Doughty v Ely Magistrates' Court [2008] EWHC 522 (Admin)

Case No CO/1401/2008

[2008] EWHC 522 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 7th March 2008

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE RICHARDS

MRS JUSTICE SWIFT DBE

Between

DOUGHTYClaimant

ELY MAGISTRATES' COURTDefendant

THE CROWN PROSECUTION SERVICEInterested Party

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)

Simon Clarke (instructed by Tinkler Solicitors) appeared for Claimant

for The defendant did not appear and was not represented

Nick Hoffman (instructed by the Crown Prosecution Service) appeared for Interested Party

Judgment

LORD JUSTICE RICHARDS:

[1]This is a claim for judicial review of an unusual nature. The claimant is the managing director and founder of a company called Transport Management Consultants Limited, which specialises in the giving of expert opinions and evidence in road traffic matters. One of the company's clients, Mr Anderson, was charged with a speeding offence based on evidence that he had been caught on a police camera driving at 98 mph in a 70 mph speed limit. The camera in question is described more accurately as an LTI 20:20 speed detection device, which is a police-operated laser device.

[2]The claimant produced a lengthy report raising doubts about the procedures adopted in the use of the speed detection device and the reliability of its readings. He also produced a supplementary report commenting on a report obtained by the prosecution from a Mr Langdon. He then appeared at Mr Anderson's trial at Ely Magistrates' Court on 1st February 2008 ready to give evidence on Mr Anderson's behalf. But the magistrates ruled that he was not an expert on the matters before the court and that his evidence was inadmissible. We are told that Mr Anderson was subsequently convicted and has not appealed against his conviction.

[3]The claimant, however, contends that the magistrates' ruling as regards his status as an expert witness was wrong in law and he complains not about its effects on Mr Anderson's case but about its effects on the claimant himself and his company. He says that he can no longer provide expert opinions and evidence in cases where the allegation is one of exceeding the speed limit without first disclosing the fact of the adverse ruling by Ely Magistrates' Court; and that it is most likely that, upon being informed of that ruling, solicitors will not instruct him but will seek an expert opinion elsewhere. The claimant's professional reputation in relation to such matters is, it is said, seriously damaged. That is why he has taken the only way open to him to challenge the magistrates' ruling, lodging a very prompt claim for judicial review, a claim which received equally prompt attention with the grant of permission and an order for an expedited hearing. He seeks a declaration that the magistrates' ruling was, in all the circumstances, unreasonable.

[4]It is, as I have said, an unusual application, but I see no reason in principle why it should not be entertained by this court. It is not a collateral attack on Mr Anderson's conviction; it relates solely to the decision taken with regard to the claimant's status as an expert witness, a matter with obvious and significant continuing implications for him and his company.

[5]So the question is whether, on the information before them, the magistrates were reasonably entitled to reach the decision that the claimant was not an expert in relation to the use of the relevant speed detection device.

[6]The relevant legal principles are not in dispute and can be taken from a judgement of the South Australia Supreme Court in R v Bonython [1984] 38 SASR 45, a judgment which has often been quoted in this jurisdiction. The relevant passage is conveniently set out in paragraph 10-65 of the 2008 edition of Archbold. It is for the judge to determine whether a witness is competent to give evidence as an expert and for that purpose there are two questions for the judge to decide:

"The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This... may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witnesswould render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court. "

An investigation of the methods used by the witness in arriving at hisopinion may be pertinent, in certain circumstances, to the answers to both the above questions... Where the witness possesses the relevant formal qualifications to express an opinion on the subject, an investigation on the voir dire of his methods will rarely be permissible on the issue of his qualifications. There may be greater scope for such examinationwhere the alleged qualifications depended upon experience or informal studies... Generally speaking, once the qualifications are established, the methodology will be relevant to the weight of the evidence and not to the competence of the witness to express an opinion..." Whether someone is competent to give expert evidence has to be determined not on a generalised basis but as a focussed question by the court in which the evidence is sought to be given, by reference to the specific issues to which the evidence relates and on the basis of the specific information available to the court as to the witness's knowledge and expertise. The magistrates in this case had before them, we are told, a document containing details of the claimant's experience and qualifications. That document opens with this summary:

