Nembhard v Director of Public Prosecutions [2009] EWHC 194 (Admin)

Case No.CO/7891/2007

[2009] EWHC 194 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 21 January 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE SIMON

Between

WILLIAM NEMBHARDClaimant

Between

DIRECTOR OF PUBLIC PROSECUTIONSDefendant

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Mr Raza Husain (instructed by Birnberg Peirce) appeared for Claimant

Miss Bozzie Sheffi (instructed by CPS, Bedfordshire) appeared for Defendant

J U D G M E N T

LORD JUSTICE MAURICE KAY:

The

[1]appellant, William Nembhard, stands convicted in the Magistrates' Court, sitting at Luton, of two offences: in short, that on 25 June 2006, being a person driving a specified motor vehicle, having been required to produce first his driving licence and secondly his certificate of insurance, he failed to produce those documents for examination by the police constable in question.

[2]The case was heard by a District Judge. In the case stated, the District Judge sets out these findings of fact:(a) PC Glendenning knew of the appellant and had been present previously when the appellant had been stopped by the police. He had not been the lead officer in any of these stops.

(b) The appellant was on this occasion driving a different motor car from that which he had been driving when previously stopped.

(c) On 24 June 2006 PC Glendenning had been called to the home of the appellant's wife. This was at her request. She did not share the appellant's name and the officer was unaware of the relationship between the caller and the appellant.

(d) When the officer attended the property, [the appellant's wife] was not present but [he] was. The appellant answered the door to PC Glendenning and slammed it in his face. PC Glendenning again rang the doorbell, explained that he had called to see [the appellant's] wife and the appellant told him that she was not present, that the officer should talk to her and again slammed the door in his face.

(e) On 25 June 2006, PC Glendenning saw the appellant driving a vehicle that he did not recognise. He noticed that the defendant was not wearing a seat belt. He conducted a PNC check which showed the car to be registered to a car hire company in Birmingham. He drove past the car that the appellant had been driving. As he did this the appellant left the car. PC Glendenning turned around in his vehicle and returned to the appellant's vehicle as he came back.

(f) As the officer was unable to verify the details given to him by the appellant as the computer system was not working, he asked the appellant to produce his documents, and when the appellant refused, issued him with a Form HORT I. The appellant said he would not produce any documents. The officer returned to his vehicle and the appellant put the HORT I under the windscreen wiper of the police vehicle.

(g) The appellant did not produce his documents to Luton Police Station.

(h) The appellant's wife's vehicle had been stopped 57 times in the previous 12 months, and on 55 occasions the appellant had been the driver.

(i) The appellant had a valid driving licence and was insured to drive the car in question on 25 June 2006.

[3]At the end of the defence case, but not before then, the solicitor then representing the appellant put forward arguments as to why the appellant should be acquitted. These were:(1) There had been a campaign of harassment evidenced by the 55 previous occasions.

(2) The request for the documents was made not for the purpose for which the officer was empowered by statute to make such a request, but for the collateral and improper purpose of pursuing the campaign of harassment.

(3) In those circumstances the appellant had a defence because he had not been lawfully required to produce the documents.

(4) In any event, the prosecution was an abuse of process.

[4]At a later stage of the case stated, the District Judge summarises his approach to those submissions. In paragraph 7 he states:

"i. Section 164 of the Road Traffic Act 1988 imposed a duty upon the driver to produce his driving licence when required to by a constable. It was for the appellant to determine whether the constable required the licence to enable him to ascertain the information contained in section 164(1)(d). ii. Section 165 of the Act imposed a duty upon a driver to produce evidence of insurance and a test certificate if the vehicle required one, when required to do so by a constable. That requirement was in no way qualified by the words of the section. There was therefore an absolute duty on the appellant to produce the evidence of insurance. ... iv. Following the judgment in the House of Lords in R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42, my jurisdiction was to protect the court's process from abuse limited to matters directly affecting the fairness of the trial of the appellant and did not extend to the maintenance of the [rule] of law, overseeing executive action and disciplining those undertaking such action, a duty vested in the High Court alone. v. I was satisfied on the balance of probabilities that the appellant had been stopped 55 times by the police in the previous year while driving his wife's motor vehicle. He declined to act as required by the police officer. Process was initiated expeditiously. The appellant was represented and was able to put forward his defence. Over an above the number of times that the appellant was stopped by the police, there was no evidence adduced on his behalf to show that the prosecution was instituted oppressively or unfairly. He had made no formal complaint regarding his alleged treatment by the police. vi. I found no basis in which to stay the proceedings as an abuse."

