Graham, R (on the application of) v Director of Public Prosecutions [2003] EWHC 120 (Admin)

Case No CO/2693/2002[2003] EWHC 120 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 22nd January 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE JACK
Between
THE QUEEN ON THE APPLICATION OF GRAHAMClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A GRAHAM appeared in person for CLAIMANTMR M SEYMOUR (instructed by the Director of Public Prosecutions) appeared for DEFENDANT
J U D G M E N T(As approved by the Court)
Crown copyright©Wednesday, 22nd January 2003
[1]MR JUSTICE JACK: This is an application to quash the decision of the Crown Court sitting at Chichester on 11th March 2002 whereby the court dismissed the appeal of the applicant, Mr Mark Graham, against his conviction by the Worthing Magistrates on 3rd September 2001. That conviction was for exceeding the 30-mile an hour speed limit in Broadwater Road, Worthing, on 4th March 2001 at about 11.40 pm. Mr Graham had not appeared before the magistrates and was convicted in his absence. On his appeal to the Crown Court his case was conducted by his father, Mr Andrew Graham, as has been his application before us today.[2]The application is made pursuant to permission granted by the court on a renewed application on 8th October 2002. Permission was granted on the basis that there was then no transcript of the proceedings in the Crown Court and that the conviction was unusual in that the evidence as to Mark Graham's speed was that of two police officers who had observed his car but had not used any device to measure the speed.[3]By a letter to Mr Graham dated 30th August 2002, the Court Service stated that there was no transcript of the hearing in the Crown Court. That was true because the tapes of the proceedings had not then been transcribed. It was unfortunate that the letter did not say that there was no transcript of the tapes of the proceedings but that the tapes existed and that a transcript could be obtained. It may be that an apology has now been sent.[4]In any event, it was not until 8th January, that is some two weeks ago, that a transcript became available. It is 80 pages long. Mr Andrew Graham at one point challenged whether the transcript was genuine and suggested that we should not admit it. He did not pursue that line before us today, perhaps wisely. We do have his comments on the transcript and we understand his unhappiness at the way the manner was handled before the transcript was provided.[5]In my view, there is no reason not to accept the transcript as an accurate record of the proceedings in the Crown Court.[6]Mr Graham also complained that the Crown Prosecution Service had been late in serving counsel's skeleton argument. It was only slightly late. Mr Seymour, appearing before us today, has provided his explanation relating to the service by registered post, but in any event this cannot, however, affect the merits of the application.[7]The issue before the Crown Court was whether the court was sure on the basis of the evidence called before it that Mr Graham was exceeding the speed limit. Giving the court's ruling, His Honour

Judge Baker stated:

