Krishevsky v The Director Of Public Prosecutions [2014] EWHC 1755

Summary

1. LORD JUSTICE MOSES: I will ask Mr Justice King to give the first judgment.

2. MR JUSTICE KING: On 13 August 2013 at the Waltham Forest Magistrates' Court the appellant was convicted after trial of an offence under subsection (3) of section 172 of the Road Traffic Act 1988 of failing to respond to a notification requiring him to give details of the driver of a particular vehicle who was alleged to have committed an offence of driving with excess speed. He now appeals that conviction by way of Case Stated.

3. The information upon which he was convicted alleged:

"On 9 January 2012 ... having been required ... failed to give information relating to the identification of the driver of the vehicle ... who was alleged to have been guilty of an offence. Contrary to [the material statutory provision]."

4. Section 172 of the 1988 Act provides for the creation in certain circumstances of an obligation on the registered keeper of a vehicle to provide information relating to the driver's identity. As far as material it provides:"...

(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.

...

(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.

...

(9)For the purposes of section 7 of the Interpretation Act 1978 as it applies for the purposes of this section the proper address of any person in relation to the service on him of a notice under subsection (7) above is—

(a)in the case of the secretary or clerk of a body corporate, that of the registered or principal office of that body or (if the body corporate is the registered keeper of the vehicle concerned) the registered address, and

(b)in any other case, his last known address at the time of service.

... "

5. It is to be noted therefore that section 172 provides for an offence of failing to comply with a requirement to give driver details which has been made by a written notice served by post, and under subsection (7) where it is so made, the requirement is to give the information with 28 days of postal service.

6. Accordingly for the purposes of establishing an offence under subsection (3) where it is alleged that the requirement with which it said there has been non compliance is one which has been made by a notice sent by post, the key issue is whether there was effective postal service upon the defendant and if so, the date of that service. The 28 days begins to run from that date. This question is governed by the provisions of section 7 of the Interpretation Act which deals with how and when service by post is effected. It provides:

"Where an Act authorises or requires any document to be served by post (whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

7. Postal service is accordingly effected by posting the Notice to the appropriate address for service (as to which in criminal cases involving an individual see Part 4 of the Criminal Procedure Rules, rule 4.4(2)(a) - 'an address where it is reasonably believed that he or she will receive it') and is deemed to have been effected 'at the time at which it would be delivered' to that address 'in the ordinary course of post' 'unless the contrary is proved' (see again section 7 of the 1989 Act). As was held in Whiteside v The Director of Public Prosecutions [2011] EWHC 341 (Admin) paragraph 5, all this means that actual receipt by the addressee is not a requisite of effective valid service. Posting the Notice to the appropriate address for service creates a presumption of proper service on the defendant whether or not it is in fact received by him, effective from the time of presumed delivery to that address in the ordinary course of the post, unless that presumption of delivery on the ordinary course of the post is rebutted by him. The presumption to be rebutted however is not a presumption of receipt but the presumption of delivery to the address in the ordinary course of the post. See again the decision in Whiteside.

8. The offence accordingly is one of failing to provide within the stated period the information required in a notice which has been properly served. Proper service is the key to the offence. The obligation to provide information within the stated period arises from the moment the Notice is properly served, not from the moment it is actually received or seen by the defendant. What is important to emphasise for present purposes however is that if the presumption of proper service is rebutted by evidence adduced by the defendant, then no offence can have be committed and it is unnecessary for the court to proceed to consider any defence raised under subsection (7)(b). Such defence is predicated upon proper service having been effected. See again the wording of subsection 7(b) (the emphasis is my emphasis):

"(7) …

(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."

9. Whiteside is also authority for the proposition that for the purposes of rebutting the presumption of proper service by post, evidence that a notice has not actually been received by the defendant is not, without more, evidence that it has not been delivered to the appropriate address in the ordinary course of the post. All will depend on the nature and extent of the evidence given in rebuttal. In Whiteside the appellant did not dispute that the Notices had been received at the registered address within the relevant period (see paragraph 7). Hence this court held that if he were to escape conviction on the grounds of non receipt by him (he being on his case at all material times away from home and out of the country) he would have had to have to brought himself within the defence provided for in subsection (7)(b). The conclusion of the magistrates in that case, namely that the defence had not been made out, was held to be one to which they were entitled to come on the evidence before them (see Whiteside at paragraphs 7, 8, 9, 23 and 24).

