Foster v Director of Public Prosecutions

For an offence under section 172 of the Road Traffic Act 1988, the 28-day period for supplying driver information begins on the legally effective date of service of the requirement. An information alleging that the offence was committed before that period expired discloses no offence.

A defect of that substance cannot be treated as a minor variance. The magistrates must amend the information before proceeding, and an appellate court cannot cure the defect by amending the information where the magistrates did not do so.

The claimant appealed by way of case stated against the Lewes Crown Court’s dismissal of his appeal from his conviction by Brighton Magistrates’ Court. He had been convicted under section 172(3) of the Road Traffic Act 1988 for failing to identify the driver of a vehicle involved in an alleged speeding offence.

The requirement was posted on 20 March 2009 and was deemed served on 24 March 2009. The information alleged that the offence was committed on 18 April 2009, before expiry of the statutory 28-day period. The claimant also challenged service of the summons, but the Administrative Court identified a prior defect in the information.

1. The appeal was allowed, although for a reason different from those identified in the case stated. The information alleged an offence date of 18 April 2009.
2. Under section 172(7) of the Road Traffic Act 1988, a posted requirement takes effect as a requirement to provide the information within 28 days beginning with the day on which the notice is served. Under rules 4.4 and 4.10(2)(b) of Part 4 of the Criminal Procedure Rules 2005, the notice posted on Friday 20 March 2009 was served on Tuesday 24 March 2009. The offence could therefore not be committed until the statutory period had expired. The alleged date fell within that period, so the information disclosed no offence.
3. Section 123 of the Magistrates’ Courts Act 1980 does not permit a court to disregard a discrepancy of this substance. The distinction identified in Garfield v Maddocks [1974] 1 QBE is between a slight variance causing no injustice and a substantial defect requiring amendment. This case involved the latter. The approach in Regina v Swansea Crown Court, ex parte Stacey [1990] RTR 183 confirmed that the Crown Court has no jurisdiction on appeal to amend an information which the magistrates had not amended.
4. The magistrates had not amended the information. The Crown Court consequently had no power to amend it, and the High Court could not put the prosecution back on its feet by enabling an amendment on a case-stated appeal.
5. The issue whether the summons was legally served despite the claimant’s non-receipt was not fully argued and was left undetermined. The questions in the case stated had become academic. The proceedings ended, and the claimant’s costs were ordered out of central funds.

• High Court (Administrative Court): appeal by case stated allowed on the basis that the information disclosed no offence.
• Lewes Crown Court: dismissed the claimant’s appeal against conviction on 18 November 2010.
• Brighton Magistrates’ Court: convicted the claimant on 28 January 2010.