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
		21 February 2006

1. LORD JUSTICE RICHARDS: On 14 April 2005 the claimant, Mr Flegg, was convicted by the Justices of the Peace for the New Forest Local Justice Area of an offence under section 172(3) of the Road Traffic Act 1988. A motorcycle registered to him had been caught on a speed camera. He had received a notice under section 172(2) requiring him to give information about the driver, and the case against him was that he had failed to comply with that notice. He took issue with his conviction and asked the justices to state a case. But they refused to do so on the ground that the application was frivolous. By these judicial review proceedings, the claimant seeks an order requiring the justices to state a case.
2. Permission to apply was granted by the Divisional Court, but did not lead, as would often be expected, to the justices deciding to state a case. They have stuck to their guns and they are supported by the CPS, which appears as an interested party to resist the claimant's case.
3. Section 172 of the 1988 Act provides, so far as material:

"(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 sub-section (2) above shall be guilty of an offence.

(4) A person shall not be guilty of an offence by virtue of paragraph (a) of sub-section (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 sub-section (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 date 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 the period or that it has not been reasonably practicable for him to give it."

4. On 18 June 2004 the claimant was served with a notice of intended prosecution for the alleged offence of exceeding a 30mph speed limit at 15.58 hours on 10 June 2004 at the A337, Gosport Lane, Lyndhurst, Hampshire. The notice was served on behalf of the Chief Constable of the Hampshire Constabulary. It stated:

"You have been identified as being the owner, keeper, hirer or driver of the vehicle at the time of the alleged offence, or a person who has information that may lead to the identification of the driver. You are therefore required to provide the full name and address identifying the actual driver or give any information in your power which will lead to the driver's identification.

The allegation is supported by video &/or photograph evidence.

Under section 172 of the Road Traffic Act 1988 you are required to supply the information within 28 days of service of this notice. The penalty for failure to supply information is similar to that for the alleged offence -- a fine plus a driving licence endorsement.

Please reply by correctly completing the enclosed form and sending it to the central ticket office at the address given above."

5. The enclosed form had an initial section which was to be completed in all cases. It then had a "PART 1", which was to be completed if the person was the driver at the time of the alleged offence. There followed "PART 2", which was to be completed if the person was not the driver at the time of the alleged offence and was not a hire company. The text of Part 2 states:

"I was not the driver of the vehicle at the time of the alleged offence. The driver was ... "

And there follows a series of boxes giving name and address and other details of the driver.

6. The bottom right-hand side of Part 2 states:

"If unable to provide driver details please state reason overleaf."

The bottom of the form contains a warning that failure to provide information to identify the driver could result in prosecution.

7. The claimant returned the form with a covering letter dated 12 July 2004. On the form he had completed only the top section, the section to be completed "in all cases", giving his own name and personal details. The covering letter stated:

"I have not completed Part 1 or Part 2 of the enclosed form as, on the day of the alleged offence, more than one person used the vehicle.

I would be grateful if you could send me a copy of the video and/or photograph evidence. This might enable me to provide yourselves with the required information."

8. On 16 July the claimant was sent the photographic evidence requested. By letter of 23 July he was informed that the failure to identify the driver had made him liable for an offence under section 172, and he was advised to respond immediately by identifying the driver at the time of the incident. That produced a further letter from him dated 28 July in which he stated:

"With reference to the alleged offence, myself and a friend, who has access to, and use of, my motorcycle, have studied the supplied photograph of the alleged offence. Unfortunately neither of us can recall travelling in that area on the day in question or are able to distinguish if either of us might have been the rider of the motorcycle in question.

While I would concede that the motorcycle in question is of an outwardly similar model, make and colour to my motorcycle, there are no outwardly distinguishing features to indicate that it is my motorcycle."

It will be noted that at this point he was questioning whether the motorcycle shown in the photograph was indeed his, although that is a point not subsequently pursued.

9. By letter of 18 August he was further reminded of the consequences of failing to supply the information required by a section 172 notice. His response, in a letter dated 1 September 2004, was to say:

"Further to your letter dated 18/08/04, as a private citizen I do not keep records of who was riding my motorcycle, and my friend, Dr AJ Sepp has access to and the use of my motorcycle. As stated in my previous correspondence neither of us can recall who might have been using the motorcycle on the day or the area of the alleged offence."

