Attorney General’s Reference No 4 of 2002: CACD 21 Mar 2003

The defendant had been tried for an offence under the Act of being a member of a proscribed organisation, and professing membership of Hamas. At trial the Crown accepted an evidential burden, that the offence had to be read down to comply with the defendant’s article 6.2 rights, and the defendant was acquitted. A reference was made.
Held: Under Sheldrake and Lambert, an inroad into the defendant’s rights was to be judged according to the gravamen of the offence. The elements of the offence were those set out in the Act. S11(2) merely expressed a limited exception to 11(1), and did not make 11(1) non-compliant. Section 11(2) imposed a legal, not evidential, burden on a defendant.


Lord Justice Latham The Hon Mr Justice Hunt Mr Justice Hedley


[2003] EWCA Crim 762, Times 01-Apr-2003, Gazette 29-May-2003, [2004] 1 All ER 1, [2003] 2 Cr App R 22, [2003] HRLR 15, [2003] 3 WLR 1153




Terrorism Act 2000 11(1), European Convention on Human Rights 6.2


England and Wales


CitedSheldrake v Director of Public Prosecutions Admn 24-Feb-2003
The defendant challenged the application of the section, under which he was deemed to have intended to drive a vehicle whilst under the influence of alcohol, unless he could prove it was not his intent to drive, saying this infringed his right to a . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .

Cited by:

Appeal fromSheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 23 March 2022; Ref: scu.180331