Jersey Unreported Judgments

[2007]JRC244

ROYAL COURT

(Samedi Division)

18^th December 2007

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Allo and Clapham.

The Attorney General

-v-

Holiday Tours Limited

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 25th January, 2001, following a guilty plea to the following charges:

4 counts of:	Using a motor vehicle on a road when the braking system is not maintained in a good and efficient working order, contrary to Article 18(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Counts 1, 9, 14 and 23).
3 counts of:	Using a motor vehicle on a road when the windscreen washers are not maintained in efficient working order, contrary to Article 34(6) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Counts 2, 17 and 26).
1 count of:	Using a motor vehicle propelled by an internal combustion engine so that the exhaust gases from the engine escape into the atmosphere without first passing through the silencer, contrary to Article 59(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Count 3).
3 counts of:	Using a road motor vehicle from which an oily substance is emitted which causes or is likely to cause damage to property or injury or danger to any person who is, or may reasonably be expected to be, on the road, contrary to Article 68(8)(a) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Counts 4, 8 and 19).
3 counts of:	Using a motor vehicle on a road in such condition that danger is caused or is likely to be caused to any person in or on the vehicle or on a road, contrary to Article 106(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Counts 5, 12 and 20).
3 counts of:	Using a motor vehicle on a road when the lights are not maintained in a good working order and clean, contrary to Article 24(1) of the Road Traffic (Lighting)(Jersey) Order 1998.  (Counts 6, 13 and 22).
1 count of:	Using a motor vehicle on a road which is not registered, contrary to Article 12(1)(a) of the Motor Vehicle Registration (Jersey) Law 1993.  (Count 7).
3 counts of:	Using a motor vehicle on a road when the speed indicator is not maintained in good working order, contrary to Article 36(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Counts 10, 18 and 27).
1 count of:	Using a motor vehicle on a road when the exhaust system and silencer are not maintained in good and efficient working order, contrary to Article 59(2) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Count 11).
2 counts of:	Using a motor vehicle on a road when a tyre is not maintained in such condition as to be fit for the use to which the vehicle is being put or has a defect which might in any way cause damage to the surface of the road or damage to persons on or in the vehicle or to other persons using the road, contrary to Article 27(1) of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Counts 15 and 24).
2 counts of:	Using a motor vehicle on a road when the steering gear is not maintained in a good and efficient working order, contrary to Article 29 of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Counts 16 and 25).
1 count of:	Using a motor vehicle on the road when the warning instrument is not maintained in a good and efficient working order, contrary to Article 37 of the Motor Vehicles (Construction and Use)(Jersey) Order 1998.  (Count 21).

Plea: Guilty.

Details of Offence:

Counts 1-3 (J23106): On 19^th September, 2006, the Honorary Police, in conjunction with members of the DVS, were conducting a road check in Rue Du Presbytere outside Trinity Parish Hall.  The vehicle was impounded and taken to DVS for further investigation as it was suspected that the vehicle was in a defective condition.  It was found that the brakes of that vehicle were not maintained in a good and efficient working order; an oily substance was emitted from the vehicle; and further that it had worn and hazardous suspension assemblies, a loose prop shaft, an inoperative horn and loose wheel nuts.

Counts 4-6 (J42264): On 21^st September, 2006, the Honorary Police, in conjunction with members of the DVS, were conducting a road check in La Grande Route de St Pierre.  The vehicle was impounded and taken to DVS for further investigation as it was suspected that the vehicle was not registered and in defective condition.  It was found that the brakes of that vehicle were not maintained in a good and efficient working order; an oily substance was emitted; and that it had inadequately maintained suspension and loose wheel nuts.

Counts 7-10 (J23663): On 21^st September, 2006, the Honorary Police, in conjunction with members of the DVS, were conducting a road check on Victoria Avenue in the Parish of St Lawrence.  The vehicle was impounded and taken to DVS for further investigation as it was suspected that the vehicle was in a defective condition.  It was found that the brakes of the vehicle were not maintained in a good and efficient working order; the steering gear was not maintained in a good and efficient working order; an oily substance was emitted from the vehicle; and the bodywork under the driver's seat was severely corroded and holed and the inside of the driver's door was severely corroded and was exposing sharp edges.