10. A summons dated 10 January 2005 charged the claimant with having failed to give such information as to the identity of the rider as he was required to give by or on behalf of the Chief Officer of Police for Hampshire. At the hearing before the justices, the claimant himself gave evidence and was cross-examined. We have seen the magistrates' clerk's note of that evidence. The justices made certain findings of fact to which I will come in a moment.
11. In addition to the claimant's own evidence, he relied on a witness statement from Dr Sepp, which was read to the court since Dr Sepp was at that time living abroad. Dr Sepp's evidence was to the effect that he had used the claimant's motorcycle during the period in question, but could not remember the specific dates and could not remember if he had been in the area of the alleged offence. He was unable to identify the rider in the photograph. He and the claimant owned similar clothing and helmets which further prevented clear identification of the driver.
12. The question that the claimant asked the justices to state for the opinion of the High Court was in these terms (the references being to section 172 of the 1988 Act):

"Can a defendant who establishes the defence under sub-section (4) [Road Traffic Act 1988] be deprived of the benefit of that defence if he fails to provide the information requested under sub-section (2)(a) [Road Traffic Act 1988] within the 28-day period set out in sub-section (7)(a) [Road Traffic Act 1988]?"

13. The claimant's arguments have in fact moved on since that question was formulated. But I should indicate, first, why the justices refused to state a case on the basis, requested since the information provided by the justices is material also to the case as it has developed.
14. In their certificate of refusal, the justices state:

"The applicant contends that we failed to take proper or any account of the defence available under sub-section (4). He quotes the two findings of fact announced by the justices:

1. The defendant was a credible witness.

2. The defendant had failed to provide information requested by or on behalf of a chief officer of police within a period of 28 days.

We accepted the evidence of the applicant and found the following facts:

• The applicant asserted that there were two people who could have used the motorcycle on the day in question, himself and Dr Sepp and that he knew this within the 28 day deadline.

• He was aware of the 28-day deadline for providing information.

• He did not believe that he had been the rider of the motorcycle on that day.

• He asserted that he would not give Dr Sepp's name within the prescribed period as Dr Sepp did not believe that he had been the driver either.

• He accepted that he had not provided Dr Sepp's details within the prescribed period.

• He accepted that he would have fulfilled the requirements of the notice had he given the information about Dr Sepp but that he had not done so until after the expiry of the 28-day period.

We convicted, having found that, although Mr Flegg knew that Dr Sepp was the only other possible driver and knew Dr Sepp's details, he did not provide them within the 28-day period required by section 172.

It is therefore our opinion that there is no relevant question of law upon which to ask the opinion of the High Court in this case. It is settled law and is clearly stated in the Statute that, if the defendant shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was, he shall not be guilty of the offence.

If he provides the information outside the 28-day period, and satisfies the court on the balance of probabilities that he could not have provided it sooner, having shown reasonable diligence in ascertaining who the driver was, the court will not convict. The question posed does not arise since we convicted on the evidence of the applicant that he knew the identity of the driver within the 28-day period and failed to provide this information as required to do so."

