Lynes v Director of Public Prosecutions [2012] EWHC 1300 (Admin)

Case No CO/1339/2012[2012] EWHC 1300 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Tuesday 6 March 2012
M3 3FX
Before
MR JUSTICE McCOMBEMR JUSTICE HICKINBOTTOM
Between
LYNESAppellantsDIRECTOR OF PUBLIC PROSECUTIONSRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Miss Logan appeared for Appellants.Mr Storrie appeared for Respondent.
Judgment
[1]The speed limit on the southbound A419 at Cricklade in Wiltshire is 70mph. On 31 March 2010 a Volkswagen Golf GT Sport car registration mark CP57 AEU was caught by a police speed check camera driving at 81mph on that road. In exceeding the speed limit the driver committed an offence under section 89 of the Road Traffic Regulation Act 1984.[2]Of course a speed camera does not identify the driver, only the vehicle. However, every vehicle has to be registered with the DVLA under the provisions of the Vehicle Excise and Registration Act 1994 and regulations thereunder. The details to be registered include those of the keeper and that keeper’s address. Section 172 of the Road Traffic Act 1988 lays down a procedure for obtaining information about who is driving a vehicle at any particular time in relation to a number of offences, including speeding. It does so in the following terms:
“(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, 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 [1978 c. 30.] 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.”
[3]Those provisions chime with part 1 of the Road Traffic Offences Act 1988 which requires a prosecution authority to warn off unintended prosecution including, in certain circumstances, by issuing and serving by post a notice of intended prosecution. Such notices under section 172 are often sent out together as a pack to the registered keeper who, in practice, is most likely to have been keeping and driving the vehicle and certainly the most likely to be able to satisfy the legal requirement of a section 172 finger-pointing provisions. At the relevant time the DVLA record at DQ5 for the vehicle registration mark CP57 AUE showed the registered keeper of the vehicle as “Ben Charles Lynes and Margaret Lynes” with a registered address of “Unit 23, Mochdre Industrial Estate, Mochdre, Newtown, SY16 4LB”. Mr and Mrs Lynes are the appellants before us and they trade as Hafren Fasteners from the Mochdre address.[4]Following the capture of the vehicle speeding on camera on 31 March, on 7 April 2010 a notice of intended prosecution for speeding and a section 172 requirement request was sent to “Margaret Lynes and Ben Charles Lynes & Joan” at the Mochdre address. The notice set out the alleged offence and continued:
“You have been identified as the Owner/Keeper/Hirer/Driver of the above vehicle at the time of the alleged offence or any person may have information as to the identity of the driver. As such, you are required to provide the full name and address of the driver at the time of the alleged offence and sign your nomination or any information in your power which may lead to the driver’s identification. If you are the driver you are required to provide your full name, address and date of birth and sign the declaration. Under section 172 of the Road Traffic Act 1988 (as amended) you are required to supply the information requested above within 28 days of the date of this notice. The S172 notice attached must only be completed by the addressee Do not forward to a third party. If you fail to provide the required information you will be liable for the offence of ‘failing to furnish information contrary to section 172 of the Road Traffic Act 1988, for which the penalty may be higher than that of the alleged offence itself, e.g. both a fine and 6 penalty points.”

The S172 notice attached must only be completed by the addressee

[5]That notice was sent by Sergeant 1678 Morton for the Chief Constable. As Miss Logan has submitted before us this morning, the notice was patently an important document with potentially serious consequences if it was not complied with, consequences including possible criminal prosecution and sanctions. No response was received to that notice and a reminder was sent on 10 May 2010. On 7 June 2010 a Miss Carrie Lynes, on behalf of Hafren Fasteners, wrote to the police saying that a number of people could have been driving the vehicle and requesting a copy of the photographic evidence of the speeding offence, which was sent the following day.[6]In the continued absence of any substantive response further notices of intention to prosecute and the section 172 requirement addressed individually to Mr and Mrs Lynes were sent on 8 July 2010. They were each accompanied by a separate section 172 notice for completion. Still no substantive response to the section 172 was received and on 18 August 2010, when the 28-day period ascribed for the provision of information had passed, summonses were issued against Benjamin Lynes and Margaret Lynes at the Mochdre address, charging each with failing to comply with a section 172 requirement in the following terms:
“After 07/05/2010 at Devizes in the County of Wiltshire, having been required by or on behalf of the Chief Officer of Police for Wiltshire Police, failed to give information relating to the identification of the driver of a vehicle, namely a VOLKSWAGEN, CP57 AEU, who was alleged to have been guilty of an offence, Contrary to section 172(3) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.”
