Foster v Director of Public Prosecutions [2013] EWHC 2039 (Admin)

Case No CO/4792/2011

[2013] EWHC 2039 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 21 June 2013

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE LAWS

MR JUSTICE WILKIE

Between

IAN CAMPBELL FOSTERClaimant

Between

DIRECTOR OF PUBLIC PROSECUTIONSDefendant

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Mr I Foster appeared in person for in person

Mr S Ray (instructed by CPS Appeals Unit) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE WILKIE: This is an appeal by Ian Campbell Foster by way of case stated from the decision of the Lewes Crown Court dated 18 November 2010, which dismissed his appeal against a conviction by the Brighton Magistrates' Court dated 28 January 2010 for an offence of failing, as the keeper of a vehicle, to supply information as to the driver's identity in breach of section 172(3) of the Road Traffic Act 1988.

[2]In the information which was placed before the Brighton magistrates and upon which, it was said, he had been summonsed to appear before them, the offence was said to have been committed on 18 April 2009. It arose from an alleged speeding offence committed on 10 March 2009 by the driver of a vehicle, of which the appellant was the recorded keeper, and arose out of a requirement, said to have been made upon him, to supply that information, which the Crown Court found as a fact had been sent by first class post on 20 March 2009.

[3]The case stated concerned two procedural aspects. The first was the question whether the Crown Court had erred in fact or law in concluding that the notice of intention to prosecute -- which also included the requirement to give information -- should be deemed as having been served on the appellant notwithstanding his contention that he had never received it, on the basis that the Crown Court concluded on the evidence that the appellant had failed to discharge the evidential burden upon him to show on the balance of probabilities that he had not in fact received that document.

[4]The second basis upon which the case was stated was the conclusion of the Crown Court that the summons which had resulted in the conviction by the Magistrates' Court on 28 January was to be deemed to have been served on the appellant, notwithstanding the fact that the appellant asserted that he had never received the summons and where the evidence, as found by the Crown Court, was that the summons had been sent by recorded delivery but that the summons had never been left at the appellant's home address because, for whatever reason, it had not been signed for and accordingly the Post Office, which was the agency given the task of delivering that document, had retained the document at its premises, no doubt awaiting further instruction or disposal.

[5]At the outset of today's hearing, the court, of its own motion, asked Mr Ray who appears for the prosecution, to deal with what appears to be a logically prior issue, namely whether the information before the magistrates, which informed the summons before the magistrates, on its face disclosed the commission of any offence at all in that the information stated that the offence alleged under section 172(3) was committed by the appellant on 18 April 2009.

[6]Mr Ray conceded that, on the face of it, given the sequence of events and the rules as to service of documentation [to which we will return in a moment] it did appear that the information and the charge as identified in the summons did not disclose the commission of the offence alleged.

[7]However, with commendable industry and, if we may say so, professionalism, he has performed some urgent research during a short adjournment and has put forward cogent arguments supported by relevant authority, to which we pay tribute, even although, ultimately, in our judgment, the argument he seeks to adduce on this issue does not prevail.

[8]We now turn to explain how it is that the information did not disclose the commission of the offence alleged. The duty to give information as to the identity of a driver in certain circumstances arises under section 172 of the Road Traffic Act 1988.

[9]Subsection (1) provides that the section applies, among other things:

"to any offence against any other enactment relating to the use of vehicles on roads."

The speeding offence which had been identified as committed by the driver of the vehicle on 10 March was such an offence.

[10]Subsection (2) of section 172 provides that:

"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 on or on behalf of a chief officer of police."

[11]Subsection (3) provides that:

"Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence."

[12]Subsection (7) sets out the provisions in relation to such a requirement in the following terms:

"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 ... "

Thus the offence is not committed at all until the expiration of 28 days beginning with the day on which the notice is served.

[13]The provisions for service of documentation, including such a requirement, are provided for in part 4 of the Criminal Procedure Rules, as they then were, 2005. Rule 4.1 provides that:

"The rules in this Part apply to the service of every document in a case to which these Rules apply... "

Thus they apply to the requirement in this case.

