Jones v Director of Public Prosecutions [2004] EWHC 236 (Admin)

Case No CO/5123/2003[2004] EWHC 236 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 30 January 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE MAY
MR JUSTICE NELSON
Between
JONESClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J HALL (instructed by JONATHAN BRIERLEY, CARDIFF) appeared for CLAIMANTMR I BENNETT (instructed by CPS CARDIFF) appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MAY:

Dr

[1]Dafydd Alun Jones is a consultant psychiatrist practising in north Wales. He is the keeper of a motor vehicle registration number L93 YCC. This vehicle was caught in a speed camera trap travelling at 42 mph in a 30-mph area at North Road in Cardiff, after 9 o'clock in the evening on 29th January 2002. The obvious problem with speed cameras is that they are not necessarily going to establish who is driving speeding motor cars. On the other hand, enquiries of the licensing authorities will enable the police to know who is the keeper of the vehicle. Accordingly, section 172 of the Road Traffic Act 1988 lays down a procedure for obtaining information and that section includes as subsection (2) the following:
"Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies- [and that applies to going too fast] (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police..."
[2]Subsection (3) provides: (3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence."[3]But subsection (4) provides a defence to that in these terms:
"(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."
[4]In the present case a form was dispatched to Dr Jones on 11th February 2002 from the Central Ticket Office in Cardiff acting, no doubt, on behalf of the Chief Officer of Police. It was a standard form. It indicated the offence of which it was alleged that the driver of the vehicle was guilty and it asked for information. The form was one of those forms that you have to fill in the boxes with capital letters so that a computer can read them and the first part of the form required the person to whom it was addressed to give their names, address, date of birth and post code. The second part of the form required them to give information as to their driving licence, if they were the driver at the time alleged. The next part of the form required them to state who the driver was, if they were not themselves the driver.[5]Dr Jones received this notice and he returned it. He did not complete and sign the form itself but in the part where he was required to give the name of the driver, if it was not he, he wrote the words:
"Please see covering letter enclosed"
. The letter was dated 12th February. It was headed with the registration number of the vehicle and was in these terms:
"Thank you for the notice dated 11/02/02 relating to this vehicle. I confirm that I am the owner. It is one of six vehicles in my practice fleet. For several months it has been based in Cardiff and driven with my consent by a number of qualified drivers of approved age. I can state absolutely that I was not driving the vehicle on that day. I have no way of stating which authorised driver was actually driving at the time in question on 29.01.02. If there is a camera record, this might assist in identifying the driver if I might have sight of it."
And he gave the name and address of his solicitor in Penarth.[6]Dr Jones was subsequently charged on an information on 3rd July 2003 that he had failed to give such information as to the identity of the driver as he was required to give on behalf of the chief officer of police. That is to say that he had failed to comply with section 172(2) of the 1988 Act, and that the offence under section 172(3) had been committed. He pleaded not guilty to that charge. He was tried before Mr Neale Thomas, a deputy district judge, in the magistrates' court at Cardiff on 3rd July 2003 and he was convicted and fined £75, ordered to pay £150 costs and his licence was endorsed with three points.[7]Out of that prosecution and conviction there comes today before this court an appeal by way of case stated. The case asks three questions, only one of which is really of any great materiality and that was: "Was the Deputy District Judge correct in law in his determination of the test as to whether the defendant had made out the statutory defence under section 172(4) Road Traffic Act 1988? Or in more mundane language: was the appellant properly convicted?[8]The other two questions can be dealt with quite shortly. The first concerned the evidential admissibility of the letter written by Dr Jones, to which I have referred, and the second asked the question whether the deputy district judge was correct in law in referring to and relying on one or more authorities which had not been drawn to the attention of the parties during the course of the case. As to the last of those there obviously may be cases where a court can make use of authorities that have not been referred to. Equally it is certainly normal, and in some cases absolutely necessary, that if the court is to rely on an authority which the parties have not had an opportunity of considering and which is important to the decision that they should be given an opportunity of doing so by some means. But, in reality, that question does not feature largely in the present case.