The Law Requires Amendment to Prevent the Police from Changing
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Their Minds After They have Told a Driver They Do Not Intend to Prosecute Him
THE recent decision of a Divisional Court which held that, on the law as it stood, the police were entitled to change their minds after telling a driver that they did not intend to prosecute him, has—perhaps not surprisingly —been the subject of much adverse comment both in the Press and by the motoring organizations. How, then, does the law as to "intended notice of prosecution" stand?
The Road Traffic Acts are, at least at first glance, quite explicit on the matter. Section 21 of the Act of 1930 provides ; " Where' a person is prosecuted for an offence under any of the provisions . . . of this 'Act relating respectively to the maximum speed at which motor vehicles may be driven, to reckless or dangerous driving and to careless driving he shall not be convicted unless either (a) he was warned at the time the offence was committed that the question of prosecuting him . . . would be taken into consideration or (b) within 14 days of the commission of the offence a summons for the offence was served on• him; or (c) within the said 14 days a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or the person registered as the owner of the vehicle. .. ."
The police have a choice of three courses open to them.
• They may warn of their intention to prosecute at the time; they may actually proceed to serve the summons within 14 days, or they may within the same,period serve written notice of their intention to prosecute. Such simple choices have, none the less, been responsible for a great deal of angry litigation, of which the recent case of Lund v. Thompson is the latest in a long line.
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By Our L
Verbal Warping Sufficient
Much of the trouble has been caused by the question of the service of the notice of intended prosecution. If the police warn a driver "at the time "—and a mere verbal warning is quite sufficient—no further action on their part is necessary under the section and the next thing the driver may know is the arrival of the summons.
If he disputes at the hearing that he was warned at the time, the court simply has to decide whether he or the police officer is telling the truth. Most police forces do not risk such a clash, but make assurance doubly sure by serving a written notice as well. The words, "at. the time" of the offence, mean no more than they may reasonably be expected to mean and are given a sensible interpretation.
Thus, where a person is temporarily unconcious, it is obviously idle to " warn " him. If he is warned aS soon as he 'comes round that would suffice.
The section contains a proviso intended to deal with some, at least, of the difficulties that may arise in serving a notice of intended prosecution. If the court is satisfied that the police have been reasonably diligent in seeking to discover the identity and address of either the driver or the owner, of the vehicle, but they have not succeeded in doing so to enable them to serve the notice within the period, or if the accused has by his own conduct contributed to their failure to do so, the court may nevertheless
convict. . Obviously, the proviso about "by ha own conduct " is [20
aimed at the " hit-and-run " driver who deliberately lies low after the event in the hope that for 14 day.s he can avoid the service upon. him of either the summons or the notice of intended prosecution.
The notice may be served' personallyon the defendant or. left with an adult at his. Usual home address or sent by registered—but not ordinarV—post. If it is served in such a manner, it .matters not that he does not actually see it, provided he is reasonably likely to do so. On the other hand, if.the police know that he is not likely to be 'at home, they cannot be said to have acted reasonably if they serve it there. Sometimes there is' misunderstanding on these points.
It should be noted that, apart from the requirements of the Act about the service of the notice; its contents are also of importance—as is the content of the alternative verbal warning which may be given at 'the time of the offence. It has been held that a slight error of two hours in the time when the offence occurred did not invalidate the notice, provided the defendant .could have been in no doubt about the incident in question. Thus, if perhaps the allegation was one of speeding and the place alleged was a road which the driver had used more than once in a day,different considerations might arise. It is, moreover, of some importance that the nature of the offence should' be correctly stated, so that warning of a charge of dangerous driving is not valid if a charge of speeding is brought.. It will suffice, however, for either careless or dangerous driving, if the .driver's attention is directed to the sections of the Act .involved or probably merely to an alleged piece of bad driving.
The whole purpose of Section 21 of the Act is, of course, clear to anyone who gives it a moment's thought. An offence may be a fleeting thing which its perpetrator will have forgotten in a short while—if, indeed, he even realized that he might have been guilty of it.
Gathering the Evidence If the matter is brought to his .notice at the time or within ,14 days,there is at least a sporting chance that he may be able to prepare his defence to face a possible charge, Not only must he recollect the circumstances himself—if he can—sn as to be in a position to give coherent evidence, but he may be able to trace and call witnesses to support him. There may even be material evidence in the form of damage or. marks on the road to be measured or photographed.
That being the obvious basis of the legislation, the decision in Lund v. Thompson is most unfortunate and it is noticeable that two of the judges agreed with the decision "with regret." On February 11 the defendant was involved in an incident and on February 14 notice of intended prosecution for dangerous and careless driving was served. On February 27 the police notified him by letter that no further action would be taken, but on March 13 another letter stated .that, after further consideration, they had decided to take proceedings.• The spirit of the Act clearly requires that if a driver has heard nothing of any incident within 14 days, that should be the end of the matter. A simple amendment of words to the section would ensure that the letter complied with the spirit.