Saturday, 29 September 2018

Footballers, flashy cars and motoring offences

Footballers, flashy cars and motoring offences have been in the news recently.

It was reported that  Southampton player Mario Lemina admitted three counts of failing to identify himself in March and May -BBC News 4 September.  Aldershot Magistrates Court dropped the speeding charges, but gave Lemina 18 points on his non-UK driving licence, taking his points tally to 39.   Lemina, 25, of Ashley Heath, Dorset, was fined £660 for each of the three offences, in addition to a victim surcharge.  His Mercedes was caught on speed camera three times breaking the limit.

The offence in question arises under section 172 of the Road Traffic Act 1988.  Basically, if the driver of a vehicle is alleged to be guilty of certain offences (e.g. speeding), the person keeping a vehicle ("the keeper") is under a duty to 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.  A person who fails to comply with a such requirement shall be guilty of an offence.  The offence is punishable with a Level 3 fine (maximum = £1000) and 6 penalty points.

Normally, on obtaining 12 points a driver must be disqualified - Road Traffic Offenders Act 1988 section 35.  A driver might avoid disqualification if the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction.  It is not explained how Mr Lemina avoided disqualification with 39 points. Although he holds a non-UK licence he could still have been disqualified for driving in the UK.

Note:  There were some earlier and inaccurate reports that Mr Lemina had been fined some enormous sum of money - e.g. Evening Standard 4 September.

Turning now to Mr David Beckham.  He avoided conviction for speeding on the basis that the required Notice of Intended Prosecution was not properly served - The Telegraph 28 September - David Beckham 'shirking responsibility as role model' after dodging speeding conviction on technicality.

The law is set out in the Road Traffic Offenders Act 1988 section 1 which is concerned with making people aware that they are either going to be prosecuted or are under consideration for prosecution.  Section 1 commences with a very clear statement -  "... a person shall not be convicted of an offence to which this section applies" unless the requirements of the section are complied with.  The section is considered more fully below.

Mr Beckham's case had a particular set of facts.  He was accused of driving the car - a Bentley on loan to him from the manufacturer -  over the speed limit on the A40 shortly after 5.30pm on January 23.  The NIP was one of 3,487 sent by Scotland Yard on February 2, which go by first-class post and, to comply with the law, should have arrived at Bentley (the registered keeper of the vehicle) no later than February 6.   After hearing witnesses from both the Metropolitan Police and Bentley Motors Ltd, District Judge Barbara Barnes said she was satisfied it did not arrive until February 7.  It appeared that Bentley's post room date stamps all letters as they arrive.

Mr Beckham is fully entitled to have the law applied as it has been enacted even though he was, on his own admission, driving 19 mph over the speed limit.  However, "petrol-heads" generally might care to consider the dangers of speeding as set out in this 2002 Parliamentary report -

----- 0000000 -----

The law - Road Traffic Offenders Act 1988 section 1.   Section 1 contains a specific statement that a person shall not be convicted of an offence to which the section applies unless the requirements of the section are complied with.  Here is a clear legislative requirement inserted by Parliament.

Lord Justice Donaldson in Gibson v Dalton [1980] RTR 410 stated the underlying rationale of section 1 - " ... motorists are entitled to have it brough to their attention at a relatively early stage that there is likely to be a prosecution in order that they may recall, and, it may be, record the facts as they occurred at the time."

Section 2 of the Act sets down some situations when section 1 does not apply - e.g. to an offence if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.

Section 1 only applies to the offences set out in Schedule 1 and speeding is included.

Section 1(1) sets out how the driver is to be informed.  It can be - (a) warning at the time of the offence (e.g. if D is stopped by the Police) or (b) service of a summons within 14 days of the offence, or  (c) Notice of Intended Prosecution (NIP) served on the driver or registered keeper within 14 days of the offence.  NIP is the more usual method.

Problems can arise over the question of service of the NIP - see section 1A.

The more usual method of service is to post the NIP using First Class post addressed to the registered keeper's address.   Interestingly, if the Police were to send the NIP by registered post or recorded delivery then section 1(2) applies but use of those postal methods appears to be rare - presumably on grounds of cost.  Section 1(2) provides that a notice of intended prosecution sent by registered post or recorded delivery to the person's last known address is deemed to be served notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.  However, that provision does not apply to use of First Class Post.

Section 1(3) provides - "The requirement of subsection (1) above shall in every case be deemed to have been complied with unless and until the contrary is proved."  Hence, the defence has the burden of proving non-compliance.  The standard of proof is balance of probabilities.

The Interpretation Act 1978 section 7 is applicable - 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.

"Ordinary course of post" for first class mail is the second working day after posting - see Criminal Procedure Rules 4.11(2)(b).

The law was considered in Gidden v Chief Constable of Humberside [2009] EWHC 2924 (Admin) - Elias LJ and Openshaw J.  The case arose because there was a postal strike.  The question the High Court was asked to answer was -

"Whether, upon a proper construction of section 1(1)(c), section 1A(c) and section 1(3) of the Road Traffic Offenders Act 1988 a Notice of Intended Prosecution should be regarded as having been properly served where the Notice was sent to the Defendant by first class ordinary post on a date that would normally lead to it being delivered within the 14 day time limit but where the Court is satisfied that it was actually delivered after the 14 day time limit."

The answer was that it was not properly served.

Hence, a NIP sent by first class post should be posted so that, in the ordinary course of post (=2 days), it will arrive.  If that is done then service is presumed - section 1(3) - but if delivery over 14 days can be proved by the defendant then the presumption is rebutted and there can be no conviction.

As the Elias LJ noted - I appreciate that this construction of the legislation may create problems for the police and prosecuting authorities, particularly when the postal service is on strike with the inevitable delays in delivery. The authorities must then adopt other means of warning, provided by section 1, if they are to avoid the risk of late delivery. Alternatively, the remedy lies in the hands of Parliament by amending section 1(2) of the 1988 Act. It is not, however, for the courts to overcome the resulting inconvenience by distorting the clear language which Parliament has adopted.

No comments:

Post a Comment