B (a Minor) v Knight 1981

FACTS:-

The defendant entered as a passenger in a van which was being driven by another who had taken the van without the owner’s consent.  The Defendant was not aware that the owner of the van did not provide consent and as a consequence the van was driven without insurance cover. 

During the course of the journey the Defendant learnt that the driver of the van took it without the consent of the owner and the van was being driven without any insurance cover.  On learning this the Defendant did not ask to be allowed to get out of the vehicle. 

The Defendant was convicted by justices of using the van uninsured in contravention of section 143(1) of the Road Traffic Act 1972. 

Section 143(1) of the Road Traffic Act:

‘…it shall not be lawful for a person to use … a motor vehicle on a road unless there is in force in relation to the use of the vehicle … a policy of insurance … in respect of third party risks … and if a person acts in contravention of this section he shall be guilty of an offence.’

The defendant appealed against his conviction. 

HELD:-

The appeal was allowed.  It was held that a passenger in a vehicle who had no power of control over its driver, did not use the vehicle within s.143(1) Road Traffic Act 1972 and did not aid and abet uninsured use of a vehicle merely by letting himself be driven, even if he knew of the lack of insurance and this was the reason the conviction and appeal was quashed. 

The issue for the court was ‘Can a passenger be said to ‘use’ the vehicle?’  The judgement referred to Wilkinson’s Road Traffic Offences 9^th ed (1977).  Wilkinson which explained:

“Use” under s.143 means that there must be an element of controlling, managing and operating the vehicle as a vehicle and the term “use” does not include the relationship of a passenger to a vehicle or part of it (Brown v Roberts [1963] 2 All ER 263).  An owner sitting by the driver would normally retain control of his vehicle, (Cobb v Williams [1973] RTR 113)…But passengers who had no power of control over the driver would not be users under s.143 and … would not aid and abet his uninsured use merely by letting themselves be driven. 

Donaldson LJ agreed with Wilkinson subject to emphasis being given to the word merely.  Donaldson J found the justices were wrong to convict and set the conviction aside. 

Comyn J agreed with Donaldson.  The use of the vehicle had begun by the driver before the defendant had become a passenger.  Comyn described the defendant as an entirely innocent bystander when entering the van. 

The appeal was allowed and the conviction was quashed.  There was an order for payment was out of central funds of costs of prosecutor and £33.50 costs of defendant on appeal.  There was legal aid taxation of defendants costs.

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