Counts 11-13 (J19251): On 5^th October, 2006, the Honorary Police, in conjunction with members of the DVS, were conducting a road check on Victoria Avenue in the Parish of St Lawrence.  The vehicle was impounded and taken to DVS for further investigation as it was suspected that the vehicle was in a defective condition.  It was found that the brakes of the vehicle were not maintained in a good and efficient working order; the steering gear was not maintained in a good and efficient working order; and from which an oily substance was emitted.

Counts 14-16 (J77794): On 5^th October, 2006, the Honorary Police, in conjunction with members of the DVS, were conducting a road check on Victoria Avenue in the Parish of St Helier.  The vehicle was impounded and taken to DVS for further investigation as it was suspected that the vehicle was in a defective condition.  It was found that the brakes of the vehicle were not maintained in a good and efficient working order; it had a defective reverse gear and a broken engine mounting bolt; and from which an oily substance was emitted.

Counts 17-20 (J91780): On 18^th January, 2007, following a road accident involving the above vehicle it was impounded as it was suspected that the accident had occurred due to brake failure on the part of this vehicle and it was impounded at the DVS for further investigation.  It was found that the steering gear of the vehicle was not maintained in a good and efficient working order; the suspension was poorly maintained, the vehicle had an inoperative engine stop; and from which an oily substance was emitted.

Counts 21-23 (J90902): On 27^th February, 2007, following a road check, the vehicle was impounded and taken to DVS for further investigation as it was suspected that the vehicle was in a defective condition.  It was found that the brakes of the vehicle were not maintained in a good and efficient working order; it had cracks to its bodywork; and from which an oily substance was emitted.

Counts 24-27 (J31788): On 12^th June, 2007, following a road check, the vehicle was impounded and taken to DVS for further investigation as it was suspected that the vehicle was in a defective condition.  It was found that the brakes of the vehicle were not maintained in a good and efficient working order; the steering gear was not maintained in a good and efficient working order; the fuel tank of which was leaking; and from which an oily substance was emitted.

Details of Mitigation:

Company supports many charitable causes and has produced references to that effect.  Mr Le Marquand's (the owner who appeared on behalf of the defendant company) health has been affected by these proceedings.  The company has a good service history having never had charges brought against it before and it has contracts with 4 of the 12 Parishes of Jersey.  Any work, which was requested to be done as a result of road checks, has been completed satisfactorily and signed off by the DVS.  These proceedings have had a detrimental effect on the company's finances and work has been lost as a result of the negative publicity and the company has had to make a number of redundancies.

Previous Convictions:

None.

Conclusions:

Count 1:	£750 fine.
Count 2:	£500 fine.
Count 3:	£1500 fine.
Count 4:	£500 fine.
Count 5:	£750 fine.
Count 6:	£1500 fine.
Count 7:	£750 fine.
Count 8:	£750 fine.
Count 9:	£500 fine.
Count 10:	£1000 fine.
Count 11:	£750 fine.
Count 12:	£750 fine.
Count 13:	£500 fine.
Count 14:	£750 fine.
Count 15:	£750 fine.
Count 16:	£500 fine.
Count 17:	£750 fine.
Count 18:	£750 fine.
Count 19:	£500 fine.
Count 20:	£500 fine.
Count 21:	£750 fine.
Count 22:	£500 fine.
Count 23:	£500 fine.
Count 24:	£750 fine.
Count 25:	£750 fine.
Count 26:	£500 fine.
Count 27:	£500 fine.

Total: £19250 fine.

