The Recent Driving Without Insurance Case Turns Burden of Proof on its Head
The 2015 case of DPP v Whittaker (no relation!) involves a driver facing an allegation of driving without insurance. Like many cases of this type, the issue was not whether there was an insurance policy in place, but whether it covered the driver and vehicle for the particular use.
Often these issues arise when employees use their own vehicles to run errands for their employers, carry passengers, or drive to a place other than their usual place of work. If the driver does not have specific cover for business purposes, their insurance policy is unlikely to be effective.
Driving without insurance is a strict liability offence: you either have insurance or you don’t and it doesn’t matter whether or not you knew that you were driving without insurance (however it may be evidence of Special Reasons). The basic premise is that once the police/prosecution have established that you are driving a vehicle on a road or public place, it is for you as the driver, to prove (on the balance of probabilities) that there is a valid policy of insurance in place.
The legal textbooks such as the ‘Bible’: Wilkinson’s Road Traffic Offences 26th Ed. by McCormac; Wallis have considered the issue of the burden of proof. The book merely suggests that once a driver produces what on the face of it is a valid policy or certificate covering the use in question, the evidential burden of proof may shift to the prosecution to prove that that policy does not cover the use of that particular vehicle on that particular occasion because of an exception clause in the policy or for some other reason.
Previous cases such as Howey v Bradley from 1970, left open the question whether, once a policy of insurance is produced which purports to cover the use of the vehicle, the burden is on the prosecution to show that the use of the vehicle is not within the uses covered by the policy.
Only now has this question been answered…..
The case of DPP v Whittaker confirms that once the driver has produced a valid certificate of insurance, but the prosecution is maintained on the basis that the use of the vehicle was not permitted by the insurance certificate, the burden of proving that the vehicle was being used in that manner does indeed shift to the prosecution. This may make drivers think twice before answering the questions from police if they are stopped at the roadside as, without their confirmation, the prosecution may be a loss to prove what the use of the vehicle was.
Obviously as a preventative measure, all drivers should check that their insurance policy covers them for all of the purposes for which the vehicle is used. Drivers must ensure that written proof of what use is covered is obtained ideally on the certificate or schedule.
Remember the offence of Driving Without Insurance carries a minimum of 6 penalty points upon conviction.