[5]The District Judge then posed three questions for the opinion of this court. The first relates to the offence prescribed by section 164. By section 164(1), a person driving a motor car on a road "must, on being so required by a constable ... produce his licence ... for examination, so as to enable the constable ... to ascertain the name and address of the holder of the licence, the date of issue, and the authority by which [it was] issued."

[6]The question posed by the District

Judge so far as that section is concerned is in these terms:

"Whether section 164 of the Road Traffic Act 1988 imposes an absolute duty on a person driving a motor vehicle to produce his driving licence to a constable."

[7]As to that, there is a simple answer -- indeed, it is common ground. An officer can only require a driver to produce his licence if the requirement is for the purpose specified in section 164(1), namely "so as to enable the constable to ascertain the name and address of the holder of the licence, the date of issue, and the authority by which it was issued". Accordingly, if the officer requires production not in order to ascertain those matters, for example because he is already aware of them, but in order to discomfort, inconvenience and harass the driver, the requirement is not lawful and the driver commits no offence by failing to comply with it. That said, its application to this case is not simple. The findings of fact do not disclose whether on any of the 55 previous occasions the appellant had been required to produce his licence, let alone whether he had been required to do so on any occasion when PC Glendenning was involved. We are told, although it is not in the case stated, that the previous occasions were not all necessarily concerned with suspicion of driving offences. We were also told, but not by the case statement, that the appellant was not charged with any offence on any of the 55 previous occasions. The findings of fact are silent on the question whether, on 25 June, PC Glendenning already knew the details he was requiring the appellant to prove by production of the licence.

[8]Even if there was a year-long campaign of harassment, the findings of fact do not establish that the events of 25 June formed part of it, or that PC Glendenning was party to it. It is common ground that the appellant was not wearing a seat belt. He was driving a car which the officer did not recognise. The officer established via the Police National Computer that it was a hire car. When asked for his name, address and date of birth, the appellant supplied them. This is established by the HORT I, which has been produced in court this morning and which was referred to in the case statement.

[9]When the officer then sought to re-access the PNC, it was not working. The finding of fact is to the effect that, but for the malfunction of the PNC at that stage, the officer would not have required production of the documents, or at least the finding is consistent with that construction. As there is not a specific finding that PC Glendenning was improperly motivated when he required production of the documents, I do not consider that there is material that would enable us to quash the appellant's conviction of the offence under section 164.

[10]I turn to the certificate of insurance and the offence under section 165. Section 165 obliges a person driving a motor vehicle on a road, on being so required by a constable, to give his name and address and the name and address of the owner of the vehicle, and to produce certain documents including the relevant certificate of insurance. Unlike section 164, section 165 does not specify in terms the purpose for which an officer is empowered to require production of the certificate of insurance. However, the purpose is obvious, namely to ascertain whether at the material time appropriate insurance cover is in place. Even absent express specificity of the purpose in the section, if an officer purports to use his powers under section 165 when in truth he is improperly motivated and simply wishes to harass an insured driver the consequences would be the same as under section 165. In my judgment, the driver would have a defence to a charge of failure to produce the insurance certificate.

[11]The question posed by the District

Judge is:

"Whether section 165 of the Act imposes an absolute duty on a person driving a motor vehicle to produce a relevant certificate of insurance or such other evidence that the vehicle was not being driven in contravention of section 143 of the Act."

[12]The answer is, for all practical purposes, the same as the answer to the first question. Applying that approach to this appeal, the appellant runs into the same difficulty as with the section 164 offence. The findings of fact specific to 25 June and PC Glendenning are not sufficient to enable us to interfere with his conviction.

[13]I turn to abuse of process. It is well-known that, in general, a prosecution made be stayed as an abuse of process if, on a balance of probabilities, the defendant cannot have a fair trial or if it would be unfair to try him. I refer to those as "the two limbs".

