England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		30 June 2005

1. MR JUSTICE BEAN: On 5 January 2005 Andrew Daniel Traves appeared before the West Cornwall Justices charged with three road traffic offences: driving while disqualified; driving without insurance, and using a motor vehicle without a current test certificate. The prosecution presented its case. The defendant did not give evidence, and the justices, after a further occurrence to which I shall come later, convicted the defendant on all three charges. He appeals against all three convictions by way of case stated. By direction of Collins J, I am hearing the case as a single judge, rather than it being heard by a Divisional Court.
2. Mr Brabin, on his behalf, makes two points. The first goes to all three charges; the second only to the charge of driving whilst disqualified. The point which goes to all three charges is this. At the time when he was seen by the police and stopped, Mr Traves was in the driver's seat of his Vauxhall Nova motor car, but that vehicle was being towed by another, driven by a Mr Hubbard, and being towed, moreover, by means of a rigid steel bar. It was followed for approximately three miles before it was pulled over by the officer. The question is, therefore, was Mr Traves "driving" the vehicle within the meaning of section 103(1)(b) of the Road Traffic Act 1988, or "driving" it without insurance contrary to section 143 of the same Act, or (and counsel are agreed that the different wording makes no difference) "using" it for the purposes of the provisions relating to test certificates?
3. The justices found that he was. They based that on, among other things, the evidence given by Police Constable Mooney, for the prosecution, of an interview with the defendant, the relevant part of which, as recorded in writing, was this. PC Mooney put it to Mr Traves that he had also been braking:

"TRAVES: 'I was braking yeah'.

PC MOONEY stated that Mr TRAVES had had to brake because he was going down over a steep hill and that was the only way to stop the car from running on.

TRAVES: 'Well I was assisting the towing vehicle to, so I wasn't, was relying on him to do all the braking ...'

PC MOONEY stated that in the eyes of the law Mr TRAVES had been in control of the direction and motion of the vehicle. PC MOONEY explained that he meant in that that Mr TRAVES could stop the vehicle by using its brakes, which Mr TRAVES was doing to slow the vehicle down.

MOONEY: 'Okay, is that a fair comment to say?'

TRAVES: 'Well I suppose, yeah.'"

4. The justices summarised PC Mooney's evidence as follows:

"We accepted the evidence of PC Mooney that in following the appellant for approximately 3 miles he had clearly seen him steering the vehicle and braking. His evidence was compelling and unambiguous. In interview the appellant admitted that he had been steering the vehicle and assisting further by braking. We applied the facts of the case to the case law that we have been referred to, and were satisfied beyond reasonable doubt that the vehicle was subject to the appellant's control and direction, sufficiently so, for him to be considered as 'driving' the vehicle for the purposes of this prosecution brought under section 103(1)(b) Road Traffic Act 1988."

5. It has been said in a number of cases that whether somebody is driving a car is a matter of fact and degree. It is clear, and Mr Brabin accepts, that it is possible for a driver of a towed vehicle (I use the term "driver" as being the best available noun without begging the question) to assist the person driving the towing vehicle at the very least by applying the brakes so as to reduce the forward movement of the car being towed. It is also possible, at least to some extent -- perhaps not a great deal in the case of a vehicle on a rigid tow bar -- to influence its direction by steering. In the case of MacDonagh [1974] 1 QB 448, Lord Widgery CJ said, in a passage cited and followed in the later case of Whitfield v DPP (13 November 1997):

"There are an infinite number of ways in which a person may control the movement of a motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move. Finally, as in the present case, he may be standing in the road and himself pushing the car with or without using the steering wheel to direct it. Although the word 'drive' must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language."

In the previous paragraph, Lord Widgery had said:

"The essence of driving is the use of the driver's controls in order to direct the movement, however that movement is produced."

