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
		6th March 2007

1. LADY JUSTICE SMITH: This is an appeal by way of case stated against the decision of the Chelmsford Crown Court (HHJ Gareth Davies and two lay justices), who dismissed the appellant's appeal against his conviction by the Essex Magistrates' Court for an offence contrary to section 172(3) of the Road Traffic Act 1988 (as amended). The charge against him was that he had failed to give information as to the identity of the driver of a motorcar, of which he was the registered keeper, when required to do so by a chief officer of police.
2. The facts as found by the crown court and as set out in the case stated, are as follows:

"7(a) At all material times the Appellant was the registered keeper of a Rover car, registration number M194 WAR.

(b) On the 23rd day of June 2004 at about 16.30 on the A133 at Clacton the vehicle was driven carelessly.

(c) By letter dated the 23rd June 2004 written on behalf of the Chief Constable the Appellant was required to identify the driver of the vehicle at that time and place.

(d) The Appellant replied by letter dated the 5th day of July 2004 stating: 'On the day and time in question I was in Central France on holiday and I simply do not know who was driving the car, at that time.' With that letter he enclosed evidence of travel arrangements which satisfied us that he had arranged to travel to France departing on the 13th June and returning on the 25th June.

(e) The number of possible drivers of the car at the relevant time was limited and under the delegated control of the Appellant's son."

3. The findings of fact stop at that point. At paragraph 4 of the case stated the court recorded that the appellant had claimed the protection of section 172(4) of the Act by:

"attempting to show that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."

4. The abrupt cessation of the findings of fact is strange in the light of the statutory defence relied upon, which required the appellant to prove the relevant facts on the balance of probabilities. There is no indication in the case stated as to what findings the court made in respect of the statutory defence, save at paragraph 8 where it is said:

"It was submitted on behalf of the Appellant that we could be satisfied that he had done all that he could do to ascertain the identity of the driver."

Then, at paragraph 9:

"Having listened carefully to the evidence of the Appellant we found that he was not a credible witness and that we were far from satisfied on the balance of probabilities that he could not with reasonable diligence have ascertained who the driver of the vehicle was and the appeal was therefore dismissed."

5. Thus, we understand from the case stated that the court did not believe the appellant's evidence, but we have no idea what it was that the appellant had said which had been disbelieved.
6. The crown court then posed the following question for this court:

"Was it unreasonable in the Wednesbury sense to have held on the facts as found and set out above that the Appellant had not used all due diligence to try to ascertain the driver of the said vehicle on the A.133 on the 23rd June 2004?"

7. It seems to me that it was unreasonable in that we do not know what facts were found in relation to that defence. We only know what the facts, as found, were up to the point where it is said that "the number of possible drivers of the car, at the relevant time, was limited and under the delegated control of the appellant's son". Thus, it seems to me that the question must be answered in the affirmative, because there was no evidence, as recorded, upon which the conclusion could have been reached.

However, there is a little more to this case than that, as has been submitted to us by Mr Hodivala, for the respondent, who seeks to uphold the appellant's conviction. He has reminded us that when the application to state a case was first made it was on the basis that the reasons given by the court for dismissing the appeal were inadequate, that in fact no reasons at all had been given. Then, later, a further question was raised: whether or not the decision had been Wednesbury unreasonable. There was a hearing before another division of this court, late last year, when there was discussion as to whether or not the matter should proceed by way of judicial review, or by way of case stated. Latham LJ said that there was but one point in the case and that was what he described as "the Pullum point". That is a reference to a case heard in this court in 2000, which was concerned with the adequacy of reasons. Latham LJ indicated that this case could proceed either by way of judicial review or case stated. It appears that what he had in mind was that the Wednesbury point could be taken on case stated and/or the inadequacy of reasons point could be taken by way of judicial review.

In Pullum v Crown Prosecution Service (unreported DC 17 April 2000), the Divisional Court (Lord Bingham of Cornhill CJ and Kay J) considered the need for a crown court on appeal from justices to give reasons for its decision. Lord Bingham referred to a number of authorities in which the requirement for reasons had been considered and he derived the following principles. On an appeal from justices, there is no need for the court to give full reasons such as are to be expected in a judgment in the county court. However, the minimum which the appellant is entitled to expect is a clear statement as to what evidence the court has accepted.

8. In Pullum, the crown court had heard an appeal in relation to a charge of assault. At the end of the case, the court had announced that the appeal was dismissed and it had found that there had been an assault. Lord Bingham observed that this statement did not provide any reason at all for the decision. In that case, the facts had been very simple. The complainant had alleged an assault and the appellant had denied it. It must have been fairly obvious that, in convicting the appellant, the court had accepted the complainant's evidence and rejected that of the appellant. Even so, Lord Bingham held that the absence of reasons fell short of the minimum required.
9. In fact, in Pullum the shortcomings of the oral judgment were made good in the case stated. There the court explained that the two parties to the altercation had given differing accounts of what had happened. The court had accepted the evidence of the complainant. Moreover it explained that it had ruled out self-defence and accident and said that provocation was immaterial. However, the fact that the earlier defects were made good in the case stated, that did not avail the Crown in seeking to uphold the decision. There was an error of law and the appeal was allowed.

Mr Hodivala invited us to examine the reasons given by the crown court when the instant appeal was dismissed. The judge said:

"In this case we find that the requirement was properly made for the identity of the driver following an alleged offence under Section 3 of the Road Traffic Act. In answer to the requirement the appellant indicated by letter lack of knowledge of the identity of the driver. We have to consider whether he had shown on the balance of probabilities that he did not know the identity and could not with reasonable diligence have established who the driver was.

We have considered the evidence and we find that the appellant has failed to satisfy us on the balance of probabilities that he could not with reasonable diligence have established who the driver was so on that basis the appeal is dismissed."

10. Although Mr Hodivala submitted to the contrary, it seems to me that the complaint made in the original application for a case to be stated, that no reasons were given for the decision, is made out. All that the judge said was that the appellant had failed to make out the statutory defence. We do not know how the appellant put his defence, what he had said or why it had been rejected. Indeed, the present case is a rather stronger case for the appellant than was Pullum. At least in that case everyone must have known that the two parties had given opposing accounts of what had happened. In convicting the appellant it was to be presumed that the court had disbelieved his version of events.

In the present case, matters were not so straightforward. We now know, from reading a transcript of a discussion between the judge and Mr Ley, who appeared for the appellant below, as he has done today, what the appellant had said in evidence. He had said that, while he was on holiday in France, the Rover had been left in the custody of his son who had one set of keys; another set had been left with his father-in-law. The car was insured for anyone to drive with the consent of his son. On his return from France, when he received the notice from the police, he had made enquiries of various people who were potential drivers. He said that he had shown each of them the statutory notice and had asked them whether they had driven the car on the day in question. Each had said that he had not. The discussion between the judge and counsel, which took place after the close of evidence, focused on the issue of whether what the appellant claimed to have done was capable of amounting to reasonable diligence. The judge appeared to be suggesting that it could not, and that the appellant ought to have done more. It seems to me that, when the judge announced the result of the appeal, the appellant cannot have known why he had failed to make out the statutory defence. It might have been because the court had rejected his evidence that he had spoken to the potential drivers at all, or it might have been because it thought that what he had done did not amount to reasonable diligence. Another possibility is that the court might have thought that, although the appellant had spoken to the potential drivers he had not done so in a bone fide attempt to discover who had driven the car on that day.

11. Even in the case stated it is not clear why the appeal was dismissed. It is said that the court did not find the appellant a credible witness, but it is not clear whether the court rejected his evidence that he had spoken to the potential drivers or whether it was not satisfied that when he did so he was acting in good faith.
12. It seems to me that the oral judgment fails to explain in any satisfactory way why the statutory defence was rejected. That amounted to an error of law. That being so, and in the light of my earlier holding that the crown court's decision appeared to be Wednesbury unreasonable in that there were no recorded facts on which the decision was based, I would hold that the appeal must be allowed.

We were invited to consider whether or not the matter should be remitted to the crown court for a rehearing. In my judgment it should not. It is now almost three years since this alleged offence was said to have taken place in the summer of 2004. In my judgment, it would not be in the public interest to prolong this litigation any further.

13. MR JUSTICE GROSS: I agree.

LADY JUSTICE SMITH: The appeal is allowed and the conviction quashed. Is there anything further?

14. MR LEY: I ask for a defendant's costs order.
15. MR HODIVALA: From Central Funds?
16. LADY JUSTICE SMITH: From Central Funds.