Queen’s Bench Divisional Court

Published November 10, 2009

Gidden v Director of Public Prosecutions

Before Lord Justice Elias and Mr Justice Openshaw

Judgment October 29, 2009

In times of postal disruption, prosecuting authorities should not rely on ordinary first-class post for serving notices of intended prosecution.

The Queen’s Bench Divisional Court so stated when allowing an appeal by way of case stated by Peter Gidden against the dismissal by Grimsby Crown Court (Judge Tremberg and justices) on February 27, 2009, of his appeal against conviction by Scunthorpe Justices for an offence of speeding.

On October 6, 2007, a car, of which Mr Gidden was a registered keeper, exceeded the speed limit. On October 11, 2007, a notice of intended prosecution was sent by ordinary first-class post to Mr Gidden’s home address.

Under section 1(1) of the Road Traffic Offenders Act 1988 a person could not be convicted of an offence unless the requirement in section 1(1)(c) that the notice of intended prosecution had been served within 14 days of the date of the commission of the offence had been met.

Mr Gidden did not receive the notice until October 22, 2007, because of industrial action by postal workers. A summons was issued against him by the Chief Constable of Humberside, to which Mr Gidden pleaded not guilty. He was convicted of the offence and appealed to the crown court.

At the appeal, Mr Gidden contended that the provision in section 1(3) of the 1988 Act that “the requirement of subsection (1) ... shall in every case be deemed to have been complied with unless and until the contrary is proved” created a rebuttable presumption of compliance.

Where the prosecution had conceded that the prosecution notice was delivered late, that was sufficient to rebut the presumption in section 1(3).

The judge considered, among other things, a passage at paragraph 32-153A in Archbold, Criminal Pleading Evidence & Practice 2009, which stated: “The notice must be posted on such a date that it would reach the defendant in the ordinary course of post within 14 days of the commission of the offence...” and went on to find that although the notice arrived late, the prosecution had complied with its obligation under the Act. Mr Gidden appealed.

Mr Archie Maddan for the appellant; the prosecution did not appear and was not represented.

LORD JUSTICE ELIAS said that the judge had been influenced by the passage in Archbold which was misleading.

It was not clear why the irrebuttable presumption found in section 1(2) of the Act, which provided: “A notice shall be deemed for the purposes of subsection (1)(c) ... to have been served on a person if it was by registered post or recorded delivery ... notwithstanding that the notice was returned as undelivered or was for any other reason not received...” did not apply to first-class post, but it did not. That provision only applied to registered post or recorded delivery.

Section 1(3) created a rebuttable presumption of compliance. Accordingly, late service of the notice by first-class post was not effective. The appeal was allowed and the conviction quashed.

His Lordship went on to say that he appreciated that construction might cause problems for the police and prosecuting authorities but in times of postal strikes they would have to adopt alternative means to avoid the risk of late delivery. Alternatively, it was a matter for Parliament to amend the Act.

Solicitors: Turner Coulston, Northampton.

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