England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		21st October 2001

1. LORD JUSTICE KEENE: I shall ask Ouseley J to give the first judgment.
2. MR JUSTICE OUSELEY: This is an appeal by the prosecution by way of case stated from the decisions of District Judge Babbinton-Brown on 12th April 2001 to dismiss in each of the respondents' cases summonses which alleged offences contrary to section 172(3) of the Road Traffic Act 1988. The informations each concerned the provisions in section 172 that a person who has been required to provide any information which it is in his power to give, and which may lead to the identification of a driver, commits an offence if that requirement is not complied with.
3. Section 172(2) provides:

"When 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. The particular provision with which these cases are concerned is subsection (2)(b) and not subsection (2)(a). It is important in that context to note that there is a specific defence provided in section 172(4), but it is applicable only to subsection (2)(a). It provides:

"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."

5. I should refer also to section 172(7), which provides:

"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."

6. The offences to which section 172 applies are the more serious non-regulatory road traffic offences. The alleged offences underlying the requirement that the respondents in this case provide information were speeding offences in three cases and passing through a red light in another.
7. The respondents did not appear before the magistrates and they have not appeared as respondents to this appeal. The district judge, however, dismissed the summonses, and in her helpful case stated for this Court, set out the questions for the Court as follows:

"(1) whether or not the appellant must prove with admissible evidence a connection between the person required to give the information (the respondent) and the vehicle in question to give rise to the respondent's 'power to give' information which may lead to the identification of the driver and

(2) whether in the light of Article 6 of the European Convention on Human Rights a person summoned under Section 172(2)(b) can have a fair trial where there is no evidence presented to establish a link between the vehicle in question and the respondent."

8. The district judge had held that it needed to be proved by the prosecution that the respondent/defendant had power to give information which might lead to the identification of the driver and had not provided it. It was said that the alternative conclusion would lead to a breach of Article 6 of the European Convention.
9. So far as the facts are concerned, as I have said, the underlying alleged offences in relation to which the prosecution desired to obtain information as to the driver of the vehicle were in three cases speeding offences and in one case passing through a red light. Inquiries were made of the registered keeper of the vehicle in each instance, which led the police to believe that the defendants were the drivers of the four vehicles in question. In each case the defendant was the recipient of a notice which was not limited to the keeper of the vehicle. The notice was a notice of intended prosecution. It said:

"In accordance with Section 1 of the Road Traffic Offenders Act 1988, notice is hereby given that proceedings are contemplated against the driver of motor vehicle [and in the case of one of them] W594OLA - MERCEDES C200 ELEGANCE AUTO for an alleged offence of EXCESS SPEED (30 MPH RESTRICTED ROAD) on 28/06/2000 at 18:50 hours at New Kent Rd East of Searles Rd W/B (4464)."

10. Of course, I interpose that the other notices would have been in different form as to particulars but in the same form as to substance. It then said:

"This allegation can be supported by photographic evidence.

In accordance with section 172 of the Road Traffic Act 1988, I hereby require you to furnish within 28 days of the date of this form the name and address of the driver on the date and at the time specified above or to provide any other information which may lead to identification of the driver.

Failure to respond to this form in writing will render you liable to prosecution."

11. In no instance was any information provided. The forms were simply not returned. It was upon that basis that informations were laid and summonses were issued alleging that there had been an offence in these terms, that:

"...having been required by or on behalf of the Chief Officer of Police for METROPOLIS failed to give information which it was in your power to give and which might lead to the identification of the driver of a vehicle [and then the vehicle was identified] who was alleged to have been guilty of an offence under [one of the relevant provisions of the Road Traffic Act]."

12. There was no specific evidence provided to the district judge as to a connection between the person required to provide the information and the vehicle in question, although Mr Perry, in his skeleton argument, identifies the route by which a connection in fact was said to exist. The district judge, in her case stated, set out the appellant's contentions as follows:

"It was contended by the appellant that a mere requirement (not based upon, or supported by, evidence of any nexus between the person so required and the vehicle in question) can give rise to a case to answer in prosecutions brought under Section 172(b). Once sufficient particulars of the vehicle in question, day, date, time and location in which it was photographed are furnished, the recipient has the power and thereby the obligation to respond."

13. The district judge's view in relation to that contention was:

"8. ...that in order to demonstrate that information is in the power of the person to whom such a notice is sent in accordance with the wording of the Act, the appellant must prove that such information is or may be within that person's power to impart. So far as s.17(2)(a) is concerned a VQ5 is produced as part of the appellant's case. This is the form from the DVLA giving details of the registered keeper both at the time of the issue of the form and at the time of the offence giving rise to the request for information.

9. So far as s.172(b) is concerned the appellant contends that the Crown are only required to produce the form sent requesting the information."

