Gidden v Chief Constable of Humberside [2009] EWHC 2924 (Admin)

Case No CO/7766/2009[2009] EWHC 2924 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 29th October 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE OPENSHAW
Between
PETER JOHN GIDDENAppellantv
Between
CHIEF CONSTABLE OF HUMBERSIDERespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Maddon (instructed by Turner Coulston) appeared for Appellant for The Respondent did not attend and was not represented
J U D G M E N T

LORD JUSTICE ELIAS:

[1]This case raises an issue of some topicality given the current postal strike, and no small interest. It is this. Under the Road Traffic Offenders Act 1988 a warning of intended prosecution must, in general, be served on the defendant within 14 days of an offence being committed before he can be convicted for that offence. The relevant offences subject to this provision are identified in Schedule 1 to the Act and they include the speeding offence in issue in this case. If the police send the notice of intention to prosecute by first class post so that it ought, in the ordinary course of the post, to be received within time but in fact it is not, is a subsequent conviction lawful?[2]The background is as follows. On 22nd February 2008 the appellant was convicted at Scunthorpe Magistrates Court of driving a motor vehicle on a motorway, the M180, at a speed exceeding 70 miles per hour contrary to regulation 3 of the Motorways Traffic (Speed Limit) Regulations 1974, section 17(4) of the Road Traffic Regulation Act 1984 and Schedule 2 of the Road Traffic Offenders Act 1988. He was ordered to pay fines and costs and his driving licence was ordered to be endorsed with three penalty points.[3]The appellant appealed to the Crown Court at Great Grimsby against conviction and sentence. He contended that service of the notice of intended prosecution was defective and did not comply with section 1(c) of the Road Traffic Offenders Act 1988. This requires service to be effected within 14 days. The notice of intended prosecution had been sent to him by first class ordinary post in circumstances where he would ordinarily have been expected to receive it in 14 days, but in fact it was delivered 16 days after the commission of the offence, apparently as a result of delivery delays following a postal strike. The prosecution conceded that the delivery was late.[4]On 27th February 2009, before His Honour Judge Tremberg and two justices, the Crown Court dismissed his appeal and held that service was properly effected, notwithstanding the fact that the appellant did not receive the notice until 16 days after the commission of the offence. He now appeals that decision by way of case stated. The question certified for the opinion of the court is this:
"Whether, upon a proper construction of section 1(1)(c), section 1A(c) and section 1(3) of the Road Traffic Offenders Act 1988 a Notice of Intended Prosecution should be regarded as having been properly served where the Notice was sent to the Defendant by first class ordinary post on a date that would normally lead to it being delivered within the 14 day time limit but where the Court is satisfied that it was actually delivered after the 14 day time limit."
This is the only ground of appeal. The appellant accepts that the elements of the offence are satisfied. The law[5]Subsection 1(1) of the Road Traffic Offenders Act provides as follows:
"Subject to section 2 of this Act, a personal shall not be convicted of an offence to which this section applies unless - (a) he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or (b) within fourteen days of the commission of the offence a summons (or, in Scotland, a complaint) for the offence was served on him, or (c) within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was - (i) in the case of an offence under section 28 or 29 of the Road Traffic Act 1988 (cycling action), served on him, (ii) in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence."
In this case neither paragraph (a) or (b) are engaged: we are only concerned with (c).[6]The method of serving notice is then specified in subsection (1A), which is as follows:
"(1A) A notice required by this section to be served on any person may be served on that person - (a) by delivering it to him; (b) by addressing it to him and leaving it at his last known address; or (c) by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address."
[7]It is only since 1994, when this section was introduced by the Criminal Justice and Public Order Act, that service by first class post has been permitted. Prior to that service by post had to be effected by using registered post or recorded delivery.[8]Subsection 1(3) then specifies:
"The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved."