15. The first submission that Mr Siddle has advanced before us on the claimant's behalf is that there was, on the facts, no failure to comply with a requirement under section 172(2) at all, so that one does not even get as far as needing to consider the defence under sub-section (4). This is a new point, not taken in the request to the justices to state a case, nor indeed clearly signalled in the judicial review claim form. But I think it right to deal with it all the same.
16. The submission, in short, is that the claimant was required to fill in the driver details in Parts 1 and 2 of the form only if he knew the identity of the actual driver: Part 1 if he was driver; Part 2 if someone else was the driver. But the claimant did not know whether he or Dr Sepp was the driver. It follows that he was not required to fill in either Part 1 or Part 2. The wording at the bottom right of Part 2 required him to state the reason if he was unable to provide the driver details. That is what he did in his covering letter, which explained that the reason for non-completion of Parts 1 and 2 was that more than one person used the vehicle on the day of the alleged offence. The form did not require him to give the information he had about who the possible drivers were. Accordingly, the failure to explain that only he and Dr Sepp could have been the driver, or to give further details concerning Dr Sepp, did not constitute a failure to comply with the requirements of the notice. The claimant did nothing wrong in filling in the form as he did.
17. Mr Siddle submits that the present case is factually indistinguishable from Jones v Director of Public Prosecutions [2004] RTR 20 at page 331. In that case, as appears from the headnote, the defendant was sent a form requiring him to provide information pursuant to section 172(2) as to the identity of the driver of a vehicle of which he was the registered keeper at the time it was being driven in excess of the speed limit. The defendant did not complete or sign the form, but wrote on it: "Please see covering letter enclosed", and returned it with a covering letter confirming that he owned the vehicle, but stating that it was one of a fleet of vehicles used by his medical practice, and that he was unable to say who the driver of the vehicle was on the occasion of the offence. He was charged with an offence under section 172(3) of failing to give the information required by the notice. In the Magistrates' Court, the deputy district judge, while admitting the defendant's letter in evidence, found that the defendant had failed to comply with the proper procedure, and that his reluctance to complete the form in all the circumstances severely damaged his credibility. He held that the defendant could not rely on the defence in section 172(4) that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. The defendant was accordingly convicted.
18. The Divisional Court allowed the defendant's appeal. It held that someone who answered in writing in the way the defendant had done would be acting, in substance, in accordance with the statutory requirement under section 172(2); that accordingly there was no respect in which the defendant could properly be criticised for the way he dealt with the matter by means of the letter which, apart from naming the driver, was in proper compliance with section 172(2); the deputy district judge's reason for holding that the defence under section 172(4) had not been made out relied to a substantial extent on his judgment as to the defendant's credibility based on the way in which the defendant had responded to the form; and that, as that adverse finding as to credibility was premised on an erroneous view that it was, in law, obligatory for the defendant to complete and sign the form himself, the conviction should be set aside.
19. What Mr Siddle says is that, in Jones, there happened to be a greater number of possible drivers since the defendant (the keeper of the vehicle) had a fleet of vehicles. But the claimant's approach to the form in this case, and his provision of a covering letter, was equally unobjectionable as that of the defendant in the case of Jones.
20. If Mr Siddle were correct in his submissions, it would, as Mr Forster submitted for the CPS, drive a coach and horses through this legislative provision. There will frequently be cases where the registered keeper of a vehicle does not know, in the sense of being certain, who the driver was but would be able to give highly material information capable of leading to the identification of the driver: for example, where he has lent his vehicle to someone else and was not an occupant of it at the time of the alleged offence. Yet on the claimant's case the registered keeper would be able to comply with a notice under section 172(2) simply by a general reply along the lines of that given by the claimant in the present case. That would seem to be plainly contrary to the legislative intention.
21. In my judgment, however, there are a number of reasons why Mr Siddle's submissions are wrong. First, if one focuses on the requirement in the notice to provide the full name and address identifying the actual driver -- a requirement carried over on any view into the form -- the fact is that the claimant did not provide the information required. He did not give the name of the driver or the details of the driver. It seems to me that he was thereby in breach of the requirement in the notice and therefore in breach of section 172(2)(a). That element in the offence charged was made out, and it follows that, contrary to Mr Siddle's submissions, the claimant needed to make good a defence under sub-section (4) if he was to avoid conviction.
22. I am fortified in that view by Jones v Director of Public Prosecutions on which Mr Siddle placed such reliance. At paragraph 14 in his judgment in that case, May LJ said that there was absolutely no respect in which Mr Jones could properly be criticised for the way in which he had dealt with the matter by means of a covering letter, and:

"So far as it went, that letter was a proper compliance with section 172(2) of the 1988 Act."

23. He went to in paragraph 15, however, as follows:

"I say 'so far as it went' because the form required him to state the name of the person who was driving the vehicle. He did not do so, and to that extent he had failed to comply with the statutory requirement. The question, and as it seems to me the only question before the district judge, therefore was whether he had sufficiently established the defence available to him under section 172(4), that is to say that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."

