QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KING
| CHRISTOPHER ANGUS WHITESIDE
|- and -
|THE DIRECTOR OF PUBLIC PROSECUTIONS
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Mr Benedict Leonard (instructed by Crown Prosecution Service Appeals Unit) for the Defendant
Hearing date: 10 November 2011
Crown Copyright ©
Lord Justice Elias :
"(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 …
(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) 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.
(7) 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."
"Where an act authorises or requires any document to be served by post …. then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, there being effected at the time at which the letter would be delivered in the ordinary course of post."
"We take into account Mr Whiteside's personal circumstances. We do not accept the defence put forward by them that Mr Whiteside acted with due diligence and Mr Whiteside should have ensured that systems were in place to deal with receipt of such important documents as these. In addition, the systems that were in place for post opening at his home address whilst he is absent were not effective on these occasions."
"1. Do the elements of the offence created by section 172(3) of the Road Traffic Act 1988 include mens rea, namely knowledge on the defendant's part that he or she is under a requirement to provide specified information pursuant to section 172(2) of the Act?
2. If it is accepted that a written notice posted to a defendant's address was not in fact received by the defendant, can the notice be said to have been served on him or her so as to give rise, pursuant to section 172(2)(a) of the Road Traffic Act 1988, to the requirement to provide the specified information within 28 days?
3. If the answer to question 2 is yes, in such circumstances does the defendant nonetheless have a defence pursuant to section 172(7)(b) of the Road Traffic Act 1988, that it has not been reasonably practicable to supply the required information?"
Arguments on appeal.
"There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were no way blameworthy for what they did. That means that whenever a section is silent as to mens rea there is a presumption, in order to give effect to the will of Parliament, we must read words in appropriate to require mens rea."
Then a little later he said this:
"In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say "must have been" because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted."
"If apart from authority, one seeks to find a principle applicable to this matter it may be thus stated: if a statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence; but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened, how can he carry out the duty imposed?
(i) The offence created by section 172(3) does not require knowledge on the defendant's part that he is under an obligation to provide the specified information;
(ii) The notice was properly served on the defendant notwithstanding that it was not actually received by him;
(iii) The defendant does not have a defence under section 172(7)(b) merely by virtue of the fact that he has no knowledge that the Notices were sent. However, in an appropriate case a defendant may be able to show in such circumstances that it was not reasonably practicable for him to have been aware of the Notice, in which case the defence will apply.
Mr Justice King: