QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| (1) MICHAEL MAWDESLEY
(2) DWIGHT YORKE
|- and -
|(1) Chief Constable of Cheshire Constabulary
(instructed by (1) Backhouse Jones and (2) Freeman & Co) for the Appellant
Mr Martin Walsh (instructed by (1) CPS Warrington and (2) CPS Manchester)
for the Respondents
Crown Copyright ©
Mr Justice Owen :
On 7 April 2002 a police officer was operating a speed camera from a bridge over the M56 when the speed of a motor car, registration number H9 JPR, was checked by approved equipment and found to be travelling in excess of the speed limit.
"The current owner of the vehicle, or any other person who is able to do so, is required by law to give any information which will lead to the identification of the driver.
You have been named as the driver/hirer of the above vehicle at the time of the alleged offence. If you were the driver at the time of the alleged offence, you are required to provide your full name, address and date of birth."
The Notice of Intended Prosecution was accompanied in the usual manner by a form for completion by the intended recipient requiring him to provide information under section 172 of the Road Traffic Act 1988. The form was in three parts. The first was headed -
"IF YOU WERE THE DRIVER AT THE TIME OF THE ALLEGED OFFENCE, COMPLETE THIS SECTION ONLY."
The printed form then read -
"I was the driver of the vehicle registered number H9 JPR at the time of the alleged offence."
The form then specified the information required, in each case leaving a box or space for completion by the recipient. He or she was required to provide their driver number, ie the number to be found on their driving licence, their full name and address, date of birth and occupation. At the foot of this part of the form the words "signature" and "date" were printed with space for the insertion of each. The remaining parts of the form enabled the recipient to make the appropriate response if he or she was neither the driver nor the owner at the time of the alleged offence.
"3. It was contended by the appellant that the case was not proved beyond a reasonable doubt on the basis that the Respondent had not revealed the identity of the driver of the said vehicle due to the fact that the said Response Form had not been signed.
The Appellant accepted that the requirement of Section 12(1)(a) Road Traffic Offenders Act 1988 was satisfied in so far as the said Section 172 notice was served upon the Appellant by post.
The Appellant did not accept that the provision of Section 12(1)(b) Road Traffic Offenders Act was satisfied. The Appellant maintained that the Response Form had not been signed and whilst it contained details relating to the Appellant, the document had not been signed, that there was clearly a space dedicated for the purposes of such a signature being inserted across from the word "sign" and that in the Appellant's submission it would be absurd to suggest that in the absence of such a signature made in or about the dedicated space (or anywhere else for that matter) on the said Response Form it could be regarded as signed.
The implication being of course that if the said Response Form was not signed it could not be accepted in evidence as per the provision of Section 12 Road Traffic Offenders Act 1988 and there being no other evidence to establish the Appellant's identification, the Respondent's case would have to fail.
4. (After setting out Section 12(1) of the Road Traffic Offenders Act 1988) the Respondent contended that the Response Form was completed in that it included details of a driver license number, a full name and address, a date of birth and details of an occupation and most importantly the name of Michael Mawdesley had been written (in block capitals) and the abbreviations of Mrs, Ms and Miss had been deleted. These details according to the Respondent constituted a signature and as such the Response Form could be regarded as signed by the Appellant.
5. We were of the opinion that the Response Form had been signed by the Appellant and had no reason to believe otherwise. The Appellant had accepted that the Notice of Intended Prosecution had been served upon him in the post and that a reply had been received.
The Appellant was not present at court to give evidence to refute that he was the person who had signed the Section 172 Notice and returned it to the police. The Appellant proceeded by way of submission through his legal representative that the prosecution had failed to discharge the burden of proving the case beyond all reasonable doubt.
We are satisfied in the absence of such evidence that the Appellant had been the person who had completed the form "a manual signature written with his own hand" and as such the provisions of Section 12(1)(b) Road Traffic Offenders Act 1988 had been complied with and we were entitled to use our discretion to admit the statement as evidence that the Appellant was the driver of the vehicle on this occasion."
"As a matter of law were the Justices correct in finding that the Section 172 notice, attached to this application, was admissible pursuant to Section 12(1)(b) Road Traffic Offenders Act 1988."
Dwight Yorke was the owner and registered keeper of a motor vehicle which on 17 May 2001 was recorded by an approved laser device as travelling in excess of a 40 miles per hour speed limit in Princess Road, Withington.
"We find the case proved. The only issue is identity of that we had to be sure or the Defendant would have to be found not guilty. We considered that the fact of the Defendant being registered keeper, the notices being sent to his address, and to him as registered keeper, the reply document to say that he was driver, together amounted to a case to answer that Dwight Yorke was the driver. That was our earlier decision. So we heard the defence case.
Now we had to consider the whole of the evidence. The Defendant submits again that document 2 is not admissible here we now have evidence from the man who says he wrote the documents including evidence on which we can make a decision as to whether it was made with authority. We do not rule the evidence now as inadmissible.
