Connell v Crown Prosecution Service [2011] EWHC 158 (Admin)

Case No CO/8039/2010[2011] EWHC 158 (Admin)5IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONTHE ADMINISTRATIVE COURTVenue Royal Courts of JusticeStrandLondon WC2A 2LLDate Thursday, 20 January 2011B e f o r e:MR JUSTICE WYN WILLIAMS
Between
IAN CONNELLClaimantv
Between
THE CROWN PROSECUTION SERVICEDefendant
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 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMr R Sadd (instructed by the CPS Appeals Unit) appeared for Defendant
J U D G M E N T
[1]This is an appeal by way of case stated from the decision of the justices sitting at the Bury-St-Edmunds' Magistrates' Court, on 19 February 2010, to convict the appellant of an offence of exceeding the speed limit. The precise allegation faced by the appellant was in the following terms, that on 20 September 2008 at Kentford and Higham in the County of Suffolk he drove a motor vehicle, namely a motorcycle index marked Y413 AAH, on a dual carriageway road, namely the A14 road, at a speed exceeding 70mph, contrary to Article 2(c) of the 70mph, 60mph and 50mph (Temporary Speed Limit) Order 1977, section 89(1) of the Road Traffic Act 1984 and Schedule 2 of the Road Traffic Offenders Act 1988.[2]On 20 September 2009, PC Stock was on duty in a marked Volvo police vehicle. The vehicle was parked on the slip road at the junction of the A14 and the A142, and the officer was observing traffic travelling eastwards on the A14 with a view to detecting speeding offences. The speed limit on that section of the A14 was 70mph.[3]During his observations PC Stock noted a motorcycle travelling eastwards on the A14. The cycle was, in his opinion, exceeding the speed limit. From his experience the officer estimated that the cycle was travelling faster than 90mph. He decided to follow the vehicle.[4]The officer positioned his police vehicle approximately 10 to 15 car lengths behind the cycle and followed it over some distance. During this period, so the magistrates found, the officer was travelling in excess of 90mph.[5]The officer's police car was fitted with a device known as a Police Pilot Speed Detection device. PC Stock had checked that device prior to commencing his patrol and found the device to be in good working order. He decided to use the device to check the cycle's speed. Having operated the device, and having travelled for some distance, the officer checked the device. He ascertained that the motorcycle had travelled 2.583 miles in 92.12 seconds, giving an average speed over the distance of 97.25mph.[6]The magistrates found that this calculation corresponded with the officer's own assessment. They accepted opinion evidence from the officer that his assessment of the cycle's speed was similar to that shown by the device. The officer was equipped to make the assessment and to give opinion evidence. He had seven years' experience as a traffic officer.[7]PC Stock caused the motorcycle to stop. Both the cycle and the officer's car came to a stop in a lay-by. The officer discovered that the appellant was the driver. He explained to him why he had been stopped and invited him either to, or into, the police car and showed him the calculation of speed on the device. In response the appellant said to PC Stock: "My mum died last week, my mind was elsewhere".[8]At that point the officer informed the appellant that he would be reported for the offence of speeding and the appellant made no reply.[9]The magistrates did not describe in any detail, or indeed at all, the workings of the device operated by the officer in the case stated. However there can be no possible dispute about the basic workings of the device. Indeed they are summarised in the well-known authoritative textbook on road traffic offences: Wilkinson's Road Traffic Offences. The author of Wilkinson describes the device in this way:
"This device measures distance and time by the operation of two switches and then computes the average speed of the vehicle being checked. The instrument may be used by the police vehicles in motion or while parked. It may be used at night or in the day time and in foul or fair weather. It is not necessary for the police to be travelling in the same direction as the target vehicle, nor to follow that vehicle at an even distance, nor to pursue it. The instrument is electronic and has, at its heart, a simple computer. It omits no signal and does not interfere with radio transmissions or reception. Only an electrical failure in the vehicle in which it is installed can effect its working or accuracy."
