Lost in the post

For a variety of reasons, this blog has been relatively quiet over the last couple of weeks – for which, apologies. By way of an update, a brief note on PF (Dumfries) v Cotton [2008] HCJAC 8 (thanks to Findlay Stark for drawing the case to my attention).

The appeal is concerned with a narrow point. Mr Cotton was prosecuted for speeding. Under section 1(1) of the Road Traffic (Offenders) Act 1988, as amended, a person cannot be convicted of that offence (and others) unless steps are promptly taken to warn him of the possibility of prosecution, one of which is the serving of a “notice of intended prosecution”. Section 1(1A) provides as follows:

A notice required by this section to be served on any person may be served on that person -

(a) by delivering it to him;

(b) by addressing it to him and leaving it at his last known address; or

(c) by sending it by registered post, recorded delivery service or first class post addressed to him at his last known address.

(2) A notice shall be deemed for the purposes of sub-section (1)(c) above to have been served on a person if it was sent by registered post or recorded delivery service addressed to him at his last known address, notwithstanding that the notice was returned as undelivered or was for any other reason not received by him.

(3) The requirement of sub-section (1) shall in every case be deemed to have been complied with unless and until the contrary is proved.

In Mr Cotton’s case, the notice was sent by recorded delivery, and it was later established that this had been lost by the Royal Mail before delivery. The justices concluded that – on the basis of section 1(3) – this “proved” that the requirement of service had not been complied with and so acquitted Mr Cotton.

The appeal court has overturned that decision, and it is difficult to see how they could possibly have come to any other conclusion. Section 1(1A)(c) does not require receipt, and even if there were any room for doubting the point, section 1(2) makes the same point clear beyond any possible doubt.

That may seem a harsh conclusion, but it seems reasonable that fiscals should be able to rely upon registered post in such cases, and that must surely be the intended purpose of section 1(2). The consequences of a failure in the postal service are unfortunate, but it is difficult to see any actual prejudice arising as a result – and if for some reason actual prejudice did arise this could, of course, form the basis of a separate plea in bar of trial.