Francis v Director Of Public Prosecutions

On 16^th March 2004, at the conclusion of oral argument, we dismissed this appeal with costs. We now give our reasons for that decision.

The appeal is by way of case stated from a decision of justices sitting at Aldershot Magistrates’ Court who on 20^th October 2003 convicted the appellant of failing to provide information as to the identity of the driver of a motor vehicle alleged to have been guilty of exceeding the speed limit, contrary to section 172(3) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

On 11^th March 2003, on the A325 in Hampshire, a Jaguar motor car of which the appellant was the registered keeper was recorded by a camera travelling at 41 mph where the speed limit was 30 mph.

On 19^th March 2003 notice of intended prosecution was sent to the appellant together with the form used by Hampshire Constabulary to ascertain the identity of the driver. The form is in four parts, preceded by a general section to be completed in all cases. In that section the recipient is required to give his full name, date of birth and address, and Part 1 then continues in bold -

“If you were the driver at the time of the alleged offence complete this section only.”

It then continues -

“I was the driver of the vehicle specified on the attached form at the time of the alleged offence”.

Below that there are spaces for the driver number shown on a driving licence, a signature and the date. The remaining three parts of the form apply to different situations which may arise when the registered keeper was not the driver at the relevant time. Each part includes a space for a signature, and the form ends with this warning -

“Failure to provide information to identify the driver could result in prosecution with a maximum penalty of £1000, endorsement of driving licence and/or disqualification from driving. This document may be produced in court as evidence to identify the owner or driver of the vehicle. Falsehood can result in criminal proceedings.”

There is a similar warning on the attached notice of intended prosecution. It reads -

“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 penalty point 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 form was returned with the general section completed giving the appellant’s particulars, and his driver number and the date, but no signature was inserted in Part 1.

On 2^nd May 2003 the officer in charge of the Central Ticket Office wrote to the appellant drawing his attention to the absence of a signature. Part of that letter reads -

“This form must be signed by you in order to preclude the matter being referred to the Magistrates’ Court for both the primary offence and failing to provide driver identification details. The outcome of such a prosecution may well result in a court imposing a substantial fine, penalty points and considering a disqualification.”

There was a reply by fax, apparently from the appellant, stating that after receiving legal advice he had “ensured that the NIP was completed to the extent required by the RTA”.

Section 172 of the Road Traffic Act 1988, so far as material, reads as follows-

“(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, ..

(3).. a person who fails to comply with the requirement under subsection (2) above shall be guilty of an offence.”

It is apparent from section 172(1)(c), and it is common ground, that subsections (2) and (3) do apply to the speeding offence of which the driver of the Jaguar was alleged to be guilty. Subsection (7) of the same section, so far as material reads-

“A requirement under subsection (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 day on which the notice is served …”

I turn now to section 12(1) of the Road Traffic Offenders Act 1988, which, so far as material, reads -

“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.”

So, if the appellant had signed Part 1 of the form sent to him and thus authenticated the statement that he was the driver, the court, when considering the allegation of speeding, could have accepted that statement as evidence that the appellant was the driver. As he chose not to sign the form he was prosecuted under section 172(3) for contravening section 172(2).

I need not rehearse the submissions made in the Magistrates’ Court because they foreshadowed the submissions addressed to us. It is sufficient to say that the magistrates were of the opinion that section 172(2) empowers a chief officer of police or his representative to determine what reasonable information should be provided by the keeper of the vehicle, and that in this case it was reasonable to require a signature. They therefore convicted the appellant of the offence contrary to section 172(3) and imposed a fine and an order for costs. They posed this question for our consideration -

“Were we correct in finding that the appellant was guilty of an offence of failing to give such information as to the identity of a driver of a vehicle as was required by the chief officer of police contrary to section 172(3) of the Road Traffic Act 1988 upon finding as a fact that he failed to sign his reply to a notice lawfully served on him pursuant to section 172(7) of that Act.”

Mr Laprell for the appellant submits that the question should be answered in the negative. His basic submission is that section 172 imposes on the keeper of a motor vehicle an obligation to give certain information. The obligation is backed by a criminal sanction, and therefore it should be restrictively construed. The demand for information can be made in writing pursuant to subsection (7) but the section is silent as to how the keeper of the vehicle must respond to the demand, and certainly there is no express requirement that he should sign anything. Mr Laprell concedes that Parliament must have intended that section 172 of the Road Traffic Act and section 12 of the Road Traffic Offenders Act should work in harness, but he submits that there was a drafting error which has left a lacuna which cannot be filled by purposive construction. It needs to be filled by primary legislation, as has apparently happened in the Republic of Ireland, although the statutory provisions are not entirely comparable.

Mr Laprell further submits that because there were grounds to suspect the keeper of the Jaguar of an offence, in order to comply with paragraph 10.1 of the Code of Practice for the detention, treatment and questioning of persons by police officers - Code C - issued by the Secretary of State pursuant to the Police and Criminal Evidence Act 1984, the written request for information which was sent to the appellant should have incorporated a caution, following the practice now adopted by two police forces, namely Cambridgeshire and Essex, even though there is an obvious tension between -

(1)

a demand for information which must be provided in order to avoid a criminal offence, and -

(2)

advice that nothing need be said.

The relevant paragraphs of the Code read as follows -

“C: 10.1 A person whom there are grounds to suspect of an offence … must be cautioned before any questions about an offence … are put to them if .. the suspect’s answers or silence … may be given in evidence to a court in a prosecution. A person need not be cautioned if questions are for other necessary purposes, e.g.

(a)

solely to establish their identity or ownership of any vehicle;

(b)

to obtain information in accordance with any relevant statutory requirement, see paragraph 10.9;

10.9

when, despite being cautioned, a person fails to co-operate or to answer particular questions which may affect their immediate treatment, the person should be informed of any relevant consequences and that those consequences are not affected by the caution. Examples are when a person’s refusal to provide:

•

Their name and address when charged may make them liable to detention;

•

Particulars and information in accordance with a statutory requirement, eg under the Road Traffic Act 1988, may amount to an offence or may make the person liable to a further arrest.”

Mr Laprell also indicated that he wished to keep open for consideration elsewhere the submission that as a result of the implementation of the European Convention on Human Rights a person in the position of this appellant is entitled not to incriminate himself. Mr Laprell recognised that having regard to the decision of the Privy Council in Brown v Stott [2003] 1 AC 681, and to the decision of this court in Hayes v DPP [2004] EWHC 277 (Admin) the submission has no prospect of success here, so he did not seek to develop it.

As to Mr Laprell’s principal submission, there are four decisions which are of some assistance. In Boss v Measures [1990] RTR 26 this court was considering the provisions of section 112 of the Road Traffic Regulation Act 1984, which imposed on the keeper of a vehicle an obligation to disclose the identity of the driver of a vehicle which had apparently been improperly parked. The request for information was made in writing, as permitted by the statute, and the justices found that the keeper might have provided the requested information by telephone to an unidentifiable employee of the local authority on an unknown date, but they found that as he had been requested to give the information in writing he was obliged to do so. This court agreed. The lacuna argument seems to have been extensively deployed, but Woolf LJ said at 31F -

“In my view as the section is silent as to what information can be included in the requirement, whether the requirement be oral or in writing, what Parliament intends is that there should be a power in the requesting authority - whether it be the police or the local authority - to include in the requirement reasonable instructions as to the manner in which the information requested is to be provided. There could therefore, and indeed in my view should, be included in the request the information as to whom it is to be provided, where it is to be provided, when it is to be provided and by what means it is to be provided. As long as the request is a reasonable request, then it is a lawful one.”

Mr Laprell sought to distinguish that decision on the basis that we are not here concerned with the manner in which information is provided but the actual information itself, and the chief officer of police has no statutory right to require a signature.

The next decision to which I must refer is DPP v Broomfield [2002] EWHC 1962 (Admin), a decision which featured in the magistrates’ reasons in this case. The background facts were the same as those in the present case. The respondent was the registered keeper of a vehicle which had been caught by a camera travelling at an excessive speed. When he received the form which required him to identify the driver he telephoned the Camera Processing Unit of the relevant police force, but he did not reply in writing. The Crown Court found that it was implicit in the telephone conversation that he was the driver, therefore he had complied with his obligations under section 172(2)(a). The prosecution then appealed by way of case stated, and Judge Wilkie QC, sitting as a deputy High Court Judge, referred to Boss v Measures and to section 12 of the Road Traffic Offenders Act 1988 before concluding thus -

“24.

Thus the requirement in the Notice of Intended Prosecution that the information should be given in written form and signed by the accused is not merely a whim of those who produced the form, but is specifically directed at enabling that document to be accepted as evidence that the accused was the driver of the vehicle on that occasion.

25.

In my judgment, therefore, the Crown Court at Bristol were wrong to find that the provision of information orally was sufficient to meet the requirements of section 172 of the Road Traffic Act 1988, and they were therefore wrong to allow the appeal in those circumstances.”

Mr Laprell submits that in Broomfield it was not necessary to decide whether the written response needed to be signed, and therefore what was said in paragraph 24 as to the need for a signature was obiter. He also points out that the respondent was not represented when the appeal was heard, but the approach adopted by the court on that occasion is plainly of some assistance.

The third authority is Mawdesley and Yorke v Chief Constable of Cheshire [2003] EWHC 1586 (Admin). Both appellants had been convicted in different magistrates’ courts for exceeding the speed limit. When Mawdesley was identified by the registered keeper as the driver of the vehicle which had been recorded on camera he was sent notice of intended prosecution and returned the section 172 form with his name, address and date of birth inserted on it in his hand writing, but with no signature or date. Yorke was the registered keeper of a vehicle the speed of which had been recorded by laser. He provided only his name, address and date of birth in block capitals. In the Crown Court he contended unsuccessfully that the unsigned form was inadmissible, and his agent gave evidence that he had completed the form without Yorke’s authority. The court accepted that the agent had completed the form, but was satisfied that he was authorised to do so. The question posed for the consideration of the High Court was in the case of Mawdesley -

“As a matter of law were the justices correct in finding that the section 172 notice, attached to this application, was admissible pursuant to section 12(1)(b) Road Traffic Offenders Act 1988”.

