The Director of Public Prosecutions v Whittaker [2015] EWHC 1850 (Admin)

[2015] EWHC 1850 (Admin)Case No CO/578/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 3 rd July 2015
Before
THE RT HON LORD JUSTICE BEATSONTHE HON MR JUSTICE BLAKE
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSAppellantJOHN WHITTAKERRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Lee Ingham (instructed by CPS) for AppellantNo appearance for RespondentHearing Hearing dates: 9 June 2015
JudgmentTHE HONOURABLE MR JUSTICE:
[1]This is an appeal by way of case stated from a decision of the Preston and South Ribble Justices who on 23 October 2014 dismissed a summons alleging a contravention of s. 143 Road Traffic Act 1988, namely use of a motor vehicle on a road without a policy of insurance.[2]The facts are as follows. On 8 July 2014 on a road known as Pope Lane Ribbleston Preston PC Dixon saw a White Iveco van YI88 PVS being driven by the respondent John Whittaker. He asked the respondent to stop. This was at the instigation of another officer for reasons nothing to do with the present appeal. Mr Whittaker confirmed his identity. PC Dixon inspected the van and found that it contained a lot of DVDs and the way the DVDs were arranged indicated that it looked like a mobile library. The officer took a photograph of the inside of the vehicle that was produced to the justices and to us. It confirms the officer’s description that the interior looked like a mobile library of a great many DVDs.[3]PC Dixon agreed that there may have been discussion about the defendant’s insurance policy but there was no investigation about the following matters:- i. Where the defendant was going and why; ii. What he had been doing on that day since getting into the van; iii. Whether he was in the business of selling DVDs and whether he had sold any to anybody while using the vehicle on a road.[4]In due course inquiries revealed that the respondent was in possession of a certificate of insurance valid from 22 June 2014 to 22 June 2015; the use under the policy was restricted to social domestic and pleasure use and motor trade use. Undisputed evidence to this effect was given at trial in the form of a witness statement from a Mr Letterio.[5]On 26 August 2014 the defendant was charged with using the motor vehicle on the road when there was not in force in relation to that use a policy or insurance that complied with the Act. The reason for the charge is that the prosecution thought that the vehicle was being used for the business of selling DVDs on the day in question and the certificate of insurance did not cover such a use of the vehicle on the road.[6]The prosecution case consisted of the evidence of Mr Letterio that was read and PC Dixon that we have summarised above. At the conclusion of the case, the defendant made a submission of no case to answer.[7]The justices described the rival submissions as follows: “8. Mr Leach, solicitor for …Mr Whittaker, put forward a submission of no case to answer. He submitted that the Crown had not adduced any evidence that Mr Whittaker was working or carrying out a business at the time he has stopped. Mr Leach further submitted that the onus was on Mr Whittaker to show that, having used the vehicle on a road, he was insured. Mr Whittaker having produced such a certificate of insurance, Mr Leach submitted that if the Crown intended to show that Mr Whittaker was not covered by that particular policy of insurance the onus shifted back to the Crown to prove beyond reasonable doubt that Mr Whittaker was using the vehicle for business use. 9. In support of his submission Mr Leach made a general reference to Wilkinson’s Road Traffic Offences, although he conceded that this was not conclusive. [Later found to be Wilkinson’s Road Traffic Offences, 26th Edition, para 3.86] 10. Mr Leach submitted that if we were of the opinion that the burden of proof was still on Mr Whittaker then he would be called to give evidence and he would call one defence witness. However, if we were satisfied that the burden of proof shifted to the prosecution then he would submit that there was no case to answer – R v Galbraith [1981] 1 WLR 1039) - on the grounds that having a van full of DVDs did not prove that Mr Whittaker was working or carrying out a business at the time he was stopped. He argued there was no evidence of purchases made and Mr Whittaker was not interviewed about his policy of insurance or the use of the van – he was stopped and arrested in relation to other matters. There was nothing to say that he was doing anything for business. 11. The CPS confirmed that it was for them to prove that Mr Whittaker was driving and then the burden shifted to Mr Whittaker to say that he was adequately insured. Ms Privett indicated we needed to look at the photographs of the van as it was clear from those that it was being used for a business. 12. Our Legal Adviser, Mrs Worden, advised us to think of previous similar prosecutions before this court that were of this nature, for example, where the defendant has insurance to cover social, domestic and pleasure use and the vehicle is being used to deliver food. In those cases where the court was not satisfied that the vehicle was being used for business purposes the defendant was acquitted the burden of proof seemed to shift to the Crown. 