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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Director of Public Prosecutions v Holden [2006] EWHC 658 (Admin) (24 February 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/658.html Cite as: [2006] EWHC 658 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		Friday, 24 February 2006

1. MR JUSTICE DAVID CLARKE: This appeal by case stated raises the question whether it is necessarily an abuse of process for the prosecution to proceed to trial in a speeding case where there has been a defect in the notice of intended prosecution and conditional offer of fixed penalty.
2. As the argument has developed it has become clear that there is a more fundamental issue here, whether in the circumstances that occurred in this case the prosecution was a lawful one at all. The question arises in this way. On 16th December 2004 a summons was issued against the respondent, Mr Holden, alleging an offence of speeding. He was alleged to have exceeded the 70 miles per hour speed limit in Dorset. His motor vehicle was registered by a speed camera allegedly being driven at 80 miles per hour. No trial of that allegation has been held and I make no finding as to the facts themselves.
3. A notice of intended prosecution was sent to him dated 11th August 2004. That notice was in the form which was then in standard use in the Dorset police area.
4. Unfortunately the document was defective in one important respect. It was a combined form consisting of four pages. It was sent by the manager of the central ticket office, an authorised officer for and on behalf of the chief constable. The second page was headed "guidance notes" with the rubric, "Please consult the guidance notes on page 2 to see how you should proceed." Page 3 was the response form for payment of the fixed penalty. Page 4 was the reply form to be used in any other case.
5. On page 1 on the face of the document, the form gave notice of the intention to prosecute the driver of the vehicle for the offence of speeding. It then incorporated, pursuant to section 172 of the Road Traffic Act 1988, a requirement calling upon the addressee to supply the required information: who was the driver and if he was not the driver, who was. It specified that this response must be made in writing within 28 days of the notice issue date.
6. Mr Holden, as he sets out in his full skeleton argument at paragraph 5, responded to that notice within 28 days. He identified himself as the driver. He indicated an intention to contest the charge of speeding. He subsequently wrote to the court giving notice that he wished to argue that the prosecution was an abuse of the process of the court.
7. No complaint is made about those parts of the form. However the form also contained a conditional offer of fixed penalty, the Dorset police having chosen to follow the procedure set out in section 75 of the Road Traffic Offenders Act 1988 as amended by section 34 of the Road Traffic Act 1991.
8. Section 75, reads so far as material as follows:

"(1) Where, in England and Wales

"(a) a constable has reason to believe that a fixed penalty offence has been committed, and

"(b) no fixed penalty notice in respect of the offence has been given under section 54 of this Act or fixed to a vehicle under section 62 of this Act, a notice under this section may be sent to the alleged offender by or on behalf of the chief officer of the police ...

"(5) A notice under this section is referred to in this section and sections 76 and 77 as a "conditional offer".

"(6) Where a person issues a conditional offer, he must notify the justices' clerk, specified in it of its issue and its terms; and that clerk is referred to in this section and sections 76 and 77 as 'the fixed penalty clerk'.

"(7) A conditional offer must

"(a) give such particulars of the circumstances alleged to constitute the offence to which it relates as are necessary for giving reasonable information about the alleged offence,

"(b) state the amount of the fixed penalty for that offence, and

"(c) state that proceedings against the alleged offender cannot be commenced in respect of that offence until the end of the period of 28 days following the date on which the conditional offer was issued or such longer period as may be specified in the conditional offer.

"(8) A conditional offer must indicate that if the following conditions are fulfilled, that is

"(a) within the period of 28 days following the date on which the offer was issued, or such longer period as may be specified in the offer, the alleged offender (i) makes payment of the fixed penalty to the fixed penalty clerk, and (ii) where the offence to which the offer relates is an offence involving obligatory endorsements, at the same time delivers his licence and its counterpart to that clerk... any liability to conviction of the offence shall be discharged."

