The Queen on the application of v EDMOND PURNELL [2011] EWHC 934 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2011] EWHC 934 (Admin)Case No Case No. CO/6299/2009Venue Royal Courts of Justice, The Strand, London, WC2A 2LL
Between
The Queen on the application ofEDMOND PURNELLClaimantSNARESBROOK CROWN COURTDefendant
Before
The President of the Queen'S Bench DivisionSir Anthony MayMr Justice SweeneyThe Claimant appeared in personMr Ben Watson (instructed by the Treasury Solicitor)appeared on behalf of the DefendantMr Paul Mitchell (instructed by CPS Appeals Unit)appeared on behalf of the Interested PartyDate 30 March 2011
[1]THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Mr Justice Sweeney will give the first judgment. MR JUSTICE SWEENEY: This is a claim brought by permission of Burton J, granted on 2 July 2009, for the judicial review of a decision of Mr Recorder Pearse Wheatley and two justices who, sitting in the Snaresbrook Crown Court on 18 June 2009, dismissed an appeal brought by the claimant (then, as now, representing himself) against conviction and sentence for four offences of failing to give information relating to the identification of a driver, contrary to section 172(3) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988, which were imposed in the claimant's absence in the Havering Magistrates' Court on 17 April 2009.[2]The grounds of the claim are that the court erred in its application of the law and that the claimant was inappropriately prevented by the defendant court from calling a defence witness, Mr Emiko Okoturo, who was available at court to give evidence that the notices upon which the convictions were founded had never been delivered to the claimant's registered address where he (Mr Okoturo) was living as a tenant. Both the defendant court and the Crown Prosecution Service (which was the prosecutor in the courts below, and is now the interested party in this claim) assert that there was no such inappropriate prevention, but accept that, if there was, this is a proper case for relief to be granted.[3]The background is, in short, as follows. The claimant, who is now aged in his mid-forties and is a plumber by trade, was at all material times registered with the DVLA as the keeper of a white Ford Fiesta van P276 AEP at 79 Deer Park Gardens, Mitcham in Surrey. In a six week period in the late summer and early autumn of 2008 the driver of the van was caught on traffic cameras in South West London committing four offences, as follows:(1) Speeding in Brixton Hill on 3 August.(2) Speeding in Brixton Road on 7 September.(3) Driving through a red traffic light in Tooting High Street on 11 September.(4) Driving through a red traffic light in Streatham Hill on 15 September.[4]In consequence, in the period between 13 August 2008 and 23 October 2008 and in relation to each offence, a Notice of Intended Prosecution (requiring the claimant to furnish the name and address of the driver within 28 days), and later a reminder letter, were sent to 79 Deer Park Gardens, as follows:(1) As to the offence on 3 August, on 13 August and 10 September.(2) As to the offence on 7 September, on 15 September and 13 October.(3) As to the offence on 11 September, on 22 September and 20 October.(4) As to the offence on 15 September, on 25 September and 23 October.[5]The claimant did not respond to any of the Notices or to the reminder letters. It was his evidence during the appeal that he was not living at 79 Deer Park Gardens at the material time -- indeed that he had made it his business not to be at the address given the receipt there of letters from the Child Support Agency. On any view, he also said in evidence that another person was at the address to open letters as and when needed, and that no such correspondence had been received. It is his case before this court that he made clear that that person was his tenant Mr Okoturo, who was available at the defendant court to give evidence to that effect on the appeal. At all events, in its judgment on the appeal the court found that the claimant had not himself received any of the correspondence.[6]On 20 November 2008, whilst driving the Fiesta van in Morden, the claimant was stopped by police officers acting on behalf of those investigating the original offences. The claimant admitted that he had been the owner of the van at all material times, and gave the address of 79 Deer Park Gardens.