Correct on the date of publication - 6 May 2024
Question:
In a routine check of a motor vehicle being driven on a road, it is discovered that the driver is a provisional licence holder. He is being supervised by a full licence holder who is evidently under the influence of alcohol. Could drink/drive procedures be initiated in respect of the accompanying driver on the basis of him being in charge of the motor vehicle?
Answer:
Whether a person can be said to be 'in charge' of a motor vehicle will always be a question of fact for a court to decide. The case of DPP v Watkins (1989) provides firm guidance as to the tests that should be imposed to determine whether a person can be deemed to be 'in charge' of a vehicle.
Regarding supervisors of learner drivers, in the case of Sheldon v Jones [1970] RTR 38, the court found there may be circumstances in which they could show there was no likelihood of them driving and so avoid conviction for being in charge by using the defence under section 5(2) Road Traffic Act 1988. However, in DPP v Jarman [2004] RTR 31, the court considered the situation of supervisors of learner drivers again and held that:
- The prosecution did not have to prove that the supervisor was a qualified driver.
- In normal circumstances, a person supervising a driver who only holds a provisional driving licence and who is driving on a public road or other public place will be in charge of the vehicle.
- Such a supervisor may still use the defence under section 5(2) but whether they did so, would be a question of fact. It will usually be a difficult task for a supervisor to succeed in this defence. Apart from extraordinary facts which could conceivably arise, it will normally be the case that any submission based on the learner’s competence to drive will be insufficient to establish the defence since the very statutory purpose of having a supervisor is because a provisional driver is not yet regarded as competent to drive on their own.
