Secretary of State for Transport V. Richards (1998) JP 682 QBD
The Statute
s.29(1) of the 1994 Act provides:
"If a person uses or keeps on a public road a vehicle not being an exempt vehicle which is unlicensed he is guilty of an offence."
An exempt vehicle, for these purposes, is defined by para.22 of sch.2 of the 1994 Act. That reads:
"A vehicle is an exempt vehicle when it is being used
solely for the purpose of -
(a)submitting it (by previous arrangement for a specified date) for a compulsory test, or
(b)bringing it away from a compulsory test."
For certain vehicles it is necessary for a current MOT test certificate to be provided before an excise licence can be bought. Accordingly, anyone seeking to obtain a vehicle excise licence must first obtain an MOT test certificate if a current one is not in existence. Accordingly, the statutory exception is provided to enable an MOT test certificate to be obtained so that the owner can then go on and buy a vehicle excise licence.
Burden of Proof
It is provided by s.53; for the purpose of exemption is upon he or she who is attempting to show it. Section 53 (burden of proof).
"Where in any proceedings for an offence under s.29... any question arises as to -
(d)
the purpose for which a vehicle has been used, the burden of proof in respect of the matter lies on the accused."
The Facts
Richards, who owned a car for which he possessed no vehicle excise licence, intended to obtain an MOT test certificate. Richards did not possess a vehicle excise licence in respect of his vehicle and in order to obtain it intended to obtain an MOT test certificate. He accordingly arranged to obtain an MOT test certificate by arranging for the vehicle to be submitted for a test at 4 pm on that day. The test was to take place at a garage some six miles from his home. At 11.30 in the morning he left home. On the way he stopped at a garage to buy petrol. Shortly after stopping to buy petrol he stopped to buy cigarettes. At the time that he bought cigarettes the car was parked by the shop for some ten minutes whilst Richards spoke to the shopkeeper At the time the car was left at the side on a public road.
During that 10 minutes, unknown to Richards, the vehicle was reported for its lack of vehicle excise licence. When Richards left the shop he drove to the garage where the test took place.
After the test had been completed he took the vehicle and attempted to buy a vehicle excise licence, but the post office was closed. The following day he, obtained an excise licence. He was charged with this offence and convicted by the justices. The matter went to appeal before the Crown Court and the Crown Court allowed the appeal and quashed the conviction.
The Case Stated
The question for the court was as follows:
"Whether on the evidence received and in finding that Richards was using his vehicle solely for the purpose of submitting it to a prearranged MOT test the court reached a conclusion to which no reasonable tribunal could have come."
The Law
Counsel for the Secretary of State counsel took two points. The first was this: he submitted that in order to come within the provisions of para.22 the only way in which Richards could do so is if he were using the vehicle on the road at the time. His submission was that there is a distinction to be drawn between "using" and "keeping" and that Richards was charged with "keeping". He relied on the definition of "keeping" which is set out in s.62(2) of the 1994 Act. That reads:
"For the purposes of this Act and any other enactment relating to the keeping of vehicles on public roads, a person keeps a vehicle on a public road if he causes it to be on such a road for any period, however short, when it is not in use there."
Accordingly Counsel for the Sec. of State submitted that when the vehicle stopped for the ten minutes for Richards to buy cigarettes, the vehicle was not being used on the public road but was actually being kept on the public road. Accordingly, he submitted that para.22 only applies to using the vehicle on a public road and since Richards was keeping it on a public road para.22 has no application at all. It was his submission that in the circumstances where the vehicle has stopped, even if it is stopped on a public road for the purpose of obtaining petrol, it is then being kept rather than being used.
It seemed to the court that this matter fell to be decided on the language of s.29 and para.22 itself. The court did not accept the submission that was been made by Counsel for The S. of State on this point. If keeping is to be distinguished from using in this way, it seems that para.22 could have no application to vehicles being kept on the road. Such a construction is contrary to the terms of s.29(l) of the Act. In that subsection both using and keeping vehicles on a public road are made subject to the exception of exempt vehicles.
There must be some overlap between keeping and using. There is nothing to prevent a person charged with keeping a vehicle on a public road from coming under the exception of exempt vehicle if the facts of the case justify it. If on the other hand, that is wrong, it seems that, if there be a distinction and there be no overlap between using and keeping, on the facts of this particular case, Richards was actually using the vehicle. If that is right then he was wrongly charged with keeping it on a public road. However, the exception for an exempt vehicle applies both to using and keeping.
Counsel for the Sec. of State's next submission was that in the exemption the words: "used solely for the purpose" exclude all other coincidental uses for a vehicle whilst on route to the test. He submitted that the fact that Richards stopped to obtain petrol, the fact that he stopped to buy cigarettes, should have caused the court to draw the inference that the vehicle was not being used solely for the purposes set out in para.22. He accepted that in relation to each case it will be a matter of fact and degree for the court to decide whether a driver has discharged the burden of proof of showing that he came within the exemption. However, he submitted that on the particular facts of this case the court was wrong to reach the conclusion that it did.
The Court accepted the submission that it is a question of fact and degree in each case for the court to determine whether the exemption is satisfied. But the court said, it is only if this court is satisfied that no court could reasonably have come to the conclusion that it did that it can interfere. On the facts of this case, it is ridiculous if a driver could not stop to obtain petrol on the way. it would fly in the face of common sense if some short stop cannot be made by the driver, for whatever purpose, providing he is on his way to the test station.
Lord Justice Henry: said "I am surprised at a time of financial stringency that public money was spent in the pursuit of this appeal."
