B v DPP

JurisdictionEngland & Wales
JudgeMR JUSTICE LANGSTAFF,MR JUSTICE KENNETH PARKER,PRESIDENT OF THE QUEEN'S BENCH DIVISION,President of the Queen's Bench Division,Mr Justice Wyn Williams
Judgment Date24 January 2012
Neutral Citation[2011] EWHC 3363 (Admin),[2012] EWHC 72 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date24 January 2012
Docket NumberCase No: CO/8912/2011,Case No: CO/8115/2011

[2011] EWHC 3363 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Before:

Mr Justice Langstaff

Mr Justice Kenneth Parker

Case No: CO/8115/2011

Between:
Debbie Atkinson
Appellant
and
Director Of Public Prosecutions
Respondent

MIKE DAVIES (instructed by Foreshaws Davies Ridgeway) for the Appellant

SIMON RAY (instructed by Director of Public Prosecutions.) for the Respondent

Hearing dates: 1 st. December 2011

MR JUSTICE LANGSTAFF
1

Where the driver of a vehicle is thought to be guilty of a traffic offence, the RTA 1988 makes provision by s. 172(2) for the police to require the keeper of the vehicle involved to give such information as to the identity of the driver as they require. If he does not do so, he commits an offence (s.172(3)), but by s. 172(4) has a defence "if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."

2

This appeal by case stated, from a decision of the Warrington Magistrates' Court made on 15 June 2011, centrally raises the question of the time at or from which "reasonable diligence" is to be assessed: before the time of the driving in question, when the keeper of the vehicle first became aware that the vehicle was being driven by someone else, or at the time the Police ask who the driver was?

The Facts

3

The facts, taken from the Case, are that a Yiben Meiduo motor scooter registration number MX57 DYC was recorded doing 38 mph in a 30 mph area on Lovely Lane, Whitecross, Warrington, at 10.38 on 13 Nov 2010.

4

On 19 Nov 2010 a Notice of Intended Prosecution was sent to the Appellant, asking her who the driver was. She replied to say that she did not know. The scooter had been up for sale. A buyer had asked to test drive it before he considered buying it. She asked if he had a licence. He assured her he was legal to go on it, so she let him ride it. He returned, having done so, to say he would let her know if he wanted it. He never got back to her. She did not take his name.

5

Cheshire Police replied to the appellant's letter on 25 th. November 2010, stating that if she was unable to identify the driver of the vehicle at the time of the alleged offence within the statutory time limit then the matter would be forwarded to the issuing officer to prepare a summons file to go before the magistrates' Court. She replied that she did not have details of the driver, but he was male, and if the camera was looked at closely this would be seen. The Police then sent a further letter to the Appellant indicating that as she had been unable to supply details of the driver the files had been forwarded for consideration of prosecution, and she was duly summonsed to appear before the court.

6

Section 172 of the Road Traffic Act 1988 under which she was summonsed is headed: "Duty to give information as to identity of driver etc in certain circumstances". Its provisions material to this case are as follows:

"(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, and

(b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

(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.

(5) Where a body corporate is guilty of an offence under this section and the offence is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity, he, as well as the body corporate, is guilty of that offence and liable to be proceeded against and punished accordingly.

(6) Where the alleged offender is a body corporate, or in Scotland a partnership or an unincorporated association, or the proceedings are brought against him by virtue of subsection (5) above or subsection (11) below, subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable.

(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."

7

The Appellant contended before the Magistrates that she had the defence provided for by s. 172(4) as she did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. She contended that the defence of reasonable diligence had to be considered from the time the Appellant had received the notice from Cheshire Police asking her to identify the rider of the vehicle on 13 th November 2010.

8

The Crown Prosecution Service contended that the duty on a keeper was a continuing duty. The Appellant should in these circumstances have ascertained who wanted to test ride her scooter by obtaining the details so if any request was made to her as the registered keeper as to who was riding the scooter she could provide that information. It seems plain that by "continuing duty" was meant a duty which began at the time of (the keeper's awareness of) driving.

9

In the case stated, the Magistrates set out their conclusion in these terms:

"We were of the opinion that the appellant did not know and did not act with reasonable diligence in that she failed to obtain details identifying the person she allowed to ride her scooter on 13 th. November 2010 by not checking and not asking for documentation which would have enabled the appellant to reply to the notice of intended prosecution sent by Cheshire Police and provide the details of the rider of the scooter to them"

10

In making these observations, the court plainly focussed upon the Appellant's conduct at the time she let the unknown man ride her scooter, rather than at the time she was asked to supply his details to the Police, and in doing so indicated which of the rival contentions it had accepted. This is confirmed by the form of questions it posed for our consideration:

"Were we right to conclude that acting with reasonable diligence started at the point the appellant allowed someone else to use her motor scooter and not when she received the notice from Cheshire Police asking her to identify the driver?

If the question is answered in the affirmative were we right to conclude that the appellant had failed to act with reasonable diligence?"

11

The Appellant does not contend before us that the answer to the second question should be anything other than "Yes" if the premise, that the first question should also be answered affirmatively, is made out, for through Mr. Davies of counsel (in the course of his impressively succinct and realistic submissions) she accepts that "reasonable diligence" is a question of fact, and there was material upon which the court could come to the conclusion it did. Conversely, the position of Mr. Ray of counsel for the Director of Public Prosecutions is that if the first question should be answered negatively, he would not seek to uphold the conviction on the basis that it should still be open to the court to assess whether the reasonable diligence defence can be made out. Accordingly, the ultimate resolution of this case depends upon how this court answers the first question.

Submissions

12

It was argued by Mr Davies that the obligation to provide details arises when the keeper of a vehicle is required to do so by or on behalf of the chief officer of Police. That being the case, "It therefore follows that when assessing whether the person keeping the vehicle has exercised reasonable diligence to ascertain the identity of the driver that assessment should examine the keeper's diligence at the time the request is made and subsequently. It should not assess the keeper's conduct at any time prior to the request being made."

13

Applying this approach, by the time the request was made there was nothing the Appellant could do to identify the driver.

14

For the Respondent, Mr. Ray accepts in his Skeleton argument that if a criminal statute is ambiguous, the Defendant should have the benefit of the ambiguity, but where the legislative intent is clear, courts should interpret the legislation purposively to give effect to that intention. The intent here is the effective regulation of road traffic, and enforcement of road traffic legislation, in the interests of public safety. It could not be the intent of Parliament that a keeper should avoid regulation by failing deliberately to know who the driver of their vehicle was at any given time.

15

He claims additional support from s. 172(6) which applies where the alleged offender is a body corporate, and adds that s. 172(4)...

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    • Sage Journal of Criminal Law, The No. 76-2, April 2012
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