England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		4 February 2008

1. MR JUSTICE COLLINS: This is a renewed application for permission to seek judicial review of a decision of the Chief Constable of Devon and Cornwall Constabulary to issue two informations in the East Cornwall Magistrates' Court against the claimant. Those two informations resulted in charges, first, that on 13 October 2006 he drove a motor vehicle on the A30 at a speed exceeding 50 miles per hour, contrary to a temporary restriction order, and secondly and in the alternative that being the keeper of a vehicle, namely a motor vehicle the driver of which was alleged to have been guilty of an offence, failed to give such information as to the identity of the driver.
2. The claimant received a notice of intended prosecution within the proper limit after the offence was alleged to have been committed, and that notice of intended prosecution required him, under section 172 of the Road Traffic Act 1988, to supply within 28 days information as to who was the driver. In answer to that, by a statement of 24 October 2006 the claimant wrote to the Chief Constable saying this:

"Further to the above Notice of Intended Prosecution: I confirm that the following individual was driving the above vehicle at the time of the alleged motoring offence:

Driver's name Michael Hatton ..."

He gives his full address, his DVLA driver number and his date of birth, and he concludes with these words:

"This statement is provided under threat of criminal penalty [Funke v France] and as I have not received the caution required by paragraph 10.1 of PACE Code C [Mawdesley v the Chief Constable of Cheshire ...] I make this statement on the express understanding that it shall not be used or disclosed in any proceedings of whatever nature against myself."

3. The Chief Constable chose not to accept that as a proper response under section 172, and right at the end of the six-month period, he issued informations which resulted in the summonses to which I have already referred. Mr Hatton contended that the informations were mutually exclusive, were not proper alternatives and amounted to an abuse of process.
4. I should say that section 12 of the Road Traffic Offences Act 1988 provides:

"(1) Where on the summary trial in England and Wales of an information for an offence to which this subsection applies [it applies to speeding] —

(a) it is proved to the satisfaction of the court, on oath or in manner prescribed by rules ... 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."

5. It seems to me quite clear that the statement of the claimant in his reply to the Chief Constable gave the necessary information, stating that he was indeed the driver at the material time. It is true that he purported to include in it an indication that it could not be used for any purpose. I am afraid that that indication was not worth the paper it was written on.
6. Section 12 is in the clearest of terms and it has been upheld by the courts as not being in any way contrary to the Human Rights Act or any Strasbourg jurisprudence. In those circumstances, it was manifestly wrong for the Chief Constable, aided and abetted it would seem by the CPS who have now taken over the prosecution, to have taken the view that it was an appropriate case to charge an offence contrary to section 172 in the alternative. As it is, they have put themselves into an impossible position because if the document is not to be regarded as a response under 172(2), and if as they state in the acknowledgment of service they have no indication as to who was the driver, they do not have any possible way of proving that it was Mr Hatton who was driving the motor vehicle at the relevant time. The reality is that they have got themselves into an absurd position, and that the charge under section 172 should be dropped and the matter should go ahead, if that is what is wished, on the charge of speeding. Whether or not Mr Hatton has a defence to that charge I know not, but that is what he should now face.
7. So far as this claim is concerned, it seems to me that the basis upon which permission was refused by Sullivan J was correct. It is very rare for this court to entertain claims that a decision to prosecute should be quashed, because normally that is a matter which can be dealt with in the Magistrates' Court, and any claims of abuse of process or any arguments as to the appropriateness of any charge are properly dealt with there. If the magistrates get it wrong, the matter can be brought to this court by way of judicial review or, more usually, by way of case stated.
8. In the circumstances of this case, I have, as I have indicated, formed the firm view that Mr Hatton's concern is well-founded and that the decision of the Chief Constable was not one which was appropriate in all the circumstances. I have given, I hope, a clear indication as to the proper way ahead. It was suggested on Mr Hatton's behalf that the decision in question was contrary to the code which the Crown Prosecution Service should apply, and there was also a suggestion that this sort of approach is not peculiar to this case and has been used in other cases. If that is the position, then I hope it will not happen again for the reasons that I have indicated. It seems to me in the circumstances it would be a waste of public money, and indeed may be a waste of Mr Hatton's money because there is never any guarantee of success, were I to grant permission and to have the matter fought out in this court. I have indicated in the clearest of terms what the position in my view is, and so I am going to refuse permission and effectively therefore dismiss this claim, but I direct that this judgment can be published and can be brought to the attention of the Chief Constable and the Magistrates' Court in due course.