Robbie the Pict, R (on the application of) v Crown Prosecution Service [2009] EWHC 1176 (Admin)

[2009] EWHC 1176 (Admin)

Case No CO/3260/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 24th April 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE DAVIS

Between

THE QUEEN ON THE APPLICATION OF ROBBIE THE PICTClaimant

Between

CROWN PROSECUTION SERVICEDefendant

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Mr M Shrimpton (instructed by Bhatia Best) appeared for Claimant

Mr J Dee (instructed by the CPS) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE DAVIS: This case, according to Mr Shrimpton, counsel appearing for the appellant, raises very important constitutional questions involving issues of separation of powers and the like. Indeed, so strongly has Mr Shrimpton felt about this that before this hearing today he actually made an application, which on 4th March 2009 was dealt with by a Divisional Court comprising Laws LJ and Ouseley LJ, whereby Mr Shrimpton sought to persuade the court that this matter should be heard by a constitution comprising five judges, including preferably the Lord Chief Justice himself. The Divisional Court was not prepared so to order and I am afraid Mr Shrimpton is today going to have to content himself with a decision of one judge alone, that, as it happens, being a decision of myself. In truth, I have to say that I do not think this case raises any constitutional issues of importance at all. What it does raise is an issue of statutory interpretation, and issues of statutory interpretation commonly are heard by the courts every day of the sitting week during the sitting year.

[2]The background facts relating to this matter are of the simplest. Those facts are placed before the court in the case stated, this being an appeal by way of case stated. The decision in question was a decision of a Deputy District Judge (Magistrates' Courts) sitting in the Nottingham Magistrates' Court on Friday 21st December 2007. Before the District Judge was an alleged offence as against the appellant, a man calling himself Robbie the Pict, whereby it was said that he had driven a vehicle through a red light contrary to the provisions of section 36(1) of the Road Traffic Act 1988 and related regulations.

[3]The findings of fact made by the District Judge are not in dispute for the purposes of the appeal and are these. He found that a traffic light camera, a Gatsometer type 36(21), was placed on the A610 at Nuttall Island at Nottingham, directed towards traffic crossing a controlled junction travelling away from the city of Nottingham. The traffic light camera, he found, was calibrated daily and the device was not defective. Any offence detected by the camera was identified by the police and proceedings were then commenced against the registered keeper.

[4]On 14th December 2006 a Rover car with a particular registration number, travelling at 24 miles per hour, passed the stop line at the controlled junction 1.2 seconds after the red light had been displayed. The appellant was the driver of the motorcar. The District Judge found that the Gatsometer type 36(21) device was an "approved device".

[5]Submissions had been made to the District Judge on behalf of the appellant to the effect that the device was not an approved device for the purpose of producing evidence of a fact relevant to proceedings for the offence and evidence obtained thereby was not validly obtained.

[6]In the event, the District Judge ruled against the appellant on those legal points and received the prosecution evidence. The defendant (the appellant on this appeal) declined to give evidence and was convicted accordingly.

[7]The issues raised on this appeal are accordingly solely issues of law. In one sense it might be said that they are technical points raised, as opposed to issues raised on what might be called the factual merits. But that, as I see it, matters not one jot. If this conviction is to be upheld it must be upheld on the footing that the evidence necessary to obtain a conviction was validly obtained evidence. If it was not, then this conviction cannot stand.

[8]The question is whether the Gatsometer device in question (being the device from which the recording and photograph used at the Magistrates' Court were derived) was a device authorised for such purpose. For that purpose, it is necessary to look at the statutory materials relevant in that regard.

[9]Mr Shrimpton helpfully took me to the previous version of section 20 of the Road Traffic Offenders Act 1988, which is the applicable statute. Under that previous version this is provided:

"On the prosecution of a person for any speeding offence, evidence of the measurement of any speed by a device designed or adapted for measuring by radar the speed of motor vehicles shall not be admissible unless the device is of a type approved by the Secretary of State."

Accordingly, the device had to be of a type approved by the Secretary of State. Mr Shrimpton correctly accepts that such approval was not, under the terms of the then section, required to be contained in a statutory instrument or otherwise needed the approval of Parliament. It was sufficient for the Secretary of State to publish an approval given by the Secretary of State. That he accepts. But Mr Shrimpton also submits that the words "device of a type", and in particular the word "type", require a degree of specificity, and in particular require that the make and/or model should properly be identified. For his part, Mr Dee, appearing on behalf of the respondent, has accepted that for the purposes of this case.

