Iaciofano v Director of Public Prosecutions [2010] EWHC 2357 (Admin)

Case No co/4997/2010[2010] EWHC 2357 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice
Strand
London WC2A 2LL
THURSDAY, 15th JULY 2010
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE KENNETH PARKER
Between
IACIOFANOClaimantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Claimant Appeared In Person Assisted By Mr Andrew Foster Mckenzie Friend for in personMr C Hehir Appeared for Defendant
J U D G M E N TDate 2010-07-15
[1]MR JUSTICE KENNETH PARKER: This is an appeal by way of case stated against the decision of the Kingston upon Thames Magistrates' Court dated 22 January 2010 convicting Vincenzo Iaciofano of speeding contrary to sections 84 and 89(1) of the Road Traffic Regulation Act 1984 and schedule 2 to the Road Traffic Offenders Act 1988. It had been alleged in the summons that the appellant drove a motor cycle on the Great West Road at a speed exceeding 40 miles per hour, namely 70 miles per hour. The speed had been recorded by a Police Pilot Provida device.[2]In short, at the trial the appellant contended that the Police Pilot Provida device was not an approved device within section 20 of the Road Traffic Offenders Act 1988. The evidence derived from the device was not admissible. Section 20 provided a particular code for the admission of evidence deriving from approved devices.[3]The justices found as a fact that the Police Pilot Provida was approved under section 6 (see the case stated at paragraph 6). The basis upon which they reached that finding of fact is also set out at paragraph 6 of the statement of case:
"we were able to take judicial note of the officer's evidence, that is PC Norgate, that the equipment was installed in a great many police vehicles in the Metropolitan Police area, and was in fact installed in the vehicle he had driven to court that day."
[4]The question is then stated at paragraph 7 of the statement of case as follows:
"The question for the opinion of the High Court is were the justices entitled to take judicial notice of the use of the Police Pilot Provida device in a large number of police cars to find that the device was approved by the Secretary of State and that evidence of that device was admissible."
The answer to that question is no, as is accepted by Mr Christopher Hehir, who appears for the respondent, for two reasons: first, the respondent now admits that the Police Pilot Provida device has not in fact been approved by the Secretary of State for the purposes of section 20. However wide may be the doctrine of judicial notice, it does not permit a court to find a matter proved that is shown by reliable, objective and admitted evidence to be palpably false.[5]In any event, and this is also now accepted by the respondent, the justices were not entitled to take judicial notice that the device had been approved solely on the evidence of PC Norgate that it was used in a large number of police vehicles: see Roberts v the DPP [1994] Road Traffic Reports page 31. PC Norgate admitted that he did not know whether or not the device had been approved.[6]That, therefore, strictly speaking is the end of the matter. However, under section 28(8)(iii) of the Senior Courts Act 1981 this court has very wide powers in relation to appeals brought by way of case stated and this court is able to reverse, affirm, amend or indeed remit the matter to the Magistrates' Court.[7]In his outline submissions, which were reinforced by his oral submissions before us, Mr Hehir invited us in effect to affirm the conviction on a basis that does not appear to me to have been the basis adopted by the magistrates. In short, Mr Hehir submits that there was an alternative route by which the magistrates could have convicted the appellant. In that connection Mr Hehir has drawn the court's attention to the well established law that outside the code established by section 20 it has always been open to the prosecution to prove evidence of speeding by, for example, the opinion of a police officer or indeed any other member of the public, that is necessarily corroborated, as required by the legislation, by reference to other devices. That was firmly established as a proposition after some confusion in Nicholas v Penny 1952 All England Reports at page 89. The current position is summarised in Wilkinson on Road Traffic at volume 1 paragraph 67 where the learned author says:
"Corroboration is usually provided nowadays by the speedometer of a police vehicle, radar equipment or Vascar or by the speed testing device being used."
[8]Mr Hehir also referred to DPP v Thornley [2006] EWHC 312, where the court applied the general rules to a situation where before the magistrates section 20 had been relied upon and the court in DPP v Thornley said that section 20 was a permissive code and was not the only means by which a prosecution for speeding could be sustained.[9]Attractive though those submissions were, I have great difficulty in reconciling what is proposed with what actually happened in the Magistrates' Court as is recorded by the statement of case. It is plain to me that at paragraph 2 the magistrates found as a fact that the Police Pilot Provida device was approved within section 20 of the Road Traffic Offenders Act 1988. It was therefore plain, and it must have been plain to the magistrates at the time, that on the finding of fact that was the end of the matter. They do go on to say in that paragraph:
"After further evidence we have found this evidence to be conclusive and corroborative evidence of the speed of the motor bike ridden by the appellant on the day in question."
However, in my view the words "and corroborative evidence" were in the circumstances redundant because the finding of fact properly was conclusive of the conviction, as was stated in that paragraph. The court now knows, of course, that that was an incorrect finding of fact.[10]The only other factual finding specifically referred to is in paragraph 6, to which I have already referred, and that again simply recites that the justices had found the device to be approved. In these circumstances, I take the view that it would not be appropriate to seek to affirm the conviction on an entirely different basis from that, upon which it was originally based, and in my judgment there was no explicit alternative basis which the magistrates applied, or if there was it is not at all discernable from the case stated for the reasons that I have given.[11]I would therefore be minded to remit this case to a differently constituted bench for a retrial. It has been submitted on behalf of the appellant that this would be unfair by reference to matters such as time and giving the prosecution in effect another bite at the cherry.[12]The offence in this case was committed in October 2009. That is a period of about 9 months ago, and in my judgment that passage of time does not lead to such unfairness or prejudice to the appellant that a retrial could not fairly take place. As to having another bite at the cherry, it is important in these cases that justice is done both for prosecution and defendant. Although from the defendant's perspective this may seem unfair, I have to bear in mind the importance of the prosecution. This is not a trivial matter by any means, it is an allegation of speeding at 70 miles per hour in a 40 miles per hour limit, and therefore taking due account of the submissions made by the appellant, I see no good reason why this matter should not be remitted to the magistrates on the basis that I have proposed.

LORD JUSTICE HOOPER: I agree and I would make the order that my Lord suggests.

[14]MR HEHIR: My Lord, may I correct a very small matter of detail, which is that my Lord referred to the conviction being on 21 October last year; that was the date of the offence. The conviction was in January.

MR JUSTICE KENNETH PARKER: I will correct that in the judgment, thank you very much.

LORD JUSTICE HOOPER: It will be a matter for the magistrates what evidence they hear, it is not a matter for us. Thank you very much.

Cited in 1 later judgment