R v R

For the notification regime in the Counter-Terrorism Act 2008, a person has a “right to use” a vehicle where they have control, management or lawful operation of it. The question is fact specific. Lawful driving with the registered keeper’s consent demonstrates such a right, which must have been acquired beforehand.

The acquisition of the right triggers notification. Its timing is a factual ingredient for the prosecution to prove. Practical difficulty does not narrow clear statutory language, although it may in an appropriate case amount to a reasonable excuse. Clear and accessible notification requirements do not infringe the principle of legality; any restriction on employment is proportionate to national-security objectives.

The applicant was a registered terrorist subject to notification requirements under the Counter-Terrorism Act 2008. While working as an agency HGV driver, he was allocated refuse vehicles from his employer’s fleet at the beginning of particular shifts.

He was indicted for failures to notify information concerning those vehicles. At a preparatory hearing, HHJ Rafferty QC ruled that he acquired a right to use each allocated vehicle and that the statutory notification provisions applied. The applicant sought permission to appeal that preliminary ruling.

The central issue was whether a conditional and work-limited permission to drive an allocated vehicle amounted to a statutory right to use it, and whether the resulting notification regime was legally certain and compatible with fundamental rights.

1. Permission to appeal was refused. The proposed appeal against the preliminary ruling had no merit.

2. The phrase “a right to use” in sections 47 and 48 of the Counter-Terrorism Act 2008 was clear and unambiguous. It denotes control, management or operation of the relevant vehicle. Whether the right exists is fact specific, but a person who lawfully drives with the registered keeper’s consent demonstrates a right that must have been acquired before driving. A right may be limited to a particular occasion, purpose or future use, and may later be revoked, without ceasing to be a right to use.

3. The statutory trigger is the acquisition of that right, rather than the convenience of meeting the resulting notification duty. The prosecution must prove, by documentary or other objective evidence, when the right was acquired. If it cannot do so, the prosecution fails. If it can, the evidence fixes the notification period; the offence is continuing while the failure persists.

4. Practical difficulty in notifying the police before driving does not make the statutory scheme absurd or inapplicable. It may, depending on the facts and available working arrangements, support a defence of reasonable excuse. It does not justify disregarding the ordinary meaning of the legislation: see Williams v Central Bank of Nigeria [2014] UKSC 10.

5. The principle in R (Secretary of State for the Home Office) v Simms [2000] 2 AC 115 did not assist the applicant. The provisions were neither general nor ambiguous, and their purpose was apparent from the legislative materials. Further, even assuming that notification restricted the applicant’s chosen employment, requiring prior notification before a registered terrorist offender drove HGVs was a proportionate measure in the interests of national security under Article 8(2) of Schedule 1 to the Human Rights Act 1998.

• Court of Appeal (Criminal Division) Refused permission to appeal the preliminary ruling: [2021] EWCA Crim 35.
• Central Criminal Court HHJ Rafferty QC ruled on 22 October 2020 that the vehicle notification requirements in sections 48(4C) and 48(7) of the Counter-Terrorism Act 2008 applied to vehicles allocated to the applicant in his agency driving work.