[10]However, section 20 in its then form was subsequently amended, and indeed substituted, by what it was accepted as being a new statutory scheme, by the provisions of section 23 of the Road Traffic Act 1991. The new section 20 is, in the relevant respects, in this form:

"(1) Evidence (which in Scotland shall be sufficient 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; but subject to the following provisions of this section."

Then by subsection (2):

"This section applies to . . . [I can pass over the various offences specified and for the purposes of this case refer only to subsection (e)] (e) an offence under section 36(1) of the Road Traffic Act 1988 consisting in the failure to comply with an indication given by a light signal that vehicular traffic is not to proceed."

It is accepted, I should add, that the present offence is an alleged offence of that kind. "(3) The Secretary of State may by order amend subsection (2) above by making additions to or deletions from the list of offences for the time being set out there; and an order under this subsection may make such transitional provision as appears to him to be necessary or expedient. (4) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which this section applies unless -- (a) the device is of a type approved by the Secretary of State, and (b) any conditions subject to which the approval was given are satisfied. (5) Any approval given by the Secretary of State for the purposes of this section may be given subject to conditions as to the purpose for which, and the manner and other circumstances in which, any device of the type concerned is to be used. (6) In proceedings for an offence to which this section applies, evidence (which in Scotland shall be sufficient 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 . . . " I can pass over subsections (7) and (8), which relate to certain procedural aspects, and go on to subsections (9) and (10):

"(9) In this section 'prescribed device' means device of a description specified in an order made by the Secretary of State. (10) The powers to make orders under subsections (3) and (9) above shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament."

[11]I should also briefly refer to the fact that there was a Statutory Instrument, 1992 No 1286 entitled The Road Traffic Act 1991 (Commencement No 4 and Transitional Provisions) Order 1992. That, by paragraph 4, provided that an approval of the Secretary of State, for the purposes of section 20 of the Road Traffic Act 1988, of admissibility of measurements for speed by radar, in force immediately before 1st July 1992, shall have effect in relation to an offence alleged to have been committed on or after that date as if it had been given under and for the purposes of subsection (4) of that section. That shows that the provisions relating to the old section 20 with regard to the devices of the type there indicated had not completely fallen away.

[12]In addition, and purportedly pursuant to the provisions of section 20 in its substituted form, a Statutory Instrument 1992 No 2043 entitled the Road Traffic Offenders (Prescribed Devices)(No 2) Order 1992 was made on 12th November 1992. It was laid before Parliament on 20th November 1992 and came into force on 1st January 1993. This was a statutory instrument promulgated under the name of the then Secretary of State for the Home Office. It provides as follows: "In exercise of the powers conferred upon me by section 20(9) of the Road Traffic Offenders Act 1988[1], I hereby make the following

[13]In addition, after the statutory instrument has been laid before Parliament, there was published a document entitled the Light Signals (Detection of Offences) Devices Approval dated 17th December 1992, again under the name of the Secretary of State. That reads as follows:

"In exercise of the powers conferred upon me by section 20(4) and (5) of the Road Traffic Offenders Act 1988 (Speeding Offences etc: admissibility of certain evidence) I, the Rt Hon Kenneth Clarke, one of Her Majesty's Principal Secretaries of State, having prescribed for the purposes of that section a device designed or adapted for recording by photographic or other image recording means the position of motor vehicles in relation to light signals do hereby approve as from 1st January 1993 for the purpose of detection of offences specified in section 20(2)(e) only the two types of devices known as the GATSOMETER BV TYPE 36 manufactured by GATSOMETER BV and . . . [and then it identifies another particular device]."

[14]It is by reference to section 20 as amended and the statutory instrument and approval that the prosecution evidence in this case was based.

[15]The District Judge found upon the facts, as he was entitled to do, that the Gatsometer was of a description as set out in this statutory instrument. Mr Shrimpton has not sought to dispute that. The essential thrust of Mr Shrimpton's case is this. He submits that, on the true interpretation of section 20, the Gatsometer had to be approved by Parliament in the form of a statutory instrument. That was not done here. The Gatsometer was only specified, as he would say, in the approval signed by Mr Clarke. That approval was not a statutory instrument and therefore the statutory provisions have not been complied with. In consequence, evidence purportedly adduced by reference to those provisions has been invalidly produced.

