Whiteside v The Director of Public Prosecutions [2011] EWHC 3471 (Admin)

Case No CO/8216/2011[2011] EWHC 3471 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 21 st December 2011
Before
LORD JUSTICE ELIASMR JUSTICE KING
Between
CHRISTOPHER ANGUS WHITESIDEClaimantTHE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedTrading as DTI165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Rachel Scott (instructed by Keystone Law) for ClaimantMr Benedict Leonard (instructed by Crown Prosecution Service Appeals Unit) for DefendantHearing Hearing date: 10 November 2011
JudgmentLord Justice Elias :
[1]On 23 February 2011 Christopher Whiteside (the appellant) was convicted by the Haywards Heath Magistrates’ Court of an offence under section 172(3) of the Road Traffic Act 1988 (failure to respond to a notification requiring driver details). He appeals against that conviction by way of case stated. The law.[2]Section 172 of the Road Traffic Act provides for the creation in certain circumstances of the obligation on the registered keeper to provide information relating to the identity of the driver. So far as is material to this case, it is as follows: “(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 … (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, and(b) the person on whom the notice is served shall not be guilty of an offence under this section if he shows either that he gave the information as soon as reasonably practicable after the end of that period or that it has not been reasonably practicable for him to give it.” …[3]Subsection 7 therefore provides that service of the written Notice may be effected by post. Section 7 of the Interpretation Act 1989 deals with when and how such service is deemed to be effected:
“Where an act authorises or requires any document to be served by post …. 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, there being effected at the time at which the letter would be delivered in the ordinary course of post.”
[4]Service of documents in criminal cases is further regulated by Part 4 of the Criminal Procedure Rules. Rule 4.4(2)(a) expressly provides that the address for service on an individual is “an address where it is reasonably believed that he or she will receive it.”[5]The important point to note is that actual receipt by the addressee is not a requisite for valid service. Service is effected by posting the letter to the appropriate address for service and it is deemed to have been received in the ordinary course of the post “unless the contrary is proved.” This therefore creates a presumption of proper service which, however, the defendant may rebut. The facts.[6]The facts are as follows. On 16 May 2010 a speeding offence took place on the A3030 at Amesbury in Wiltshire. A car, which the appellant accepts was his, was driving at a speed in excess of 70 mph. Notices of intended prosecution dated 20 May 2010 and 23 June 2010 were sent by first class post to the address of the appellant, who was the registered keeper of the car. These Notices required, in accordance with sections 172(2) and (7) of the Road Traffic Act, that the appellant provide within 28 days details of the person driving the car at the time of the alleged offence.[7]The appellant did not seek to dispute that the Notices were received at the registered address within the relevant period. However, he claimed, and the justices accepted, that he did not personally receive the relevant Notices, nor was he informed of them. He was therefore personally unaware of the requirement to give information and as a consequence the information was not provided. His case was that he is regularly out of the country and was only resident at his home for approximately 7 days in any monthly period. He spends time overseas on business or travel, or at his home in Singapore. His post is dealt with either by his wife or staff, and if letters could only be dealt with by him personally, the correspondence would go to his private secretary.[8]The justices concluded that although the appellant had not seen the Notices it was not a defence. They said this:
“We take into account Mr Whiteside’s personal circumstances. We do not accept the defence put forward by them that Mr Whiteside acted with due diligence and Mr Whiteside should have ensured that systems were in place to deal with receipt of such important documents as these. In addition, the systems that were in place for post opening at his home address whilst he is absent were not effective on these occasions.”
