QUEEN'S BENCH DIVISION
B e f o r e :
(Sir Anthony May)
MR JUSTICE SWEENEY
|The Queen on the application of|
|- v -|
|SNARESBROOK CROWN COURT|
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
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(Official Shorthand Writers to the Court)
Mr Ben Watson (instructed by the Treasury Solicitor)
appeared on behalf of the Defendant
Mr Paul Mitchell (instructed by CPS Appeals Unit)
appeared on behalf of the Interested Party
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THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:
Mr Justice Sweeney will give the first judgment.
MR JUSTICE SWEENEY:
(1) Speeding in Brixton Hill on 3 August.
(2) Speeding in Brixton Road on 7 September.
(3) Driving through a red traffic light in Tooting High Street on 11 September.
(4) Driving through a red traffic light in Streatham Hill on 15 September.
(1) As to the offence on 3 August, on 13 August and 10 September.
(2) As to the offence on 7 September, on 15 September and 13 October.
(3) As to the offence on 11 September, on 22 September and 20 October.
(4) As to the offence on 15 September, on 25 September and 23 October.
"The case is really marked by the defendant's inability to co-operate with the obligations which the ownership of a motor vehicle imposes on the citizen these days. There is no doubt, in our view, that he failed to provide the information required under section 172(2)(a). We have had to consider whether the statutory defence under section 172(4) applies.
What we have been told by the appellant in the witness box, where he has been extremely frank, is that although the car is registered at 79 Deer Park Gardens, Mitcham, he himself is not there on any what might be regarded as regular basis. He told us about his work commitments which take him down to Herne Bay and he has mentioned other addresses where he resides from time to time.
But perhaps the most significant aspect of his evidence is that he told us at one point, and I quote: 'I have made it my business not to be at the registered address' and he explained that against the background of receiving letters from the Child Support Agency.
So here is a man who, although he has his car registered at 79 Deer Park Gardens, is not there often and makes it his business not to be there often. In those circumstances it is hardly surprising if he says, and we accept what he says about this, that he did not get the letters. He talks about another person being at that address, being on hand to open letters as and when needed, but the reality is that the section, that is to say section 172, imposes a heavy duty upon a motorist. Once he has given an address, that is the address at which he must be available to receive communications such as notices of intended prosecutions and it does not lie in the mouth of an appellant or a defendant in the magistrates' court simply to say, 'I haven't been home much and therefore I haven't received these communications'.
As I say, the Act, section 172, places a duty, which these days has to be interpreted strictly, upon the motorist that when he given an address as the registered address of his motor car, to make sure that important documents relating to that motor car when sent to that address will be received by him. For those reasons we reject the appeal."
(1) The claimant file and serve within fourteen days witness statements from himself and Mr Okoturo setting out the nature of the claimant's case that he did not receive any of the notices and that Mr Okoturo was not allowed to give evidence in the defendant court.
(2) The order of disqualification be suspended until the determination of the application for judicial review.
(3) The defendant and/or the Crown Prosecution Service file and serve within 28 days a full account of what occurred at the defendant court on 18 June 2009 in relation to the dismissal of the claimant's appeal, together with summary grounds of defence.
(4) The claimant be provided, at public expense, with a transcript of Burton J's judgment.
(1) On 21 July 2009 the claimant filed Amended Grounds (rather than the required witness statement) setting out his account, together with a witness statement from Mr Okoturo dated 15 July in which Mr Okoturo stated, amongst other things, that the claimant did not receive any police request letters "at his temporary contact address at 79 Deer Park Gardens", but in which Mr Okoturo did not deal, as ordered, with his attendance at the defendant court on 18 June 2009.
(2) On 11 August 2009 the defendant court applied for an extension of time in which to respond to Burton J's order. That application was eventually opposed by the claimant. In the meanwhile, on 20 August 2009, the defendant court filed an Acknowledgement of Service and submission. The submission included a copy of the court log covering the hearing on 18 June 2009, the transcript to which I have already made reference, and a summary of the learned Recorder's comments on Burton J's judgment and order, including the comment that the learned Recorder had not refused the claimant permission to call a relevant witness, nor indeed referred to that witness as unreliable or irresponsible.
(3) On 15 October 2009 this court (then consisting of Scott Baker LJ and Cranston J) granted the defendant court its application for an extension of time and ordered that the case be listed before a single judge not less than two weeks later. At that same hearing, the defendant court supplied the claimant with a transcript of Burton J's judgment of 2 July 2009.
(4) On 5 November 2009 the claimant applied for a copy of the defendant court's tape-recording of the appeal hearing on 18 June 2009. It seems that as a result of that application, and of a letter from the claimant to the court office in February 2010, that the case was not listed for hearing as ordered by this court at the hearing on 15 October 2009.
(5) On 23 March 2010 the claimant's application for a copy of the tape-recording was considered by Collins J, who (in the mistaken belief engendered by the claimant that Burton J's order of 2 July 2009 was for a transcript of the appeal proceedings on 18 June 2009, as opposed to a transcript of his own judgment) ordered the service of a full transcript of the appeal proceedings within 21 days, and for the case to be listed as soon as possible in the following term.