Sentence and Observations of Court:

Count 1:	£268 fine.
Count 2:	£118 fine.
Count 3:	£268 fine.
Count 4	£118 fine.
Count 5:	£268 fine.
Count 6:	£568 fine.
Count 7:	£268 fine.
Count 8:	£268 fine.
Count 9:	£118 fine.
Count 10:	£568 fine.
Count 11:	£232 fine.
Count 12:	£268 fine.
Count 13:	£118 fine.
Count 14:	£268 fine.
Count 15:	£568 fine.
Count 16:	£118 fine.
Count 17:	£268 fine.
Count 18:	£268 fine.
Count 19:	£268 fine.
Count 20:	£118 fine.
Count 21:	£268 fine.
Count 22:	£568 fine.
Count 23:	£118 fine.
Count 24:	£268 fine.
Count 25:	£268 fine.
Count 26:	£568 fine.
Count 27:	£118 fine.

Total: £7500 fine.  Time to pay 3 months.

M. St. J. O'Connell, Esq., Crown Advocate.

Advocate C. E. Whelan for the Defendant Company.

JUDGMENT

THE commissioner:

1.        On the 18^th December 2007 this Court imposed fines totalling £7,500 on the defendant company in relation to 27 counts covering infractions under the Motor Vehicles (Construction and Use)(Jersey) Order 1998 ("the Jersey Order") and we said we would give our reasons in a written judgment which we now do.

Background

2.        The defendant company, long established, is engaged in businesses centred upon the use of heavy commercial vehicles which perform a wide range of functions within the haulage industry, operating through a number of trading entities.  It currently has a fleet of some 40 heavy commercial vehicles which fall within the definition of "goods vehicle" or "large goods vehicle" in Article 2(1) of the Road Traffic (Jersey) Law 1956 - we will refer them as "vehicles".  The infractions relate to 8 vehicles inspected by traffic officers of "Driver & Vehicle Standards" ("DVS") between the 19^th September, 2006 and 1^st June, 2007, which were found to be defective.

3.        All the vehicles, bar one, were stopped during random road checks carried out by DVS.  Three vehicles were stopped in September 2006, two in October 2006, one in February 2007 and one in June 2007.  One lorry was inspected following a minor road collision in January 2007. 

Unfairness

4.        Mr Whelan, for the defendant company, raised criticisms of the way the case had been handled by the DVS and the Crown.  Indeed on his advice the defendant company had applied for a stay of the proceedings on the basis that it constituted an abuse of process.  Those stay proceedings were eventually withdrawn when the defendant company agreed to admit to the infractions contained in the current Indictment which had been reduced from 67 down to 27 counts.  We set out below in summary form the criticisms of Mr Whelan as submitted by him.

Pre-Charge

5.        There appears to have been what Mr Whelan described as a "stockpiling" of activity against the defendant company over an extended period.  Without any warning or prior notice of any kind the defendant company was summonsed on the 18^th May, 2007 in relation to the vehicle that had been stopped in the accident in January 2007.  On the 30^th May, 2007, it received a summons in relation to one of the vehicles stopped in September 2006 and two of the vehicles stopped in October 2006.  When it appeared in the Magistrate's Court on 19^th June, 2007, it learnt that the Crown had included charges relating to the two other vehicles stopped in September 2006 and the vehicles stopped in February and June 2007.  Thus for five of the vehicles the defendant company was charged 7 months after the DVS examination took place.  There has been no explanation for the delay.  In England, as a general rule, vehicle defects would be summary offences which would have to be laid before the Magistrates within 6 months of the offence.  There is no equivalent rule in Jersey but there is authority to the effect that road traffic matters should be dealt with within a reasonable delay (AG v Walker (JJ unreported 25^th October, 1990)) which has not happened in this case.  It is now impossible, Mr Whelan argued, for the mechanics employed by the defendant company to remember the condition of any particular part changed months earlier when hundreds of such operations take place in the course of maintenance across a fleet of approximately 40 vehicles.

6.        When the vehicles were stopped and checked by a DVS officer and were suspected to have a fault or faults, a 'Defect notice' was completed by that officer and issued to the driver purportedly pursuant to Article 118 of the Jersey Order.  Article 118(2) of the Jersey Order provides that:-

"(2) A defect notice shall be in such form as the Minister may specify and shall -

(a)       state the provision of the Order which is contravened;

(b)       require the owner to remedy the defect causing the contravention; and

(c)       specify the date, time and place at which the owner shall produce the vehicle for a further test to ascertain whether the defect had been remedied."

