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URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/612.html
Cite as: [1997] EWHC Admin 612

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SECRETARY OF STATE FOR TRANSPORT v. FREDERICK DAVID RICHARDS [1997] EWHC Admin 612 (1st July, 1997)


IN THE HIGH COURT OF JUSTICE CO/1166/97
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT )



Royal Courts of Justice
Strand
London WC2

Tuesday, 1st July 1997


B e f o r e:

LORD JUSTICE HENRY

-and-

MR JUSTICE GAGE

- - - - - - -

THE SECRETARY OF STATE FOR TRANSPORT

-v-

FREDERICK DAVID RICHARDS

- - - - - - -

(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited,
180 Fleet Street,
London EC4A 2HD
Telephone No: 0171-831 3183
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)

- - - - - - -

MR J RAFFRAY (instructed by the Treasury Solicitors) appeared on behalf of the Appellant.


The Respondent did not appear and was not represented.


J U D G M E N T
( as approved )

Crown copyright

Tuesday 1st July 1997

LORD JUSTICE HENRY: Gage J will give the first judgment.

1. MR JUSTICE GAGE: This is an appeal by way of Case Stated from a decision of the Swansea Crown Court. On 19th March 1997 the Swansea Crown Court allowed an appeal by the Respondent, Frederick Richards, from his conviction by the Pontardawe Magistrates' Court on 11th October 1996.

2. On that date the Magistrates convicted the Respondent of keeping, on a public road, a motor vehicle without an Excise Licence contrary to section 29 of the Vehicle Excise and Registration Act 1994. There is no dispute that on the material date, namely 21st March 1996, the Respondent's vehicle was on a public road and at that time he did not possess a Vehicle Excise Licence in respect of it. The issue before the Magistrates' Court, before the Crown Court and before this Court is whether, at the time, the Respondent was entitled to bring himself within the exemption provided by paragraph 22(1)(a) of Schedule 2 to the Vehicle Excise and Registration Act 1994. The Crown Court held that he had brought himself within that exemption.

3. The statutory framework in respect of this offence is as follows: section 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."

4. An exempt vehicle, for these purposes, is defined by paragraph 22 of Schedule 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 time on a specified date) for a compulsory test, or

(b) bringing it away from a compulsory test."

5. A compulsory test is defined by the statute and includes a certificate of road worthiness commonly known as an MOT test certificate. It is the case that 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. Finally, in relation to the statutory framework, it is provided by section 53 that the burden of proof satisfying the Court that a vehicle is used for the purpose of exemption is upon he or she who is attempting to show it. Section 53 (burden of proof) reads in the material part:

"Where in any proceedings for an offence under section 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."

6. The facts of this matter, as summarised from the Case Stated by the Court, are as follows: on 21st March 1996 the Respondent, who owned a car for which he possessed no Vehicle Excise Licence, intended to obtain an MOT test certificate. The Respondent 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 4pm 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 the Respondent spoke to the shopkeeper. At the time the car was left at the side on a public road.

7. It was during that ten minutes, unknown to the Respondent, that the vehicle was seen by a police officer and reported for its lack of Vehicle Excise Licence. When the Respondent left the shop he drove to the garage where the test took place. Whilst the car was at the garage premises, awaiting to be tested, the Respondent called on his mother-in-law who lived nearby. Whilst he was at the premises of his mother-in-law he was given lunch and carried out some decorating work.

8. After the test had been completed he took the vehicle and attempted to buy a Vehicle Excise Licence. He was unable to do so because the post office where he attempted to buy it was closed. The following day he, in fact, obtained an Excise Licence. As I have indicated, after being reported by the police officer 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 question for this Court is set out in the Case Stated as follows:

"Whether on the evidence received and in finding that the Appellant 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."

9. On behalf of the Appellant Mr Raffray has taken two points. The first is this: he submits that in order to come within the provisions of paragraph 22 the only way in which the Respondent could do so is if he were using the vehicle on the road at the time. His submission is that there is a distinction to be drawn between "using" and "keeping" and that this Respondent was charged with keeping. He relies on the definition of keeping which is set out in section 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.".

10. Accordingly Mr Raffray submits that when the vehicle stopped for the ten minutes for the Respondent to buy cigarettes, the vehicle was not being used on the public road but was actually being kept on the public road. Accordingly he submits that paragraph 22 only applies to using the vehicle on a public road and since the Respondent was keeping it on a public road paragraph 22 has no application at all. It is 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.

11. In support of this submission he has referred this Court to a number of other paragraphs in Schedule 2 where those paragraphs set out, in different language, the definition of exempt vehicles. For myself I glean no assistance from the other paragraphs in Schedule 2.

12. It seems to me that this matter falls to be decided on the language of section 29 and paragraph 22 itself. I do not accept the submission that has been made by Mr Raffray on this point. If keeping is to be distinguished from using in this way, it seems to me that paragraph 22 could have no application to vehicles being kept on the road. As I understand it, Mr Raffray accepts that if his submission is correct that is so. In my judgment such a construction is contrary to the terms of section 29(1) of the Act. In that subsection both using and keeping vehicles on a public road are made subject to the exception of exempt vehicles.

13. In my judgment, there must be some overlap between keeping and using. Accordingly I conclude that 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, I am wrong in that conclusion, it seems to me that, if there be a distinction and there be no overlap between using and keeping, on the facts of this particular case, the Respondent was actually using the vehicle. If that is right then he was wrongly charged with keeping it on a public road. However, for myself, as I have already said, in my judgment the exception for an exempt vehicle applies both to using and keeping.

14. Mr Raffray's next submission is 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 submits that the fact that the Respondent stopped to obtain petrol, the fact that he stopped to buy cigarettes, and the fact that arriving early he went to visit his mother-in-law, should have caused the Court to draw the inference that the vehicle was not being used solely for the purposes set out in paragraph 22. He accepts 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 comes within the exemption. However, he submits that on the particular facts of this case the Court was wrong to reach the conclusion that it did.

15. For my part, I accept the submission that it is a question of fact and degree in each case for the Court to determine whether the exemption is satisfied. In my judgment 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. For myself, on the facts of this case, I would regard it as ridiculous if a driver could not stop to obtain petrol on the way. I would regard it as flying in the face of common sense if some short stop cannot be made by a driver, for whatever purpose, providing he is on his way to the test station. Equally I cannot see that this driver lost the exemption by going to visit his mother-in-law after leaving the vehicle at the garage where it was to be tested.

16. It seems to me that on the facts of this particular case the Court was, as it said in the Case Stated, quite entitled to apply its common sense. I am entirely unpersuaded that the conclusion which it reached, that the Respondent had satisfied the provisions of exemption, was wrong and Wednesbury unreasonable. For my part, that submission made by Mr Raffray has no substance and, in my judgment, the appeal should be dismissed.


17. LORD JUSTICE HENRY: I agree and would add only this: I am surprised at a time of financial stringency that public money was spent in the pursuit of this appeal. It will be dismissed.




© 1997 Crown Copyright


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