[10]PC Stock gave oral evidence before the magistrates. He gave the magistrates his own assessment of the cycle speed and he told them of his use of the device. The prosecution relied on the evidence of the officer's assessment of the speed and it also relied upon the measurement of speed obtained from the device. It did that so as to corroborate or confirm the evidence given by PC Stock based upon his own assessment.[11]As I understand it, the appellant had objected to PC Stock giving oral evidence about the use of the device and the result o its use. He had submitted to the magistrates both as a preliminary point, and during the course of a submission of no case to answer, that the evidence adduced by PC Stock as to his use of the device, and the reading produced by the device, was inadmissible. The magistrates rejected that submission.[12]It is common ground in this appeal that if the evidence given by PC Stock about his use of the device, and the measurement of speed produced by the device, were properly admitted in evidence the appellant can have no complaint about his conviction. The principal issue for this court is whether or not the evidence was properly admitted. The answer to that question, it is agreed, depends upon the proper interpretation of section 20 of the Road Traffic Offenders Act 1988, and, in particular, upon the interpretation to be given to section 20(4) of that Act. The relevant parts of section 20 of the 1988 Act are in the following terms:
"(20)(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; but subject to the following provisions of this section. (2) This section applies to— ... (d) an offence under section 89(1) of [the Road Traffic Regulations Act 1984] (speeding offences generally); ... (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. ... (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. (7) For the purposes of this section a document purporting to be a record of the kind mentioned in subsection (1) above, or to be a certificate or other document signed as mentioned in that subsection or in subsection (6) above, shall be deemed to be such a record, or to be so signed, unless the contrary is proved. (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."
[13]In this court the appellant takes a short but, he submits, compelling point. Section 20(4) of the 1988 Act upon its proper interpretation prohibits the admission in evidence of a measurement made by a prescribed device as evidence as a fact relevant to the proceedings, unless the device is of a type approved by the Secretary of State. That prohibition, submits the appellant, applies to all offences of speeding contrary to section 89(1) of the 1984 Act. It is common ground in this case that the device used by PC Stock was a prescribed device, but one which had not been approved by the Secretary of State at the material time. Accordingly, submits the appellant, the evidence adduced by PC Stock relating to the measurement of speed calculated by the device should not have been admitted in evidence. He goes on to submit that had the evidence been excluded, as it properly should have been, there would have been no corroboration of the evidence of PC Stock. There would have been no confirmation of the opinion evidence provided by the officer. Accordingly, submits the appellant, and as a consequence of section 89(2) of the Road Traffic Regulation Act 1984 (a subsection which I need not quote since it is so well-known) the appellant should have been acquitted.[14]In support of his interpretation of section 20(4) of the 1988 Act, the appellant draws my attention to section 20 of the 1988 Act in the form in which it was originally enacted. That is in the form in which it was prior to its amendment in 1991. Before 1991 the section read as follows:
"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."
[15]The interpretation of that section was the subject of a decision of the Divisional Court in the case of Roberts v Director of Public Prosecutions [1994] RTR 31. In that case the defendant, who was driving a motorcar on a restricted road, was seen approaching by a constable experienced in the use of a Kustom Falcon, a device designed or adapted for measuring by radar the speed of motor vehicles. The constable believed the car to be travelling at a rate in excess of the speed limit of 30mph and he operated a device which checked the car's speed at 58mph. The defendant was stopped and in due course informed he would be prosecuted for speeding.[16]By the date of the hearing of the alleged offence before the Justices the defendant's solicitor had done everything reasonably possible to alert the prosecution to the fact that the speed metre procedure was in issue in its entirety. As the hearing unfolded, the issue became whether or not it was established that the device used in that case was of a type approved by the Secretary of State. The Justices concluded that it was and the appeal to the Divisional Court considered the legality of that conclusion.[17]The essential submission made on behalf of the driver was that without evidence of approval of the radar gun evidence given by the police officer about its use was inadmissible and therefore should be ignored, and since there was no evidence to justify the Justices' conclusion that the radar gun was approved the evidence should have been ignored and the driver acquitted.[18]The Divisional Court accepted that argument. It accepted that there was no sufficient evidence before the court to justify the conclusion that the device used had been approved. However, during the course of his judgment

Judge J, as he then was, said this:

"The provisions of section 20 of the Road Traffic Offenders Act 1988 are unequivocal. The prosecution is required to prove that the Secretary of State has approved the use of the radar gun before the measurement of speed given by it can be admitted in evidence. It was conceded by the prosecution that without that material the conviction could not be sustained. Accordingly on that ground this appeal should be allowed. This conclusion is confined to the specific facts of this case."