I reminded myself and the Magistrates of the law, obviously, that the prosecution must prove their case and make us sure of guilt or else be found not guilty. Also, the Defendant himself chose not to be present and not to give evidence and be represented. The defendant knew and knows that if he chooses not to give evidence, the Tribunal of Fact may draw such inferences as appear proper from his failure to do so."
The court went on to find that "We are sure that Dwight Yorke was driving the car on the occasion in question."
"Can a returned partially completed notice under s 172(2) of the Road Traffic Act 1988 be considered by the court as part of the evidence of a speeding driver's identity though unsigned and not complying with 12(b) of the Road Traffic Offenders Act 1988."
Section 172 of the Road Traffic Act 1988 (RTA) imposes a duty to give information as to the identity of the driver of a motor vehicle. The duty arises in the circumstances specified in sub-sections 1 and 2. Sub-section 1 sets out the offences to which the section applies, a list that includes the offences with which both Appellants were charged. Section 172(2) provides that -
"(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.
"(1) Where on the summary trial in England and Wales of an information for an offence to which this sub-section applies-
(a) it is proved to the satisfaction of the court, on oath or in manner prescribed by rules made under Section 114 of the Magistrates Courts Act 1980, that a requirement under Section 172 (2) of the Road Traffic Act 1988 to give information as to the identity of the driver of a particular vehicle on the particular occasion to which the information relates has been served on the accused by post, and
(b) A statement in writing is produced to the court purporting to be signed by the accused that the accused was the driver of that vehicle on that occasion,
The court may accept that statement as evidence that the accused was the driver of that vehicle on that occasion."
The narrow issue in Mawdesley's case is whether the court erred in finding that the section 172 form was a statement in writing purporting to be signed by the Appellant within the meaning of section 12(1)(b) of the RTOA. If the magistrates court were in error, then it is submitted that, as in the case of Yorke, there was no basis on which the form could be admitted as evidence of the identity of the driver on the relevant occasion, and that in the absence of any other evidence as to the identity of the driver, the prosecution had failed to establish a case to answer.
(1) whether a section 172 form in which the name of the driver is inserted by hand, but in which the space for a signature is left blank, is "a statement in writing purporting to be signed by the accused…" to which section 12 of the RTOA applies,
(2) whether an unsigned section 172 form identifying the Defendant as the driver on the relevant occasion is admissible evidence of that fact,
(3) if the answer to (2) above is yes, whether, together with evidence as to the commission of the offence, such evidence is capable of giving rise to a case to answer.
As to the first issue it is submitted on behalf of the Respondent that in Mawdesley the Warrington Justices were fully justified in concluding that the insertion of the name 'Michael Mawdesley' in hand written block capitals amounted to "a manual signature written with his own hand", and therefore complied with the requirements of section 12(1)(b). In support of that submission Mr Walsh sought to rely upon the following proposition set out in Phipson on Evidence 15th Edition 40-04 –
"As a general rule, even where signature is required by statute and for solemn documents a manual signing is not essential; any form in which a person affixes his name, with intent that it shall be treated as his signature, is sufficient."
The critical feature of that general proposition is that in whatever form a person affixes his name, he does so with the intent that it shall be treated as his signature.
The second issue concerns the admissibility in evidence of an unsigned section 172 form. Section 76(1) of the Police and Criminal Evidence Act 1984 (PACE) provides that –
"In any proceedings, a confession made by an accused may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and it not excluded in pursuance of this section."
Section 82(1) defines a confession as "…any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words of otherwise".
"27. Where a statement contained in a document is admissible in evidence in criminal proceedings it may be proved –
(a) by production of document; or
(b) whether or not that document is still in existence by the production of a copy of that document, or of the material part of it,
authenticated in such manner as the court may approve; and it is immaterial for the purposes of this subsection how many removes there are between a copy and the original…"
"A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions which provide the ground for suspicion) are put to him regarding his involvement or suspected involvement in that offence if his answers or his silence(i.e. failure or refusal to answer a question or answer satisfactorily) may be given in evidence to a court in a prosecution. He therefore need not be cautioned if questions are put for other purposes, for example, solely to establish his identity or his ownership of any vehicle or to obtain information in accordance with any relevant statutory requirements (see paragraph 10.5C) or in furtherance of the proper and effective conduct of research, (for example to determine the need to search in the exercise of powers of stop and search or to seek co-operation when carrying out a search) or to seek verification of a written record in accordance with paragraph 11.13."