13. Mrs Privet of the CPS submitted that Mr Whittaker could not rely on the insurance policy to cover him for social, domestic and pleasure use because he had not yet given evidence on that point. She continued that the only evidence regarding the use of the vehicle was the fact that it contained DVDs. 14. Mr Leach responded by saying that in view of Ms Privett’s reply he understood that he was correct that there was no authority to suggest that he was wrong in saying that the burden of proof shifted, and that the CPS were trying to retract their opening of the case when Ms Privett confirmed that Mr Whittaker had a policy that covered him for motor trade purposes and social, domestic and pleasure use. He submitted that the prosecution failed because there was no evidence to show that Mr Whittaker was using the vehicle for business use. 15. After discussion we accepted that the burden of proof shifted back to the Crown for them to prove beyond reasonable doubt that Mr Whittaker was using the vehicle for business use. 16. Thereafter we invited further submissions from both defence and prosecution in respect of there being no case to answer. Mr Leach, acting for Mr Whittaker, submitted that there was no case to answer. He indicated that the evidence put forwarded by the crown was not discredited, but that PC Dixon’s evidence was deficient. The Crown had failed to show that Mr Whittaker was engaging in business at the time he was stopped. 17. Ms Privit for the Crown argued that there was a case to answer. 18. Our Legal Adviser gave us the Galbraith direction. The defence submitted that there was no evidence put before the court to show that Mr Whittaker was using the vehicle for business use at the time he was stopped; there was no selling or trading seen. The Crown had the photographs which showed the DVDs in the van, which suggested Mr Whittaker was trading. The defence accepted that but emphasised that there was no evidence of it on the day in question. 19. We favoured the submission put forward by Mr Leach on behalf of Mr Whittaker and found that there was no case to answer because the essential element necessary to show that Mr Whittaker was trading at the time he was stopped was missing’. .[8]The case was stated on 19 January 2015 and the appellant appeals against the decision on two grounds:-(i) The justices were wrong to find that the burden of proving the vehicle was being used for business use was on the Crown.(ii) Irrespective of who bore the burden, the evidence as to the state of the van was such that on the application of the test in R v Galbraith, the justices were wrong to find that no reasonable tribunal could have been satisfied so that it was sure on the evidence that had been adduced that the van was being used to sell DVDs on the day in question.[9]The law on the topic is accurately reflected in the 26th edition of Wilkinson Road Traffic Offences (2013)at paragraph 3.86 “On a charge of driving without a licence or insurance, it suffices if the prosecutor proves that the defendant drove a motor vehicle on a road on the day in question and, in law, no further evidence, e.g. that he was asked for, and failed to produce his licence or insurance certificate is required; the onus then shifts to the defendant to show that he had the licence (John v Humphreys [1955] 1 All ER 793) or insurance policy (Lethley v Drummond [1972] Crim L.R. 227). It would be improper, however, to institute a prosecution on the sole ground that the defendant was seen to drive; the prosecutor should have some reason for thinking that no licence or insurance was in force.”[10]The decisions in John v Humphreys [1955] 1 All ER793 and Leathley v Drummond [1972] Crim LR 227 were approved by this Court in DPP v Kavaz [1999] RTR 40 a case that has been placed before us and I consider below. The authorities do not go any further, however, and decide the present question, which is whether once a valid certificate of insurance has been produced the burden of proving that the vehicle was being used on the road outside the scope of the certificate reverts to the Crown.[11]That question did arise in the case Howey v Bradley [1970] RTR 112. The second defendant was stopped by the police while driving a double-decker bus carrying 36 passengers to a demonstration. The bus was owned by the first defendant. The first defendant produced a policy of insurance limited to use for private pleasure, social and domestic purposes. A two page list was found in the bus of names alongside a sum of money. The police suspected that the list was of fares paid by the passengers. The defendants denied any knowledge of the list or that any charges had been made. The first defendant gave evidence and both defendants were convicted. The court in that case accepted that the justices had relied on the list in reaching their conclusion that there was a commercial use of the bus on the day without any evidence linking it to either defendant. This was held to be an error that resulted