Legislative Scrutiny: Crime and Courts Bill - Human Rights Joint Committee Contents


Strict liability drug driving offence

84.  The Bill creates a new criminal offence of "drug driving": driving or being in charge of a motor vehicle with the concentration of a specified controlled drug in the body being above the specified limit for that drug.[33] The new offence is a "strict liability" offence (that is, an offence which is committed regardless of whether the accused had a culpable state of mind), modelled on the existing offence of drink driving.[34] The purpose of the new offence is to enable more effective action to be taken against people driving under the influence of drugs, by enabling action to be taken without the need to prove impairment.

85.  The Bill provides for a defence if the drug in question was taken in accordance with medical advice.[35] This defence places what is known as an "evidential burden" of proof on the defendant: that is, if the accused adduces evidence that properly raises the issue, it will be for the prosecution to prove, beyond reasonable doubt, that the drug was not in fact taken in accordance with medical advice.[36] This represents an important safeguard against the new offence having a discriminatory impact on disabled people.

86.  The Bill also provides for a defence if the accused can prove that there was no likelihood of them driving the vehicle while the proportion of the drug in his or her body remained likely to exceed the specified limit.[37] This defence places a "legal burden" of proof on the accused: that is, it is for the defendant to prove, on the balance of probabilities, that he or she would not have been likely to drive. Defences to criminal offences which place the legal burden of proof on the accused may infringe the presumption of innocence in Article 6(2) ECHR. However, the equivalent provision concerning a defence to the drink-driving offence has been held to be compatible with the ECHR by the House of Lords Judicial Committee, on the basis that the matter was so dependent on the defendant's knowledge that it was more appropriate for the defendant to have to prove that they would not have been likely to drive.[38] The Government's analysis in the ECHR Memorandum that the reverse burden in the Bill is ECHR compatible is therefore correct.

87.  The Bill does not provide a defence, however, for a defendant whose drink was "spiked" with the relevant drug. The ECHR memorandum acknowledges that there may be arguments that the absence of such a defence infringes the Article 6 presumption of innocence, as it would mean that someone whose drink was genuinely spiked could be found guilty of the offence through no fault of their own.

88.  We asked the Government if there is any reason why the Bill could not include a defence which would prevent the injustice of strict liability for the offence in a case where a drink has been genuinely spiked, by placing the legal burden of proving the defence on the defendant. In its response the Government offers two justifications for not including such a defence.

89.  First, it argues that the inclusion of a "spiked drinks" defence to the new offence would create a difference of approach between the new offence and the drink driving offence in ss. 4 and 5 of the Road Traffic Act 1988 on which it is modelled. That other offence is also a strict liability offence, but the Government "understands" that the lack of a spiked drinks defence has not resulted in any injustice with regard to that offence, because s. 34 of the Road Traffic Offenders Act 1988 allows for a court not to order an obligatory disqualification from driving in circumstances where there are special reasons to warrant this. It is recognised, the Government says, that a genuinely spiked drink is a "relevant consideration" for a special reasons hearing. The same statutory provision would also apply to the new drug driving offence, so that too would not in practice lead to a mandatory disqualification from driving in the case of a genuinely spiked drink.

90.  We are mindful of the apparent increase in recent years of incidents of spiking drinks in public places, in particular with so-called "date-rape drugs", and that this is a particular problem for women. We are also anxious about the impact of strict liability criminal convictions on individuals' CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing. In our view, maintaining symmetry with a strict liability offence contained in legislation enacted in 1988, and relying on a provision which related to the nature of the sentence, rather than to criminal liability, in order to prevent possible injustice, are not strong enough justifications for failing to include a "spiked drinks" defence in the Bill. We also see no reason in principle why such a defence could not also be inserted into the Act setting out the equivalent drink driving offence by this Bill.