[9]It appears that at the trial the question of the admissibility of Dr Jones' letter did feature as a matter for debate and the first part of the case stated by the deputy district judge concerns that question. The deputy district judge refers in the case stated to the decision of the Queen's Bench Division in DPP V Broomfield (2002) EWHC 1962 (Admin) 166 Justice of the Peace 736 as being a well-known authority for the proposition, as he put it, that if the notice is in reasonable form and requires the information to be given in a particular form then that form must be used. The decision of Broomfield and an earlier decision of the Divisional Court called Boss v Measures (1990) RTR 26 each concerned instances, one them under the Road Traffic Act 1988 and the other under a different piece of legislation, where a person was required to give information and where they had done so, they said, orally on the telephone.[10]The essence of the first of those decisions which was followed in the second, was that the legislation was to be construed inferentially as entitling the police seeking the information to stipulate, so far as it was reasonable, the form in which it should be supplied. And the decision in each of those two cases was that the form stipulated was reasonable and that the defendant in attempting to answer orally had not answered in a form which was acceptable and, accordingly, that convictions followed as a result.[11]Judge Wilkie QC, who was the deciding judge in Broomfield, in addition to citing a passage from what Woolf LJ (as he then was) had said in Boss v Measures, also pointed out that a purpose of seeking the information in section 172 of the 1988 Act was to enable proof of certain matters, including the identity of the driver of the vehicle, to be given in summary proceedings and, accordingly, there was an important reason why the information should be given in writing and, as the judge held, in the form in which it had been requested.[12]In my judgment, at least as it has turned out, the question of the admissibility of Dr Jones' letter took on a life of its own, which, as I say, as things have turned out, it did not deserve.[13]In this court there has been no issue but that this letter written by Dr Jones and the fact that it accompanied the nearly-blank form which had been sent to him and the fact that on that form he had written referring to the letter, that all that was without difficulty admissible in evidence before the deputy district judge. I think, however, that it is quite important to express my view that however it may be that the police operating section 172 are entitled to stipulate a written form in which the answers should be given, and however it may be that someone who attempts to answer not in that form but orally, as it might be on the telephone, would not be complying with what is required of them, that somebody who answers in writing in the way in which Dr Jones did in the present case is acting in substance entirely in accordance with the statutory requirement. Yes, he did not fill in the form, but he did provide the form itself, cross referred to his letter. His letter was a document which he had signed and the letter contains all the information in writing which the form had required and indeed more.[14]Accordingly, it does seem to me, first of all, that there was absolutely no respect in which he could properly be criticised for the way in which he had dealt with this matter by means of the letter and, secondly, that so far as it went that the letter was a proper compliance with section 172(2) of the 1988 Act.[15]I say 'so far as it went' because the form required him to state the name of the person who was driving the vehicle. He did not do so, and to that extent he had failed to comply with the statutory requirement. The question, and as it seems to me the only question before the district judge, therefore was whether he had sufficiently established the defence available to him under section 172(4), that is to say that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.[16]The deputy district judge found against him on that matter. He did so by making what, as it appears in the case stated, was a judgment of credibility. The relevant part of the case which contains this decision is in these terms:
"The Appellant gave brief evidence on oath. The evidence was consistent and he reiterated that he made enquiries himself as to the identity of the driver. He accepted that the form had been returned unsigned and without being completed at all. He acknowledged that the form was endorsed to the effect that when replying the form must be used. Photographs were produced which provided no clear indication who the driver was. 19. Plainly the Appellant had not ignored his responsibility but the question posed to the court by the Appellant was whether he was entitled to the benefit of the defence set out in section 172(4) of Road Traffic Act 1988. The Court had to consider this in the light of his failure to comply with the procedure set out in DPP-v-Broomfield (2002) EWHC 1962. The court formed the view that the defence was not made out for the following reasons: a. Section 172(4) of the Road Traffic Act 1988 is to be read in conjunction with section 172(2)(a) of the Road Traffic Act 1988. This inter alia says the defendant "shall give such information ... as he may be required to give" b. The whole purpose of the legislation is to enable the prosecuting authorities to make their own enquires as to whether a prosecution should follow an alleged offence and to consider the enquiries they need and require the notice to be returned duly completed. The form therefore is the catalyst for the police to make any further enquiries if required. The court was satisfied the Appellant knew that but chose not to do so, despite more than one request. c. The Appellant in the court's judgement was an intelligent man and as a fact would well