Director of Public Prosecutions v Thornley [2006] EWHC 312 (Admin)

Case No CO/4129/2005[2006] EWHC 312 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 3rd February 2006
Strand
London WC2
B E F O R E:
LADY JUSTICE HALLETT
MR JUSTICE OWEN
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
JOHN ROBERT THORNLEYDefendant
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 D POTTER (instructed by Director of Public Prosecutions) appeared for CLAIMANTTHE DEFENDANT APPEARED IN PERSON WITH MR C MORLEY (AS HIS MCKENZIE FRIEND) for in person
J U D G M E N TFriday, 3rd February 2006
[1]MR JUSTICE OWEN: This is an appeal by way of case stated from a decision of the Cheshire Justices sitting at Warrington Court on 11th April 2005 dismissing an information laid by the appellant against the respondent alleging an offence of driving a motor vehicle in excess of the temporary 40 miles per hour speed limit.[2]The offence, the subject of the information, was alleged to have been committed on 2nd May 2004 on the southbound carriageway of the M6 at Warrington. The respondent denied the offence and at trial the appellant sought to rely on images produced by the Speed Violation Detection Deterrent system (SVDD), a prescribed device approved by the Secretary of State under the Road Traffic Offenders (Prescribed Devices) Order 1999.[3]A record of the images produced by the device had been sent to the respondent on 5th April 2005; that is to say, less than 7 days before the hearing. In the course of the trial the respondent made a submission of no case to answer based on the failure of the prosecution to comply with sections 20(1) and (8) of the Road Traffic Offenders Act 1988 as substituted by section 23 of the Road Traffic Act 1991, arguing that the statutory requirement that the document containing images produced by a prescribed device be served no less than 7 days before the hearing or trial, is a condition of admissibility.[4]In response it was argued on behalf of the appellant that it was open to the prosecution to rely on the evidence of PC Troup, the police officer responsible for operating the system, who sought to produce the record from the device.[5]The justices rejected the appellant's argument and upheld the submission of no case to answer dismissing the information. The justices' reasoning in upholding the respondent's application is set out in paragraph 6 of the case stated in the following terms:
"In the absence of an application by the appellant for an adjournment in order to comply with the service requirements of subsection (8), we reluctantly formed the opinion that; A. Failure to strictly comply with the service requirements contained in subsection (8) of section 20 of the Road Traffic Offenders Act 1988 precluded us from admitting the digital images produced by the Speed Violation Detection Deterrent System recording the respondent's speed. B. As PC Troupe had not directly witnessed the speeding offence he had no personal knowledge of it and he could not therefore, give any oral evidence of the measurements of the respondent's speed. C. Having ruled the evidence produced by the Speed Violation Detection Deterrent system inadmissible, PC Troupe could not then use the data as an aide memoir and effectively adopt it as his own personal testimony. D. As there was no certificate of service or formal admission from the respondent that the images had been served 4th June 2004 before the proceedings were commenced, we did not find that the images had been served in accordance with Section 20 at this point as contended by the appellant. In any event the words 'served on a person charged with the offence' in Section 20(8) meant that the evidence had to be served after the proceedings specified in paragraph (2) had commenced."
[6]The question posed for the opinion of this court is in the following terms:
"... were we wrong in law to rule that: A. The appellant's failure to strictly comply with the service requirements contained in subsection (8) of section 20 of the Road Traffic Offenders Act 1988 precluded us from admitting in evidence the digital images produced by the Speed Violation Detection Deterrent System recording the respondent's speed? B. And having ruled the evidence produced by the Speed Violation Detection Deterrent System inadmissible, PC Troup could not use the data as an aide memoir and effectively adopt it as his own personal testimony."
[7]The use of evidence from a prescribed device in relating to a speeding offence is governed by section 20 of the Road Traffic Offenders Act 1988 as substituted by section 23 of the Road Traffic Act 1991. The relevant parts of section 20 are in the following terms:
"(1) Evidence... of a fact relevant to proceedings for an offence to which this section applies may be given by the production of - (a) a record produced by a prescribed device, and (b) (in the same or another document) a certificate as to the circumstances in which the record was produced signed by a constable or by a person authorised by or on behalf of the chief officer of police for the police area in which the offence is alleged to have been committed; ... "(6) In proceedings for an offence to which this section applies, evidence - (a) of a measurement made by a device, or of the circumstances in which it was made, or (b) that a device was of a type approved for the purposes of this section, or that any conditions subject to which an approval was given were satisfied, May be given by the production of a document which is signed as mentioned in subsection (1) above and which, as the case may be, gives particulars of the measurement or of the circumstances in which it was made, or states that the device was of such a type or that, to the best of the knowledge and belief of the person making the statement, all such conditions were satisfied. ... (8) Nothing in subsection (1) or (6) above makes a document admissible as evidence in proceedings for an offence unless a copy of it has not less than seven days before the hearing or trial, been served on the person charged with the offence; and nothing in those subsections makes a document admissible as evidence of anything other than the matters shown on a record produced by a prescribed device if that person, not less than three days before the hearing or trial or within such further time as the court may in special circumstances allow, serves a notice on the prosecutor requiring attendance at the hearing or trial of the person who signed the document."
