CO/5026/2003
Neutral Citation Number: [2004] EWHC 101 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 22nd January 2004
 
B E F O R E:

LORD JUSTICE MAY 

MR JUSTICE NELSON 

- - - - - - -
DPP
(CLAIMANT)

-v- 

JANMAN
(DEFENDANT) 
 - - - - - - -
- - - - - - -
MR JONATHAN HALL (instructed by CPS, Sussex Area, Chichester PO19 8NJ) appeared on behalf of the CLAIMANT
MISS RACHEL BECKETT (instructed by Matthew Gibbons, Littlehampton BN17 5AP) appeared on behalf of the DEFENDANT
 - - - - - - -
J U D G M E N T 
1.	LORD JUSTICE MAY:  Section 5 of the Road Traffic Act 1988 provides as follows:
"(1).  If a person -- 
 (a) drives or attempts to drive a motor vehicle on a road or other public place, or 
 (b) is in charge of a motor vehicle on a road or public place, 
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he was guilty of an offence. 
 (2) It is a defence for a person charged with an offence under (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit."
2.	The section most commonly arises in the case of a single person driving, or attempting to drive, a motor vehicle, or alleged to be in charge of a motor vehicle.  Typically a person who is not actually driving, or attempting to drive the motor car, but is in close relationship to it may be held to be in charge of the motor car on a road or public place under section 5(1)(b) and may seek to propound the defence under section 5(2) that there was no likelihood of his driving the vehicle.
3.	The present case concerns a prosecution not of the person driving, or attempting to drive the motor car, but of a person supervising a learner driver who was so doing.  As will appear, in my judgment a person supervising a learner driver will in all probability be, and in this case was, in charge of the motor vehicle.  That after all is the essence of the purpose of them being there to supervise the learner driver.
4.	The main question which this appeal by way of case stated raises concerns the circumstances in which a person supervising a learner driver, who has consumed more alcohol than the prescribed limit under the statute, can avail themselves of the defence under section 5(2). 
5.	In this context there appears this passage in Wilkinson's Road Traffic Offences 20th edition at page 1/389, paragraph 4.394 to 403.  The textbook states:
"A drunken supervisor of a learner driver may be held to be 'in charge' of the motor and in Sheldon v Jones (1969) 113 SJ page 942, the prosecution sought to argue that it was impossible for a supervisor to establish that there was no likelihood of his driving since at any moment he might have to take over the driving.  The justices found as a fact that there was no such likelihood, and the Divisional Court, although stating that they themselves might have come to a different conclusion, felt unable to disturb the justices' finding to that effect.  It is, however, submitted that a supervisor will usually have a difficult task in proving that there was no likelihood of his driving.  It is submitted that momentarily taking over control of the steering or of the engine may well amount to 'driving' as one of the main duties of a supervisor of an learner driver is to take control of the car in an emergency." 
6.	Mr Hall, who appears on behalf of the DPP in this appeal, essentially submits that this Court should adopt and confirm the correctness of that passage.
7.	The case comes before this Court by way of case stated from the justices sitting as a Magistrates' Court at Chichester in respect of a trial which they held on 9th July 2003.  The respondent/defendant to that trial, Darren Janman, was charged with an offence that on 4th February 2003 at Bognor Regis in Sussex he was in charge of a motor vehicle, a Peugeot 309, registration H398 FJF, on a road, namely, Felpham Way, after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit contrary to section 5(1)(b) of the Road Traffic Act 1988.
8.	The respondent pleaded not guilty.  He did not attend at court on the day of his trial, but he was represented.  The justices proceeded with the case despite his absence in the light of what they referred to as "repeated absences" by him.  The justices heard evidence by way of statements from three police officers, all made under section 9 of the Criminal Justice Act 1967, one of which exhibited the respondent's record of police interview.  
