Duff v The Director of Public Prosecutions [2009] EWHC 675 (Admin)

[2009] EWHC 675 (Admin)

Case No CO/6310/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Thursday, 5 March 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE GOLDRING

MR JUSTICE SWEENEY

Between

ANDREW DUFFClaimant

Between

THE DIRECTOR OF PUBLIC PROSECUTIONSDefendant

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Mr M Sylvester (instructed by motoringlawyers.com) appeared for Claimant

Miss R Fairbairn (instructed by CPS) appeared for Defendant

J U D G M E N T

LORD JUSTICE GOLDRING:

[1]My Lord will give the first judgment of the court.

[2]MR JUSTICE SWEENEY: This is an appeal by way of case stated against a decision of Mr Recorder Crookenden QC and justices sitting at the Crown Court at Maidstone, who on 14 March 2008 dismissed an appeal by the appellant against a conviction imposed by justices at the Dartford Magistrates' Court on 23 November 2007 for an offence of failing to provide information, contrary to section 172(3) of the Road Traffic Act 1988 ("the 1988 Act").

[3]The information and summons upon which the appellant was convicted alleged that he had committed the offence "between 7 June 2006 and 6 July 2006". Taken as a whole, the case stated shows that the following facts were found: 1. At 21.54 on 12 May 2006 a Volkswagon motor car, registration mark 0Y54 FOK, caused the Truvelo Combi device on Birchwood Road, Wilmington to activate. 2. The speed recorded was 41mph which was in excess of that legally permissible for the road namely 30mph. 3. Subsequently, the Police National Computer was checked and it was discovered that the registered keeper of the car was Sharon Duff of 1 Chestnut Grove, Dartford, Kent, the wife of the appellant. 4. On about 23 May 2006, a conditional offer of a fixed penalty, a Notice of Intended Prosecution and a notice under section 172(2)(a) of the 1988 Act requesting information were duly sent to Sharon Duff. The relevant form as later returned is exhibited to the case as exhibit 1. It makes clear that the owner if not the driver should complete the relevant section, but not pass the document to the driver before returning it. In the event, it was the appellant who completed part 2 of the document, which was therefore in these terms:

"I was the owner/keeper/hirer of the vehicle at the time of the alleged offence but I was NOT the driver. The driver was Andrew Duff of 1 Chestnut Grove, Wilmington, Kent ..."

His driver licence number is then given and his date of birth, and it is, on its face, signed "A Duff" on 27 May 2006. The form as completed was received by the police on 1 June. 5. on 7 June a Notice of Intended Prosecution and a request for information under section 172(2)(b) of the 1988 Act were sent to the appellant, but no reply was ever received to that request. 6. The appellant was summoned for failing to furnish information and his case was heard in the Dartford Magistrates' Court on 23 November 2007. The appellant gave no evidence. He was convicted of failing to furnish information. 7. The appellant, by notice of appeal dated 3 December 2007, appealed against his conviction and sentence to the Crown Court at Maidstone. 8. The facts as summarised were the subject of an admission pursuant to section 10 of the Criminal Justice Act 1967, agreed by both prosecution and the defence at the appeal. 9. The appellant gave evidence before the Crown Court, which was uncontradicted and accepted by the court, to the following effect. The request for information dated 23 May 2006 addressed to the appellant's wife was passed by her to him, and was filled in, signed and returned by him. On receipt of the section 172(2)(b) request dated 7 June, addressed to him, the appellant sought legal advice and subsequently did not complete or return the request form.

[4]The case stated shows that two points were taken on behalf of the appellant on the appeal as follows:(1) that the appellant having signed and returned the request for information addressed to his wife was not guilty of failing to complete and return the request for information addressed to himself since he had already supplied the required information;

(2) that the dates of the offence on the summons did not disclose an offence contrary to section 172(3) of the 1988 Act since allowing for time for service less than the statutory period of 28 days permitted for reply had elapsed by the final date specified in the summons, namely 6 July 2006.

[5]As to the first point, the court's findings are encapsulated in paragraph 25 of the case stated in the following terms:

"The appellant accepts that he was the driver of the vehicle at the relevant time and was, therefore, able to provide information to identify the driver. The court was satisfied that the appellant had not, by his completion of the request for information addressed to his wife, provided to the police the information that he was required by section 172 of the RTA 1988 to provide upon service upon him of a request for information. In the circumstances and on the appellant's admission that he had failed to complete and return the request for information addressed to him, the court was satisfied so that it was sure that the appellant was guilty of the offence charged."

