Following recent prosecutions for driving whilst uninsured where drivers have given incorrect or suspicious insurance details, Tony Williams reminds us when fraud is actually committed – and whether a lack of thorough investigation is allowing fraudsters to fall through the net.
I have seen a few recent cases where police officers have stopped drivers and queried their insurance details. On being provided with those details they notice that something is amiss (e.g. incorrect dates of birth, curiosities regarding other named drivers on the policy etc). The officer in question suspects fraud.
On contacting the insurers (or the Motor Insurers Bureau), they are informed that had they known the correct details they would not have upheld that insurance policy. On that basis, the driver is charged with driving whilst uninsured. Easier, faster and cheaper than conducting a fraud investigation – right?
DURRANT V MACLAREN
In the case of Durrant v MacLaren  2 Lloyds Rep 70, the Defendant had obtained a policy of insurance by falsely answering questions in an application form. He subsequently had an accident. He was charged with driving a car without a third-party insurance policy being in force under s143 of the Road Traffic Act 1930 (the provision in force at the time).
The Divisional Court held that unless steps have been taken to void the policy of insurance, the insurer remains liable under that policy. As such, it was held that the Defendant was not guilty of driving without a valid policy of insurance. The Court observed that the Defendant should have been charged with making a false statement to obtain insurance.
Under Durrant v MacLaren, a voidable policy of insurance obtained with incorrect and even fraudulent details can be valid up until the point of being voided, which is the decision of the insurer. Even if insurers do decide to cancel that policy on being spoken to by police at the scene, insurers are expected to take reasonable steps to ensure the driver is aware that their policy has been cancelled and will likely have a contractual obligation to do so.
Failure to give proper notice of cancellation may result in the driver having grounds to make a complaint against their insurers to the Financial Ombudsman Service, who generally expect insurers to provide 7 days’ written notice of cancellation.
It is therefore not enough to support a charge of driving whilst uninsured for insurers to simply inform the police officer by telephone at the scene that they wouldn’t indemnify the driver – further, if this assertion is contained in the witness statement of a police officer, it is hearsay.
Once properly voided, any instance of driving thereafter would clearly be a criminal offence, but I submit this does not have retroactive effect in criminal law. It would offend basic principles of justice if a Defendant could be retroactively criminalised for a course of driving when it was lawful at the time and they would otherwise have been indemnified.
BURDEN OF PROOF
It is well known that where a Defendant is charged with driving whilst uninsured, the burden is upon them to prove that they were insured. Once the Defendant has produced a valid policy of insurance it becomes a matter for the Prosecution to prove that the Defendant was driving otherwise than in accordance with that policy (DPP v Whittaker  EWHC 1850 (Admin)).
It stands to reason that it is also for the Prosecution to prove that said insurance policy was not in force or was otherwise invalid at the time of the alleged use of the vehicle. The Prosecution cannot rely on the reverse burden in order to require the Defendant to prove that the policy was not incorrect, fraudulent or void.
The burden is therefore on the officer in the case to properly investigate the insurance details provided. If they find that there is an insurance policy in place but are suspicious of its details, they should investigate and obtain admissible evidence that the policy was not valid at the time the vehicle was being used. If it is suspected that insurance has been obtained by fraud, then the proper course of action is to investigate the alleged fraud and charge that if appropriate.
Simply charging driving whilst uninsured in order to capture fraudsters by the back door is, with all due respect, poor practice. A Defendant will have a defence in law if the only evidence to support the charge is that the details they provided to the insurers are incorrect in some way.
If there has indeed been a fraud and the circumstances of obtaining the insurance are not properly investigated, they could get away with that too. Calling out this practice is the only way to ensure proper policing and prosecution of these offences.
Central Chambers has a dedicated criminal team with experience of cases involving road traffic law and fraud offences.
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