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Notice of Intended Prosecution: I Telephoned You! DPP v Broomfield
Queen's Bench, Administrative Division 8 August 2002
Duty to provide information; 28-day period for written response; is police authority entitled to specify response time and manner?; is telephoned reply sufficient?; Road Traffic Act 1960, s. 257; Road Traffic Act 1988, s. 172; European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 6(1)
The statute
Road Traffic Act 1988, s. 172:
(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.
Road Traffic Act 1988, s. 172(7)(a):
Where the requirement is made in writing and served by post, it shall have effect as a requirement to provide the information within 28 days beginning with the day on which it is served.
The facts
The defendant failed to respond in writing within the 28-day period but had telephoned the Avon and Somerset Constabulary instead. The justices held that the telephone call was sufficient for Broomfield to have complied with the statutory requirements.
The law
The DPP did not seek to have the defendant's acquittal overturned but posed the following questions for the opinion of High Court:
(1)Whether the recorder was correct in finding that the provision by the defendant of the following information: (i) that he was the registered keeper of vehicle index number F848 CYC and (ii) that he was the driver of the vehicle of F848 CYC at the time that the driver of the vehicle was alleged to have been guilty of an offence on the 28 day of August 2001, to an employee of the Avon and Somerset Constabulary in the course of a telephone conversation outside the 28-day period, was sufficient to meet the requirements of Road Traffic Act 1988, s. 172.
(2) Whether the recorder was correct to allow the appeal in those circumstances.
It was lawful for an authority to include reasonable instructions as to the manner in which information was to be provided, by whom, when and where, as long as the request was within a reasonable time and by reasonable means. This was especially so since the requirement by the police authority that a written reply be given in the notice of intended prosecution was directed at enabling that document to be used as evidence that the driver was the driver of the vehicle on that occasion.
The recorder was therefore wrong to hold that oral information was sufficient to comply with s. 172 of the Road Traffic Act 1988 and therefore, since there was no request that the matter be remitted to the court, the questions were simply determined in that manner.
The Decision
It was lawful for the police authority to include reasonable instructions as to the manner in which information was to be provided to them in response to a notice of intended prosecution. A late, telephoned response was inadequate.
A High Court judge so held in answer to questions put by the DPP in an appeal by way of case stated from the decision of a Recorder sitting in Crown Court on 18 April 2002. The recorder had upheld an appeal by the defendant, Broomfield, against his conviction by justices for failing to give information as to the driver of vehicle F848 CYC according to s. 172(3) of the Road Traffic Act 1988 in response to a notice of intended prosecution dated 4 September 2001 sent to him in respect of an alleged speeding offence.
Comment
The requirement under s. 172 applies to the person keeping the vehicle and will apply to a person who is the keeper of the vehicle at the time the requirement is made even if he/she was not the keeper at the time of the alleged offence: Hateley v Greenough [1962] Crim LR 329; The Times, 8 March 1962. In the case the defendant wished to buy a car on hire purchase. He was given possession of the car on 26 October 1959. On 27 October the car was in collision with a traffic bollard. On 30 October the defendant signed the hire-purchase agreement and took possession of the car under that agreement. On 18 November a police officer asked the defendant for the name of the driver on 27 October and the defendant failed to give the information. He was accordingly convicted of an offence.
On his appeal, held, dismissing the appeal, that the defendant only became the owner of the car within the meaning of the Act when he took possession of it under the agreement on 30 October. Accordingly, on 18 November, the material date, he was the owner; and as it had been found that he could with reasonable diligence have ascertained the name of the driver on 27 October, his conviction must stand.
The Commentary in the Criminal Law Review pointed out that 'Owner', for the purpose of the Road Traffic Act, means (unless the context otherwise requires) in relation to a vehicle which is the subject of a hiring agreement or hire-purchase agreement, the person in possession of the vehicle under that agreement. The statutory authority which was in force at the time was s. 257 of the Road Traffic Act 1960.
In Arnold v DPP [1999] RTR 99, it was said there is no particular form of words to be used when making the requirement. It must be shown that the person making the requirement did so by, or on behalf of, the chief officer of police. A computerised form stating that the author is so acting has been held by the Divisional Court to be sufficient for this purpose.
The information must be provided within a reasonable time which may, in the prevailing circumstances, mean immediately (see Lowe v Lester [1987] RTR 3).
If a person falsely claims to have been the driver, an offence of perverting the course of justice may be appropriate.
