JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
 

 Mr Justice Owen : 

1. Michael Mawdesley appeals by way of case stated against the decision of the Warrington Justices who on 25 October 2002 convicted him of an offence of exceeding the speed limit contrary to Regulation 3 of the Motorways Traffic (Speed Limit) Regulations 1974, Section 17(4) of the Road Traffic Regulation Act 1984 and Schedule 2 to the Road Traffic Offenders Act 1988.  Dwight Yorke appeals by way of case stated against the decision of the Manchester Crown Court on appeal from the Manchester City Magistrates Court upholding his conviction for speeding contrary to section 89(1) of the Road Traffic Regulation Act 1894.  The issues to which the appeals give rise are closely related and in consequence on 3 March 2003 Maurice Kay J directed that they should be heard at the same time and before the same judge.

2. The Facts

Michael Mawdesley

On 7 April 2002 a police officer was operating a speed camera from a bridge over the M56 when the speed of a motor car, registration number H9 JPR, was checked by approved equipment and found to be travelling in excess of the speed limit.

3. On 25 April 2002 Notice of intended prosecution was sent to Mr Mawdesley.  He was not the registered owner of the vehicle; and the form said inter alia that –

“The current owner of the vehicle, or any other person who is able to do so, is required by law to give any information which will lead to the identification of the driver.

You have been named as the driver/hirer of the above vehicle at the time of the alleged offence.  If you were the driver at the time of the alleged offence, you are required to provide your full name, address and date of birth.”

“IF YOU WERE THE DRIVER AT THE TIME OF THE ALLEGED OFFENCE, COMPLETE THIS SECTION ONLY.”

“I was the driver of the vehicle registered number H9 JPR at the time of the alleged offence.”

4. The form sent to Mr Mawdesley was returned to the Motorway Unit of the Cheshire Constabulary on 16 May 2002.  Mr Mawdesley’s driver number had been inserted in handwriting.  So too had his name and address together with his date of birth.  But the spaces for his signature and date were left blank.

5. On 17 June 2002 an information was preferred alleging an offence of speeding.  The subsequent hearing took place on 25 October 2002 before the Justices for the County of Cheshire sitting in the Petty Sessional Division of Warrington.  Mr Mawdesley did not appear, but was represented by a solicitor who made a submission of no case to answer on the basis that the court could not rely upon the unsigned response to the requirement to supply information under section 172.  That submission was rejected by the Magistrates; and the Appellant was duly convicted.

6. The Justices’ reasoning is set out in the Statement of Case -

“3. It was contended by the appellant that the case was not proved beyond a reasonable doubt on the basis that the Respondent had not revealed the identity of the driver of the said vehicle due to the fact that the said Response Form had not been signed. 

The Appellant accepted that the requirement of Section 12(1)(a) Road Traffic Offenders Act 1988 was satisfied in so far as the said Section 172 notice was served upon the Appellant by post.

The Appellant did not accept that the provision of Section 12(1)(b) Road Traffic Offenders Act was satisfied. 

The Appellant maintained that the Response Form had not been signed and whilst it contained details relating to the Appellant, the document had not been signed, that there was clearly a space dedicated for the purposes of such a signature being inserted across from the word “sign” and that in the Appellant’s submission it would be absurd to suggest that in the absence of such a signature made in or about the dedicated space (or anywhere else for that matter) on the said Response Form it could be regarded as signed.

The implication being of course that if the said Response Form was not signed it could not be accepted in evidence as per the provision of Section 12 Road Traffic Offenders Act 1988 and there being no other evidence to establish the Appellant’s identification, the Respondent’s case would have to fail.

4. (After setting out Section 12(1) of the Road Traffic Offenders Act 1988) the Respondent contended that the Response Form was completed in that it included details of a driver license number, a full name and address, a date of birth and details of an occupation and most importantly the name of Michael Mawdesley had been written (in block capitals) and the abbreviations of Mrs, Ms and Miss had been deleted.  These details according to the Respondent constituted a signature and as such the Response Form could be regarded as signed by the Appellant. 

