Road traffic – Notices of intended prosecution – Postal service – Time limits

Gidden v Chief Constable of Humberside: DC (Lord Justice Elias, Mr Justice Openshaw): 29 October 2009

The appellant (G) appealed by way of case stated against a decision that service of a notice of intended prosecution in respect of a motoring offence had been properly effected by the respondent chief constable.

Under the Road Traffic Offenders Act 1988, a notice of intended prosecution had to be served on a defendant within 14 days from the date of the alleged offence. It was common ground between the parties that the police had posted such a notice, referring to an alleged speeding offence on G’s part, by first class post on a date which meant that it would ordinarily have been received within the 14-day limit. However, as a result of a postal strike, G did not receive the notice until 16 days after the alleged offence. He was subsequently convicted of speeding, fined and had his driving licence endorsed with a number of points.

The Crown Court dismissed G’s appeal against that decision, having held that service had been properly effected, notwithstanding receipt of the notice 16 days after the offence. The question posed for the determination of the High Court was whether, upon a proper construction of sections 1(1)(c), 1(1A)(c) and 1(3) of the act, a notice of intended prosecution should be regarded as having been properly served where the said notice was sent to the defendant by first-class ordinary post on a date that would normally lead to it being delivered within the 14-day time limit but where the court was satisfied that it was actually delivered after the 14-day time limit.

Held: Under the Criminal Procedure Rules 2005 rule 4.10, there was a rebuttable presumption that, unless shown differently, a document sent by first-class post was deemed to be received, and thereby served, on the second business day after it was despatched. Further, section 7 of the Interpretation Act 1978 provided that service by post was deemed to be effective unless the contrary was proved.

While, under section 1(2) of the 1988 act, an irrebuttable presumption existed in respect of the service of notices of intended prosecution sent by registered post or recorded delivery, that did not apply to deliveries by first class post. The words of the relevant legislation were clear and, as a matter of statutory construction, where a notice of intended prosecution sent by first-class post had not been received in the normal way, there was no effective service. Although that conclusion might create problems, especially when a postal strike occurred, the authorities would then have to adopt other means of warning a defendant to avoid the risk of belated delivery. It would be for parliament to address any loopholes in section 1(2) of the 1988 act and not for the court to save inconvenience by reaching a different conclusion on statutory construction. The answer to the question posed was, accordingly, that a notice of intended prosecution sent by first-class post would not be properly served if it was actually delivered outside the 14-day time limit. There had, accordingly, been no effective service of the notice in G’s case and his conviction was quashed.

Appeal allowed.

A Maddon (instructed by Turner Coulston) for the appellant; no appearance or ­representation for the respondent.