Brants v Director of Public Prosecutions [2011] EWHC 754 (Admin)

Case No CO/6418/2010[2011] EWHC 754 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 8 March 2011
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
MR JUSTICE CRANSTON
Between
JAKOBUS BRANTSAppellantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr Simon Clarke (instructed by Tinkler Solicitors) appeared for AppellantMr Kevin Donnelly (instructed by the CPS) appeared for Respondent
J U D G M E N T
[1]This judgment is in five parts, namely: Part 1. Introduction. Part 2. The Facts. Part 3. The Appeal to the High Court. Part 4. The Third Ground of Appeal: Abuse of Process. Part 5. Conclusion. Part 1. Introduction[2]This is an appeal by way of case stated against conviction for four offences relating to drivers' hours and rest periods. These matters are important because of their obvious importance to safety on motorways. I shall refer in this judgment to the Transport Act 1968 as "the 1968 Act". I shall refer in this judgment to Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006, as "Regulation 561".[3]Section 96 of the 1968 Act sets out rules limiting driving time and prescribing periods of rest for drivers of heavy goods vehicles. Section 96(11A) of the 1968 Act provides:
"Where, in the case of a driver of a motor vehicle, there is a contravention of any requirement of the applicable Community rules as to periods of driving, or distance driven, or periods on or off duty, then the offender and the offender's employer, and any other person to whose orders the offender was subject, shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale."
[4]Regulation 561 sets out standards for driving times, rest periods and so forth to be observed by heavy goods drivers across the European Community. Article 1 of Regulation 561 provides:
"This Regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and road safety. This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry."
[5]Article 6.1 of Regulation 561 provides:
"1. The daily driving time shall not exceed nine hours. However, the daily driving time may be extended to at most 10 hours not more than twice during the week."
[6]Article 7 provides:
"After a driving period of four and a half hours a driver shall take an uninterrupted break of not less than 45 minutes, unless he takes a rest period. This break may be replaced by a break of at least 15 minutes followed by a break of at least 30 minutes each distributed over the period in such a way as to comply with the provisions of the first paragraph."
[7]Article 8 of Regulation 561 provides:
"1. A driver shall take daily and weekly rest periods. ... 6. In any two consecutive weeks a driver shall take at least: — two regular weekly rest periods, or — one regular weekly rest period and one reduced weekly rest period of at least 24 hours. However, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question. A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period."
[8]Article 19 of Regulation 561 provides:
"1. Member States shall lay down rules on penalties applicable to infringements of this Regulation and Regulation (EEC) No 3821/85 and shall take all measures necessary to ensure that they are implemented. Those penalties shall be effective, proportionate, dissuasive and non-discriminatory ... 2. A Member State shall enable the competent authorities to impose a penalty on an undertaking and/or a driver for an infringement of this Regulation detected on its territory and for which a penalty has not already been imposed, even where that infringement has been committed on the territory of another Member State or of a third country ... 3. Whenever a Member State initiates proceedings or imposes a penalty for a particular infringement, it shall provide the driver with due evidence of this in writing."
[9]Having set out the relevant statutory provisions, I must now turn to the facts.