In the case of Yorke the question was -

“Can a returned partially completed notice under section 172(2) of the Road Traffic Act 1988 be considered by the court as part of the evidence of a speeding driver’s identity though unsigned and not complying with 12(b) of the Road Traffic Offenders Act 1988”.

Owen J held that (1) a section 172 form not bearing any signature or mark in the space designated for the signature does not satisfy the requirements of section 12, but (2), a section 172 form completed by a defendant but unsigned could amount to a confession within the meaning of section 82 of the Police and Criminal Evidence Act. The court could infer that the entries were made by the defendant, and there was no need to caution because of the express provisions of Code C 10.1(b), so any objection to admissibility based on that ground should not have succeeded. For present purposes I need not explore the European Convention point deployed before Owen J. In neither of the cases with which he was concerned was there any challenge to the evidence that the vehicles had exceeded the speed limit. The sole issue was the identity of the driver, and the judge held that an unsigned section 172 form, admissible in evidence as a confession, was capable of giving rise to a case to answer. The problem as to admissibility which was peculiar to the facts of Yorke’s case is for present purposes irrelevant. We were told that in Mawdesley and Yorke there is at present an appeal by the prosecution to the House of Lords.

The last authority to which I need refer is Jones v DPP [2002] EWHC 236 (Admin). In that case the registered keeper of the offending vehicle when sent the section 172 form returned the form and gave information in a covering letter. May LJ referred to Boss v Measures and to Broomfield, and said in paragraph 13 that on the facts of the instant case Dr Jones did act in substance in accordance with the statutory requirement. Section 12(1) of the Road Traffic Offenders Act 1988 was not relevant because Dr Jones denied being the driver, but -

“His letter was a document which he had signed and the letter contains all the information in writing which the form had required and indeed more.”

It follows that had Dr Jones admitted that he was the driver the letter could have satisfied the requirements of section 12(1).

For the respondent Mr Parker submitted that on the facts of this case it is clear that there was non-compliance with the requirements of section 172(2) because the partially completed form did not clearly indicate who was the driver. The statute requires that the person keeping the vehicle give such information as to the identity of the driver as he may be required to give. If one looks at the form it is not clear who completed it. The particulars given in the general section are those of the registered keeper, and his driver number and date have been inserted in Part 1, but there is no authentication by signature of the printed statement which is critical to that part of the form, namely -

“I was the driver of the vehicle specified on the attached form at the time of the alleged offence”.

What is written on the form could have been written by an agent, as in Yorke, and although Mr Laprell stresses that Part 1 begins with the words “if you (his emphasis) were the driver at the time of the alleged offence complete this section only”, that argument leads nowhere because it is clear that Part 1 never was completed. In my judgment unless a caution was required that simple factual analysis is decisive of this case.

But Mr Parker went on to make a wider submission which, in my judgment, is also correct. He submitted that section 172(2) empowers a chief officer of police to require that certain information shall be given. Section 172(7) enables him to make that requirement by means of a written notice, and by implication he is entitled to make reasonable requirements prescribing how the person to whom the notice is addressed shall respond. So the chief officer can require that the response be in writing (see Boss v Measures) and that it be signed. The application of a signature is not giving information beyond the scope of section 172(2). It is in the first place a normal form of authentication by the vehicle keeper of the written information which he provides, but it is also something that it is clear from section 12(1) that Parliament envisaged being part of a written response to a notice sent to a vehicle keeper pursuant to section 172(2). The fact that section 172 and section 12 are in different statutes is of no relevance bearing in mind that both statutes were enacted at precisely the same time, that they both deal with the same subject matter, and that section 12(1) expressly refers to section 172(2). It follows that in my judgment Judge Wilkie in Broomfield was right to decide as he did.

That leaves only the argument that a caution was required. Mr Laprell submitted that the exemption spelt out in Code C: 10.1 cannot be relied upon because it only applies “if questions are for other (his emphasis) necessary purposes e.g. to obtain information in accordance with any relevant statutory requirement.” Here the question was not for another purpose. It was to provide the evidence which the prosecution required to complete its case. Mr Parker submitted and I accept, that read in context the word “other” does not have to be given a narrow meaning for which Mr Laprell contends. It can mean “further” or “additional” and that is how it should be interpreted so as not to give rise to the sort of unhappy self-contradiction now apparent on the face of forms used in Cambridgeshire and apparently in Essex. Paragraph 10.9 of the Code is simply not applicable to the sort of situation with which we are concerned in this case. Accordingly, in my judgment, Owen J was right to decide as he did in Mawdesley and Yorke as to the need for a caution.

For those reasons I would answer the question posed by the justices in the affirmative, and I would dismiss this appeal.

I agree.