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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary Of State For Transport v Richards [1997] EWHC Admin 612 (1st July, 1997) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1997/612.html Cite as: [1997] EWHC Admin 612 |
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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:
4. An
exempt vehicle, for these purposes, is defined by paragraph 22 of Schedule 2 of
the 1994 Act. That reads:
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:
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:
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:
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.