Director of Public Prosecutions v Bayliff [2003] EWHC 539 (Admin)

Case No CO/4501/2002

[2003] EWHC 539 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 7 March 2003

Strand

London WC2

B E F O R E:

MR JUSTICE DAVIS

Between

DIRECTOR OF PUBLIC PROSECUTIONSApplicant

-v-

Between

SIMON NICHOLAS BAYLIFFRespondent

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MISS KRISTINA MONTGOMERY (instructed by Crown Prosecution Service) appeared for APPLICANT

MISS LISA JUDGE (instructed by Freemans & Co Solicitors, Manchester, M1 6JX) appeared for RESPONDENT

J U D G M E N T

(As Approved by the Court)

[1]MR JUSTICE DAVIS: This is an appeal by way of case stated by the prosecution in respect of an adjudication of the Magistrates' Court sitting at Nuneaton on 10 July 2002, whereby the magistrates dismissed three summonses which had been brought against the respondent to this appeal, Simon Nicholas Bayliff.

[2]The background to this case can be very shortly stated and is conveniently set out in the case stated itself. On 26st day of September 2001 informations were preferred by the appellant against the respondent to the effect that he:(a) on 21st day June 2001 at Avon Dassett in the county of Warwick drove a motor vehicle, namely a Seat Toledo, registration T544 EVV, on the M40 motorway at a speed exceeding 70 miles per hour, contrary to the regulations there specified;

(b) on 21st day June 2001 at Avon Dassett in the county of Warwick used the same car on a road or other public place, namely the M40, when there was not in force in relation to that use such a policy of insurance or such a security in respect of third party risk as complied with the requirements of Part VI of the Road Traffic Act 1988, contrary to the sections and matters there set out;

(c) on 21st day of June 2001, again at Avon Dassett in the county of Warwick, was being a person driving a motor vehicle, namely a motor car, on the M40, who, on being so required by a constable, failed to produce for examination the relevant certificate of insurance or security under part VI of the Road Traffic Act 1988, contrary again to the provisions there set out.

[3]A hearing took place on 10 July 2002. The respondent was not himself present but he was represented by counsel who participated in the proceedings, counsel having stated that the respondent would not be appearing. The case stated records that counsel had invited the magistrates to proceed in his absence, thereby putting the prosecution to proof. The prosecuting authorities were themselves represented by a legal representative. I should perhaps record that counsel appearing before me on this appeal, namely Miss Montgomery appearing on behalf of the appellant and Miss Judge appearing on behalf of the respondent, were neither of them involved at the hearing below.

[4]The case stated records that the magistrates found the following facts:

"(a) A Seat Toledo registered number T544 EVV was, on 21st June 2001, seen by two police officers in a marked police car being driven on the M40 motorway at Avon Dassett at a speed which they considered to be in excess of the 70mph speed limit which applied to that stretch of road. "(b) The speed was recorded at 99.76 miles per hour for a distance of 4.821 miles by means of a VASCAR speed meter. "(c) The vehicle was caused to stop and the driver of the Seat Toledo, a male who appeared to be around 25 years of age, was invited into the police car whereupon a conversation took place.

(d) The driver gave his details to the police as follows: "

Name: Simon Nicholas Bayliff "Address: Bracken Ridge, 28, Watson Way, Balsall Common, West Midlands "Date of birth: 18th day of September 1975 "Occupation: Manager for the SFX Sports Group." "(e) A check carried out at the time on the Police National Computer confirmed the Seat Toledo was registered to SFX Sports Group. "(f) The driver declined to give any further details or sign any paperwork. "(g) He was then required to produce a certificate of insurance covering his use of the vehicle but failed to do so at that time. "(h) It was unlikely that either officer would be able to identify the driver a full year after the incident. "(i) A summons was subsequently issued in the name of Simon Nicholas Bayliff, with a date of birth given as 18th September 1975, and it was served at Bracken Ridge, 28, Watson Way, Balsall Common, West Midlands."

[5]Counsel appearing before me today were not able to tell me what course was taken with regard to the prosecution witnesses, although oral evidence was, it seems, given by the police officers, or the extent to which there was cross-examination of those police officers.

[6]At all events, at the close of the prosecution case, counsel then appearing for the defendant saw fit to make a submission of no case to answer. It appears from the case stated that one of the cases referred to the magistrates was the Practice Note reported at

[1962] 1 All ER, page 448

. It seems reasonable to infer from that (and as, indeed, accords with what the case stated says) that the magistrates, in rejecting as they did the submission of no case, were proceeding on the footing that they should ask themselves whether a reasonable tribunal might, on the prosecution evidence, convict, and that they were not required to ask themselves at that particular stage whether they would actually convict or, as the case may be, acquit.

