Warnings of Intent to Charge
Page 54
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By Our Legal Adviser
ACASE in which summonses before the Wolverhampton stipendiary magistrate were dismissed because of a "lack of diligence" on the part of the police in complying with the statutory requirements of Section 21 of the Road Traffic Act, 1930, prompts me to wonder how many times this sort of defence is available to defendants, but because of their ignorance of those requirements they take no advantage of the situation and the police "get away with it."
The section applies only in cases of reckless or dangerous driving, careless driving or exceeding the speed limit, and its effect is to ensure that no defendant can suffer conviction far any of those offences unless some sort of warning is given him either at the time or subsequently, or proceedings are taken virtually at once. The requirements, which are alternative, are carefully laid down and have been the subject a many decisions which have made their interpretation beyond question, and it follows that unless the police have complied with one or other of them, the defendant is entitled to an acquittal—entirety regardless of the merits of his case— provided that he can show that the police have so defaulted.
The section provides_ the police with the following alternatives:
1. To warn the defendant at the time of the offence that the question of prosecuting him for one or other of the offences in question would be considered. .
2. To serve the summons charging the particular offence upon the defendant within 14 days of the offence.
3. To serve on the defendant within the same 14-clay period, a notice of the contemplated prosecution, setting out the nature of the offence alleged, and its time and place
Fatal Failure
Subject to a loophole open to them—which I will presently .discuss—a failure to follow one or other of thi3se courses is fatal, but it is provided that the necessary requirements are " deemed" (i.e., assumed), to have . been complied with unless the contrary is. proved, which puts the onus, of showing that they have not been, upon the defendant.
Some interpretations of those alternatives may be usefully .quoted. Thus to warn "at the time" does not mean to warn in writing, and it was held that a warning 35 minutes after the offence, but given as soon as the police arrived, was sufficient. Probably to be warned that one will " be reported "—with nothing further said —is insufficient. The summons must be actually served within the 14 days—merely to lay the information and ',take it out" is not enough.
As regards the notice, this may be served personally or sent by registered post, and"it should be noted that it should 'contain "the nature" of the offence rather than -its .exact particulars.. Thus it. has been held a sufficient notice where dangerous driving was alleged and then careless driving was charged. The notice—if sent—must be addressed to the defendant, so if addressed to his firm or employer the requirement has not been complied with. It will be sufficient if sent so that, in the normal course of the post it would reach its destination within the 14-day period; thus it will not avail the defendant if it is delayed because of a post office error.
tt20 One must acknowledge the fact that it may in certain circumstances be a difficult task for the police to comply with any of the three alternatives, the case. of the " hitand-run " driver being an obvious example. At the same time the obvious intention behind the provisibn of the Section is to ensure, so far as possible, that no defendant has to face a charge so long after the alleged offence that he is not adequately armed to defend himself—either in his own memory as to the circumstances, or in the matter of tracing valuable witnesses. Nevertheless, there is a useful loophole for the police in cases where they cannot comply with one of the three alternatives and it was in seeking to rely upon this that they came " unstuck " at Wolverhampton.
Burden of Proof The proviso makes it immaterial that the police have failed to comply with one of the three alternatives if the court is satisfied—and here the burden of proof lies on the police—on one of two further alternatives. These are:—
a. That neither the particulars of the defendant nor of the registered owner of the vehicle could have been discovered "with reasonable diligence" in lime for a summons or notice to have been served or sent 'within the necessary 14 days, or b. That the defendant contributed to the failure of the police to comply with the section by his own conduct.
It is upon the question of "reasonable diligence" that the decision in such cases often turns. In Clarke v. Mould (1945) the police were held not to have shown a lack of such diligence when they were wrongly teld by the local taxation office the registered owners of the vehicle—the fault was not theirs, but someone else's. In the recent case at Wolverhampton, however, the taxation authority had not replied to the first police inquiry, and the' latter had allowed 13 days to•-go by without doing anything to expedite-the matter.
It may seem odd to a layman that a defendant who actually receives either the notice of intended prosecution or the summons itself a day or two after the expiry of the 14 days should be able to take advantage of such a clear technicality, even though he actually receives it and although his case on the actual offence has no merit in it at all.
Such, however, is the case, for the law is always extremely strict in construing and 'interpreting the provisions of any " penal" statute, and most people would probably feel that if there has been dilatoriness or • inefficiency on the part of those prosecuting, well, then, " good luck to the defendant" if he gets away With it. It is certainly right and proper that everyone should know his rights in the matter, and the second alternative just mentioned is sufficient safeguard against a defendant who conveniently keeps out of the way for the 14 days.
in the case of Sandland v. Neale (The Commercial Motor, November 11) the Divisional Court held by a majority that a notice sent to a man's home—although the police knew that the person was in hospital--was properly served. I suggested in that issue that, in such circumstances, the police should serve duplicate notices of their intention to-prosecute.