[19]Despite the last sentence in the quotation from the judgment of Judge J, the appellant submits that the wording of section 20(4) is equally unequivocal and that in the absence of proof or acceptance that the device was approved the evidence it produced was not admissible. I do not accept that the words of the predecessor section, or the judgment upon it in the decision of Roberts, are any guide to section 20 in its current form. A simple comparison of the two sections shows that each has a very different purpose. Section 20 in its current form essentially enacts a code whereby evidence can be admitted in a certain way. In my judgment no support is to be derived from the interpretation of the predecessor section 20, as laid down in the case of Roberts, for the proper interpretation of the statutory code which now exists.[20]The respondent submits that section 20 simply has no application to this case at all. Mr Sadd, on behalf of the respondent, submits that section 20 of the 1988 Act is concerned only with a particular method of adducing evidence before the court. He readily accepts that if the procedure laid down in section 20 is used by the prosecutor, subsection (4) will apply and will be applied strictly by a court. If, however, as he submits was the position here, there was never a reliance upon the procedure enacted in section 20, section 20(4) simply has no application.[21]In support of his position Mr Sadd relies upon two decisions. The first in time is the decision in DPP v Thornley [2006] EWHC 312 (Admin), a decision of the Divisional Court consisting of Hallett LJ and Owen J. The facts in that case were these. The offence was alleged to have been committed on 2 May 2004 on the southbound carriageway of the M6. The offence alleged was travelling in excess of the temporary 40mph speed limit. The driver denied the offence and at trial the prosecution sought to rely on images produced by a system known as the Speed Violation Detection Deterrent system: a prescribed device approved by the Secretary of State. Unfortunately for the prosecution a record of the images produced by the device had been sent to the respondent, that is the driver, on 5 April 2005, which was less than seven days before the hearing.[22]At the hearing the driver 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 1988 Act, arguing that the statutory requirement that the document containing images produced by a prescribed device be served no less than seven days before the hearing or trial was a condition of admissibility.[23]Before the Justices the prosecution argued that it was open to them to rely on the evidence of the police officer, that was PC Troup, he being the officer responsible for operating the system. It was open to the prosecution to rely upon his oral evidence, and that oral evidence would include his account of the record from the device. The Justices rejected the submission of the prosecution and accordingly held that there was no case to answer. The prosecutor appealed.[24]The question posed for the opinion of the court is of some importance and was in these 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 Special 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."
[25]The substance of the judgment given by Owen J is to be found in paragraphs 8 and 9. In those paragraphs he said this:
"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. 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."
[26]Mr Sadd submits that this decision affords considerable support for his basic point, that section 20 is a self-contained code and that subsection (4) applies only if the section 20 procedure is invoked. I tend to agree.[27]The next case relied upon by Mr Sadd is another decision of the Divisional Court: Iaciofano v DPP [2010] EWHC 2357 (Admin). On this occasion the Divisional Court comprised Hooper LJ and Kenneth Parker J. The facts in this case were that the driver was convicted of a speeding offence for travelling at 70mph along the Great West Road. A device known as a Police Pilot Provida device was used in order to detect his speed. At his trial the driver contended that the device was not an approved device within section 20 of the 1988 Act, and that therefore the evidence derived from the device was not admissible.[28]The question posed for the opinion of the High Court was in the following terms:
"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 Divisional Court answered that question "no" and accordingly quashed the conviction.[29]The significance of this case, however, lies in the fact that having quashed the conviction the Divisional Court remitted the case to be considered afresh by a different bench of magistrates. That was clearly because the Divisional Court contemplated that it would be open to the prosecution to adduce evidence which would support the conviction of the driver, by(a) calling the police officer to give evidence of his opinion of the driver's likely speed, and(b) using the measurement produced by the device to corroborate that opinion evidence. That appears to be inescapable from the following passage at paragraph 7 of the judgment of Kenneth Parker J:
"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."
[30]In my judgment there would have been no purpose in the Divisional Court remitting the case to be tried before a differently constituted bench of magistrates in Iaciofano, unless the court was prepared to accept the proposition that the speeding offence could be proved by the oral evidence of the police officer, corroborated or confirmed by the reading which had been obtained from the device. Clearly, in my judgment, this decision affords considerable assistance to the stance which Mr Sadd adopts at this hearing.[31]Having reflected upon the rival submissions, and, in particular, in the light of the decision in Iaciofano, I accept that Mr Sadd's submissions are correct. Section 20(4) is not of general application to every offence of speeding alleged under section 89(1) of the Road Traffic Regulation Act 1984. It applies only when the prosecution seeks to prove such an offence by the procedures permitted by sections 20(1) and 20(6) of the 1988 Act.[32]As I have said, I am fortified in that conclusion by the previous decisions, to which I have referred. I am equally fortified in that conclusion by the views of the author of the textbook, to which I referred earlier in this judgment. In the current edition of Wilkinson at paragraphs 6.76 and 6.77, in particular, under heading "Evidence and corroboration", the learned authors clearly contemplate that which occurred in this case, namely that the officer provides an assessment of speed based upon his opinion, and is then supported by a reading from a prescribed but non-approved machine; such evidence can lawfully found a conviction.[33]The question which is posed for the opinion of this court:
"Were we entitled to admit the oral evidence of PC Stock as to the results of his check using the Police Pilot device as corroboration of his opinion that Mr Connell was exceeding the 70mph speed limit?"
