APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lord Woolman Lady Cosgrove	[2013] HCJAC 147 XJ586/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL BY STATED CASE AGAINST CONVICTION   by   STUART COUPAR   Appellant;   against   THE PROCURATOR FISCAL, DUNDEE   Respondent:   _____________

 

Appellant: Stephenson; Paterson Bell

Respondent: Brown, QC; Crown Agent

 

22 October 2013

 

[1] On 22 May 2013 the appellant was convicted at Dundee Justice of the Peace Court of, being the keeper of a specified Renault Light Goods vehicle, failing to give information as to the identity of its driver at about 1706 hours on 11 May 2012 at which time it was allegedly being driven on the A923 in excess of the speed limit, contrary to the requirements of sections 172(2)(a) and 172(3) of the Road Traffic Act 1988. He was convicted on a summary complaint which designed him as being Stuart McDonald Coupar, residing at Aurelia, Burnhead Road, Blairgowrie. The date on which he is said to have failed to have complied with the section 172 requirement is specified as 7 Sept ember 2012.

[2] The vehicle was not registered in the name of the appellant. It was registered in the name Aberdeen Valet Service at 161 Brook Street, Dundee. Various attempts were made to identify the driver of the vehicle. On 17 May 2012 a requirement to give information as to the identity of the driver at the time of the alleged speeding offence, within 28 days, was sent by the police to Aberdeen Valet Service at the Brook Street address. There was no response to the 17 May requirement and a reminder was sent on 15 June. We would add that, according to evidence, Aberdeen Valet Service is a company of which the appellant is secretary and director. There was no response to the reminder sent on 15 June and no attempt to prosecute the appellant in that capacity, or the company, for that failure to respond.

[3] On 29 June, a second requirement to give information as to the identity of the driver within 28 days was addressed and sent, this time, to "S N Coupar, trading as Blair's Drycleaners and Launderers, Emma Street, Blairgowrie". There was no response to that requirement and a reminder was sent on 30 July. On 1 August the police received a response. A form that had been attached to the requirement had been partially completed and was enclosed. The part which had been completed stated "I was not the driver of the vehicle at the time of the alleged offence. The driver/hirer was: Stuart Coupar, Aurelia, Burnhead Road, Blairgowrie PH10 6SY". The parts of the form for a signature and date were left blank.

[4] On 9 August 2012, a third requirement to supply information as to the driver of the vehicle within 28 days was sent, this time to "Stuart Coupar" at the address given in the response received on or about 1 August.

[5] Each of the requirements to supply information as to the driver of the vehicle was accompanied by a notice of intended prosecution in relation to the substantive speeding offence.

[6] No response was received to the third requirement. A reminder was sent on 7 September. There was no response to the reminder. On 15 October, two police officers visited the appellant at a business address. He confirmed that Aurelia, Burnhead Road, Blairgowrie was his home address. He told the police officers that he had been the driver of the vehicle on the date of the alleged offence. On 22 October, he received a conditional offer of fixed penalty notice from the police. It related to the alleged speeding offence and was an offer of the matter being disposed of by him paying a fine of £60 and accepting three penalty points, provided he accepted the offer within 28 days. He did not do so. Instead, he returned the form, partially completed in the same terms as that which had been sent to the police on 1 August. He said, in evidence, that he had not accepted the offer because he thought it odd as it related to the speeding offence and not a contravention of section 172.

[7] At trial the defence case was threefold. First, it was said that the prosecution was time-barred. Secondly, it was said that the appellant had been wrongly prosecuted as he was not the keeper of the vehicle. Thirdly, it was said that the appellant had, in any event, complied with the requirements of section 172(2)(a) because he had provided the relevant information. The justice rejected the submission that the prosecution was time-barred in circumstances where he did not allow argument to be presented in relation to it. The reason for that was, he said, that the matter had not been raised as a preliminary issue. He rejected the second submission, giving as his explanation for doing so: "Initially the company was written to but when no reply was received PC Douglas went back and checked again. He found new information regarding the insurance holder and was able to proceed with his inquiries again". With all due respect to the justice, that does not really meet the point and he gives no further explanation. He rejected the third submission because the appellant was, he said, being prosecuted for having failed to respond to the requirement dated 9 August. He disregarded the form that had been partially completed and received by the police on 1 August because it was not signed; no satisfactory reason had been given for that. The justice also appears to have read section 12(4) of the Road Traffic Offenders Act 1988 as imposing upon the appellant a requirement to do so which, in passing, we observe, it does not do. Nor is there any question of such a requirement being provided for in terms of section 172 itself.