Part 2. The Facts

[10]On 18 February 2009 the appellant was driving a DAF lorry along the M6 motorway through Lancashire. PC Lever required the vehicle to stop and asked the appellant to produce his digital driver card. PC Lever downloaded the details from that driver card onto his laptop. From this he produced reports and a list of offences.[11]It appeared from this exercise that the appellant had committed four offences. These were as follows: 1. On 2 February 2009 he did not take a weekly rest period of 24 consecutive hours after six daily driving periods ending at 14.24 on 2 February, in contravention of Articles 8.1 and 6 of Regulation 561. 2. On 1 February 2009 the appellant did not have a daily rest period of at least 11 consecutive hours, in contravention of Article 8.1 of Regulation 561. 3. On 6 February 2009 the appellant drove for more than 4.5 hours without observing a minimum break of 45 minutes, in contravention of Article 7.1 of Regulation 561. 4. On 6 February 2009 the appellant drove for more than ten hours in a working day, in contravention of paragraph 2 of Article 6.1 of Regulation 561.[12]I shall refer to these four matters collectively as "the four offences". Nothing turns in this appeal on the details of those offences.[13]According to PC Lever, he went through the offences with the appellant, he cautioned him and he gave him a copy of the list of offences. We are told by counsel that the document handed over is called an infringement notice and it contains a certain amount of detail. PC Lever then telephoned Messrs Tinklers of Ipswich, who are the appellant's solicitors, and informed them of the four offences. They agreed to accept service of any summons on the appellant's behalf.[14]On the following day, 19 February 2009, PC Lever prepared a witness statement recording the events of the previous day.[15]On 4 March 2009 four informations were preferred against the appellant, alleging that he had committed the four offences.[16]On 16 March 2009 Messrs Tinklers sent a letter, both by post and by fax, to the Crown Prosecution Service requesting disclosure of the digital material downloaded by PC Lever on 18 February. Over the next few weeks no answer was received to this letter.[17]The 2 April was the first date fixed for the hearing of the informations laid against the appellant. This hearing was adjourned owing to lack of court time. The matter came back before the Magistrates' Court on 20 April 2009. On this occasion the matter was adjourned in order that the prosecution could give disclosure of the material previously requested, and then the appellant could enter his plea.[18]The matter was again before the Magistrates' Court on 14 May 2009. The requested material had still not been provided. Accordingly, the court adjourned the matter and directed the prosecution to provide the information requested to the defence within 21 days. The matter came back before the Magistrates' Court on 11 June. Again it was adjourned because the material had not been served by the prosecution.[19]The matter came back before the court on 2 July. Again the matter was adjourned in order that the relevant material could be served on the defence. The matter came back before the court on 23 July. Still the material requested had not been served. The case was adjourned again in order to enable the material to be disclosed and in order to fix a trial date.