"In the court's view, this is a hopeless appeal. Here are two experienced police officers who have given estimates of a speed of a car. Even if they are five miles an hour adrift, the defendant was still doing forty miles an hour. As I say, the appeal is quite hopeless and will be dismissed."
[8]The evidence of the two officers, PC Andrew Duke and PC Gregory Harper, had been to this effect. They were both experienced traffic division officers, very familiar with Worthing, in particular with Broadwater Road. They were experienced in judging the speed of cars from their work as traffic division officers using devices such as radar or laser to measure speed. On the night in question they were together on patrol in a marked police vehicle. They had occasion to be in a lay-by beside the Broadwater Road close to the railway bridge. PC Duke was out of the car administering a breath test for alcohol. That test was negative. PC Harper had remained in the car. They then heard a car with a loud exhaust approaching the bridge. They could not see over the brow of the bridge from where they were. A car came over in the inside lane of the twin carriageway. That car was doing about 30 miles an hour. Then came a noisy car, driven by Mr Mark Graham, in the outside lane. They estimated that it was doing not less than 45 miles an hour. It overtook, or at least drew level with, the first car, appeared to see the police car, braked hard, fell back behind the first car, then crossed into the inside lane and turned left into Langton Road.[9]According to measurements made by Mr Andrew Graham from a street map of Worthing with a scale of 4 inches to one mile, the distance from the centre of the bridge to Langton Road is about 165 yards.[10]The officers followed Mr Graham's car. He soon pulled up outside his passenger's girlfriend's house. When he was told by PC Duke that he had been doing at least 45 miles an hour, he said to his passenger that he could not have been doing more than 40.[11]Both officers were cross-examined by Mr Andrew Graham at length. I mention in particular cross-examination as to whether the manoeuvres they described in their evidence could have taken place within the distance available. They each answered that they could and gave their explanations.[12]Mr Mark Graham gave evidence. He was not able to say what speed he was doing, save that he was not exceeding the limit. He said that the first car coming over the bridge had been going very slowly so he went to overtake it. When that first car accelerated to 30 miles an hour then he pulled back behind it because of the coming left hand turn into Langton Road. He did not really deny that he had said to PC Duke that he was doing under 40 miles an hour.[13]It was for the Crown Court to consider whether it believed the officers as to what they saw or whether it thought that the description given by Mr Mark Graham might be right. I do not think, reading the transcript, that the honesty of the officers was really contested, but it was suggested that they were mistaken. The two descriptions were of course rather different, even apart from speed. I refer to the officers' description of Mr Graham's braking.[14]It was for the Crown Court to consider whether it was sure from the evidence of the officers and Mr Graham as to speed that Mr Graham was exceeding the limit. It is plain that the Crown Court concluded that it was sure.[15]It is not the function of this court on proceedings for judicial review to consider whether the Crown Court reached the right conclusion. The Crown Court is the tribunal whose function it is to decide the facts. This court will only interfere if it appears that the conclusion which the Crown Court reached was one which no reasonable court, properly considering the evidence before it, could have come to.[16]It is unusual, today at least, for a prosecution for speeding to be based on the visual estimate of officers. Today mechanical or electronic means will almost always be used, but there is no bar to a prosecution succeeding on the basis of the opinion evidence of those who saw the vehicle. That is confirmed by section 89(2) of the Road Traffic Regulation Act 1984 which provides:
"A person prosecuted for such an offence [that is a speeding offence] shall not be liable to be convicted solely on the evidence of one witness that in the opinion of the witness the person prosecuted was driving the vehicle at a speed exceeding a specified limit."
[17]These officers gave evidence as to their capability of estimating speed and they were cross-examined as to whether they were able accurately to do so here in the short distance between Mr Graham's car appearing on the bridge and it slowing down.[18]I am wholly satisfied that the conclusion of the Crown Court on the appeal cannot in any way be described as unreasonable and that there are no grounds for its review by this court.[19]I would add, to avoid any doubt arising, that having read the transcript of the evidence in the Crown Court I think it very likely that had I been sitting in the Crown Court I would have reached the same conclusion, but that is irrelevant to this application.

LORD JUSTICE CLARKE: I agree. The appeal will therefore be dismissed.