Accordingly, the burden is placed on the defendant to show that there has been no compliance with the requirements.[9]These provisions do not in terms provide when the notice is served. That is a matter of fact. However, section 7 of the Interpretation Act creates a presumption that letters sent by post will be delivered in the ordinary course of post. It states: "Where an Act authorises or requires any document to be served by post (whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 10. Again, therefore, this establishes a presumption that can be rebutted.[10]Accordingly, subsection 1(3) of the 1988 Act deems that there will be compliance with subsection (1) unless the contrary is proved, and section 7 of the Interpretation Act deems service of the letter to have been effected at a time when it would have been delivered in the ordinary course of post, defined as after two business days, unless the contrary is proved. The effect is that there is a rebuttable presumption that service has been effected in the ordinary course of post.[11]Subsection (2) then provides for a situation where the presumption of service is, in effect, an irrebuttable one. This is achieved by a deeming provision as follows:
"A notice shall be deemed for the purposes of subsection (1)(c) above to have been served on a person if it was sent by registered post or recorded delivery service addressed to him at his last known address, notwithstanding that the notice was returned as undelivered or was for any other reason not received by him."
The important point to note is that, whereas service can be effected by recorded delivery, registered post or first class post, this deeming provision does not apply to notices of intended prosecution sent by first class post.[12]The issue is how these provisions apply to the circumstances of this case. In my judgment, the position is clear. Since the notice was sent by first class post, the presumption is that it was served on the date when it would have been delivered in the ordinary course of the post. On the facts of this case that would have been 12 days after the commission of the offence. However, that presumption has been rebutted by the evidence, accepted by the prosecution, that in fact that letter was not delivered until 16 days after the commission of the offence. The deeming provision or irrebuttable presumption established by section 1(2) does not save the prosecution because it does not apply to delivery by first class post.[13]The court below effectively treated what is a rebuttable presumption of proper service as being irrebuttable. They were understandably influenced by a passage from the 2009 edition of Archbold at paragraph (xx), which states:
"The notice must be posted on such a day that it would reach the defendant in the ordinary course of post within 14 days of the commission of the offence."
In my judgment, that statement is misleading. Whilst accurate insofar as registered mail and recorded delivery is concerned, it mis-states the position where the notice is sent by first class post. A different rule then prevails. There is no proper service if the applicant is able to demonstrate that the notice was not in fact served within the specified timescale. It is not altogether clear why the irrebuttable presumption in section 1(2) applies only to registered mail or recorded delivery and not to delivery by first class post. A possible explanation is that it was a simple oversight. As I have indicated, it is only following an amendment in 1994 that the authorities were given power to serve the notification by way of sending it by first class post. Until that time, if served by post, it had to be recorded delivery or registered mail. The deeming profession, or irrebuttable presumption as I have described it, in subsection (2) originally found its way into predecessor legislation in the Road Traffic Act 1960 and applied to both the methods of postal service then allowed. It may be by oversight that it was not extended to the case where letters are sent by first class post when that was permitted as an appropriate method of service. But whether an oversight or whether deliberate policy, the wording of the legislation is, in my view, clear.[14]I have so far considered the matter free from authority and solely as a matter of statutory construction. I briefly consider some of the authorities which have been identified in the skeleton argument put before us, and in my view they confirm this analysis.[15]In R V Appeal Committee of County of London Quarter Sessions, Ex parte Rossi [1956] 1 All ER, the claimant had been found by the Quarter Sessions, hearing an appeal from the magistrates, to be the father of an illegitimate child and therefore liable to pay maintenance. He sought an order of certiorari to quash the decision of the Quarter Sessions on the grounds that he had never received notice of the hearing and had not been present when the order was made. Section 3(1) of the Summary Jurisdiction Appeals Act provided that he should have been given due notice of the date, time and place fixed for the hearing. A notice had been sent by registered letter but it had not been received and was returned to the court. The Court of Appeal (Denning, Morris and Parker LLJ) held that, in the context of this Act, the giving of notice required that notice should not merely be dispatched but should be delivered, and delivered in time to enable the party concerned to prepare for and attend the hearing. The court referred to section 26 of the Interpretation Act 1889 (an earlier version of the current section 7) and noted that, although this created a presumption that letters sent by registered post would be delivered in the ordinary course of post, that presumption was rebuttable and had been rebutted here.