[20]On 26 July the prosecution made a disclosure of the digital material which had been requested on 16 March. We are told that this disclosure was made in an e-mail sent by PC Lever, since the Crown Prosecution Service had not dealt with this matter themselves.[21]On 6 August 2009 the case was adjourned once more in order to clarify what the appellant's plea would be, and if the plea was to be not guilty, then in order for a trial date to be fixed once the issues between the parties had been identified.[22]On 26 August 2009 Messrs Tinklers sent a detailed letter to the Crown Prosecution Service setting out the defence case. On 27 August 2009 this matter was back before the Magistrates' Court, and the case was adjourned so that the prosecution could give further consideration to the defence submissions.[23]The matter came before the court again on 10 September 2009. According to the information provided to us, it was adjourned "for ongoing representations" and because of a prosecution request for more time to liaise with defence solicitors.[24]On 30 September 2009 the Crown Prosecution Service sent a brief response to the defence solicitors. They stated that, having considered the defence representations, they considered that the informations were correctly drafted and they intended to proceed with the prosecution.[25]The matter came back before the court on 8 October. It was adjourned for legal argument and the defence were ordered to serve a skeleton argument within 21 days, to be followed by a prosecution skeleton argument in reply.[26]The matter came back before the Magistrates' Court on 23 November 2009. On this occasion the court was invited to consider a submission that the court had no jurisdiction because the four offences had been committed outside England and Wales. The argument advanced before the magistrates was that they did not have jurisdiction under section 96(11A) of the 1968 Act to deal with offences committed outside England and Wales. The magistrates heard argument on both sides. They ruled in favour of the prosecution on this issue, and directed that the matter should proceed since it was within the jurisdiction of the court.[27]At this point in the history of the proceedings the matter was transferred from the South Ribble Magistrates' Court, where it had hitherto been proceeding, to the Preston Magistrates' Court. The matter came before the Preston Magistrates' Court on 3 November 2009. On this occasion the appellant entered a plea of not guilty, and the matter was set down for trial on 29 January 2010.[28]On 29 January 2010 the Preston Magistrates heard argument on two further issues. The first issue was whether the prosecution had complied with the requirements of Article 19(3) of Regulation 561. The second matter was whether the proceedings were an abuse of process by reason of delay. In relation to the first of those two matters, the magistrates heard oral evidence from PC Lever. Having considered the oral evidence and the submissions of counsel, the magistrates ruled in favour of the prosecution on both of the issues which had been debated. Following that ruling, the appellant changed his plea to guilty in respect of the four offences. The magistrates then ordered the appellant to pay a fine of £1,500, a contribution of £85 towards the prosecution costs and a £15 victim's surcharge.[29]The appellant was aggrieved by the magistrates' ruling on the various preliminary issues and his consequential plea of guilty. Accordingly, the appellant has appealed by way of case stated to the High Court.