[21]MR SEYMOUR: My Lord, there is an application for costs on behalf of the Crown Prosecution Service. I have served on Mr Andrew Graham this morning a copy of our short summary assessment and would ask the court to deal with the matter in that way this morning rather than it being deferred for any detailed assessment. May I hand up a copy of what I have given to Mr Graham this morning.[22]The points that we would make in relation to costs are short and, I hope, appropriate.[23]Firstly, we make this point, we are the successful party, if that is the right phrase, and have joined this matter as properly interested parties in relation to these proceedings, and in the usual course the court's discretion, we would anticipate, would be with us as to costs.[24]My Lord, secondly, so far as the figures are concerned, in the first instance no claim has been made in relation to any costs incurred directly by the Crown Prosecution Service's time in connection with this matter, whether that could arguably be claimed or not, and so far as the hours claimed in relation to counsel's fees are concerned, I would respectfully submit that they are frugal compared to the amount of time that has actually been committed to a detailed analysis, as was necessarily required, of the lengthy transcript that was prepared in relation to the proceedings.[25]The other claim for costs is in relation to the transcript itself. In relation to that we would simply submit this. The appropriate way for Mr Graham to have sought to challenge the findings of the Crown Court in relation to this matter on the basis that he has brought before this court would have been by way of case stated, which would have ensured that the findings of the Crown Court could have been set out in detail without the need for a transcript, and then Mr Graham could have considered thereafter whether it would be appropriate to proceed further. By pursuing the matter by way of judicial review he has effectively forced the Crown to incur expense in obtaining that transcript because there was no way of properly bringing before this court the material for the point that he wished to make which would enable the court to make a proper determination on this hearing. Whilst it was not necessary for Mr Graham to have the transcript because of course he was present throughout those proceedings and would have known from having been present whether there was in fact an arguable point in relation to the reasonableness of the tribunal's finding at the Crown Court, it was necessary to assist this court in relation to its task.[26]In my respectful submission, therefore, the limited costs which we claim should be paid by Mr Graham, the claimant in this matter. Those are my respectful submissions.

LORD JUSTICE CLARKE: Thank you. Mr Graham?

[28]MR GRAHAM: As far as the transcript is concerned, my son would have been eligible to this free because he's on a low income. He's been unemployed for a few months because he was beaten up, through no fault of his own, but I think it's outrageous to suggest that my son should pay for this transcript. I won't really make too much of this because for whatever amounts of money that you want I know you're reasonable about the rate at which you collect it, and I would just ask for leave to appeal to the House of Lords on the basis purely of extreme bias in the conduct of this. This isn't about this case for me, this is about other cases and the absolute extreme bias that has been shown to me in relation with the treatment I've had for other cases, specifically when a solicitor let me down without warning and Judge Sullivan in this court criticised me, he said "You knew about this case for months and you have not" -- I could go on.

LORD JUSTICE CLARKE: Mr Graham, I am sure you will appreciate that we are only considering --

[30]MR GRAHAM: I realise that. I'm asking for leave to appeal. Whether you grant it or not -- frankly I'd rather just as quickly as possible leave was refused by you and refused by the House of Lords so I can get along with this case and the others to the European courts because it would be against the public interest to bother hearing any of my cases really. I can see that. After what I've suffered from the legal fraternity I will keep on going anyway.[31]That's it and I thank you for -- I'm quite sure from where you see things that what you're doing is right. I stick purely on bias. I'm unable to argue my cases on the facts so I have to go on procedural issues, which is the way I've always been destroyed in the past, and I thank you very much anyway.

LORD JUSTICE CLARKE: Thank you, Mr Graham. I think we will just retire for a moment to consider the costs.

LORD JUSTICE CLARKE: In this matter the DPP seeks costs amounting to a total of £951.25 inclusive of VAT to cover both counsel's preparation of the argument, the attendance at court today and the cost of transcripts of the hearing.

[34]We have reached the conclusion that we should make an order for costs but it should be less than that sum for this reason. As my Lord indicated in the course of his judgment, one of the problems in this case has been the absence of a transcript until a late stage. It seems likely to us that if a transcript had been obtained when it was first sought in September, it would have been before Latham LJ and Mccombe J and it is likely that the application for permission to move for judicial review would have been refused so that this hearing would not have taken place. However, it is right to say that the application was not abandoned when the transcript did become available, so it appears to us that the claimant should pay part of the costs. We have reached the conclusion that the just result would be to order the claimant to pay £250 by way of costs.[35]So far as the application for permission to appeal to the House of Lords is concerned, it appears likely to us that before we could consider whether to grant permission to appeal we would have to certify that the case involved a question of public importance. We could not possibly so certify. If for any reason that is wrong and it is not necessary for this court to certify, we nevertheless refuse permission to appeal because we, for our part, do not consider this is a matter appropriate for their Lordships, but of course, assuming we are wrong about the certificate, that would be a matter for their Lordships' house.[36]Thank you very much.