Mr Brabin accepts, in my view quite rightly, that that sentence (which, while of obviously high authority coming from Lord Widgery, is not a statute) can be applied to braking, in which case one would say the use of the driver's controls was in order to retard movement rather than to direct it. In my judgment, the justices were well entitled to find, having regard to the evidence of PC Mooney apart from any other evidence, that the appellant was at least assisting Mr Hubbard (the driver of the towing vehicle) by applying the brakes of his own vehicle, and that that amounted to controlling, directing or retarding the movement of the vehicle for the purposes of the test laid down in the case of MacDonagh, and again in the case of Whitfield. It seems to me, therefore, that there was no error of law in that aspect of the justices' decision.

6. Turning then to the second string of Mr Brabin's bow: a discussion took place between the legal representatives of the prosecution and defence before the hearing in the Magistrates' Court, in the course of which the solicitor for the defendant informed the solicitor for the prosecution that the fact that Mr Traves was subject to disqualification at the time of the incident was not contested. It is right to point out that this was not a fixed period of disqualification. The appellant had been disqualified for three years on 2 August 2000, but that three-year period had expired. The disqualification in question was a further disqualification pending the taking of an extended driving test, so that during the period between 2 August 2003 and the taking of an extended driving test (which it is not suggested the appellant had done) he was disqualified from driving other than on provisional licence holder terms with a supervising driver.
7. The prosecution, in the course of their evidence, called evidence to show that the appellant was driving -- I have held in the first part of this ruling that that is what it amounted to -- but alas they forgot to produce the memorandum of conviction and sentence relating to the appellant's court appearance on 2 August 2000, which was necessary in order to prove that the appellant was driving while disqualified. It is not suggested that the defence solicitor admitted in open court before the magistrates that his client had been disqualified. Had he done so, then the provisions of section 10 of the Criminal Justice Act 1967 would preclude any argument on the lines before us. So the prosecution closed its case with this defect. The defence solicitor then did not call his client to give evidence, but instead submitted that there was no case to answer. The prosecution lawyer did not at this point apply to re-open the prosecution case in order to exhibit the memorandum of conviction. The justices, having heard the submission, retired to consider their decision. Some time later, and before they had returned to announce their decision, the prosecution solicitor realised what should have been done and sent a message to the justices asking them to return to court. A submission was then made that the justices should, even at this stage, permit the prosecution to re-open its case to the extent of adducing the formal evidence of the disqualification. The justices agreed to do so, received the evidence, retired for a further period and then announced that the case was found proved on this charge as well as the other two. Mr Brabin submits that they were not entitled to do so. He engagingly accepts that this point does not have substantive merit, but submits that it does nevertheless have technical merit, and indeed is irresistible.
8. In Webb v Leadbetter [1966] 1 WLR 245, one of two witnesses whom the prosecution desired to call at the hearing of an information had not arrived. The available witness was called. The prosecution case closed. The defendant gave evidence and his case closed. The justices had retired to consider their decision when they were informed that the second prosecution witness, whose car had broken down, had arrived. They returned to court and allowed the prosecution to call him. His evidence corroborated that of the first prosecution witness. The defendant was convicted. The Divisional Court (Lord Parker CJ, Winn LJ and Sachs J) held that although justices have a discretion to allow further evidence to be called in particular circumstances, the manner of exercise depends on the stage of the case. In the absence of very special circumstances, they should not allow evidence to be called after they have retired, and that such circumstances being absent, the further evidence for the prosecution had been wrongly admitted, and the appeal would be allowed and the conviction quashed.
9. Lord Parker CJ said at page 247E:

"It does seem to me that there must always be some residuary discretion in the court to allow, in particular circumstances, evidence to be called, but the manner in which that discretion is exercised must depend upon the stage of the case. If one turns to indictable offences it is perfectly clear that it has become now an established rule of law that no evidence can be called after the summing-up, and a judge who sought to exercise his discretion by allowing evidence to be called at that stage would be acting entirely wrongly and the conviction would be quashed.

Of course, the same considerations do not wholly apply in magistrates' courts, but nevertheless, it seems to this court that as a general rule and in the absence of some special circumstances, it would certainly be wholly wrong for the justices to purport to exercise a discretion to allow evidence to be called once they had retired, and indeed probably after the defence had closed their case."