[14]Rule 4.2 provides for methods of service and refers to a series of subsequent rules. Rule 4.4 concerns service by leaving or posting a document. It provides: (1) A document may be served by addressing it to the person to be served and leaving it at the appropriate address for service under this rule, or by sending it to that address by first class post or by the equivalent of first class post."

[15]Sub-sub rule (2) provides for the address for service and there is no dispute that the address to which the requirement was sent was the appropriate address for service. Rule 4.10 provides for the date of service. Sub rule (1) concerns a document served under 4.3 and 4.8 and so is not applicable to this case. Sub rule (2) provides:

"(2)Unless something different is shown, a document served on a person by any other method is served - . . . (b) In the case of a document sent by first class post or by the equivalent of first class post, on the second business date after the day on which it was posted or dispatched."

[16]Applying these provisions to the facts as found by the Crown Court in relation to this case, the requirement was sent by first class post. It was posted on 20 March 2009. That date was a Friday. Thus the second business day after the date on which it was posted was the following Tuesday, namely 24 March 2009.

[17]The offence could not have been committed until the expiration of a period of 28 days beginning with the day on which the notice was served, namely 24 March. It is not in dispute that 18 April 2009 is a date which falls within that period of 28 days. Accordingly, the information did not, on the facts of this case, disclose the commission of any offence at all and in particular the offence pursuant to section 172 as was alleged.

[18]As we have indicated, Mr Ray did not seek to dissuade us from the accuracy of the application of the facts in this case to the law as we have stated it to be. What he says, however, is that it was open to the magistrates nonetheless to proceed with the information, notwithstanding the fact that it did not disclose any offence at all. He relies in support of that proposition upon section 123 of the Magistrates' Courts Act 1980, which concerns defect in process and reads as follows:(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form or for any variance between it and the evidence adduced on behalf of the prosecution or complainant at the hearing of the information or complaint.

(2) If it appears to a magistrates' court that any variance between a summons or warrant and the evidence adduced on behalf of the prosecutor or complainant is such that the defendant has been misled by the variance, the court shall, on the application of the defendant, adjourn the hearing.

[19]Mr Ray has drawn our attention to certain authorities which have dealt with the effect of section 123 in the context of alleged deficiencies in the information as compared with the underlying facts. He has referred us to the case of Garfield v Maddocks [1974] 1 QBE at page 7. In that case the Lord Chief Justice Lord Widgery at page 12 was considering the provision, though at that time it was contained in identical form as section 100 of the Magistrates' Courts Act 1952. What he then went on to say was as follows:

"Those extremely wide words, which on their face seem to legalise almost any discrepancy between the evidence and the information, have in fact always been given a more restrictive meaning, and in modern times the section is construed in this way, that if the variance between the evidence and the information is slight and does no injustice to the defence, the information may be allowed to stand notwithstanding the variance which occurred. On the other hand, if the variance is so substantial that it is unjust to the defence to allow it to be adopted without a proper amendment of the information, then the practice is for the court to require the prosecution to amend in order to bring their information into line. Once they do that, of course, there is provision in section 100(2) whereby an adjournment can be ordered in the interests of the defence if the amendment requires him to seek an adjournment."

[20]In that particular case, however, the matter which had to be determined by the Divisional Court, was described in the following terms at E:

" ... this case really raises in quite a stark form the question whether when an appeal has been laid before what is now the Crown Court from a decision of justices, there remains a power to amend of a kind which the Crown Court purported to assert in this case."

His conclusion was that the Crown Court did not have any power to amend if the magistrates have not done so, and he sets out his conclusion to that effect at page 15 A to C.

[21]A similar conclusion was also reached in the subsequent decision of Regina v Swansea Crown Court, ex parte Stacey [1990] RTR 183, in which the Divisional Court held:

"That albeit justices before conviction had discretionary power to amend an information before them ... the Crown Court on appeal had no jurisdiction to amend the information ... and that, therefore, the judge's decision to allow the amendment has to be quashed ... "

[22]The question which arises for us, therefore, in a case where the point on the content of the information was never raised or addressed, either in the Magistrates' Court or in the Crown Court is, was this a variance which was slight and did no injustice to the defence or was so substantial that it would be unjust for the defendant to allow it to be adopted without a proper amendment of the information.

