Director of Public Prosecutions v Barker [2004] EWHC 2502 (Admin)

Case No CO/3038/2004[2004] EWHC 2502 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 19th October 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
MR JUSTICE SILBER
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
BARKERDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M GALLOWAY (instructed by Crown Prosecution Service) appeared for CLAIMANTMR J SPRUNKS (instructed by Ash Clifford) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal by way of case stated from the decision of the Justices for the counties of Avon and Somerset, sitting at Bridgwater on 5th April of this year. The respondent, Martin Barker, appeared before the Justices on an information alleging that on 14th August 2003 he had driven a motor vehicle on a road whilst disqualified.[2]The facts found by the Justices were as follows:
"(a) The respondent had appeared before Taunton Crown Court on 25th June 2001 for an offence of dangerous driving and had been disqualified for holding or obtaining a driving licence for 12 months and further disqualified until he passed an extended driving test, pursuant to sections 34 and 36 of the Road Traffic Offenders Act 1988."
The 12 months had, of course expired, by the time that this offence was committed, but he was still subject to the requirement to past an extended driving test. The case goes on in paragraph 2:
"(b) The respondent had been seen by Police Constable Richard Horsfall driving a Ford Escort motorvehicle . . . [it is then described] on a road in Bridgwater on 14th August 2003. The respondent was never stopped driving by the Police Officer. (c) The appellant [that is to say the Crown Prosecution Service] never produced any evidence that the Ford Escort vehicle driven by the respondent had either 'L' plates displayed on the vehicle or that the respondent was accompanied by a qualified driver. Neither did the appellant produce any evidence that the respondent held any type of driving licence. (d) the appellant produced evidence the respondent had admitted in interview he had no authority to drive a motor vehicle."
Although the final finding in (d) is not put as a finding of fact, we are told that there was no challenge made to the evidence given that the respondent had made that admission. We must therefore take it that the Justices must have found, and indeed would have been perverse not to have found, that he had made that admission.[3]What happened at the trial, we are told, was that the issue was whether the respondent had actually been driving. The Justices clearly accepted that he had, but before they reached their decision as to whether or not to convict, the Clerk raised a question about the burden of establishing the matters which the Justices refer to in paragraph 2(c) of the test. They go on to record that the appellant had contended what had to be proved by the prosecution was that the respondent was the driver and had been disqualified until passing the test. They did not have to prove that he had not obtained a licence to drive or, if he had, that the conditions of the provisional licence were not being complied with.[4]The appellant submitted that once the Justices found that he was the driver and had been disqualified until passing the test, in the absence of any evidence produced by the defence to establish that he had indeed obtained a provisional licence and had the qualified driver and 'L' plates on the vehicle, he fell to be convicted. The contrary submission was that the burden was on the prosecution to establish that he had not obtained a licence and was not, in fact, driving in accordance with the terms of such a licence.[5]The question which the Justices pose for us is as follows:
"If the evidence from the appellant showed the respondent was the driver of the motor vehicle on 14th August 2003, were the Justices right in placing upon the appellant the burden of proving that the respondent was not driving in accordance with the exemption provided by section 37(3) of the Road Traffic Offenders Act 1988 and in dismissing the information for driving whilst disqualified, pursuant to section 103 of the Road Traffic Act 1988 because the appellant had failed to show the respondent had driven in breach of the conditions under which a provisional licence is held irrespective of whether the respondent had applied for and been granted a provisional licence?"
The power to disqualify until the test is passed is contained in section 36 of the Road Traffic Offenders Act 1988. Obviously, in order to enable a person who has been disqualified to pass a test, he would have to be able to drive and obtain a provisional licence to do so. That is provided for by section 37 of the 1988 Act. Subsection (3) provides:
"Notwithstanding anything in Part III of the Road Traffic Act 1988, a person disqualified by an order of the court under section 36 of this Act is (unless he is also disqualified otherwise than by virtue of such an order) entitled to obtain and to hold a provisional licence and to drive a motor vehicle in accordance with the conditions subject to which the provisional licence is granted."
[6]That provision is the successor to similar provisions in previous statutes, and the effect of that provision -- or rather its predecessor in the Road Traffic Act 1972 -- was considered by this court in Scott v Jelf [1974] RTR 256. Section 98(3) of the 1972 Act was, in so far as material, in the same terms as Section 37(3) of the 1988 Act. That case concerned the question whether a person who drove in breach of the conditions of a provisional licence was guilty of driving whilst disqualified, he having been disqualified until he took the test.[7]At page 261B of the decision, after citing section 98(3) Lord Widgery CJ said this:
"That provision has appeared in the road traffic legislation for a good many years and its purpose is obvious. If the man has to take a test before his disqualification can be removed, then machinery must be provided to enable him to take the test. Taking the test involves driving on a road and thus involves the obtaining by him of a provisional licence, as was done in this case. If the defendant had been driving on the road with a qualified passenger he would have committed no offence because, although still disqualified within the meaning of section 99, he would have the specific excuse provided for him by section 98(3). He did not have a qualified driver, and the issue in this case is whether the fact that he drove in defiance of the conditions attached to a provisional licence had the effect of removing the protection of section 98(3) altogether so as to make him a driver driving when disqualified, or whether it had prosecuted under section 88(6) of the Act for failing to comply with the terms of a provisional licence. That is the issue."
