England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE SULLIVAN: On 26th November 1996 at Warrington Road, Platt Bridge, in Wigan, PC Robinson was on duty in company with a Mr McGlynn of the Wigan Metropolitan Borough Council Trading Standards Department. He stopped two Ford Transit Vans. They were then examined by Mr McGlynn and other Trading Standards Officers.

2. The first van, registration number D512 RMB, was driven by Mr Gerald Crute of 17 Haringay Avenue, Liverpool. The second van, registration number D693 RCM, was driven by Mr Michael Harrison of 20 Chestnut Grove, Wavertree, Liverpool. Both of the vans were loaded with sacks of coal. In response to questions put by PC Robinson at the scene the two drivers indicated what their destinations were and the purpose of their journeys. In particular, Mr Harrison indicated to PC Robinson that the owner of the vehicle he was driving was one James Jones of 72 Tiverton Street, Wavertree, Liverpool 15. He gave his own address as 20 Chestnut Grove, Wavertree. He indicated that part of the coal loaded within his vehicle belonged to James Jones. Apparently, the police officer gained the overall impression that the vehicle was being used by James Jones.

3. The vehicles and their load having been checked by the Trading Standards Officers, the drivers were issued with HORT1 documents by PC Robinson requiring the production of driving documents to a local police station. Inquiries were made of the DVLA, which, on 16th December 1996, revealed that the registered keeper of the vehicle that was being driven by Mr Harrison was one James Jones of 20 Chestnut Grove, Wavertree, Liverpool, L15 8HS. Further to the requests for driving documents, a certificate of motor insurance was produced in relation to the van with the registration number D693 RCM. The name of the policy holder was given as James Jones, but no address was given. The policy was for social, domestic or pleasure purposes.

4. On 14th April 1997 a summons was issued alleging that James Jones of 72 Tiverton Street, Wavertree, Liverpool 15 had used the vehicle driven by Mr Harrison on 26th November 1996 when there was not in force in relation to that use such a policy or insurance or such a security in respect of third party risks as complied with the requirements of Part VI of the Road Traffic Act 1988, contrary to section 143(2) of the Road Traffic Act 1988, and Schedule 2 to the Road Traffic Offenders Act 1988. In short, the allegation was that the vehicle was being used by James Jones for trade or business purposes when his insurance policy did not cover use for such purposes.

5. On 21st May 1997 a summons was issued for a like allegation in respect of the van that was being driven by Mr Crute. On 7th October 1997 both of these matters came before the Magistrates for trial. We are told that the Appellant answered to the summons and in answering gave his address as 72 Tiverton Street, Wavertree, Liverpool as per the address which was stated on the summons. Apart from pleading not guilty, that was all he said at the hearing. The allegation relating to the driving of Mr Crute was discontinued with an Order for costs in his favour. So far as the van driven by Mr Harrison was concerned, the matter proceeded. The Appellant was convicted and fined £600, had his licence endorsed with seven penalty points, and was ordered to pay the prosecution's costs of £135.

6. In their Case Stated the Justices found the following facts:

7. They then summarised the evidence of PC Robinson, who was the only witness called by the prosecution. They heard and rejected a submission of no case to answer. That submission having been rejected, the defence called no evidence. The Justices say, in paragraph 8:

8. They posed this question for the opinion of this court:

9. Mr Mitchell, for the Appellant, submits that the first question for the consideration of this court should be:

10. Does the test concerning "user" of motor vehicle as laid down in West Yorkshire Trading Standards Service v Lex Vehicle Leasing Limited apply to prosecutions for use of the vehicle without insurance cover?

11. Having answered that question, the second question should then be:

12. Was there sufficient evidence before the court to justify the finding of fact that the Appellant was the user of the vehicle?

13. Since it is implicit that in reaching their findings of fact the Magistrates must be properly advised as to the law, it is reasonable to take Mr Mitchell's first question as the starting point. In those circumstances, it is unnecessary to deal with his request for this matter to be remitted to the Magistrates to enable them to reformulate the questions for the opinion of this court.

