criminal law, any person accused of a criminal act will be entitled to a fair trial.

This rests upon the principle that all those accused are considered innocent until proven guilty; however, in the majority of criminal cases, the burden of proof rests with the prosecution, who must prove beyond any reasonable doubt, that the conviction stands. 

In the former case, section 5(2) of the Road Traffic Act 1988 requires that in order to serve as a defence, the accused must be able to show that there was never any intention drive the vehicle, and that under the majority of circumstances, such proof would be evidential or persuasive enough to grant exoneration.

In the latter case, section 11(2) of the Terrorism Act 2000 allows a defendant to show that while a member of a prohibited organisation, their affiliation began prior to the faction’s illegality, and that at no point did the defendant take part in any activities that supported their cause.

Given that on both occasions the burden of proof was contested on grounds of conflict with the HRA 1998, it was down to the House of Lords to take a thorough view of reversed burden, before deciding if those matters that demonstrate an incompatibility of legislation with Convention rights can continue to exist for the greater good and welfare of public safety and interest.

Following a meticulous speech by Bingham LJ, it was agreed by a majority that despite the challenges brought before the House, there was already sufficient grounds under sections (1) of both Acts to secure a judgment, and that any burden of proof presented by the defendants was required to be legal if it were to withstand conviction, while reminding the parties that:

“The reversal of the ordinary burden of proof resting upon the prosecution may accordingly be justified in some cases and will not offend against the principle requiring a fair trial.”

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