in the quashing of the convictions. The prosecutor sought to support the convictions relying on the fact that the burden was on the defendants to produce a policy of insurance covering the use made of the vehicle by the two defendants. Lord Parker CJ observed “That of course they did; but Mr Farquarson urges that this burden shifts, not merely to produce a policy covering a user on the road but a burden to show that the user in question on the road was one which was covered by the policy. Mr McHale on the other hand urges that it is for the prosecution to prove a prima facie case of user on the road which is not covered by the policy which is produced. For my part I find it unnecessary to decide that rather interesting question, and for this reason. The justices here have not decided this case on questions of burden of proof at all; they have not said ‘We convict because the defendants have not satisfied us that the user is covered by the policy”.[12]Noting this decision the editors of Wilkinson make the comment:
“However, it is suggested that it is for the defendant to prove that the use of the vehicle at the time was in accordance with the insurance in force. This is particularly important as restrictions on use included in insurance policies become more elaborate.”
[13]We now have to decide this question as the first issue in this appeal. Issue One[14]Road Traffic Act 1988 s. 143 (1) states: “Subject to the provisions of this Part of the Act- (a) a person must not use a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Act”.[15]The question is whether properly construed the offence is using a motor vehicle on a road, to which there is afforded a defence of showing a certificate in force to cover such use, or whether once the defendant shows there is a certificate in force allowing a vehicle to be used on the road, it is for the prosecution to show that the use of the vehicle on the day was for a different purpose than covered by the certificate.[16]In the case of DPP v Kavaz [1999] RTR 40, the defendant was involved in a road traffic accident, and had exchanged particulars with the other party but produced no certificate of insurance. The justices acquitted on this charge because there had been no statutory demand to produce a certificate as might have been required under s.165 RTA 1988. Garland J, giving the principal judgment of the court, said:
“The prosecutor’s submissions are simple: first, in a prosecution for using a motor vehicle without insurance, once the prosecution have proved that the defendant used the vehicle on a road, the onus of proving possession of a policy is on the defendant; secondly, the same principle must apply to using a motor vehicle without a test certificate”
. He then reviewed the cases of John v Humphreys [1955] 1 All ER 793, Philcox vCarberry [1960] Cr LR 563 and Leathley v Drummond [1972] RTR 293. In doing so he noted the concern expressed by experienced judges deciding these cases, that a defendant who is seen driving a vehicle could be summonsed for driving without insurance without first being given an opportunity to produce such a certificate using the statutory demand procedure. The court shared those concerns and emphasised that it was desirable that evidence that a statutory demand had been made should be before the justices.[17]In John v Humphreys justices dismissed an Information charging a person with driving a motor vehicle without a licence after the prosecution proved that the defendant drove the vehicle at the time and place alleged but called no further evidence, contending that the burden of proving that the defendant was the holder of a licence was on him. The justices considered that mere proof that the defendant had driven the motor vehicle did not establish a prima facie case. An appeal by the prosecutor was allowed. Lord Goddard CJ accepted the prosecution submission that, as the question whether the defendant had a licence was a fact peculiarly within his own knowledge, it was not for the prosecutor to prove that the defendant did not hold a licence, and that if the defendant chose not to tell the police he had a licence he must take the consequences. In that case the police had made enquiries in the county in which the car was registered, but it could not be found that the defendant had a licence. Lord Goddard stated that although in theory this meant that a police officer who saw a car being driven could always summon the driver and leave it to the driver to prove he had a licence, unless the police made proper enquiries or believed that there was a ground for supposing that the driver had no licence, the police should not so act, and if they did, not only would costs be given against them but very severe steps would be taken.[18]Ormrod J agreed with the conclusion of Lord Goddard CJ but added: “I agree although I come to the decision with some reluctance, as it does seem extraordinary that if a police officer sees someone driving in the street he can at once summon him and put him to proof that he has a licence….My first view was that …there must be some evidence to prove that the respondent did not possess a licence. However, having regard to the decision in R v Oliver [1944] KB 68, it appears to me that there is no alternative but to say that the appeal must be allowed and therefore I agree”.