[7]On 30 January 2009 four summonses, each for an offence of failing to give information in relation to the identity of the driver of the van on the occasion of one of the original offences, were issued in the Havering Magistrates' Court with a return date of 10 March 2009. They, too, were posted to 79 Deer Park Gardens.[8]It appears that the claimant did not attend at the Havering Magistrates' Court on 10 March 2009. However, Mr Okoturo sent a fax to that court on 23 March 2009 in which he referred to a prior telephone call to the court, and indicated that the claimant did not live at 79 Deer Park Gardens.[9]As I have already indicated, the claimant was thereafter convicted in his absence in the magistrates' court on 17 April 2009. He was fined £375 for each offence and was ordered to pay a £25 victim surcharge and £280 in costs, making a total of £1,795. He was also disqualified from driving for twelve months.[10]On 1 May 2009 the claimant lodged an appeal against conviction and sentence to the defendant court. As indicated above, the appeal was heard by Mr Recorder Pearse Wheatley and two justices on 18 June 2009. The interested party was represented by counsel, Mr Coates. The claimant represented himself and gave evidence. The tape-recording of much of the hearing is no longer available. The only contemporaneous documentation that is now available is a copy of the court log and a transcript limited to the judgment given by the learned Recorder dismissing the appeal against conviction, and of the appeal against sentence that followed.[11]The court log indicates that the appeal was called on at 11.12am; that the prosecution case took some six minutes; that the learned Recorder (having established that the claimant was acting in person) then outlined to him details of the offences and the procedure; that the claimant began his evidence at 11.20am and explained that he had not been living at the registered address and why, including the fact that he had let out the address for six months; that at 11.34am the learned Recorder asked the claimant if he understood what the issues were and pointed out that if he registered an address it was his responsibility, and that he was not at the registered address; that the complainant completed his evidence at 11.43am and then addressed the court in closing until 11.46am, at which point the court did not retire but stayed on the bench and Mr Recorder Pearse Wheatley proceeded to give judgment on the appeal against conviction.[12]The crucial part of that judgement, as it seems to me, is as follows:
"The case is really marked by the defendant's inability to co-operate with the obligations which the ownership of a motor vehicle imposes on the citizen these days. There is no doubt, in our view, that he failed to provide the information required under section 172(2)(a). We have had to consider whether the statutory defence under section 172(4) applies. What we have been told by the appellant in the witness box, where he has been extremely frank, is that although the car is registered at 79 Deer Park Gardens, Mitcham, he himself is not there on any what might be regarded as regular basis. He told us about his work commitments which take him down to Herne Bay and he has mentioned other addresses where he resides from time to time. But perhaps the most significant aspect of his evidence is that he told us at one point, and I quote: 'I have made it my business not to be at the registered address' and he explained that against the background of receiving letters from the Child Support Agency. So here is a man who, although he has his car registered at 79 Deer Park Gardens, is not there often and makes it his business not to be there often. In those circumstances it is hardly surprising if he says, and we accept what he says about this, that he did not get the letters. He talks about another person being at that address, being on hand to open letters as and when needed, but the reality is that the section, that is to say section 172, imposes a heavy duty upon a motorist. Once he has given an address, that is the address at which he must be available to receive communications such as notices of intended prosecutions and it does not lie in the mouth of an appellant or a defendant in the magistrates' court simply to say, 'I haven't been home much and therefore I haven't received these communications'. As I say, the Act, section 172, places a duty, which these days has to be interpreted strictly, upon the motorist that when he given an address as the registered address of his motor car, to make sure that important documents relating to that motor car when sent to that address will be received by him. For those reasons we reject the appeal."