Where the defendant is a company or corporate body, any director, secretary, manager or other officer of the company may also be prosecuted for the offence if it can be shown that the offence was committed with his/her 'consent or connivance' (s. 172(5)).
It was argued by some that the requirements of s. 172 infringed a defendant's right against self-incrimination under Article 6 of the European Convention on Human Rights. The attack started in Scottish courts and finally reached the House of Lords. In Brown v Procurator Fiscal (Dunfermline) & Others, [2001] 2 All ER 97; The Times, 6 December 2000, the House of Lords held that the crucial issues were whether s. 172:
(a) represented a disproportionate response to the high incidence of death and injury on the roads by reason of the misuse of cars; and/or
(b) undermined the right to a fair trial when the driver's admission was relied on at trial.
Their Lordships held that the European Convention had to be read as balancing community rights with individual rights. The answer to both issues above was 'no' because, inter alia:
(a) The answer required of a keeper by s. 172 could not of itself incriminate the suspect since it was not an offence merely to drive a car.
All those who owned or drove cars had subjected themselves to a regulatory regime of which s. 172 was a part.
The facts of Brown v Procurator Fiscal (Dunfermline) were: The police were called to a superstore where the defendant, B. was suspected of having stolen a bottle of gin. They judged her to be the worse for drink, and asked her how she had come to the store. B replied that she had travelled by car, and pointed to a car in the store car park, which she said was hers. In the exercise of their powers under s. 172(2)(a) of the Road Traffic Act 1988, which applied only where the driver of a vehicle was alleged to have committed certain specified offences, the police required B to say who had been driving her car at the time it would have been driven to the store car park. Failure to comply with such a requirement was a criminal offence, punishable by a fine of not more than £1,000, mandatory endorsement of the offender's licence and, at the court's discretion, disqualification from driving. In compliance with s. 172(2)(a). B stated that she had been the driver of the car at the relevant time. The police then administered a breath test which proved positive. B was charged with one of the offences to which s. 172 applied, namely driving a car after consuming excessive alcohol contrary to s. 5(1)(a) of the 1988 Act. The procurator fiscal intended to rely at trial on the admission obtained from B under s. 172(2)(a). However, she contended that the use in evidence of that admission would infringe her right to a fair hearing under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sched. 1 to the Human Rights Act 1998). That contention was accepted by the High Court of Justiciary of Scotland, which held that the use of the admission by the prosecution would infringe B's right not to incriminate herself, a right implicit within Article 6(1) of the Convention. The procurator fiscal appealed that decision to the Privy Council as a devolution issue under the Scotland Act 1998.
Held - The leading of evidence by the prosecution of an admission obtained under s. 172(2)(a) of the 1988 Act did not infringe a defendant's right to a fair hearing under Article 6 of the Convention. Although the overall fairness of a criminal trial could not be compromised, the constituent rights comprised within Article 6, whether expressly or implicitly, were not themselves absolute. Limited qualification of those rights, including the right against self-incrimination, was acceptable if it was reasonably directed by national authorities towards a clear and proper public objective and represented no greater qualification than what was called for by the situation. There was a clear public interest in enforcement of road traffic legislation, and s. 172, properly applied, did not represent a disproportionate response to the high incidence of death and injury on the roads caused by misuse of motor vehicles. It provided for the putting of a single, simple question, and the answer could not in itself incriminate the suspect since it was not without more an offence to drive a car. Section 172 did not sanction prolonged questioning about facts alleged to give rise to criminal offences, and the penalty for declining to answer was moderate and non-custodial. There was no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice. If there were evidence of such conduct, the trial judge would have ample power to exclude the admission. Furthermore, all who owned and drove motor vehicles knew that by doing so they subjected themselves to a regulatory regime which was imposed because the use of cars was recognised to have the potential to cause grave injury. It followed, in the instant case, that the prosecution was entitled to lead evidence of B's answer given under s. 172. Accordingly, the appeal would be allowed.
This a Scottish case; however, the Divisional Court has confirmed that an admission to being the driver of a particular vehicle given in response to a s. 172 requirement does not breach the defendant's privilege against self-incrimination under Article 6 of the European Convention; see DPP v Wilson, The Times, 21 March 2001. The court went on to say that, where a defendant disputed the reliability of any such admission, a judge (or magistrate) ought to exercise his general discretion to exclude the written evidence and require the prosecution to adduce oral evidence which could then be tested by cross-examination. The court also held that there was no difference, so far as the effects of the Human Rights Act 1998 was concerned, between s. 172(2)(a) and s. 172(2)(b).