[7]It is clear from that charge that the only section 172 requirement relied upon for the prosecution was that dated 7 April 2010. On 27 August Mr and Mrs Lynes wrote to the magistrates’ court saying that the section 172 request and photographic evidence provided had been forwarded to an employee, Mr Ben Cooper, whom, the letter said, was responsible for the vehicle and requesting that the summonses against Mr and Mrs Lynes be withdrawn. That letter makes clear that the “earlier correspondence regarding this offence” had been received by Mr and Mrs Lynes; the letter was signed by both of them. However, on 21 September 2010, before Salisbury Magistrates’ Court, they were each found guilty in their absence and each fined £525 with further orders to pay costs of £35 and a victim surcharge. Their licences were endorsed with six points each.[8]They appealed against conviction to the Salisbury Crown Court; that appeal was heard on 8 February 2011 by HHJ Andrew Barnett and justices. At the appeal it was submitted on behalf of Mr and Mrs Lynes that the charge against each of them was defective for two reasons. First, it was submitted that the date relied upon – “after 7 May 2010” – was inadequate. The Crown Court held that the offence was a continuing one and that consequently that date as charged was sufficient. That finding is not further challenged.[9]However, the second ground of appeal was that a section 172 requirement for information addressed jointly to two or more individuals and enclosing only one form upon which information was to be supplied was not a valid requirement. It was submitted that the requirement did not make it clear which addressee was being required to provide the information sought and the conviction of each meant that at least one of them had been penalised for the failure of the other to provide the required information which was unjust. The Crown Court dismissed the appeal finding that(1) the submission that the joint requirements were insufficient was without weight as the requirements of section 1 of the Road Traffic Offenders Act 1988 were met and therefore the requirement did not offend that statute;(2) there was no case law or anything else which suggests that a requirement cannot be made jointly of more than one person; and(3) both parties would have been aware of the obligation to provide information and to have dealt with it individually.[10]Mr and Mrs Lynes wish to appeal further and following a hearing of a different division of this court – Langstaff and Kenneth Parker JJ – at which the Crown Court were ordered to state a case, a case was stated for this court to consider the following three questions.(1) Where one requirement under section 172 Road Traffic Act 1988 is addressed jointly to more than one person and attaches only one form on which the information is required to be provided, is the requirement lawful?(2) If so, does each have a separate duty to provide the information?(3) As there had been no response from a jointly addressed requirement for information, were we right to dismiss the appeals against conviction for failure to furnish information?[11]Those are the questions which are now before this court. In relation to those questions and section 172 requirements generally we were referred to a number of authorities, most notably Boss v Measures [1990] RTR 26, DPP v Broomfield [2002] EWHC 1962 (Admin), Jones v DPP [2004] EWHC 236 (Admin), R (Whiteside) v The Director of Public Prosecutions [2011] EWHC 3471 (Admin) and R (Purnell) v Snaresbrook Crown Court [2011] EWHC 934 (Admin). From those authorities can be derived the following relevant propositions.(1) The proper approach to section 172 is purposive; its purpose is to provide a practical, fair and enforceable way for the police authorities to obtain information about vehicles and their drivers who might be guilty of certain road traffic offences.(2) Although the statutory provisions are silent as to the form of any section 172 request, any request has to be reasonable, with reasonably adequate details as to whom, where and by what means the information must be provided.(3) There is a presumption that “the keeper” of the vehicle for the purposes of section 172(2)(a) was the keeper registered as such with the DVLA at the relevant time.(4) When a person gives his details to the DVLA as the registered keeper of a vehicle he assumes responsibility for responding to correspondence and notices relating to that vehicle sent to him at the registered address. In the course of argument Miss Logan was not prepared to concede that proposition although she said she saw the force in it. We consider that proposition to be patently correct. For the position to be otherwise would undermine the scheme for vehicle and keeper control set out in the Vehicle Excise and Registration Act 1994.(5) Section 7 of the Interpretation Act 1978 provides that unless the contrary intent appears service is deemed to be effective by properly addressing, pre-paying and posting a letter containing the relevant documents and, unless the contrary is proved, to have been effected at the time which the letter would be delivered in the ordinary course of the post; by section 172(9) that is satisfied by sending a notice to the person’s “last known address” in respect of a section 172 requirement notice. However, there is a presumption that the last known address of the registered keeper will be the registered address of that keeper and there is a presumption that service on a registered keeper is effected by posting correspondence or a notice to him at the registered address. Of course, those presumptions are rebuttable.