[7]After the prosecution case had closed, no evidence of any kind was called on behalf of the respondent. What then happened is this, as set out in the case stated. First, in dealing at the stage of a submission of no case to answer, the magistrates in the case stated this:

"We were of the opinion that "(a) There had been evidence adduced in respect of the main ingredients of the offence. "(b) Such evidence had not been discredited and certainly not to any extent which would make it unsafe for a reasonable tribunal to convict. "(c) There was, therefore, a case to answer and we so found. The case stated then goes on as follows: "(d) However, having then reviewed the evidence in our final decision (and in the absence of any further evidence from the crown or any evidence from the defence) we could not be satisfied beyond reasonable doubt that the identity of the driver had been proved as that of the defendant and we accordingly dismissed all the informations."

It may be noted that nowhere in the case stated is it said whether or not the magistrates drew an adverse inference from the failure of the respondent to give any evidence.

[8]The question then posed is rather elliptically and ambiguously put and, as it seems to me, it may well have given rise to some of the difficulties identified in argument. It is posed as this:

"The defendant not being personally before the court, but appearing by counsel, were we right in law in the particular circumstances to acquit the defendant on the basis that identity had not been proved beyond reasonable doubt despite the evidence of the constable which included the name, address and date of birth given by the driver of the vehicle, notwithstanding the fact that no evidence was adduced by the defence?"

It is, at first sight, somewhat surprising, given the circumstances, that the magistrates, having rejected the submission of no case to answer (and Miss Judge appearing for the respondent today accepts that they were fully entitled to reject the submission of no case to answer) should nevertheless go on to dismiss the summonses as against the respondent, notwithstanding that no further evidence of any kind had been given at all. But it is by no means necessarily the case, even though one suspects it often will be the case, that magistrates in such circumstances are required, as it were, to convict if no further evidence has been called by the defendant, notwithstanding that the magistrates have previously rejected a submission of no case to answer. It may be, after all, that the magistrates have only very brief submissions at the submission of no case to answer stage. It may be that, after the conclusion of all the evidence and after detailed speeches, the magistrates have reason to revise or re-evaluate their provisional view at an earlier stage of the evidence as given or, quite simply, on a detailed consideration of the evidence at the close of trial, to find that they were not satisfied by the prosecution evidence. That, I think, accords with certain comments which can be found in the case of Scruby v Beskeen [1980] RTR, which was cited to me by Miss Judge.

[9]It seems likely that counsel then appearing on behalf of the respondent had worked out in advance the particular, perfectly legitimate tactic that he proposed to adopt. However, there was, in the event, and as is common ground, an authority which was of relevance to the particular matter: the case being the decision in Creed v Scott [1976] RTR 485. That is a case which is mentioned in a number of the leading textbooks in this field. The headnote in Creed v Scott, a decision of the court comprising Lord Widgery CJ, Thompson J and Kenneth Jones J, reads as follows:

"An information was preferred against the defendant for driving at a speed in excess of the speed limit. At the hearing he was not in court but was represented by counsel. The only evidence for the prosecutor was that of a police constable who stated that he stopped a speeding vehicle and that the driver said that his name and address were those of the defendant. At the close of the prosecution's evidence counsel submitted that there was no case to answer on the ground that the prosecutor had not identified the defendant as the person driving the vehicle. The submission was rejected, no evidence was called for the defendant, a further submission that there was no evidence of identity was rejected, and he was convicted. "

On appeal against conviction on the ground that the evidence did not identify the defendant as the driver, and on the concession that there would have been such evidence if the name and address had been taken from a driving licence:

"Held, dismissing the appeal (1) that the concession attached some evidential value to a driving licence which it did not bear, for production of a driving licence by a driver amounted to no more than stating that his name and address were as given in it ... "(2) That the constable's evidence that the driver said that his name and address were the same as the defendant's was some evidence that the driver and the defendant, who had presented himself not physically but by counsel at the hearing, were one and the same person; that that evidence was not conclusive and the weight to be attached to it depended on the totality of the evidence; and that, since it was the only evidence in the case and the defendant had appeared in court by counsel, the justices were justified in convicting."

It can be seen from a recital of what is set out in the headnote that that case had a very marked similarity to the present. Indeed, in the present case, there was this further particular feature, namely that the person driving the car had identified himself as being an employee of a particular company and the police had checked that the vehicle which they had stopped was indeed a car which was registered in the name of that particular company so identified by the driver.

[10]In the course of giving the judgment of the court, Kenneth Jones J, having set out the facts in some detail, said this, at page 488 of the report, by way of conclusion:

"In my judgment the justices did have some evidence of the identity of the driver here, and at the end of the day it was the only evidence with which they were faced and they were then fully justified in convicting. "

In so far as it is necessary to refer to any authority whatsoever I would refer only to the words of Lord Alverstone CJ in Marshall v Ford (1908) 72 JP 480 where, in a case not dissimilar to the present case, he said at p 481:

"'When in the course of his duty a constable acting under the Act gets the name of a person who afterwards appears in court, that is evidence on which the magistrates may act.'"