5. We were of the opinion that the Response Form had been signed by the Appellant and had no reason to believe otherwise.  The Appellant had accepted that the Notice of Intended Prosecution had been served upon him in the post and that a reply had been received.

The Appellant was not present at court to give evidence to refute that he was the person who had signed the Section 172 Notice and returned it to the police.  The Appellant proceeded by way of submission through his legal representative that the prosecution had failed to discharge the burden of proving the case beyond all reasonable doubt. 

We are satisfied in the absence of such evidence that the Appellant had been the person who had completed the form “a manual signature written with his own hand” and as such the provisions of Section 12(1)(b) Road Traffic Offenders Act 1988 had been complied with and we were entitled to use our discretion to admit the statement as evidence that the Appellant was the driver of the vehicle on this occasion.”

7. By their case stated the Justices posed the following question for the opinion of the High Court -

“As a matter of law were the Justices correct in finding that the Section 172 notice, attached to this application, was admissible pursuant to Section 12(1)(b) Road Traffic Offenders Act 1988.”

8. Dwight Yorke

Dwight Yorke was the owner and registered keeper of a motor vehicle which on 17 May 2001 was recorded by an approved laser device as travelling in excess of a 40 miles per hour speed limit in Princess Road, Withington.

9. On 29 May 2001 a notice of intended prosecution was sent by post to Mr Yorke at his address.  As in the case of Mawdesley it was accompanied by a form requiring him to provide information under section 172 of the Road Traffic Act 1988.  A reminder was sent by post on 19 June 2001.

10. The form was duly returned on 26 July 2001.  The box for the driver license number had been left blank; but Mr Yorke’s name and address had been inserted in the appropriate boxes by hand in block capitals.  His date of birth had also been inserted.  As in the case of Mawdesley the boxes for “drivers signature” and “date” had been left blank.

11. On 2 May 2002 Mr Yorke was convicted of the speeding offence by the Manchester Magistates Court.  He appealed to the Crown court against his conviction.

12. The appeal came before the Crown Court on 30 October 2002.  At the close of the prosecution case it was submitted on behalf of Mr Yorke that there was no case to answer on the basis that the court could not rely upon the unsigned Section 172 Notice; and that in consequence there was no admissible evidence that Mr Yorke was the driver of the vehicle on the occasion in question.  That submission was rejected.  Mr Yorke did not give evidence; but evidence was given on his behalf by Simon Bailiff, his agent, who gave evidence that he had completed the form, but that he had been acting without the authority of Mr Yorke.  The court accepted that he had made the entries on the form, but was satisfied that he was acting with the authority of Mr Yorke.

13. In giving the judgment of the court dismissing the appeal His Honour Judge Humphries addressed the issue with which I am now concerned in the following terms

“We find the case proved.  The only issue is identity of that we had to be sure or the Defendant would have to be found not guilty.  We considered that the fact of the Defendant being registered keeper, the notices being sent to his address, and to him as registered keeper, the reply document to say that he was driver, together amounted to a case to answer that Dwight Yorke was the driver.  That was our earlier decision.  So we heard the defence case.

Now we had to consider the whole of the evidence. The Defendant submits again that document 2 is not admissible here we now have evidence from the man who says he wrote the documents including evidence on which we can make a decision as to whether it was made with authority.  We do not rule the evidence now as inadmissible.

I reminded myself and the Magistrates of the law, obviously, that the prosecution must prove their case and make us sure of guilt or else be found not guilty.  Also, the Defendant himself chose not to be present and not to give evidence and be represented.  The defendant knew and knows that if he chooses not to give evidence, the Tribunal of Fact may draw such inferences as appear proper from his failure to do so.”

The court went on to find that “We are sure that Dwight Yorke was driving the car on the occasion in question.”