The Decision
Held (dismissing the appeal): There is nothing to prevent a person charged with keeping a vehicle on a public road without a vehicle excise licence from coming under the exception of exempt vehicle if the facts of the case justify it. It is a question of fact and degree in each case for the court to determine whether the exemption is satisfied. In this case the Crown Court was entitled to apply its common sense and its decision was not unreasonable.
COMMENT
Since problems with Vehicle excise licenses are the daily bread & butter stuff of policing it is worthwhile looking at another aspect of their use, that of Fraudulent use, In R v Macrae (1995) 159 JPN 359 Macrae claimed to be "Saving" Police Time by forging a Vehicle Excise Licence.
The charge in the indictment read "...on or before June 4,1992 forged a licence under the Vehicle (Excise) Act 1971, namely a vehicle excise licence." The appeal was on a point of law only.
On June 4, 1992 a police officer saw Macrae's car parked on a road displaying a photocopied tax disc which had numbers tippexed out and other numbers entered. When asked, Macrae said that the tax was in the post and he was waiting for it to come through. He said that he could not see anything wrong in photocopying and altering the tax disc while this was happening. He added that he had paid for the tax.
The defence case was as follows.
In his evidence Macrae did not challenge the facts alleged by the prosecution. He said he wanted to change the registration number of his car and this caused problems in relation to road tax. His licence had expired the previous October and he had not used his car since.He had applied to Swansea for a new number and had sent a cheque for £135 which the DVLC had returned because it was £5 short. He had amended the cheque to £140 on June 2 and was waiting for the new tax disc which he had received, he thought, on June 8, thus covering the month of June. He produced a letter from the Department of Transport verifying his account.
The Crown conceded that his car was taxed from June 1, 1992. Macrae said that he had no intention of passing off the photocopy disc as a false tax disc. He did not want the police to waste time stopping him because all his documents were in order and he did not want to draw attention to his car. He said he had also put on his windscreen a note saying "Tax applied for". Woman Police Constable Duffield could not recall seeing this. He said that he had once been cautioned for putting "Tax in the post" on his vehicles, hence his photocopy tax disc.
In R. v. Clayton (1980) 72 Cr. App. R. 135; [1981] Crim. L.R. 186 Clayton, a disabled driver, and as such exempt from being liable to pay road fund tax, affixed new number plates, GWK 923R, over the original number plates, GWK 923N on his car. He altered the car's tax disc in the same way and was charged with contravening s.26(1) of the 1971 Act. At his trial at the end of the prosecution case he contended that he had no case to answer in that being a disabled driver his licence was exempt from tax and therefore he could not be said to be in any way defrauding the Revenue. That submission was overruled, the recorder holding that, for the purposes of the section, an intent to deceive was sufficient. On appeal against conviction on the ground that to commit an offence under s.26(1) there had to be an intent to defraud this court held that forgery, in s.26(1) of the 1971 Act, does not only necessarily involve intent to defraud, but that an intent to deceive is sufficient for an offence to be made out under the subsection. Accordingly, the recorder had been tight in rejecting a submission of no case to answer. It is important to note, as appears from the judgment of the court, that the offence charged was forgery of a vehicle excise licence contrary to s.26<1). (Presumably the owner of a car 25 years old who must display a tax disc which he gets free, can, by analogy, commit this offence if he alters his disc.
In R v. Terry (1984) 148 J.P. 613; [1984] 1 All E.R. 65 the House of Lords held that it is not necessary, on a charge of fraudulently using an excise licence contrary to s.26(1) of the 1971 Act, for the Crown to establish an intent to avoid paying the proper licence fee; it is sufficient merely for the crown to prove an intent by deceit to cause a person responsible for a public duty to act, or refrain from acting, in a way in which he otherwise would not have done.
It should be emphasized that the charge in Terry was of fraudulently using an excise licence contrary to s.26(1) of the 1971 Act.
In his speech Lord Fraser said, having referred to the decision of the House of Lords in Welham v. DPP [1961] A.C. 103:
"The grounds of decision by this House were that 'with intent to defraud' was not confined to the idea of depriving a person by deceit of some economic advantage or inflicting on him some economic loss, but that they applied where a document was brought into existence for no other purpose than of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done."
He continued:
"In the present case I see nothing in s.26(1) of the Vehicles (Excise) Act 1971 which leads me to think that the word 'fraudulently' ought to be given a more limited meaning than that attributed to the words 'intent to defraud' in Welham v. DPP. On the contrary, the context indicates that they should bear a wider meaning. One of the offences created by s.26(1)(a) is fraudulently using any mark (i.e., a number plate) which is requited to be fixed to a vehicle: see s.19(1). It is easy to imagine cases where false number plates might be used by dishonest persons for the purpose of deceiving police offices and causing them to act in the way that they would not otherwise have acted, without any intention of evading payment of the licence fee, and I have no doubt that s.26(1) is applicable to such cases. There is nothing in the section to exclude the application of the general rule stated in Welham."
In Clayton the court drew on the statutory definition of forgery contained in s.1 of the Forgery Act 1913. The 1913 Act has since been repealed and it is accordingly appropriate to draw on the statutory definition of forgery contained in s. 1 of the Forgery and Counterfeiting Act 1981 when considering an offence contrary to s.26(1) of the 1971 Act. Thus, when a person (call him D) is charged with forgery of a licence contrary to s.26(1) of the 1971 Act the offence is committed.
This case confirmed that an intention to deprive a person by deceit of some economic advantage or inflicting on him some economic lose is not required (Welham) approved. All the Crown need to prove is an intent by deceit to cause a person responsible (a constable) for a public duty to act, or refrain from acting, in a way which he/she otherwise would not have done. (Terry) approved.
Rob Jerrard