Louis Hardy Charlebois v Director of Public Prosecutions

MR JUSTICE HOOPER: This is an appeal by way of case stated from a decision made by Mr Recorder Lafferty and two lay justices sitting in the Crown Court at Blackfriars.

On two occasions a motor vehicle with a particular registration mark was detected by automatic cameras to be exceeding the speed limit. On another occasion a vehicle carrying the same registration mark was detected by an automatic camera failing to stop at a red light. The appellant accepts that he was the owner/keeper of the vehicle on all three occasions. He was required, pursuant to section 172(2) of the Road Traffic Act 1988, to provide details of the driver on each occasion. There was no issue before the Crown Court that the appellant had received the appropriate notices and that he had refused to provide the information.

He submitted to the Crown Court that he had no case to answer because section 172(2) of the Act was an infringement of his human rights as guaranteed by article 6 of the Convention in that it required him to supply information identifying the driver. That submission was not accepted by the court. The case for consideration by this court is whether or not the Crown Court erred in law in ruling that the appellant had a case to answer in these circumstances.

Section 172 provides as follows:

Section 12(1) of the Road Traffic Offenders Act 1988 provides that a statement produced by a person pursuant to section 172(2) stating that he was the driver may be accepted by the court as evidence that the person was the driver of the vehicle on that occasion.

It is submitted by the appellant that the creation of the offence under subsection (3), in so far as the offences of speeding and going though a red light are concerned, is a disproportionate response to the problem of maintaining road safety. He submits that the proper way to approach these kind of cases is to proceed against the keeper.

Proceeding against the keeper would cause considerable practical difficulties if it was intended to endorse the keeper's licence or disqualify the keeper from driving. In any event that particular argument has been considered by the Right Honourable Ian Kirkwood in Brown v Stott [2001] 2 WLR 817, at page 863 (Privy Council). On behalf of the respondent, it is submitted that there is no merit in this appeal because of the decision in that case and the decision of the Divisional Court (Rose LJ and Sullivan J) in Director of Public Prosecutions v Wilson [2002] RTR 37.

I turn to Brown v Stott. The defendant in that case was suspected by the police of having driven with excess alcohol in her blood. At the police station she was required to say who had been driving the car when it had arrived at a store. That requirement was made pursuant to section 172(2)(a). She admitted that she was the driver. She was then required to provide a specimen of breath for analysis. The test was positive. She was charged with driving while her breath alcohol level was above the prescribed limit. She gave notice that she intended to raise a devolution issue: namely, whether it would be compatible with her right to a fair hearing under article 6.1 for the Procurator Fiscal to rely at her trial on the defendant's admission, compulsorily obtained under section 172(2)(a), that she was the driver.

The High Court of Judiciary allowed the defendant's appeal and declared that the Procurator Fiscal had no power to lead and rely on the admission which the defendant had been compelled to make. The Privy Council allowed the appeal, holding that the section, properly applied, did not represent a disproportionate legislative response to the problem of maintaining road safety. Mr Charlebois does not seek to argue that that case was wrongly decided. He seeks to argue that the use of this section for such offences as speeding and going through a red light is not a proportionate legislative response to the problem of maintaining road safety. He points out that the three alleged offences involved no criminal intent, no personal injury, no property damage and no negligence.

The list of cases to which section 172(2) applies can be found set out in subsection (1). It is a long list, and it includes a large number of offences, including, for example, manslaughter by the driver of a motor vehicle. Amongst the offences to which it does not apply are such offences as those involved with unlawful parking.

The respondent also relies upon the Wilson case. In that case a heavy goods vehicle was recorded by a camera as having been driven in excess of the speed limit. A notice was sent pursuant to section 172(2)(a) to the registered keeper. The registered keeper identified a haulage firm as the hirer of the vehicle. The police then invoked the provisions of section 172(2)(b) to find out who the driver was. The haulage firm identified the defendant as the driver. A notice was then sent to the defendant under that subparagraph and he confirmed that he was the driver. At the trial the district judge upheld an objection by the defence that the use in evidence of the defendant's response to the section 172(2)(b) notice was unfair under section 78 of the Police and Criminal Evidence Act 1984. The prosecutor's appeal was allowed by the Divisional Court. The court held that there was no relevant distinction between the two subparagraphs and referred to the conclusion in Brown v Stott.

In my judgment I am bound by the decision in the Wilson case. I would in any event have reached the same conclusion, namely that the use of sections 172(2)(a) and (b) for alleged offences of speeding and going through a red light is a proportionate legislative response to the problem of maintaining road safety. Offences of speeding and going through a red light not only lead to the endorsement of a licence and the award of penalty points, but may, in certain circumstances, lead to a driver being disqualified from driving.

The thrust of the appellant's case is that these are not serious offences. They are only of a regulatory nature, and therefore the decision in Brown v Stott does not apply. I cannot agree with those submissions, and this appeal fails. Thank you.

MR PENNY: May I raise the question of costs? There is an application for the sum of £300.

MR JUSTICE HOOPER: £300? I do not object to that. It sounds rather reasonable, I think.

MR CHARLEBOIS: It seems reasonable. May I ask for leave to appeal?

MR JUSTICE HOOPER: First of all I will deal with the costs. Yes, is the answer to the costs. There is no power for me to give leave to appeal. It has to go to the House of Lords. It does not go to me. If you want to seek permission to appeal, it is to the House of Lords you have to go.

MR CHARLEBOIS: Thank you.