[19]The case of R v Oliver was a prosecution for selling sugar during war time rationing contrary to the defence regulations. It was a defence to show that the Ministry had granted a licence to do so. The question was whether the prosecution had to prove that a licence had not been granted or for the defence to show that it had; in dismissing the appeal the court identified that the criminal activity to be proved by the Crown was selling the sugar.[20]Here Mr Ingham’s proposed construction of the section goes beyond the previous case law and seeks to impose an additional burden on a defendant who has produced a valid certificate of insurance permitting use of a vehicle on the road, to also explain what he had been using the vehicle for on the day in question. By contrast, with s.165 RTA 1988 there is no statutory mechanism enabling such an explanation to be tendered, and yet the failure to give evidence at trial is said to put the defendant in jeopardy of conviction essentially for using the vehicle inconsistently with the terms of the certificate.[21]The case of R v Oliver gives the prosecution no assistance with the proposed construction. In that case the primary anti-social conduct giving rise to culpability had been proved and what was required was that the defendant show that the activity actually engaged in had been approved. Here the prosecution was brought because the police suspected that the respondent had been using his van for the business of selling DVDs and that would take him outside the scope of the certificate. In my judgment where criminal liability depends on this suspicion being well founded then as a matter of first principle, it is for the prosecution to substantiate what they assert to be the case.[22]The court was taken to the passages in Archbold concerned with reverse burdens (paragraphs 16-105 and 106), and I fully recognise that where Parliament has proscribed some anti social act but mitigated the proscription by a defence to be raised on the civil balance by the defendant, this may be justified having regard to the social purpose, the degree to which the matters are within the knowledge of the defendant, and the proportionality of the requirement: see R v Lambert [2001] UKHL 7 [2002] 2 AC 545 per Lord Steyn; and Lord Hope; Sheldrake v DPP [2005] 1 AC 264 per Lord Bingham, particularly at [40] to [44]; per Lord Carswell at [85].[23]I recognise that whether a user of a motor vehicle has a valid certificate of insurance is something peculiarly within his own knowledge and something that is reasonable and proportionate to expect him to substantiate. Similarly the issue in Sheldrake of whether a person who had consumed excess alcohol and was in charge of a vehicle, whilst in that state, was ‘likely to drive’ was something within his own knowledge and would depend on the substance of the arrangements he put in place to avoid any such risk.[24]I do not accept that the same applies to whether the defendant was using the van for a business purpose on the day in question whilst he was using the road. If he had been conducting business with another, evidence could be given of that by any person who observed the transaction or its consequences; the contents of the van might themselves disclose evidence of such activity in the form of cash, documentary evidence of sales or other telling detail as to the circumstances. If indeed this was the focus of police concern, the obvious inquiry would be to ask the defendant what he was doing and what comment he had to make on the state of the van. Appropriate inferences might be drawn from any failure to explain or any explanation shown subsequently to be false. I discussed this further when considering the second question. I cannot accept that the fact that the police may not be in position to rebut an exculpatory account whose accuracy is questioned justifies requiring the defendant to assume a legal burden.[25]Mr Ingham accepts that in the absence of good reason to suspect that the user of the vehicle was not authorised by the certificate the prosecution could be stayed as an abuse. In my judgment rather than construing the offence very widely and seek to mitigate the consequence by the possibility of an application to stay proceedings as an abuse, the answer is that the Crown should produce the evidence that demonstrates the unauthorised user.[26]For the reasons given by the justices, I agree that once the defendant has produced a valid certificate of insurance but the prosecution is maintained on the basis that it is contended that he was using the vehicle in a way not permitted by the insurance certificate, proof of the user in question reverts to the prosecution; he who asserts the existence of the relevant conduct should prove it, unless Parliament has clearly placed the burden of proving an exemption or defence on the defendant. I am not satisfied that this is the case in the present circumstances. I would accordingly dismiss the appeal on this ground.