14. Paragraph (a) of section 143(1) of the 1988 Act provides that a person must not use a vehicle on a road without there being in force an appropriate certificate of insurance in relation to his use of the vehicle. Paragraph (b) of section 143(1) provides that a person must not "cause or permit" any other person to use a vehicle on a road without there being in force an appropriate certificate of insurance in relation to that other person's use of the vehicle. Thus there are distinct offences of using, and of causing or permitting another to use a vehicle on a road without there being appropriate insurance cover. The summons in this case alleged that the Appellant had used the van in question.

15. The Justices referred to the Lex Vehicle Leasing Limited case, as I have indicated, in paragraph 2H of their statement of the case and distinguished it. In that case McCowan LJ agreed with the judgment of Dyson J, who said at page 74G:

16. He then reviewed a number of authorities, beginning with Carmichael & Sons Ltd v Cottle [1971] RTR 11. I find it unnecessary to set out the numerous citations because Dyson J summarised the effect of this line of authorities, on page 76E of the judgment in Lex, in these terms:

17. Mr Russell, on behalf of the Respondents, submits that this line of authorities is confined, essentially, to construction and use cases, and does not extend to offences concerned with using a vehicle without proper insurance. I am unable to accept that submission for two reasons. First, in one of the authorities cited by Dyson J, Crawford v Haughton [1972] RTR 125 , one of the convictions which was quashed by the Divisional Court was a conviction for using a vehicle, which had been adapted for stock car racing, without insurance. Mr Mitchell submits that that case is on all fours with this case. In that case the defendant did not give evidence, but he was present and he admitted that he was the owner of the vehicle. The Divisional Court allowed his appeal because there was no evidence that the actual driver of the vehicle was employed by him.

18. I agree with that submission of Mr Mitchell.

19. Secondly, in another of the authorities, Windle v Dunning and Son Ltd [1968] 2 All ER 46, Lord Parker CJ said this at page 48:

20. Normally "using" is applicable to the actual

21. I entirely agree with that, and in my judgment, 'using' when used in connexion with causing and permitting has a restricted meaning."

22. In my judgment, that reasoning is not confined to construction and use cases.

23. Mr Russell submitted that there is a presumption that the owner of a vehicle is the user of it. He cites a number of authorities in support of that proposition. I find it unnecessary to set out those authorities because, in my judgment, they are distinguishable in that there the offence of "using" is not found together with an alternative offence of causing or permitting something to be used. I, therefore, have no doubt that that the answer to Mr Mitchell's first question is: "Yes". It follows that he is correct to submit that in this case the prosecution had to prove on 26th November 1996: (i) that the James Jones who answered the summons was the owner of the van; (ii) that Mr Harrison, the driver, was employed by him under a contract of employment; and (iii) that Mr Harrison, so employed, was driving on James Jones' business.

24. Whilst it may be presumed that the registered keeper of the vehicle, James Jones of 20 Chestnut Grove, Wavertree, was the owner of the vehicle in the absence of any evidence to the contrary, what admissible evidence was there that he was the same James Jones of 72 Tiverton Street, Wavertree, who answered to the summons? I do not see how PC Robinson's evidence of what Mr Harrison said to him, as to the ownership of the vehicle or the coal in it, could be admissible against the Appellant. Apparently, there was objection to this evidence being admitted, but notwithstanding that objection the Magistrates admitted the evidence and summarised it in paragraph 3 of the statement of case. Mr Russell concedes that the evidence was not admissible, but he points to paragraph I of the statement of case, which I have already read. That states that the Magistrates found as a fact that the vehicle owner's address given by Michael Harrison to Constable Robinson (that is to say 20 Chestnut Grove) was the same as that announced by James Jones in court.