10. I turn to the findings of fact made by the Justices as set out in the Case:

The evidence before the Justices

11. The Case discloses in summary form the evidence adduced by the prosecution. According to the Case, it was in short form and it was read. It comprised a witness statement from a named individual who stated that two documents, produced to the court below with copies attached to the Case, had been sent to the appellant and that 'no response was received'. The first document was a combined 'notice of Intended Prosecution' and 'section 172 request' dated 8th December 2011. The second was a 'reminder notice' dated 5th January 2012. In addition a 'Form of Reply to … Inquiry (VQ5)' from the Driver and Vehicle and Licensing Agency, was produced, confirming that the appellant was the registered keeper with a registered address coinciding with the address to which the Notices had been sent.

12. As I understand the position, it was never suggested on behalf of the appellant that he was not the registered keeper at the material time or that the address in question was not his home address or that it was not the appropriate address for service for the purposes of postal service.

13. It is apparent from the rehearsal within the Case of submissions made by on behalf of the appellant, that the appellant himself gave evidence before the Justices. Unfortunately the Case is silent on what that evidence amounted to. There is within the Case no summary of what the appellant said in evidence other than what can be inferred from the findings of fact, namely that he did not receive the notice of the 8th December but did receive the reminder notice (although when is not stated).

The Justices' findings of fact.

14. Paragraph 4 of the Case sets out the Justices' findings of fact as follows:

- The Appellant had been sent a notice of intended prosecution on 8th December 2010 by first class post.
- It contained a request to provide the information as to the identity of the driver of the vehicle on 30th November 2011.
- The Appellant did not receive that notice.
- The Appellant was sent a reminder notice dated 5th January 2012 by second class post on 5th January 2012.
- That notice was received by the Appellant.
- The Appellant chose not to respond to the reminder notice.
- The Appellant did not respond to the requests for information in either notice.

15. The questions posed for the opinion of this court which have been pursued before us, are three. There were in fact four questions stated but the second question is not being pursued. The material three questions are there:

"1. Were we correct in law to convict the Appellant even though the Appellant had not received the original request for information in the notice sent 8 December 2011?

...

3. If the reminder notice constituted a valid section 172 request, could the Appellant have committed an offence of failing to respond to it on 9 January if it was not deemed served until 11th January 2012?

4. Having found that the Appellant did not receive the combined notice of intended prosecution and the section 172 request dated 8th December 2011, were we right to convict the Appellant on the basis of receipt of the reminder notice dated 5th January 2012, even though by virtue of section 1 of the Road Traffic Offenders Act 1998 proceedings for an offence of speeding could not lie against the Appellant or against any driver he might have nominated?"

16. I can say at once that in my judgment questions 3 and 4 (which according to the Case raised matters not raised at trial) raise issues wholly irrelevant to whether the Appellant was correctly convicted.

17. As to question 3, the reminder notice could never have constituted a valid section 172 request. It is not necessary to set out its exact terms but put shortly it was simply a reminder of the original Notice of the 8th December 2011 and the obligation to respond to that Notice. Its relevance, given its receipt by the appellant was not in dispute, was confined to any consideration of any defence raised by the appellant under subsection (7)(b) (assuming proper service of the original notice had been established), as to which see below.

18. Equally, as regards question 4, the appellant could never have been convicted on the basis of (that is to say his non response to) the reminder notice because again that notice did not constitute a valid section 172 request and could not in itself give rise to any obligation to respond for the purposes of establishing any offence under section 172. Hence the issue of whether a proper Notice of Intended Prosecution associated with that reminder notice had ever been served is otiose.

19. The critical question on the correctness of this particular conviction in my judgment is question 1, namely:

"Were we correct in law to convict the Appellant even though the Appellant had not received the original request for information in the notice sent 8th December 2011?"

20. What is impossible to discern with any certainty from the Case is what the Justices meant by their finding that he appellant had not 'received' the notice of December 2011 ('the Notice'), given their earlier finding that the appellant had been sent the notice by first class post. The problem arises from the failure of the Justices expressly to address the critical question of whether the Notice had been properly served by post on the appellant for the purposes of an offence under subsections (2)(3) and (7).