[9]Accordingly, the justices found on the balance of probabilities that the defence under section 172(7)(b) of the 1988 Act was not made out and that the appellant was guilty of an offence.[10]The magistrates then posed the following questions for the opinion of the court:
“1. Do the elements of the offence created by section 172(3) of the Road Traffic Act 1988 include mens rea, namely knowledge on the defendant’s part that he or she is under a requirement to provide specified information pursuant to section 172(2) of the Act? 2. If it is accepted that a written notice posted to a defendant’s address was not in fact received by the defendant, can the notice be said to have been served on him or her so as to give rise, pursuant to section 172(2)(a) of the Road Traffic Act 1988, to the requirement to provide the specified information within 28 days? 3. If the answer to question 2 is yes, in such circumstances does the defendant nonetheless have a defence pursuant to section 172(7)(b) of the Road Traffic Act 1988, that it has not been reasonably practicable to supply the required information?”
Arguments on appeal.[11]Ms Scott, in an attractive submission, contended that the conclusion of the magistrates was flawed on three grounds. I can dispose of the first, which involves consideration of the second question posed by the justices, very briefly. She submitted that since the recipient of a document is an individual, service means service on the individual. She pointed to rule 4.4(2), referred to above, in support of her contention that if the defendant did not receive it, it was not served.[12]I reject that analysis. In my view, it is plain that service may be effected by post whether the notice is in fact received by the defendant or not; rule 4.4(2)(a) is clear on the point. It would frustrate the whole purpose of service by post were it otherwise. A defendant may of course adduce evidence to rebut the presumption that the notice was delivered in the ordinary course of the post. But here the defendant had none: indeed, he accepted that the post may well have been delivered to the home address. Accordingly, there was effective service which obliged the defendant to give the relevant information pursuant to section 172(2)(a).[13]The second ground is that the offence created by section 172(2)(a), properly construed, requires a mens rea of knowledge and that since the appellant knew nothing of the notices, he was blameless and should not be stigmatised by a criminal conviction. Reliance is placed upon the decision of the House of Lords in Sweet v Parsley (1970) AC 132 where in the course of his judgment Lord Reid stated:
“There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were no way blameworthy for what they did. That means that whenever a section is silent as to mens rea there is a presumption, in order to give effect to the will of Parliament, we must read words in appropriate to require mens rea.”
Then a little later he said this:
“In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say “must have been” because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.”
[14]Ms Scott submits that in the light of that principle there must be presumption that the commission of the offence requires a mens rea, and since the appellant never received this Notice, he is blameless and cannot be criminally liable for failing to respond to it.[15]I reject this submission also. The defendant in Sweet v Parsley was facing a far more serious charge than the appellant faces. Lord Reid commented that the presumption would not apply to cases where the offence was not “criminal in any real sense but are acts which in the public interest are prohibited under penalty.” In my judgment, the offence here falls into the latter category.[16]Furthermore, this is not a strict liability offence imposing criminal penalties absent any culpability. Defences are provided under section 172(4) and 172(7)(b) to exonerate a defendant who for one reason or another was unable to comply and should not be held culpable. For these reasons there is in my view no scope for a further implication of a mens rea requirement of the kind referred to in Sweet v Parsley.[17]A modification of this argument advanced orally was that even for regulatory offences, where the offence consists of an omission rather than an act, there can be no liability if the defendant’s failure to act is because of a lack of knowledge that he is under a duty to do so.[18]Ms Scott relied upon the decision of the Divisional Court in Harding v Price [1948] 1 KB 695. Under section 22 of the Road Traffic Act 1930 a driver was under an obligation in certain circumstances to report an accident causing damage to another vehicle, person or animal. The defendant failed to do so because he was unaware that he had been involved in an accident. He claimed that he could not be guilty of the offence because he was unaware that he had been involved in an accident. The Divisional Court agreed, notwithstanding that there was nothing in the section to identify the need for any mens rea. Lord Goddard LCJ said this (p.701): “If apart from authority, one seeks to find a principle applicable to this matter it may be thus stated: if a statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence; but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened, how can he carry out the duty imposed?[19]That principle was followed in relation to a successor of this provision in Selby v Chief Constable of Avon and Somerset [1988] RTR 216. Ms Scott submits that there is no material distinction between that case and this. How could the defendant provide information he did not have?