9.	From the evidence the justices found the following facts.
"On 4th February 2003 police officers, stationary in a police car at a roundabout, observed another car, a blue Peugeot 309, registration number H398 FJF, pass them at speed.  This car was being driven by a female, with a male seated in the front passenger seat. 
The officers followed the Peugeot and when it stopped spoke to the occupants. 
The female driver was the holder of a provisional driving licence. 
The male passenger was the respondent, Darren Janman.  His breath smelled of intoxicating liquor and was he requested to provide, and did provide, a breath sample.  This was positive.  The breath sample was requested because the police officer stated that as the respondent was supervising a learner driver he was in charge of the motor vehicle because he may have had to take control of it at any time.  The respondent was arrested and conveyed to Chichester police station where he provided a breath specimen of 78 microgrammes of alcohol in 100 millilitres of breath. 
The Peugeot belonged to the female passenger.  Her partner was the respondent, Darren Janman.  He admitted to the police that he was supervising her driving that night.  He also admitted that he was teaching her to drive, that she was covered under his insurance and he always put 'L' plates on the vehicle whenever she drove."
10.	The case then sets out the contentions of the parties and, having been referred to two authorities, the justices:
"... were of the opinion that the Crown had not proved to us that the respondent was a qualified driver entitled to supervise his partner's driving that night.  The respondent's admissions that he was supervising her were not enough in law to make him a supervisor.  No evidence whatsoever was placed before [the justices] to confirm that the respondent was the holder of a full driving licence authorising him to drive a car, nor that he had the relevant driving experience required of a supervisor by Regulation 17 of the Motor Vehicles (Driving Licences) Regulations 1999.  A print-out from the DVLA had not been placed before [them].  The respondent's status in law had not been proved to be other than a passenger who had been drinking and who had told his partner that he would supervise her driving.  As [the justices] did not find the respondent to be a supervisor neither did [they], following the commentary in Sheldon v Jones, find him to be 'in charge' of his partner's vehicle and thus, in the absence of the respondent, [the justices] dismissed the information.  As the submissions from the respondent's counsel had dealt almost entirely with the defence in section 5(2) of the Road Traffic Act 1988 [the justices] also confirmed, when giving [their] brief reasons for the acquittal, that [they were] satisfied that the respondent had raised this during interview by stating to the police he did not need to supervise his partner; she was able to drive.  [They] also stated that the Crown's evidence had not rebutted this beyond reasonable doubt as its evidence did not address this issue.  We had no evidence whatsoever as to the female driver's level of competency of driving and thus could not be satisfied that the respondent may have had to take over the vehicle's control at any point in time."
11.	The questions which the justices have stated for the opinion of this Court are:
"1.  When a person assumes the role of supervisor of a learner driver, is this adequate for us to find that person to be a supervisor or should we, before so finding, require evidence that this person is indeed a qualified driver able to supervise a learner driver in accordance with Regulation 17 of the Motor Vehicles (Diving Licences) Regulations 1999? 
2.  If we should have found the respondent to have been supervising his partner, should we have concluded, that he was 'in charge' of the car by virtue solely of his supervisory role? 
3.  Alternatively should we have found him to be in charge of his partner's motor vehicle even if he was not supervising her driving? 
4.  If the answer to either question 2 or 3 is in the affirmative, then were we correct, on the circumstances of this case, to find that the respondent had, during his police interview, satisfied the evidential burden required of him by Sheldrake v DPP to raise the defence in section 5(2) of the Road Traffic Act 1988?"
12.	Two matters I may deal with quite shortly.  In my judgment it is quite plain that the justices were wrong to conclude that the respondent was not supervising his partner in her driving because the prosecution had not established that he was a qualified driver able to supervise under the Regulations.  In my judgment that has no bearing on the question whether he was indeed supervising the learner driver.  A person supervising a learner driver may or may not be qualified to do so.  If they are not, they or the driver may or may not commit some offence with which the present appeal is not concerned.  If, however, as a matter of fact the driver of a car is the holder of a provisional licence requiring him or her to be supervised, and if a person is as a matter of fact performing the function of supervising that learner driver, then they are indeed the supervisor.  More to the point, the first question which justices need to address, and which this Court needs to address, is whether for the purpose of section 5(1)(b) of the 1988 Act that person was in charge of the motor vehicle.