24. It seems to me that exactly the same approach should apply in the present case. The claimant did not state the name of the person who was driving the vehicle, and thereby failed to comply with the statutory requirement. The only question then was whether he had established the defence under sub-section (4).
25. Even if I were wrong about that, there is a second reason why, in this case, the claimant should be found to have failed to comply with the statutory requirement under sub-section (2) in the particular circumstances of the present case. The notice required the claimant to provide the driver's details "or give any information in your power which will lead to the driver's identification". That was either a requirement under sub-section (2)(b), which uses the language of giving information which will lead to the driver's identification, or was a further requirement imposed under sub-section (2)(a). Mr Siddle does not contend that it fell outside the power of the Chief Constable, even under sub-section (2)(a), to impose such a requirement.
26. The requirement in question was sufficiently carried over into the form by the wording in the bottom right corner of Part 2, namely the request to state the reason for an inability to provide driver details. The claimant had it in his power, in stating that reason, to provide information that would lead to the driver's identification, namely all the information about the fact that the motorcycle had been driven during the relevant period only by himself and by Dr Sepp, and that he did not believe that he was the driver at the time of the alleged offence. He failed to provide any of that information. He was thereby again in breach of the requirement lawfully imposed by the notice.
27. I would add that it was not simply a failure to provide information that it was in his power to provide. What he actually said in his covering letter was, in the light of the facts subsequently found by the justices, misleading and failed accurately to reflect the position as the claimant knew it to be. The wording at the bottom right of Part 2 requests the keeper to state the reason why he is unable to provide the driver details. It calls, in my judgment, for an accurate response and statement of reasons. The provision of an inaccurate and misleading response does not constitute compliance with the requirements of the notice.
28. Mr Forster has advanced yet another reason why the claimant's submissions on this point should fail. He contends that, on the findings made by the justices, it is clear that the claimant did know who the driver was so that the whole premise to his case is mistaken. The justices found him to be credible. They found in terms that he did not believe that he had been the driver on the day in question and that he knew that Dr Sepp was the only other possible driver. Moreover, it goes further than that, submits Mr Forster, because the only possible inference from the claimant's own evidence, which the justices accepted was credible, was that he was sure he was not the driver at the time of the offence. He gave evidence to the effect that the offence occurred within his normal working hours. There would have been a record if he had left the office. He would have had no reason to be on the road unless visiting Lymington, and he was sure he would not be doing this on the day in question. In my judgment, that is a strong argument, even though it does go beyond the justices' actual findings of fact as recorded in their certificate of refusal.
29. In any event, it is clear that the claimant did not believe that he was the driver and knew that the only other possibility was Dr Sepp. It seems to me to be a clear inference that he believed that the driver was Dr Sepp and that his state of mind in relation to the identity of the driver was as close to knowledge as anybody who has not been present at the place of the offence can come. The fact that Dr Sepp did not believe that he (Dr Sepp) had been the driver was neither here nor there.
30. For all those reasons, I would reject the primary way in which Mr Siddle now puts the claimant's case. That still leaves the question of the defence under sub-section (4), which at a late stage Mr Siddle made clear he was not abandoning, though it did not form a significant plank of his submissions as presented to us orally. The point is advanced on the basis that the claimant did not know who the driver was and was therefore able to meet at least the first limb of the defence under sub-section (4).
31. In the light of what I have said already about the nature and extent of the claimant's non-compliance with the requirements in the notice, and therefore his non-compliance with section 172(2), it seems to me that the defence under sub-section (4) does not begin to get off the ground. The claimant had information about the driver, or information that, at the very least, would lead to the identification of the driver that he could and should have provided within the 28-day period. It does not seem to me, on the facts of this case, he could hope to succeed with a defence under sub-section (4).
32. In my judgment, the justices were entitled to refuse to state a case on the basis on which they were requested to state such a case. The additional way in which the matter has now been put forward is equally unsustainable. For all those reasons, I would dismiss the claim for judicial review.
33. MR JUSTICE DAVID CLARKE: I agree.
34. LORD JUSTICE RICHARDS: Is there any further application?
35. MR FORSTER: My Lord, I would apply for costs. The costs of the interested party are £4,800.
36. LORD JUSTICE RICHARDS: Have you produced a schedule?
37. MR FORSTER: I am afraid I have not. But I can give you a break-down orally if that would be satisfactory. Otherwise, I can provide one in due course.
38. LORD JUSTICE RICHARDS: What do you say about the lack of any --
39. MR SIDDLE: There has been a failure to comply with the relevant provisions of the CPR. There should have been a schedule. It should have been provided at least 24 hours in advance of today's hearing. It should break-down the costs claimed in the way set out in Part 44.13, and that has not been done. Moreover, the interested party is of course the respondent, and whilst I accept that maybe it was in the public interest for the CPS to have been represented today, it does not automatically follow -- it is for your Lordship's discretion -- that costs should be awarded against the claimant if he fails to succeed. The claimant has of course incurred expenses of his own in pursuing this claim, and certainly at the permission stage, of course, it succeeded in establishing an arguable case. So for those reasons I would invite your Lordships to dismiss this application for costs today summarily.
40. MR FORSTER: My Lord, may I make a very brief observation?
41. LORD JUSTICE RICHARDS: I do not think you need to do so because we are going to order that the claimant pays the costs of the CPS, to be subject to detailed assessment if not agreed.
42. MR FORSTER: Thank you very much.