Driver A was prosecuted for two driving offences: (1) driving whilst disqualified, and (2) using a mobile phone whilst driving. Disqualification placed Driver A at risk of a custodial sentence, losing their job as a teacher, their income, and, consequently, their housing security.
The unusual aspect of this case was how the driver was disqualified. Driver A was convicted and sentenced to a driver disqualification in their absence, under the Single Justice Procedure, in May 2024 for failing to reply to a s.127 notice for information.
In June 2024, Driver A was pulled over by the police for using a mobile phone whilst driving. To the driver’s surprise, they were informed that they had been disqualified from driving and would be prosecuted for committing the offence of driving whilst disqualified.
Driver disqualification
The court has the power to try the case in a driver’s absence and to do so without a public hearing. The court must be satisfied that the written charge and SJP notice, and other such documents prescribed by the CrimPR had been served on Driver A (see s.16A(1)(c) and (2), Magistrates Courts Act 1980) (‘1980 Act’).
The court convicted Driver A in their absence and then adjourned the proceedings because a breach of section 172(2) of the Road Traffic Act 1988 requires a driver’s licence to be endorsed with a mandatory six points, which meant the driver should be disqualified under the ‘totting up’ provisions (which apply when a driver has 12 or more points on their licence).
The proceedings were subject to a mandatory requirement under s.16C of the 1980 Act to:
- Give the accused the opportunity to make representations about the proposed disqualification (s.16C(2)(a), 1980 Act).
- Adjourn the trial (s.16C(3)(b), 1980 Act).
- Issue a summons requiring the driver’s attendance at court (s.16C(3)(b), 1980 Act).
Driver A received no correspondence about the conviction, their upcoming sentencing hearing, or the risk of disqualification. The court could not supply any evidence that it had issued a summons for Driver A to attend the sentencing hearing.
When the court reconvened for sentencing, it failed to identify that no summons had been issued for Driver A’s attendance and wrongly proceeded in the driver’s absence. The court disqualified Driver A from driving for a period of six months. Driver A received no correspondence concerning their disqualification prior to being pulled over by the police in June 2024.
Statutory declaration
Following receipt of legal advice, Driver A submitted a statutory declaration to the Magistrates Court to nullify their conviction for the s.172 offence. The court duly made the statutory declaration.
Section 24.9(5)(a) of the 1980 Act states that following a statutory declaration being made by the Magistrates Court:
“[The court] must treat the single justice procedure notice and all subsequent proceedings as void, but not the application for the summons or the written charge with which the case began.”
Notwithstanding the statutory declaration, the prosecution of Driver A for driving whilst disqualified and using a mobile phone whilst driving continued. The prosecution cited [correctly] there is no requirement that a driver know they are disqualified for them to be found to have committed the offence.
Singh v DPP (2000) 164 JP 82
The only cited authority in the legal textbooks on the interpretation of the word ‘void’ in section 24.9 of the 1980 Act is Singh v DPP (2000) 164 JP 82. Mr Singh was disqualified in circumstances where he accepted he had received a disqualification letter the same morning he was pulled over for driving whilst disqualified.
Kennedy LJ found that a statutory declaration does not take effect retrospectively and applies only after the declaration is made. The learned judge drew a distinction between ‘void’ and ‘void ab initio’. Kennedy LJ relied on R v Lynn [1971] RTR and R v Thames Magistrates Court (ex parte Levy) (1997) TLR 394 to read across the principles applied to criminal appeals into how statutory declaration should be interpreted.
With no other authorities on the point, Driver A was at serious risk of experiencing significant injustice.
Remedy
A hearing was listed for an application to be heard before a judge. The Defence submitted a skeleton argument asking the court to nullify the conviction and sentence using the principles most recently explored by the Chief Magistrate, Senior District Judge Goldspring, in Northern Trains Limited and Anor v Sarah Cooke and Ors (2024) (Westminster Magistrates Court).
In that case, SDJ Goldspring performed a comprehensive review of the authorities surrounding the powers of the Magistrate Court to respond to procedural injustices. The learned judge summarised the two-stage test for declaring a conviction and/or sentence a nullity: (1) whether, properly examined, there was non-compliance with what Parliament intended when passing the relevant provision, and (2) if there was non-compliance, was it sufficient to render the relevant step a nullity?
The relevant non-compliance in the present case was a failure to summon Driver A to appear before the court to provide an opportunity to make representations and, if it decided disqualification was appropriate, to make that order in the presence of the Defendant.
Outcome
Following submission of the Defendant’s skeleton argument, the prosecution dropped the driving whilst disqualified charge. Driver A pleaded guilty to the use of a mobile phone whilst driving, which again, meant they fell within the ‘totting up’ provisions.
Following an application raising exceptional hardship, the court endorsed Driver A’s licence with six points and imposed a fine, but crucially did not order the Defendant’s disqualification.
The key factor in the court’s decision not to order a disqualification was that Driver A was the primary carer for their partner, who lived separately, and whom needed to attend regular appointments at a hospital some distance away. Use of public transport was not appropriate in this case.
Dan Jacklin was instructed by David Ollivere of Lyons Davidson.
