England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13 June 2005

1. LORD JUSTICE ROSE: Mr Justice Field will give the first judgment.
2. MR JUSTICE FIELD: This is an appeal by the DPP by way of case stated from the justices sitting at Cheltenham Magistrates' Court on 14 November 2004, following dismissal of informations against the respondent alleging the following offences contrary to Schedule 2 of the Road Traffic Offenders Act 1988 and to the following provisions of the Road Traffic Act 1988: (1) driving a motor vehicle otherwise than in accordance with a licence authorising the respondent to drive a vehicle of the class in question contrary to section 87(1); (2) Using a motor vehicle on a road when there was not in force a policy of insurance in relation to that use contrary to section 143(2); and (3) failing to report an accident to the police within the prescribed time limit contrary to section 170(3) and (4).
3. The respondent has not appeared and has not been represented. He absconded following his conviction on a related charge of failing to drive and is still at large.
4. The background facts can be shortly stated. In the early hours of 21 September 2002 the police observed a white Honda motorcar being driven at speed along the Promenade in Cheltenham. The police pursued the car and observed the driver fail to comply with traffic lights, overtake other vehicles and drive at excessive speed. While going through a red light the Honda collided with an Audi. It then collided with a traffic island and came to a halt after hitting a stone wall. When the police approached, all the doors of the Honda were closed and the driver and passengers were still in the vehicle. The driver, who indisputably was the respondent, was unconscious. He was recognised by one of the officers who knew him to be Michael Hay. All four occupants of the Honda were taken to hospital.
5. The police were unable to speak to the respondent because he remained unconscious, and those treating him, citing his condition, refused a request for samples of breath and blood to test for the presence of alcohol. When the police left the hospital they requested the nursing staff to inform them when the respondent was able to speak. One of the officers returned to the hospital at 6.30 am but was told that the respondent had discharged himself. Subsequently, the police attempted to contact the respondent by contacting his previous solicitors and leaving messages at his home address but without success. The police made no attempt to request the respondent to produce his driving documents, and did not complete the proforma HO/RT/1 requiring production of driving documents within seven days.
6. At the trial it was submitted on behalf of the respondent that he had no case to answer on all of the charges, save for the dangerous driving charge. It was contended that the respondent was under no duty to produce his driving documents because he had never been asked to do so. It was also argued that the obligation on a driver to stop after an accident and to report it did not arise where the police are on the scene throughout the accident. The justices accepted these submissions. They announced their decision in these words:

"We are of the opinion that no evidence has been produced regarding the document offences, and we note that the defendant has never been requested to produce documents.

No evidence has been produced on the offences of failing to stop and report, the case has been concentrating on the allegation of Dangerous Driving. However, we note that all vehicles remained at the scene of the accident, and the police were called to the scene and attended. Nothing would have been gained by the separate reporting procedure."

The justices accordingly dismissed the three charges I have already mentioned but, having heard from the respondent on the dangerous driving charge, convicted him of that offence and adjourned sentencing to another date.

7. The two questions that have been stated for the opinion of this court are:

"(1) Where a defendant is charged with driving otherwise than in accordance with a licence and driving without insurance, and the Crown have proved that the defendant was driving a vehicle on the road, is the non-issue by the Police of a Form HO/RT/1 (requesting production of the documents) fatal to the prosecution case?

(2) Where, owing to the occurrence of an accident which results in damage or injury, a vehicle is brought to a halt, its driver is taken to hospital without exchanging details with the other party involved and later discharges himself from hospital without reporting details of the accident to the police, has the driver satisfied the requirements to stop and exchange details and to report the accident, under the Road Traffic Act 1988."

8. The relevant parts of sections 87, 143 and 170 of the Road Traffic Act 1988 read has follows:

"87(1) It is an offence for a person to drive on a road a motor vehicle of any class otherwise than in accordance with a licence authorising him to drive a motor vehicle of that class.

143(1)(a) Subject to the provisions of that Part of this Act -

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 Part of this Act.