21. On one interpretation, the Justices meant no more than the Notice had not been received by the appellant albeit that the Notice had been properly served by post, having been sent by first class post to the appellant's registered address, in accordance with the presumption arising under section 7 of the Interpretation Act. In which case the finding that the appellant had not actually received the Notice could have gone only to the Justices' consideration of any defence raised under subsection (7)(b), and even then would not have been decisive of whether that defence was made out (see again Whiteside at paragraphs 21 to 23).

22. If this is the correct interpretation of the Justices' findings then speaking for myself I would consider the appellant to be in considerable difficulty in seeking to challenge this conviction, given on any view the appellant did at some time become aware of the reminder notice and hence of his obligation to provide the required information requested under the original notice. The express terms of subsection 7(b) demonstrate that to make out the defence. it is necessary for a defendant to show (albeit only on the balance of probabilities) that it has never been reasonably practicable for him to provide the requested information even after the statutory period has expired and this (contrary to Mr Sonn's submissions) cannot be affected by the date of the offence with which he has been charged which necessarily will coincide with that expiry date.

23. However on further consideration the only sensible interpretation in my judgment of the finding of the Justices in this particular case that the appellant did not receive the Notice, given in particular their reference in the stated Question 4 to convicting the appellant 'on the basis of receipt of the reminder notice' is that they had in fact found on the evidence they had heard from the appellant that the presumption of delivery to the registered address in the ordinary course of the post, had been rebutted. In other words the finding that the 'appellant did not receive' the Notice has to be taken in the particular circumstances of this case (which are very different from those in Whiteside where as already indicated the postal delivery to the address was not challenged) as a finding, although not expressly spelt out, that the Notice had not been properly served upon him.

24. One of the unfortunate features of this case is the failure on all sides to ensure that the findings of fact were properly spelt out in the Case in all relevant particulars - to include a finding on the critical question of service of the Notice upon the appellant - together with a concise summary of the material evidence upon which those findings were made. The interpretation which I have put upon the Justices' finding that the appellant 'did not receive the notice' should not be taken as a statement of principle that in all cases evidence from a defendant that he 'did not receive the notice' automatically equates with a rebuttal of the statutory presumption of delivery of the notice in the ordinary course of the post to the appropriate address for service, and hence a rebuttal of the statutory presumption of service. As I have already endeavoured to make clear, the key to the establishment of an offence under section 172 (2) (subject always to the statutory defences available to a defendant) for failure to provide the required information within the required period where the statutory requirement has been made by written notice served by post, is not receipt of the notice by the defendant but that of proper or valid service upon him, which is not the same thing, and for which actual receipt by the addressee is not a statutory requisite. Unless the defendant's evidence goes further in explaining why receipt has not occurred by for example addressing the question of the delivery of post to his address, it is unlikely he will be able to rebut the presumption of service upon him.

25. However in the peculiar circumstances of this case my conclusion is that this court should proceed on the basis that the evidence of the appellant must have been such that the Justices were satisfied that the presumption of service upon him had been rebutted. In these circumstances as already explained it is unnecessary for this court to consider whether the Justices should have found as made out, the statutory defence under subsection 7(b). Absent service of the Notice of the 8th December 2011, upon the appellant there could be no question of any lawful conviction on the stated charge of failing to give the information required under that Notice.

26. For all these reasons I would allow this appeal.

27. Accordingly, the answer to Question 1 must be 'No', but only on the basis that the finding of the non receipt of the Notice by the appellant has been taken by this court to include a finding on the evidence that the presumption of proper service by post has been rebutted.

28. LORD JUSTICE MOSES: I agree. I have strong suspicion that the appellant in this case is extremely lucky that his good fortune arises from the failure of the justices clearly to state the facts which they found in the statutory context. The question for them was whether the notices had been served within the meaning of the relevant statutory scheme and whether the defendant had rebutted the presumption that that service was effective. The moral of this case is not that it is merely the responsibility of the legal advisers to the justices to ensure the case is stated clearly as to the facts that are found but also responsibility both of the appellant and the respondent if an unclear case is stated to seek clarification or, at worst, apply to this court for an amendment so that the sort of problems that have for the appellant had a happy outcome do not arise. So he will be acquitted.