These provisions were not followed.  The defect notices should have been served on the defendant company as owner of the vehicles which did not happen in this case.

7.        The defect notices contained a warning as follows:-

"Warning: Failure to comply with the requirements of this notice may result in prosecution."

Each vehicle was impounded following the roadside inspection and was required to be towed to the DVS workshop for a further inspection.  The DVS then required alleged faults to be repaired and the vehicles to be presented for re-inspection.  This was done in each case with all of the vehicles being repaired to the satisfaction of DVS save for one vehicle which the defendant company of its own accord, due to accidental damage to the bodywork rendering repairs unviable, decided to dismantle and use for spares.  This warning strongly suggested that compliance with the works indicated by the DVS would avoid prosecution.

8.        It is now apparent that unknown to the defendant company witness statements for use in criminal proceedings were being prepared by the DVS inspectors in the format prescribed by Article 9 of the Criminal Justice (Evidence and Procedure)(Jersey) Law 1998 within weeks of the inspections and copies were being sent to the relevant Centeniers.  The defendant company was never told that a prosecution was being contemplated in relation to the alleged defects - not at the road check, not at the DVS headquarters inspection, not when the witness statements were being prepared, not when the witness statements were sent to the Centeniers and not at any time prior to the issuing of a summonses some 7 months, at least, later.

9.        The DVS did not retain evidence for use in criminal proceedings.  The Centenier did not request the evidence or its retention.  The defendant company, kept in ignorance of proposed criminal proceedings, destroyed, by its own hand, the evidence on which it might have relied and took no steps to procure independent reports.

10.      Mr Whelan submitted that simple fairness required the DVS to notify the defendant company of a contemplated prosecution at the time the vehicles were being inspected or, in any event, before any substantive repairs or modifications took place.  The relevant defence evidence in relation to the alleged faults could only be obtained by the defence undertaking their own expert inspection of the vehicles after they had been examined by the DVS officer but before any necessary repairs took place.  Once the repairs had taken place it became impossible to procure this evidence.  In effect the DVS caused the company to perform works which had the inevitable consequence of destroying defence evidence, without telling the defendant company that it was to be prosecuted or might be; something which was clearly contemplated in early course bearing in mind the preparation by DVS officers of witness statements.

Centenier's Warning

11.      Wayne Le Marquand, the managing director of the defendant company, and one of its drivers, Robert Reed, have sworn affidavits to the effect in October 2006 they attended a Parish Hall enquiry at Trinity, in respect of the alleged defects to one of the vehicles that had been stopped in September 2006.  They deposed that they were both given a verbal caution which they believed was the conclusion of the matter.  The Crown have investigated this and it transpires that there is no record at the Parish Hall of such an enquiry and the Centenier concerned has no memory of conducting it.

12.      Mr Whelan submitted that in the absence of any countervailing evidence, we should accept the sworn testimony of Mr Le Marquand and Mr Reed that the defects in relation to one of the vehicles was dealt with by a Centenier's warning in October 2006 and that accordingly the defendant company should be given an absolute discharge for the three counts that relate to this vehicle. 

Magistrate's Court

13.      When these matters were "stockpiled" into some 67 charges in the Magistrates Court, because the defendant company had long since unwittingly destroyed its own evidence, it had to ask the Crown for sight of its evidence.  What it received was a brief report containing un-checkable assertions and some unreadable black and white photographs which were not specifically cross-referenced to those assertions.  Advocate Backurst, who then represented the defendant company, has sworn an affidavit to the effect that the prosecuting Centenier informed him that he would say in Court that he accepted that the matter should be dealt with by the Magistrate.  In the event the Centenier did not say this to the Magistrate.  Mr Whelan went further in his submission than the evidence deposed by Advocate Backhurst by alleging that the defendant company only agreed to plead guilty to the 67 counts on the basis, in effect, that the matter would be dealt with before the Magistrate's Court.

