Brants v Director of Public Prosecutions

Domestic legislation concerning drivers’ hours must be construed in an updated manner so far as necessary to give effect to applicable European Union obligations. The combined effect of sections 96(11A) and 103(7) of the Transport Act 1968 conferred jurisdiction over offences under Regulation 561 detected in England, even where committed elsewhere in the European Union.

Prosecution delay, although deserving censure, does not alone justify a stay for abuse of process. A stay will normally be inappropriate without prejudice to the fairness of the trial. A failure to obey a court order is materially different from delay and incompetence where the prosecution ultimately complies.

The appellant appealed by way of case stated from the Preston Magistrates’ Court, following convictions and fines for four drivers’ hours offences under Regulation 561. He challenged the magistrates’ jurisdiction, compliance with Article 19(3), and their refusal to stay the proceedings for abuse of process arising from prosecution delay.

The prosecution had taken several months to disclose digital material requested by the defence and had caused numerous adjournments. The magistrates nevertheless found that the appellant had received an infringement notice, that Article 19(3) had been complied with, and that the delay had caused no prejudice. The central issues were the territorial reach of the statutory scheme and whether the delay justified a stay.

1. Jurisdiction. The court dismissed the appeal. The appellant accepted that sections 96(11A) and 103(7) of the Transport Act 1968, construed consistently with Regulation 561 and the United Kingdom’s European Union obligations, conferred jurisdiction on an English magistrates’ court over an offence detected within its area, even where committed elsewhere in the European Union. Ground 1 therefore failed.
2. Article 19(3). The magistrates were entitled to find that an infringement notice had been handed to the appellant. That notice constituted due evidence in writing for the purposes of Article 19(3) of Regulation 561. The appellant conceded that ground 2 could not be pursued.
3. Abuse of process. The Crown Prosecution Service’s failure to provide the requested digital material promptly was wholly unacceptable and merited strong disapproval. Nevertheless, delay alone could not warrant a stay. The public interest in prosecuting offences remains relevant, and a stay will normally be inappropriate where the delay has caused no prejudice to the defence or impaired the possibility of a fair trial.
4. The court distinguished Crown Prosecution Service v LR [2010] EWCA Crim 924. That case concerned a positive refusal to comply with a court order, whereas the present case involved delay and incompetence followed by eventual disclosure. The distinction was material.
5. Here, the appellant and his solicitors knew the allegations in detail from the outset, the relevant material was eventually disclosed, and the subsequent adjournments were not attributable to its absence. The magistrates were therefore correct to refuse a stay. The answers to all three questions in the case stated were yes.

• High Court (Administrative Court): Brants v Director of Public Prosecutions [2011] EWHC 754 (Admin) dismissed the appeal by way of case stated and affirmed the magistrates’ rulings.
• Preston Magistrates’ Court: convicted the appellant after ruling against him on jurisdiction, Article 19(3), and abuse of process, and imposed fines and related orders.