Darryl Pledge [2019] EWCA Crim 912

**Darryl Mark Pledge** [2019] EWCA Crim 912 concerns an appeal against conviction for dangerous driving in which the sole ground advanced was that the prosecution had failed to act with reasonable diligence when serving a notice of intended prosecution within the statutory period, thus rendering the conviction unlawful.

Mr Darryl Pledge was convicted on 17 October 2018 in the Crown Court at Lewes before the Recorder and a jury of dangerous driving contrary to section 2 of the Road Traffic Act 1988. On 18 October 2018 the Recorder sentenced him to four months’ imprisonment suspended for twelve months, disqualified him from driving for twelve months pursuant to section 34 of the Road Traffic Offenders Act 1988, ordered him to take an extended re-test under section 36 of that Act, and imposed a costs order of £2,800 together with a statutory surcharge of £115. He appealed by leave of the single judge.

On 21 April 2017 Mr Paul Markwick, a civilian speed and safety camera operator, observed from his camera van a Ford Transit van driven by the appellant along Old Shoreham Road in Hove. Its windscreen appeared completely shattered, rendering it difficult to see the driver, and part of the roof was depressed, the worst damage being on the passenger side. Mr Markwick informed the police. The appellant was not warned at the time of any intended prosecution. Mr Markwick immediately began investigations and conducted an internet search for Sussex Waste Services, which led him to the company’s website. He obtained a business telephone number, telephoned the company on the same day, spoke to the appellant and informed him that a vehicle examiner would be in contact. On 26 April 2017, five days after the incident, Mr Markwick sent a notice of intended prosecution addressed to Mr Darryl Pledge (Sussex Waste Services) at Sixt House, 5 Langley Quay, Waterside Drive, Langley, Slough, SL3 6EY. This was the registered keeper’s address appearing on the DVLA database. On 11 May 2017, more than fourteen days after the incident, a photocopy of the notice was returned to Sussex Police, completed by the previous owner of the vehicle, the car hire company Sixt, stating that the vehicle had been disposed of on 15 March 2011. Mr Markwick then issued further notices on 11 May 2017 to two other addresses, one from the company website and one from the insurance database.

Mr Ian Clarke of the DVLA gave evidence explaining how the mistake arose. The vehicle logbook had been correctly issued in 2015 showing the address of Sussex Waste Services at 15 The Twitten, Southwick, Brighton. Subsequently the DVLA received an old V5 document from Sixt notifying a change of business address. The name of the registered keeper was not changed, but the address was altered to Sixt House in Slough. Consequently the notice dated 26 April 2017 was directed to the correct individual but the wrong address. Mr Markwick testified that this was the address shown on the Police National Computer, which obtained its information directly from the DVLA, and which he used when preparing the original notice. He gave unchallenged evidence that the registered address for a vehicle was often located somewhere not automatically associated with its keeper.

Proceedings were commenced against the appellant on 15 March 2018. He appeared at Brighton and Hove Magistrates’ Court on 29 March 2018 and elected trial by jury. At trial a written report from insurance assessors dated March 2017 assessed the vehicle as unroadworthy and Mr William Holden, a forensic examination officer, gave evidence that visibility looking forward from the cab would have been restricted due to the damage across the windscreen. The appellant accepted that he drove the van on 21 April 2017 and that it was damaged, but his case was that the damage was not significant and was mostly on the passenger side, that he was driving slowly and carefully to a place of repair, and that his driving was not dangerous. The trial turned on whether the jury could be sure that a careful and competent driver would have realised that driving the appellant’s van in its condition would have presented a danger of personal injury to other road users or serious damage to property.

At the close of the prosecution case, Mr Andrew Thompson for the appellant renewed a submission of no case to answer, originally considered and rejected on the papers by His Honour Judge Kemp. The submission was that the notice of intended prosecution dated 26 April 2017 did not comply with section 1(1)(c) of the Road Traffic Offenders Act 1988 because the original notice was never received by the appellant and he could not therefore be convicted, as the notice had not been received within the statutory fourteen days.

