Brotherston & Ors v The Director of Public Prosecutions [2012] EWHC 136 (Admin)

Case No CO/10403/2011Case No CO/535/2011[2012] EWHC 136 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
APPEALS BY WAY OF CASE STATED
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/02/2012
Before
LORD JUSTICE TOULSONMR JUSTICE CRANSTON
Between
AITKEN BROTHERSTONClaimantsDANIEL EDWARD OATES-LEEClaimantALAN WEEDONClaimantSTEPHEN KOMLOSIClaimantTHE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Michael Shrimpton (instructed by Henry’s Solicitors) for Mr BrotherstonMr John King (instructed by Henry’s Solicitors) for Mr Oates-LeeMr Kieran Henry, solicitor advocate (instructed by Henry’s Solicitors) for Mr WeedonMrs Milena Bennett, solicitor advocate (instructed by Henry’s Solicitors) for Mr KomlosiMr Simon Ray (instructed by the Crown Prosecution Service) for DefendantHearing Hearing dates: 26 January 2012
Judgment
[1]The four appellants were all convicted of speeding offences contrary to sections 84 and 89(1) of the Road Traffic Regulation Act 1984 on evidence obtained from speed cameras approved by the Home Secretary for use in evidence. Mr Komlosi was caught by a fixed speed camera. The other appellants were caught by mobile speed cameras of two different types. They appeal by way of case stated on the ground that the supposed authorisations of the use of these devices for evidential purposes was unlawful.

The legislation and ministerial orders and approvals

[2]Section 89 of the Road Traffic Regulation Act 1984 provides:
“(1) A person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence. (2) A person prosecuted for such an offence shall not be liable to be convicted solely on the evidence of one witness to the effect that, in the opinion of the witness, the person prosecuted was driving the vehicle at a speed exceeding a specified limit.”
[3]Section 20 of the Road Traffic Offenders Act 1988 (as substituted by section 23 of the Road Traffic Act 1991) provides: “(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 a 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.” (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 a 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;[4]Section 20(2) sets out the offences to which this section applies, which include speeding offences. Section 20(3) permits the Secretary of State to amend the list of offences by order.[5]Section 20(4) provides:
“A record produced or a 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.” (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]Section 20(9) provides:
“In this section “prescribed device” means a device of a description specified in an order made by the Secretary of State.”
[7]Section 20(10) provides that the powers to make an order under section 20(3) or 20(9) shall be exercisable by statutory instrument, subject to a negative resolution by either House of Parliament.[8]In its original form, section 20 had 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.”
[9]The section in its present form is expressed in permissive terms (“Evidence…may be given…subject to…”) rather than prohibitive terms (“Evidence…shall not be admissible unless…”). More importantly for present purposes, there is a change in the gateway to the admission of evidence under the section. Under the original wording of the section, the device had to be a) within the description set out in the section (“a device designed or adapted for measuring by radar the speed of motor vehicles”) and b) “of a type approved by the Secretary of State”. The new wording requires the device to be a) within the “description specified in an order made by the Secretary of State” by statutory instrument and b) “of a type approved by the Secretary of State” (and any conditions subject to which the approval was given must be satisfied).[10]In purported pursuance of the statutory scheme, two relevant orders have been made by statutory instrument (the Road Traffic Offenders (Prescribed Devices) Order 1992 SI 1992 No 1209, and the Road Traffic Offenders (Prescribed Devices) Order 1993 SI 1993 No 1698), and various relevant approvals have been given.[11]SI 1992/1209 stated:
“A device designed or adapted for measuring by radar the speed of motor vehicles is a prescribed device for the purposes of section 20 of the Road Traffic Offenders Act 1988.”
This order came into force simultaneously with the new version of section 20 on 1 July 1992.[12]SI 1993/1698 stated:
“The following devices are prescribed devices for the purposes of section 20 of the Road Traffic Offenders Act 1988- … (b) a device designed or adapted for recording a measurement of the speed of motor vehicles activated by means of a light beam or beams.” … (b) a device designed or adapted for recording a measurement of the speed of motor vehicles activated by means of a light beam or beams.”
[13]On 20 March 1996 the Secretary of State approved a “type of device known as the LTI 20.20 TS/M “Speedscope” Speed Measuring Device” as a type of device prescribed by SI 1993/1698, i.e. a device designed or adapted for recording a measurement of the speed of motor vehicles activated by means of a light beam or beams.[14]On 7 July 1999 the Secretary of State issued a similar approval in respect of “the type of such device known as the LTI 20.20 Ultralyte 100”.[15]On 8 November 2000 the Secretary of State issued a conditional approval of a “type of device known as the Gatsometer BV Type 24” as a type of device prescribed by SI 1992/1209, i.e. a device designed or adapted for measuring by radar the speed of motor vehicles. This approval (which was in force at the time relevant to Mr Komlosi’s case) replaced an approval which had come into force on 1 July 1992, ie on the same day as the new version of section 20 and SI 1992/1209 came into force. The only difference was that the November 2000 approval contained a condition limiting use of the device to the detection of speeding offences of 30 miles per hour or above.

