Zenith Crime Current Awareness

The Richard and Judy Defence- a recent case considered

9 September 2015

Elliot Kay

Marshall v CPS [2015] EWHC 2333 (Admin)


Background

1. Mrs Marshall was the registered keeper of an Aston Martin Virage V12 which, at 11.08pm on the 5th March 2013, was captured travelling at 40mph along Kenway Road, SW5, London, a section of road which is subject to a speed limit of 30mph. Mr Marshall habitually drove the vehicle but was not the registered keeper of it. 

2. For reasons unknown, Mr Marshall was served with a notice under section 172(2)(b) of the Road Traffic Act 1988 (“the Act”) requiring him to give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police.

3. Mr Marshall responded to the police making it clear that it was either he or his wife who had been driving the car at the relevant time.Mrs Marshall was then served with a notice under section 172(2)(a) of the Act, requiring her to provide the same information.

4. Mrs Marshall also responded to the police and explained that she could not be sure whether it was her or her husband had been driving.

5. Following the passage of some months Mrs Marshall was charged on 16th January 2014 with an offence under section 172(3) namely, failing to give information relating to the identification of the driver of a vehicle who is alleged to be guilty of an offence.

6. Mrs Marshall appeared at Waltham Forest Magistrates’ Court unrepresented. Rather unusually, Mr Marshall gave evidence for Mrs Marshall before she had given evidence herself.

7. Mr Marshall told the Court that on the night in question his wife had drove their cleaner from their Slone Street flat to Earl’s Court before returning to Sloane Street. Thereafter, he drove himself and his wife to their home in Richmond. Both journeys involved travelling along Kenway Road and the relevant speed camera. Mr Marshall did not recall seeing a flash during on his journey home and told the Court of the unsuccessful inquiries he had made to ascertain who the driver was.

8. Mrs Marshall then gave evidence although the Magistrates found her to be a reluctant and dismissive witness. She went on to give similar evidence to Mr Marshall but did not give evidence as to the steps she had taken to ascertain who had driven the vehicle.

9. The Magistrates’ convicted Mrs Marshall on the basis that she had failed to show that she had been unable to ascertain with reasonable diligence who the driver of the vehicle was.

10. Mrs Marshall appealed to the High Court by way of case stated. The Law

11. The relevant provisions of section 172 of the Act read as follows:

(2)Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—(a)the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and

(b)any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

(3)Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

(4)A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.

The Decision   

12. The appeal proceeded on three grounds. Firstly, that the Magistrates had erroneously focused on the wording of section 172(4) and failed to consider that Mrs Marshall would not have been able to ascertain the identity of the driver even if she had taken reasonable steps to do so. Secondly, that the Magistrates had failed to give adequate reasons for their decision and thirdly, that the decision was Wednesbury unreasonable. 

13. Mr Justice Kenneth Parker, with whom Lord Justice Beatson agreed, dismissed the appeal. It was held that the Magistrates were right to focus on what Mrs Marshall had done to identify who the driver was. The steps taken by her husband were not relevant and could not assist her. In any event, the Magistrates had accepted Mr Marshalls account of the steps he had taken but had not commented on the sufficiency or adequacy of those steps. 

14. The second and third grounds of appeal were given short shrift. In relation to the second ground the Court noted that the Magistrates were not obliged to give reasons in the form of a detailed judgment and they were entitled to amplify their reasons from their unique position as assessors of the witnesses before them. Finally, the decision was not Wednesdbury unreasonable. Lay magistrates use their experience of life in determining questions of fact before them. It had not been unreasonable for them to conclude that Mrs Marshall could have taken steps to successfully identify the driver notwithstanding the unfruitful attempts of her husband.

Current Awareness

By the Crime team