R (on the application of Flegg) v Southampton and New Forest Justices

On 14 April 2005 the claimant, Mr Flegg, was convicted by the Justices of the Peace for the New Forest Local Justice Area of an offence under section 172(3) of the Road Traffic Act 1988. A motorcycle registered to him had been caught on a speed camera. He had received a notice under section 172(2) requiring him to give information about the driver, and the case against him was that he had failed to comply with that notice. He took issue with his conviction and asked the justices to state a case. But they refused to do so on the ground that the application was frivolous. By these judicial review proceedings, the claimant seeks an order requiring the justices to state a case.

Permission to apply was granted by the Divisional Court, but did not lead, as would often be expected, to the justices deciding to state a case. They have stuck to their guns and they are supported by the CPS, which appears as an interested party to resist the claimant's case.

Section 172 of the 1988 Act provides, so far as material:

"(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 sub-section (2) above shall be guilty of an offence.

(4) A person shall not be guilty of an offence by virtue of paragraph (a) of sub-section (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 …

(7) A requirement under sub-section (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 date 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 the period or that it has not been reasonably practicable for him to give it."

On 18 June 2004 the claimant was served with a notice of intended prosecution for the alleged offence of exceeding a 30mph speed limit at 15.58 hours on 10 June 2004 at the A337, Gosport Lane, Lyndhurst, Hampshire. The notice was served on behalf of the Chief Constable of the Hampshire Constabulary. It stated:

"You have been identified as being the owner, keeper, hirer or driver of the vehicle at the time of the alleged offence, or a person who has information that may lead to the identification of the driver. You are therefore required to provide the full name and address identifying the actual driver or give any information in your power which will lead to the driver's identification.

The allegation is supported by video &/or photograph evidence.

Under section 172 of the Road Traffic Act 1988 you are required to supply the information within 28 days of service of this notice. The penalty for failure to supply information is similar to that for the alleged offence —a fine plus a driving licence endorsement.

Please reply by correctly completing the enclosed form and sending it to the central ticket office at the address given above."

The enclosed form had an initial section which was to be completed in all cases. It then had a "PART 1", which was to be completed if the person was the driver at the time of the alleged offence. There followed "PART 2", which was to be completed if the person was not the driver at the time of the alleged offence and was not a hire company. The text of Part 2 states:

"I was not the driver of the vehicle at the time of the alleged offence. The driver was …"

And there follows a series of boxes giving name and address and other details of the driver.

The bottom right-hand side of Part 2 states:

"If unable to provide driver details please state reason overleaf."

The bottom of the form contains a warning that failure to provide information to identify the driver could result in prosecution.

The claimant returned the form with a covering letter dated 12 July 2004. On the form he had completed only the top section, the section to be completed "in all cases", giving his own name and personal details. The covering letter stated:

"I have not completed Part 1 or Part 2 of the enclosed form as, on the day of the alleged offence, more than one person used the vehicle.

I would be grateful if you could send me a copy of the video and/or photograph evidence. This might enable me to provide yourselves with the required information."

On 16 July the claimant was sent the photographic evidence requested. By letter of 23 July he was informed that the failure to identify the driver had made him liable for an offence under section 172, and he was advised to respond immediately by identifying the driver at the time of the incident. That produced a further letter from him dated 28 July in which he stated:

"With reference to the alleged offence, myself and a friend, who has access to, and use of, my motorcycle, have studied the supplied photograph of the alleged offence. Unfortunately neither of us can recall travelling in that area on the day in question or are able to distinguish if either of us might have been the rider of the motorcycle in question.

While I would concede that the motorcycle in question is of an outwardly similar model, make and colour to my motorcycle, there are no outwardly distinguishing features to indicate that it is my motorcycle."

It will be noted that at this point he was questioning whether the motorcycle shown in the photograph was indeed his, although that is a point not subsequently pursued.

By letter of 18 August he was further reminded of the consequences of failing to supply the information required by a section 172 notice. His response, in a letter dated 1 September 2004, was to say:

"Further to your letter dated 18/08/04, as a private citizen I do not keep records of who was riding my motorcycle, and my friend, Dr AJ Sepp has access to and the use of my motorcycle. As stated in my previous correspondence neither of us can recall who might have been using the motorcycle on the day or the area of the alleged offence."

A summons dated 10 January 2005 charged the claimant with having failed to give such information as to the identity of the rider as he was required to give by or on behalf of the Chief Officer of Police for Hampshire. At the hearing before the justices, the claimant himself gave evidence and was cross-examined. We have seen the magistrates' clerk's note of that evidence. The justices made certain findings of fact to which I will come in a moment.

In addition to the claimant's own evidence, he relied on a witness statement from Dr Sepp, which was read to the court since Dr Sepp was at that time living abroad. Dr Sepp's evidence was to the effect that he had used the claimant's motorcycle during the period in question, but could not remember the specific dates and could not remember if he had been in the area of the alleged offence. He was unable to identify the rider in the photograph. He and the claimant owned similar clothing and helmets which further prevented clear identification of the driver.

The question that the claimant asked the justices to state for the opinion of the High Court was in these terms (the references being to section 172 of the 1988 Act):

"Can a defendant who establishes the defence under sub-section (4) [Road Traffic Act 1988] be deprived of the benefit of that defence if he fails to provide the information requested under sub-section (2)(a) [Road Traffic Act 1988] within the 28-day period set out in sub-section (7)(a) [Road Traffic Act 1988]?"

The claimant's arguments have in fact moved on since that question was formulated. But I should indicate, first, why the justices refused to state a case on the basis, requested since the information provided by the justices is material also to the case as it has developed.

In their certificate of refusal, the justices state:

"The applicant contends that we failed to take proper or any account of the defence available under sub-section (4). He quotes the two findings of fact announced by the justices:

1. The defendant was a credible witness.

2. The defendant had failed to provide information requested by or on behalf of a chief officer of police within a period of 28 days.

We accepted the evidence of the applicant and found the following facts:

• The applicant asserted that there were two people who could have used the motorcycle on the day in question, himself and Dr Sepp and that he knew this within the 28 day deadline.

• He was aware of the 28-day deadline for providing information.

• He did not believe that he had been the rider of the motorcycle on that day.

• He asserted that he would not give Dr Sepp's name...