[23]In our judgment, as a matter of principle, a discrepancy of the nature which we see in this case, where the information on the basis of which the defendant before the magistrates had been brought to court does not disclose any offence at all, must be of sufficient substance that it requires amendment in order for the magistrates properly then to try the information. It would be an extremely odd set of circumstances if the magistrates could lawfully try a case and convict someone of an offence where the statement of the offence does not in fact, on the evidence, on any view, disclose the commission of the offence of which they convict the defendant.

[24]In any event, and in this case, the fact is that the defendant before the magistrates, Mr Foster, was not present in the Magistrates' Court and on the evidence the Crown Court found that the reason that he was not present was because he had not in fact ever received the summons requiring his attendance. Had the point been fully argued, we anticipate that Mr Ray would have sought to advance an argument that, nonetheless, there was deemed legal service, notwithstanding those factual findings by the Crown Court.

[25]For my part I have to say that that would have been a surprising conclusion and it seems to me that I would need considerable persuading that, in circumstances where, in fact, a defendant has not received the summons and has no inkling of its contents because it has not been delivered to the address, there nonetheless can, as a matter of law, be deemed to be legal service. However, this is not a matter which has been fully argued and, therefore, it does not call for determination by this court, but what it does do is to indicate, as a matter of substance and merit, that Mr Campbell Foster was denied the opportunity of appearing at the Magistrates' Court and, if he had so wished, to have drawn their attention to the discrepancy between the information and the underlying facts.

[26]In any event, the fact is that the magistrates did not amend the information. Given the substantial nature of the defect, as I have identified it, in order to proceed lawfully they would have to have done so. They, not having amended the information, there was, of course, no power in the Crown Court to amend the information even if the issue had been raised before them and, a fortiori, there cannot be any power in this court on an appeal by way of case stated to put the prosecution back on its feet by amending, or enabling them to amend, the information in order to disclose the commission of the offence which is charged.

[27]In those circumstances, but for reasons other than those identified in the case stated, I would allow this appeal.

LORD JUSTICE LAWS: So would I and for the reasons given by my Lord. In the circumstances and in the light of the terms of my Lord's judgment, to which I have agreed, I do not suppose we need to answers the questions as actually put by Judge Coltart, which simply allow the appeal, and it follows that the proceedings are at an end. Is that right?

[29]MR RAY: My Lord, I respectfully agree that if, as here, the questions become academic, there is no point in answering them.

LORD JUSTICE LAWS: Very well. Are there any consequential matters? Mr Foster?

[31]MR FOSTER: My Lord, if I might raise the issue of costs. My out-of-pocket disbursements alone to reach today are in excess of £1,000.

LORD JUSTICE LAWS: Really?

[33]MR FOSTER: Yes. The court fee, the transcript, the photocopying, the travel to Lewes, travel to here in January, travel to here today, that alone amounts to over £1,000. In those circumstances, I respectfully request an order that the costs herein below be assessed and paid from central funds.

LORD JUSTICE LAWS: This being a criminal matter we have a choice -- well, we have a choice anyway in one sense. If we are going to make an order for costs in your favour, we have a choice as to whether they should be out of central funds or against the respondent. It is public money in either event, but it comes out of different pockets. I do not suppose it matters very much to you, provided you get your costs, which pocket they come out of.

[35]MR RAY: It does not matter to me, my Lord. If you want me to run through what I would submit are the defaults by the prosecution in pursuance of the matter, I can do so.

LORD JUSTICE LAWS: Not unless Mr Ray persuades us that on the face of it you should not have your costs. I do not imagine he has anything to say about it, or perhaps you have.

[37]MR RAY: My Lord, my understanding would be that ordinarily expenses, which seem to be those which are being described by Mr Foster, I do not concede there that everything listed by him fall into that category.

LORD JUSTICE LAWS: No, that would be a matter he wants assessed.

[39]MR RAY: Where there are expenses ordinarily they would be ordered from central funds, as opposed to against the respondent in the appeal, unless the court felt that the respondent was somehow liable for those costs.

LORD JUSTICE LAWS: We think central funds. We will make order for your costs out of central funds, Mr Foster. I do not know whether we need to make an order for a detailed assessment, whether we order them out of central funds as opposed to inter partes, but if we do we make it.

[41]MR FOSTER: I am very grateful.