[13]Thereafter, the claimant's appeal against sentence was also dismissed and he was ordered to pay £250 costs.[14]The following day, 19 June 2009, the claimant filed applications for permission to apply for judicial review upon the basis that the court had stated that his witness (Mr Okoturo) was unreliable and that it was unnecessary for the court to hear from him, as a result of which, the claimant asserted, he had been inappropriately prevented from calling Mr Okoturo to give evidence. He also sought urgent consideration of his application.[15]On 22 June 2009 those applications were refused by His Honour Judge Thornton QC, sitting as a Deputy Judge of the High Court, who took the view that the claimant had not exhausted his remedies in the defendant court, required him to apply to the defendant court for a rehearing or reconsideration of the appeal and/or for a case stated, and stayed the claim for permission until further application or order. The claimant therefore wrote to the defendant court requesting a stay of execution or a rehearing. That was refused, but the defendant court indicated that he could apply to state a case.[16]Thereafter, the claimant renewed his claim for permission to seek judicial review. As already touched on, the permission hearing took place before Burton J on 2 July 2009. Neither the defendant nor the interested party was notified of the hearing -- whether in time or at all. The claimant and Mr Okoturo both attended. In the result, permission was granted upon the grounds to which I have already made reference. Burton J ordered, amongst other things, that:(1) The claimant file and serve within fourteen days witness statements from himself and Mr Okoturo setting out the nature of the claimant's case that he did not receive any of the notices and that Mr Okoturo was not allowed to give evidence in the defendant court.(2) The order of disqualification be suspended until the determination of the application for judicial review.(3) The defendant and/or the Crown Prosecution Service file and serve within 28 days a full account of what occurred at the defendant court on 18 June 2009 in relation to the dismissal of the claimant's appeal, together with summary grounds of defence.(4) The claimant be provided, at public expense, with a transcript of Burton J's judgment.[17]Since then there has been an elongated and unfortunate procedural history, largely brought about by the claimant's repeated failure to comply, or fully to comply, with orders requiring him to file evidence, but also including a failure for a time by the authorities to notify the DVLA of the suspension of the claimant's disqualification resulting in his arrest on two occasions for driving whilst disqualified. It suffices to note that:(1) On 21 July 2009 the claimant filed Amended Grounds (rather than the required witness statement) setting out his account, together with a witness statement from Mr Okoturo dated 15 July in which Mr Okoturo stated, amongst other things, that the claimant did not receive any police request letters "at his temporary contact address at 79 Deer Park Gardens", but in which Mr Okoturo did not deal, as ordered, with his attendance at the defendant court on 18 June 2009.(2) On 11 August 2009 the defendant court applied for an extension of time in which to respond to Burton J's order. That application was eventually opposed by the claimant. In the meanwhile, on 20 August 2009, the defendant court filed an Acknowledgement of Service and submission. The submission included a copy of the court log covering the hearing on 18 June 2009, the transcript to which I have already made reference, and a summary of the learned Recorder's comments on Burton J's judgment and order, including the comment that the learned Recorder had not refused the claimant permission to call a relevant witness, nor indeed referred to that witness as unreliable or irresponsible.(3) On 15 October 2009 this court (then consisting of Scott Baker LJ and Cranston J) granted the defendant court its application for an extension of time and ordered that the case be listed before a single judge not less than two weeks later. At that same hearing, the defendant court supplied the claimant with a transcript of Burton J's judgment of 2 July 2009.(4) On 5 November 2009 the claimant applied for a copy of the defendant court's tape-recording of the appeal hearing on 18 June 2009. It seems that as a result of that application, and of a letter from the claimant to the court office in February 2010, that the case was not listed for hearing as ordered by this court at the hearing on 15 October 2009.(5) On 23 March 2010 the claimant's application for a copy of the tape-recording was considered by Collins J, who (in the mistaken belief engendered by the claimant that Burton J's order of 2 July 2009 was for a transcript of the appeal proceedings on 18 June 2009, as opposed to a transcript of his own judgment) ordered the service of a full transcript of the appeal proceedings within 21 days, and for the case to be listed as soon as possible in the following term.(6) On 9 April 2010 the claimant filed another application, apologising to Collins J for the prior confusion, but again seeking an order for the provision of copies of any tapes of the full hearing on 18 June 2009.