Reader v Bunyard [1987]
- Reported: [1987] 85 CR. APP. R. 185; [1987] R.T.R. 406
- Year: 1987
FACTS:-
The Defendant who was disqualified for holding or obtaining a driving licence was sitting in the driver’s seat and steering a vehicle which was being towed by another vehicle. The vehicles were connected by a non-rigid means of towing, which was a type of chain. The towed vehicle had no engine or gear-box although the brakes and headlights worked.
It was contended that the vehicle had ceased to be mechanically propelled and if that was correct he could not be convicted of the two offences.
The Defendant was charged with driving whilst disqualified under s.99(b) of the Road Traffic Act 1972 and with using an uninsured motor vehicle on a road under s.143(1) of the Road Traffic Act 1972. The evidence before the justices was uncertain whether the vehicle was to be scrapped, dismantled for spare parts or reconstructed with spare parts from another vehicle.
The justices convicted the Defendant on both charges on the ground that he had not discharged the burden of proving on the balance of probabilities that the intended use of the vehicle was such that it had ceased to be a mechanically propelled vehicle. The justices ordered the defendant to be discharged for a period of two years subject to the condition that during that period he commits no further offence. They ordered particulars of such conviction to be endorsed on any driving licence held by the defendant, together with six points under s.19(1) of the Transport Act 1981.
The Defendant appealed against the conviction.
HELD:-
The question for the opinion of the court was whether a finding of uncertainty as to future use of the vehicle was sufficient to negative a defence based on the balance of probabilities.
Croom Johnson LJ found that there had been numerous cases on whether or not vehicles have or have not ceased to be mechanically propelled. The test that had been used for a long time to establish whether a vehicle is a vehicle was in Floyd v Bush [1953] 1 WLR 242. Lord Goddard CJ established the test that if you have a vehicle which is by appearance and construction and to all intents and purposes a motor car, or vehicle it is to be taken to be intended or adapted for use on roads, and the use to which it is being put at a given time is immaterial.
Croom Johnson LJ also looked at McEachran v Hurst [1978] RTR 462 which reinforced the construction test. There have been cases in which cars that have not been capable of running on the road in the ordinary way have been found on the road, either being used or standing unlicensed for excise purposes and convictions have resulted because they had not passed the point of no return where the construction test no longer validly applied. Croom Johnson compared this case to Smart v Allen [1963] 1 QB 291 where the vehicle had gone past the point of no return and could not be regarded as a mechanically propelled vehicle any longer.
Croom Johnson LJ found the justices had been left in a state of uncertainty because they regarded the burden of proving that the motor vehicle had gone past the point of no return as being on the Defendant. Croom found that as this was a criminal prosecution the onus of proof in a criminal prosecution was on the prosecution from start to finish (with the exception where it is expressed in a statute). This approach followed the approach of Glidewell LJ in Chief Constable of Avon and Somerset Constabulary v F (A Juvenile) [1987] RTR 378 where it was held the onus of proof was on the prosecutor.
Croom Johnson stated that if the justices had simply found that fact and left it there that would have probably been sufficient for the purposes of the prosecutor. However they proceeded to convict expressly upon the basis that the defendant had a burden of proof which he had not discharged. In those circumstances, what the justices did was to misdirect themselves in law. That was a misdirection on a procedural matter, which was an important matter and most material to the ultimate conclusions of fact. Croom Johnson concluded and took the view that as a result of the error in law on the onus of proof, the correct course in this case is that the case was to go back to the justices. A re trial could not be ordered because the justices had concluded the hearing of the evidence and they have imposed convictions on the basis upon which they proceeded. Croom Johnson allowed the appeal.
Peter Pain J agreed with Croom Johnson LJ. Pain J held that if the matter had been fully and properly gone into, it may well have been that the justices, applying the burden of proof, which was on the prosecutor, in the proper way they may have been able to find facts which would have justified a conviction. Pain J found in this case they did not. They misdirected themselves fundamentally in a matter of law and simply did not make the findings which were necessary for a firm decision on which a conviction could be bases.
The appeal was allowed and the case was remitted to the justices with a direction to acquit.
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