Mills v Director of Public Prosecutions

The prosecution must prove every essential element of an offence to the criminal standard by admissible evidence. A defendant’s silence cannot establish an essential fact where the statutory conditions for drawing an adverse inference are absent. Previous convictions do not prove disqualification unless they contain evidence of the relevant disqualification. Nor may proof be supplied by inferring agreement from the procedural history or from the absence of a positive issue at trial. Formal admissions procedures exist to avoid uncertainty about what was agreed.

The appellant was convicted by Ealing Justices of driving whilst disqualified and driving without insurance. The prosecution relied on previous convictions, the conduct of the proceedings, and the appellant’s failure to answer an interview question about an earlier disqualification. No certificate of disqualification was produced, and there was no formal admission.

On an appeal by way of case stated, the court considered whether the conviction for driving whilst disqualified was justified by the evidence and by the way the case had been managed.

1. Appeal allowed. The justices were not entitled to convict on the evidence before them. The prosecution always had to prove that the appellant was disqualified on the material date.
2. Following the principles identified in Pattison v Director of Public Prosecutions [2005] EWHC 2938 (Admin), disqualification was an essential element of the offence and could be proved by any admissible means, including an informal admission. No such admission was established here.
3. The previous convictions did not specify any period of disqualification. They therefore did not prove that the appellant was disqualified on 30 October 2006. The justices could not rely on the fact that disqualification had apparently not been raised as a live issue at earlier hearings. An agreement as to facts could not safely be inferred from procedural conduct, particularly where the formal admissions procedure had not been used.
4. It was wholly inappropriate to draw an adverse inference from the appellant’s failure to answer the interview question. He did not subsequently rely on any fact or matter which created the statutory opportunity for such an inference under section 34.
5. The question stated by the justices was answered in the negative. The conviction could not stand on the material relied upon. Costs were ordered to be assessed if not agreed.

• High Court (Administrative Court): appeal by way of case stated allowed. The Ealing Justices’ conviction for driving whilst disqualified was set aside.