Driver in human rights court victory
A MAN accused of being in charge of a vehicle after consuming excess alcohol has celebrated a human rights victory which could affect other motorists.In a case which split senior judges, Peter Sheldrake won a 2-1 majority High Court ruling that road traffic laws which led to his conviction were "disproportionate" and "violated the presumption of innocence" to which he was entitled under Article 6 (2) of the European Convention on Human Rights.
A MAN accused of being in charge of a vehicle after consuming excess alcohol has celebrated a human rights victory which could affect other motorists.
In a case which split senior judges, Peter Sheldrake won a 2-1 majority High Court ruling that road traffic laws which led to his conviction were "disproportionate" and "violated the presumption of innocence" to which he was entitled under Article 6 (2) of the European Convention on Human Rights.
Police found maintenance fitter Mr Sheldrake asleep in his van with the doors locked on the evening of February 9 2001 in the Fiveways car park, a public place at Stanway, Essex.
Mr Sheldrake, from Hatfield Peverel, Essex, was found guilty of being "in charge" after local magistrates decided that he had failed in his legal obligation under Section 5 of the 1988 Road Traffic Act to convince them that he had no intention of driving his van while over the limit.
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In a ruling which prosecutors fear marks a setback in the battle against drinking and driving, the High Court majority ruled the burden of proof contained in Section 5 was contrary to the human rights convention.
Mr Sheldrake's appeal was allowed by Lord Justice Clarke and Mr Justice Jack, with Mr Justice Henriques dissenting.
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Lord Justice Clarke said imposing the reverse burden of proof in his case "violates the presumption of innocence because it enables an accused to be convicted, even though the court is not sure that there is a likelihood or risk of his driving".
Taking into account the comparative seriousness of the offence, and that it could lead to a prison sentence of up to three months, it was not "necessary or proportionate", said the judge.
During a recent hearing, his QC James Turner said he parked in the car park after being called to deal with a drainage problem. At the time matrimonial problems were playing on his mind and he accepted that he had a good deal to drink. He returned to the van and fell asleep in the driver's seat.
A breath test revealed he had 144 microgrammes of alcohol in 100 millilitres of breath. The legal limit is 35.
In July 2001, local magistrates ordered him to serve 160 hours community service, his licence was endorsed with 10 penalty points and he was ordered to pay legal costs of £395.
His first appeal to the High Court ended with two judges disagreeing, and a re-hearing was ordered before a three-judge court.
Mr Sheldrake's case was that he had not intended to drive and had attempted to make arrangements for transport home with a friend, but the magistrates said there was no corroborative evidence, and, on his own admission, he had not tried other measures, such as calling a taxi.
Expert evidence revealed he would not have been fit to drive until about 11.40am the following day, if the alcohol was eliminated from his body at the average rate.
An expert witness told the magistrates that elimination could have taken even longer as he had not consumed alcohol in the six months prior to the incident, whilst the cold weather could have increased the likelihood of his driving in the absence of any alternative mode of transport.
Allowing his appeal, Lord Justice Clarke said there was no dispute that Mr Sheldrake was in charge of the vehicle, or that he was well over the legal alcohol limit.
The magistrates decided that imposing the burden of proof on Mr Sheldrake did not infringe the human rights convention, and the "presumption of innocence" protected by the convention had not been compromised.
They also said the law was "proportionate" to the legitimate aim of preserving public safety by seeking to prevent drivers taking to the road whilst unfit because of alcohol or drugs.
Quashing their decision, Lord Justice Clarke conceded that "in a constitutional democracy limited inroads on the presumption of innocence may be justified' and the law had "a legitimate aim".
But he said a fair balance had to be struck between "the demands of the general interest of the community and the protection of the fundamental rights of the individual."
Jonathan Ashley-Norman, for the Director of Public Prosecutions, had argued that, without motorists having to prove there was no likelihood of them driving, it would be difficult to achieve convictions of those who might drive and endanger themselves and others.
The judge said: "I see the force of those submissions, but I am not persuaded that they satisfy the test of necessity."
"In conclusion, I would hold that the prosecution has failed to show that is is necessary to impose a legal burden on the accused to show that there was no likelihood of his driving while still over the limit.
"I do not think that to impose a legal burden on the prosecution to prove that there was a real risk of his driving will cause undue problems for prosecutors.
"It is not a heavy burden and should be capable of proof on the facts of the great majority of cases, if not all cases".