Part 3. The Appeal to the High Court

[30]By an appellant's notice, the date of which is illegible in my bundle, the appellant appealed against the decision of the Preston Magistrates' Court on three separate grounds. The first ground was that the magistrates had no jurisdiction to deal with the matter because the four offences had been committed outside England and Wales. The second ground was that the prosecution had not complied with Article 19.3 of Regulation 561. The third ground was that the proceedings ought to have been stayed for abuse of process by reason of delay.[31]Upon receipt of these grounds of appeal and a request to state a case, the Preston Magistrates' Court duly stated a case, raising three questions for the opinion of the High Court. Those three questions are as follows:
"1. Were we correct in law to accept our colleagues ruling of the 23rd November that s.96(11A) of the Transport Act 1968 conferred proper jurisdiction upon the court to try the appellant on an allegation that he had committed an offence contrary to the aforesaid s.96(11A), where it was alleged that the offence was committed outside England and Wales? 2. Were we correct in law to rule that Article 19(3) of EEC Regulation 561/2006 had been complied with by the prosecution in the circumstances of the case against the defendant? 3. Were we correct in law to rule that an unexplained and inordinate delay in bringing a matter to trial was not an abuse of process of the court in circumstances where the aforementioned delay included the granting by the court of 13 separate adjournments upon the application of the Crown Prosecution Service and a failure, despite repeated requests from defence solicitors, to serve evidence relied upon by the Crown?"
[32]The appeal has come on for hearing today. In the course of the hearing today, two of the grounds of appeal have fallen away and can therefore be dealt with quite speedily. So far as the second ground of appeal is concerned, Mr Clarke, who appears for the appellant, very fairly conceded that he could not pursue that ground. The magistrates at Preston Magistrates' Court found as a fact that PC Lever had handed over an infringement notice to the appellant on 18 February 2009. Such a notice, if handed over, would have constituted "due evidence" within the meaning of Article 19.3 of Regulation 561. In those circumstances, although the appellant is not well pleased with the finding of fact made by the magistrates in this regard, he cannot challenge it. It is apparent from the material set out in the case stated that there was evidence before the Magistrates' Court which entitled them to make that finding of fact. Accordingly, Mr Clarke very fairly conceded that the second ground of appeal cannot be pursued.[33]Accordingly, Mr Clarke limited himself initially to grounds 1 and 3. In relation to ground 1, Mr Clarke developed the argument this morning that Article 19.2 of Regulation 561 imposes a duty on Member States, including the United Kingdom, to set up a system for the punishing of drivers' hours offences detected within this jurisdiction but committed elsewhere within the EU. However, submitted Mr Clarke, when one looks at section 96 of the 1968 Act, it can be seen that Parliament has not implemented that requirement of the Regulation. Mr Clarke submitted that section 103(7) of the Act did not suffice. Section 103(7) of the 1968 Act provides:
"An offence under this Part of this Act may be treated for the purpose of conferring jurisdiction on a court (but without prejudice to any jurisdiction it may have apart from this subsection) as having been committed in any of the following places, that is to say— (a)the place where the person charged with the offence was driving when evidence of the offence first came to the attention of a constable or vehicle examiner;"
[34]Mr Clarke pointed out that this is an original provision of the Act which was enacted by Parliament before this country had joined what was then the Common Market, and clearly section 103(7) was intended to cover offences committed elsewhere within England and Wales. It was not intended to refer to offences committed outside the jurisdiction. Mr Clarke was originally submitting to us that clear words are needed to confer extraterritorial jurisdiction, and if section 103(7) was going to enable the court to deal with drivers' hours offences committed outside England and Wales, some express term such as "anywhere in the world" or "anywhere in the EU", would need to be added to the provision.[35]Mr Donnelly, on behalf of the prosecution, submitted that this approach was incorrect and that section 103(7) of the Act, in conjunction with section 96(11A), should be read in a manner which would implement this country's obligations under Regulation 561.[36]We were somewhat concerned this morning that this matter, on which there must be authority, should be more fully researched before we decided the question. Accordingly, counsel very kindly left at 11 o'clock this morning. We moved on to other matters in the list, and counsel returned at 2 o'clock this afternoon with the fruits of their research. We are most grateful to Mr Clarke, who candidly took us to the relevant section of Bennion on Statutory Interpretation, and who also drew our attention to the decision of the European Court of Justice in Marleasing SA v La Commercial Internacional de Alimentacion SA [1990]1 ECR 4135, as well as the decision of Saunders J in R(on the application of Irving) v Secretary of State for Transport [2008] EWHC 1200 (Admin).[37]It is clear from the further researches of Mr Clarke, that the Transport Act 1968 must be construed in a manner which is updated to take account of our membership of the European Union and the UK's obligations under EU law, including, of course, Regulation 561. Mr Clarke now candidly accepts that section 96(11A), together with section 103(7) of the 1968 Act, does give the English Court jurisdiction to deal with offences under Regulation 561, which are detected in the area of an English Magistrates' Court, even if those offences have been committed elsewhere in the EU.[38]Accordingly, Mr Clarke no longer pursues ground 1 of the appeal. This court is grateful to him for his research and for his candour in acknowledging the difficulties which now stand in his path.[39]That only leaves the third ground of appeal, to which we must now turn.

