The Director of Public Prosecutions v Whittaker

On a prosecution for using a vehicle without insurance, proving that the defendant drove on a road ordinarily shifts the burden of showing that an insurance policy existed. Where the defendant produces a valid certificate but the prosecution alleges that the particular use fell outside its terms, the prosecution must prove the unauthorised use unless Parliament has clearly imposed a burden on the defendant. The state of a vehicle may support an inference of business use, but will not necessarily prove that the vehicle was being used for that purpose at the material time. Under the Galbraith test, the evidence must permit a reasonable tribunal to be sure of the relevant use without resort to speculation.

The Director of Public Prosecutions appealed by way of case stated from the Preston and South Ribble Justices, who dismissed a summons alleging use of a motor vehicle without insurance contrary to section 143 of the Road Traffic Act 1988. The respondent had driven a van containing a large quantity of DVDs. His certificate covered social, domestic and pleasure use and motor trade use, but the prosecution alleged that he had been using the van for selling DVDs.

The justices held that, after production of the certificate, the prosecution had to prove business use and that there was no case to answer. The issues were whether the burden of proving unauthorised use reverted to the prosecution and whether the evidence was sufficient under R v Galbraith.

1. Appeal dismissed on both grounds. Once a defendant produces a valid certificate of insurance and the prosecution maintains that the vehicle was being used outside the permitted scope, proof of the relevant unauthorised use reverts to the prosecution. The defendant need not also explain the purpose for which the vehicle was being used. The prosecution must prove the conduct on which it relies unless Parliament has clearly placed the burden of proving an exemption or defence on the defendant. R v Oliver did not support the wider construction advanced by the prosecution. (paras [9]-[10], [14]-[26])
2. A reverse burden may be justified where statutory conduct is proscribed but a defence is provided, having regard to the social purpose, the defendant’s knowledge of the relevant matters and proportionality. Those considerations justified requiring proof of insurance, but not proof of the purpose for which the vehicle was being used. Appropriate inferences could instead be drawn from a failure to explain or from a subsequently falsified explanation. (paras [22]-[25])
3. The photograph showed that the van had been organised for selling DVDs, but did not establish that it was being used for that purpose on the relevant day. The prosecution had made no relevant inquiries and supplied no further incriminating evidence. Taking the evidence at its highest, a reasonable tribunal could not be sure of business use without speculation. The justices were therefore entitled to dismiss the case under R v Galbraith. Lord Justice Beatson agreed and emphasised that requiring further investigation was not an exacting evidential standard. (paras [27]-[33])

1. High Court (Administrative Court): The appeal by way of case stated from the Preston and South Ribble Justices was dismissed on both grounds.