DIRECTOR OF PUBLIC PROSECUTIONS v JOHN WHITTAKER (2015)
Where a defendant charged with contravening the Road Traffic Act 1988 s.143 had produced a valid certificate of insurance, but the prosecution was maintained on the basis of alleged use of the vehicle in a way not permitted by the insurance certificate, the burden of proving that the vehicle was being used in that manner reverted to the prosecution.
The prosecution appealed by way of case stated against a magistrates’ court decision dismissing a summons alleging a contravention of the Road Traffic Act 1988 s.143 by the respondent (W).W had been driving a van when he was stopped by police. The van was found to contain a large quantity of DVDs. A police officer photographed the inside of the van, but did not ask W where he was going, what he had been doing that day since getting into the van, and whether he was in the business of selling DVDs while using the vehicle on a road. W had a valid certificate of insurance for the vehicle, restricted to social, domestic, pleasure, and motor trade use. He was charged with using a motor vehicle on the road when there was not in force in relation to that use a policy of insurance that complied with the Act. The prosecution case was that the van was being used for the business of selling DVDs on the day in question. Evidence in support of that case came from the police officer who had photographed the inside of the van, and was to the effect that the interior of the van looked like a mobile library. The magistrates accepted W’s submission of no case to answer, holding that the burden of proof was on the prosecution to prove beyond reasonable doubt that W was using the vehicle for business use, and it had failed to discharge that burden. The prosecution appealed on grounds that (i) the magistrates had erred in their conclusion on the burden of proof; (ii) irrespective of where the burden lay, the evidence as to the state of the van was such that, on the application of the test in R. v Galbraith (George Charles)  1 W.L.R. 1039, the magistrates 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.
(1) The prosecution had been brought because the police suspected that W had been using his van for the business of selling DVDs, which would take him outside the scope of his insurance certificate. Where criminal liability depended on that suspicion being well founded, as a matter of first principle, it was for the prosecution to substantiate what it asserted to be the case, DPP v Kavaz  R.T.R. 40, John v Humphreys  1 W.L.R. 325 and R. v Oliver (Frank Ephraim)  K.B. 68 considered. Where Parliament had proscribed some anti-social act, but mitigated the proscription by a defence to be raised on the civil balance by the defendant, that could be justified having regard to the social purpose, the degree to which the matters were within the knowledge of the defendant, and the proportionality of the requirement. Whether a driver had a valid certificate of insurance was something peculiarly within his own knowledge, and something that it was reasonable and proportionate to expect him to substantiate. The same did not apply to whether the driver was using the vehicle for a business purpose on the day in question while he was using the road. The obvious inquiry would have been to ask W what he was doing and what comment he had to make on the state of the van. Appropriate inferences might have been drawn from any failure to explain or any explanation subsequently shown to be false. Once a defendant had produced a valid certificate of insurance, but the prosecution was maintained on the basis that it was contended that he was using the vehicle in a way not permitted by the insurance certificate, proof of the use in question reverted to the prosecution. He who asserted the existence of the relevant conduct should prove it, unless Parliament had clearly placed the burden of proving an exemption or defence on the defendant (see paras 14-26 of judgment).
(2) The evidence of the state of the van gave rise to an inference that it was organised so that it could be used for the purpose of selling DVDs, but the issue was whether it was being so used at the material time. The state of the van alone was not enough to enable a reasonable tribunal to be sure of that issue. The effect of the evidence against W was 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, Galbraith cited (paras 27-31).