Horner v Director of Public Prosecutions [2005] EWHC 2918 (Admin)

Case No CO/4951/2005[2005] EWHC 2918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 11th November 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE PENRY-DAVEY
Between
HORNERClaimant-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 D SONN (instructed by Sonn MacMillan) appeared for CLAIMANTMR K BARKER (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE PENRY-DAVEY: This is an appeal by way of case stated from the decision of the Bath Magistrates' Court on 16th May 2005 convicting the appellant of an offence under section 172(3) of the Road Traffic Act 1988. I need, for the purposes of this judgment, to read only a small part of that section in relation to the failure to provide information. I read subsection (2) which provides that:
"Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies -- (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 the Chief Officer of Police; and (b) any other person shall, if required as stated above, give any information which it is in his power to give and may lead to identification of the driver."
Subsection (3) is in the following terms:
"Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence."
[2]Before embarking upon the resolution of the issues in the substantive appeal, the court this morning has considered an application on behalf of the appellant that the case stated be remitted to the Justices for amendment of the case in relation to a particular question, as follows:
"Did the Justices receive admissible evidence that a requirement was made of Mr Horner to give information as to the identity of the driver of the vehicle at the relevant time by or on behalf of the Chief Officer of Police and that he failed to do so?"
[3]The case stated starts with the giving of some information, which is entirely irrelevant to the case, about the number of cases that the court deals with in relation to this section. It then sets out the history of the case, starting with the information on 3rd November 2004 and the course that events took until the hearing on 16th May 2005, as to those who attended on behalf of the parties and the fact that the appellant was not present but represented. It recites in brief form the evidence that was called, including a witness called Katherine Creach, a section 9 statement relating to the original driving incident which formed the basis of the requirement in the case for information, and states in paragraph 8 that the bench were satisfied so that they were sure that the appellant was the registered keeper of the vehicle and that he had failed to provide the information required by section 172(3) of the Act.[4]It then sets out in rather more detail the evidence that was called on behalf of the prosecution, including a recital of the substance of the cross-examination which related to the evidence that had been given about the computer information about the identity of the driver and how that was to be proved. Then there was the address to the bench on behalf of the appellant arguing that the prosecution had not established that the appellant was the registered keeper of the vehicle. That, it appears, was the prime issue with which the court was concerned on that occasion.[5]The Magistrates were advised, according to paragraph 10, to decide on the strength of the evidence that they had heard whether they were satisfied so that they were sure beyond reasonable doubt that the appellant was the keeper of the vehicle in question and, if so, whether he had failed to provide information as to the identity of the driver, as required, to the Chief Constable.[6]The question for the opinion of this court was in the following terms:
"Did we receive admissible evidence such as to entitle us to be sure that Mr Horner was the keeper of the vehicle at the relevant time?"
That was, in substance, the issue with which the trial had been concerned and to which cross-examination appears to have been directed. However, following the drafting of the case, representations were made by letter on a number of occasions on behalf of the appellant that the case should be amended by the Justices, effectively to contain the question and information relating to it that I set out at the commencement of this judgment. That invitation, with the exception of one small amendment that was permitted, was resisted and the case in the final form was as I have indicated.[7]It is clear from submissions made on behalf of the appellant this morning by Mr Sonn that the case as it stands is, to say the least, unclear as to what evidence there was on the issues contained in the question and what conclusion the Justices came to in respect of those issues, albeit that in composite form they are stated at one stage in the case as it stands. Having considered the position, I would be minded to say that it is very difficult for this court properly to resolve issues in respect of this case and the guilt of the appellant when the case is significantly lacking in any information or in any particulars as to what evidence there was in relation to these issues, what evidence was adduced, and on what evidence the Justices based such conclusions as they reached in relation to the issues set out in the question.[8]Mr Barker sought to resist the suggestion that the case should be remitted and invited the court to decide the matter on the case as it stands. But in the alternative, he suggested a further question if the case were to be remitted to the Justices. In substance, that question is contained within the form of question that is proposed on behalf of the appellant.[9]In all the circumstances, I would be minded to remit the case to the Justices to be amended by the addition of the question that I have set out, namely: Did the Justices receive admissible evidence that a requirement was made of the appellant to give information as to the identity of the driver of the vehicle at the relevant time by or on behalf of the Chief Officer of Police and that he failed to do so? Additionally, to set out by way of amendment their findings on those issues and the evidence, if any, on which those findings were based.

LORD JUSTICE MAURICE KAY: I agree.

[11]MR BARKER: My Lord, sometimes in these cases all that is sent back to the court is the order of the court. Can I ask that a transcript of the judgment be produced?

LORD JUSTICE MAURICE KAY: Certainly. We will direct that this court sends a transcript to the Justices.

[13]MR BARKER: Thank you, my Lord.

LORD JUSTICE MAURICE KAY: Anything else?

[15]MR BARKER: No, my Lord.

LORD JUSTICE MAURICE KAY: Thank you all very much.