The reverse onus of proof provision in s.5(2) Road Traffic Act 1988 was not incompatible with Art.6(2) European Convention on Human Rights and the principle of presumption of innocence as it could be read down under s.3(1) Human Rights Act 1998 to impose only an evidential burden on the accused.Appeal by way of case stated by the defendant ('S') against his conviction by North East Essex magistrates on 26 June 2001 for being in charge of a motor vehicle after consuming so much alcohol that the proportion of alcohol in his breath exceeded the prescribed limit contrary to s.5(1)(b) Road Traffic Act 1988 ('RTA'). On 9 February 2001, S was found in his vehicle in a public place. Expert evidence revealed that based on an average rate of elimination of alcohol, S would not have been below the prescribed alcohol limit until approximately 11.40am on 10 February 2001. Section 5(2) RTA afforded a defence to an accused upon proof "that at the time he is alleged to have committed the offence...there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath...remained likely to exceed the prescribed limit". The magistrates held that: (i) S had failed to prove on the balance of probabilities that there had been no likelihood of him driving his car whilst in excess of the prescribed alcohol limit (i.e. the legal burden of proof); and (ii) the cold weather on the day in question and S's failure to make any alternative arrangements in order to obtain transport to take him home could have increased the likelihood of his driving. The question in this appeal was whether, having regard to the principle of the presumption of innocence in Art.6(2) European Convention on Human Rights ('the Convention') and to s.3(1) Human Rights Act 1988 ('the 1998 Act'), the reverse onus of proof provision in s.5(2) RTA imposed a legal or evidential burden on an accused charged with an offence contrary to s.5(1)(b) RTA.HELD: (1) Applying ordinary principles of construction, s.5(2) RTA imposed a legal burden on S to prove that there had been no likelihood of his driving the vehicle. Therefore, s.5(1)(b) RTA read with s.5(2) derogated from the presumption of innocence in Art.6(2) of the Convention because it enabled S to be convicted even though the court was not sure that there had been a likelihood or risk of his driving. R v Lambert (2002) 2 AC 545 considered. (2) However, some interference with that presumption was capable of objective justification because a legitimate aim was being pursued by s.5(2). (3) (Henriques J dissenting) In all the circumstances it was not proportionate to impose upon S a legal burden of proving that there had been no likelihood of his driving, and to ensure compatibility with the Convention, s.5(2) RTA had to be read down under s.3(1) of the 1998 Act as imposing only an evidential burden on S. (4) S would satisfy that evidential burden if he demonstrated from the evidence an arguable case that there had been no likelihood of his driving whilst the amount of alcohol in his breath exceeded the prescribed limit. (5) If that burden was satisfied, it was then for the prosecution to prove that there had been a real risk of his driving whilst over the limit. (6) Given that the magistrates had not applied those tests, it followed that the appeal fell to be allowed.Appeal allowed. Conviction quashed.

[2003] EWHC 273 (Admin)

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