“Can a returned partially completed notice under s 172(2) of the Road Traffic Act 1988 be considered by the court as part of the evidence of a speeding driver’s identity though unsigned and not complying with 12(b) of the Road Traffic Offenders Act 1988.”

15. The Relevant Statutory Provisions

Section 172 of the Road Traffic Act 1988 (RTA) imposes a duty to give information as to the identity of the driver of a motor vehicle.  The duty arises in the circumstances specified in sub-sections 1 and 2.  Sub-section 1 sets out the offences to which the section applies, a list that includes the offences with which both Appellants were charged.  Section 172(2) provides that -

“(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.

16. Section 172(3) provides that a person who fails to comply with a requirement under sub-section (2) shall be guilty of an offence.  Sub-section (7) provides that a requirement under sub-section (2) may be made by written notice served by post.

17. Section 12 of the Road Traffic Offenders Act 1988 (RTOA) provides -

“(1) Where on the summary trial in England and Wales of an information for an offence to which this sub-section applies-

(a) it is proved to the satisfaction of the court, on oath or in manner prescribed by rules made under Section 114 of the Magistrates Courts Act 1980, that a requirement under Section 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.”

18.  The Issues

The narrow issue in Mawdesley’s case is whether the court erred in finding that the section 172 form was a statement in writing purporting to be signed by the Appellant within the meaning of section 12(1)(b) of the RTOA.  If the magistrates court were in error, then it is submitted that, as in the case of Yorke, there was no basis on which the form could be admitted as evidence of the identity of the driver on the relevant occasion, and that in the absence of any other evidence as to the identity of the driver, the prosecution had failed to establish a case to answer.

19.  Mr Walsh, who appeared for the Respondents to both appeals, submitted in relation to Mawdesley’s case that the section 172 form was signed within the meaning of section 12(1)(b); but that in any event section 12 does not preclude the admission of evidence as to the delivery, return and content of a partially completed but unsigned section 172 form, that in both cases the forms and their contents were admissible in evidence and thirdly that they gave rise to a case to answer against each of the Appellants. 

20.  Mr Walsh further submitted that once a prime facie case had been established, it was then open to the Appellant to rebut that case through admissible evidence, and secondly that in such circumstances and where the Appellant failed to give evidence, the court was entitled to draw adverse inferences from such failure under Section 35(3) of the Criminal Justice and Public Order Act 1994.  But that argument only comes into play if an unsigned Section 172 form is admissible in evidence and gives rise to a case to answer. 

21.  Accordingly the appeals give rise to three issues, namely -

(1) whether a section 172 form in which the name of the driver is inserted by hand, but in which the space for a signature is left blank, is “a statement in writing purporting to be signed by the accused…” to which section 12 of the RTOA applies,

(2) whether an unsigned section 172 form identifying the Defendant as the driver on the relevant occasion is admissible evidence of that fact,

(3) if the answer to (2) above is yes, whether, together with evidence as to the commission of the offence, such evidence is capable of giving rise to a case to answer.

22.  The issues to which these appeals give rise are of wide importance given the prevalence of the use of laser and photographic technology to check the speed of motor vehicles.  Mr Laprell, who appeared for Mr Mawdesley, submits that there is a lacuna in the law in that a person who does not sign a section 172 form is arguably not guilty of the offence of failing to comply with a requirement to provide information.  Section 172 (3) provides that a person who fails to comply with a requirement under sub-section (2) shall be guilty of an offence.  Under sub-section (2) the registered keeper of a vehicle “shall give such information as to the identity of the driver as he may be required to give …”.  Mr Laprell argues that the signature that enables a court to accept a statement as evidence that the accused was the driver of the vehicle on the relevant occasion under section 12 of the RTOA, is not part of the information that a person may be required to give under section 172; and that accordingly a person who supplies the information requested, namely his drivers number, name and address, date of birth and occupation, but who does not sign the form has discharged his obligations under section 172, and has not committed an offence under section 172(3).  If that submission is well founded, and if the Appellants’ submission that a part completed but unsigned section 172 form is not admissible as evidence of the identity of the driver, a person who does not sign the form may escape conviction for the original offence and for the offence of failing to comply with a requirement to provide information. 

