Director of Public Prosecutions v Barker

A person disqualified from driving until passing an extended test may rely on the statutory exemption only if he holds a provisional licence and complies with its conditions. The exemption is a defence, so the defendant bears the burden of proving it under Magistrates' Courts Act 1980, section 101. Once driving during the disqualification is proved, the prosecution need not prove the absence of a licence or non-compliance with its conditions.

The Director of Public Prosecutions appealed by way of case stated from the decision of the Avon and Somerset Justices. The Justices accepted that Martin Barker had driven while disqualified until passing an extended driving test, but dismissed the information because they considered that the prosecution had to prove that he was not entitled to the statutory exemption for provisional licence holders. The central issue was whether the defendant or prosecution bore that burden.

1. Appeal allowed. The matter was remitted to the Justices with a direction to convict.
2. Section 36 of the Road Traffic Offenders Act 1988 permits disqualification until the required test is passed. Section 37(3) gives such a person a limited entitlement to obtain and hold a provisional licence and drive in accordance with its conditions.
3. Following Scott v Jelf [1974] RTR 256, the exemption applies only where the disqualified driver holds a provisional licence and complies with its conditions. Driving otherwise removes the protection of the exemption and engages section 103 of the Road Traffic Act 1988.
4. The exemption is a defence relied on by the defendant. Section 101 of the Magistrates' Courts Act 1980 therefore places the burden of proving it on the defendant, including proving both the existence of a provisional licence and compliance with its conditions.
5. The allocation of the burden was proportionate because the relevant facts were particularly within the defendant's knowledge. Once the Justices found that Barker was driving and no evidence established the exemption, they should have convicted.

• High Court (Administrative Court): allowed the appeal by case stated from the decision of the Avon and Somerset Justices and directed conviction.