29. MR SONN: There will be a direction that the matter is remitted for him to be acquitted?

30. LORD JUSTICE MOSES: Does it need to be remitted?

31. MR JUSTICE KING: Do we not have power ourselves to order an acquittal?

32. LORD JUSTICE MOSES: We can make any order that the justices can.

33. MR SONN: Sometimes one sees it.

34. LORD JUSTICE MOSES: One does sometimes. We will direct that he be found not guilty.

35. MR SONN: I am grateful. The only matter that arises is the defendant will be entitled at least to make an application for his costs in the lower court.

36. LORD JUSTICE MOSES: Can he not apply here?

37. MR SONN: If this court is content to deal with that matter in this court, otherwise it can be dealt with in that court.

38. LORD JUSTICE MOSES: We have got power to make any order that the magistrates could. So what are you asking us to do?

39. MR SONN: Can I invite your Lordships to make an order for costs from central funds in relation to the proceedings in the lower court, and I will deal with costs in this court in a moment.

40. LORD JUSTICE MOSES: Can we just deal with it all together.

41. MR SONN: The reason why I say that is separate is the law has since changed and they cannot be dealt with together.

42. LORD JUSTICE MOSES: I see.

43. MR SONN: In relation to the costs incurred in the court below, I invite an order.

44. LORD JUSTICE MOSES: Then the costs here?

45. MR SONN: Because central funds no longer exists in criminal cases in this court, I am bound to apply for an order against the Crown, and they were served with the schedule of costs.

46. LORD JUSTICE MOSES: I have not seen a schedule.

47. MR SONN: Can I hand up two copies.

48. LORD JUSTICE MOSES: What do you say, Mr Weaver?

49. MR WEAVER: My Lord, I do take issue in terms of the amount.

50. LORD JUSTICE MOSES: First of all, what about costs below?

51. MR WEAVER: My Lord, in light of the finding, that must follow.

52. LORD JUSTICE MOSES: Do we have to put an amount on it?

53. MR SONN: Can I assist? That will be to be taxed in the usual way.

54. LORD JUSTICE MOSES: That is that. What about here? It is far too much money, is it not? It looks to me like half of that. What would your schedule have looked like?

55. MR WEAVER: It would be about a third, less than a third. I spent not quite as long preparing it.

56. LORD JUSTICE MOSES: I simply do not know why it took four and a half hours to prepare but there we are.

57. MR SONN: In terms of the time taken, it is broadly the same. The court fee obviously arises in any event but obviously the difference between the respondent's rate and the appellant's rate, the total, is the hourly rate.

58. MR JUSTICE KING: The hourly rate is all right, it is just the hours. Four and a half hours sounds like a lot of rumination.

59. MR SONN: There are a number of cases in this field.

60. LORD JUSTICE MOSES: There are a number of cases but once you have found them they do not take very long to read.

61. MR WEAVER: It was a very simple point, although not easy to resolve.

62. LORD JUSTICE MOSES: It was much more difficult for us.

63. MR SONN: I am in your Lordships' hands.

64. LORD JUSTICE MOSES: So far as costs are concerned, it seems to us that the appellant should have his costs below, to be taxed if not agreed. So far as the costs here that we have to order, he is entitled to his costs but doing the best I can and acknowledging the skill, brevity and clarity of Mr Sonn and his team, we think that the hours spent were luxurious and so we propose to order that the Director of Public Prosecutions pay half of those costs at £1,500.

65. MR SONN: Does that include the court fee?

66. LORD JUSTICE MOSES: No, you can have the court fee on top of that.

67. MR SONN: So £1,735.

68. LORD JUSTICE MOSES: Yes, £1,735.

69. MR SONN: Can I just seek one matter for clarification, to avoid complications. In terms of the costs that your Lordships have kindly granted in respect of proceedings below, can the order say from central funds?

70. LORD JUSTICE MOSES: You draw up the order and then we will sign it.

71. MR SONN: I am grateful.

72. LORD JUSTICE MOSES: Thank you very much indeed.