Barbara Marshall v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker,Lord Justice Beatson |
| Judgment Date | 17 June 2015 |
| Neutral Citation | [2015] EWHC 2333 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/653/2015 |
| Date | 17 June 2015 |
[2015] EWHC 2333 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Kenneth Parker
CO/653/2015
Mr T Rainsbury (instructed by Peters & Peters LLP) appeared on behalf of the Claimant
Mr Lewis (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
On 5th March 2013 at 11.08 pm on the Cromwell Road by Kenway Road SW5 westbound, a speed camera placed at that location captured an image of an Aston Martin Virage V12 registration LJ12FX5 travelling at 40 miles per hour, very substantially in excess of the permitted maximum speed of 30 miles per hour.
The registered keeper of the vehicle was Mrs Barbara Marshall, the appellant in this appeal by way of Case Stated, who according to her evidence did not habitually drive the vehicle. The other driver of the car was her husband, Mr Phillip Marshall.
On 13th March 2013 Mr Marshall was issued with a notice under section 172(2)(b) of the Road Traffic Act 1988 ("the Act") requiring him to give such information "as to the identity of the driver of the vehicle who is alleged to be guilty of an offence as he may be required to give by or on behalf of a chief officer of police".
On 29th March 2013 Mr Marshall completed and returned the notice stating in respect of the alleged offence at 11.08 pm on 5th March 2013: "I am aware of who the driver was. It was either myself or my wife." He then gave relevant particulars of his wife.
On 18th April 2013 Mrs Marshall as registered keeper of the vehicle was issued with a materially similar notice under section 172(a) which she completed and returned stating in respect of the alleged offence at 11.08 pm on 5th March 2013: "I do not know for sure who the driver was; either me or husband."
After some earlier court proceedings, which it is not for present purposes necessary to describe, Mrs Marshall was eventually, on 16th January 2014, recharged with an offence under section 172(3) of the Act, namely that on 20th May 2013 she failed to give information relating to the identification of the driver of the vehicle who was alleged to have been guilty of an offence.
On 23rd January 2014 Mrs Marshall filed a written plea of not guilty to the offence and the matter finally came to trial on 26th August 2014 in the Magistrates' Court sitting at Waltham Forest — Mr Nina Hall and Mr William Adams.
The Proceedings in the Magistrates' Court
In the Magistrates' Court Mrs Marshall appeared in person without legal representation. Mr Marshall gave evidence first on behalf of the defendant, Mrs Marshall. I am not convinced looking at the efficient conduct of the trial that there was good reason why he gave evidence first. Because Mrs Marshall was the individual charged with the offence, and the court needed primarily and as a matter of priority to hear directly from her what she knew or believed about the identity of the driver of the vehicle at 11.08 pm on 5th March 2013 and what steps, if any, she had taken to ascertain the identity of the driver when she received the notice in April 2013.
Furthermore in a criminal trial, witnesses of fact are regularly excluded from court when other witnesses give evidence in order that they may not be influenced by what they would otherwise hear and that any testing of the evidence may be effectively conducted.
In any event Mr Marshall told the Magistrates' Court that on the night of 5th March 2013 he and Mrs Marshall with their temporary cleaner, Adele, had been together in their flat at 16 Sloane Street SW1. He said that Mrs Marshall at some point drove Adele to Nevern Place in Earl's Court just off the Cromwell Road and then returned to 16 Sloane Street. Following her return he said that he then drove himself and his wife to their home, Sheen Common Drive, Richmond, TW10 5BN.
It appears that both journeys involved travelling along the Cromwell Road westbound and passing the speed camera by Kenway Road. It appears that two journeys were taken because the Aston Martin Virage has only a cramped rear seat and there were some articles intended for Richmond taking up room on that seat.
Mr Marshall had not noticed any flash of a speed camera on his journey home and on reflection he had no reason to think that he had driven at excessive speed. He spoke to his wife and Adele. They had not noticed any flash of a speed camera on the journey and on reflection they did not think the vehicle had been driven at excessive speed.
