An information was laid against the defendant that he had failed to provide information as to the identity of a driver required by the Chief Officer of Police for Avon and Somerset, contrary to s 172(3) of the Road Traffic Act 1988. A notice of intended prosecution was posted to the defendant in September 2001, after his vehicle was spotted exceeding the speed limit. The notice, in standard form, indicated that the defendant should fill out the relevant section, sign it and return it to the address which was supplied. In October 2001, the defendant telephoned the police and impliedly admitted that he was the driver of the vehicle. He never returned the notice to the police. The defendant was convicted in his absence by the justices and appealed. The Crown Court determined that it had been implicit through his telephone conversation that he had been the driver of the vehicle, and that he had therefore provided the information to the police. The prosecution appealed by way of case stated. It contended that while s 172 did not expressly provide a requirement that the information should be provided in any specific way, it was implicit in the scheme that where a defendant was required by a notice to provide information in writing, he should be obliged to do so. It further submitted that the reason it was necessary to insist on the provision of a written reply was that the defendant would sign the notice, thus rendering it admissible in evidence. 

The appeal would be allowed. 

The Crown Court had been wrong to hold that the provision of information orally was sufficient to meet the requirements of s 172 of the Road Traffic Act 1988. The requirement that the information should be given in written form was not merely a whim, but was specifically directed at enabling the document to be accepted as evidence against the accused driver in question. Moreover, where the notice provided how the information should be given, it would be implied that it should be provided in that manner, provided the request was reasonable. 
Boss v Measures [1990] RTR 26, [1989] Crim LR 582 applied. 
 

JUDGE WILKIE QC:

[1]  This is an appeal by the Director of Public Prosecutions by way of case stated against the decision of Mr Recorder Parroy QC sitting with justices on 18 April 2002 at the Crown Court at Bristol, which upheld an appeal by Mr Broomfield against his conviction by the Bath/Wansdyke Mendip Magistrates’ Court on 15 January 2002 for breach of s 172(3) of the Road Traffic Act 1988.

[2]  Mr Broomfield is not present in court, nor has he been represented. Miss Tallentire, who has very fully and fairly presented the case on behalf of the Director of Public Prosecutions, has indicated that I am not requested, if I find in her favour, to remit this matter to the magistrates, but simply to answer the question posed in the case stated in such a way as effectively reverses the determination of the Crown Court.

[3]  The issue is one of considerable practical importance. It concerns the extent of the obligation on those who receive a requirement to provide information to the police as to the identity of the driver of the vehicle of which they are the registered keeper when that vehicle has been caught on camera either speeding or going through a red light. 

[4]  I am told that Avon and Somerset Constabulary issue some 100,000 of these notices per annum, and of course throughout the whole country that will amount to many hundreds of thousands a year. 

[5]  The case stated sets out a number of findings of fact as follows. On 28 August 2001 PC Greenhalgh saw a Rover motor car, index F848 CYC, being driven in excess of the speed limit on Winterstoke Road in Weston-super-Mare. 

[6]  The notice of Intended Prosecution dated 4 September was sent to the registered owner of that vehicle, Mr Broomfield, and Mr Broomfield received that Notice of Intended Prosecution. 

[7]  That notice took the usual form. It offered the recipient, if he was the driver, the option of submitting to a fixed penalty. If that were his choice, he would send the form signed to that effect in an envelope provided to a specific address, the Fixed Penalty Office in Taunton. 

[8]  However, there was an alternative course, which was to provide information required under s 172 of the Road Traffic Act. In either case, the form highlighted at p 2 that the recipient must reply to the notice within 28 days otherwise they may be prosecuted and their driving licence may be endorsed. 

[9]  Page 4 sets out in a series of printed boxes a number of options as to the information which was required to be provided, depending upon whether the person was at the time the owner, keeper, hirer of the vehicle, whether that person was or was not the driver. The significance of this form, however, is that in each case the person providing the information was required to do so in a specific written form and to sign the information that was provided. 

[10]  On 18 October 2001 Mr Broomfield telephoned the Camera Processing Unit of the Avon and Somerset Constabulary and had a conversation with an operator called Susan Lewis, who made a contemporaneous note summarising that conversation. A copy of that note was before the court, and it was agreed that the substance of the conversation was that Mr Broomfield did not have both parts of his driving licence and that both parts were to be needed if he were to accept the fixed penalty option. Further, that he would need to telephone the DVLA to enquire whether he would need to apply for a new driving licence or simply a new counterpart. This information had not been before the justices who had convicted Mr Broomfield initially. 

[11]  The Crown Court further found that the Notice of Intended Prosecution was not completed, signed and returned to the police by Mr Broomfield, whether or not within 28 days or at all. The evidence of a witness whose statement was read to the court was that by 5 November no reply had been received from Mr Broomfield. 