10. He concluded by saying:

"So far as this case is concerned I am quite satisfied that there was only one way in which any residuary discretion in the justices could have been exercised, the prosecution having closed their case, the defence having closed their case and they having retired. In those circumstances, I think there is no option but to quash this conviction."

11. Winn LJ agreed, and so did Sachs J, adding:

"This is not one of those cases in which there were the very special circumstances to which Lord Parker CJ has referred."

That case, as it seems to me, is still good law.

12. Mr Deegan, for the respondent prosecutor, is therefore driven to argue that the justices have a discretion to decide that the circumstances were special and to allow the prosecution application on this basis. But I must say that if the circumstances of the second witness arriving late after a car breakdown, which was presumably no fault of his own, were not held by the Divisional Court to be special in Webb v Leadbetter, it is very difficult to see how the prosecution application in this case could be even arguably held to be special circumstances. In Webb v Leadbetter it might be said that to refuse to hear the prosecution witness, detained through no fault of his own, might be an even more obvious miscarriage of justice than to refuse to permit a prosecutor to rectify a technical defect which was his fault.
13. Mr Deegan also sought to say that the law has moved on since Webb v Leadbetter, which is, as he put it, rather an old authority. Old it is by some people's standards, but it remains authoritative, particularly given the eminence of the court which decided it, unless it is shown by subsequent authority to have been overruled or departed from. In the far more recent case of Jolly v the Director of Public Prosecutions, the Divisional Court (Kennedy LJ and Butterfield J) had before them a case where, again, the prosecution were allowed to produce evidence late. But in that case, unlike Webb v Leadbetter, the application was, as more often happens, made after the close of the prosecution case, but before the court (in this case a stipendiary magistrate) had retired to consider a decision. Kennedy LJ cited a number of cases. Leadbetter was cited not as a primary authority, but the critical sentence of the Lord Chief Justice's judgment was cited by reference, as quoted in a 1999 case called Antonio Lesson. Kennedy LJ concluded:

"In my judgment any trial court must recognise that it is the duty of the prosecution to call its evidence before closing its case. But it is now beyond argument that there is a general discretion to permit the calling of evidence at a later stage, which extends in a Magistrates' Court up to the time when the Bench retires."

14. Mr Deegan points out that, given the facts of Jolly v DPP, the words "up to the time when the Bench retires", insofar as they imposed what used to be called a terminus ad quem, are not necessary to the decision. That may be so. But, in my judgment, coming from Kennedy LJ in a recent case, this provides powerful support for the view that the law as set out by Lord Parker in Webb v Leadbetter is still correct.
15. Mr Deegan also drew my attention to the case of Tuck v Vehicle Inspectorate, another case with Kennedy LJ presiding, but this time Mackay J giving the leading judgment, and again another case in which the prosecution sought to recall a witness to rectify an omission in their case after a submission of no case to answer but before the justices retired. Mackay J set out a number of principles at paragraph 15 of his judgment which I accept are still good law as general principles, but they do not consider the position where the justices have retired to consider their decision before the point was raised.
16. It is also still very clearly the law in the Crown Court, as it was 40 years ago in Webb v Leadbetter, that once a jury have been sent out to consider their verdict, no evidence may be called, and the rule is very strictly enforced.
17. Taking all these authorities and practices together, it seems to me quite plain that the justices were not entitled to allow the prosecution to adduce the further evidence after they had retired to consider their verdict. Mr Brabin concedes, and I accept, that if the application had been made before they retired to consider their verdict, it would have been irresistible. At any rate, a discretion to allow it could not possibly be criticised on appeal or by way of case stated. But that is a very different case from the present one. The moment of retiring to consider the decision is a critical point, after which only very special circumstances can allow further evidence to be called. Like the Divisional Court in Webb v Leadbetter, I consider that these were not such very special circumstances.
18. Accordingly, the appeal against the conviction for driving while disqualified, albeit that its merit is only technical and not substantial, must succeed.
19. MR BRABIN: Very much obliged, my Lord.