[6]As to the second point, the court proceeded upon the basis that- 1. The section 172 notice to the appellant had been posted by first class post on 7 June 2006, and thus by virtue of Rule 4.10(2) of the Criminal Procedure Rules 2005 was deemed served 'on the second business day after the day on which it was posted or dispatched', which in this case was 9 June 2006. 2. Time therefore started running from 10 June, and thus by 6 July the closing date of the information and summons only 27 days would have elapsed, whereas section 172(7)(a) of the 1988 Act allows 28 days to respond. 3. There was no power to amend the information or summons on appeal. 4. However, on the basis of Lee v Wiltshire Chief Constable [1979] RTR 349 and R v Swansea Crown Court ex parte Stacey [1990] RTR 183, the court still had power to decide the case if it would have been appropriate for the magistrates to do so without amendment via section 123 of the Magistrates' Courts Act 1980. 5. Even if the period specified in the summons did not precisely cover the correct period of 28 days by one day, the summons correctly identified the offence. The circumstances were therefore similar to the ex parte Stacey case above. 6. It was not suggested that the appellant had suffered any prejudice by the mistake as to the date. He had admitted never returning the form. The court was sure that the mistake was of no materiality whatsoever, had caused no injustice to the appellant, and did not affect the resolution of the issues raised by the appeal.

[7]Further, in relation to the second point, following the dismissal of the appeal, it occurred to the learned Recorder, as set out by him in the case, that the court had proceeded upon a misconception of the effect of section 172(7)(a) of the 1988 Act, which refers to the requisite time to give the information as being within the period of 28 days "beginning with the day on which the notice was served" -- in this case 9 June, not 10 June; and if that was right, the information/summons actually set out the appropriate 28-day period. In that regard, the learned Recorder drew the court's attention to the case of University of Cambridge v Murray

[1993] ICR 460

, a case concerned with similar wording in the Employment Protection Act 1978.

[8]In any event, two questions are posed in the case stated as follows:

"1. Was there sufficient evidence to convict the appellant of failing to furnish information of the identity of the driver of the Volkswagon motor car registration mark OY54 FOK at 21.54 on 12 May 2006 contrary to the Road Traffic Act 1988, section 172(3)? 2. Were the dates on the Road Traffic Act 1988, section 172(3) information erroneous, and if so, was the information a material averment that failed to disclose a criminal offence?"

The law

[9]The provisions of section 172(2) and onwards of the 1988 Act are engaged if, as here, there has been a speeding offence. The relevant parts of the 1988 Act are in the following terms:

"172(2) 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 a 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. (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. (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. ... (7) A requirement under subsection (2) may be made by written notice served by post; and where it is so made— (a) it shall have effect as a requirement to give the information within the period of 28 days beginning with the day on which the notice is served ..."

[10]In addition, section 12 of the Road Traffic Offenders Act 1988 provides:

"(1) Where on the summary trial in England and Wales of an information for an offence to which this subsection applies— (a) it is proved to the satisfaction of the court, on oath or in manner prescribed by rules made under section 144 of the Magistrates' Courts Act 1980, that a requirement under section 172(2) of the Road Traffic Act 1988 to give information as to the identity of the driver of a particular vehicle on the particular occasion to which the information relates has been served on the accused by post, and (b) a statement in writing is produced to the court purporting to be signed by the accused that the accused was the driver of that vehicle on that occasion, the court may accept that statement as evidence that the accused was the driver of that vehicle on that occasion."

[11]Section 172(2) of the 1988 Act has been the subject of a good deal of appellate consideration. Only two of the cases need to be touched on here. In both Jones v DPP

[2004] EWHC 236

(May LJ, as he then was, and Nelson J) and Hatton v Chief Constable of Devon and Cornwall

[2008] EWHC 209 (Admin)

(Collins J), the court was concerned with a section 172(2)(a) notice to an owner in response to which an owner had sent a letter giving details of their knowledge and which they signed. In each case the court concluded that the writing of the letter was in accordance with the statutory requirement to provide information, and in the latter case, where the defendant admitted to being the driver in the letter, that it was sufficient to engage section 12 of the Road Traffic Offenders Act 1988.

[12]As to section 172(7)(a) of the 1988 Act, as I indicated earlier, the learned Recorder drew the court's attention to the case of University of Cambridge v Murray (above), a decision of the Employment Appeal Tribunal. In that case, the Tribunal relied upon a decision of this court composed of Lord Parker CJ, Winn J (as he then was) and Brabin J in the case of Hare v Gocher

[1962] 2 QB 641

. That case was concerned with a two-month time period "beginning with the commencement" of the Caravan Sites and Control of Development Act 1960, when a failure to apply for a licence during the relevant period resulted in a criminal prosecution. Winn J, in giving the judgment of the court at page 646, said as follows:

"... so I pass at once to emphasise that in this case one has the words 'beginning with the commencement of this Act.' It is submitted by Mr. Boreham, for the prosecutor, as I think correctly, that these words are to be taken to have been adopted in order to avoid equivocation, and to exclude the application for the purposes of this statute of the rule which in the Goldsmiths' case was said to be the general rule in so far as any general rule could be accepted as existing."