Kenneth Jones J went on to state: "In the present case the defendant did appear in court by counsel and those words of Lord Alverstone CJ in my judgment dispose of the point which has been raised by [counsel]. With that judgment Thompson J and Lord Widgery CJ agreed.

[11]As I have said, in the course of her argument Miss Judge, in the light of that authority, conceded that there was here evidence which would entitle a bench of magistrates to convict and indeed, as I have said, she accepted that the magistrates were justified in rejecting a submission of no case to answer. However, she stresses that Kenneth Jones J in the case of Creed v Scott was stating that the evidence given before the court at that stage was such that they were "fully justified" in convicting, not, as Miss Judge points out, that they were required to convict. Further, she points out that the citation of the passage from the judgment of Lord Alverstone CJ in Marshall v Ford was to the effect that the evidence was evidence on which the magistrates may act, not that they must act on it in the sense of finding it conclusive in all senses.

[12]What Miss Judge's submission comes to is this: the magistrates correctly identified that there was sufficient evidence here to justify the prosecution case not being rejected at the half-way stage. She says that that shows they had the right points in mind. Then, she says, all that happened (and she would say not necessarily unusually in the Magistrates' Court) is that on a further consideration of the evidence, and after detailed submissions by the advocates, they evaluated the evidence in the sense of deciding that, ultimately, they had not been made sure of the guilt of the respondent.

[13]Miss Judge does, however, fairly acknowledge that Creed v Scott should have been drawn to the attention of the magistrates. One of the points made by Miss Montgomery is that, had that authority been drawn to their attention, they might well, and as she would say they would, have reached a contrary result to the one that they did reach.

[14]Miss Judge also submitted that the approach adopted by the legal advisers of the respondent in this particular case would not, if adopted generally as a tactic, operate to drive a coach and horses through the scheme of the legislation. She referred me to the provisions of section 172 of the Road Traffic Act 1988 and sections 11 and 12 of the Road Traffic Offenders Act 1988; and she says that there were here other procedures whereby the prosecution could, in the absence of appearance by Mr Bayliff, have proved their case. She submitted that they took a risk by going down the evidential road they did go down in this particular case.

[15]At first sight there is a very great deal of force, as it seems to me, in Miss Judge's excellent submissions. Here it could be said that all that happened was the magistrates simply assessed the position, at the conclusion of the hearing, by reference to the evidence. They decided that there was a case to answer and then, having further evaluated the evidence at the close of the trial, they decided the case had not been sufficiently proved. There were matters of fact and matters for the magistrates. It may be that some people -- it may be that many people -- would think that a surprising conclusion to reach on the facts found as recited in the case stated but, nevertheless, as Miss Judge says, that was a matter for these particular magistrates. Put like that, I would agree with those submissions, notwithstanding, frankly, the apparent prima facie implausibility in this particular defence position as adopted.

[16]However, in my view it is also necessary to focus on the way, albeit rather elliptic, in which the case is stated: because it is carefully stated in this respect as to whether the magistrates were right in law in the particular circumstances to acquit the defendant on the stated basis. If Miss Judge's approach is right, then the words "in law" are entirely inapposite because, on her approach, all that the magistrates were doing was making their judgment by reference to the facts, which was entirely a matter for them. It is quite clear from the way the case is stated that the magistrates conceived that a point of law arose. It may well be that that is precisely because the Creed v Scott point had, on the request for a case to be stated being made, by then been identified. In such circumstances, I take the view that the magistrates by asking this question were in truth asking the question whether there was sufficient evidence entitling them to convict. The short answer is, in the light of Creed v Scott, there certainly was sufficient evidence entitling them to convict. Indeed, as I have already pointed out, there was here the additional fact that the driver of the car had identified the company with which he worked, which company was proved to be the registered owner of the vehicle.

[17]In those circumstances, it seems to me, that this appeal should succeed. It seems to me that the question as posed by the magistrates should be answered in the negative and, accordingly, this particular decision cannot stand.

[18]Miss Montgomery, I think you accept that there will need to be a re-hearing, given the circumstances.

[19]MISS MONTGOMERY: Yes, my Lord.

MR JUSTICE DAVIS: I think that must be right, must it not, Miss Judge?

MISS JUDGE: Yes, my Lord.

MR JUSTICE DAVIS: Are there any other matters arising?

[23]MISS MONTGOMERY: No, my Lord. Forgive me my Lord, I am reminded that your Lordship needs to state that the matter is formally remitted to the Nuneaton Magistrates' Court.

MR JUSTICE DAVIS: Accordingly, I will remit this matter back to the Nuneaton Magistrates Court.

[25]I would like to thank both counsel for their very helpful submissions.