Nembhard v Director of Public Prosecutions

A statutory power to require production of driving documents is limited by the purpose for which Parliament conferred it. A driver commits no offence where a constable requires production merely to harass or inconvenience, rather than to obtain the information contemplated by Road Traffic Act 1988, sections 164 and 165. A summary court may stay proceedings for an unfair trial, but it cannot determine an abuse based on improper state conduct under the second limb of the abuse-of-process jurisdiction. That issue belongs to the High Court. A second-limb application should be raised promptly and supported by full findings of fact.

The claimant appealed by case stated from convictions before a District Judge sitting in the Magistrates’ Court at Luton. He had failed to produce his driving licence and insurance certificate after being stopped by a police constable. He argued that the requests formed part of a campaign of harassment, were made for an improper purpose, and rendered the prosecution an abuse of process.

The District Judge rejected the arguments and concluded that the statutory duties were absolute and that he lacked jurisdiction to determine the alleged second-limb abuse. The Divisional Court considered the proper construction of sections 164 and 165 of the Road Traffic Act 1988, the jurisdiction of the Magistrates’ Court, and whether the findings supported intervention.

Appeal dismissed.

1. Section 164 of the Road Traffic Act 1988 does not impose an unconditional duty to produce a driving licence. The constable must require production for the statutory purpose of ascertaining the licence holder’s name and address, date of issue, and issuing authority. A requirement made solely to discomfort, inconvenience or harass is unlawful, and failure to comply with it does not constitute the offence.
2. Section 165 does not expressly state the purpose for which production of an insurance certificate may be required. That purpose is to ascertain whether appropriate insurance cover is in place. The same limitation therefore applies. An improperly motivated requirement to harass an insured driver may provide a defence to a charge of failing to produce the certificate.
3. The findings did not establish that the constable acted for an improper purpose on the relevant occasion. The previous stops, the vehicle’s hire-car status, the seat-belt breach and the malfunctioning computer system were capable of explaining the request. The convictions therefore could not be quashed.
4. Abuse of process has two limbs: inability to receive a fair trial, and unfairness arising from abuse of state power. In a summary trial, the Magistrates’ Court or District Judge may address only the first limb. The second limb is a matter for the High Court, as established by R v Horseferry Road Magistrates’ Court ex parte Bennett, R v Mullen, R v Aldershot Youth Court ex parte Anderson and R v Belmarsh Magistrates’ Court ex parte Watts.
5. A timely application and comprehensive findings of fact are essential. The possible routes are judicial review before conclusion of the trial, or an appeal by case stated after conviction. Neither route permitted intervention here because the factual findings did not establish second-limb abuse.

• High Court (Administrative Court): the appeal by case stated was dismissed. The court upheld the convictions and held that the factual findings did not establish an improper purpose or second-limb abuse of process.
• Magistrates’ Court, Luton: the claimant was convicted of failing to produce his driving licence and insurance certificate.