9. That is as far as I need to read in section 75, but that section has to be read in conjunction with section 76, which sets out the relevant procedure and contains a prohibition on court proceedings. Reading now the relevant points of section 76(1):

"This section applies where a conditional offer has been sent to a person under section 75 of this Act.

"(2) No proceedings shall be brought against any person for the offence to which the conditional offer relates until

"(a) in England and Wales, the chief officer of police ... receives notice in accordance with subsection (4) or (5) below.

"(3) Where an alleged offender makes payment of the fixed penalty in accordance with the conditional offer, no proceedings should be brought against him for the offence to which the offer relates.

"(5) Where, on expiry of the period of 28 days following the date on which the conditional offer was made or such longer period as may be specified in the offer, in conditions specified in the offer in accordance with section 75(8)(a) of this Act have not been fulfilled, the fixed penalty clerk must notify the person referred to in subsection 2(a) or (b) above."

10. Again I think that is as far as I need to read in that section.
11. That part of the notice which made the requirement to supply information specified that Mr Holden must reply to that within 28 days. That part of the notice containing the conditional offer of fixed penalty on the other hand failed to specify, as required by section 75 (7)(c) of the Act, the period during which proceedings for the offence of speeding could not be commenced. It did not specify any period, whereas that provision requires it to specify that proceedings shall not be commenced until the end of the period of 28 days or such longer period as may be specified. It did however, in the guidance notes, indicate that if he, as the recipient of the notice, chose to pay the fixed penalty, he must do so within 28 days. It is accepted by the appellant Director of Public Prosecutions, as it was before the District Judge, that the omission of the words prescribed by section 75(7)(c) constituted a defect in the form of the notice.
12. There are two issues before us. The first is whether this defect precluded the commencement of court proceedings, which is the first question posed for the opinion of this court. The second is whether the continuation of the proceedings amounted to an abuse of the process of the court as the District Judge held.
13. The learned District Judge heard no evidence but carefully considered the form of the notice. He set out the contentions and his conclusions in the case stated in this way. Reading from paragraph 3:

"It was contended by the appellant (prosecutor) that:

"(a) Although the combined notice of intended prosecution and conditional offer of fixed penalty issued against the respondent and dated 11th August 2004 did not comply with the requirements of section 75(7) Road Traffic Act 1988 the proceedings against the respondent were not in fact commenced until 9th December 2004 and therefore the defect did not result in any unfairness to the respondent.

"(b) The defect in the notice would not amount to an abuse of process of the court as the appellant could not be said to have manipulated the process of the court, or acted male fides or caused any substantial delay.

"(c) Therefore the proceedings against the respondent should not be stayed as an abuse of process.

"4. It was contended by the respondent that:

"Whilst he agreed that the combined notice of intended prosecution and the conditional offer of fixed penalty was defective, the court had raised the issue of staying the proceedings as an abuse of process and on that basis he did not wish to make any legal submissions."

14. I would interpose here that Mr Holden had written to the Court, making submissions in writing as to why the prosecution would amount and did amount to an abuse of process, which is why the preliminary hearing was held.
15. Mr Holden tells us, and we accept, that by the time he might have addressed the court the District Judge had already indicated his intention to rule in his favour.
16. Returning to the case stated, the District Judge continued:

"I was of the opinion that:

"(a) The notice of intended prosecution was part of the evidence against the defendant, ie the intention to prosecute.

"(b) If no period of time is given in which the respondent could react to the conditional offer to avoid a prosecution, then it is an abuse of process to prosecute as the law makes it clear that proceedings cannot be commenced until the end of 28 days or such other period as may be specified following the date on which the conditional offer was issued.

"(c) It was manifestly unfair to prosecute in these circumstances.

"(d) There was an abuse of process and accordingly I stayed the proceedings against the respondent."

17. The questions posed for the opinion of this court are these:

"1. Where a conditional offer of fixed penalty fails to state that proceedings against the alleged offender cannot be commenced in respect of that offence until the end of the period of 28 days following the date on which the conditional offer was issued or such longer period as may be specified in the order, as required by section 75(7)(c) of the Road Traffic Offenders Act 1988, are proceedings against the offender thereafter precluded?