13.	Accordingly, in my judgment, the first question that the justices posed is to be answered to the effect that the prosecution does not have to establish positively that the person supervising was statutorily qualified to do so.
14.	The second point which I can deal with quite shortly relates to the justices' fourth question.  Certainly, in my judgment, the respondent raised as a defence in this case the question whether there was no likelihood of his driving the vehicle and that was a defence which, in accordance with Sheldrake v DPP, the prosecution had to deal.  The more important question, which I shall address in a moment, was whether on the facts of this case the prosecution had discharged the burden upon them of negativing the defence that was raised.
15.	The two questions, whether a person supervising a learner driver is in charge of the motor vehicle and, if the defence is raised, whether such a person establishes that there was no likelihood of his driving, are, of course, related, but they are distinct questions under this section of the statute.  In my judgment, at any rate in any normal circumstances, if the holder of a provisional driving licence is in fact driving a motor vehicle on a road or other public place, the person supervising that driver will be in charge of the motor vehicle.  That seems to me to be an obvious normal consequence of the requirement that such a person should be supervised.  It does not necessarily follow from the fact that the supervisor is in charge of the motor vehicle either that the driver is not, because in my judgment, as will appear, it is perfectly possible for more than one person to be in charge of a motor vehicle.  The fact that the person supervising is in charge does not preclude the supervisor from attempting to rely on a defence under section 5(2).
16.	In the present case the respondent in his interview, which the justices exhibited as part of the evidence, had said that his partner had a provisional licence.  He put L plates on the car whenever she drove and he confirmed that he was teaching her to drive.  In answer to the question "For her to go out in a car she has got to have qualified driver with her, who was that tonight?" the respondent said, "Me, I am not going to deny it".  It was, therefore, perfectly plain on the evidence, as indeed the justices found, that he was the performing the role of supervisor of a learner driver that night.  In my judgment, there is nothing in the facts of the present case, and they would need to be particular facts, to show that he was not, as one would expect, in charge of the motor vehicle.  In my judgment the justices were wrong insofar as they found otherwise.
17.	As I have said, the main burden of the present appeal turns on the question whether the prosecution had sufficiently rebutted the defence under section 5(2) of the statute.
18.	The case advanced on behalf of the respondent, and the one which Miss Beckett relies upon on his behalf in this Court, was that he had raised the matter in his interview that she was a good competent driver who did not need detailed supervision.  In those circumstances there was no likelihood of his driving the vehicle.  Miss Beckett submits that it was for the prosecution to establish by reference to her driving ability that the defence should not be held to apply.  They did not attempt to do so and accordingly the justices were right at least in that part of their conclusion.
19.	Mr Hall submits that the very statutory purpose of having somebody required to supervise the holder of a provisional driving licence when they are driving necessarily raises the statutorily perceived possibility that it may be necessary for the supervisor to assume control of the vehicle.  The provisional licence holder is not qualified to drive alone and the very purpose of the supervisor is that which I have stated.  Mr Hall submits that he might be expected to assume control imminently in one or more of the following ways; by himself taking sole charge of the driving of the motor vehicle if his partner got into difficulties; by himself operating one or more of the controls on the vehicle's movement; or by instructing his partner to control the vehicle's movement in a particular manner in circumstances in which his partner could reasonably be expected to follow such instructions.  He submits that any one of those would for the purpose of section 5(2) constitute his driving the vehicle.
20.	To that end he has referred us to the decision of the Queen's Bench Divisional Court in Langman v Valentine 2 All ER [1952] at 803.  The issue in that case was whether one or both of a driver and somebody sitting in the passenger seat were drivers of the car.  A second issue was whether or not in the circumstances what happened was covered by a policy of insurance.  The judgment of Lord Goddard at page 805 contains this at letter C:
"On the difficult question whether the first respondent was driving while uninsured, the justices find that the second respondent was sitting in the passenger's seat and had his left hand on the steering wheel and his right hand on the handbrake.  Then. 