[16]In Beer v Davies [1958] 2 QB 187, a bus driver was allegedly involved in an act of careless driving and was sent notice of an intention to prosecute by registered post ten days after the accident. In fact he was on holiday and the letter was returned without ever being delivered. The Divisional Court (Goddard CJ and Hilbery and Donovan JJ) held that this did not constitute appropriate service within 14 days within the meaning of the relevant legislation, then section 21 of the Road Traffic Act 1930. The mere sending of a letter did not constitute service and section 26 of the Interpretation Act did not help because the presumption of service in the ordinary course of post had again been rebutted on the facts.[17]The next authority is Groome v Driscoll [1969] 3 All ER 1638. This was an appeal by way of case stated to the Divisional Court (Parker CJ, Ashworth and Cantley JJ) where the defendant, again prosecuted for a minor driving offence of driving without due care and attention, did not receive the information of intended prosecution within 14 days as the statute required. Parker CJ noted that, but for the change in the law following the decisions of Rossi & Beer, the argument would have succeeded. However, by that date Schedule 4 to the Road Traffic Act 1962 had expressly provided, in words which are virtually identical to those contained in the current subsection 1(2), that the notice would be deemed to have been served, even if in fact it was not, provided it was sent by registered post or recorded delivery addressed to the last known address. In view of that the court was satisfied that there had been proper service.[18]A small refinement of that principle was established by the Divisional Court in Nicholson v Tapp [1972] 1 WLR 1044. In that case a summons had to be served within 14 days and it was sent by registered post on the fourteenth day, so that in the normal course of post it would not have arrived until after the 14 days had elapsed. The prosecution sought to rely upon the deeming provision in Schedule 4, but that was held only to be applicable in circumstances where, in the ordinary course of post, the letter would have been received in time. That was not the position in that case. In short, the irrebuttable presumption is that there is service and that it is effected on the date the letter would be delivered in the ordinary course of post, not that it is effected when posted.[19]In my judgment, these authorities are entirely consistent with the analysis I set out above. Rossi and Beer show that, prior to the introduction of the irrebuttable presumption, a letter delivered, even by recorded delivery or registered post, would not be served in the timescale required if in fact the defendant could show that he did not receive the letter within the prescribed period. It was only once the deeming profession was introduced that the court could treat such service as having been lawfully completed. However, that deeming provision in terms, as I have said, only applies where the letter is sent by recorded delivery or registered post, so it is does not apply to the letter sent in this case.[20]Accordingly, in my judgment, this appeal must succeed. The answer to the question posed in the case stated is that the notice of intended prosecution was not sent in time and could not be regarded as having been properly served. It follows that the conviction must be set aside.[21]I appreciate that this construction of the legislation may create problems for the police and prosecuting authorities, particularly when the postal service is on strike with the inevitable delays in delivery. The authorities must then adopt other means of warning, provided by section 1, if they are to avoid the risk of late delivery. Alternatively, the remedy lies in the hands of Parliament by amending section 1(2) of the 1988 Act. It is not, however, for the courts to overcome the resulting inconvenience by distorting the clear language which Parliament has adopted.

MR JUSTICE OPENSHAW: I agree.

[23]MR MADDON: The issue arises of costs. I wonder if your Lordship would hear me on that?

LORD JUSTICE ELIAS: Yes.

[25]MR MADDON: The normal rule is, as I understand that, if an appeal succeeds by a private applicant obviously then an application may be made for costs of the appeal out of central funds, which is then assessed in the usual way. My Lord, I wonder if you would grant a costs order in Mr Gidden's favour in that way, payable out of central funds.

LORD JUSTICE ELIAS: Yes, I think that would be appropriate in this case.

[27]MR MADDON: To be assessed. I am grateful.