Part 4. The Third Ground of Appeal: Abuse of Process

[40]The magistrates were invited to stay these proceedings as an abuse of process by reason of delay. They refused this application for the reasons set out in paragraph 9 of the case stated. These are as follows:
"We were firmly of the opinion that the appellant failed to establish on the balance of probabilities any prejudice and that a fair trial could not be conducted in this case, given that the appellant was given the documents in February 2009 and, therefore, could and should have provided his solicitors with adequate instructions at that stage, albeit the inefficiency of the Crown Prosecution Service in these proceedings did cause the bench serious concern."
[41]The first point which arises in relation to this ground of appeal is the extent of the delay by the Crown Prosecution Service and the reasons why it occurred. Mr Clarke rightly castigates the Crown Prosecution Service for their delay in responding to a perfectly simple, and a perfectly reasonable, request for the digital information which they had downloaded from the appellant's drivers' card.[42]Mr Donnelly, who appears for the prosecution, told us that he could not explain the inefficiency of the Crown Prosecution Service. Human error had occurred. One individual did not respond to requests. The requests had been forwarded by one individual to another within the Crown Prosecution Service. The lack of response had not been followed up. Mr Donnelly said that he did not seek to defend what had happened, and he accepted that the events were wholly unacceptable.[43]We agree with those observations. It may well be that the Crown Prosecution Service is short-staffed and hard-pressed. However, to procrastinate and pass simple administrative tasks from one individual to another and then to engage in correspondence attempting to justify their delay consumes far more resources than simply getting on with the task and doing it at once. We express our strong disapproval of the manner in which the Crown Prosecution Service failed to provide information requested and failed to progress the prosecution.[44]The question then arises what consequences flow from that delay. Mr Clarke, on behalf of the appellant, draws our attention to the decision of the Court of Appeal in Crown Prosecution Service v LR [2010] EWCA Crim 924. In that case a Crown Court Judge at the Portsmouth Crown Court gave directions concerning the supply of relevant information to the defence, so that the defence could examine certain material and prepare for trial. The prosecution did not simply neglect to comply with those directions, they positively refused to do so. The Crown Prosecution Service took the mistaken view that to hand over the relevant material (in this case obscene photographs) would constitute some form of criminal offence. The Court of Appeal rejected that view of matters taken by the Crown Prosecution Service. The Lord Chief Justice at paragraph 16 of his judgment said:
"The starting point is simple. Orders made by Crown Court judges must be obeyed. The normal consequence of disobedience by the prosecution to an order made by the judge in the interests of a fair trial is either the exclusion of any evidence to which the order relates, or as in this case, where the entire case depended on the 240 images which were covered by the order, the stay ordered by the judge. The cases are likely to be very few and far between where his order is so inimical to the interest of justice that no judge could reasonably have made it, so that the Crown can properly refuse, courteously, to comply, and then challenge the consequent stay by appeal to this court. That, however, is not this case, and indeed is very far from it."
[45]The order made by the judge in that case had never been obeyed and, in the circumstances, the Court of Appeal upheld an order made by the Crown Court Judge staying the proceedings as an abuse of process.[46]In our view, this case is different. This is not a case where the Crown Prosecution Service have refused to comply with any direction of the court. The Crown Prosecution Service did ultimately comply. However, there was a long delay before they did so. The information was first requested by the defence on 16 March 2009. It was first directed by the court to be handed over on 14 May 2009. The material was not provided until 26 July. Whilst we strongly disapprove of the delays by the Crown Prosecution Service, we do not regard this case as being in the same category as LR, where there was a positive refusal rather than delay and incompetence.[47]We take the view that the delay alone by the prosecution cannot warrant the staying of these proceedings as an abuse of process. There is a public interest in prosecuting offences which transcends any consideration of punishing the prosecution for delay. If delay by the prosecution does not cause prejudice to the defence, then normally it would not be appropriate to stay proceedings for abuse of process.[48]In this case, both the appellant and his solicitors were aware of the allegations against the appellant in some detail at the outset. The relevant information was contained in the infringement notice handed over on 18 February. The digital material could have been downloaded from the appellant's drivers' card by his employers if the drivers' card was returned to the employers within the next 28 days. We do not know whether or not that happened. In any event, the digital material was received by the defence solicitors on 26 July 2009. Such adjournments as occurred after that date (and I have read out the chronology in Part 2 of this judgment) were not attributable to the defence not possessing the digital material.[49]The appellant was in a position to give instructions to his solicitors about what he was doing on the material dates, namely 2-6 February 2009, from 18 February 2009 onwards. Furthermore, it should be noted that the trial of this matter finally came on approximately 11 months after the incident which gave rise to the prosecution.[50]In our view, although the delays in this case should not have occurred and merited censure, nevertheless, on the facts of this case, they did not cause prejudice to the appellant and the magistrates were correct in declining to stay the proceedings for abuse of process.

Part 5. Conclusion

[51]I would reject all three grounds of appeal. My answers to the questions in the case stated are as follows: question 1, yes; question 2, yes; question 3, yes.[52]For all of these reasons, I would dismiss this appeal. MR JUSTICE CRANSTON: I agree. I would wish only to associate myself with the remarks my Lord has made about Mr Clarke. He has acted in the best traditions of the profession in advancing authorities which undermined his client's case in respect of ground 1. LORD JUSTICE JACKSON: Are there any ancillary matters for us to deal with? MR DONNELLY: No, there is no application for costs in the circumstances.