Mohindra v Director Of Public Prosecutions

The court considered appeals by way of case stated concerning the scope and proof of the offence created by section 172(3) of the Road Traffic Act 1988 and the evidential requirements for a lawful requirement made "by or on behalf of" a chief officer of police. The judge held that section 172(3) creates a single offence of failure to comply with a requirement to give information as to the identity of a driver; the differing obligations in subsection (2)(a) and (2)(b) merely define the nature of the information required and do not create distinct offences.

The court set out the ingredients of the offence: (i) an allegation that the driver committed an offence to which s.172(1) applies; (ii) service of a valid requirement under s.172(2) on a person covered by that subsection; (iii) failure to supply the information required; and (iv) that the requirement was made by or on behalf of a chief officer of police. The prosecution must prove that the requirement was made by or on behalf of the chief officer; a mere statement by a postal clerk, without the notice and the signature/authority particulars before the justices, was insufficient.

The appeals were allowed because there was no evidence before the justices that the requirements had been made by or on behalf of the chief constable. The judge recommended that copies of the notice of intended prosecution and the s.172 requirement, showing signature/authority, should be annexed to section 9 statements proving service and that defendants should raise any challenge to the lawfulness of the requirement before the close of the prosecution case so the prosecution can re-open if necessary.

Background and parties: These are two appeals by way of case stated from justices in Greater Manchester (Meera Mohindra and Joanne Browne). Both appeals challenged convictions or findings under section 172(3) of the Road Traffic Act 1988 concerning police requirements for information identifying the driver of an alleged offending vehicle. The Director of Public Prosecutions and the Chief Constable of Greater Manchester were respondents.

Nature of the application: The appellants sought determinations on whether s.172(3) creates one or two offences (depending on whether the recipient was the keeper or another person) and whether the prosecution must prove that a requirement was made by or on behalf of the chief officer of police, together with the nature of proof required.

Issues framed by the court:

• Does s.172(3) create two separate offences corresponding to the alternative obligations in s.172(2)(a) and (b)?
• Was it open to the justices to find in Mohindra that the appellant was a person "other than the keeper" on the evidence of silence?
• Did the prosecution prove that the requirements had been made by or on behalf of the chief constable in either case?

Facts and procedural posture: The appeals were heard together. In both cases the prosecution relied on service by post of notices and requirements but did not annex copies of the notices/requirements to the relevant section 9 statements; the only evidence was a postal clerk's statement that service had occurred. The point as to authority of the person making the requirement was not raised until after the close of the prosecution case.

Court's reasoning: The judge analysed the statutory text and concluded that s.172(3) creates a single offence of failure to comply with a requirement under s.172(2), the substance of which depends on whether the addressee was keeper or another person. The differing obligations do not convert the single statutory offence into two separate offences; to hold otherwise would produce impractical results and duplicity problems. On proof of authority, established authorities require the prosecution to prove that the requirement was made by or on behalf of the chief officer; this can ordinarily be achieved by producing the notice and showing the signature/authority (as in Arnold v DPP). The absence of a notice or other evidence of authority before the justices in these cases meant the prosecutions had not proved that the requirements were lawfully made. Although the point should have been raised earlier so the prosecution could re-open and produce the documents, the judge declined to remit the matters and allowed the appeals for want of proof.

Wider context: The judge noted the practical importance of these questions in the era of speed cameras and emphasised procedural safeguards: annexing notices to service statements and raising challenges to lawfulness before the close of the prosecution case.

Appeals allowed. The court held that (1) section 172(3) of the Road Traffic Act 1988 creates a single offence of failure to comply with a requirement to give information about the identity of a driver; (2) the prosecution must prove that the requirement was made by or on behalf of the chief officer of police and proof may ordinarily be provided by producing the notice/requirement showing the signature/authority; and (3) in the present cases there was no evidence before the justices that the requirements had been made by or on behalf of the chief constable, rendering the prosecutions deficient, so the appeals were allowed.

Appeals by way of Case Stated from the justices of the County of Greater Manchester (decisions dated 21 July 2003 in Mohindra and 8 August 2003 in Browne) to the Administrative Court of the Queen's Bench Division. Neutral citation: [2004] EWHC 490 (Admin).