understand the significance of completing the form. The Court found it implausible that he should believe that it was not possible to complete it. He was questioned closely about this and the court found him unconvincing. d. It seemed in the court's judgment that it was just as easy to endorse the form "driver unknown" and await the Respondent's enquiries upon return as to write a letter explaining his enquiries. The court came to the view that his reluctance to complete the form was the Appellant's mischief and in all the circumstances severely damaged his credibility. e. The Appellant clearly wanted to conduct the enquiry his own way and to that end reiterated in evidence that he had been making enquiries himself. The court heard him on oath on that point and saw his letters. The court had no independent evidence as to the veracity of his evidence and in particular no supporting witnesses to confirm that he had done all that claimed. In particular, he told the court that his son had carried out some enquiries. The court did not consider that the Appellant would be adequately discharging his responsibilities by delegating them to another from whom the court had not heard. f. Due to all the circumstances the court found the defence case to be unconvincing as a matter of fact and found that the Appellant had not shown that he had met the test set out in section 172(4) Road Traffic Act 1988. The court accordingly convicted the appellant..."
[17]Now it is perfectly true that the decision and judgment that that contains is, in form and indeed in substance, a judgment as to credibility. It is, of course, the case, and it goes without saying, that this court has not heard the evidence, has not seen Dr Jones give evidence and is in no position to form an independent judgment as to his credibility. But this court has to proceed on the basis of the material that has been provided by the deputy district judge in the case stated. And I have to say that as I read the reasons given for the judgment that the defence under section 172(4) of the 1988 Act was not made out as relying not exclusively, but to a substantial extent, on a judgment of credibility based on the way in which Dr Jones had responded to the form. The case says in terms that the court came to the view that his reluctance to complete the form was the appellant's mischief and in all the circumstances severely damaged his credibility. Exactly what that means is perhaps debatable, but, in general, it plainly contains a judgment that Dr Jones' credibility was severely damaged because of the way in which he had responded to this form.[18]That is all premised, as I read this case, upon a decision that because of the case of Broomfield it was in law obligatory for Dr Jones to complete and sign the form himself and that he would not be acting lawfully in responding to the form in the way that he did. Now as I have indicated, in my judgment, that was erroneous. This was a perfectly proper and, indeed, as it seems to me, entirely helpful way of responding to this form. It was, as I have said, in writing. It was signed by Dr Jones and it contained all, and more, of the information which the form required, subject, of course, to the fact that Dr Jones maintained that he was unable to identify the person who was driving the vehicle on the day in question.[19]True it is that part of the case, as I have read it, which deals with credibility refers to a judgment made of the evidence given on oath. It also, oddly, includes a judgment that was adverse to Dr Jones because it is said that he had no independent evidence as to the veracity of his evidence and no supporting witnesses. Of course it is the case that if you have a lot of witnesses who credibly support your evidence you are in better shape than if you do not. But, nevertheless, in my judgment it is not to be held positively against a person's credibility that they do not have supporting witnesses. However, that may be, as I have indicated, I am driven to the conclusion that a substantial and perhaps the major reason for the adverse judgment of credibility depended upon this erroneous idea that he had not complied with the law in sending the letter and that he knew that this was a wrong thing to do.[20]In my judgment that was erroneous and I cannot but reach the conclusion, in those circumstances, that in large measure the deputy district judge's reasons for making his adverse finding of credibility depended on this feature of the case where I regret to say, in my judgment, he was wrong.[21]We are urged by Mr Bennett, with understandable caution, to say that, nevertheless, this conviction could be upheld upon the basis that there was oral evidence and that as a result of it a judgment of credibility was made and Dr Jones was disbelieved. It was possible, he submits, to be sceptical about the substance of the defence as opposed to this red herring about the form in which the information had been given. Well, understanding, as I do, that that is a submission which is open to the prosecution to make, I am afraid I have reached the conclusion that it should be rejected. It seems to me that this conviction was, in large measure, based on an erroneous judgment as to the matter of the form and that, in those circumstances, it seems to me only right that this appeal should be allowed. The matter should be returned to the deputy district judge with a direction to acquit. The direction to acquit is in circumstances where Mr Bennett does not seek a retrial in the event that this appeal is allowed.[22]Accordingly, in my judgment, the appeal should be allowed in those terms.