14. It was quite clear that one of the matters troubling the district judge was that the form in question was not clear and that often the forms were returned not providing information as required, but simply saying that the recipient was not the driver at the time. The human rights point simply followed from the conclusion to which the district judge had come, that it was not fair for somebody to be required to give information without there being any evidence establishing that that person had the ability to provide such information.
15. Mr Perry, on behalf of the appellant DPP, submits that the district judge has erred in her approach to the construction of the statute. He submits that her approach would deprive the statute of its effect in relation to somebody who simply fails to return the form or returns it containing nothing at all by way of information; that would frustrate the ability of the police to pursue inquiries in relation to the more serious road traffic offences. It would frustrate the purpose of the Act if the Crown had to prove by positive evidence that the recipient was able person to give specific information. Mr Perry points out that the Act does not require the Crown to show that they had reasonable grounds upon which to make the request.
16. It is my judgment, first of all, that the statutory provisions have to be seen as a very wide power. The phraseology in question refers to "any other person", that is to say any person other than the keeper of the vehicle. It also refers to that person being required to give "any" information which it is in his power to give and may lead to the identification of the driver. The nature and purpose of those provisions were considered in Brown v Scott (Procurator Fiscal, Dunfermline) and another [2001] 2 WLR 817, a decision of the Judicial Committee, which has been followed and referred to in subsequent cases in England and Wales. For these purposes, it is necessary only to refer to a short passage from the opinion of Lord Bingham, in which he states as follows (page 823):

"It is evident that the power of the police to require information to be given as to the identity of the driver of a vehicle only arises where the driver is alleged to be guilty of an offence to which the section applies. Those offences include the most serious of driving offences, such as manslaughter or culpable homicide, causing death by dangerous driving, dangerous and careless driving, causing death by careless driving when under the influence of drugs or drink, and driving a vehicle after consuming alcohol above the prescribed limit. They also include the offence, in Scotland, of taking and driving away a vehicle without consent or lawful authority. The offences excluded are of a less serious and more regulatory nature... The requirement to supply information under subsection (2) may be made of 'the person keeping the vehicle' or 'any other person', irrespective of whether either of them is suspected of being the driver alleged to have committed the relevant offence."

17. I emphasise that last part.
18. Secondly, in these cases the requirement to provide information was met with the simple non-return of the form. It would not have made any difference to the judgment which I have reached however if, in fact, the form had been returned blank.
19. Third, the power to provide information is not something which can be regarded as other than an ingredient of the offence. If the phrase "information which it is in his power to give" does not require some proof on the part of the prosecution, those words might as well not be in the statute. They are there for a purpose. But that purpose is satisfied in the case of a person who produces no return at all or produces a blank one in this way: everyone has the power without further or specific proof to provide the minimal information "I do not know who the driver was; I know nothing of this vehicle". That is information which satisfies the statutory requirement. It is information which it is in that person's power to give, and which may lead to the identification of the driver. That may happen in a number of ways. It may lead to the identification of the driver by elimination; it may lead to the identification of the driver through the process of showing that there has been an error through a random selection; it may mean that the police refocus their inquiries and retrace their steps over the information which has been given. In that way, an answer which says "I know nothing of the car and I have no connection with it" is both information which it is within the power of any person to give as a minimum and information which may lead to the identification of the driver.
20. If the answer comes back, pursuant to the requirement, in the way which I have suggested might be regarded as the minimum information, it would then be incumbent on the prosecution, if they wished to make out an offence under section 172(3), to demonstrate that the defendant had the power to give more information than had been given; or it would be incumbent on the prosecution to prove that that asserted absence of knowledge was untrue. In that way, again, the provisions of section 172(2)(b) are given effect. It is an ingredient of the offence that there be information which it is in the power of the defendant to give, and it would be incumbent on the prosecution to prove it. But they do so in a case where the form is returned blank or returned not at all by simply pointing to the fact that every person has the power to give that minimum of information to which I have referred.
21. I should just add that it is important in construing this provision to recognise that the specific defence in section 172(4) does not apply to "any other person" for the purposes of section 172(2)(b). There is a reason for that. It is because "any other person" does indeed have the power to provide the minimum information to which I have referred. Accordingly, there is no need for that specific defence to be provided as a general defence for all those who are the recipients of a notice for the purposes of section 172(2)(b). The keeper however is required under section 172(2)(a) to provide information which the police may specify; accordingly, a defence is necessary to cover his inability to provide it. But in section 172(2)(b) no such defence is provided because every other person is able to provide a minimum of information, even if negative in form. That is the reason, in my judgment, for the distinction in terms of defence between the two provisions.
22. It would not be right to see section 172(7)(b) as providing the answer here. Section 172(7)(b) deals with the practicability of providing the information, either by reference to time or other circumstances. It is a provision which applies both to section 172(2)(a) and to 172(2)(b). In those circumstances, it cannot be regarded as providing an equivalent defence for "any other person" to that provided to the keeper by section 172(4). I say that because there has been suggestion before the district judge, and in the skeleton before us, that that was the route whereby somebody who had no information might be protected.
23. But it is my judgment that the position of the defendant who receives a notice and fails to return it is that he commits an offence, and it is not necessary for the prosecution to show, by any further positive evidence, any connection between the defendant and the vehicle or that there were reasonable grounds for supposing that a connection existed. Accordingly, in the light of the judgment which I have reached, the human rights point falls away, and I would answer the first question that is posed in the case stated in the negative. On that basis, I would allow the appeal and send the matter back with a direction to convict.
24. LORD JUSTICE KEENE: I agree. I would only add that section 172(2)(b) is formulated in plain terms and imposes no precondition of the kind stipulated by the district judge. The words, as was said by the Divisional Court in Hunter v Mann [1973] RTR 338, are "clear and unequivocal" and are very wide. I can see no justification for introducing such a requirement as the district judge favoured.
25. I therefore would allow the appeal and answer the questions in the way which my Lord has indicated. I agree also with the order which he has indicated.
26. Thank you very much indeed, Mr Perry.
27. MR PERRY: Thank you very much, my Lord. Thank you.