When the appellant appeared at the Magistrates’ Court to answer a charge of driving whilst uninsured, a preliminary point was taken on her behalf that the prosecution had not been commenced within 6 months of the date on which evidence sufficient in the opinion of the prosecutor to warrant proceedings had become available. In response the prosecutor relied upon a certificate issue under section 6(3). The Magistrates, having heard argument, formed the view that the certificate issued by the prosecution as to its date of knowledge was conclusive and that they could not go behind it. They held further that the proceedings were not an abuse of process. The defendant appealed the decision that the magistrates could not go behind the certificate.
Auld LJ had this to say about the circumstances in which a prosecutor’s certificate was susceptible to challenge: ‘Ms Gumbel, who appeared on behalf of the Applicant, submitted that the Magistrates were wrong to rule that they could not hear evidence going behind the certificate as to the date on which there was evidence sufficient for the prosecutor to mount these proceedings. She frankly conceded that there are no reported authorities giving guidance on the interpretation of section 6(3). However, she drew our attention to decisions in other contexts on the meaning of ‘conclusive evidence’. She referred us to a number of cases of contract and of public record where the courts have had to consider how conclusive the evidence is whenever a dispute arises as to underlying matters. They show in the main a resolve by the court to give the predictable effect of those words. A good indication of the general approach is to be found in the judgment of Simonds J in Kerr v Mottram Ltd [1940] Ch 657 where the term ‘conclusive evidence’ was considered in the context of articles of association of a company. Simonds J said: ‘I have no doubt that the words ‘conclusive evidence’ mean what they say; that they are to be a bar to any evidence being tendered to show that the statements and the minutes are not correct.’
Ms Gumbel sought to distinguish that and the other authorities, to which she helpfully referred us, by reference to the fact that in the contract cases the conclusiveness of evidence was clearly the mutual intention of the parties, and in the cases of public record there was a public interest or an interest of a third party to be considered for whom certainty in such matters is important. She submitted that in the context of a prosecution of an individual there are different considerations. She maintained that the original 6-month period for issuing proceedings should be given certainty, and that an extension of that time limit however achieved, in this instance by certification, on a basis that is not justified on the facts should be open to investigation by Magistrates.
Mr McGuinness, adopting the words of Simonds J in Kerr v Mottram, submitted that the sub-section means what it says, that the certificate is conclusive evidence and that if a court, whether a Magistrates’ court or this court, were to look at evidence put forward as capable of unseating the certificate the word ‘conclusive’ would have no meaning. He submitted that there were only two possible exceptions:
(i) where it is plain that there has been fraud, and
(ii) where the certificate is wrong or arguably wrong on its face.
He referred to a helpful summary of the law which is set out in volume 17 of the current edition of Halsbury’s Laws, at paragraph 28, which has a side heading:
‘Prima facie, sufficient and conclusive evidence’.
As to ‘conclusive evidence’ it reads:’
‘Conclusive evidence means that no contrary evidence will be effective to displace it, unless the so called conclusive evidence is inaccurate on its face, or fraud can be shown.’
It is not suggested here that the certificate can be said to be inaccurate on its face, and no fraud is alleged.
The clear purpose of section 6(3) is to achieve certainty, both for the prosecutor and for the Defendant, and to prevent what would otherwise be an exercise in discovery of a prosecuting process as to when a particular information came to hand and as to when decisions as to its sufficiency could or should have been made. Clearly any such possibility in the context of this sort of provision would be an intolerable burden to the prosecution and a cog on the wheels of justice at summary level.
It has to be remembered, too, that the test in section 6(1) is whether the date on which evidence ‘sufficient in the opinion of the prosecutor to warrant the proceedings has come to his knowledge’. As in many other matters concerning the prosecution of offences there is a margin of judgment given to the prosecutor. In my view, there is no way of going behind section 6(3) as suggested by Ms Gumbel so as to negate its clear provision that a certificate for this purpose is conclusive, save possibly in the two exceptional cases to which I have referred.’
Judges:
Auld LJ, Ebsworth J
Citations:
[1996] EWHC Admin 14
Statutes:
Road Traffic Offenders Act 1988
Jurisdiction:
England and Wales
Cited by:
Cited – Lamont-Perkins v Royal Society for The Prevention of Cruelty To Animals (RSPCA) Admn 24-Apr-2012
The defendant had been convicted of animal cruelty. She appealed to the Crown Court, and now appealed against rulings made by the judge as to the time limits for a prosecution under the 2006 Act in the Magistrates Court. She said that the RSPCA . .
Lists of cited by and citing cases may be incomplete.
Road Traffic, Magistrates
Updated: 08 July 2022; Ref: scu.136562
