If you are in bed or relaxing in the back of your camper and the ignition keys are not in the ignition. The burden of proof is upon the prosecution that you 'intended' to drive.
The reverse burden of proof provision in s 5(2) of the Road Traffic Act 1988 was to be read down pursuant to s 3(1) of the Human Rights Act 1998, in order for it to be compatible with art 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, so that it imposed only an evidential burden on the accused.
The Queen's Bench Divisional Court so held (Henriques J dissenting) when allowing an appeal by the defendant, Peter Sheldrake, by way of case stated against his conviction by Harwich justices on 26 June 2001 of 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) of the 1988 Act.
S 5 of the Road Traffic Act 1988 provided: "(1) If a person…(B) is 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 he is guilty of an offence. (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."
CLARKE LJ said that s 5(1)(B) of the 1988 Act, read with s 5(2), made an inroad on or derogated from the presumption of innocence in art 6(2) of the Convention because it enabled an accused to be convicted even though the court was not sure that there was a likelihood or risk of his driving. A legitimate aim was being pursued by s 5(2) in that the likelihood or otherwise of the accused driving would normally have involved consideration of the accused's present or future intention to drive. The burden of proving that the accused was driving or attempting to drive was on the prosecution. So too should the burden of proving that there was real risk of the accused who was in charge when over the limit driving the car, once the issue had been raised by the accused by pointing to some evidence that there was no likelihood of his doing so. The prosecution had failed to show that it was necessary to impose a legal burden on the accused to show that there was no likelihood of his driving while still over the limit. It had not been shown to be proportionate to impose a legal burden. It was possible to read down s 5(2) of the 1988 Act so that it imposed only an evidential burden, and it should have been so read under s 3(1) of the 1998 Act because it was necessary to do so in order to ensure that it was compatible with the Convention. S 5(2) could be read as follows: "It is a defence for a person charged with an offence under subsection (1)(B) above to demonstrate from the evidence an arguable case that at the time he was 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". If the accused satisfied the evidential burden, it was for the prosecution to prove beyond reasonable doubt that the circumstances were not such that there was no likelihood of his driving whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.