(7) On 20 April 2010 Mr Okoturo wrote to the Treasury Solicitor (who represents the defendant court) stating that he had attended at the Crown Court on 18 June in order to give evidence to confirm that the claimant did not receive the relevant police notices.(8) The claimant's application of 9 April 2010 came before Collins J on 27 May 2010. In the result, Collins J acknowledged the defendant court's compliance with the order of Burton J, and the fact that there were no tapes or transcripts of the hearing on 18 June 2009 beyond the transcript to which I have already made reference. Collins J then ordered the claimant to lodge, within fourteen days, a statement of truth setting out any matters in dispute, and a statement from Mr Okoturo dealing fully with the matters set out in Burton J's order. Finally, Collins J ordered that the case be listed before the end of term, and before a single judge if necessary.(9) Contrary to the order, the claimant did not file the requisite statements, and the case was again listed before this court (then consisting of Stanley Burnton LJ and Nichol J) on 23 July 2010. The court ordered the claimant, within fourteen days, to file and serve a witness statement or affidavit from himself detailing, in particular, his oral evidence to the court on 18 June 2009 and what was said about Mr Okoturo, and also a witness statement or affidavit from Mr Okoturo giving a detailed description of what evidence he would have given had he been called. The court further ordered the defendant court to respond within 28 days of service by the claimant, and that the Crown Prosecution Service be joined as an interested party (although, unhappily, it was not served with the papers until towards the end of February 2011).(10) On 9 August 2010 the claimant finally filed witness statements from himself and Mr Okoturo. The claimant asserted that he had made it clear to the court that Mr Okoturo was living at the registered address at the material time, had permission to open his mail and to inform him if anything of importance had arrived, and that the Notices had not arrived at the address. He further asserted that the learned Recorder had stated that the letters had been received at the address, that the person staying at the address was irresponsible and had not done the right thing, and that the witness was thus not necessary. Mr Okoturo asserted in his statement that no police Notices were delivered to the address and that he had attended at the defendant court on 18 June 2009 and would have given evidence to that effect.(11) On 3 September 2010 the defendant court applied for an extension of time in which to serve its response to the witness statements. That was resisted by the claimant, but time was later extended by Master Venne. In the meanwhile, on 10 September 2010 the defendant court served a statement dated 7 September 2010 from Mr Recorder Pearse Wheatley. The learned Recorder stated, amongst other things, that the court's ruling was as set out in its judgment; that the court found as a fact that all eight Notices had been delivered to the registered address at 79 Deer Park Gardens (albeit, I would add, that that is not stated in the judgment itself); that the court was of the view, on the construction of section 172(2) and (4) of the Road Traffic Act 1988 that the responsibility on a motorist of receiving Notices under section 172 was a high one, and that the burden of proof that the claimant had acted with due diligence was on him; that his recollection of the account given by the claimant in evidence included that the claimant had not been aware of the occasions when he must have been flashed by traffic cameras; that he was working away from home for long periods but had asked his tenant and/or friend to open important documents and make him aware of them -- albeit that because of the Child Support Agency he was avoiding the receipt of official looking documents; and that under cross-examination it had become clear that the claimant's arrangements to collect his post were virtually non-existent. The learned Recorder continued that at the end of his evidence the claimant was given the opportunity to call any evidence that he wished, based on his (the claimant's) own assessment as to whether any witness would help his case, and that the claimant (who had become dejected by the exposure in cross-examination of the haphazard nature of his arrangements) had decided not to call any witness. The learned Recorder finally stated that he did not describe any other person (including Mr Okoturo) as being irresponsible.(12) As recently as within the last week, the claimant has renewed his attempts to gain access to tapes of proceedings in the Crown Court. In his skeleton argument he indicates that he has been able, at least in part, to do so.(13) The defendant court and the interested party have, between them, placed before this court the papers upon which the original prosecution was based before the defendant court.