"2. Was the District Judge (Magistrates' Court) correct to determine that such proceedings were manifestly unfair in circumstances where:

"(i) The issuing of a conditional offer of a fixed penalty is discretionary under section 75(1) Road Traffic Offenders Act 1988;

"(ii) Proceedings were not issued until four and a half months after the alleged offence;

"(iii) The respondent disputed the allegation in the summons and requested a court hearing;

"(iv) The respondent was not prejudiced or dealt with unfairly by the omission of the time limit by which the conditional offer had to be complied with.

"3. Does a prosecution brought against a defendant following a defective conditional offer notice amount to an abuse of process by the appellant?"

18. The first of these questions, makes no reference to abuse of process. It asks whether the proceedings are precluded, which is the first critical question in this case. If, as the District Judge held, proceedings could not be commenced as a matter of law, then no question of abuse of process arises. The jurisdiction to stay a prosecution as an abuse of process arises, if at all, in relation to prosecutions which have otherwise been lawfully commenced.
19. The skeleton argument served by counsel for the appellant addressed only the issue of abuse of process. The thorough and detailed skeleton argument lodged by Mr Holden ranged more widely though it itself referred repeatedly to unfairness and abuse of process, quite understandably, since that was the basis upon which the argument had proceeded before the District Judge. But the primary argument is clearly that set out in the submissions of Mr Holden at paragraph 3, that:

"Where no period is specified during which the conditional fixed penalty offer may be accepted, the period is an indefinite one, with the result that no valid proceedings may be launched. That must mean may never be launched, because in such a case there is no specified suspended enforcement period and thus no point in time at which it becomes lawful for proceedings to be brought."

20. To answer this question it is first necessary to point out that this is not a case in which a fixed penalty notice has been served. This is a conditional offer of fixed penalty case not a fixed penalty notice case. By section 75(1)(b), a conditional offer of fixed penalty can only be made in a case where no fixed penalty notice has been given. Thus, in so far as Mr Holden quite understandably sought to rely on sections 52 and 78 of the Act, that reliance, in my judgment, is misplaced in law.
21. The concept of a "suspended enforcement period" does not arise in a conditional offer case. That expression itself derives from section 52, where it is defined in the context of a fixed penalty notice case. It has no application in a conditional offer case for which a separate, though parallel, regime exists within sections 75 and 76 of the Act. In particular, the general restriction on proceedings contained in section 78 does not apply to conditional offer cases.
22. Within the regime of conditional offer cases, the provision which bars court proceedings in certain circumstances is that contained in section 76(2).
23. The court proceedings in this particular case, started by the issue of a summons on 11th December, must have been triggered by a notification being given by the fixed penalty clerk to the chief constable or his authorised officer, pursuant to section 76(5), to the effect that the fixed penalty specified in the original notice had not been paid to the fixed penalty clerk.
24. So long as that notification was not given prematurely, both it and the consequent commencement of the proceedings were lawful because the condition contained in section 76(2) has been fulfilled. The duty of the fixed penalty clerk was to give that notice to the chief constable or his authorised officer:

"On the expiry of the period of 28 days following the date on which the conditional offer was made or such longer period as may be specified in the offer."

