DPP v Wilson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,Mr Justice Sullivan,MR JUSTICE SULLIVAN |
| Judgment Date | 07 March 2001 |
| Neutral Citation | [2001] EWHC 198 (Admin) |
| Docket Number | CO/399/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 March 2001 |
[2001] EWHC 198 (Admin)
IN THE HIGH COURT OF JUSTICE
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose and
Mr Justice Sullivan
CO/399/2001
MR D PERRY (instructed by THE TREASURY SOLICITORS, LONDON) appeared on behalf of the Claimants.
MR P HEAD (instructed by NELSONS SOLICITORS, PENNINE HSE, NOTTINGHAM, NG1 7BQ) appeared on behalf of the Respondents.
1. Mr Justice Sullivan will give the first judgment.
2.
Factual Background:
3. This is an appeal by the prosecution by way of case stated from a decision of District Judge Meredith sitting at the Grantham Magistrates Court on 14th December 2000. The facts are set out in the case as follows:
“On the 14 December 2000 Warren Stuart Wilson appeared before me in the Grantham Magistrates Court to answer a summons alleging that on the 15 May 2000 he had driven a motor vehicle on the A52 westbound at Barrowby in excess of the speed limit of 40 m.p.h. He pleaded Not Guilty.
2. No oral evidence was adduced before me but the following evidence was agreed under the provisions of section 10 Criminal Justice Act 1967.
(a) A Scania articulated heavy goods vehicle registration number P768 ADO was the subject of a Gatsometer series of photographs regarding a speed of 58 m.p.h. at the A52 westbound, Barrowby on 15 May 2000 at 04.38 hours.
(b) A notice dated 23 May 2000 was served on the registered keeper under section 172 Road Traffic Act 1988 requiring him to state who the driver of the above vehicle was on that occasion.
(c) The registered keeper responded by naming David Andrew Haulage of Bicker Bar, Boston, Lincolnshire as the hirer of the vehicle on that occasion.
(d) A notice was served on David Andrew Haulage of the above address dated 2 June 2000 under section 172 Road Traffic Act 1988 requiring him to state who the driver was on that occasion.
(e) The Managing Director of the Company responded by naming the Defendant as the driver on that occasion. (It was expressly accepted by both parties that this formal admission was made to prove the fact that a response had been made by the defendant's employer and the fact of what he said in that response. However, it was expressly not admitted to prove that the content of the employer's response was true as this would offend the rule against hearsay. It was further accepted by both parties that it was open to the prosecution to cure that by calling the managing director to give live evidence. However, the Managing Director had not been asked to attend Court even though the Prosecution had known since about 21 November that the Defence intended to challenge the admissability of the response of the Defendant referred to below).
(f) A notice dated 12 June 2000 was served on the Defendant under section 172 Road Traffic Act 1988 requiring him to state who was the driver of the vehicle on that occasion.
(g) The Defendant responded in accordance with the provisions of the section.”
4. Although not set out in the case, there is no dispute that the defendant's response contained an admission that he had been driving the vehicle at the relevant time.
5. The judge then identified the sole issue as follows:
“Whether the response of the Defendant should be admitted in evidence. It was common ground that to admit it would be likely to lead to a conviction.”
6. Having summarised the rival submissions, and referred to the relevant legislation and to a number of authorities, including Procurator Fiscal and HM Advocate General for Scotland v Brown, a decision of the Privy Council on 5th December 2000, (unreported), the judge set out his opinion as follows:
(1) The reply made by the defendant was not obtained by oppression or in circumstances which might render it unreliable and there were no grounds to exclude it under section 76 Police and Criminal Evidence Act 1984.
(2) By the time the notice was sent to the Defendant he had become a suspect and the process had reached an investigative, rather than a purely administrative stage. The section 172 notice should therefore have contained some form of caution to the effect that any reply might be used in evidence. Lack of such caution was not, of itself, fatal but was a factor to take into account in determining the position under section 78 Police and Criminal Evidence Act 1984.
(3) The issue of fairness raised by section 78 Police and Criminal Evidence Act 1984 means fairness to both sides. It was therefore necessary to consider the consequences to each side of admitting or excluding the evidence.
(a) The evidence would be potentially conclusive against the Defendant, if the Prosecution were allowed to adduce it.
(b) By contrast it would not be fatal for the Prosecution to exclude it, given that it was open to them to call the Defendant's employer to establish, at the very least, a prima facie case against the Defendant.
(c) Weighing these factors in the balances I came to the conclusion that I should decline to admit the evidence.
(d) In coming to this decision I did not attach any weight to the absence of a caution in the section 172 notice sent to the Defendant.
(e) Having reached the decision I did, I did not consider it necessary to determine whether Article 6 of the European Convention on Human Rights required the reply to be excluded.”
7. The judge posed the following question for the opinion of this court:
“Was I entitled, on the particular facts of this case, to exclude evidence of an admission made by the Defendant, such admission being contained in a written form sent to the Defendant requiring him to give information as to the identity of the driver of a vehicle in accordance with Section 172 Road Traffic Act 1988?”
8. On behalf of the Director of Public Prosecutions Mr Perry submits that the answer to that question is “No”.
The Statutory Framework:
9. The relevant statutory framework is as follows: section 172 of the Road Traffic Act 1988 deals with the duty to give information as to identity of a driver etc. in certain circumstances. Subsection (1) sets out the offences to which the section applies. They include the more serious driving offences and exclude offences of a less serious and more regulatory nature. Subsection (2) provides:
“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.”
10. None of the following provisions were relevant for the purpose of the present case. A person guilty of an offence under subsection (3) can be disqualified or have his licence endorsed with three penalty points. He may also be fined up to level 3 on the standard scale; that is to say a fine of £1,000. By subsection (7):
“(7) A requirement under subsection (2) may be made by written notice served by post…”
11. Section 12(1) of the Road Traffic Offenders Act 1988 deals with proof, in summary proceedings, of the identity of the driver of a vehicle, and provides as follows:
“(1) Where on the summary trial in England and Wales of an information for an offence to which this subsection applies—[which includes the defendant's speeding offence]
(a) it is proved to the satisfaction of the court, on oath or in manner prescribed by rules made under section 144 of the Magistrates' Court Act 1980, that a requirement under section 172(2) of the Road Traffic Act 1988 to give information as to the identity of the driver of a particular vehicle on the particular occasion to which the information relates has been served on the accused by post, and
(b) a statement in writing is produced to the court purporting to be signed by the accused that the accused was the driver of that vehicle on that occasion, the court may accept that statement as evidence that the accused was the driver of that vehicle on that occasion.”
12. Turning to the Police and Criminal Evidence Act 1984, section 76 provides:
“(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained-
(a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”
13. By section 78(1):
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an...
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Subject Index
...v P [1991] 2 AC 447, HL ... 90, 96, 174DPP v S [2002] All ER (D) 200(December) .................................... 104DPP v Wilson [2001] EWHC Admin 198(2001) 165 JP 715 ............................. 39Daubert v Merrell DowPharmaceuticals, 509 US 579 (1993)....... 173, 176, 178, 179, 180, ......