In the Royal Court

14.      Mr Whelan submitted that the original charges drawn up in the charges office of the Magistrate's Court were simply placed onto an indictment and topped and tailed.  The result is that in the Royal Court there were counts, for example, of a windscreen wiper having a perished rubber, a tyre being under inflated, the little plastic bottle of windscreen washer water being empty and the bulb having gone on a rear number plate.  There were 67 counts on the indictment including counts of this kind.  He referred the Court to R v Ambrose [1973] 57 Cr. App. R. 538, where the English Court of Appeal had observations about this sort of indictment:-

"The facts relating to count 7, in the judgment of this Court, ought never to have been put before a jury.  What happened was this.  After arrest this appellant for some three days was in police custody.  Inevitably he had to be kept in a cell at a police station.  That must have been a terrifying experience for a boy of 17 who had never, as far as this Court knows, previously been kept at any rate for a length of time in police custody.  He was given meals.  This necessitated being provided with a knife, spoon and fork, and it looks as if, whilst he was in the cell, he scratched on the cell door in letters two inches high the words: "Peter loves Joy."

When the Court inquired of counsel why a triviality of this kind got into the indictment, the Court was informed that it was thought right to deal with the matter as there was evidence relating to it.  The Court wishes it to be clearly understood that those who draft indictments should use common sense and should not put into indictments charges which are of such a trivial nature.  Not only is it unfair, but it also tends to impede the doing of justice on more important aspects of an indictment.  The language of ordinary people in this country sums up this kind of situation.  The ordinary man does not like, as he puts it, the book being thrown at someone, or, to use the other phrase which is in common use, everything being thrown at an accused person except the kitchen sink.  The ordinary man is right: it is not fair.  The Court hopes that the prosecuting authorities not only in Essex but elsewhere will bear this in mind."

15.      The defence wrote to the Crown on 21^st August, 2007 inviting the Crown to focus on what it considered the more important charges so that the case may take on a more realistic proportion.  They pointed out that it was presently unwieldy and unless someone took a more pragmatic view the case was likely to cost both sides far more than it merited.  There was no response to this letter.  Mr Whelan submitted that this practice was not fair and actually impeded justice.  Each of the counts has to be considered and each must be the subject of a search by the defence in an attempt to discover what evidence is being put forward by the Crown.  That evidence consisted only of the assertions of the traffic inspector's reports and a few unreadable photographs, finally supplied in colour 3 weeks after the matter had been committed.  There was no Crown case statement, no written statements identifying the photographs and seeking to connect them with the facts in issue and little effort has been made to shape the case into a proper form.  In order to gauge a sense of the unfairness identified by the English Court of Appeal in presenting the defence with a case of this kind, Mr Whelan challenged us for ourselves to try the exercise of going one by one through the 67 counts on the original indictment and trying to match them to the various assertions in the various reports and then to establish which photographs - if any - go with which count.  He asked us to imagine that we were the defendant company which wants to understand what is said against it.  When a prosecution is pursued in this manner one aspect of the unfairness is financial.  It takes hours to unravel the unsorted "muddle of trivia and more substantial matters" lifted from the Magistrate's Court with no attempt to refine the evidence.  It is an unnecessary financial cost against the defendant company which the defendant company says ought fairly to be taken into account when the fines appropriate to these circumstances are set.

16.      On top of that Mr Whelan submitted that the Crown has involved the defence in needless additional expense which arose in this way.  So unfairly did the defendant company feel it had been treated, above all in the matter of unpreserved evidence, that it set out to invoke the Court's jurisdiction under the abuse of process principle on the basis both that a fair trial could no longer be conducted and that anyway it would not be fair to put the defendant company on trial for the reasons set out above.  An abuse of process application was prepared on this basis.