[8] Turning to the appeal that was presented today, Mr Stephenson, solicitor- advocate for the appellant, restricted his submissions to his first ground of appeal which was that the justice had erred in not permitting the submission that the prosecution was time‑barred, to be considered. He referred to section 136 of the Criminal Procedure (Scotland) Act 1995 Act, which provided that prosecution required to have been begun within six months of the offence. Finding in fact (2) stated that notice of intention to prosecute had been sent to Aberdeen Valet Services on 17 May 2012. That meant that the 29^th day was 15 June and the six month period began running then. These proceedings were not, however, served until 18 January 2013. He referred to Thomson v Jackson 2010 SCCR 915 in support of his submission that there could only be one requirement made under section 172. Regarding the timing of the plea of time‑bar, he explained that the appellant had had no solicitor acting for him until the intermediate diet, one week prior to trial. The notice given in the charge, namely that the failure occurred on 7 September 2013, did not immediately alert the reader to the possibility of the time‑bar point. It was accepted that the plea was taken late. However, the justice of the peace had not been referred to section 144(5) of the 1995 Act which would have allowed the plea of time-bar to be taken late, on cause shown. Cause could have been shown by reference to the period during which the appellant was representing himself and could not have been expected to know about the complexities of preliminary procedure.

[9] For the Crown, the advocate depute accepted that Thomson v Jackson was, on the face of matters, against the Crown. However, when one considered the provisions of section 172 and noted the name of the accused who featured on the complaint, it was plain that the first occasion on which he was sent a requirement was 9 August. Section 172 allowed for three potential situations in addition to that where an individual could be prosecuted in his own right: first, a body corporate could be prosecuted; second, an individual could be prosecuted in his capacity as director; thirdly, an individual could be prosecuted as a partner. He referred in particular to sections 172(6) and 172(11) in that regard. The attempts prior to the requirement dated 9 August related to those three distinct entities. That was apparent from the business names on the letters which were sent. The time limit regarding the appellant, as an individual, was not triggered until 7 September. In particular, on 17 May, a requirement was made of Aberdeen Valet Service; that gave rise to a potential for breach under section 172(6). On 29 June, a requirement was made of a different entity; that gave rise to a potential for breach either under section 172(6) or 172(11), depending on whether the business entity referred to is an unincorporated association or a partnership. He drew our attention also to the way that requirement had been responded to; details were given in a way which made it impossible to tell who was providing the response. He did not accept that that letter amounted to the same thing as writing to "S N Coupar". 9 August was the first occasion on which a requirement had been addressed to the appellant himself.

[10] The advocate depute accepted that the procedure seemed cumbersome but, in the circumstances, there was no alternative. Regarding the justice's refusal to hear the time-bar argument, the advocate depute, very properly, accepted that it did appear as though cause could have been shown for allowing the plea to be tendered and argument heard at that stage. That, of course, did not affect his principal submission which was that the prosecution was not time-barred.

[11] Turning to our decision, we are persuaded that the submission for the Crown was well-founded. Although at first blush, the requirement dated 29 June 2012 appears to have been directed to the appellant as an individual, we accept that, on closer examination, that cannot be said to be the case. The appellant's name, according to the complaint, is "Stuart McDonald Coupar" not "S N Coupar" and that part of the accompanying form which was completed is not presented as being a statement that the driver was the person to whom the requirement was addressed nor as being a response by the person to whom it was addressed. That means, as the advocate depute submitted, that on the information provided, the first time that any requirement was made of the appellant was in terms of the letter dated 9 August, in respect of which the deadline for a response was 6 September. The prosecution having commenced in January 2013, it was not, accordingly, time-barred.

[12] We would, however, add that Mr Stephenson was, we consider, well-founded in his submission that, in the circumstances of the appellant having been self-represented until the intermediate diet, permission ought to have been granted for the argument to be heard at the trial.

[13] In these circumstances, we will refuse the appeal. We answer the questions in the stated case as follows:

1.     Yes but not for the reasons provided by the justice; we refer to the reasons set out above.

2.     Not applicable.

3.     Yes.