[20]I see the force of that submission, but in my view, there is a material distinction between the two cases. In the instant case the owner of the car had given an address when registering the details and he assumes some responsibility to respond to correspondence about the vehicle. Moreover, the defence under section 172(7) is in principle available if he can show that he ought not to be held liable because it was not reasonably practicable for him to comply with the obligation either at all or within the time limits imposed. Accordingly, I do not think that principle in the Harding case applies.[21]Ms Scott’s final argument is that even if knowledge is not an implicit element of the offence itself, it is crucial to the defence under subsection (7). If the defendant did not know of the Notices it could not be reasonably practicable for him to respond to them, whatever the reason or justification for his ignorance. The justices were wrong to conclude that it was reasonably practicable for him to have responded on the basis that he could have so arranged his affairs to ensure that he received the Notices; that was immaterial.[22]Mr Leonard concedes that in principle the defence under section 172(7)(b) can apply where the defendant never, in fact, sees the relevant Notice even though it is properly served by post. He gives by way of example a case where the letters are stolen from the letter box before the recipient is able to read them. He submits, however, that it is ultimately a question of fact for the justices whether it was reasonably practicable for the defendant to have responded or not. The burden is on him to satisfy the court that it was not reasonably practicable and he failed to do that. It is not for this court on a case stated to question the justices’ conclusions on that matter.[23]I think that analysis is right. One might have thought that section 172(7) is really directed at a case where the defendant has the relevant information, but for one reason or another cannot disclose it. However, I think that it can sensibly be construed so as to apply to the prior question why the defendant was unaware of the obligation to provide the information. In R (On the application of Purnell) v Snaresbrook Crown Court [2011] EWHC 934 the Divisional Court assumed that a failure by the registered keeper to receive Notices properly served on him at the registered address might in principle provide a defence under sub-section (7) if he could show that it was not reasonably practicable for him to have seen them.[24]In my judgment, therefore, the justices properly considered whether the defendant had satisfied them that it was not reasonably practicable to respond to the Notices on the ground that he was never aware of them, and they concluded that he had not discharged that burden. They held that it was reasonably practicable for him to have become aware of it and in my view that was a conclusion open to them on the evidence.[25]Ms Scott raised a final point. She observed, perfectly accurately, that the justices had referred in their decision to the fact that the defendant had not demonstrated that he had acted with due diligence. She points out that this is the defence under subsection (4) but not subsection (7). Accordingly, she submits that there is a material misdirection which invalidates the decision.[26]A problem with this submission is that it is not, I think properly raised in the case stated. The third question posed for the opinion of the court raises the principal point advanced by Ms Scott in this part of her submission, namely whether ignorance of the Notices necessarily provides a defence to this charge under section 172(7)(b). For reasons I have given I do not think that it does, although exceptionally it might on the facts of a particular case. However, there is no separate question directed specifically to this different concern about how the justices directed themselves when considering the applicability of that defence.[27]In any event, in my view the reference to due diligence, rather than reasonable practicability, was an unfortunate error but not one of any practical significance. I think it is clear that they had in mind the defence under subsection (7) and not the subsection (4) defence and in the circumstances I do not think that it would be sufficient to justify quashing the conviction. I accept Mr Leonard’s submission that if the appellant did not show due diligence in ensuring that the Notices were drawn to his attention, he would not be able to demonstrate that it was not reasonably practicable for him to give a response to those Notices. Disposal.[28]Accordingly, my answers to the questions posed by the justices would be as follows:(i) The offence created by section 172(3) does not require knowledge on the defendant’s part that he is under an obligation to provide the specified information;(ii) The notice was properly served on the defendant notwithstanding that it was not actually received by him;(iii) The defendant does not have a defence under section 172(7)(b) merely by virtue of the fact that he has no knowledge that the Notices were sent. However, in an appropriate case a defendant may be able to show in such circumstances that it was not reasonably practicable for him to have been aware of the Notice, in which case the defence will apply.[29]It follows that the appeal fails. Mr Justice King: I agree.

Cited in 2 later judgments