Mrs Marshall then gave evidence. From what is stated in the Case Stated, it appears that the Magistrates' Court did not find her to be an impressive witness. The court formed the view that she was at first reluctant to give any evidence and that she showed herself to be, quoting from the Case Stated, "dismissive of the offence and the proceedings", an observation which I take to mean that she was not treating the alleged offence and the consequential criminal trial with the seriousness that the Bench believed to be required in the circumstances that had arisen.
In any event Mrs Marshall told the court that on the night in question she had given Adele a lift home from 16 Sloane Street. Mr Marshall then drove home to Richmond. She and her husband, she said, had driven the vehicle within 25 minutes of each other. It was dark and she was not aware of any speed camera flashing. She did not explain what steps, if any, she herself had undertaken to ascertain who had driven the vehicle.
The Decision
The Magistrates' Court convicted Mrs Marshall of the offence under section 172(3) on the ground that on all the evidence she had failed to show that she "did not know and could not with reasonable diligence have ascertained who the driver was" — see paragraph 3 of the Case Stated.
The Magistrates' Court announced its verdict in the following terms:
"Please set out what is at page 5 on the Statement of Case in the documents beginning with 'Agreed facts which is in italics down to the end of 'Conclusions' all of which is italics."
In the Case Stated dated 30th January 2015 the Magistrates' Court amplified their reasons in the following terms:
"12c It had been for the appellant to have taken further relevant steps and actions herself to ascertain who had been the driver of the vehicle at the relevant date and time and not to have merely relied upon the steps and actions her husband had already taken alone following receipt of the notice addressed to her.
d. The appellant should herself have taken steps and actions to resolve who had driven the vehicle, from which it may have been possible for her to have identified whether it had been in fact her husband or herself who had driven the vehicle on the night in question."
e. The appellant had not satisfied us that it was more probable than not that she did not know and could not with reasonable diligence have ascertained who the driver of the vehicle had been."
The Magistrates' Court initially imposed a fine of £1,395, made a statutory surcharge of £120 and awarded costs of £85. The fine exceeded the maximum for the offence and later on the day of the trial the Magistrates' Court reduced the fine to the maximum amount of £1,000 and the surcharge to £100 under section 142 of the Magistrates' Courts Act 1980. Mrs Marshall's licence was also endorsed with six penalty points.
In the Case Stated the Magistrates' Court stated three questions for this court as follows:
1. Did we misdirect ourselves in determining whether or not the appellant had established her defence on the balance of probabilities to our satisfaction evidentally under section 172(4)?
2. Did we give adequate reasons for rejecting the appellant's defence pursuant to the case of Veightman v DPP [2007] EWHC 634 (Admin), [2007] RTR 565?
3. Was our finding and decision Wednesbury unreasonable in all the circumstances of this case?
Preliminary Application
Through the appellant's notice and a supporting witness statement of Mr Marshall dated 11th February 2015, Mrs Marshall applied for an order under section 28A(3) of the Senior Courts Act 1981, or under the inherent jurisdiction of the court that the Case Stated be amended or remitted to the justices with a direction that they amend the Case Stated.
It is submitted that the Case Stated contained two particularly significant or key defects. First, it included a statement of evidence contrary to Part 64.3(4)(d)(ii) of the Criminal Procedure Rules, the importance of which was stressed in Tuthill v DPP [2011] EWHC 3760 (Admin) by Sir John Thomas (the then President of the Queen's Bench Division) at paragraph 17 to 20 and especially in a postscript to the judgment with which Wyn Williams J had agreed.
Secondly, it is submitted that the Case Stated contains a number of matters that never arose at the hearing before no part of the findings or reasons for the decision. The Magistrates' Court, as I have already noted, made observations in the Case Stated about Mrs Marshall as a witness and amplified it reasons in the manner that I have indicated.
I can deal relatively briefly with the application to amend. Part 64.5(3) of the CPR states that unless one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the Magistrates' Court could come to its decision the case shall not contain a statement of evidence.
The third question appears to me to be a...
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