17.      Mr Whelan further argued that the Crown has caused a waste of the defendant company's money by breaching the Attorney General's guidelines about the disclosure of evidence and orderly case management.  The Crown is supposed to tell the defence what material it relies on in support of an allegation (Guideline 1 C a); that relevant material is supposed to be collated and referred to as "Part A" of the Crown case (Guideline 2(a) and 5A); within Part A of the Crown case the Crown should assemble the statements which prove/support the Crown's case, together with those exhibits which prove/support the Crown case (Guideline 'Stage 1', page 5); those materials should be listed in two lists i.e. statements and exhibits (Guidelines Stage 1, page 6).

18.      When the case is ready for committal the lists and the materials should be served on the defence (Guidelines Cii).  None of this has happened in this case.  The service of the Crown case is intended to be orderly and considered (Guideline Summary para 2).  In this case it has not been.  The practice of piecemeal disclosure to the defence was supposed to cease (Guideline, The Logistics of disclosure para 1).  In this case it has continued.  The practice of disclosure without any attempt to clarify what is being served or the basis upon which it is being served was supposed to cease (Guideline Practical Considerations para 1).  In this case it has continued.

19.      Quite by chance, 3 weeks after the defendant company had been arraigned and pleaded to the indictment, and on the eve of service of a lengthy legal application based on the evidence as it was understood to be, the defence heard about the existence of other evidence upon which the Crown relied.  It turned out to take the form of a CD containing some 313 photographs and 14 or so clips of video.  In Mr Whelan's words the evidence contained on this CD was "dumped into the lap of the defence".  It was not served as evidence.  There are no witness statements describing its provenance or what it is they purport to show in every case, or connecting them to the facts of the case, or linking them to the numbered counts in the indictment.  The defendant company did not have the resources to try and marry these untimely and largely unclassified photographs to the individual allegations.  It was constrained to take the view that at trial inspectors would give evidence that they had seen various defects and from the mass of unclassified photos would select those said to support their assertions.  The defendant company had been constrained to accept that the Court would find that there had been some lapses of maintenance, had acknowledged that to some degree there had been such lapses and therefore admitted the infractions contained in the current and reduced Indictment on that basis.

Crown response

20.      Mr O'Connell, on behalf of the Crown, who has taken on the conduct of the case for the Crown relatively recently, did not demur from the history of this case as recounted by Mr Whelan.  He pointed out that the defendant company did plead guilty at the Magistrate's Court and there therefore had been acceptance of wrongdoing at an early stage.  In his view the defendant company's real sense of grievance arises out of the matter not being dealt with at the Magistrate's Court level.

21.      He submitted that the mere fact the defect notice had been issued did not preclude the possibility of a prosecution.  The DVS tries to work cooperatively with road users.  What started off as routine inspections turned into concern after some 8 vehicles were found to be suffering from similar types of neglect.  He conceded, however, that there were lessons to be learnt here and that he had it in mind to alert the DVS, in particular, as to the warning contained in the defects notice form and the prejudice that could arise to defendants where evidence is discarded as a result of repairs being performed.

22.      In relation to the Centenier's warning, he submitted that even if the Centenier had disposed of it by way of a warning that would not preclude the Attorney General from bringing the matter before the Court.  The Attorney General has confirmed that even if there had been a warning he would have intervened in this case.  If the Court was persuaded that there had been a Centenier's warning then at most it was an issue for mitigation.

23.      In relation to the statement allegedly made by the prosecuting Centenier to Advocate Backhurst prior to the Magistrate's Court hearing, there was no evidence from the Centenier.  Mr O'Connell thought it was unusual for a Centenier to address the Magistrate on the issue of jurisdiction.  Even if he had made such a statement it would not of course bind the Magistrate and again at most this was a matter for mitigation.

24.      In relation to the length of the indictment before the Royal Court he said this arose out of a decision taken at a very early stage to pursue all 67 charges.  He conceded that the indictment should have been reduced in scope earlier.  He did not deny that there had been a failure to comply with the  Attorney General's Guidelines 

Our decision

 

Pre-Charge

25.      We take first the allegation relating to the warning on the defects notice that failure to comply with the requirements of the notice may result in prosecution.  We agree that this warning strongly suggests that compliance with the notice will avoid prosecution, compliance which will lead potentially to the unwitting destruction of the very evidence that the owner might need to defend itself in any such prosecution.  The owner may dispense with the precaution, for example, of obtaining an independent assessment of the alleged defects on the assumption, derived from the warning, that with compliance there will be no prosecution.