23.  The possible lacuna in the law explains why the issues with which I am concerned are arising frequently in prosecutions for speeding offences.  Knowledge that it may be possible to escape conviction for the original offence and to avoid prosecution under section 172(3) by completing the section 172 form but not signing it, would appear to be widespread.  Mr Walsh, counsel for both Respondents, likened it to the spread of a virus.

24.  I accept that if the Appellants are right in their submission that an unsigned section 172 form is inadmissible, then there may be a lacuna in the law.  But that is not an issue that it is necessary for me to resolve for the purposes of these appeals. 

25.  Issue 1

As to the first issue it is submitted on behalf of the Respondent that in Mawdesley the Warrington Justices were fully justified in concluding that the insertion of the name ‘Michael Mawdesley’ in hand written block capitals amounted to “a manual signature written with his own hand”, and therefore complied with the requirements of section 12(1)(b).  In support of that submission Mr Walsh sought to rely upon the following proposition set out in Phipson on Evidence 15th Edition 40-04 –
 

“As a general rule, even where signature is required by statute and for solemn documents a manual signing is not essential; any form in which a person affixes his name, with intent that it shall be treated as his signature, is sufficient.”

The critical feature of that general proposition is that in whatever form a person affixes his name, he does so with the intent that it shall be treated as his signature. 

26.  The form used by the Cheshire Constabulary reflects the distinction between the information that the registered keeper is required to provide under section 172, and the signature that serves to authenticate such information and enables it to be used under section 12 of the RTOA as definitive proof that the accused was the driver on the relevant occasion.  It is sent with the Notice of Intended Prosecution; and the recipient must know that serious consequences may flow from the receipt of the information that he provides.  On the assumption that it was Mr Mawdesley who inserted his name in block capitals, I do not consider that it is possible to infer that he intended that to be treated as his signature, given the design of the form and the fact that the spaces beside the printed words “signed” and “date” were left blank.  It cannot sensibly be said that the insertion of a name in block capitals in the appropriate place on the form but with the space for the signature left blank, amounts to a “statement in writing purporting to be signed by the accused.”

27.  It follows that in my judgment a section 172 form completed with some or all of the information required to be given, but not bearing any signature or mark in the space designated for the signature does not satisfy the requirements of section 12.  Accordingly the question posed in the case stated in Mawdesley must be answered in the negative.

28.  Issue 2

The second issue concerns the admissibility in evidence of an unsigned section 172 form.  Section 76(1) of the Police and Criminal Evidence Act 1984 (PACE) provides that –
 

“In any proceedings, a confession made by an accused may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and it not excluded in pursuance of this section.”

Section 82(1) defines a confession as “…any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words of otherwise”. 

29.  If it was properly to be inferred from the evidence that the entries in the unsigned section 172 forms were made by the Appellants, they amounted to confessions within the meaning of section 82(1) of PACE, and could be proved in accordance with section 27 of the Criminal Justice Act 1988, which provides that  –

“27.  Where a statement contained in a document is admissible in evidence in criminal proceedings it may be proved –

(a) by production of document; or

(b) whether or not that document is still in existence by the production of a copy of that document, or of the material part of it,

authenticated in such manner as the court may approve; and it is immaterial for the purposes of this subsection how many removes there are between a copy and the original…”

31.  In the course of the further submissions it was accepted by counsel for both the Appellants and the Respondents that if completed by a Defendant, an unsigned section 172 form could amount to a confession within the meaning of Section 82 of PACE.  Mr Walsh for the Respondents acknowledged that that was the only basis upon which such evidence could be admitted.  But counsel for the Appellants argued that the forms were inadmissible on three grounds. 

