Payne v South Lakeland Magistrates' Court [2011] EWHC 1802 (Admin)

Case No CO/6214/2010[2011] EWHC 1802 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 30 June 2011
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE SUPPERSTONE
Between
GEOFFREY PAYNEAppellantv
Between
SOUTH LAKELAND MAGISTRATES' COURTRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr Neil Corre (instructed by Motoringlawyers.com) appeared for Appellant for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE PITCHFORD:

[1]This is a claim for judicial review of the decision of South Lakeland Magistrates' Court, sitting at Kendal on 27 April 2010, to adjourn the trial of a summons for speeding, contrary to section 89(1) of the Road Traffic Regulation Act 1984, for the purpose of enabling the prosecution to re-open its case in order to cure a deficiency in the evidence.[2]At the hearing before the justices, the claimant was represented by Mr Michael Lodge (solicitor). The claimant is now represented by Mr Neil Corre, instructed by Mr Lodge.[3]The Crown Prosecution Service and the Magistrates' Court have submitted an acknowledgement of service in which the justices' legal adviser has given a detailed account of events which occurred at the hearing, but neither defendant has appeared in the hearing before this court.[4]It is necessary to explore the course of events which led to the magistrates' decision. The offence was allegedly committed at 6.36pm on 15 September 2009, when the claimant, Mr Geoffrey Payne, drove a Vauxhall Vectra (DA06OAW) on the A590 Millside at a speed in excess of 60 miles per hour, recorded by a roadside camera at 84 miles per hour. There was no issue between the prosecutor and the claimant that the claimant was driving the car at the relevant time.[5]A Notice of Intended Prosecution was issued on 9 October 2009. Among the documents sent by way of advance disclosure was included a certificate issued under section 20 of the Road Traffic Offenders Act 1988.[6]Christopher Griffin, a safety camera technician, authorised by the Chief Constable for the purpose, certified on 17 December 2009 that(1) a Redspeed Speedcurb Enforcement Camera was an approved device,(2) the camera, whose serial number was given, was located in a specific place on the A590, and(3) at 18:36.19 hours on 15 September 2009 the device produced a photographic record showing that motor vehicle registration mark DA06OAW was travelling at 84 miles per hour in an area with a 60-mile per hour speed limit.[7]Also served were copies of three photographs depicting the motor vehicle entering, travelling through and leaving the measured area covered by the camera. What the photographs did not include was what is called a "data block" in which are recorded the automatic measurement of speed.[8]On 5 February 2010 the claimant's solicitors notified the clerk to the justices that the certificate of Mr Griffin was not agreed. On 30 March 2010 the claimant's solicitors served a skeleton argument taking issue with, among other things, the speed of the claimant's vehicle at the relevant time.[9]At trial, on 27 April 2010, the prosecution was represented by Mr Archer of counsel. We are informed that Mr Archer had 4 years experience. Mr Lodge represented the claimant. The claimant himself did not attend. In the presence of the magistrates' legal adviser, Mr Lawrenson, Mr Lodge asked Mr Archer on which documents he proposed to rely in the trial. Mr Archer replied that he relied on the Notice of Intended Prosecution and calibration certificates for the camera device. Mr Lodge informed Mr Archer that he would make no objection.[10]Mr Griffin was called by the prosecutor. He gave no oral evidence of the speed of the vehicle which he had certified under section 20 of the 1988 Act. Mr Archer did not put the certificate in evidence. The prosecution case was closed. There was, therefore, no evidence of the speed of the vehicle. Mr Lodge so submitted when inviting the magistrates to dismiss the summons. When asked for his response, Mr Archer conceded that he had indeed adduced no evidence of speed. Mr Lawrenson, when asked for assistance, was given the lunch interval to research the matter. The Bench rose at about 12.20pm.[11]There follows a difference of opinion as to the next sequence of events. For present purposes I shall rely on the witness statement submitted by Mr Lodge. In the absence of the magistrates, Mr Lodge informed Mr Lawrenson, the legal adviser, that he had indeed been served with Mr Griffin's section 20 certificate. However, the document was not agreed, and Mr Archer confirmed that was the reason why Mr Griffin had been required to attend.[12]Mr Archer told the legal adviser that the section 20 certificate could not on its own prove the speed of the claimant's vehicle, which is why he had not introduced the certificate in evidence. His view was that he was required to prove speed by calling the maker of the section 20 certificate to produce the photographic print-out. Therefore, the record on which he had proposed to rely was the photographs. However, the photographs were incapable of proving speed because they were simply photographs of the car passing through the recording area.[13]In his statement, Mr Lodge says that Mr Archer remarked that he had noticed this deficiency when he was preparing the file the night before the court hearing. He had taken the view at that time that the prosecution had no evidence of speed.[14]If this is an accurate account of the conversation, and we have no reason to believe that it is not, I would record surprise that the prosecution thought it right to proceed at all without drawing the matter to the attention of the magistrates, if not those instructing them. The obvious course for Mr Archer to have taken was to apply for an adjournment to make further enquiries as to the state of the evidence. The reason I form that view is that it is a virtual certainty that Mr Griffin could not have certified the speed at 84 miles per hour unless he had access to the original photographs with the relevant information recorded in them.[15]Mr Lawrenson's response was that counsel was simply wrong. He suggested that the certificate signed by Mr Griffin was indeed evidence of speed and he would so advise the magistrates.[16]At this stage it is necessary to examine the terms of section 20, which it is accepted apply to the certificate and to proof of the offence with which the claimant was summonsed. Section 20(1) provides as follows:
"(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..."