(6) Where a section 172 notice is sent to a registered keeper at a registered address that keeper will be guilty of an offence under section 172(3) if he fails to provide the requisite information within 28 days unless, on the balance of probabilities, he can establish a statutory defence under section 172(4) or (7).[12]As Miss Logan stressed, those cases do not explicitly deal with the issue in this case, namely whether a section 172 notice can be addressed to more than one individual. Before considering that specific issue it would be helpful to clear the decks of three matters. First, Miss Logan, for the appellant, faintly suggested in the course of her submissions that the section 172 notice in this case was bad because it was not properly addressed to Mr and Mrs Lynes. It was, she submitted in her written submissions, addressed to three people, namely Margaret Lynes, Ben Lynes and someone called Joan. That was not an issue raised by the appellant before the magistrates or the crown court; neither claimed before either of those courts that the form of appellation had in any way misled, confused or prejudiced them. In my view the suggestion, insofar as it is now made, has no merit. Although wrongly juxtaposing the specific names, the notice is clearly addressed to the two appellants and it is clear from their correspondence with the magistrates’ court and their submissions before the lower court that the appellants took the notice as being addressed to them both and to no one else. It is unsurprising in my view that this point does not feature in the stated case which we have been asked to address.[13]Secondly, section 1 of the Road Traffic Offenders Act 1988 is referred to in the case stated as something which the Crown Court considered supported their conclusion that a section 172 notice could be addressed to more than one individual. However, that statutory provision requires service of a notice of intended prosecution as a pre-requisite to a conviction for the substantive offence alleged. That is in this case speeding. It is not a pre-requisite for a conviction of an offence under section 172(3) and has no application or relevance to a prosecution under that section. Mr Storrie for the respondent has not sought to suggest otherwise.[14]Thirdly, a section 172 notice served upon a body corporate is the subject of particular provisions in section 172(8). Although it may have been that the vehicle in this case was used in the course of Mr and Mrs Lynes’ business, those provisions have no relevance in this case. There is no suggestion that the vehicles that are kept by or the section 172 notice was ever served upon any body corporate.[15]In relation to the substantive issue in the appeal Miss Logan submitted that, as a matter of construction, a section 172 notice could only be addressed to a single individual. In support of that submission she relied particularly upon the following.(1) Section 172(2) refers to “the person keeping the vehicle” and “any other person”, both in the singular. Unlike section 172(2)(a) and (b) respectively the requirement must be made to either the person keeping the vehicle or any other person. There is no provision, she submitted, for addressing the same requirement to more than one person and certainly no provision for a person being required to accept service on behalf of his or her spouse.(2) Furthermore, the form to be completed was aimed at a single person. Only one form was sent with the notice of 7 April 2010. It was in any event, she submitted, practically impossible for both appellants to have responded because there was only one form and the space on it was insufficient for both of them to respond.(3) By addressing the notice to two people the court could not be satisfied that either was properly served. The court would have had to be satisfied in relation to each appellant that he or she had been served with the notice or had been handed the notice from the other appellant after he or she had been served. The court could not have been satisfied that either had been served properly.(4) Addressing the notice to more than one person was unfair because it was unclear upon whom the legal duties to complete the form fell and hence unclear upon whom criminal sanctions might ultimately be invoked. It was therefore unjust to have convicted either appellant; one of whom had been convicted because of the criminality of the other.[16]Those submissions are in my view borne of commendable ingenuity on Ms Logan’s part but on any analysis they lack legal merit for the following reasons.(1) The Vehicle Excise and Registration Act 1994 and the regulations under that statute require each motor vehicle to have a registered keeper. There is no doubt in my view that more than one individual may be registered as keeper of the same vehicle. By virtue of section 6(c) of the Interpretation Act 1989 in statutory provisions words in the singular include the plural. However, in any event, in practice the DVLA accepts the registration of a vehicle in more than one name and in this very case Mr and Mrs Lynes of course actually applied to the DVLA for the relevant vehicle to take advantage of that and be registered in their joint names.