'he Was able to steer the car, stop it or start it, the ignition switch being within his reach and he had control of the handbrake.  The first respondent had her foot in position to use, and did use, the accelerator and the footbrake.' 
On these facts the justices came to the conclusion that the second respondent. 
'had sufficient control of the car to enable us to find that he was the driver thereof.' 
I do not think the justices were justified in finding that he was the driver, but I think on those facts that they could find, as they no doubt intended to find, that he was a driver.  I do not think it is impossible either in law or in fact to say that there can be two drivers at the same time, two people controlling the car.  One may be controlling the starting and one may be controlling the stopping, and they both be controlling the steering, though that may be rather a perilous thing to do."
21.	Accordingly, it is submitted, and in my judgment correctly submitted, that the likelihood of driving the vehicle under section 5(2) of the 1988 Act extends to the kind of operations which the supervisor of a learner driver might be expected to have to undertake if that learner driver got into difficulties.
22.	The decision which was referred to in the passage from Wilkinson, to which I drew attention, is the case of Sheldon v Jones.  In that case a car belonging to the defendant, who was a qualified driver, was being driven back after what may have been something of a party at a local club.  The occupants of the Viva were the defendant and his wife, who held a provisional licence.  There were four other persons, none of whom was qualified to act as a supervisor of a learner driver.  The occupants of the Viva had gone out drinking that night in a local club.  Before going out drinking the defendant had arranged with his wife that she should drive.  They adhered to that arrangement.  She drove to the club and was driving back to the defendant's home at the time of the collision.  On their journey the defendant was seated beside her in the front passenger seat with another passenger between his knees.  Immediately before the collision the defendant tried to apply his foot to the brake of the Viva but could not effectively exercise control.  The defendant was accompanying his wife and supervising her as a qualified driver as required by section 7(1) of the Motor Vehicle (Driving Licences) Regulations 1963 and the defendant's wife regarded the journey as a driving lesson.
23.	The judgment of the Lord Chief Justice, Lord Parker, in that case considered as a second point whether or not the defendant, seated as he was in the passenger seat with somebody sitting between his knees, was in charge.  The prosecution's contention was that he was the supervisor and that he was thus in charge.  The justices had accepted that submission.
24.	Lord Parker said that, although the Court had been asked to give a ruling on the question whether the supervisor in those circumstances is in charge, he found it quite unnecessary to do so and gave his reasons which were that the defendant sought to show, the burden being on him, that he came within section 1(3), namely, that at the material time the circumstances were such that there was no likelihood of his driving the car so long as there was any probability of having alcohol in his blood in a proportion exceeding the prescribed limit.  That had been accepted by the justices who held that in all the circumstances of the case the defendant had discharged the burden that was upon him.  Accordingly, the Court did not decide whether or not he was in charge of the vehicle.  This case has, in my judgment, no bearing on the first question to which I have already alluded.  
25.	In the case, however, it was submitted on behalf of the prosecution that in the circumstances of the case since the husband was the supervisor it was impossible to establish the defence.  At any moment, it was submitted, the husband might have had to take over.
26.	The Lord Chief Justice was unable to accept that submission and he said this:
"It seems to me that there may well be facts, and the justices held that this was such a case, where even though the wife was the holder of only a provisional licence and the husband was the supervisor, he could nevertheless satisfy the justices that there was no likelihood of his driving.  Although I might well myself have come to a different conclusion in this case, I do not propose to interfere with the findings of the justices."
Accordingly the appeal was dismissed.
27.	It is to be observed that Lord Parker was there determining the question as a question of fact and was deciding on the facts of that case that it was not appropriate to interfere with the factual finding of the justices, although he might himself have come to a different conclusion.