MR JUSTICE NELSON: I agree.

[24]MR HALL: My Lords, can I raise the matter of costs?

LORD JUSTICE MAY: Yes.

[26]MR HALL: The appellant is in fact legally aided for these proceedings, but I do not know why or how, but I have seen the order, and I can show it to you if you like, but he certainly has a representation order for today. But in the magistrates' court he was not legally aided and, of course, under section 16 of the Prosecution Offences Act this court in determining proceedings in relation to criminal matters does have power to order a cost order for the appellant from central funds and looking at the practice direction that accompanied the Act that includes the costs in the court below.

LORD JUSTICE MAY: In the court below.

[28]MR HALL: My Lords, I actually have, because the solicitor is with me today, the invoice that was sent to Dr Jones, or a copy of it, sorry, relating to the seven appearances at the magistrates' court.

LORD JUSTICE MAY: What went on on the other six?

[30]MR HALL: I do not know if my Lord heard that, it was listed for trial on three occasions and adjourned for various reasons, but I have that figure, the total including VAT is £1,468.75.

LORD JUSTICE MAY: Well, if the application is for an order for costs out of central funds, as I understand it is, is it appropriate in the absence of central funds to actually specify the figure?

[32]MR HALL: Under paragraph 1.6 of the Practice Direction, it states that except where the court has directed in an order for costs from central funds that only a specified sum shall be paid the amount of costs to be paid shall be determined by the appropriate officer of the court. It does not say in the Practice Direction that one would normally have representations from----

LORD JUSTICE MAY: No, I understand that. But plainly we could assess the costs, but when we are asked to assess the costs in relation to seven hearings and nobody is here to say that that is too much, would it not be better to have them assessed?

[34]MR HALL: Simply in order to save the inconvenience to those doing the assessment, based on the fact that there were seven hearings, three of which were listed for trial, I would submit though it seems high at first blush, £1,468 for a solicitor advocate is reasonable.

LORD JUSTICE MAY: It does not sound terribly much for seven hearings, I must say. Mr Bennett, do you have anything to say about these costs?

[36]MR BENNETT: My Lord, no. In fact, obviously, in the way of things normally were a defendant acquitted after the event he or she would be reimbursed.

LORD JUSTICE MAY: Yes.

[38]MR BENNETT: And in normal proceedings, again the amount I cannot comment on.

LORD JUSTICE MAY: No.

[40]MR BENNETT: But certainly the matter has been listed for trial on a number of occasions. The doctor would have had to travel that distant, presumably stay overnight somewhere beforehand.

LORD JUSTICE MAY: Yes, especially if he is coming from north Wales. It is not high for seven hearings.

[42]MR BENNETT: I agree. It is entirely a matter for your Lordships.

LORD JUSTICE MAY: Mr Hall, what we are inclined to do is to round it down to £1,450, to order that to be paid, but to give the paying people liberty to apply to the magistrates' court if they want to.

[44]MR HALL: I am grateful for that.

LORD JUSTICE MAY: In the matter of assessment that is.

[46]MR HALL: Thank you.

LORD JUSTICE MAY: Okay, we will do that. Thank you very much. We are grateful to both of you.

Cited in 3 later judgments