[8]The effect of section 20(1) and (8) amounts to this: evidence of a fact relevant to the proceedings, may, and I emphasise may, be adduced by the record produced by a prescribed device, and a certificate as to the circumstances in which it was produced, being served on the person charged not less than 7 days before the hearing or trial. If a copy of the record and the certificate is served not less than 7 days before trial, and if not less than 3 days before trial, or such further period as the court may allow, the person charged serves on the prosecution a notice requiring the attendance at the hearing of the person who signed the certificate; the document, or documents if the record and certificate are in separate documents, will not be admissible as evidence of anything other than the matters shown on the record produced by the prescribed device. In those circumstances, the officer will be able to give evidence of the circumstances in which the record was produced and the record itself will be admissible in evidence.[9]The question raised by this appeal is whether the same applies where there has not been compliance with the provisions of section 20(8). It therefore is necessary to consider the proper construction of section 20(1) and (8). In my judgment it is permissive, and does not exclude the possibility of evidence of the record produced by the prescribed device being adduced in another way.[10]In my judgment the provision has the same effect as section 10 of the Road Traffic Act 1972, as substituted by section 16 of the Road Traffic Offenders Act, which makes provision for the admission of the printout produced by a device for measuring breath alcohol levels. The effect of section 10 was considered by the court in Garner v Directorof Public Prosecutions [1990] RTR 208, in which, following Castle v Cross [1984] 1 WLR 1372, the court held that the admissibility of the statement automatically produced by the device (commonly called the printout) did not just arise through the Road Traffic Offenders Act 1988, section 16, and that the statement itself was an admissible document and represented real evidence if properly produced. The court held that the purpose and effect of section 10 was to enable the printout, together with an appropriate certificate, to be tendered at the hearing, and to be capable of establishing the facts stated in it without the necessity of anybody being called.[11]In the course of his judgment Stocker LJ first considered the factual circumstances. At 215H he said:
"The printout itself was not annexed to the case as it should have been in accordance with directions of this court given in earlier cases. It was however by consent put before us and was of course referred to in the case itself. The printout is in standard Lion Intoximeter form. It contains the relevant readings and the fact that the calibration test was carried out both before the test began and at the conclusion of the final test. The document itself therefore if admissible proves the proper working of the machine and the readings which were recorded upon it."
[12]At 216L he addressed the question of the admissibility of the printout:
"That question can be put in this form. Was the printout admissible? The argument that it was not depends upon the proposition that its admissibility arises solely from the terms of section 10(3) of the Act of 1972. [I interpose at this point that for all practical purposes the wording of section 10(3) is identical to the section with which we are concerned.] For my part I do not agree that such admissibility does arise solely through the terms of that section. In my view it was, quite apart from that section, an admissible document at common law as representing real evidence. That matter came before this court (differently constituted) in Castle v Cross [1985] RTR 62. It is to be noted that that case was concerned with an offence under section 8(7) of the Road Traffic Act 1972 which is concerned with the wilful failure of the defendant to provide a specimen of breath when required to do so. Accordingly, it was not a case which fell within the ambit of section 10 at all, since section 10 is confined to proceedings under section 5 or section 6 of the Act. The court held (and I quote at this stage from the headnote) in [1985] 1 All ER 87j: 'On the trial of an information alleging an offence under s 8(7)(a) of the Road Traffic Act 1972 of failing without reasonable excuse to provide a specimen of breath when required to do so, the test record printout of an automatic breath-testing device (such as the Lion Intoximeter 3000) used to ascertain the proportion of alcohol in specimens of breath is admissible as evidence, since the printout constitutes the product of a mechanical device which, at common law, falls into the category of real evidence...' "
In giving his judgment Stephen Brown LJ said, [1985] RTR 63, 68E - FJ:
'Sophisticated arguments were addressed to the justices and it may be - if I may say so - that they were blinded by science. They used the phrase in the case stated: '
