Lympne v Director of Public Prosecutions (includes Costs)

A vehicle keeper who cannot identify which of two possible people was driving fails to comply with the duty to identify the driver under Road Traffic Act 1988, section 172(2). That failure constitutes an offence under section 172(3), subject to the reasonable-diligence defence in section 172(4).

The keeper need not complete a form inaccurately by naming one possible driver as the actual driver. The magistrates must determine the statutory defence and may consider the keeper’s openness, enquiries and disclosure of information about other possible drivers.

An appeal by case stated arising from an ordinary criminal prosecution is governed by the criminal costs regime unless the case is exceptional. Success alone does not permit recovery of legal costs from central funds where no statutory exception or relevant misconduct applies.

The appellant, the registered keeper of a car recorded speeding, returned a signed section 172 form stating that either he or his wife had been driving but that they could not remember which. He did not name his wife or complete the part intended for a person asserting that someone else had driven.

The District Judge convicted him under section 172(3) of the Road Traffic Act 1988. She held that he had failed to provide his wife’s details and therefore did not consider whether the section 172(4) reasonable-diligence defence was established.

The appellant appealed by way of case stated. The central issues were whether his response breached section 172(2), whether he should have completed the form differently, and whether the District Judge should have determined the statutory defence. After the appeal was allowed, he sought £13,644 in legal costs from the respondent.

1. Appeal allowed. By failing to name the driver, the appellant had failed to provide the information required by section 172(2)(a) of the Road Traffic Act 1988. That failure constituted an offence under section 172(3), subject to the defence under section 172(4): Jones v Director of Public Prosecutions [2004] EWHC 236 (Admin) and Flegg v Justices of the Peace for the New Forest Local Justice Area [2006] EWHC 396 (Admin) applied. The District Judge erred by making no finding on whether the appellant had exercised reasonable diligence to identify the driver.

2. The offence did not arise from the manner in which the appellant completed the form. He could not properly complete Part 2 because that would assert both that he had not driven and that his wife had. His actual position was that either might have driven. A binary form was inappropriate for that situation, particularly where it provided no space or guidance for information about enquiries or possible drivers.

3. A keeper unable to identify the driver should provide as much information as possible about the steps taken and the reasons why identification remains impossible. When determining the section 172(4) defence, the magistrates may treat the keeper’s openness and provision of information about other possible drivers as an important aspect of credibility. The District Judge should therefore have considered the defence on its merits.

4. The respondent did not seek remittal. The conviction was consequently reversed and the appeal allowed.

5. Costs application dismissed. Save in exceptional cases, prosecutions and criminal appeals are governed by the criminal costs regime: Murphy v Media Protection Services [2012] EWHC 529 (Admin) and Hull v Holderness Magistrates’ Court v Darroch [2014] EWHC 4184 (Admin) applied. This was an ordinary appeal from an ordinary driving prosecution and was not exceptional.

6. None of the conditions in section 16A of the Prosecution of Offences Act 1985 applied. There was also no improper conduct engaging sections 19, 19A or 19B. The successful appellant therefore had no statutory basis for recovering his legal costs from central funds.

1. High Court, Divisional Court: The appeal by way of case stated was allowed. The District Judge had erred by failing to determine the section 172(4) defence. The respondent did not seek remittal. The appellant’s subsequent application for legal costs was dismissed. The decision is reported as [2018] EWHC 100 (Admin).

2. Magistrates’ Court: On 30 November 2016 the District Judge convicted the appellant of failing to provide information identifying a driver, contrary to section 172(3) of the Road Traffic Act 1988. She made no finding on reasonable diligence.