[16]In his written skeleton argument, Mr Shrimpton summarised the position by reference to his argument in this way:

"This is clear beyond a peradventure, it is submitted -- before it can [be] used any device must be of a type prescribed by the Secretary of State, specified (a generic order clearly will not do) in a statutory instrument and laid before Parliament. This has not been done in respect of the Gatso Type 36 and accordingly it has [not] been prescribed and may not be used at any traffic light controlled junction on a British road to gather evidence. The purported approval of the Type 36 on 17th December 1992 by the Secretary of State . . . was not and does not purport to be a statutory instrument."

[17]Mr Shrimpton has put his argument in a most engaging and entertaining way (if he may permit me to say to). But I have to say that I am in no doubt whatsoever that his argument is based on a misapprehension of the section, and I am entirely satisfied that the arguments of Mr Dee on behalf of the respondent are correct.

[18]Mr Shrimpton in fact was at pains to tell me that the individual Parliamentary draftsman with regard to this legislation was a highly distinguished Parliamentary draftsman. I am more than happy to accept that statement of Mr Shrimpton. If that is right, then on Mr Shrimpton's arguments this distinguished draftsman has been lamentably loose in the use of his language; and I see no reason to think he was anything of the kind. If one studies the actual wording of the section one can, I think, see clearly what Parliament had in mind. Section 20(1) refers to evidence given by the production of a record produced by a prescribed device. For a definition of "prescribed device", one finds that provided in the section itself in subsection (9): which defines "prescribed device" as meaning a device of a description specified in an order made by the Secretary of State. It is to be noted that "prescribed device" is not defined as to mean a device of a description and type specified in an order, it is simply defined as a device of a description specified in an order made by the Secretary of State. Further, it is clear that the power to make orders exercisable by statutory instrument as given by subsection (10) relate to orders which may be made under subsections (3) and (9): because subsection (10) says so in terms.

[19]As it seems to me, when one then goes to the statutory instrument that was made here, that is precisely what the Secretary of State has done: because he has there specified a description of a device in the terms of the statutory instrument. Mr Shrimpton complained that the word "specified" requires specificity and this description does not comply with that but is, he says, far too vague. But one only has to look at the statutory instrument to see that it comes within the ambit of subsection (9). Where Mr Shrimpton's general approach has been anticipated by the draftsman is in subsection (4): because that imposes a further restriction on what may be authorised for the purposes of obtaining and adducing evidence. Subsection (4) connotes a further restriction in the sense that a record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings unless, among other things, the device is of a type approved by the Secretary of State. As Mr Shrimpton concedes, a type approved by the Secretary of State does not in itself, by way of approval, require a statutory instrument. That indeed was the scheme of the previous version of section 20. It remains the scheme for the purposes of subsection (4).

[20]One can then look at the actual approval that was published by the Secretary of State on 17th December 1992, and that does indeed set out -- and specifically set out -- the type of device in question in a way which specifies both the make and the model; that is to say, it complies with the narrow definition of the word "type" which Mr Shrimpton himself argued for.

[21]It seems to me that by those means there has been precise and exact compliance with the terms of section 20 of the Act. Mr Shrimpton's arguments, with all respect to him, seemed to conflate and confuse the notion of approval of a type of a prescribed device under subsection (4) with the notion of "prescribed device" as defined in subsection (9). Indeed at some stages in his argument Mr Shrimpton referred to an "approved device" (which is in fact not a phrase which appears in the section at all) and so seems, in effect, to equate the concept of "prescribed device" with "approved type": but that is not the way this section works. As I see it, this section connotes a two stage process. Generically (and this has to be approved by Parliament in the form of a statutory instrument) a description has to be specified in an order. Once that is done as a first stage then the Secretary of State may then as a second stage approve the type in question. So one goes from the general, in the sense of the specified description, to the specific, in the sense of an approved type. That makes perfectly good sense. It is, in fact, no departure in any significant way from that which existed under the previous legislation, save only in this respect: Parliament has now taken upon itself at least to wish to sanction the actual description of the device in question, in respect of which the Secretary of State may thereafter issue an approval as to type.

