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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
Lord Wheatley
Sheriff Principal
Nicholson
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[2008] HCJAC 8
Appeal Nos: XJ1046/07
OPINION OF THE COURT
delivered by LORD WHEATLEY
in
CROWN APPEAL
in STATED CASE
by
PROCURATOR FISCAL, DUMFRIES
Appellant;
against
ALAN COTTON
Respondent:
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Act: A Mackay, A.D.; Crown Agent
Alt: Party
8 February 2008
[1] On 25 September
2006, police
officers were carrying out speed checks on the A74(M) at Whicketthorn,
Kirkpatrick Fleming using properly authorised equipment which was working
correctly. They recorded a vehicle
registered number SB05 WCY travelling southwards on the road at a
speed of 87mph. The maximum permitted
speed in terms of the relevant legislation for the vehicle on that stretch of
road was 70mph. The respondent was
the driver and registered keeper of the vehicle at the material time. Throughout his address has been as narrated
in the instance.
[2] On 28 September
2006 the
police sent out a notice of intended prosecution by recorded delivery to the
respondent's registered address. This
was not received by the respondent.
Subsequent enquiries by the police with the Royal Mail revealed that the
recorded delivery message had been lost by them before delivery. A complaint containing a charge of speeding
under the relevant legislation was subsequently served on the respondent by the
appellant, and in due course a trial was fixed for 12 July
2007 in the
District Court of Dumfries and Galloway at Dumfries.
At the trial the respondent appeared personally and argued that he
should be acquitted because a notice of intended prosecution had not been
served on him in terms of section 1 of the Road Traffic (Offenders)
Act 1988 as amended. Having heard
submissions on this matter (which is the only live issue in the case) the
Justices agreed with the respondent, and on that basis acquitted him of the
charge. It is against that decision that
the appellant now appeals by way of stated case.
[3] Section 1
of the Road Traffic (Offenders)Act 1988 as amended by the Criminal Justice
and Public Order Act 1994, Schedule 9, paragraph 6(3) provides
as follows:
(1) Subject to section 2 of this Act, a
person shall not be convicted of an offence to which this section applies
unless -
(a) he was warned at the time the offence
was committed that the question of prosecuting him for some one or other of the
offences to which this section applies would be taken into consideration, or
(b) within fourteen days of the commission
of the offence a summons (or, in Scotland, a complaint) for the offence was
served on him, or
(c) within fourteen days of the commission
of the offence a notice of the intended prosecution specifying the nature of
the alleged offence and the time and place where it is alleged to have been
committed, was -
(i) in the case of an offence under section 28
or 29 of the Road Traffic Act 1988 (cycling offences), served on him,
(ii) in the case of any other offence, served
on him or on the person, if any, registered as the keeper of the vehicle at the
time of the commission of the offence.
(1A) A notice required by this section to be
served on any person may be served on
that person -
(a) by delivering it to him;
(b) by addressing it to him and leaving it
at his last known address; or
(c) by sending it by registered post,
recorded delivery service or first class post addressed to him at his last
known address.
(2) A notice shall be deemed for the
purposes of sub-section (1)(c) above to have been served on a person if it
was sent by registered post or recorded delivery service addressed to him at
his last known address, notwithstanding that the notice was returned as
undelivered or was for any other reason not received by him.
(3) The requirement of sub-section (1)
shall in every case be deemed to have been complied with unless and until the
contrary is proved.
...
[4] Against that
statutory background, the Justices concluded that it was not enough for the
appellant to show that the notice had been sent out by registered post or recorded
delivery. They accepted that the
respondent had not received the notice of intended prosecution. They therefore concluded that service had not
been effected. They relied upon the
terms of section 1(3) above which provides that the requirement of service
shall in every case be deemed to have been complied with unless and until the
contrary is proved. As they were
satisfied that the respondent had not received the notice, he had thereby proved
that service had not been effected in terms of section 1(1)(c)(ii).
[5] While that
reading of the relevant statutory provision is understandable, we are satisfied
that it is incorrect. In terms of section 1A,
service of the necessary notice in terms of section 1(1)(c)(ii) is
achieved by one of three specific methods.
Firstly, service may be affected by personal delivery; secondly, by addressing the notice to the
recipient and leaving it at his last known address; and thirdly, by sending the notice by
registered post, recorded delivery service or first class post addressed to the
last known address. It is only in
respect of the first two of these methods of service that provision is made for
delivery of the notice. In respect of
the third form of service in terms of section (1A)(c) (which was adopted
in the present case), service is achieved, and the requirement of warning of
prosecution satisfied, by the simple expedient of sending out the notice. Once the notice has been sent, the statutory
requirement imposed on the Crown to issue warning of prosecution in terms of
the sub-section is achieved. No regard
is to be had, in our view, as to whether the notice was received. This is perhaps reinforced by the terms of section 1(2)
which provides that a notice will be deemed to have been served on the person
notwithstanding that the notice was returned as undelivered or was for any
other reason not received by him.
[6] This reading
of the section then informs the proper interpretation of section 1(3), which
provides that the requirement of sub-section 1(1) shall be deemed to be
complied with unless and until the contrary is proved. What is deemed to have happened is that the
notice has been served on the person concerned, in the sense that the notice
has been sent to him. As the section
specifically makes no reference to the notice having to be received, there is
no question of any presumption that such receipt has taken place. Accordingly, the reference in section 1(3)
that the requirements of section 1(1) are deemed to have been complied with
unless and until the contrary is proved refers only to the proof of sending the
notice and not to its delivery. The
error in the respondent's approach therefore, as reflected in the Justices'
decision, was to assume that if he showed that he had not received the notice,
he had thereby proved therefore that service had not been effective. (We note that the deeming provision in section 1(2)
does not include the situation where the notice is served by first class post). The presumption in section 1(3) which is
subject to the proviso that the contrary might be proved, refers only to
disproving that the notice was sent.
Once proof of sending is established, there is an irrebuttable
presumption that service has been effected.
[7] This reading
of the statutory provisions, which reflects the submissions of the Advocate
Depute at the appeal, is enough to dispose of the appeal. We also agree with the Advocate Depute that
the cases of Sanders v Scott [1961] 2 Q.B. 326 and Archer v Blacker [1965] Crim L.R. 165 were not really relevant and
were in any event concerned with an earlier and different version of the
Act. We would not be prepared to agree,
however, that as the warning of intended prosecution is merely a formal requirement
placed on the prosecution, then failure to observe it is not important. In our view, the terms of the section are
plain; if service as we have described
it is not properly effected in terms of the relevant provisions, then no
conviction will follow.
[8] We are
therefore also unable to agree with the clear and careful submissions put
forward by the respondent (who appeared for himself) that the requirement for
sending out a warning notice in these circumstances was somewhat pointless if
there was no provision for such notices being received by the recipient, and
that in the circumstances in which he found himself, common sense would suggest
that some remedy should have been made available to him. While we have a measure of sympathy for this
submission, particularly as we consider that he has conducted himself
responsibly throughout this protracted case, and also because the terms of the
relevant statutory provisions are somewhat peremptory and are not immediately
clear, we nonetheless require to answer the first question in the Stated Case
in the affirmative, and the second question in the negative, and remit the case
back to the Justices to convict the respondent, and to proceed as accords.