[12]  As a consequence of his failure to reply to the notice, he was prosecuted under the offence of s 172(3) of failing to comply with the requirement under sub-s (2), sub-s (2) imposing the following requirement: 

“Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies - [and it was common ground that the offence observed was such an offence] 

(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, . . .” 

[14]  The questions posed for me in this case are: firstly, whether they were correct in finding that the provision by the Respondent of the following information: 

(i) that he was the registered keeper of the vehicle; and. 
(ii) that he was the driver of the vehicle on the relevant occasion, 

[15]  Section 172(7) is relevant for these purposes. It provides: 

 “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, . . .” 

[16]  It is right to say that nowhere in s 172 is there any express requirement that the information should be given to any particular officer or department within the constabulary, nor is there any indication as to how that information should be given; that is to say, whether it has to be in writing or may be given orally on the telephone or in some other way. 

[17]  The decision of the Crown Court was to the effect that there was sufficient compliance with the duty under s 172 when the information was given orally. The Director of Public Prosecutions argues that that is wrong, and that it is implicit in the scheme under s 172 that where the requirement is made by written notice pursuant to s 172(7) and where the written notice specifies how the information is to be given, then the information must be given in that way if the requirement as to how the information is to be given is a reasonable one. 

[18]  The question whether there is to be implied any such provision has been considered by the Divisional Court in connection with a similar provision in the case of Boss v Measures [1990] RTR 26, [1989] Crim LR 582. The provision in issue was s 112 of the Road Traffic Regulation Act 1984, which applies in respect of different principal offences. But S112(2) provides that: 

“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 - . . .” 
and sub-s (4): 
   “. . . a person who fails to comply with the requirements of subsection (2)(a) above shall be guilty of an offence . . .” 

[19] The sole difference between s 112 and s 172 is that there is no provision equivalent to sub-s (7) in the statutory scheme under s 112, and therefore there is nothing explicitly stated as to the time within which information should be given if the requirement is to be made in a specific form. 

[20]  That latter point was the subject of a specific statement by the Divisional Court, which decided that clearly there must be a requirement to provide the information within a time which is either specified by the requesting authority or within a reasonable time, because otherwise there would never be a situation where an offence would be committed. 

[21]  However, the Divisional Court went on to consider the question whether the requirement for the information to be given needs to be in any specific form, notwithstanding the fact that there is nothing express in that section. At p 31F of the report Woolf LJ (as he then was) says as follows: 

“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.” 

[22]  Saville J (as he then was) agreed. He said: 

  “. . . it must be implicit in s 112 that the local authority, or the chief officer of police as the case may be, can require information as to the identity of the driver to be given within a reasonable time and by reasonable means.” 

  “Where on the summary trial in England and Wales of an information for an offence to which this subsection applies – 

(a) it is proved to the satisfaction of the court, on oath or in manner prescribed by rules made under s 144 of the Magistrates’ Court Act 1980, that a requirement under s 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.” 

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

[26]  As I have indicated, there is no request that this matter be remitted to the court. Therefore I simply content myself with determining the questions in that manner. 

[27] Thank you. 

MISS TALLENTIRE:

[28] Thank you, my Lord. 
 

His Honour Judge Wilkie was asked to determine if a verbal reply was sufficient to satisfy section 172. He determined that it was not. In the process of his determination he made a remark about a signature on the form. Since he had not been asked to determine if a signature would be required, we cannot know if he gave full consideration to the consequences of declaring that S172 required - effectively - a signed witness statement for proper satisfaction.

Since HH Judge Wilkie's remark in [24] was not central to the judgement in this case, every legal opinion that we have received is that the reference to "...and signed by the accused..." is obiter dictum (=a remark, spoken in passing) and as such does not create case law regarding the matter of signature. Indeed, there's no evidence to suggest that the possibility of a form being unsigned was even considered.

We have also received multiple legal opinions that to promote "information" in section 172 to a "signed witness statement" is a leap too far for case law and would require a change in legislation. In the Pickford case HH Judge Ticehurst said this: "The Court accepted that there was a lacuna in the law in that although the registered keeper is under a duty to identify the driver he is not required to make a witness statement to that effect.   While this might be an unattractive finding it was not the Court's function to fill in or remedy defective legislation. This was the function of Parliament."

We note that despite many cases of unsigned forms in the legal system, the CPS have never appealed an unsigned forms case to the level where precedent might be set. We well suspect that they chose to appeal Broomfield (and in Broomfield's absence, no less) in the hope of getting an apparent loophole closing statement. That's exactly what they achieved. An "apparent loophole closing statement".

We are advised that because the case was undefended and and because Judge Wilkie sat alone, the case is somehow weaker. But frankly I'm not at all sure I fully understand that. :)

We have received clear legal opinion from multiple sources that DPP-v-Broomfield is not authority on the issue of signing a reply form provided under S172 of the Road Traffic Act 1988. In fact the only parties who purport to disagree are the Police and the CPS. Therefore we believe the loophole is open.