Giving judgment LORD JUSTICE GLlDEWELL said that taking a vehicle without consent and allowing oneself to be carried in a vehicle taken without consent were separate and distinct offences and had to be itemised as such. But they were all part and parcel of an offence committed jointly. The question was whether, where one person was charged with driving the vehicle and the other with allowing himself to be carried in it.
They were jointly charged. In common usage "jointly charged" did mean that defendants were charged together in the same information or indictment. However, the situation in relation to motor vehicles was separate and distinct because, inevitably, only one person could drive a vehicle at any one time.
In his Lordship's judgment, it was quite clear that if two people were charged, one with driving a vehicle taken without consent and the other with allowing himself to be carried in such a vehicle, arising out of the same offence although each had committed different parts of it, they were properly to be considered as being jointly charged.
Usually the term "driver" will cause no problems, however what is not so clear cut is the term "Allows himself to be carried". Some of the cases were decided under the old law known to generations as TDA, "Taking and driving away".
In R v Stally [1960] Crim. L R 199 W drove a motor van away from where it had been parked by the owner, and later in the night W and S used the van to make a number of journeys. S and W were each charged, with TDA. W pleaded guilty. S pleaded not guilty.
Held, that if S had taken no part in the taking of the van, but had merely got into it subsequently, although he knew that W had no permission to drive it, he would not have been guilty of TDA; that the summing-up amounted to a misdirection in law; and that the conviction must be quashed.
There was no evidence that the passenger was a party or knew of the "taking".
Ross v Rivenall [1959] Crim L R 589. The defendant was charged with TDA. The vehicle was left by the owner locked and without the ignition key. There was sufficient petrol to travel six miles. The vehicle was found six miles away stranded with four men in it, one of whom, the the defendant was lolling in the back with his feet outstretched. No ignition key was found but the lights were on and clearly someone had been tampering with the car.
The defendant said, "A bloke stopped me and asked me if I wanted a lift, so I got in." The magistrates convicted him on both charges, but on appeal the Recorder took the point that there was no prima facie case made out that the defendant was acting in concert with the driver or other people in the car.
The prosecution appealed. Held, allowing the appeal, a prima facie case of association between the defendant and the driver of the car was made out.
In D (an Infant) v Parsons [1960] Crim L R 711. A motor cycle was taken and driven away without the consent of the owner. Later that same day F was seen driving the motor cycle. He was carrying D a pillion passenger. F and D were both aged fifteen. When questioned by the police, D said he knew nothing about the motor cycle being stolen. Both were charged with TDA. F pleaded guilty. D pleaded not guilty. D gave evidence that F had told him that he (F) was the owner of the motor cycle, and that F had offered him a ride. D was convicted; and his appeal against conviction was dismissed.
Held, allowing the appeal, that although a jury might infer, from the position in which D was found, that he was a party to the original taking, the mere fact that he was found in such a position did not of itself prove that he was such a party; and, in the present case, there was evidence neither of a joint enterprise nor that D had been a party to the original taking; that D had been wrongly convicted of the offence of TDA.
In R v Miller [1976] Crim L R 147 the accused boarded a launch knowing it had been taken without authority and anticipating a journey on it, but it was not moved whilst he was on it. Although he was convicted of being carried on the launch knowing it had been taken without authority, he contended that "carried" implied some movement. The Court of Appeal allowed his appeal, agreeing with his submission and confirming the decision in Bogacki 137 JP 676 that "carrying" implied movement.
In R v Diggin (1981) 72 Cr.App.R. 204 D was charged with TWOC. (carried). The car had been taken on June 18, 1978, by D's brother E Diggin, and one Z. They had pleaded guilty at the magistrates' court to TWOC. They collected D, having "taken" the car. D's defence was he thought it was Z's car, which was of the same make and year. They were then seen getting into the car by police officers, and were arrested before the vehicle moved. D asserted that it was only when the police approached that he learnt the vehicle was taken without consent.
At the trial, the judge directed the jury that such an assertion revealed no defence because the offence was committed by "allowing" oneself to be carried and not by "being carried" so the offence was committed before the ignition switch was turned.
The Court of Appeal held that this decision was wrong, and the conviction was quashed. There must be some movement for someone to be carried. They applied Miller [1976] Crim L R 147
In Boldizar v Knight [1980] Crim.L.R. 653the defendant met a man who gave him a lift in a van. During the course of the drive the conversation revealed that the man was driving the van without the consent of the owner. He pleaded guilty to, "allowing himself to be carried", but was found guilty of using to vehicle without insurance. It was held, allowing the appeal on the insurance matter that the defendant was merely given a lift during the course of the driver's use of the vehicle, there was no joint enterprise. He was under a duty to require the driver to set him down as soon as he discovered that the van was being driven without consent.
Rob Jerrard