(2) Similarly “a person keeping” a vehicle from section 172(2)(a) includes the plural; that is “persons keeping” the vehicle.(3) There is a presumption that the registered keeper is keeping the vehicle for the purposes of section 172(2)(a) and, if there are more than one, that the registered keepers are the keepers of the vehicle for that purpose. If the registered keeper is not the keeper of a particular vehicle in fact and he does not have information which may lead to the identification of the driver then he would have a statutory defence under section 172(4) or (7).(4) I consider that that is the natural meaning of the words of section 172(2)(a), particularly when construed purposively. I do not consider that that construction was absurd, as Miss Logan suggested, or even surprising. Under the statutory scheme a registered keeper of a vehicle is assumed responsible for various requirements relating to the vehicle, including providing section 172 information following a request. It is consistent with that scheme that, where more than one person jointly own a vehicle and register themselves as the keepers at a registered address, they are assumed jointly responsible. Where there is such joint responsibility if none of the people registered as keeper responds to a section 172 notice then it is neither contrary to principle nor surprising that all commit the criminal offence of failing to respond.(5) In this case the appellants were served with a section 172 notice because they had registered themselves jointly as the keeper at a single registered address. As such they each fell into the categories of persons identified in section 172(2)(a) or, if not a keeper in fact, section 172(2)(b). They were not served because of some status such as being the spouse of a keeper.(6) I consider that service was properly effected upon both appellants. As I have indicated, the appellation in the notice of 7 April was ultimately clear and clearly did not mislead either appellant. They decided to register the vehicle jointly with a single registered address. They ought to have expected notices relating to the vehicle such as notices of removal and notices to owner or notices under section 172 to come to them jointly at that address. There was a presumption that that address was their last known address for the purposes of service under section 172(9).(7) I consider the request made on 7 April was therefore an entirely reasonable one. Further, there is no arguable unfairness to either appellant. The notice was properly served on both and the requirement would have been adequately met if either had responded; neither did. It is clear from the later correspondence that both could have done so. There is no evidence that either could not have done so. The burden of establishing a defence under section 172(4) or (7) fell upon each of the appellants. They did not discharge it; indeed neither sought to discharge it. The submission that the appellants or either of them was actually prejudiced by the fact that the section 172 notice was in joint form is, on the facts of this case, in my judgment disingenuous.(8) The duty to satisfy the requirement fell on each of Mr and Mrs Lynes. They each failed to comply; neither was convicted because the other had failed to comply.[17]For those reasons I am quite satisfied that a section 172 notice can properly be served on more than one joint keepers of a vehicle. Where those people have a common “last known address”, for example where there are more than one registered keeper at a single registered addressed who are presumed by virtue of their registration to keep the vehicle. I would therefore answer each of the three questions posed by the crown court “yes” and I would dismiss this appeal.[18]I agree that this appeal should be dismissed for the reasons given by my Lord. I agree also that questions one and three fall to be answered in the positive. For my part it is not entirely clear that it is correct to say in respect of question two that each has a separate duty to provide the information. I would like to leave for a future consideration whether the question would properly be so answered by saying that each has a separate duty to ensure that the information is provided. It is not necessary to decide that question for the purpose of today’s case. What my Lord has said with which, as I say, I entirely agree, is quite sufficient to dispose of the appeal. I agree that the appeal should be dismissed. MR STORRIE: My Lord, that leaves the question as to costs. MR JUSTICE McCOMBE: Yes, Mr Storrie. You provided a schedule, did you not? MR STORRIE: Yes indeed. It suggests a total amount of £1770. MISS LOGAN: I have no representations to make. MR JUSTICE McCOMBE: I am grateful for that indication. In the circumstances we will order the appellants to pay the costs of the Crown assessed in the sum of £1770. MR STORRIE: I am obliged. MR JUSTICE McCOMBE: Thank you both for your assistance.