Lord Howard of Lympne v Director of Public Prosecutions

Introduction

This is an appeal by way of case stated by District Judge (Magistrates' Court) Barbara Barnes dated 22nd August 2017. The relevant facts were that a car was recorded as travelling at 37 miles an hour on a road with a 30 miles an hour speed limit shortly before 1.00 pm on 24th January 2016 on a road in Lewisham, SE13. The registered keeper of the car was the appellant, Lord Howard.

On 1st February, a letter was sent by the Metropolitan Police (Camera Processing Unit) to the appellant at his home address seeking information as to the identity of the driver within a stipulated period of 28 days. The letter enclosed a form whose contents we will return to shortly. The letter itself contained the following words:

“In accordance with Section 172 of the Road Traffic Act 1988, I hereby require you to furnish within 28 days of the service of this form, the name and address of the driver on the date and at the time specified above or to provide any other information which may lead to the identification of the driver.

…

Failure to respond to this form in writing will render you liable to prosecution.”

On 29th February, a reminder was sent. This too enclosed a form; and this was filled in by the appellant. The form was intended to elicit information as to the identity of the driver.

Section 172 of the Road Traffic Act 1988 is in the following terms:

“(1) This section applies—

…

(c) to any offence against any other enactment relating to the use of vehicles on roads …”

We add that speeding is an offence covered by s.172(1)(c).

The section continues:

“(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 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 the 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.”

Subsection 172 further provides, so far as is material:

“(7) A requirement under subsection (2) may be made by a written notice served by post; and where it is so made—

(a) it shall have effect as a requirement to give information within the period of 28 days beginning with the day on which the notice is served …”

The form that accompanied the letter was a standard form which required the recipient “to complete and sign one of the three parts below in block capitals” and return the form.

The three parts were: Part 1, “I am a person to whom this form is addressed and was the driver”; Part 2, “If you were NOT the driver at the time of the alleged offence, please enter the driver's details and complete this part only”; and Part 3, “If you were not the keeper or the owner of the vehicle at the time of the alleged offence, please enter the keeper or owner details and complete this section.”

Part 1 contained the following additional words, “I was the driver at the time shown overleaf. I confirm the following details.” Beneath these words were boxes to be filled in in block capitals so that they could be read by a computer. Among these are “title”, “surname”, “forename”, “address”, “telephone number”, “driving licence number” and “date of birth”.

The appellant filled in Part 1, apart from the driver licence number, but struck through the words, “I was the driver at the time shown overleaf”, adding in manuscript, “The driver was my wife or myself. We don't know which.” He signed and dated the form on 3rd March 2017 and returned it.

Section 12(1) of the Road Traffic Offenders Act 1988 :

“(1) Where …

(a) it is proved to the satisfaction of the court, … 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.”

It follows that if someone in receipt of a notice returns it but without signing it, he may be prosecuted under s.172(3) for contravening s.172(2), see for example Francis v Director of Public Prosecutions [2004] EWHC 591 (Admin) at [7]. That was not the situation in the present case. The form was signed by the appellant. He did not fill in part 2 which contained the additional words, “I was not the driver of the vehicle at the time shown overleaf. The driver/hirer was:”

The appellant was prosecuted for the offence of failing to give information relating to the identification of the driver of the vehicle when required contrary to s.172(3) of the Road Traffic Act and sch.2 of the Road Traffic Offenders Act 1988. The charge was that on 4th March, presumably the date the form was received, the appellant failed to give information relating to the identification of the driver of the vehicle who was alleged to be guilty of the offence.

On 30th November 2016, the District Judge found that the appellant had committed an offence under s.172(3). She noted the prosecution evidence was not in dispute. At [3] of the case stated she found as follows:

“3. The prosecution evidence was not in dispute. I found that the appellant was the registered keeper/owner of the vehicle and that the Notice of Prosecution and the Reminder Letter had been promptly served on him. I found that he had completed the form at part 1 as being the person to whom the Form was addressed and he gave the required details of his own name, address and date of birth. I found that although he made mention of his wife being a possible driver, at no time did he provide her contact details such as her full name and address and Part 2 of the form which allowed the details of other drivers to be noted was blank. I found that the defendant and his witness were credible witnesses and they could not remember who was driving the car at the relevant time. I made no finding on whether reasonable diligence had been used to identify the driver.

4. The appellant contended that he had made out a defence under section 172(4) of the Road Traffic Act 1998 in that he did not know, and could not with reasonable diligence have ascertained, who the driver was. He said that neither he nor his wife could remember who was driving the car at the time of the offence and they had done their best to remember.

5. The prosecution contended that the relevant form as required under section 172 of the Road Traffic Act 1988 had been returned by the appellant, but it was not properly completed as it lacked the information as to the identity of the driver as was required and which may have led to the identification of the driver as he only made reference to his wife without giving details of her full name and address. They also contended that the appellant had not made sufficient efforts or used reasonable diligence to ascertain who the driver of the vehicle was at the relevant time.”

The District Judge referred to two cases: Flegg v Justices of the Peace for the New Forest Local Justice Area [2006] EWHC 396 (Admin) and Marshall v Crown Prosecution Service [2015] EWHC 2333 (Admin). At para.8, (there is no para.7), the District Judge found that the appellant had failed to comply with s.172(2) of the 1988 Act:

“… because he had failed to 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. In this case, although he had made reference to his wife, at no time did he give the required information of the name and address of that individual, details which he could have given in Part 2 of the form. I found that it was not the duty of the Metropolitan Police to make a specific request of the defendant for those details over and above the requirement included in Part 2 of the form.

9. I found that in light of the failure to give this information the test of reasonable diligence did not fall to be considered because the initial requirement...