"I am a retired traffic patrol officer with the Metropolitan Police, having served 7 years in the traffic department. I have passed the City & Guilds certificate in advanced vehicle examination, air brake technology and tachograph recording and calibration devices. I have also qualified with the police as an advanced accident investigator and reconstruction officer. I have held an HGV licencesince 1976. Prior to joining the Metropolitan Police, I was in the Royal Engineers for 13 years, during which I was employed in theregimental servicing and inspection bay responsible for maintenance and planning of the regimental vehicles, including plant machines. [In] 2004 [I] passed a masters degree with distinction in transport law."

The document then details the claimant's work history. It records the period between 1975 and 1988 when he served with the Royal Engineers, giving him extensive experience in engineering and in the driving and maintenance of vehicles. It gives further details of the period between 1988 and 1999 when he worked as a police officer with the Metropolitan Police in its traffic department. It was during that period that he obtained the City & Guilds certificate already referred to. In 1992 he passed courses on various speed detection devices. In 1994 he qualified in the use of LTI 20:20 speed detection device. He also qualified as an advanced accident investigator and reconstruction officer. After leaving the police force in 1999, he set up his company, which now employs nine full-time and three part-time staff. Reports and advice are provided in the transport field, including tachograph analysis and training, and accident investigation. The document does not refer in terms to work relating to speeding offences and speed detection devices, but the court is told elsewhere, and the magistrates were aware of the fact, that this comprises part of the work in which the company specialises.

[7]The document then gives details of the claimant's education, which includes a variety of qualifications at university level, at the City & Guilds Institute, and at the Police Training College in Hendon, in the various fields to which I have already referred. The document also records his membership of numerous professional bodies, including the Chartered Institute of Logistics and Transport, the Institute of Highway Incorporated Engineers, the Institute of Road Transport Engineers and the UK Register of Expert Witnesses.

[8]In addition, the magistrates had the report by the claimant on the matters with which Mr Anderson was charged. That report contains somewhat less detail about the claimant's background than the document to which I have already referred. It refers in the body of the report to his training in the use of the LTI 20:20, as well as other speed detection devices available to the police. It contains an annex setting out his formal qualifications and membership of professional bodies.

[9]The written material was supplemented by oral evidence given by the claimant in the course of the short procedure adopted by the magistrates in order to consider the issue of his competence to give evidence as an expert. This court has received this morning a helpful witness statement from the chairman of the relevant Magistrates' Court, which indicates what additional evidence was before the court and sets out the reasons why the court reached the decision it did. I quote from that witness statement:

"2. On 3rd January 2008, the court heard expert evidence from Mr Langdon on behalf of the Crown Prosecution Service as to the operation and use of the Laser LTI 20:20 speed detection device. Mr Langdon's qualifications are set out in his report... We particularly noted that Mr Langdon had attended expert witness courses on the Laser LTI 20:20 in the UK and in Holland, and he had also recently attended a course run by the device's manufacturer in Denver, Colorado. "3. During the course of his evidence, Mr Langdon raised doubts about the conclusions drawn by Mr Doughty in his report which had been prepared for the court. Mr Langdon questioned Mr Doughty's expertise on the operation of the Laser LTI 20:20 device. "4. On 1st February 2008, the defendant Paul Anderson called Graham Doughty to give expert evidence on the operation and use of the Laser LTI 20:20 device. "5. Mr Doughty's professional qualifications and experience are set out in his report prepared for the bench... We noted that Mr Doughty had not attended any courses which specifically covered theoperation and use of the Laser LTI 20:20 speed detection device. "6. As Mr Doughty's credentials had been called into question, we decided to makepreliminary enquiries to determine whether or not he did qualify as an expert witness who would be in a position to assist the courtin its deliberations by giving evidence of his opinion. We determined that there was a need for expert evidence in the case of R v Paul Andersonto assist the court in the operation and use of the Laser LTI 20:20 speed detection device. "7. We considered whether Mr Doughty hadacquired by study or by experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court. "8. We found that Mr Doughty had not acquired sufficient knowledge of the subject: "i) Mr Doughty retired from the Metropolitan Police Force in September 1999 and has therefore not operated a LTI 20:20 device since that date. "ii) Mr Doughty has not attended courses in the UK or in Holland on the use of the Laser LTI 20:20 speed detection device. He has not attended the expert witness course in Denver, Colorado run by the manufacturer of the Laser LTI 20:20 speed detection device. Mr Doughty did not therefore have an equivalent level of expertise to Mr Langdon, the expert witness called by the Crown Prosecution Service. "iii) Qualifications on road traffic law and engineering without practical experience of the Laser LTI 20:20 do not indicate that Mr Doughty has the ability to assist this court in determining issues relating to the intricacies of the LTI 20:20 device. "9. Accordingly, the bench determined that Mr Doughty was not an expert witness and therefore could not give evidence of his opinion with regard to the case of R v Paul Anderson."

[10]For the claimant, Mr Clarke submits that the reasons given by the magistrates reveal that they were in error in their approach, and in particular that those reasons do not provide a basis upon which any reasonable bench of magistrates could have properly concluded that the claimant was not an expert. The three matters referred to by the magistrates in paragraph 8 of the witness statement go not to the issue of competence to give evidence as an expert, but to the weight of such evidence.

[11]As to the first of the three matters mentioned in paragraph 8, Mr Clarke submits that the fact that the claimant had not operated an LTI 20:20 device since 1999 did not negative his expertise. The fact was that he had used the device for a number of years while in the police force. That previous experience remained highly relevant. He had also conducted continuing research into the use of the device and procedures relating to it, including examination of the manufacturer's specifications and published material. He was entitled to bring all his knowledge and experience, including that as a police officer and his wider experience, to bear on the issues that arose in Mr Anderson's trial. His experience also included previous appearances as an expert since 1999 in relation to the use of speed detection devices in prosecutions for speeding offences. Moreover, his experience in relation to speed detection devices other than the LTI 20:20 was not irrelevant since such devices operate on similar principles, and experience in relation to them can, again, properly be brought to bear to provide an opinion of value in relation to the specific device that was in issue in the case. Mr Clarke submits that the lack of direct experience in the use of the specific device since the claimant left the police force in 1999 must go only to weight and not to his competence to appear as an expert witness at all.

[12]Mr Clarke makes much the same point in relation to the second of the reasons given for the magistrates' decision. The reference to courses in the UK or in Holland is a mistake, as is common ground. The magistrates were referred, in fact, to courses in the USA and in Holland, the particular course in the USA being that to which they made reference later in the same paragraph, the one in Denver, Colorado. It seems that the courses in Holland and the USA were all run by the manufacturer, rather than by any third party. The evidence before the court is that such courses were not open to the claimant, or, indeed, to anyone else other than a serving member of a traffic enforcement agency. This court has before it evidence that may not have been available to the Magistrates' Court concerning the restrictions on the right to attend the manufacturer's courses. It is an e-mail from the manufacturer stating:

"In response to our conversation of this morning, I must inform you that we do not offer courses to become an expert witness on our equipment to persons involved in the defense of traffic violations. Pleaseunderstand that we extend our loyalty to the traffic enforcement agencies that operate our equipment in an effort topromote traffic safety world wide. It would be a conflict of interest relative to our customers and our own beliefs to do so."

My reaction to that e-mail is one of some surprise, but it is not for us to examine the appropriateness of the manufacturer's policy. It has the effect of foreclosing defence expert witnesses from the possibility of keeping up to date by attendance at courses of this kind, which is a worrying factor. It makes it the less appropriate that the Magistrates' Court should hold against the claimant, as a reason for finding that he was not an expert witness, the fact that he had not attended such a course. There is a danger, if such a line of reasoning were taken to its ultimate conclusion, of preventing any expert defence evidence in this field other, perhaps, than from those who only recently retired from the police force.

[13]In any event, Mr Clarke submits that the magistrates were acting unreasonably and unfairly in relying on non-attendance at these courses as a reason for finding that the claimant was not an expert in relation to the particular device. He submits again that one is entitled to look at previous experience in relation to the particular device and to the wider experience of the witness, and that non-attendance at courses can go only to weight rather than to competence to appear as an expert witness at all.

[14]As to the third of the reasons given by the magistrates, Mr Clarke submits that this effectively rolls up the previous two reasons and can be met by the arguments already addressed in relation to those reasons. Again, it is said that the claimant does have practical experience of the specific device, albeit dating back a few years, and he has the wider background and experience to which I have already referred. Again, it is said that the matters relied on here by the magistrates can go only to the weight of the claimant's evidence.

[15]The claim has been resisted by the Crown Prosecution Service, which unfortunately was served with the proceedings only at a very late stage. There has been a short acknowledgment of service from the CPS and Mr Hoffman has been instructed to appear before us today. We are grateful to him for his assistance given at such short notice. He submits that the magistrates' decision was one reasonably open to them and that the claim should fail. He points out that expert evidence was important for the issues in Mr Anderson's trial. The magistrates had heard from the prosecution expert, Mr Langdon, and had heard about Mr Langdon's qualifications. Mr Langdon had expressed a robust view of the claimant's report. When the prosecution were asked by the magistrates whether they were challenging the claimant as an expert, it was right for the prosecution to adopt the stance that they did, to say that they were challenging his status; and it was right for the magistrates to follow the procedure that they did to determine the issue.

[16]Mr Hoffman has drawn attention to the qualifications enjoyed by Mr Langdon, who had used the specific device as a serving officer until he left the police force in 2007. His experience had included some years in a camera enforcement unit. This is contrasted with the more historic experience of the claimant. It is also pointed out that Mr Langdon had attended a number of UK-based courses, though a suggestion by Mr Hoffman that such courses might have been available to the claimant was not pursued and there is no evidence before this court that there were any courses that he could have attended in relation to this specific device. I have already dealt with the non-availability of the manufacturer's courses elsewhere.

[17]Mr Hoffman submits that there comes a point where the extent of qualifications and experience cease to be merely a matter of weight and go to the basic competence of a witness to give expert evidence. He points out that one is concerned in this case only with the specific device and whether the claimant was competent to give expert evidence in relation to that specific device. It is no part of the case for the Crown Prosecution Service that the claimant lacks expertise in other fields. The Magistrates' Court was concerned, and this court is concerned, only with the narrow issue of expertise in relation to the LTI 20:20. As to that, Mr Hoffman submits that the claimant's experience of the device has lapsed and that the other qualifications and experience of the claimant are not sufficient to give him the requisite degree of expertise in relation to the specific device.

[18]Mr Hoffman has further contended that the lack of expertise on the part of the claimant is illustrated by the fact that he has fallen into error in his report. In support of that he has referred to a passage in Mr Langdon's report which criticises the claimant for misunderstanding the meaning of a particular error message shown on the display of the device, and has said that that indicates a lack of knowledge of how the equipment works.

[19]A further matter relied on by Mr Hoffman is the use, in the claimant's report, of material which, it is said, amounts to inadmissible hearsay relating to another case, material which should not properly have been included in an expert report, and the inclusion of which should cause this court to have further doubt about the claimant's credentials as an expert.

[20]Those, then, are the rival submissions. I have no doubt that Mr Clarke's submissions are to be preferred. It seems to me that the matters relied on by the magistrates for ruling that the claimant was not entitled to give expert opinion do not provide a reasonable basis for that conclusion. In my judgment, what the magistrates have done is to rely on matters that go to the weight of the claimant's evidence, if given, as a reason for preventing him from giving evidence as an expert at all. I do not think that there was a reasonable basis here for ruling him out as an expert witness altogether.

[21]I note with concern that in the second of the reasons given by the magistrates it is said that the claimant did not have an "equivalent" level of expertise to that of Mr Langdon. That seems to me to be the clearest of indications that the magistrates are relying on matters that go to comparative weight as a reason for a ruling on the very admissibility of the claimant's evidence in the first place.

[22]I am also concerned about Mr Hoffman's point concerning what is alleged to be an error in the claimant's report, as identified by Mr Langdon. Differences of view as to something like the meaning of an error message on the display of the device ought to be the subject of competing evidence from the individuals concerned, which can be evaluated by the magistrates having regard to the overall conclusion they reach as to the weight that can properly be put on the evidence of the two witnesses. It is not something that is properly resolved by ruling the defence witness out of court in the first place so as to prevent his evidence being given at all.

[23]If there is inadmissible material in an expert report, objection can be taken to that; and if it is a proper objection, that inadmissible material can be excised and not relied on before the court. The existence, or possible existence, of such material is not a good reason for precluding the giving of any evidence by the witness concerned.

[24]Whether the claimant is a good expert or not is neither here nor there. The quality of his report is neither here nor there. Whether he has overstepped the mark as regards the material deployed in his report is equally an irrelevant question for present purposes. These matters are not a sufficient basis for having ruled the claimant to be simply not competent to give expert evidence at all.

[25]In my judgment, having regard to his qualifications and experience and the knowledge he had gained through them, it was unreasonable to conclude that the claimant’s opinion relating to the LTI 20:20 could be of no value in resolving the issues before the court.

[26]Accordingly, I would grant the application for judicial review. I doubt whether any particular relief is required. The judgment of this court will speak for itself.

MRS JUSTICE SWIFT: I agree.

[28]MR CLARKE: I am grateful, my Lord, for that. The question of costs falls to be determined. Would your Lordship say they are to be taxed in the normal fashion?

LORD JUSTICE RICHARDS: When you say, "to be taxed in the normal fashion" --

[30]MR CLARKE: There is a claim. I have an itemised statement of costs, which can be handed up to the court if that is necessary.

LORD JUSTICE RICHARDS: Are you making an application for costs?

[32]MR CLARKE: I am making an application, forgive me, yes.

LORD JUSTICE RICHARDS: Against whom are you making the application for costs?

[34]MR CLARKE: I may stand to be corrected, but it seemed to me, with respect, to be against the central fund.

LORD JUSTICE RICHARDS: This is not a criminal case, remember.

[36]MR CLARKE: No.

[37]MR HOFFMAN: My Lord, I suspect it is against the Magistrates' Court itself.

LORD JUSTICE RICHARDS: Well, there are a number of possibilities.

[39]MR HOFFMAN: Yes.

LORD JUSTICE RICHARDS: One of them is that it is against the CPS.

[41]MR HOFFMAN: Well, if that is the application --

LORD JUSTICE RICHARDS: Well, let us hear what the application is.

[43]MR CLARKE: Well, the application is against two parties: The Ely Magistrates' Court, and the Crown Prosecution Service, who have willingly and readily attached themselves to this application.

LORD JUSTICE RICHARDS: The Magistrates' Court has not appeared. That is the normal procedure. It has helpfully provided the court with relevant evidence.

[45]MR CLARKE: Indeed so.

LORD JUSTICE RICHARDS: In the normal course, a costs order is not made against a court simply because a finding is made that in some respect that court has erred. I suspect that your only recourse, if any, is against the Crown Prosecution Service, but you did not even seek to serve the Crown Prosecution Service as an interested party.

[47]MR CLARKE: That is the position because we were not seeking to overturn to conviction, but nevertheless the Crown Prosecution Service had willingly attached themselves, as they are entitled so to do, but in addition they have robustly resisted the application and sought to instruct counsel so to do.

LORD JUSTICE RICHARDS: Has that given rise to any additional costs?

[49]MR CLARKE: No, I suspect it has not, and I do not seek any additional costs, other than the solicitors' and counsel's preparation costs that were incurred up to the point where we arrive now.

LORD JUSTICE RICHARDS: Can I put it another way, had the Crown Prosecution Service not discovered about this case yesterday, or whenever it was, and turned up, and you had just come here without any attendance by the Crown Prosecution service, would the costs have been any lower than they have actually been?

[51]MR CLARKE: No.