[17]Section 20 (4) provides:
"(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."
[18]Section 20(6) provides:
"(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 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."
[19]Sections 20(7) and (8) provide:
"(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."
[20]It follows from these provisions that, subject to sub-section (8), Mr Griffin's certificate was evidence admissible to prove(1) the approval of the device,(2) compliance with any conditions of approval,(3) a measurement made by the device, and(4) the circumstances in which the measurement was made.[21]Mr Griffin had, however, been required to attend trial. Section 20(8) thus applied to render inadmissible any material contained in a section 20(1) document, except "the matters shown on a record produced by a prescribed device". The only record produced by the prescribed device available to the prosecutor on the day of the hearing was the series of three photographs on which no measurement of speed or information from which speed could be calculated had been stated. Thus, Mr Archer and Mr Lodge were, in my view, correct. Mr Archer had closed his case. He had adduced no evidence of speed, and he had none to adduce if he had there and then sought to re-open his case. Mr Archer had failed to adduce the evidence from Mr Griffin himself, and made no application to recall him in order to give direct evidence of the matters certified. As Mr Corre rightly points out, if he had, he would have required access to the original material upon which the certification had been made.[22]The Bench returned at 1.35pm. Mr Lodge tells us that Mr Archer again conceded that there was no oral evidence of speed and he had no documentary evidence on which he could rely because "there are no photographs with data blocks on them".[23]In answer to a direct question from Mr Lawrenson, Mr Archer again conceded he could not prove his case. Mr Lawrenson expressed his disagreement with Mr Archer's declared position. He thought that the evidence did exist to prove speed, but he was unclear as to the responsibility of the court to interfere with the course of the prosecution case. He therefore sought more time for research before giving advice to the magistrates. He wanted in particular to read the report of the case of Taylor v Southampton Magistrates' Court [2008] EWHC 3006 (Admin). In that case, the point at issue was whether a Notice of Intended Prosecution had been served. The witness who could prove posting was not at court. Nevertheless, the prosecution closed its case and the defence called no evidence. This court examined the question whether the District Judge acted appropriately in suggesting to the prosecution an application to adjourn to fill the lacuna left in the evidence.[24]Forbes J, who gave the first judgment (with which Toulson LJ agreed), said this at paragraph 22:
"22 ... It is worth repeating the observations of Jack J in his judgment in Picton [2006] EWHC 1108 (Admin) at paragraph 9: "
In Essen this court considered the relevant law and it considered in particular the judgments of Lord Bingham in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110 (then as Lord Bingham CJ). The following points emerge: (a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown. (b) Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised. (c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight. (d) Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised. (e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh. (f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise if the party opposing the adjournment has been at fault, that will favour an adjournment. (g) The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why. (h) Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court's duty is to do justice between the parties in the circumstances as they have arisen.""[25]On the facts in the Southampton Magistrates case, the court held that the judge's decision to grant an adjournment to cure a technical deficiency in the evidence was "comfortably within the scope of his discretion".[26]Returning to the facts of the present case, the magistrates retired at 2.15pm and returned at 2.50pm. Mr Lodge pointed out that there had been no application by the prosecution to adjourn. Even if such an application was made, the prosecution could not say whether a relevant record of speed existed. Mr Archer was asked by the legal adviser whether on reflection he thought he had made a mistake. Mr Archer responded that he had come to a considered view on the evidence in his file. He did not expressly concede that he had made any mistake in his conduct of the proceedings. If he had made a mistake, that was, he said, on the basis of the information contained in the file.[27]After further discussion between the legal adviser and the advocates, the legal adviser observed that the purpose of an adjournment would be to enable Mr Griffin to be recalled to give oral evidence about the matters which he had certified under section 20, but could not be produced in documentary form by reason of the terms of section 20(8). At this point, and it seems at the prompting of the legal adviser, Mr Archer at last made an application to adjourn.[28]Mr Lodge says in his witness statement that at this stage the legal adviser sought from him an acknowledgement that he had himself contributed to the lacuna in the evidence by failing to agree the admission of the certificate. If that is the case, we absolve Mr Lodge of any such responsibility.[29]The magistrates retired again at 3.35pm, returning to court at 4.17pm. They had in the meantime prepared a written ruling on the application for an adjournment, which read as follows:
"We have been asked by the prosecution to consider an application to re-open the prosecution case and adjourn for the re-attendance of witnesses. In reaching our decision we have a difficult task of balancing the interest of dealing with cases expeditiously with the interest of achieving justice and maintaining confidence in the [Criminal Justice] system. We are satisfied that a genuine mistake in the interpretation of section 20 as amended by s23 of the Road Traffic Act 1991 was made by the Prosecutor. It was clearly the intention of the legislation to have the witness produce the records and documents from the device. Both parties were under the misapprehension that the requirement of a witness to attend made the record and certificate, as prescribed in sub section (1), inadmissible. Seemingly, the document was not produced following an agreement based on a joint misapprehension. Mr Lodge now concedes that the proper procedure would have been for the witness to produce a document [as prescribed] under sub section (1). A document purporting to be one of the type described is in existence. We believe that the interests of the court hearing that information and allowing the witness to be questioned on its contents outweigh any delay in this case. The defendant did not attend today and will suffer no injustice in the hearing being adjourned. We note that the information was served in accordance with the legislation and there has been, to our knowledge, no breach of the Criminal Procedure Rules. A case should no fall because of a simple and honest mistake. We have noted the case of Southampton Magistrates Court and also the citations made by both parties."
[30]Mr Lodge disputes in his witness statement the accuracy of the reasons given by the justices for their decision. He does not accept that either he or Mr Archer was under any misapprehension as to the admissibility of evidence. The section 20(1)(a) record was clearly admissible, but it was incapable of proving the speed of the vehicle. The section 20(1)(b) certificate was inadmissible since Mr Griffin had been required to attend. He could have attested orally as to the accuracy of the certificate, but he had not been asked to do so.[31]We accept that upon Mr Lodge's recollection of events, Mr Archer's mistake was not to prove speed, or attempt to prove speed, by the only means available to him. The court took the view that a mistake of law had been made by prosecuting counsel. The defence took the view that the mistake, if it was one, was one of forensic forgetfulness or misunderstanding. Either way, the obligation of the court was to act judicially according to the principles outlined in the cases, several of which were cited to them.[32]I consider it necessary only to make reference to one more authority, cited to us by Mr Corre, and that is Malcolm v the Director of Public Prosecutions [2007] EWHC 363 (Admin). Stanley Burnton J (as he then was), with whom Maurice Kay LJ agreed, approved the following statement of principle given by Mackay J in Tuck v Vehicle Inspectorate [2004] EWHC 728 (Admin) as follows:
"(1) The discretion to allow the case to be re-opened is not limited to matters arising ex improviso or mere technicalities, but is a more "general discretion" (see Kennedy LJ Jolly v DPP. (2) The exercise of this discretion should not be interfered with by a higher court unless its exercise was wrong in principle or perverse (R v Tate [1997] RTR 17 at 22C). (3) The general rule remains that the prosecution must finish its case once and for all (R v Pilcher 60 Cr App R 1 at 5) and the test to be applied is narrower than consideration of whether the additional evidence would be of value to the tribunal (loc cit). The discretion will only be exercised "on the rarest of occasions" (R v Francis 91 Cr App R 271 at 175). (4) The discretion must be exercised carefully having regard to the need to be fair to the defendant (Matthews v Morris [1981] JP 262), and giving consideration to the question of whether any prejudice to the defendant will be caused (Tate at 23C). (5) The courts have in the past differed as to whether the mere loss of a tactical advantage can constitute such prejudice. The defendant, having spotted and drawn attention to a gap in the case by way of submission, as to which he could have remained silent, and taken advantage of that gap at the close of the evidence, was thought in R v Munnery [1992] 94 Cr App R 164 at 172 to be an important consideration. However, later cases take a discernibly different approach. A different view was expressed in Khatibi v DPP [2004] EWHC 83 Admin at 25 to 26 and in Leeson [2000] RTR 385 and 391F-G. (6) Criminal procedure while adversarial is not a game (see Leeson (loc cit), Hughes v DPP [2003] EWHC Admin 2470, and the overall interests of justice include giving effect to the requirement that a prosecution should not fail through inefficiency, carelessness or oversight (Leeson). (7) Of particular significance is the consideration of whether there is any risk of prejudice to the defendant (see Jolly and Tate)."