91.  The Government's second and separate reason for not including a "spiked drinks" defence is that "a defendant would have nothing to lose from seeking to rely on a spiked drink defence if one were available—which could introduce substantial extra difficulties for prosecutions." This objection is in substance the same as that set out in the Government's ECHR memorandum, where it says that the existence of such a defence "would render the new offence virtually inoperable, since anyone could claim this and there would be significant evidential difficulties in disputing it."[39]

92.  In our view, the Government's objection does not hold good if such a defence imposed the legal burden of proof, as opposed to the evidential burden of proof, on the defendant: that is, if the Bill provided for a defence only if the defendant can prove that the drug was present in their body due to the intervention of a third party without the defendant's knowledge or consent.

93.  We are concerned that the new strict liability offence as presently drafted is incompatible with the presumption of innocence in the absence of a spiked drinks defence which casts the legal burden of proof on the defendant. We recommend that the Bill be amended to introduce a "spiked drinks" defence which places a legal burden of proof on the defendant: that is, it is for the defendant to prove, on the balance of probabilities, that his or her drink was spiked.

94.  The following amendment to the Bill would give effect to this recommendation:

Clause 29, page 29, line 10, after sub-paragraph (5) insert new sub-paragraph—

'( ) It is a defence for a person ("D") charged with an offence by virtue of subsection (1) to prove that at the time D is alleged to have committed the offence the drug was in D's body as a result of the intervention of a third party without D's knowledge or consent.'

95.  We also recommend that the same defence be made available to the drink driving offence in s. 4 of the Road Traffic Act 1988 on which the new offence in the Bill is modelled.

Scandalising the court

96.  At Committee stage, an amendment to the Bill was tabled which would have abolished the common law offence of scandalising the court, which was recently used by the Attorney General of Northern Ireland to attempt to prosecute Rt Hon Peter Hain MP over statements made in his published memoirs. The Government received the amendment positively but wanted time for the Law Commission to report on the issue.[40]

97.  The Law Commission's consultation on scandalising the court, a part of their larger ongoing consultation on the law of contempt, was launched on 10 August, closed on 19 October and was brought forward to tie in with the Government's consideration of abolition under this Bill. We expect the Law Commission to make recommendations to the Government shortly. We have not taken evidence on this aspect of the Bill but we note that the offence has not been successfully prosecuted since 1931 and can be used to restrict freedom of speech disproportionately.

98.  We support the abolition of the outdated common law offence of scandalising the court, the continued existence of which represents an unjustifiable restriction on freedom of speech.

Insulting words or behaviour

99.  At Committee stage an amendment was also tabled which would remove "insulting" words or behaviour from the scope of the criminal offence in s. 5 of the Public Order Act 1986.

100.  Section 5 provides that a person is guilty of an offence if he uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displays any writing, sign or other visible representation which is abusive, threatening or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

101.  Both we and our predecessor Committee have called for the scope of section 5 to be reduced by removing the reference to "insulting", because of its disproportionate impact on freedom of expression.[41] The Government published a consultation on reform of section 5 in October 2011. The consultation closed in January 2012, but no Government response has yet been published.

102.  We understand the sensitivities with certain communities on this issue, but nonetheless we support an amendment to the Bill which reduces the scope of s. 5 Public Order Act 1986 on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression.

33   Cl. 29, inserting new s.5A Road Traffic Act 1988, and Sched. 15. Back

34   Section 5 Road Traffic Act 1988. Back

35   New s. 5A(3) Road Traffic Act 1988. Back

36   New s. 5A(5) Road Traffic Act 1988. Back

37   New s. 5A(6) Road Traffic Act 1988. Back

38   Sheldrake v DPP [2004] UKHL 43. Back

39   ECHR Memorandum, para. 178. Back

40   HL Deb 2 July cols 562-564 (Lord McNally). Back

41   Demonstrating respect for rights? A human rights approach to policing protest, 7th Report of 2008-09, HL Paper 47/HC 320; Legislative Scrutiny: Protection of Freedoms Bill, 18th Report of 2010-12, HL Paper 195/HC 1490, paras 157-8. Back

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Prepared 26 November 2012