Nembhard v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,MR JUSTICE SIMON |
| Judgment Date | 21 January 2009 |
| Neutral Citation | [2009] EWHC 194 (Admin) |
| Docket Number | CO/7891/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 January 2009 |
[2009] EWHC 194 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Maurice Kay
Mr Justice Simon
CO/7891/2007
Mr Raza Husain (instructed by Birnberg Peirce) appeared on behalf of the Claimant
Miss Bozzie Sheffi (instructed by CPS, Bedfordshire) appeared on behalf of the Defendant
: The appellant, William Nembhard, stands convicted in the Magistrates' Court, sitting at Luton, of two offences: in short, that on 25 June 2006, being a person driving a specified motor vehicle, having been required to produce first his driving licence and secondly his certificate of insurance, he failed to produce those documents for examination by the police constable in question.
The case was heard by a District Judge. In the case stated, the District Judge sets out these findings of fact:
(a) PC Glendenning knew of the appellant and had been present previously when the appellant had been stopped by the police. He had not been the lead officer in any of these stops.
(b) The appellant was on this occasion driving a different motor car from that which he had been driving when previously stopped.
(c) On 24 June 2006 PC Glendenning had been called to the home of the appellant's wife. This was at her request. She did not share the appellant's name and the officer was unaware of the relationship between the caller and the appellant.
(d) When the officer attended the property, [the appellant's wife] was not present but [he] was. The appellant answered the door to PC Glendenning and slammed it in his face. PC Glendenning again rang the doorbell, explained that he had called to see [the appellant's] wife and the appellant told him that she was not present, that the officer should talk to her and again slammed the door in his face.
(e) On 25 June 2006, PC Glendenning saw the appellant driving a vehicle that he did not recognise. He noticed that the defendant was not wearing a seat belt. He conducted a PNC check which showed the car to be registered to a car hire company in Birmingham. He drove past the car that the appellant had been driving. As he did this the appellant left the car. PC Glendenning turned around in his vehicle and returned to the appellant's vehicle as he came back.
(f) As the officer was unable to verify the details given to him by the appellant as the computer system was not working, he asked the appellant to produce his documents, and when the appellant refused, issued him with a Form HORT I. The appellant said he would not produce any documents. The officer returned to his vehicle and the appellant put the HORT I under the windscreen wiper of the police vehicle.
(g) The appellant did not produce his documents to Luton Police Station.
(h) The appellant's wife's vehicle had been stopped 57 times in the previous 12 months, and on 55 occasions the appellant had been the driver.
(i) The appellant had a valid driving licence and was insured to drive the car in question on 25 June 2006.
At the end of the defence case, but not before then, the solicitor then representing the appellant put forward arguments as to why the appellant should be acquitted. These were:
(1) There had been a campaign of harassment evidenced by the 55 previous occasions.
(2) The request for the documents was made not for the purpose for which the officer was empowered by statute to make such a request, but for the collateral and improper purpose of pursuing the campaign of harassment.
(3) In those circumstances the appellant had a defence because he had not been lawfully required to produce the documents.
(4) In any event, the prosecution was an abuse of process.
At a later stage of the case stated, the District Judge summarises his approach to those submissions. In paragraph 7 he states:
“i. Section 164 of the Road Traffic Act 1988 imposed a duty upon the driver to produce his driving licence when required to by a constable. It was for the appellant to determine whether the constable required the licence to enable him to ascertain the information contained in section 164(1)(d).
ii. Section 165 of the Act imposed a duty upon a driver to produce evidence of insurance and a test certificate if the vehicle required one, when required to do so by a constable. That requirement was in no way qualified by the words of the section. There was therefore an absolute duty on the appellant to produce the evidence of insurance.
…
iv. Following the judgment in the House of Lords in R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42, my jurisdiction was to protect the court's process from abuse limited to matters directly affecting the fairness of the trial of the appellant and did not extend to the maintenance of the [rule] of law, overseeing executive action and disciplining those undertaking such action, a duty vested in the High Court alone.
v. I was satisfied on the balance of probabilities that the appellant had been stopped 55 times by the police in the previous year while driving his wife's motor vehicle. He declined to act as required by the police officer. Process was initiated expeditiously. The appellant was represented and was able to put forward his defence. Over an above the number of times that the appellant was stopped by the police, there was no evidence adduced on his behalf to show that the prosecution was instituted oppressively or unfairly. He had made no formal complaint regarding his alleged treatment by the police.
vi. I found no basis in which to stay the proceedings as an abuse.”
The District Judge then posed three questions for the opinion of this court. The first relates to the offence prescribed by section 164. By section 164(1), a person driving a motor car on a road “must, on being so required by a constable … produce his licence … for examination, so as to enable the constable … to ascertain the name and address of the holder of the licence, the date of issue, and the authority by which [it was] issued.”
The question posed by the District Judge so far as that section is concerned is in these terms:
“Whether section 164 of the Road Traffic Act 1988 imposes an absolute duty on a person driving a motor vehicle to produce his driving licence to a constable.”
As to that, there is a simple answer—indeed, it is common ground. An officer can only require a driver to produce his licence if the requirement is for the purpose specified in section 164(1), namely “so as to enable the constable to ascertain the name and address of the holder of the licence, the date of issue, and the authority by which it was issued”. Accordingly, if the officer requires production not in order to ascertain those matters, for example because he is already aware of them, but in order to discomfort, inconvenience and harass the driver, the...
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