Issue 2

[27]This issue arises on the basis that the prosecution had to produce sufficient evidence that if unchallenged could have lead a reasonable tribunal to be sure that the defendant’s van had been used for the business of DVD sales while on the road. I recognise that for the reasons given by the editors of Wilkinson and by Mr Ingham in his oral submissions to this court, the court should be slow to impose an exacting standard of evidence to show that business user was being undertaken on the day in question, but some evidence sufficient to draw such a conclusion should be adduced.[28]The evidence of the state of the van gives rise to an inference that it was organised so that it could be used for the purpose of selling DVDs but the question was whether it was being so used at the material time. I have already pointed out the kind of material that might be available in an appropriate case to supplement the evidence as to the state of the van. In Johns v Humphreys the police had made some inquiries before prosecuting, and as I understand it in Howey v Bradley questions were directed to the defendants at the scene as to what they were using the vehicle for and the police had a list that at least suggested commercial use of the bus complete with 36 passengers that warranted a response, although in the absence of any evidence linking the list to either defendant, that was not a sufficient basis to prove guilt.[29]None of this was available or placed before the justices in this case. Although there may be suspicion as to the activity the defendant was engaged in on that day in the absence of any inquiry or any evidence of the use to which the van had been put that day, I cannot accept the submission that the state of the van alone was enough to enable a reasonable tribunal to be sure of this issue. The justices were properly advised on the Galbraith test. This is not a case where credibility was at issue, but taking the evidence of PC Dixon at its highest could a reasonable tribunal have concluded that unanswered any inference of business use on the day in question was irresistible? In my judgment the justices were entitled to reach their conclusion on this issue of fact for the reasons they gave. The information before them was limited and I suspect not assembled for the purpose of discharging a burden as opposed to raising a suspicion. The effect of this evidence is just as consistent with personal use of the van on the day in question, and without further incriminatory details any other conclusion would have been based on speculation rather than rational conclusion from inferences.[30]Accordingly I would dismiss this appeal on the second issue as well.

LORD JUSTICE BEATSON:

[31]I agree with my Lord’s conclusions on both issues and with the reasons he gives for reaching those conclusions and considering that the prosecution’s appeal should be dismissed. I add this short judgment to explain why I reject the submission made by Mr Ingham, on behalf of the prosecution that the consequence of dismissing its appeal would to impose an unduly onerous burden on it and an unachievable standard in the evidence required.[32]In the light of the very limited extent of PC Dixon’s investigation after he had stopped the respondent while driving his van (see [3] above), this is an unrealistic and unattractive submission. The consequence of the failure of PC Dixon to make any relevant inquiries of the respondent or elsewhere about the use of the van on that day is that there was no evidence of where he was going and why, where he had come from, what he had been doing since getting into the van, whether he was in the business of selling DVDs, and whether he had sold any to anybody while using the vehicle on a road. No inquiry was made as to these matters either when the vehicle was stopped or at a later time.[33]As my Lord has stated (see [24] and [28] – [29] above), had such inquiries been made, appropriate inferences could have been drawn from any failure to explain or from any explanation which was subsequently shown to be false. All that the officer did was to take the photograph of the inside of the vehicle, which suggested that it had been adapted so that it could be used for the purpose of selling DVDs. But the photograph did not, of itself, show that, at the material time, the van had been or was going to be used for an uninsured purpose, here selling DVDs. To require a police officer in these circumstances to do more than take a photograph and, for instance, to make inquiries of the sort suggested by my Lord, is not to impose an exacting standard of what is needed to show that business user was being undertaken on the day in question. For these reasons, the magistrates did not, in my judgment, err in their application of the test in R v Galbraith.

Cited in 2 later judgments