[13]The learned judge went on to indicate that, therefore, the time period would begin to run very shortly after midnight on the day that the relevant event began, and would close at midnight on the closing date thereafter. The arguments before this court

[14]Mr Sylvester on behalf of the appellant argues in his skeleton argument:

[15](1) That by filling in and signing the form sent to his wife, the appellant provided the requisite information, and thus it was neither necessary for him to be sent, nor for him to return, a second request. She had, it is submitted, served the first request on him.

[16](2) The Crown Court in its findings had inappropriately elevated the instructions on the section 172(2)(a) form sent to the appellant's wife to matters of law.

[17](3) The court's findings that the appellant's confession on the form sent to his wife was quite inadequate as a signed confession for the purposes of the legislation (which I have set out above) was Wednesbury unreasonable.

[18](4) Overall, it was manifestly wrong to have brought a section 172(3) charge when the proper charge was speeding.

[19](5) Dodds v Walker

[1981] 1 WLR 1027

, a case in which the House of Lords approved the common law rule in Lester v Garland that a time limit normally starts to run the day after the specified event, applies in this case.

[20](6) Thus the defect in the information was a substantial one and fatal to the prosecution as being an important technical issue that needed to be scrupulously complied with and was not, citing R v Clarke and McDaid

[2008] UKHL 8

[21]Miss Fairbairn, on behalf of the respondent, in a skeleton argument, submits that this was a simple case, and that the conviction and the refusal of the appeal were plainly right. The merits

[22]In my view, there is no merit whatsoever in this appeal. The appellant was charged with failing to comply with a requirement which was clearly made under section 172(2)(b) of the 1988 Act. Whatever the appellant did in relation to the section 172(2)(a) requirement served on his wife, the requirement served on him was plainly a valid one. The suggestion that service of the 172(2)(a) form by his wife on him was a valid service for the purposes of the legislation is simply nonsense.

[23]The appellant chose not to answer the requirement. It is clear that he took advice before doing so. It is equally clear that he must have thought that he gained an advantage by that, perhaps because section 12 of the Road Traffic Offenders Act 1988 required service on him of an appropriate notice before its provisions could bite. He was clearly, in my view, therefore guilty as charged of failing to comply with the notice that was properly served on him. The cases cited on his behalf do not begin to detract from that obvious conclusion.

[24]The clear wording of section 172(7)(a) of the 1988 Act, in combination with Rule 4.10(2) of the Criminal Procedure Rules 2005, meant that time began to run on 9 June and ended on 6 July. That is confirmed by the approach of the Divisional Court to a similarly worded penal statute in Hare v Gocher (above). The rule in Lester v Garland is nothing to the point in this case.

[25]Even if all that was wrong, the court was plainly right, in my view, to conclude that, on the facts of this case, no amendment was needed, as the justices, via section 123 of the Magistrates' Courts Act 1980 and the underlying case law would have been entitled, on the facts here, to reach a guilty verdict without any need to amend at all. Conclusion.

[26]Accordingly, I would answer question (1) "yes", and question 2 "no". Thus, for my part, I would dismiss this appeal.

LORD JUSTICE GOLDRING: I agree.

[28]MISS FAIRBAIRN: Obviously, the Crown have been represented today. I have not been assisted by a costs schedule. I do not know whether you would entertain any application on the Crown's behalf.

LORD JUSTICE GOLDRING: I am sure we will. What are you asking us to do?

[30]MISS FAIRBAIRN: In the light of not having a costs schedule, I felt the most appropriate thing would be to seek counsel's costs only in terms of preparation and attendance at the hearing, which comes to £650 plus VAT.

[31]MR SYLVESTER: My Lord, it is half a day, and it is 20 to 1, and £650 a day for counsel's attendance -- I do not oppose it in principle; it is just the amount.

[32]MISS FAIRBAIRN: Can I clarify, it is £330 for attendance and £320 for preparation and the skeleton.

LORD JUSTICE GOLDRING: The answer is, yes, you can have your costs.

[34]MISS FAIRBAIRN: I am much obliged, my Lord.

LORD JUSTICE GOLDRING: Mr Sylvester, it could have been much more as far as your client is concerned.

[36]MR SYLVESTER: My Lord, I cannot gainsay that.

LORD JUSTICE GOLDRING: Mr Sylvester, may I just make one observation. I am not sure I find it very helpful to have in a skeleton argument observations such as "this is untrue" and "disingenuously".

[38]MR SYLVESTER: My Lord, I take the rebuke and I apologise.