28.	For my part I entirely accept that the question to be decided under section 5(2) is a question of fact.  There may indeed be circumstances in which a person who is supervising a learner driver, and who is for the purposes of section 5(1)(b) in charge of the motor vehicle, may nevertheless establish that as a matter of fact there was no likelihood of his driving.
29.	In the present case the defence is raised upon the basis that the respondent's partner was so competent a driver that she did not in truth need to be supervised and that in those circumstances there was no likelihood of his driving the vehicle.
30.	In my judgment, the passage in Wilkinson which deals with this possible defence is entirely right.  It will be recalled that the passage in Wilkinson says:
"It is, however, submitted that a supervisor will usually have a difficult task in proving that there was no likelihood of his driving."
31.	Certainly I would adhere to that.  The very statutory purpose of having a person supervising the holder of a provisional driving licence is because they are a provisional driver and by statute not yet regarded as competent to drive on their own.  Apart from extraordinary facts which could conceivably arise but do not, in my judgment, arise in this case, it will normally be the case that any submission based on the learner driver's driving competence will be insufficient to establish that there was no likelihood of the supervisor driving the vehicle.  That is, after all, the very purpose why the statute requires learner drivers to be supervised.
32.	In my judgment, the facts advanced in the present case, although they raised the defence so that the prosecution had to deal with it, did not go so far as contributing to any finding that there was no likelihood of this respondent driving the vehicle.
33.	There is a Scottish case called Williamson v Crow [1995] SLT at 959.  In that case an accused person was charged with being in charge of a motor vehicle after having consumed alcohol in excess of the prescribed limit contrary to section 5(1)(b) of the 1988 Act.  The only issue at the trial was whether the defence under section 5(2) had been established.  The accused was in the passenger seat of this vehicle when his wife, who was a learner driver, was driving.  She accepted that her driving was imperfect and that the accused would straighten the steering wheel when she was heading in the wrong direction.  The accused accepted that he would do so.  The sheriff convicted the accused on the basis that it was likely that he would have to take control of the vehicle at some point while the vehicle was being driven by the accused's wife.  The accused appealed.  It was held that:
"The question raised by the defence was not whether the accused was likely to drive but whether it had been established that there was no likelihood of his driving, since the accused accepted that he might take control of the vehicle as a last resort, the sheriff was entitled to conclude that the defence had not been made out."
34.	In that case there was, of course, evidence whereby the wife accepted that her driving was imperfect.  The case  firstly shows that the defence has to be that there is no likelihood of the supervisor driving the vehicle.  Secondly, the kind of control of the vehicle alluded to in that case, that is to say that the defendant would straighten the steering wheel when she was heading in the wrong direction or otherwise help her control the car from the passenger seat, is capable of being sufficient driving by the passenger for the purpose of section 5(2) of this statute.
35.	Accordingly, in my judgment, the answers to the two critical questions in this case should be, firstly, that the justices were wrong to conclude that this respondent was not in charge of the motor vehicle.  Plainly he was in his capacity as the supervisor of the holder of a provisional driving licence.  Secondly, in my judgment, the justices were wrong to reach the conclusion that the respondent could avail himself of the defence under section 5(2).  Yes, he had raised that defence, but the facts before the court were, in my judgment, plainly such that the defence did not succeed. The only basis of the defence was that the respondent's partner was, albeit the holder of a provisional licence, such a good driver that there was no likelihood of him driving the vehicle.  As I have indicated, it seems to me that on the facts of this case that was not a defence which established what the section requires.  She was by statute a learner driver who required supervision.
36.	In those circumstances, in my judgment, there ought to have been a conviction in this case.  I would allow the appeal, and remit the matter to the justices with a direction to convict.
37.	MR JUSTICE NELSON:  I agree for the reasons given by my Lord that in this case the appeal should be allowed and the case remitted to the justices.
38.	LORD JUSTICE MAY:  Thank you very much.