[14]The second limb is exemplified by cases such as ex parte Bennett above, and Mullen [1999] 2 Crim App R 143. They are examples of abuse of power by officials of the state, including police officers. In the Crown Court the trial judge has jurisdiction to stay proceedings by reference to either limb. However, on the authorities, in a summary trial, the magistrates or a District Judge can only stay by reference to the first limb and not the second, which is a matter for the High Court: see Bennett; R v Aldershot Youth Court ex parte Anderson [1997] (CO/1911/96); and R v Belmarsh Magistrates' Court ex parte Watts

[1999] EWHC Admin 112

; [1999] 2 Crim App R 188.

[15]In the present case, the freestanding abuse application was essentially by reference to the second limb. The District Judge correctly concluded that he could not deal with it on that basis. Nevertheless, he found some potentially relevant facts, including the 55 previous occasions and the fact that on 25 June the appellant was licensed and insured. Indeed, the inference is that he had been on all the occasions. The District Judge did not in terms find that the 55 previous occasions upon which the appellant had been stopped were part of a campaign of harassment. Moreover, even if that was his view, he made no adverse finding about PC Glendenning in that regard. Indeed, as I have related, he made findings which appear adequately to explain the conduct of PC Glendenning on 25 June, or at least they are susceptible to that construction.

[16]The third question posed by the District

Judge is in these terms:

"If the duties imposed by section 164 and section 165 of the Act are absolute, can the Magistrates' Court stay the proceedings as an abuse when persuaded on the balance of probabilities that the constable was not seeking the information for the purposes identified in those sections?"

[17]The answer to that is that, whether or not the duties are "absolute", and I have found that in at least one sense they are not, if an officer is improperly motivated in the way I have described, there may be an abuse of process, but because it is of the second limb type rather than the first, it is one which can only be found by this court and not in the Magistrates' Court. It is apparent from what I have said that, in my judgment, we lack the material upon which we might find that the prosecution, in relation to the events of 25 June, is a second limb abuse of process.

[18]Accordingly, I am driven to hold that the appellant's appeal must be dismissed. However, I make these observations:

[19](1) For a driver to be stopped once a week for a whole year without any criminality being disclosed is difficult to accept as routine, coincidental or normal. It sounds like harassment, in which case it is to be deplored.

[20](2) If a defendant in a summary trial seeks to establish a second limb abuse of process (and I emphasise that nothing I am saying now relates to first limb applications), it is essential that his legal representatives formulate a timely application so that the prosecution and the court know what is being advanced. That is no more than a statement of the obvious, particularly in the light of the provisions of the Criminal Procedure Rules.

[21](3) As the authorities do not permit the application to be determined in the Magistrates' Court -- regrettably, in my view -- consideration must then be given as to how to proceed. One way would be to adjourn so as to permit an application for judicial review of the decision to prosecute or to continue to prosecute. In that case, the application to this court will have to set out the evidential basis to which the prosecutor and/or the police can respond. The disadvantage of proceeding in this way is that this court is not in the best position to evaluate the evidence of controversial witnesses. It also causes delay.

[22](4) Alternatively, the summary trial can proceed to a conclusion without a ruling on the above application. If there is a conviction, there can be an appeal to this court by case stated, in which case this court will be greatly assisted by full findings of fact by the Magistrates' Court, which will have heard the evidence even though it has not been able to make a ruling. This was the appropriate procedure in the present case, but it has led to an unsatisfactory outcome in the sense that the findings of fact are inadequate. I think this is at least partly because the abuse application was not the subject of timely notice. To raise it only when it was raised may well have disadvantaged the appellant, as well as making the task of the prosecution and the District Judge more difficult.

[23](5) The jurisdictional limit in the Magistrates' Court in relation to second limb abuse applications might have been successfully bypassed in this case if there had been a finding of fact that on 25 June PC Glendenning required production of documents not in the exercise of his powers for the purposes for which they were conferred by statute, but for an improper purpose. However, as I have previously set out, in my judgment the findings of fact are not sufficient for us to make that assumption. I would dismiss the appeal.

MR JUSTICE SIMON: I agree.

LORD JUSTICE MAURICE KAY: Thank you both very much.

[26]MR HUSAIN: My Lord, I am most grateful. There is a representation order in place.

LORD JUSTICE MAURICE KAY: Do you need an order for an assessment?

[28]MR HUSAIN: I think so, my Lord.

LORD JUSTICE MAURICE KAY: Of course you may have it.

[30]MR HUSAIN: Very grateful, my Lord.