Then at page 262B he said this:
"I find myself left in absolutely no doubt that section 98(3) is carefully worded so as to allow a disqualified driver to use a provisional licence on the road provided he complies with the terms of the provisional licence. I think that that is the only meaning which can be derived from the language used if given its ordinary meaning. The terms of section 98(3) provide an exemption for a disqualified driver driving on a road provided that he holds a provisional licence and drives in accordance with the provisions of that licence. I cannot understand why specific reference should have been made to driving in accordance with the conditions of the provisional licence unless it was intended that the exemption provided by the subsection should be restricted to those who drive in accordance with the provisional licence to which it refers."
[8]MacKenna J, in a short compelling judgment, put the matter succinctly in these words at 262F:
"A person disqualified for holding a licence until he has passed another driving test is a disqualified person within the meaning of section 99 [that is the predecessor of section 103]. He is forbidden to drive unless he can bring himself within section 98(3). That subsection gives him a limited right to drive, notwithstanding the provisions of section 99. He can drive if he obtains a provisional licence and if he drives in accordance with the conditions subject to which it is granted. That is what section 98(3) says and it cannot reasonably be given any other meaning. If the disqualified person drives otherwise than in accordance with the conditions of the provisional licence, he loses the protection of this subsection and is caught by section 99."
[9]That being so and this being, as it clearly is, an exemption, as it seems to me section 101 of the Magistrates' Court Act 1980 applies. That section provides as follows:
"Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence, or matter of complaint in the enactment . . . or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him."
That section and Scott v Jelf were not referred to the Justices but, in fairness to those appearing, this point was raised by the Clerk to the Justices and was a surprise to those who were appearing at court. Indeed, Mr Sprunks very clearly accepted that the evidence that the respondent had admitted that he had no authority to drive was, on its face, sufficient to establish, in the absence of evidence to the contrary, that he was not entitled to the benefit of the exemption provided by Section 37(3). So even if the Justices were correct in taking the view, as advised by their Clerk, that there was a burden on the appellant to establish the matters which would constitute a breach of the terms of a provisional licence, or indeed that there existed a provisional licence at all, he could not submit that their conclusion was correct once the Justices had decided that the respondent was the driver.[10]Even apart from section 101, it seems to me that this is a situation where quite clearly the existence of a burden on the respondent to establish that he was indeed entitled to drive at the time when he was seen to be driving is wholly proportionate and is to be accepted. That, as it seems to me, follows from the approach of both the Court of Appeal and more recently the House of Lords: The Court of Appeal in a number of cases, but including Attorney General's Reference Number 1/2004, Case 2004 EWCA Crim at page 1025 and the decision of the House of Lords last week in Attorney General's Reference Number 4/2002, of which we have been provided with a transcript.[11]Mr Galloway points out that, in relation to the holding of a provisional licence, if a person is charged with driving without a licence, there is no question but that the burden lies on him to establish that he did have a licence. It is a burden which is easily discharged because all he has to do is to produce the licence which has been issued to him. If he has lost it, he can check with the DVLA and the matter can be easily established. Mr Sprunks accepts that so far as that element is concerned, he cannot support the contention that the burden lies upon the Crown to establish that there is no licence.[12]Furthermore, Mr Galloway submits that it would be quite impossible in some cases -- and this is a good example -- for the Crown to establish that any passenger was the holder of a licence him or herself and thus qualified to be a supervising the driver. Apart from anything else, in the absence of any information from the defendant as to the identity of the passenger, the prosecution would be in no position at all to know that. Again, Mr Sprunks accepts that as being a powerful reason for requiring that that element be established by a defendant. The lack of 'L' plates may be something which can more easily be established by evidence from whoever it was who saw the driving in question, but that is but one of the elements involved in the breach of the provisions of the provisional licence.[13]In my judgment, there can be no doubt whatever but that the burden does fall upon a defendant in a situation such as arose in this case, to show that he not only had a provisional licence but was driving in accordance with the conditions of such a licence. The absence of any such evidence means that once the Justices were satisfied, as they were, that he was the driver, they should have convicted him. Accordingly, I would allow this appeal and send the matter back to the Justices with a direction to convict the respondent on the charge which he faced.

MR JUSTICE SILBER: I agree.

MR JUSTICE COLLINS: Mr Sprunks, you have a representation.

[16]MR SPRUNKS: I do.[17]MR JUSTICE COLLINS: I do not know whether in those circumstances -- I suspect there is no need for a specific order to be made to enable you to get your fees. You get whatever the court thinks you should get.[18]MR SPRUNKS: Thank you very much, my Lord.

MR JUSTICE COLLINS: Good luck.