[33]The facts of Malcolm are not material to the present case. The question here is not whether the defence set out to ambush the prosecution into error, but whether the discretion to permit the prosecution to re-open its case was exercised according to principle.[34]I note the following factors. (1) As the prosecutor should have done had he made an application for an adjournment at the outset, in order to make enquiries as to the whereabouts of the original record from which Mr Griffin's certificate was composed, it is a virtual inevitability that that application would have been granted.[35](2) The prosecution, however, closed its case under the misapprehension that all was lost and it could not prove its case.[36](3) On examination, it became apparent either that the prosecutor had made an error of law in reaching this conclusion, which caused him not to adduce evidence of speed from Mr Griffin, or that he had simply forgotten to do so.[37](4) The prosecution had closed its case under a misunderstanding which had provided a windfall to the claimant and had nothing at all to do with the merits.[38](5) No prejudice would be caused to the claimant by an adjournment because he had not attended trial and had no intention of giving evidence, and accordingly of contesting the matter on the merits. If by reason of the adjournment the claimant suffered financially, he could be compensated by an order for costs against the prosecutor. Mr Corre has not sought to argue that any particular prejudice was occasioned in the present case.[39](6) Mr Corre argues that public policy requires that the prosecution should be kept to the timetable towards speedy resolution of matters of this kind. If it became known by prosecutors that courts would readily allow adjournments in order to enable the prosecution to get its case in order, then the objective towards which the criminal justice system is directed would not be obtained.[40](7) It is not in the public interest that cases should be decided upon the vagaries of forensic mistakes made by lawyers, provided no prejudice is done by delay or for other specific reasons. Cases should be decided on their merits.[41]I can well understand why Mr Lodge felt somewhat sorely treated. He had, as he was entitled, advised his client as to the strategy which would be adopted. That which he hoped for came about. The prosecution was not at trial in a position to prove its case. On the other hand, as I have indicated, it was a virtual certainty that it ought to have been and that a mistake had been made in the provision of photographs which did not contain the data bank on which the certificate had been prepared.[42]I am quite satisfied that the court was solely concerned to get to the bottom of Mr Archer's concessions, if it could, to identify how it came about that the prosecutor had not adduced that evidence which had been available to him. None of that was Mr Lodge's responsibility. The court may have received the impression that Mr Lodge had somehow engineered an agreement with the prosecution which he knew would redound to his advantage, but I do not consider that Mr Lodge did any such thing. He took advantage of the unilateral mistake of the prosecutor, something he was obliged to do in the best interests of his client.[43]However, the ultimate question which this court needs to consider is whether or not the magistrates were plainly wrong to grant an adjournment in order to enable the prosecutor to re-open his case. In the circumstances I have identified, it is my judgment that the interests of justice demanded that the strategy should not succeed if prejudice to the claimant could be avoided. That is the conclusion to which the magistrates came. In my judgment, the magistrates were right in the circumstances to grant the application, reluctantly made as it was by the prosecutor, and for that reason I would dismiss the claim.

MR JUSTICE SUPPERSTONE: I agree.

LORD JUSTICE PITCHFORD: Mr Corre, I want to express my thanks to Mr Lodge for the assistance that he gave with the background facts to this judicial review hearing. It is not an easy thing for a solicitor to have to give witness statements in cases where he knows the Bench does not agree with him. Thank him for that.