Traves, R (on the application of) v Director of Public Prosecutions

Whether a person is driving a vehicle is a question of fact and degree. Driving may include using the vehicle’s controls to steer, brake, retard or otherwise control its movement, even where the vehicle is being towed. In a magistrates’ court, the prosecution generally has discretion to call further evidence until the justices retire to consider their decision. After retirement, further evidence may be admitted only in very special circumstances. A prosecutor’s failure to produce formal proof of an essential element does not ordinarily constitute such circumstances.

The claimant appealed by way of case stated against convictions for driving while disqualified, driving without insurance and using a motor vehicle without a current test certificate. He had been seated in a car which was being towed by another vehicle. The justices found that he had steered and braked the towed vehicle and therefore was driving it.

The prosecution had also failed initially to produce the memorandum of conviction and sentence necessary to prove the claimant’s disqualification. After the defence submission of no case, and after the justices had retired, the prosecution was permitted to adduce that evidence. The central issues were whether the claimant was driving or using the vehicle, and whether the justices had been entitled to reopen the prosecution case after retirement.

1. The appeal succeeded in relation to the conviction for driving while disqualified. The other convictions were not disturbed.

2. Whether a person is driving is a matter of fact and degree. The essence of driving is the use of the driver’s controls to direct movement, however that movement is produced. That principle, stated in MacDonagh [1974] 1 QB 448 and applied in Whitfield v DPP, extends to using the brakes to retard movement. The justices were entitled to find that steering and braking a vehicle being towed amounted to controlling, directing or retarding its movement.

3. Webb v Leadbetter [1966] 1 WLR 245 remained good law. Although magistrates have a residual discretion to admit further evidence, its exercise depends on the stage reached in the proceedings. Once the justices have retired to consider their decision, further evidence should not be admitted absent very special circumstances.

4. Jolly v the Director of Public Prosecutions supported the distinction between applications made before retirement and those made afterwards. Tuck v Vehicle Inspectorate stated general principles which remained applicable, but did not address the critical question arising after retirement.

5. The late discovery of the prosecution’s failure to prove the disqualification was not a very special circumstance. The evidence was therefore wrongly admitted and the conviction for driving while disqualified was quashed.

• West Cornwall Justices: convicted the claimant of driving while disqualified, driving without insurance and using a motor vehicle without a current test certificate.
• High Court (Administrative Court): allowed the case-stated appeal in relation to the disqualification conviction and upheld the remaining convictions.