26.      The potential importance of this to the defence is illustrated by subsequent events. Since these proceedings were instituted other vehicles belonging to the defendant company have been stopped and defects notices issued.  Knowing, as a result of its experience, of the possibility of a prosecution the defendant company commissioned its own independent inspection which cast doubt on the accuracy of the defects alleged, as a result of which no further action has been taken by the authorities.

27.      If the authorities wish to keep open the possibility of a prosecution against the owner of a vehicle, notwithstanding compliance with the defects notice, then the warning should be to that effect.  It should make it plain that compliance with the defects notice is without prejudice to any further action which may be taken in respect to the matter. 

28.      In our view offences under the Jersey Order should not be 'stockpiled' in the way they appear to have been in this case.  We do not think it is fair that offences can be held in reserve, so to speak, until a point is reached when the decision is taken to prosecute all of the offences together, some of which may have been committed months earlier.  We do not feel able to go as far as Mr Whelan when he submitted that simple fairness required the DVS to notify the defendant company of the contemplated prosecution at the time the vehicles were being inspected, or, in any event, before any substantive repairs or modifications took place.  The decision whether or not to prosecute is not taken by the DVS but by the Constable of the relevant parish or by the Attorney General who are the "authorities" for this purpose.  Apart from ensuring that the warning in the defects notice makes it clear that a prosecution may follow notwithstanding compliance with the notice, we do not think there is an obligation in fairness upon the DVS to separately notify the owner that a prosecution is contemplated, either at the time of the inspection or before the repairs actually take place.  We think fairness dictates that a timely decision should be taken by the authorities whether or not to prosecute an offence, or group offences committed closely together, as they arise.  Thus in relation to the vehicles stopped in September 2006, a decision should have been taken at that time in relation to those vehicles whether to prosecute or not.  If the decision was to prosecute, then the owner would receive notice of that prosecution in the ordinary way.  If the decision is not to prosecute then the offences should not be kept in reserve or 'stockpiled' to be added to a later prosecution that the authorities may or may not decide to bring.  The sense of unfairness arises when the owner suddenly finds itself facing historic charges which it had assumed, with the passage of time and the satisfactory completion of the repairs, would not be brought.

29.      If the DVS or the authorities become concerned about systemic failings in relation to the maintenance of vehicles then the Health and Safety Inspectorate have the power to procure the issuing of improvement notices under Article 13 the Health and Safety at Work (Jersey) Law 1989 as indeed has occurred in this case. 

Centenier's Warning

30.      We do accept the sworn testimony of Mr Le Marquand and Mr Reed that the defects in relation to one of the vehicles was dealt with by way of a Centenier's warning in October 2006.  However we do not agree with Mr Whelan that this should lead on its own to us granting an absolute discharge in relation to the three offences concerning that vehicle.

31.      Whatever a Centenier may have purported to do, the Attorney General has the undoubted right to bring the matter before the Court for it to be dealt with on its merits.  For the Court to discharge the defendant on the sole ground that the Centenier had purported to deal with it would be to negate that power of the Attorney General.  In our view the fact that the three counts relating to this vehicle were dealt with by a warning from the Centenier may be relevant to mitigation but that is all.

Magistrate's Court

32.      We accept Advocate Backhurst's sworn testimony as to the statement of the Centenier prior to the hearing at the Magistrate's Court.  We find it surprising that it should have been made as we question whether it is customary for prosecuting Centenier's to make submissions to the Magistrate as to his jurisdiction.  Nothing a Centenier says can bind the Magistrate.  Having regard to the Magistrate's Court Sentencing Guidelines which indicate a range of fines under the Jersey Order for a first offence of between £200 and £1200 and bearing in mind that there were 67 counts, it seems clear to us that this was a matter which was destined to be referred to the Royal Court in any event.  Mr Whelan, however, went further than the evidence to which Advocate Backhurst deposed, namely that there was, in effect, a compromise between the Centenier and Advocate Backhurst by which the defendant company agreed to plead guilty in consideration of the matter being dealt with before the Magistrate's Court.  He referred to the following extract from the judgement in DPP v Edgar [2000] WL 19 1281:-

"Compromises of this kind between prosecution and defence, where the defence agrees to plead to certain charges in return for the prosecution dropping others are a common place of our criminal proceedings and they occur in the Magistrate's Courts and the Crown Courts.  It is important in principle that such compromises should generally be stuck to and the integrity of the criminal process requires that they should be."