The relevant provisions are sections 1 and 2 of the Road Traffic Offenders Act 1988. Section 1 applies to offences falling within Schedule 1, which includes dangerous driving under section 2 of the Road Traffic Act 1988. Subject to section 2, a person shall not be convicted unless he was warned at the time, a summons for the offence was served on him within fourteen days, or within fourteen days a notice of the intended prosecution was served on him or on the registered keeper of the vehicle. Section 1(1A) provides that a notice may be served by delivering it to him, by addressing it to him and leaving it at his last known address, or by sending it by registered post, recorded delivery or first class post addressed to him at his last known address. Failure to comply with section 1(1) is not a bar to conviction if the court is satisfied under section 2(3)(a) that neither the name and address of the accused nor the name and address of the registered keeper could with reasonable diligence have been ascertained in time for a summons or notice to be served or sent in compliance with the requirement. By section 1(3), the requirement is deemed to have been complied with unless and until the contrary is proved. The question of reasonable diligence is for the judge, not the jury, as held in R v Bolkis (1934) 24 Cr App R 19.

The court reviewed three authorities on reasonable diligence. In Clarke v Mould [1945] 2 All ER 551, Wrottesley J observed that if the police applied with proper expedition to the proper place and received incorrect information, they had acted with reasonable diligence. In Rogerson v Edwards (1951) 49 LGR 358, Lord Goddard, in obiter remarks, said the police are not guilty of any lack of reasonable diligence if they apply to the registration authority, and it was enough that they did what they did. In Haughton v Harrison [1976] R.T.R. 208, the court accepted that the prosecution had acted with reasonable diligence in relying on information from the local taxation department.

Mr Thompson submitted that the present case should be distinguished from routine cases in which reliance on DVLA information sufficed. Here Mr Markwick had undertaken further enquiries including tracing the business website, which showed a local Sussex address, and telephoning the appellant. In order to discharge the obligation of reasonable diligence, it was submitted that Mr Markwick should also have sent the notice to the address shown on the website, which he had visited and which should have alerted him to the possibility that the DVLA address was incorrect. The prosecution submitted that the requirement had been met because the notice was served on the keeper as registered with the DVLA, even though the details were incorrect, and in any event reasonable diligence was exercised. There was no reason for Mr Markwick to doubt the DVLA address, and the fact that he obtained additional information did not lead to any heightened expectation of diligence.

The Recorder ruled that Mr Markwick had acted with reasonable diligence and the exception in section 2(3)(a) was engaged. There was nothing unusual in the registered keeper address being located outside the area of the alleged offence, and addresses submitted to the DVLA often had no obvious association with the keeper. The fact that Mr Markwick engaged himself in investigation did not lead to any heightened expectation of diligence. It was the DVLA’s mistake, of which Mr Markwick was entirely unaware, not any lack of diligence on his part, which meant the fourteen-day period would always have been missed.

The sole ground of appeal was whether Mr Markwick, having been alerted to the Sussex address on the website, should have taken further steps to ascertain the address of the registered keeper. The appellant accepted that if the contention failed, the appeal was to be dismissed. Lord Justice Fulford, giving the judgment of the court, held that the Recorder was entitled to conclude that the prosecution acted with reasonable diligence. Mr Markwick had undertaken an internet search which enabled him to speak with the appellant and tell him that a vehicle examiner would be in touch. He then used the usual route of obtaining the address from the Police National Computer, which obtained its information directly from the DVLA. Given that in his experience the registered address was often not automatically associated with the keeper, it was unnecessary for him to send copies of the notice on a speculative basis to addresses appearing on the Sussex Waste Services website. There was no evidence before the court to suggest that, save exceptionally, DVLA records were inaccurate. The police were entitled to conclude that the information the DVLA provided was accurate, having not been alerted to the real possibility of an error. Knowledge of a different address on a company website did not materially raise the possibility that the DVLA had reported the wrong address, given the contact or business address provided by a company on its website might well differ from the registered address for any relevant vehicles. The appellant’s arguments as regards reasonable diligence therefore failed.

In short, the court held that the prosecution acted with reasonable diligence in relying on the DVLA address and that knowledge of a different business address on a company website did not require speculative service of the notice at additional addresses, and the appeal was accordingly dismissed.

Clarke v Mould [1945] 2 All ER 551
Haughton v Harrison [1976] R. T. R. 208