In our submission therefore the Lion Intoximeter 3000 contributes to its own knowledge.' That phrase is not explained. It seems to this court that it may be a misunderstanding of the headnote...' "It may be that there have been times when doubts were expressed as to the admissibility of documents or information produced by means of sophisticated machinery, such as computers or, as in this case, the Intoximeter machine, and that at some stage the question was whether the machine was simply a tool or whether, through its processes, it contributed to its own knowledge. It seems clear now from the case cited [Castle v Cross] that that is no longer a relevant consideration and that the printout of an Intoximeter machine is in fact admissible at common law as being real evidence and is not dependent upon the provisions of section 10(3). If it was dependent upon that subsection then it could not have been held admissible in Castle v Cross [1985] RTR 62, which was not concerned with section 5 or 6. "In my view the purpose and effect of section 10 is to permit an Intoximeter printout together with the appropriate certificate, either on the face of the printout or as a separate document, to be tendered at the hearing of an offence under section 6 and to be capable of establishing the facts stated in it without the necessity of anybody being called to prove the document. That is derived in my view from the reading together of subsection (3) and subsection (5) which provide for the situation where an accused person, within the limits of time prescribed, required the attendance of the officer who conducted the test, and it also implies a qualification on the admissibility of the document for the purpose of such a prosecution that it should either have been handed to the accused person immediately following upon the testing or within seven days thereafter."[13]Then at page 218 at D Stocker LJ said:
"In my mind however it was proved because, for the reasons I have given, the printout itself was admissible at common law and does not require the provisions of section 10(3) to render it admissible. That being so, it in my view does not really matter whether the justices listened to oral evidence of Sergeant Heinemann, who was refreshing his memory, as he put it, but seems clearly to have been reading out the contents of the printout, or whether they independently read the printout and came to the same conclusion. Whichever way it was, the printout was in evidence. In my view it was admissible and accordingly the case was in my view proved."
[14]Roch J agreed. As he said at 219A:
"As real evidence such a printout can be proved, as any other real evidence can be proved, namely, by being produced as an exhibit by a witness who can identify what the exhibit is and link it to the case against a defendant. Once the exhibit is properly proved in that way it speaks for itself."
[15]In my judgment the effect of the section with which we are concerned is precisely the same as the section with which the court was concerned in the case of Garner. The purpose and effect of section 20 is to enable the record and certificate to be tendered in evidence at the hearing without the necessity of anybody being called to prove them. But section 20 does not preclude such evidence being called in the conventional manner.[16]In his comprehensive skeleton argument to this court Mr Thornley sought to rely upon the decision in Owen v Chesters [1985] RTR 191 in which the court considered section 10 of the Road Traffic Act 1972 as substituted by section 23(5) and schedule 8 of the Transport Act 1981. But the important distinction between Owen v Chesters and Garner v DPP and the instant case is that in Owen v Chesters the printout from the machine in question was not produced. In this case I am satisfied that the course adopted by the prosecution was unobjectionable. The record from the device was put in evidence and it ought to have been considered by the magistrates.[17]It follows that, in my judgment, the magistrates were in error in upholding the submission of no case to answer. There was real evidence before them as to the speed at which the respondent was travelling. Secondly, there was the evidence given in person by Police Constable Troup as to the circumstances in which the record produced by the SVDD had been obtained.[18]I would add only this. In his submissions to us, Mr Thornley sought to argue that if we were to uphold this appeal then that would have the consequence that where the prosecution do not comply with the provisions of section 20(8) and serve a copy of the record more than 7 days before the hearing, defendants will not have the opportunity to subject the record to analysis, and will therefore be inhibited in the conduct of their defence. The answer to that is that if the prosecution fail to comply with section 20, and if a defendant is, as a result, at a disadvantage and needs additional time within which to consider the record produced by the machine, or have it subjected to scientific examination, he will be entitled to ask the court for an adjournment. I would expect that in those circumstances an adjournment would be granted. He would also be in a position to seek an order for the costs thrown away. Again, it is likely, absent any other relevant considerations, that such an application would be successful.[19]It follows that, for the reasons that I have given, I would uphold the appeal, and would answer the first of the questions posed by the justices in the case stated in the affirmative. It is not necessary, in those circumstances, to address the second of those questions.

LADY JUSTICE HALLETT: I agree.

[21]Mr Potter, plainly this matter will have to be remitted to the Magistrates' Court presumably for a rehearing?[22]MR POTTER: Yes, my Lady, may that be done.

LADY JUSTICE HALLETT: Very well, that is the order that we make. Any other orders?

[24]MR POTTER: My Lady, not in the circumstances.

LADY JUSTICE HALLETT: That is it, Mr Thornley. The prosecution have not asked for costs against you. The matter will go back to the Magistrates' Court for a hearing.

Cited in 4 later judgments