32.  First it was submitted that it could not properly be inferred from the evidence adduced by the prosecution that the entries on the forms were made by the Appellants, as the possibility that the forms had been completed by another could not excluded.  It was submitted that the point was demonstrated by the fact that following the unsuccessful submission of no case to answer in Yorke’s case, the defence called evidence that the form had been completed by his agent.  But I am satisfied that it would have been open to the court to infer from the fact that the Notices of Intended Prosecution was sent to the Appellants at their addresses, and were returned bearing the detailed information set out in relation to Mawdesley in Paragraph 4 above, and in relation to Yorke in paragraph 10, that in each case the entries were made by the Appellant.

33.  Secondly it was submitted on behalf of the Appellants that had the prosecution sought to adduce such evidence upon the basis that the section 172 forms amounted to confessions, there would have been an objection to their admission on the grounds that there had been a failure to comply with the code of practice under PACE in that no caution had been administered; and the court would have been invited to exercise its discretion to exclude such evidence under Section 78 of PACE. 

34.  Mr Laprell relied on C.10.1 of the Code of Practice in the edition current at the time of both prosecutions.  The paragraph has since been revised, but not in such a manner to affect the issue.  C.10.1 provides that –

“A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions which provide the ground for suspicion) are put to him regarding his involvement or suspected involvement in that offence if his answers or his silence(i.e. failure or refusal to answer a question or answer satisfactorily) may be given in evidence to a court in a prosecution.  He therefore need not be cautioned if questions are put for other purposes, for example, solely to establish his identity or his ownership of any vehicle or to obtain information in accordance with any relevant statutory requirements (see paragraph 10.5C) or in furtherance of the proper and effective conduct of research, (for example to determine the need to search in the exercise of powers of stop and search or to seek co-operation when carrying out a search) or to seek verification of a written record in accordance with paragraph 11.13.”

35.  In this context there is a distinction to be drawn between the two cases.  I was informed by counsel that Mawdesley was not the registered owner of the vehicle in question.  It follows that Notice of Intended Prosecution was sent to him as result of his having been identified as the driver by the registered keeper.  Mr Laprell therefore argued that in Mawdesley’s case there were grounds to suspect him of having committed the offence before the Section 172 form was sent to him, and that in those circumstances the failure to administer a caution would have been fatal to an attempt to adduce the confession in evidence. 

36.  In contrast Mr Yorke was the registered owner of the vehicle; and in his case the purpose of sending the form to him was to establish the identity of the driver.   Thus it could be argued that the obligation to administer a caution had not arisen.

37.  But in any event I am satisfied that the requirement to provide information under section 172 falls within the exceptions to the need for a caution contained in the second part of C.10.1, which provides that a person need not be cautioned if questions are put “…to obtain information in accordance with any statutory requirement…”.  The section 172 forms were sent to the Appellants for that purpose.  It follows that in my judgment C.10.1 of the Code does not impose an obligation to caution in such circumstances.  The same applies to the current edition of the Code which came into effect on 1 April 2003.

38.  Accordingly an objection to the admission of such evidence on the basis of failure to comply with the code of Practice, could not have succeeded.

39.  The third argument advanced on behalf of the Appellants was that the admission of the section 172 forms would have infringed their rights to a fair hearing under Article 6 of the ECHR.  In this context Mr Laprell drew my attention to Brown v Stott [2001] 2WLR 817, in which the Privy Council addressed the admissibility of an admission obtained in response to request under section 172.

40.  The Privy Council held that section 172, properly applied, did not represent a disproportionate legislative response to the problem of maintaining road safety, and that accordingly it was not incompatible with the Defendant’s rights under Article 6 for the Procurator Fiscal to lead and rely on evidence of her admission obtained under the compulsion of Section 172 (2) (a) that she had been the driver of the motor vehicle.  As Lord Bingham of Cornhill said at 837E-H -

“All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime which does not apply to members of the public who do neither.  Section 172 forms part of that regulatory regime.  This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the State but the possession and use of cars … are recognised to have the potential to cause grave injury.  It is true that section 172 (2) (b) permits a question to be asked of “any other person” who, if not the owner or driver, might not be said to have impliedly accepted the regulatory regime, but someone who is not the owner or driver would not incriminate himself whatever answer he gave.  If, viewing the situation in the round, one asks whether Section 172 represents a disproportionate legislative repine to the problem of maintaining road safety, whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual, whether (in short) the leading of this evidence would infringe a basic human right of the defendant, I would feel bound to give negative answers.  If the present argument is a good one it has been available to British citizens since 1966, but no one in this country has to my knowledge, criticized the legislation as unfair at any time up to now.” 