(6) On 9 April 2010 the claimant filed another application, apologising to Collins J for the prior confusion, but again seeking an order for the provision of copies of any tapes of the full hearing on 18 June 2009.
(7) On 20 April 2010 Mr Okoturo wrote to the Treasury Solicitor (who represents the defendant court) stating that he had attended at the Crown Court on 18 June in order to give evidence to confirm that the claimant did not receive the relevant police notices.
(8) The claimant's application of 9 April 2010 came before Collins J on 27 May 2010. In the result, Collins J acknowledged the defendant court's compliance with the order of Burton J, and the fact that there were no tapes or transcripts of the hearing on 18 June 2009 beyond the transcript to which I have already made reference. Collins J then ordered the claimant to lodge, within fourteen days, a statement of truth setting out any matters in dispute, and a statement from Mr Okoturo dealing fully with the matters set out in Burton J's order. Finally, Collins J ordered that the case be listed before the end of term, and before a single judge if necessary.
(9) Contrary to the order, the claimant did not file the requisite statements, and the case was again listed before this court (then consisting of Stanley Burnton LJ and Nichol J) on 23 July 2010. The court ordered the claimant, within fourteen days, to file and serve a witness statement or affidavit from himself detailing, in particular, his oral evidence to the court on 18 June 2009 and what was said about Mr Okoturo, and also a witness statement or affidavit from Mr Okoturo giving a detailed description of what evidence he would have given had he been called. The court further ordered the defendant court to respond within 28 days of service by the claimant, and that the Crown Prosecution Service be joined as an interested party (although, unhappily, it was not served with the papers until towards the end of February 2011).
(10) On 9 August 2010 the claimant finally filed witness statements from himself and Mr Okoturo. The claimant asserted that he had made it clear to the court that Mr Okoturo was living at the registered address at the material time, had permission to open his mail and to inform him if anything of importance had arrived, and that the Notices had not arrived at the address. He further asserted that the learned Recorder had stated that the letters had been received at the address, that the person staying at the address was irresponsible and had not done the right thing, and that the witness was thus not necessary. Mr Okoturo asserted in his statement that no police Notices were delivered to the address and that he had attended at the defendant court on 18 June 2009 and would have given evidence to that effect.
(11) On 3 September 2010 the defendant court applied for an extension of time in which to serve its response to the witness statements. That was resisted by the claimant, but time was later extended by Master Venne. In the meanwhile, on 10 September 2010 the defendant court served a statement dated 7 September 2010 from Mr Recorder Pearse Wheatley. The learned Recorder stated, amongst other things, that the court's ruling was as set out in its judgment; that the court found as a fact that all eight Notices had been delivered to the registered address at 79 Deer Park Gardens (albeit, I would add, that that is not stated in the judgment itself); that the court was of the view, on the construction of section 172(2) and (4) of the Road Traffic Act 1988 that the responsibility on a motorist of receiving Notices under section 172 was a high one, and that the burden of proof that the claimant had acted with due diligence was on him; that his recollection of the account given by the claimant in evidence included that the claimant had not been aware of the occasions when he must have been flashed by traffic cameras; that he was working away from home for long periods but had asked his tenant and/or friend to open important documents and make him aware of them -- albeit that because of the Child Support Agency he was avoiding the receipt of official looking documents; and that under cross-examination it had become clear that the claimant's arrangements to collect his post were virtually non-existent. The learned Recorder continued that at the end of his evidence the claimant was given the opportunity to call any evidence that he wished, based on his (the claimant's) own assessment as to whether any witness would help his case, and that the claimant (who had become dejected by the exposure in cross-examination of the haphazard nature of his arrangements) had decided not to call any witness. The learned Recorder finally stated that he did not describe any other person (including Mr Okoturo) as being irresponsible.
(12) As recently as within the last week, the claimant has renewed his attempts to gain access to tapes of proceedings in the Crown Court. In his skeleton argument he indicates that he has been able, at least in part, to do so.
(13) The defendant court and the interested party have, between them, placed before this court the papers upon which the original prosecution was based before the defendant court.
(14) The interested party has filed a statement made by prosecuting counsel on the appeal (Mr Coates) dated 25 March 2011. Mr Coates states that he does not have any notes that he made during the hearing, but that he has a clear recollection of the proceedings. He indicates that he has seen, and agrees with, Mr Recorder Pearse Wheatley's statement of 7 September 2010. It is Mr Coates' recollection that the claimant was asked if he had any witnesses to call and that he indicated that he did not. Mr Coates has no recollection of the court stating that the claimant's witness was unreliable or of the court stating that it was unnecessary to hear evidence from the witness. He states that if such an event had occurred, he would have expected that he would have intervened and invited the tribunal to allow the witness to be called, and that it was not necessary for him to do so as far as he recalled in the appeal in this case.
"(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 ....
(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.
(9) For the purposes of section 7 of the Interpretation Act 1978 as it applies for the purposes of this section the proper address of any person in relation to the service on him of a notice under subsection (7) above is --
(b) in any other case, his last known address at the time of service.
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: