Barber v Director of Public Prosecutions [2006] EWHC 3137 (Admin)

Case No CO/2913/2006

[2006] EWHC 3137 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 22nd November 2006

Strand

London WC2

B E F O R E:

LORD JUSTICE WALLER

MR JUSTICE TREACY

Between

BARBERClaimant

-v-

Between

DIRECTOR OF PUBLIC PROSECUTIONSDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR T EATON (instructed by Buglear Bate & Co) appeared for CLAIMANT

MR M GRAHAM (instructed by the CPS) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE WALLER:

[1]This is an appeal by way of case stated from a decision of the Magistrates sitting in Bedlington, Northumberland. The appellant was charged with driving a motor vehicle on 13th March 2005 on the A189 spine road near Cramlington, Northumberland at a speed in excess of 70 miles per hour (that being the speed limit on the dual carriageway), namely 117 miles per hour. He pleaded not guilty and his trial took place before the Magistrates on 2nd December 2005.

[2]The evidence against him was the live oral evidence of Police Constable Harrison who purported to support the evidence that he gave by two still video pictures. Those video pictures had been produced as a result of the use by PC Harrison of a device known as a Laser LT1 20/20. The stills were of a Vauxhall Vectra, registration number M4 WCK. The appellant accepted that that was his car and he accepted that he was driving the vehicle at the relevant time.

[3]By section 89 of the Road Traffic Regulation Act, it is provided by subsection (1):

"A person who drives a motor vehicle on a road at a speed exceeding a limit by or under any enactment to which this section applies shall be guilty of an offence."

Then by (2):

"A person prosecuted for such an offence shall not be liable to be convicted solely on the evidence of one witness to the effect that, in the opinion of the witness, the person prosecuted was driving the vehicle at a speed exceeding a specified limit."

That subsection requires supporting evidence to that given by the witness. In this case, the evidence which was being relied on as being additional to that given by PC Harrison were the two still pictures.

[4]The appellant challenged that evidence and in particular whether the device used had accurately recorded the speed of the motor car. The Magistrates found the appellant guilty. They found that on 13th March PC Harrison observed the motor car M4 WCK to be heading in a northerly direction along the A189 Cramlington spine road. They found that PC Harrison was using a prescribed device of a type approved by the Secretary of State, namely a Laser LT1 20/20, attached to a video recorder to record the events that occurred. They found that the device was operated in accordance with the approval given and that the resulting video tape had been handed to the Northumbria Police Fixed Penalty Unit personnel and was read by them and the two stills were produced. They found that the appellant was the registered keeper and that he was the driver, as he had accepted, and then they found that the stills produced from the video tape indicated that the car was travelling at a speed of 117 miles per hour.

[5]They recite in the statement of case much of the evidence that was given and then they posed certain questions: "1(a) Were the Justices correct in accepting, pursuant to section 20 of the Road Traffic Offenders Act 1988 (as amended), stills originating from a Lastec Video System as (real) evidence to corroborate PC Harrison's opinion of excessive speed?" (b) Most particularly, were the Justices entitled to do so in light of the TIMEOUT message being displayed on those stills? (2) Were the Justices correct in accepting evidence from the Home Office Approved device (the Laser LT1 20/20) merely because it was such a device, without addressing any further issues surrounding the procedural proprieties attached to the use of such equipment?

[6]The appellant has been represented by Mr Eaton today, that representation having been obtained very much at the last minute. Mr Eaton has put in, again very much at the last minute, an amended skeleton. His first application to us was to seek to have some form of amendment made to the case stated by reference to the questions posed by the Magistrates. He wished to have the questions redrafted in the following terms:

"(a) Did the Magistrates commit a procedural or other irregularity by admitting hearsay evidence as to the meaning of the TIMEOUT message displayed by the speed detection device without first considering the statutory requirements for the admissibility of such hearsay evidence? (b) On the basis that the Magistrates did not find as a fact that the speed indicated on the stills produced to court was directly attributable to the appellant's vehicle, should the Magistrates have dismissed the case on the basis that there was no case to answer?"

[7]It seems from his submission that Mr Eaton was still not excluding consideration of question 1(a), which really related to the question of whether the Magistrates were allowed to rely on the evidence that it was a Lastec Video System which was in use by PC Harrison.

[8]So far as question (b) was concerned, which he wished to have the court address, apart from the fact that if he wished such a question addressed the appellant should have made an application to the Magistrates to ask that question to be posed, we would not allow that question to be posed since, as it seemed to us, there is a clear finding by the Magistrates that this vehicle was being driven by this appellant and that the speed of 117 miles per hour was attributable to this vehicle. Thus it would have been a hopeless submission to the Magistrates that there was no case to answer.

[9]So far as (a) is concerned, as it seemed to us, the argument raised by (a) is an argument which should be open to Mr Eaton by reference to the questions posed by the Magistrates, and we thus refused any application to vary the questions that we would have to consider, though we made it clear that we would listen to Mr Eaton's submissions on the hearsay aspect.

[10]Returning to the questions actually posed, question 1(a) can be dealt with quite shortly. What was suggested should be considered by reference to that question was a submission which Mr Eaton sought to pursue before us which was that there was no evidence that the Lastec Video System was being used. What had happened was this. In his written statement, PC Harrison had referred to a different device as the one he had used and by virtue of which the photographs had been produced, and the appellant made something of that before the Magistrates where he represented himself. He cross-examined PC Harrison to the effect that what he had said in his statement was that he had used a different device. But the Magistrates concluded that they should accept PC Harrison's explanation which was that he had to sign an enormous number of statements and that the reference to the different device in the statement was down to a typographical error. The Magistrates thus accepted that PC Harrison's evidence that he had used the device Laser LT1 20/20 was evidence that they should accept.

[11]In my view, that is the short answer to question 1. They were entitled to ask themselves whether PC Harrison was being truthful and accurate or not in the witness box when he said that he used a Lastec Video System. They concluded that he was being truthful and accurate and thus the answer to question 1 is that they were entitled to accept the evidence to corroborate PC Harrison's opinion.

[12]The real point before the Magistrates related to the fact that on the stills produced, in the line below the line where the speed "117" appeared, there appears the word "Timeout". What the appellant was seeking to maintain before the Magistrates was that that word "Timeout" appearing on the stills should indicate that the speed of 117 mph also recorded in the stills was not reliable as being the speed of the motor car that he was driving. In essence, the argument of the appellant was that there might be some problem once the word "Timeout" was there on the video and that problem might involve, for example, the speed being the record not of his car but of some other car in the vicinity.

[13]He cross-examined PC Harrison and PC Harrison dealt with the word "Timeout". He was a highly experienced officer in the use of this device. He had used it for some 4 years and he stated that, so far as he was concerned, the word "Timeout" indicated when he should remove his finger from the trigger so he can shoot the Laser at another vehicle. That was evidence he gave in chief and when cross-examined by Mr Barber, the appellant.

[14]At the end of the prosecution case, the appellant did not himself give evidence. He did not get into the witness box and say that he was not travelling at 117 mph. He produced a document which he had drawn down from the internet and he highlighted certain passages which sought to suggest that "Timeout" was really indicating that there might be some error so far as the recording by the machine is concerned. The suggestion indeed was that the device might be recording the speed of a different motor car. But PC Harrison maintained his position. He reiterated that he would be unable to obtain an image of another vehicle without his taking his finger off the trigger. The word "Timeout" would remain on the screen until he let go of the trigger.

[15]In the context of that evidence, the Magistrates found that the police officer had answered all the points raised by the appellant to their satisfaction. They accepted the officer's evidence that the word "Timeout" on the stills taken from the video was not an error message but was a signal for his use only to indicate when he should remove his finger from the trigger. They agreed with the officer that the extract from the document headed "LT1 20/20" was ambiguous. The fact that the highlighted paragraph was set out underneath the sub-heading of "Error Messages" did not mean that "Timeout" was an error message. They accepted that the officer was trained to use the prescribed device and had been using it for approximately 4 years on a daily basis, and therefore they said in their view he was extremely experienced and unlikely to operate the device incorrectly. They therefore said they were satisfied beyond reasonable doubt that the appellant was guilty of the offence of speeding on 13th March 2005.

[16]The appellant, before instructing counsel, had produced a whole lot of other material from the internet for us. Counsel has very wisely not pressed any application to put in that material as fresh evidence on this appeal. He recognised that this is an appeal by way of case stated. We must confine ourselves to the findings of fact of the Magistrates and it would take exceptional circumstances for any fresh evidence to be admitted at the appeal stage. What he argued was that the evidence given by PC Harrison about the word "Timeout" was hearsay evidence and that the Magistrates should have asked themselves whether that evidence by PC Harrison was admissible evidence. In my view, if that question had been posed and if it had been dealt with before the Magistrates, the obvious answer to such a suggestion would have been that this officer had 4 years experience on a daily basis using the device and that he was thus someone who could give expert evidence as to how the word "Timeout" might affect the validity of the stills which had been produced in evidence.

[17]There is no question that the stills themselves are real evidence and his explanation as to "Timeout" was an explanation he was entitled to give. It is also fair to say this. The appellant himself produced no admissible evidence to cast any doubt on the validity of the stills. Be that as it may, the question for us is whether the Magistrates were entitled to rely on the evidence of PC Harrison. In my view, they clearly were. In my view, in addition to answering the first question "Yes", the second two questions should also be answered "Yes", making clear that there is, in my judgment, no question of there being any procedural improprieties which might be suggested from the phraseology of the question.

[18]On that view of matters, this appeal must be dismissed.

MR JUSTICE TREACY: I agree.

[20]MR GRAHAM: My Lord, I am instructed to make an applications for costs or a contribution towards costs in this case.

[21]MR EATON: My Lord, my client has very limited means. He has been largely representing himself for the duration of the proceedings, albeit that he has instructed solicitors at the very last minute. I ask that your Lordships --

LORD JUSTICE WALLER: Let us have a look at that.

[23]MR EATON: Yes, my Lord. (Handed).

LORD JUSTICE WALLER: What are you saying your costs are? What we have in mind is that the fair thing to do here would be to make an order for contribution.

[25]MR GRAHAM: My Lord, I do not have the detail. It would be in the region of a total figure of £1,500 which would include counsel's fees and travel.

LORD JUSTICE WALLER: Thank you very much.

[27]MR EATON: My Lord --

LORD JUSTICE WALLER: We had in mind that the order should be that your client should make a contribution of £500 to the costs of the prosecution. Does he need some time to pay that?

[29]MR EATON: My Lord, could we ask for £5 per week?