25. There is a clear ambiguity here. The Appellant had been summoned as James Jones of 72 Tiverton Street, and one would expect him to answer to that. Mr Mitchell submits that is precisely what happened. The Magistrates listed the evidence on which they relied in making their findings of fact in paragraph (3) of the case. All that is set out in paragraph (3) is the evidence of PC Robinson, who was the only witness called, as I have indicated. It is not suggested that James Jones, who answered to the summons, said that he either lived or worked at 20 Chestnut Grove. James Jones is not an uncommon name, and unless he said in the witness box that he had two addresses when he was simply pleading not guilty in answer to the summons (which is unlikely), there was no admissible evidence to show that the James Jones at the two addresses (that is to say, the one on the summons and one on the DVLA document) were one and the same person.

26. The question, therefore, remains open because of the way in which finding of fact I is framed, having no apparent basis in the remainder of the case as stated. Even if there was evidence that the two James Joneses were one and the same person, I do not see how it is possible to infer from the admissible evidence that Mr Harrison was not merely employed by the Appellant under a contract of service, but he was also on the defendant's business at the relevant time. There was simply no evidence as to the nature of the Appellant's business. I agree with Mr Russell's submission that since the vehicle was loaded with sacks of coal, it was certainly possible to infer that it was being used by the driver, Mr Harrison, for the purposes of a trade or business and not for social domestic or pleasure purposes. Upon the premise (which I do not accept) that there was evidence from which one could conclude that the Appellant was the James Jones of 20 Chestnut Grove named in the DVLA document as the registered keeper of the vehicle, one could properly infer that he was also the owner of the van. So his van was being driven by Mr Harrison for business purposes; that much would be clear.

27. Where is the evidence that Mr Harrison was employed by the defendant or that the business purposes were the defendant's and not Harrison's? Once one accepts, as Mr Russell does, that PC Robinson's account of what Mr Harrison told him is not admissible as against the defendant, there is, in my view, only one answer to that question: there was no such evidence. Mr Russell submits that the Magistrates could properly draw the inference that the driver of the vehicle was the servant or agent of the owner, and if they could properly draw that inference, then it would follow that it was also a reasonable inference that the van was being used for the Appellant's business purposes.

28. I do not see that it is possible to infer from the mere fact that someone is driving an owner's van for business purposes that the driver is employed as the servant or agent of the owner. The driver may be self-employed; he may simply be a friend or a colleague who was driving the van with the owner's permission. In the absence of any evidence as to the nature of the owner's business, it is quite impossible to infer that the business purposes are those of the owner rather than those of the driver or of some other person for whom the driver is acting.

29. For those reasons, I would answer the question posed by the Magistrates: "No". I, therefore, would allow this appeal.

30. LORD JUSTICE ROSE: I agree. The appeal is, therefore, allowed. Do you want to say anything about the costs or not?

31. MR MITCHELL: My Lordship, yes. I make an application for costs.

32. LORD JUSTICE ROSE: Are you on legal aid?

33. LORD JUSTICE ROSE: Can you resist that, Mr Russell?

34. MR RUSSELL: I would ask the court to consider making an Order from Central Funds rather than going to the Respondents, the Crown Prosecution Service.

35. LORD JUSTICE ROSE: That may well be right, but why?

36. MR RUSSELL: Unless it is felt that the Crown has behaved improperly in resisting the appeal.

37. LORD JUSTICE ROSE: We shall make an Order in the Appellant's favour for costs to be paid out of Central Funds.

38. MR MITCHELL: Could I ask your Lordships that it be for this hearing and the hearing below, and could I invite your Lordships to direct that this case be remitted to the Magistrates' Court with at direction to acquit?

39. LORD JUSTICE ROSE: Do we have to do that? We have quashed the conviction. I do not think the question of remission arises. Do we have power in relation to costs below?

40. MR MITCHELL: Yes, you do, your Lordship.

41. LORD JUSTICE ROSE: I imagine there must be a statutory power.

42. MR MITCHELL: Could I tempt faith, your Lordships, and take a copy of Stones from you so that I can look up the reference that I have just cited?

43. LORD JUSTICE ROSE: I am sure that we have the power and, therefore, we shall make an Order that the Appellant's costs here and below to be paid from Central Funds.