170(1) This section applies in a case where, owing to the presence of a motor vehicle on a road, an accident occurs by which -

(a) personal injury is caused to a person other than the driver of that motor vehicle, or

(b) damage is caused -

(i) to a vehicle other than that motor vehicle or a trailer drawn by that motor vehicle, or

(2) The driver of the motor vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle.

(3) If for any reason the driver of the motor vehicle does not give his name and address under subsection (2) above, he must report the accident.

(4) A person who fails to comply with subsection (2) or (3) above is guilty of an offence."

9. It has long been the law that in prosecutions both for driving without a licence and for driving without insurance, once the prosecution have proved that the defendant drove a motor vehicle on a road, then it is for the defendant to show that he held a driving licence and that there was in force an appropriate policy of insurance, since these are matters that are peculiarly within his knowledge: see the decision of this court in John v Humphreys [1955] 1 All ER 793, which was followed in Philcox v Carberry [1960] CLR and DPP v Kavaz [1999] RTR 81.
10. It is also clear from the wording of sections 87(1) and 143(1)(a) that to establish offences constituted by those provision there is no requirement on the prosecution to prove that the driver of the vehicle was required to produce his licence or the appropriate insurance documentation whether by the Home Office proforma HO/RT/1 or otherwise: see the DPP v Kavaz already cited. Accordingly I would answer question 1 "No".
11. In the case stated the justices say that they were of the opinion that once it had been established that the defendant was using the vehicle on the road, the burden is on the defendant to prove, on the balance of probabilities, that he was covered by a current insurance certificate. They also state that they found that there was no requirement (although it is desirable) for there to have been a statutory demand to produce documents (DPP v Kavaz). It is therefore a little difficult to see why it was that they dismissed the lack of insurance and licence charges. It may be that they concluded that because the officer in the case did not know the identity of the driver the prosecution had not proved that the respondent was the driver of the car. If this was their reason, it was, with respect to them, erroneous, because they heard unchallenged evidence from one of the officers that he observed the accident and no one left the Honda before he opened the door, and when he did so he saw the person sitting in the driver's seat and that person was the respondent, whom he recognised.
12. It follows, in my view, that there is no doubt that the prosecution had laid the evidential foundation for the onus to be on the respondent to prove that he had a valid driving licence and was covered by appropriate third-party insurance. The justices accordingly erred in acceding to the no case submission and dismissing the licence and insurance charges.
13. Turning to the second question, it was held by this court in Peek v Towele [1945] 2 All ER 611, that under the forerunner of section 170(3 (section 22(2) of the Road Traffic Act 1930) the driver of a vehicle involved in an accident must report the accident to the police within the prescribed time, notwithstanding that he had not been required under the preceding subsection (subsection (2) of the 1980 Act) to give the information called for by that provision. As Tucker J observed when giving judgment:

"It would be a remarkable state of affairs if, when somebody had been involved in an accident in some lonely place where nobody has been present to observe it, he should be under no obligation to report the accident at a police station, and that the obligation should only arise in cases where there has been some bystander who asked for the particulars and where there has been a failure to comply with such requests."

14. In my opinion it makes no difference that the accident was observed by the police but they made no request for information. The subsection is plain in its terms. It contains no express exception to deal with the case where the police observed the accident but do not speak to the driver for some reason, and none stands to be implied.
15. If the information that can be required under subsection (2) is not provided, the accident must be reported in the manner and within the time prescribed by the section. I would therefore answer the second question "No", in respect of the offence constituted by section 170(3) and (4).
16. In light of my answers to the questions posed, I would set aside the dismissal of the information that related to the licence and insurance charges and the section 170(3) offence. It is not known whether the respondent could have produced a sufficient licence and an appropriate insurance policy if the justices had not accepted the submission of no case on the licence and insurance judgment. It would therefore be inappropriate to direct the justices to convict the respondent of those offences. Instead, the justices should be directed to continue to try those charges.
17. The position is different, however, in respect of the second 170(3) offence for the respondent did not dispute, nor could he have done, that he did not report the accident in conformity with that subsection. I would therefore order the justices to convict the respondent of the section 170(3) offence.
18. LORD JUSTICE ROSE: I agree.
19. Accordingly, the case will be remitted to the justices with the directions which my Lord has indicated.