[22]Mr Shrimpton sought to say that what is required here is that, first of all, the Secretary of State approves the type of the device in the sense of its make and model and then, having done that, that must be approved by way of statutory instrument by Parliament. That is not the way this section is worded, and indeed, as I have already indicated, if that had indeed been the intention it is surprising that subsection (9) had not read something like:

"'Prescribed device' means device of a description and type specified in an order made by the Secretary of State"

. The reality is that the draftsman has very carefully distinguished between what is a description specified in an order and what is a type approved by the Secretary of State. The section, as I see it, is perfectly clear and comprehensible and indeed infringes no constitutional or other principles at all.

[23]Mr Shrimpton urged upon me a narrow reading of the statute in the criminal context. But, in my view, the construction advanced by Mr Dee is entirely in accordance with the language used. Indeed, with all respect to Mr Shrimpton it is he who is departing from the language used to try and bring about a result which he claims should have been expected to be intended by Parliament. What Parliament has intended, and does intend, is of course to be taken from the words it uses in the statute. As I see it, the wording and purpose of the statute here is clear. Accordingly, in my view this appeal should be dismissed.

[24]The question posed by the Deputy District

Judge was this:

"Was I correct to find that the Gatsometer type 36 device was an approved device in accordance with section 20 of the Road Traffic Offenders Act 1988 as amended?"

As I have indicated, the phrase "approved device" does not appear in section 20; but, substituting for that phrasing the phrasing "Was I correct to find that the Gatsometer type 36 was a prescribed device of approved type in accordance with section 20 of the Road Traffic Offenders Act 1988 as amended?" then my answer to the question as posed is "Yes".

[25]I would only add this by way of a postscript. This case is concerned, and concerned solely, with offences relating to photographs deriving from a Gatsometer type 36 device taken of cars passing through red lights. It is not, for example, concerned with speed camera cases. Accordingly, if this kind of issue is to be raised with regard to speed cameras then it will have to be decided by reference to the statutory provisions and statutory instruments and approvals and the like applicable to such speed cameras. All I can say is that I have been shown a copy of a note of a decision of His Honour Judge Gibson sitting in the Crown Court in the case of Brotherston, a case on a speed camera of a particular (LTI.20.20) type. It will be apparent from my reasoning in this case that, speaking for myself, I would endorse the approach with regard to section 20 adopted by Judge Gibson, which seems to me to be correct. But the fact remains that if this point with regard to speed cameras generally is to be ventilated in the High Court on some other occasion, that will have to be decided on that occasion.

[26]MR SHRIMPTON: I respectfully invite your Lordship to certify the point for the House of Lords within the Administration of Justice Act 1969. I invite your Lordship to give permission to appeal to the House of Lords.

MR JUSTICE DAVIS: I decline to certify and I decline to grant permission.

[28]MR SHRIMPTON: Thank you, my Lord.

MR JUSTICE DAVIS: Is there anything else?

[30]MR SHRIMPTON: In relation to costs, I would ask for the Legal Aid assessment in the normal way.

[31]MR DEE: Normally there would be an application for costs. I know Mr Pict is legally aided. The costs in this case certainly exceed well over £1,000, but really --

MR JUSTICE DAVIS: Is there any point?

[33]MR DEE: Exactly. I would limit the application to £1,000.

[34]MR JUSTICE DAVIS: I can imagine there may be difficulties in enforcing against someone called Robbie the Pict.

[35]MR DEE: I make the application for the costs in that sum.

[36]MR SHRIMPTON: I would respectfully ask the court to order a nominal sum. This is not a man of means. I would suggest that no order for costs be made at all. He is not a man of means.

[37]MR JUSTICE DAVIS: No. Well, I think you are strictly entitled to an order for costs, Mr Dee. Whether your clients think it is wise to even seek to enforce it, I would leave it for their wisdom. I make an order for costs of £100.

Order

1. This Order may be cited as the Road Traffic Offenders (Prescribed Devices) (No 2) Order 1992 and shall come into force on 1st January 1993. 2. A device designed or adapted for recording by photographic or other image recording means the position of motor vehicles in relation to light signals is a prescribed device for the purposes of section 20 of the Road Traffic Offenders Act 1988."