25. Since no longer period was specified in the conditional offer fixed penalty, the relevant period was 28 days. Furthermore, in my judgment, in the absence of any challenge or putting to proof of the date on which the notification under 76(5) was given, the hearing of course having been a preliminary one which took place without the calling of evidence, this court is entitled to approach the present problem on the basis that the notification was not given prematurely. The proceedings were not in fact commenced until December, just over three months after the end of the 28-day period from the date of the notice of intended prosecution. It should be noticed that although the notice of intended prosecution did not contain the statement which it should have contained pursuant to section 75(7), it was not defective in any other respect. It did make clear the option to pay the fixed penalty within 28 days as a clear alternative to facing court proceedings. I would hold this to be a sufficient indication for the purposes of section 75(8). Thus, it seems to me that the bar to court proceedings contained in section 76(2) does not apply to the case.
26. I conclude from this that the absence from the notice of the statement required by section 75(7), whilst procedurally wrong, did not render the commencement of the proceedings unlawful. I would therefore answer the first question posed to this court in the negative.
27. The remaining question, which was the subject of argument below and appears to have been the primary basis of the District Judge's conclusion to stay the proceedings as an abuse of the process of the court, I can deal with more briefly. The issue of abuse of process requires the court to focus on the question whether the continuation of the proceedings is or would have been unfair to Mr Holden.
28. The District Judge did not focus on that question. He did not tailor his findings to Mr Holden's particular case but he expressed his conclusion more widely. We understand that he had done likewise in another case and that other similar prosecutions are awaiting the outcome of the present proceedings. In the absence of any suggestion of bad faith on the part of the prosecution or manipulation of court process or of undue delay, the jurisdiction of a Magistrates' Court to order a stay is one to be exercised sparingly and only where the court concludes that a fair trial cannot be had. For present purposes, it is sufficient to refer to R v Horseferry Road Magistrates' Court ex parte Bennett, [1994] 1 AC 42. The court must confine itself to considering matters directly affecting the fairness of the trial of the particular accused person. Furthermore, it is well established that the party alleging that a fair trial cannot be had must show that that is so in his particular case.
29. Mr Holden, in addressing us and indeed in preparing his written submissions, has not suggested that there is anything in his particular case which should lead to a finding on this issue in his favour. Rather, he complained with some force, with which I for myself have some sympathy, that it is his case which has been selected as the vehicle for this particular point to be tested. He has addressed us clearly and cogently and extremely pleasantly about the situation as he sees it. We are grateful to him for that.
30. It may be that on very different facts a person served with a notice in this way might be able to argue that the defect which existed made it impossible for him to have a fair trial, although I for my part find it difficult to see in what circumstances such an argument could be constructed, when the 28 days was specified for the return of the fixed penalty payment, if the addressee chose that option. The potential unfairness, if there ever could be one, would presumably arise from the fact that not having been told in terms the length of time during which court proceedings could not be commenced against him, he continued beyond that period of 28 days to believe that he would still be safe from prosecution if he decided to pay the fixed penalty notice. How that argument might be constructed would have to depend on the facts, but Mr Holden does not so submit nor did the District Judge so approach it.
31. On the contrary, it seems to me that the second question posed for the opinion of this court answers itself. It indicates that there was no actual unfairness in this particular case and I find it difficult to see how proceedings could be manifestly unfair in circumstances where there was no prejudice, as was accepted in the last part of that question. The defect did not prejudice Mr Holden nor deal with him unfairly.
32. In his particular case he was disputing the allegation of speeding and never (as far as we can see) intended to go down the fixed penalty road. There was nothing before us to suggest that he could not have a fair trial of the allegation of speeding made against him as the driver of the vehicle since he was not a person wishing to avail himself of the fixed penalty option. It seems to me that the defect of the form was not relevant to his case. I would therefore therefore answer "no" to question 2.
33. As to question 3, whether there are any possible circumstances in which such a defect might amount to an abuse of process or rather might amount to subsequent proceedings being an abuse of process must be left for the future. Thus it is better not to give an answer to question 3. It is unnecessary to do so in the circumstances. I would therefore allow the appeal.
34. LORD JUSTICE RICHARDS: I agree. So the appeal will be allowed; the decision to impose a stay quashed. You are seeking the matter --
35. MR ROSS: We are not actually seeking remission to the magistrates. This is the end of the matter.
36. LORD JUSTICE RICHARDS: Having regard to the overall circumstances, we understand that. Therefore there will be no order.
37. MR ROSS: We do not seek anything further.
38. LORD JUSTICE RICHARDS: Thank you very much indeed.