We are not dealing here with an alleged agreement to drop certain charges in return for a plea in others but an alleged agreement, effectively, that the Magistrate would deal with the case. Such an agreement, even if entered into, is not within the power of any Constable acting through a prosecuting Centenier.  Jurisdiction is entirely a matter for the Magistrate.  We do not think we are dealing here with the kind of compromise envisaged by DPP v Edgar.  Mr Whelan argued that because a compromise had been reached, the matter should have been dealt with before the Magistrate's Court and this Court should therefore limit itself to the powers of the Magistrate, i.e. to a total fine of £5,000.  We do not agree that there was or could have been a compromise over jurisdiction and that our powers should be constrained in this way.

Royal Court

33.      Mr O'Connell did not demur from the substance of Mr Whelan's criticisms of the Crown's conduct of this case before the Royal Court.  To be fair to Mr O'Connell and as previously mentioned, it is clear that he came late to the matter and it was as a result of his involvement that the Crown and the defence were able to agree a much reduced indictment which concentrated on the more serious charges and to which the defendant company was able to plead.  We accept that these failings have given to rise to material expenditure on the part of the defendant company and as can be seen later this was a major factor in our reducing so substantially the conclusions of the Crown. 

General mitigation

34.      The defendant company is long established and clearly well respected, as made clear from the many references we were shown.  It has no record of previous convictions and in what is more than 50 years of operation there has never been a serious incident or instances of brake, steering, wheel or suspension failure.  The works indicated as being necessary by the DVS were undertaken promptly and to the satisfaction of the DVS.  Furthermore the company has worked with Health and Safety pursuant to an improvements notice to tighten its maintenance procedures and the Health and Safety Inspectorate has declared itself satisfied. We were told that the way this case has been handled by the DVS and the Crown has had a detrimental effect on the health of the managing director and has had a debilitating effect on the company's finances.

35.      We took all of this general mitigation into account but in our view the criticisms of Mr Whelan in relation to the misleading nature of the warning in the defects notice,  the unwitting destruction by the defendant company of the evidence it needed to defend itself and the unfairness created by the 'stockpiling' of the offences, have substance.  Furthermore the conduct of the Crown before the Royal Court has given rise to material expenditure which the defendant company should not have been required to expend.  It amounts to a hidden and substantial fine.  Mr Whelan was unable to give us a precise figure in relation to legal costs but they certainly exceed £10,000.  We concluded therefore that these exceptional matters must result in a substantial reduction in the Crown's conclusions.  The Crown sought fines totalling £19,250.  We reduced the fines to a total of £7,500 apportioned as between the 27 counts.

36.      We do not wish it to be thought that in making such a substantial reduction in the Crown's conclusions, we do not regard these offences as serious.  The interests of drivers and the public demand that vehicles on the roads are properly maintained and safe to be used, and the level of fine that are likely to be imposed on those who allow defective vehicles onto the roads can be seen from the conclusions of the Crown; conclusions which, bar the exceptional features we identify above, we would have been minded to give substantial effect to.

Authorities

Motor Vehicles (Construction and Use)(Jersey) Order 1998.

Road Traffic (Jersey) Law 1956.

AG v Walker JJ unreported 25th October, 1990.

Criminal Justice (Evidence and Procedure)(Jersey) Law.

R v Ambrose [1973] 57 Cr. App. R. 538.

Health and Safety at Work (Jersey) Law 1989.

DPP v Edgar [2000] WL 19 1281.