R v Wibberley (Glen Merrie) [1966]

FACTS:-

The Defendant was employed by Hutchinson to drive a Ford truck owned by Mr Hutchinson and his instructions were that, at the end of his day’s work, he should leave the truck in one of two yards at Winchester. Mr Hutchinson, however, would have made no complaints if the Defendant had left the vehicle after work outside his house and had taken it back the next morning. The Defendant finished work at 5pm but instead of leaving the truck in one of the yards he left it outside his own house. Thereafter he went into his house, watched the television, had a meal and then about 7pm he drove the truck to Chandlers Ford having first been to Southampton.

The Defendant was charged and convicted under section 217 of the Road Traffic Act 1960 for taking and driving away the vehicle without the consent of Mr Hutchinson or any other lawful authority. Section 217 states;

“A person who takes away a motor vehicle without having either the consent of the owner thereof or other lawful authority… shall [be guilty of an offence]”

The Defendant now appeals the conviction, pursuant to a certificate under section 3 (b) of the Criminal Appeal Act 1907, in the Court of Criminal Appeal before Chief Justice Lord Parker, Justice Asworth and Widgery JJ.

HELD:-

The real issue of the case was whether a person who is in lawful possession of his employer’s vehicle can “take away and drive away” in the sense that that phrase is used in section 217 of the Road Traffic Act 1960.

Miss O’Donoghue on behalf of the Defendant submitted that this could not be the case. If the owner of chattels has given a possessory right to someone else that person may bring an action for conversion whether had the actual possession or not. The Court of Criminal Appeal has discouraged attempts to use the statutory provision to deal with conduct outside the contemplation of that provision, in Mowe v Perratoni said that the section (section 217) was intended to deal with those who took motor cars which did not belong to them, drove them away and then abandoned them. Strict construction requires that where there is reasonable doubt as to the meaning of a statutory provision, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.

John Spokes for the prosecution submits that the Defendant was fully aware when he was setting out that he was on an unlawful journey. In the course of his evidence the Defendant even stated that;

“Mr Hutchinson would have taken a dim view and would have told me to leave it in the yard in future”

Mowe v Perraton laid down that if during working hours a servant went on an escapade journey of his own, there could be no taking and driving away. The prosecution are saying that at 7 pm the Defendant took the lorry in a way which was quite unconnected with his employment.

Justice Asworth

The court found in favour of the Claimant, on the facts there was a taking by the Defendant when he drove the vehicle away from the house at 7 pm, just as there would have been if he had left it in one of Mr Hutchinson’s yard after the day’s work and had gone back after an interval and had driven it away.

That there was a distinction between, on one hand, deviation from employment during working hours when the driver still intended to carry out his instructions to drive the vehicle to its garage and, on the other hand, a taking of the vehicle after working hours, after an interruption in time and when driver did not intend to drive the vehicle to its garage; and although the defendant had custody of the truck when it was outside his house that did not prevent his action in driving it away for his own purposes after working hours from being in law a taking.

Lord Parker and Widgery JJ both agreed with Justice Asworth that the appeal should be dismissed.

Related posts:

1. Mowe v Perraton [1952]
2. McKnight v Davies [1974]
3. Smith v Stages [1989]