Case No. UKUT-00272-(AAC)

26.The Appellant also relied upon Regulation 4(3)(c) of the Enforcement Regulations 2012 in which a detained vehicle shall be returned to the owner where, “although at the time the vehicle was detained it was being, or had been, used in contravention of section 1 of the 2010 Act, the owner did not know that it was being, or had been, so used.” The Appellant argued that he had instructed the Transport Manager to put the vehicle on his Operator’s Licence but due to ill health during the COVID-19 pandemic, this had not been done and Mr Murphy was not aware of this until the vehicle had been impounded. He reminded the Tribunal that as soon as he became aware that the vehicle was not on his Operator’s Licence, by virtue of the fact it had been stopped and detained, he had immediately put it on the licence through use of the online portal. 27.The Respondent submitted that Mr Murphy must have “known” that it was being used in contravention of the 2010 Act, i.e., that it was not on a valid Operator’s Licence. It was highlighted that the vehicle was, by Mr Murphy’s oral account unused, in need of work, and it did not have a valid MOT at the date of detention. Therefore, there is a strong possibility that it was not on the Operator’s Licence at that point. The Respondent pointed to the five heads of knowledge as outlined in paragraphs 34-46 of the Department for Infrastructure Guidance Document 6.28.Referring to this guidance, to assist with the question of whether the Head of the TRU was “plainly wrong” in this case, the Upper Tribunal considered paragraphs 40-42 of the Guidance, which again is not legally binding but which should be taken into account:“40.Every claim for the return of a vehicle based on a lack of knowledge raises a deceptively simple question, which the Department must answer. The question is this: “Has the claimant satisfied me that they probably did not know that the vehicle was being or had been used in contravention of …. the Act?”. The Department should avoid two temptations: first to take short cuts and second to suggest that an applicant should have done something where no such legal obligation exists. The Upper Tribunal has therefore suggested adopting a structure or route for reaching a final decision, based on the decided cases.41.The starting point is to ask, “Is there any evidence before me on the basis of which I could be satisfied that the claimant probably did not know that the vehicle was being or had been used in contravention of the Act?” If there is no such evidence the Department should say so, indicate that the burden of proof is on the applicant and that, in the absence of any evidence capable of showing lack of knowledge of use the ground has not been made out. There is no need for the Department to go further or to embark on the process. 42.The Upper Tribunal has provided a useful reminder of the five categories of knowledge: