Phiri v Director of Public Prosecutions

This is an appeal by way of case stated from a decision of the Highbury Corner Magistrates' Court.

The appellant, Mr Edward Phiri, appeals against the decision of Deputy District Judge Bennett, who, on 5th October 2016 convicted him of an offence under s.172 of the Road Traffic Act 1988.

The case stated sets out the details of the offence: on 29th February 2016, the appellant, having been required by the Chief Officer of Police for the Metropolis, failed to give information relating to the identification of the driver of a vehicle, namely a BMW with a specified index number.

The case stated recalls that the prosecution evidence was agreed. That was contained in a statement by a police administrative officer admitted under s.9 of the Criminal Justice Act 1967 detailing the background to the sending of the notice.

Thus it was accepted by the court that at 06.45 am on 21st January 2016, the appellant's vehicle activated a red light traffic camera on the A298. In consequence, the notice of intended prosecution dated 28th January 2016 was sent to the appellant as the registered keeper of the vehicle at his home address. That required that he give information as to the driver of the vehicle at the time. No response was received from the appellant.

The case stated then turns to the defence case and to the evidence given by the appellant. That was that he accepted that he was the registered keeper of the vehicle, that he had February 2016, nominating a third party as driver.

The appellant's evidence continued that he had left the signed notice in a suitably addressed envelope in the post tray in a post room at his place of work, which was the University of Arts, where he was a lecturer. His evidence was that the person working in the post room had the responsibility for posting items left in the room. As a result, he assumed that the letter would be posted.

The Deputy District Judge accepted the appellant's evidence. He then recorded that he found the case proved. He concluded that s.172(2(b) of the 1998 Act imposes a personal responsibility on the person keeping a vehicle to give information relating to the identification of the driver of the vehicle, who it was alleged should have been given for the offence. A defendant had the burden of proving on the balance of probabilities that he had discharged that responsibility:

The question posed for this court by the Deputy District Judge is as follows:

Section 172 of the Road Traffic Act 1988 obliges a registered keeper in certain circumstances to provide information relating to the identity of the driver. In so far as it is relevant, it provides:

Reference was made in argument to s.7 of the Interpretation Act 1989, which deals with when and how service by post is deemed to be effective:

Two authorities were cited to me. The first is Director of Public Prosecutions v Broomfield [2002] EWHC 1962 (Admin). That was a case where a s.172 notice had been sent to Mr Broomfield, who telephoned the Camera Processing Unit at the relevant police force. In the course of that telephone conversation Mr Broomfield provided certain information, which was recorded by an officer. However, he did not return the notice of intended prosecution.

He was convicted under s.172. On appeal by way of case stated the judge held that the notice required that the information be given in written form and signed. That that had not been done in Mr Broomfield's case. His appeal was dismissed. I cannot see the immediate application of that case to this appeal.

The other case referred to in argument was Whiteside v The Director of Public Prosecutions [2011] EWHC 3471 (Admin), which concerned the separate issue of whether the registered keeper of the vehicle had received the relevant notice. It had been sent to his registered address but he was unaware of the requirement to give information, and consequently the information was not provided.

The justices found on the balance of probabilities that the defence under s.172(7)(b) was not made out and, on appeal, this court agreed. In the course of his judgment, with which King J agreed, Elias LJ said in relation to an argument by counsel representing the CPS:

For the appellant in this case, Mr Hendron submits that the method of complying with the statutory obligation under s.172(2(a) is left open. He submits that if a recipient of a notice uses, as the appellant did in this case, an established post room in an established organisation, then that constitutes compliance.

In the course of the argument Mr Hendron invoked analogies with what happens in a range of organisations including the House of Commons, the Court Service and indeed what probably happened in this case when the police staff member sent the notice to the appellant.

In all such cases it is highly unlikely that persons working in those organisations deliver the letters to the post office or to a post-box. They would almost inevitably place their letters in a postal tray and rely on the person appointed by the organisation to collect the post to deal with it in the ordinary way by either affixing the necessary stamp or necessary frank.

In this case, Mr Hendron highlighted that there was no reason for the appellant to suspect that the procedure which operated at the University of Arts was in any way not fit for purpose. It was a perfectly functioning postal room. Thus it was almost equivalent to posting a letter in a post-box or through any of the private postal service companies which now provide an equivalent service. In other words, the appellant had a legitimate expectation that the post including his letter in reply to the notice would be dealt with carefully and efficiently.

Mr Hendron referred to s.7 of the Interpretation Act and contended that it could no longer be the case in the modern day, with the array of private postal companies, that post had to be dealt with in the traditional manner by using the Post Office.

Consequently, the Deputy District Judge had been incorrect in his approach to the matter. The appellant had simply done what was done what many others do in posting letters and the fact that in this case the reply to the notice went astray should not have led to his conviction for the offence.

Section 172(2)(b) of the Road Traffic Act 1988 has to be interpreted against the background of providing a system which is practical, fair and enforceable for ensuring that drivers of vehicles comply with the requirements of the road.

To my mind, the section imposes a personal burden on a recipient of a notice to prove on the balance of probabilities that they have discharged the obligation imposed, which is to give the police information about the driver of a vehicle when a traffic offence is uncovered.

In this case, the appellant placed what was his personal responsibility in the hands of a third party, in other words the employee or employees of the university charged with collecting letters and posting them. The appellant did not place the letter either in the hands of the Post Office by posting the letter or by using one of the other private posting companies which provide a comparable service.

In my view, the approach of the Deputy District Judge was correct. That is not because, as Mr King for the CPS contended I should in light of Whiteside v The Director of Public Prosecutions, that it is not for me on a case stated to question the Deputy District Judge's conclusions.

Rather it is because in my view the Deputy District Judge applied the right legal analysis and then applied that analysis to the facts as he found them. He heard the evidence of the appellant that he left the completed form in an envelope in the postal tray at his place of work; that there was an employed there who had the responsibility of posting the items; and that the appellant assumed that the letter would be posted. However, he concluded that the appellant, by not doing that himself, had not given the notice to the police as required by the statute.

I can see no flaw in that analysis of the appellant’s legal duty or in the judge's application of that analysis to the facts of the case.

I would dismiss the appeal and answer the question posed by the Deputy District Judge in the affirmative.