In my judgment the answer to that question is "Yes". On that basis it is common ground that the conviction should be upheld and the appeal dismissed.[34]Before concluding this judgment, however, I should just mention that Mr Sadd relied on an alternative basis for upholding the conviction. He reminded me that ultimately the test for this court upon whether or not to quash a conviction is to consider whether the conviction is safe. He submits that this conviction is safe because even if the reading from the device had not been admitted before the magistrates, on the evidence before them there was only one conclusion that they could reach.[35]First he relies upon the fact that the police officer, PC Stock, gave unchallenged opinion evidence about the speed at which he concluded the appellant was driving. It was necessary, of course, that there be corroboration. Mr Sadd submits that corroboration existed by virtue of the fact that the magistrates found, as a fact, that the police officer himself was travelling at the material time in excess of 90mph. Mr Sadd submits that the only sensible inference to be drawn from that fact is that which one would expect, namely that the police officer, from time to time, was looking at his speedometer. How else would he know that he was travelling in excess of 90mph?[36]Additionally, submits Mr Sadd, corroboration was to be found from what the appellant said when challenged by the police officer about his speed. He did not deny, or seek to avoid, responsibility for such a speed, submits Mr Sadd. Rather he gave an explanation which was consistent only with an acceptance that he was travelling at such a speed.[37]It is not strictly necessary for me to resolve these secondary issues in the light of the interpretation which I have put upon section 20(4) of the 1988 Act. I content myself with observing that these were very powerful submissions and ones which would be very likely to commend themselves to a court had they been the central issue, but, to repeat, the central issue was statutory interpretation and on the basis of my conclusion on that, this appeal must be dismissed.[38]MR SADD: My Lord, it is plainly a matter which has cost taxpayers' money. If the court is sympathetic to an application for costs the CPS does have a scale of costs, which does not unfortunately include this proceedings. However if this were a committal for trial in the Crown Court on a plea, which would occupy the better part of a day, the average amount one would ask for is £1,500. I have calculated it another way by working through how much it would cost using the given rate of a lawyer per hour, and that comes to a far greater figure. However, I think it only fair, given the circumstances, that it is treated as no more than a committal for trial on a plea with some argument. I certainly exclude from that the application for permission which was successful, and, on reflection, I should not oppose it.

MR JUSTICE WYN WILLIAMS: What do you want to say about costs?

[40]THE CLAIMANT: Thank you, my Lord. As you know, I have contested this case from the beginning through judicial review and the case stated. If my Lord --[41]MR JUSTICE WYN WILLIAMS: Can you tell me what orders for costs were made in relation to the judicial review?[42]THE CLAIMANT: There were none, my Lord. I did not receive any costs.[43]MR JUSTICE WYN WILLIAMS: Even though you are a litigant in person you would have been entitled to costs at the rate appropriate to a litigant in person for succeeding on the judicial review. I think balancing the two out the fair order is no order for costs.[44]MR SADD: I am very grateful.[45]MR JUSTICE WYN WILLIAMS: That just leaves the issue of your disqualification, because I am reminded about that. The position is that you have served about two thirds of it.[46]THE CLAIMANT: I have served four days shy of four months, my Lord.[47]MR JUSTICE WYN WILLIAMS: By virtue of my legal conclusion, I have no option but to say now that the disqualification will commence again from today and then the balance will be served as from today. Thank you very much for your help and your politeness.[48]THE CLAIMANT: Thank you, my Lord.[49]MR JUSTICE WYN WILLIAMS: Mr Sadd, can you and the appellant together work out in days, if you would, how much of the qualification remains, because I am told by my associate he has to notify the DVLA of the exact period. Will you do that?[50]MR SADD: I am sure Mr Connell and I will be able to produce a figure.

Cited in 1 later judgment