DPP v Barker
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS,MR JUSTICE SILBER |
| Judgment Date | 19 October 2004 |
| Neutral Citation | [2004] EWHC 2502 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 October 2004 |
| Docket Number | CO/3038/2004 |
[2004] EWHC 2502 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Collins
Mr Justice Silber
CO/3038/2004
MR M GALLOWAY (instructed by Crown Prosecution Service) appeared on behalf of the CLAIMANT
MR J SPRUNKS (instructed by Ash Clifford) appeared on behalf of the DEFENDANT
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.
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.
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.
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.
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...
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