Marshall v Crown Prosecution Service

For the statutory defence to an offence under section 172(3) of the Road Traffic Act 1988, the defendant must show, on the balance of probabilities, both that reasonable diligence was exercised and that, even with such diligence, the driver’s identity could not be ascertained. A failure by the defendant personally to make reasonable enquiries is highly relevant, although it is not automatically the end of the inquiry. Reliance on enquiries made by another person does not necessarily establish the defence. Magistrates may assess the quality and demeanour of witnesses and may amplify their reasons in a case stated, provided the amplified reasons fairly explain the decision actually reached.

The claimant was the registered keeper of a vehicle recorded by a speed camera travelling above the speed limit. She and her husband were both insured to drive it and each told the police that the driver was either himself or herself. The claimant was convicted by magistrates of failing to provide information identifying the driver, contrary to section 172(3) of the Road Traffic Act 1988.

On appeal by way of case stated, she challenged the magistrates’ directions, the adequacy of their reasons and the rationality of their decision. She also sought amendment or remission of the case stated. The central issue was whether the magistrates had applied the statutory defence under section 172(4) correctly.

1. Appeal dismissed. The three questions in the case stated were answered “no”, “yes” and “no” respectively. The claimant was ordered to pay 75 per cent of the respondent’s assessed costs of £2,511.

2. Section 172(4) required the claimant to establish, on the balance of probabilities, that she did not know and could not with reasonable diligence have ascertained who the driver was. The inquiry was not confined to whether she had personally made reasonable enquiries. The court also had to consider whether, even if reasonable diligence had been exercised, the driver’s identity would nevertheless have remained unknown.

3. The magistrates were entitled to focus closely on the claimant’s own enquiries. Her failure to give evidence of having undertaken any enquiries made it difficult to establish that further reasonable diligence would have been futile. The magistrates had not treated that failure as automatically conclusive; their amplified reasons showed that they had considered the statutory counterfactual required by section 172(4).

4. The magistrates had not found that the claimant’s husband had exercised reasonable diligence. They had merely accepted his account of the steps he took. That did not compel a finding that the claimant had acted diligently or that further enquiries by her could not have identified the driver.

5. The decision was not irrational. The magistrates could reasonably conclude that a careful reconstruction of the journeys, timings and routes might have enabled the claimant to identify which spouse had been driving at the relevant time. Assessment of the claimant’s reluctance, attitude and credibility was within the magistrates’ legitimate fact-finding function.

6. The case stated did not require amendment or remission. A statement of evidence was permissible because the third question raised the sufficiency of the evidence. The magistrates were also entitled, within fair and reasonable limits, to amplify their reasons. Their reasons adequately disclosed why the conviction had been imposed.

The judgment states that the claimant appealed by way of case stated from her conviction in the Magistrates’ Court sitting at Waltham Forest. The Divisional Court dismissed the appeal.