Atkinson v Director of Public Prosecutions

Where the driver of a vehicle is thought to be guilty of a traffic offence, the RTA 1988 makes provision by s. 172(2) for the police to require the keeper of the vehicle involved to give such information as to the identity of the driver as they require. If he does not do so, he commits an offence (s.172(3)), but by s. 172(4) has a defence “if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.”

This appeal by case stated, from a decision of the Warrington Magistrates’ Court made on 15 June 2011, centrally raises the question of the time at or from which “reasonable diligence” is to be assessed: before the time of the driving in question, when the keeper of the vehicle first became aware that the vehicle was being driven by someone else, or at the time the Police ask who the driver was?

The facts, taken from the Case, are that a Yiben Meiduo motor scooter registration number MX57 DYC was recorded doing 38 mph in a 30 mph area on Lovely Lane, Whitecross, Warrington, at 10.38 on 13 Nov 2010.

On 19 Nov 2010 a Notice of Intended Prosecution was sent to the Appellant, asking her who the driver was. She replied to say that she did not know. The scooter had been up for sale. A buyer had asked to test drive it before he considered buying it. She asked if he had a licence. He assured her he was legal to go on it, so she let him ride it. He returned, having done so, to say he would let her know if he wanted it. He never got back to her. She did not take his name.

Cheshire Police replied to the appellant’s letter on 25^th. November 2010, stating that if she was unable to identify the driver of the vehicle at the time of the alleged offence within the statutory time limit then the matter would be forwarded to the issuing officer to prepare a summons file to go before the magistrates’ Court. She replied that she did not have details of the driver, but he was male, and if the camera was looked at closely this would be seen. The Police then sent a further letter to the Appellant indicating that as she had been unable to supply details of the driver the files had been forwarded for consideration of prosecution, and she was duly summonsed to appear before the court.

Section 172 of the Road Traffic Act 1988 under which she was summonsed is headed: “Duty to give information as to identity of driver etc in certain circumstances”. Its provisions material to this case are 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, 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 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.

(5)

Where a body corporate is guilty of an offence under this section and the offence is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity, he, as well as the body corporate, is guilty of that offence and liable to be proceeded against and punished accordingly.

(6)

Where the alleged offender is a body corporate, or in Scotland a partnership or an unincorporated association, or the proceedings are brought against him by virtue of subsection (5) above or subsection (11) below, subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable.

(7)

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, 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 that period or that it has not been reasonably practicable for him to give it.”

It was argued by Mr Davies that the obligation to provide details arises when the keeper of a vehicle is required to do so by or on behalf of the chief officer of Police. That being the case, “It therefore follows that when assessing whether the person keeping the vehicle has exercised reasonable diligence to ascertain the identity of the driver that assessment should examine the keeper’s diligence at the time the request is made and subsequently. It should not assess the keeper’s conduct at any time prior to the request being made.”

Applying this approach, by the time the request was made there was nothing the Appellant could do to identify the driver.

For the Respondent, Mr. Ray accepts in his Skeleton argument that if a criminal statute is ambiguous, the Defendant should have the benefit of the ambiguity, but where the legislative intent is clear, courts should interpret the legislation purposively to give effect to that intention. The intent here is the effective regulation of road traffic, and enforcement of road traffic legislation, in the interests of public safety. It could not be the intent of Parliament that a keeper should avoid regulation by failing deliberately to know who the driver of their vehicle was at any given time.

He claims additional support from s. 172(6) which applies where the alleged offender is a body corporate, and adds that s. 172(4) does not make it an offence for a keeper not to exercise reasonable diligence to know who is driving the vehicle – rather, the effect is to mean that a person who fails to exercise that reasonable diligence places himself at risk of not having the benefit of the defence in s. 172(4) if he cannot thereafter respond adequately to a requirement to provide information under s. 172(2)(a).

The question is one of statutory construction. The starting point must be the wording of the statute itself, read within the context of that statute and the law more generally.

The scheme of the statute is that an offence may be committed by the keeper of the vehicle (s. 172(2)(a)), or by “any other person” (s.172(2)(b)). The former may be required to give any information, whether he has that information at the time of the request or not (subject to the Defence in s.172(4)); the latter only if it is within his power to give the information. Thus, subject only to a defence which it is for the defendant to make out, and not for the prosecutor to disprove, the offence is made out where the keeper does not give the required information, whether he has it or not. The s.172(4) defence does not apply to “any other person”, presumably because such a person does not need it. In his case, the Crown must prove that the information is within his power to give, whereas in the case of the keeper that is assumed by the statute.

A second feature of the scheme is that there is no express duty resting upon the keeper or owner of a vehicle to know the identity of the driver of that vehicle. (Mr. Ray concedes that there is no general duty in the law as a whole to that effect, although it is plain that anyone who does not check the identity and attributes of a driver whom he permits to drive his vehicle may be risking conviction of one of a number of offences, such that they would be well advised to do so).

A third is that the offence is triggered by the request. Without such a request, whether made by post or orally, there can be no offence.

The wording of s. 172(4) is expressed in the past tense. This is not simply in respect of the words “with reasonable diligence have ascertained…” but also as to knowledge – “shows that he did not know” – and the words “could not” which precede the requirement to have acted with reasonable diligence.

In respect of these requirements, Mr. Ray’s argument was that “Did not know” was the first part of a two-stage requirement. It referred to the point at which the keeper first became aware that the vehicle was being (or had been) driven by someone other than him. The requirement to have ascertained the driver’s identity began at that point, but was, he submitted, “a continuing concept and a continuing requirement”. Thus, in his submission, the past tense relating to knowing identity, and that relating to ascertaining identity, were used in differing senses. The first related to a point in time, the second to an extended (and continuing) period.

A consequence of this approach would be that if a person knew that (say) a vehicle of which they were the keeper was being driven by someone else, then even if they later, and not unreasonably, forgot who the driver was, they could never make out the defence. This would have unattractive consequences. Take the example of a husband and wife who interchangeably drive the family car, of which only one is the keeper. The car regularly travels the same roads. Some months after an offence allegedly is committed in respect of the driving of that car along those roads, a notice of intended prosecution is received. On Mr. Ray’s argument since at the time of driving the keeper would have known who the driver was, he can have no defence, even if he can now satisfy a court that he has forgotten and could not be expected to remember (and does not recall) that it was his spouse. He, not his spouse, suffers the penalty. This might be thought unfair. More fundamentally, though, the approach leaves no room for the operation of s.172(6). On Mr. Ray’s approach, the company whose vehicle is thought to be involved in some moving traffic offence would have no defence under s.172(4), whether the company had kept records or not. His approach renders the additional requirements necessary to make out a defence entirely devoid of content.

Moreover, to interpret s. 172(4) as does Mr. Ray would mean that if a keeper was not aware at the time that his car had been driven and, say, involved in a fatal crash for which the driver (who decamped) was responsible, but became aware after the request for information that the driver was actually a close relative, he would be able to make out the defence.

At one stage in the course of submissions, I was attracted to the idea that “have ascertained” related to any time prior to the request being made by the police. On this approach, the use of the past tense might not simply have related to the fact that if a requirement is made by post there are 28 days within which to respond before the offence is made out (s. 172(7)). Such an approach might reflect the public interest in identifying drivers of cars involved in road traffic offences, so that they can be brought to book. It might better serve the public policy identified most clearly in Brown v Stott [2003] 1 AC 681, in which Lord Bingham of Cornhill said (at 704 G- 705A):

“The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies. The need to address it in an effective way, for the benefit of the public, cannot be doubted. Among other ways in which democratic governments have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers. Materials laid before the Board, incomplete though they are, reveal different responses to the problem of enforcement. Under some legal systems (Spain, Belgium and France are examples) the registered owner of a vehicle is assumed to be the driver guilty of minor traffic infractions unless he shows that some other person was driving at the relevant time or establishes some other ground of exoneration. There being a clear public interest in enforcement of road traffic legislation the crucial question in the present case is whether section 172 represents a disproportionate response, or one that undermines a defendant's right to a fair trial, if an admission of being the driver is relied on at trial.”

See also Lord Clyde at 728 D – G; and the Rt. Hon. Ian Kirkwood at 731 B-D.

However, I have finally been forced to conclude that to adopt this interpretation would be to do too much violence to the statutory wording, with which any process of construction must start. In context, the reference to knowledge must refer to what was known at the date of the request, for this is the starting point for making out the offence, in respect of which sub-section (4) provides a defence. There is no warrant for reading the past-tense used later in the self-same sentence as relating to a different period. I reject the suggestion that knowledge must relate to the indistinct time when the keeper first knew his vehicle was being driven by another. There is no legal certainty about this, and the natural construction is that the time at which knowledge is to be assessed is the time of the request. It is only at that point that knowledge or the lack of it of who was driving becomes relevant: the relevance in the context of section 172 is entirely in respect of providing a sufficient answer to the request made by the police.

Further, “diligence” is defined by the Oxford English Dictionary as:

“Constant and earnest effort to accomplish what is undertaken; persistent application and endeavour; industry, assiduity”

It relates to accomplishing an undertaking, that with which one is tasked. It cannot exist in a vacuum – but must relate to something specific. If there is no task to accomplish which is in mind, it is difficult to see how conduct can be described as “diligent”. To this extent, the word is unlike one such as “prudent” or “reasonable”.

If there is no duty to know who is driving, at the time of that driving, then there it becomes more difficult to identify the undertaking or task in respect of which to assess diligence. It is accepted there is no such duty, and it might be said that if Parliament had intended there to be one it would have been relatively easy to do so, and define a duty to provide information on request by reference to that duty. Conspicuously, Parliament did not do so. There might be many good reasons (closely related to statutory provisions) for the keeper making enquiry of the identity of the driver – it is an offence to permit a vehicle to be used without insurance, for instance. Knowing of the identity of the driver is important for that, as it is when checking that a driver is licensed for the class of vehicle in question. The issue is not however whether it is desirable, or indeed very important, for the keeper of a vehicle to know who is driving his vehicle, but whether there is a duty to do so in legal as opposed to moral terms. Mr. Ray does not assert such a duty. The highest it might be put would be to say that in the light of the observations of Lord Bingham in Brown v Stott there is a reasonable expectation that citizens will be able to identify those (thieves apart) who drive their vehicles. An argument based on policy, therefore, might have some force, but could not be said to be so powerful as to permit the reading of the words in the defence in any way other than that for which Mr. Davies contends.

The interpretation I favour has the advantage of giving an elegant coherence to the whole of the section, in the context of the Act and general law. The keeper of a vehicle (as distinct from any other person) commits an offence even if he does not know who drove his vehicle: in justice, a defence is needed to provide for those who genuinely cannot answer the questions posed by the police, despite their best efforts. But the burden is on the keeper to establish it. This gives the context within which s.172(4) is set. On a natural reading of the statute, the keeper has to show that at the time of the request he did not know the identity of the driver. Reasonable diligence requires him to show he has made appropriate efforts to discover it, despite not knowing. This too must relate to the same time – otherwise similar past tenses would have very different scope within a few words of each other in the same sentence. On this approach, he cannot be condemned for failing to first make, and then keep, a written record of the identity of the driver (It might be thought that effectively imposing an obligation on a private, as opposed to business, keeper to note every occasion on his son, wife, friend etc. drove his vehicle would be asking too much). This approach leaves room for s.172(6). A company must not only show lack of actual knowledge, and diligence to find out, but also that it was reasonable for it not to have kept a record. To the extent that there is ambiguity, the approach also accords with the general principle applicable to criminal statutes that they should have a construction favouring the defendant.

I conclude, therefore, that the appeal succeeds. The first question posed by the Magistrates’ Court in the case requires to be answered in the negative. Reasonable diligence to ascertain identity fell to be assessed at the time the request from the police was received by the Appellant. The second question thus does not arise for answer. In the light of Mr. Ray’s stance, I would make no order remitting the matter to the Magistrates’ court for fresh determination in the light of my ruling.

I agree and would summarise my conclusions as follows.

The defence under section 172(4) of the RTA 1988 is made out, in my view, if the keeper of the vehicle did not know at the time of the relevant request and was not able with reasonable diligence to ascertain at the time of the request who the driver of the vehicle was (that is, the identity of the driver). On the prosecution’s interpretation of Section 172(4) a keeper who did not know the identity of the driver at the time when his vehicle was driven but who subsequently ascertained the identity would be able to make out the defence, a result that would make no sense. The natural interpretation of section 172(4) is that at the time of the request the keeper can truthfully say, “I do not (now) know the identity of the driver and, even exercising reasonable diligence, I cannot (now) ascertain the identity”.

Although I also was initially attracted by Mr Ray’s appeal to policy, I concluded that his interpretation would place an intolerable strain on the plain language of section 172(4). In any event, counter examples can be given of policy implications. My Lord has given one such example of a husband and wife using the family car interchangeably. Another would be where the keeper handed over her car keys to a person (posing, for example, as a doorman) that she mistakenly believed would temporarily look after the vehicle, but who unexpectedly made off to commit a traffic offence. On the prosecution’s interpretation, the keeper would be guilty of the crime under section 172 only because she had mistakenly, but carelessly, entrusted the vehicle to another, and not because she had inexcusably failed to assist in the search for the driver’s identity, the true mischief against which section 172 is exclusively directed.

Finally, Mr Ray correctly accepted that on his interpretation an individual who had once known, but who at the time of the request had forgotten, the identity of the driver could rarely, if ever, be treated as having exercised reasonable diligence (not having made any record, however informal). In that event the extended requirement for a corporate defendant under section 172(6) would be largely, if not wholly, redundant. The interpretation that I favour gives real content to section 172(6), and produces a legislative scheme that is clear, coherent and sensible.