(14) The interested party has filed a statement made by prosecuting counsel on the appeal (Mr Coates) dated 25 March 2011. Mr Coates states that he does not have any notes that he made during the hearing, but that he has a clear recollection of the proceedings. He indicates that he has seen, and agrees with, Mr Recorder Pearse Wheatley's statement of 7 September 2010. It is Mr Coates' recollection that the claimant was asked if he had any witnesses to call and that he indicated that he did not. Mr Coates has no recollection of the court stating that the claimant's witness was unreliable or of the court stating that it was unnecessary to hear evidence from the witness. He states that if such an event had occurred, he would have expected that he would have intervened and invited the tribunal to allow the witness to be called, and that it was not necessary for him to do so as far as he recalled in the appeal in this case. On behalf of the defendant court, Mr Watson accepts that the court failed, wrongly, to address, in terms at least, section 172(7)(b) of the Road Traffic Act 1988, and accepts that there is a concern that Mr Okoturo, who was plainly available to give relevant evidence, was not called. The burden of Mr Watson's submission to this court is that, whilst there may be legitimate concerns about the dismissal of the appeal, it would be wrong for this court to find that the court, and particularly the learned Recorder, did anything improper in any way, and certainly not anything which inappropriately prevented the claimant from calling his witness.[18]On behalf of the interested party, Mr Mitchell accepts that there was an error in the failure to address section 172(7)(b), and he accepts that against the background of the learned Recorder's reference in his statement to "due diligence", which is a plain reference to section 172(4) (the section referred to by the Recorder in his judgment), not to section 172(7)(b).[19]The claimant submits that the version of events that he has put forward to the court in the various documents to which I have made reference, including his witness statement, is the correct version of what happened.[20]Standing back from the detail, there is no dispute that the offences committed by the driver of the van were offences to which section 172 of the Road Traffic Act 1988, as amended, applied. For current purposes the relevant subsections of section 172 provide 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 by or on behalf of a chief officer of police .... (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. .... (9) For the purposes of section 7 of the Interpretation Act 1978 as it applies for the purposes of this section the proper address of any person in relation to the service on him of a notice under subsection (7) above is -- .... (b) in any other case, his last known address at the time of service.[21]Section 7 of the Interpretation Act 1978 provides that, unless the contrary intent appears, service is deemed to be effected by properly addressing, prepaying and posting a letter containing the relevant 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 the post.[22]Against that background, I agree with the submissions made on behalf of the interested party that, reading the relevant subsections as a whole, section 172 provides that the requirement on the keeper of a vehicle to provide the relevant information arises once a Notice has been sent to his last known address, which (as here) will almost inevitably be the address at which he is the registered keeper. Once a Notice has been so sent, a keeper is guilty of an offence if he fails to provide the requisite information within 28 days unless, on a balance of probabilities, he can establish a statutory defence under subsection (7) (for example, under subsection (7)(b) that it was not reasonably practicable to give the information because the notice was never delivered to the registered address), or under subsection (4) (for example, that despite receiving the Notice he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was at the material time).[23]It follows, in my view, that section 172 does not create a duty, as such, on a registered keeper to make sure that he is available at the registered address to receive communications such as Notices of Intended Prosecution. Rather, a failure to be so available is simply a factor which may make it very difficult, if not impossible, for a registered keeper to discharge the burden on him of proving a defence under subsection (7)(b), particularly if that defence is the example that I have just given, namely that it was not reasonably practicable to comply with the Notice because it was never delivered to the registered address.[24]In consequence, it is clear from the learned Recorder's judgment that the appeal was decided upon the basis of a duty that did not in law exist and upon the application of subsection (4) which was irrelevant, rather than subsection (7)(b) which provided the defence upon which the claimant actually sought to rely. Equally, it appears from the judgment that no specific finding of fact was made that all eight Notices had been delivered to the registered address.[25]On the contemporaneous material, I have no doubt that the defence that the claimant ultimately sought to put forward was that it was not reasonably practicable for him to give the information, and that that defence was based upon the proposition that none of the Notices had been delivered to the registered address, and that his tenant was capable of supporting that proposition.