"All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime which does not apply to members of the public who do neither. Section 172 forms part of that regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the State but the possession and use of cars … are recognised to have the potential to cause grave injury. It is true that section 172 (2) (b) permits a question to be asked of "any other person" who, if not the owner or driver, might not be said to have impliedly accepted the regulatory regime, but someone who is not the owner or driver would not incriminate himself whatever answer he gave. If, viewing the situation in the round, one asks whether Section 172 represents a disproportionate legislative repine to the problem of maintaining road safety, whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual, whether (in short) the leading of this evidence would infringe a basic human right of the defendant, I would feel bound to give negative answers. If the present argument is a good one it has been available to British citizens since 1966, but no one in this country has to my knowledge, criticized the legislation as unfair at any time up to now."
As to the third issue, in each case the evidence as to the commission of the offence was unchallenged. The sole issue was the identity of the driver. The question is therefore whether an unsigned section 172 form, admissible in evidence as a confession, was capable of giving rise to a case to answer. That question must be answered in the affirmative given my conclusion that it was open to the court in each case to infer from the evidence that the entries on the form were made by the Appellant (see paragraph 32 above).
The justices resolved the issue of whether the prosecution had established a prima facie case on the erroneous basis that the section 172 form was "a statement in writing…purporting to be signed by the accused" within the meaning of section 12 of the RTOA 1988. In those circumstances the conviction must be set aside. The question then arises as to whether the case should be remitted to the Justices for rehearing. Mr Laprell submitted that as the prosecution had presented the case on an erroneous basis, it would be unfair to the Appellant for the case to be remitted. I do not agree. The conviction will be set aside and the case remitted to the Warrington Justices for rehearing.
As indicated in paragraph 46 above Mr Yorke's conviction must be set aside. As there was no other evidence available to the prosecution upon which to prove the identity of the driver, it is not appropriate to remit the case to the Crown Court for a rehearing.
MR JUSTICE OWEN: There will be judgment in the terms of the judgment handed down. The effect of the judgment is that in the case of Michael Mawdesley, the conviction will be set aside and the case remitted to the Warrington Justices for rehearing. In the case of Dwight York, the conviction will be set aside.
MR NESBITT: My Lord, I appear on behalf of Mr Mawdesley. I think in relation to the issue of costs, they are unopposed. We invite your Lordship to make an order that there be a defendant's costs order out of central funds, to be taxed if not agreed in the usual way.
MR JUSTICE OWEN: Miss Dennison, that is agreed is it?
MISS DENNISON: My Lord, I appear on behalf of Mr York today. On behalf of Mr York there is an application for an order for costs from central funds for all hearings to date, including those in the magistrates and the Crown Court to be agreed, and if not, to be taxed.
MR JUSTICE OWEN: Yes, Miss Field?
MISS FIELD: That is unopposed, my Lord.
MR JUSTICE OWEN: Very well, Mr Nesbitt. You may have your order for Mr Mawdesley's costs out of central funds, to be taxed if not agreed. Miss Dennison, you may have your costs from central funds for all hearings to date, to be taxed if not agreed.
MISS DENNISON: I am grateful, my Lord.
MR NESBITT: There is one other matter arising. I do not know whether the document has reached you my Lord, but there is a set of questions drafted by Mr Laprell, who my Lord will recall appeared before your Lordship in the action of argument on the appeal. They are questions which we would invite your Lordship to certify as questions of general public importance.
MR JUSTICE OWEN: They have not reached me, Mr Nesbitt.
MR NESBITT: I am sorry, my Lord. (Handed)
The questions related to the approach that my Lord adopted. I think in my Lord's judgment you acknowledge on my Lord's own initiative the approach to the question of the admissibility of the section 172 form. In particular, whether it is appropriate for a Tribunal of fact to conclude to the appropriate criminal standard without more evidence, that a form of that kind unsigned, as it was in these cases, and whether the Tribunal in fact could determine the appropriate criminal standard if that form was filled out by the defendant. That is the first issue which is raised.
MR JUSTICE OWEN: Yes.
MR NESBITT: The second one is the collateral issue upon whether, in those circumstances, the court should treat that form as falling within the exemption if it falls within the Code of Practice under the Police and Criminal Evidence Act arising under C101.
The third point relates to Brown v Stott and whether the this represents a disproportionate legislative derogation from the privilege against self-incrimination, which my Lord will remember was argued before you.
The final point is whether it is appropriate in the exercise of the discretion of the Administrative Court to remit a case to the magistrates court in circumstances in which, had the case been decided in the way my Lord has decided, it would not be possible for the prosecution to have a second bite of the cherry. Those are the issues.
My Lord has indicated and recognised in the course of my Lord's judgment at paragraph 22 that the issues which these appeals arise to are issues of wide importance given the prevalence of --
MR JUSTICE OWEN: I will see what Miss Field has to say.
MR NESBITT: My Lord, yes.
MISS FIELD: My Lord, I have no instructions on this point. Could I ask for 14 days for the Crown to respond? I sympathize with your predicament, Miss Dennison.
Mr Nesbitt, you may have your leave in relation to the first of the three grounds, but if you wish to pursue the fourth, you will have to pursue it in the House of Lords. Thank you all very much.