R v Phipps 1970 and R. V Mcgill [1970]

FACTS:-

The Defendant was known as M and with the consent of the car’s owner, borrowed it for a particular purpose on one evening, the owner had agreed to lend the car only on the express condition that it was returned directly afterwards. The Defendant did not return the car directly afterwards and subsequently drove it for a different purpose, the car not being returned until later. M did go to the station, but missed the train and used the car to go to Hastings with Phipps as his passenger.  The car was then returned three days later.

The Defendant was charged with contravening s.217(1) of the Road Traffic Act 1960, as amended, in taking and driving away the car without the owner’s consent or other lawful authority.  The Defendant raised a defence under s.217(2), but there was evidence that he had no reason to think that the owner would approve of the subsequent use of the car. The jury were directed that, as from the time the Defendant decided not to return the car on the evening and drove it off.  Then as a matter of law and common sense, if he did not have the owner’s permission, the Defendant took and drove it away in contravention of s.217(1), but that he was not guilty if he reasonably believed that if he had asked, the owner would have agreed in all the circumstances to the car being kept for the extra period until it was returned.

The Defendant was convicted.

s.217 of the Road Traffic Act 1960 provides:

‘(1) A person who takes and drives away a motor vehicle without having either the consent of the owner thereof or other lawful authority or, knowing that a motor vehicle has been so taken, drives it or allows himself to be carried in or on it without such consent or authority shall (subject to the next following subsection) be liable’ [to penalty] ‘… (2) If on proceedings under this section on indictment the jury … are satisfied that the accused acted in the reasonable belief that he had lawful authority, or in the reasonable belief that the owner would, in the circumstances of the case, have given his consent if he had been asked therefor, the accused shall not be liable to be convicted of the offence’.

Phipp’s as a passenger in the car, was convicted as he knew the car had been taken without the owner’s consent.

The Defendant’s appealed against the sentence.

HELD:-

The question for appeal was that could it be said that M was guilty of the offence of taking and driving away the car because afterwards he failed to return it at the appropriate time and continued using it without consent or authority?  The same point arose for Phipps as a passenger being carried in the vehicle.

The justices took the view that the direction of the Common Sergeant was perfectly proper and accurate. On the facts there was really an overwhelming case from the time the Defendant drove the car away to Hastings that following day, and he had no reason whatever to think that the owner would approve of what he was doing and he really knew very well that he would have objected.

So far as Phipps was concerned, he was a passenger in the car, but the Justices took the view, that it was a proper direction with regard to his part in the matter and there was ample evidence for the jury to convict him of travelling as a passenger in that car knowing it had been taken without the owner’s consent.

The Justices held that the way the matter was put by the Common Sergeant was perfectly accurate as supported by the decision of the Court of Criminal Appeal in Reg. v Wibberley [1966] 2 QB 214.  There was ample evidence to support conviction in both cases.

The appeals with regard to the conviction were dismissed.  The Justices’ rejected the contention, that the jury had been properly and accurately directed and that, there was ample evidence to support the conviction thus justifying the dismissal.

Related posts:

1. McKnight v Davies [1974]
2. R v Wibberley (Glen Merrie) [1966]
3. B (a Minor) v Knight 1981
4. Mowe v Perraton [1952]