[26]That said, this court is in no position to reach a conclusion on the merits of the dispute between the claimant, on the one hand, and the learned Recorder and prosecuting counsel, on the other hand, as to what precisely was said. That resulted in Mr Okoturo not being called. Certainly we doubt that the Recorder would have used the words specifically attributed to him. It is, however, clear, both from the contemporaneous records and from what one would expect when the court had an unrepresented appellant before it, that the learned Recorder explained the law as understood by the court to the claimant before the claimant made his eventual decision not to call Mr Okoturo. That explanation would logically have been the same as the basis upon which the court reached its decision on the appeal. There was no correction by prosecuting counsel of that explanation.[27]Adopting, therefore, the learned Recorder's statement as to what happened, the opportunity given to the claimant to call any evidence that he wished based on his (the claimant's) own assessment as to whether any witness would help his case, could only have resulted, given what the court had said to him about the law, in the logical assessment by the claimant that there was nothing that Mr Okoturo could now say to help him. Thus, whatever the precise words that were used, the reality is, and must be, in my view, that it was upon that basis that the claimant decided against calling his witness. Therefore it seems to me that the claimant's Article 6 rights were breached both in the fact that the wrong part of section 172 was applied, and the correct part not addressed, and by the claimant not calling his witness in circumstances where the witness was available and had relevant evidence to give.[28]Contrary to the submissions made by the interested party, I do not think it right to accede to the proposition that the defendant court's findings nevertheless necessarily amounted to a rejection of a defence under section 172(7)(b). As I have already indicated, that defence was not properly developed before the court.[29]Although a good deal of time has passed (largely through the fault of the claimant), I see no reason why it would be unfair for there to be a rehearing of the appeal in this case. Accordingly, if my Lord agrees, and for the reasons that I have endeavoured to give, I would quash the decision of the defendant court dismissing the claimant's appeal, order that the appeal be reheard before a differently constituted court as soon as practicable, and further order that the current suspension of the disqualification remain in place until that rehearing. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:[30]I agree that this claim should succeed for the reasons which Sweeney J has just given.[31]I would simply add this. It is evident, as Sweeney J has explained and as is accepted by both counsel responding to the claim, that the Recorder decided the appeal on an erroneous application of section 172(4) of the 1988 Act, when the defence required consideration of section 172(7). The defence was, quite simply, that the relevant letters had never been delivered to 79 Deer Park Gardens, and the claimant had at court a witness -- his tenant at those premises -- who was there to testify that the letters had never arrived. The evidence was material to the claimant's defence, but it was not called and that is unsatisfactory.[32]It was unsatisfactory also that the Recorder's judgment did not decide this issue. There is an issue of fact as to why the evidence was not called. The claimant says that he was positively prevented from doing so, which is most unlikely. Both the Recorder and prosecuting counsel say that this did not happen. But the fact is that the evidence, which was material and was available, was not called. It is perhaps a fair inference that the Recorder may have explained his erroneous understanding of the relevant part of section 172 to the claimant, as it appears from the court log he did, indicating that the proposed evidence was not material and that in consequence the claimant realised that the evidence would not be material and decided not to call it.[33]That is an issue of fact which this court cannot determine, and it is not necessary to do so because the decision proceeded on an error of law and because, for whatever precise reason, a witness who was there and able to give relevant evidence was not called in circumstances where, for the court to decide the appeal without it, caused a degree of procedural injustice.[34]Just as it is highly unlikely that the claimant was expressly forbidden to call the witness, it is equally unlikely that he decided not to do so on a whim without some indication from the court to the effect that calling the witness was pointless.[35]In the result the claim succeeds. The appeal decision is quashed and the matter will be remitted to the Crown Court for the it to be reheard before a differently constituted bench. Meanwhile, the suspension of the disqualification will remain until that decision is made.

Cited in 3 later judgments