My employer asked me to drive. If I am stopped by the police, do I have a defence to driving without insurance?
Is there a defence to the allegation?
Yes, the most obvious of which is that the use of the vehicle was insured. However, ignorance of lack of cover is not in itself a defence as driving without insurance is a ‘strict liability’ offence. This means that a motorist commits the offence even if he or she did not know or believe that there was no insurance cover.
The Employment Defence
The statute does provide an exception to the strict liability rule set out above which is that a motorist shall not be convicted (note that this defence is not a bar to prosecution but to conviction):-
if he or she proves that—
1. the vehicle did not belong to him and was not in his possession under a contract of hiring or of loan
2. he was using the vehicle in the course of his employment, and
3. he neither knew nor had reason to believe that there was not in force in relation to the vehicle a policy of insurance.
This can give rise to uncertainty, for example, how should ‘in the course of his employment’ be interpreted?
Suppose, for example, you were asked by your employer to pop out for some milk for the tea and you used your own car which was only covered for social, domestic and pleasure use. It might be alleged that you weren’t insured as this was ‘business use’. Suppose, on the other hand, that your employer asked you to use the company car and you did so without realising you were not insured. Depending on all the circumstances of the case you might be able to rely upon the statutory employment defence set out above although don’t forget, the burden of proving it would be on you!
The application of the law to the infinitely variable circumstances that can arise and its interpretation by the courts can give rise to uncertainty. We have been instructed by a self-employed client who drove a vehicle at the behest of his ‘employer’ not realising he was not insured. We will run the statutory defence and argue that ‘employment’ includes ‘self-employment’. It will be interesting to see the outcome.
Post Script: The court did not accept the defence and convicted the Defendant of the offence. However, an alternative submission was then put forward that special reasons existed (largely based on the facts which had been evidenced during the trial). This submission was accepted and the Defendant’s licence (and livelihood) were saved. The client, needless to say, was thrilled with the outcome.