41.  The confessions in issue were obtained in response to the requirement to provide information under section 172, and accordingly the decision in Brown v Stott would appear to be conclusive as to any Article 6 argument.  But Mr Laprell sought to argue that Brown v Stott could be distinguished.  He submitted that in addressing the issue of proportionality, a distinction is to be drawn between drink/driving as in Brown v Stott and speeding offences.  I do not agree.  Speeding may present the gravest danger to the public.  It cannot sensibly be argued that it is disproportionate to admit an incriminating answer to a Section 172 request in a speeding case, but not in drunk/driving case.

42.  Accordingly I am satisfied that if it is properly to be inferred from the evidence before the court that an unsigned Section 172 form was made by the Defendant, it is admissible in evidence as a confession.

43.  Issue 3

As to the third issue, in each case the evidence as to the commission of the offence was unchallenged.  The sole issue was the identity of the driver. The question is therefore whether an unsigned section 172 form, admissible in evidence as a confession, was capable of giving rise to a case to answer.  That question must be answered in the affirmative given my conclusion that it was open to the court in each case to infer from the evidence that the entries on the form were made by the Appellant (see paragraph 32 above). 

44.  But a further point arises in relation to Yorke’s case.  The court having found that there was a case to answer, evidence was called by the Defence to the effect that the form had in fact been completed by Mr Yorke’s agent, Mr Bailiff.  The court accepted that Mr Bailey had completed the form, but rejected his evidence that he was not doing so on behalf of Mr Yorke.  It was submitted by Miss Judge that had the case been advanced on the basis that the section 172 form amounted to a confession, the defence would have challenged its admission, and sought a trial within a trial before the conclusion of the prosecution’s case, in the course of which Mr Bailey’s evidence would have been adduced.  Had that happened the court would have been bound to conclude that the form was not a confession within the meaning of PACE as it was not made by Mr Yorke, and was therefore not admissible in evidence.  There would then have been no evidence as to identity of the driver, and the court would have been bound to hold that there was no case to answer.

45.  In my judgment that submission is well founded.  The prosecution’s case was not advanced upon the basis that the partially completed section 172 form constituted a confession within the meaning of PACE, and thus the Appellant did not have the opportunity to challenge its admissibility on the basis that it was not made by the Appellant, a challenge that would inevitably have succeeded given the findings made with regard to the evidence of Mr Bailey.   Thus notwithstanding that the question posed in the case stated in Yorke is to be answered in the affirmative, it follows from the proper analysis as to the basis upon which a partially completed section 172 form may be admitted in evidence, that his conviction cannot stand. 

46.  Conclusions

Mawdesley

The justices resolved the issue of whether the prosecution had established a prima facie case on the erroneous basis that the section 172 form was “a statement in writing…purporting to be signed by the accused” within the meaning of section 12 of the RTOA 1988.  In those circumstances the conviction must be set aside.  The question then arises as to whether the case should be remitted to the Justices for rehearing.  Mr Laprell submitted that as the prosecution had presented the case on an erroneous basis, it would be unfair to the Appellant for the case to be remitted.  I do not agree.  The conviction will be set aside and the case remitted to the Warrington Justices for rehearing.

Yorke

As indicated in paragraph 46 above Mr Yorke’s conviction must be set aside.  As there was no other evidence available to the prosecution upon which to prove the identity of the driver, it is not appropriate to remit the case to the Crown Court for a rehearing.

To follow...