Facts

[16]The LTI 20.20 TS/M Speedscope and the LTI 20.20 Ultralyte 100 are mobile speed cameras. The operator points the device at the rear of the vehicle which he thinks is speeding and pulls the trigger. This activates a laser beam enabling measurement of the vehicle’s speed. The Gatsometer is a fixed speed camera which uses radar.[17]Mr Weedon was convicted of a riding a motorcycle at 58 mph on 6 November 2006 on a road in Havant where the speed limit was 40 mph. His conviction was based on a recording of his speed by an operator using a LTI 20.20 TS/M Speedscope. His conviction was upheld at Portsmouth Crown Court (Mr Alistair Malcolm QC sitting with Magistrates).[18]Mr Brotherston was convicted of driving a car in Manchester on 6 November 2006 at 52 mph on a road where the speed limit was 40 mph. His conviction was also based on a recording obtained from a LTI 20.20 TS/M Speedscope. His conviction was upheld at Manchester Crown Court (HH Judge Gibson sitting with Magistrates).[19]Mr Oates-Lee was convicted of driving a car on 27 June 2008 at 67 mph on the A34 at Tittensor where the speed limit was 40 mph. His conviction was based on a speed recording obtained from a LTI 20.20 Ultralyte 100. His conviction was upheld at Stafford Crown Court (Mr Recorder Roger Evans sitting with Magistrates).[20]Mr Komlosi was convicted of driving a car on 19 November 2008 at 53 mph on the A40 Westway where the speed limit was 40 mph. His conviction was based on a recording of his speed by a Gatsometer 24 speed camera. He appeals directly against his conviction at Brentford Magistrates Court by District Judge Day.[21]Although the appeals are by case stated, in the cases which went to the Crown Court the judgments of the court have been included in our papers and counsel referred to them in argument without objection.

Grounds of Appeal

[22]The various forms of case stated raise a number of questions, but the principal issue is whether the relevant device was a device “of a description specified” in a statutory instrument and “of a type approved by the Secretary of State” within the meaning of section 20 of the 1988 Act (as amended). Mr Shrimpton submitted on behalf of Mr Brotherston, and his submissions were adopted by the other appellants, that the two expressions (“of a description specified” and “of a type approved”) were used by Parliament interchangeably and that the statutory instrument had to specify the particular make and model (which in Mr Brotherstons’s case was a LTI 20.20 TS/M Speedscope). The generic description used in SI 1993/1698 (and similarly in SI 1992/1209) was too vague and broad to comply with the requirements of a “prescribed device”. The approval of the type of device by the Secretary of State was a necessary precursor to him placing the statutory instrument before Parliament. It was not a step which could be taken subsequently.[23]Mr Shrimpton further submitted that at lowest his construction of the section was a reasonable construction and ought to be preferred on the constitutional principles, first, that the minister should not be taken to have any greater delegated power than was plainly given to him by the statute and, secondly, that criminal legislation is to be strictly construed. In support of the argument that his construction of the section was reasonable, Mr Shrimpton pointed to the fact that in Mr Oates-Lee’s case Mr Recorder Evans described the argument as very cogent but rejected it in deference to the judgment delivered by Judge Gibson in Mr Brotherton’s case and two other judgments to which I am about to refer.[24]The two cases a are decisions of the Scottish High Court (Lord Carloway, Lord Emslie and Lord Abernethy) in Robbie the Pict v The Procurator Fiscal, Dumfries [2009] 8 CJAC 49, [2009] SCL 944 and a decision of Davis J in Robbie the Pict, R (on the application of) v Crown Prosecution Service [2009] EWHC 1176 (Admin). In Robbie the Pict v The Procurator Fiscal, Dumfries the appellant was caught speeding on a motorway by use of a LTI 20.20 Speedscope positioned on a bridge over the motorway. Referring to the statutory scheme, the court said:
“There is thus a distinction between the expressions, “prescribed device” in (4), that referring to what we might refer to as “Stage 1” of the process, namely the generic prescription by way of SI and “type approved” referring to “Stage 2”, namely the approval of the device by the Secretary of State. This reading of the section is supported by an analysis of the phrases “prescribed device” in (4) and “device of the type” in (5) referring to approval subject to conditions. It is plain, in our judgment, that “prescribed device” refers to Stage 1 and “device of a type” refers to Stage 2.”
[25]In reaching that conclusion the court expressly agreed with the reasoning of Judge Gibson in Mr Brotherston’s case. The court held that SI 1993/1698 and the Secretary of State’s approval of the Speedscope met the requirements of the statute.[26]In Robbie the Pict , R (on the application of) v Crown Prosecution Service the appellant was convicted of driving through a red light. He was caught by a traffic light camera, a Gatsometer type 36(21). The relevant statutory instrument and approval were different in detail but similar in pattern to the statutory instruments and approvals with which we are directly concerned in this case. The former contained a generic description and the latter identified the brand of device. Davis J’s reasoning was the same as that of the Scottish High Court. He said at paragraph 21:
“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.”
[27]While we are not strictly bound by the decision of the Scottish High Court, I would be slow to depart from it, but in any event I am fully satisfied that the reasoning of that court – which coincided with the reasoning of Davis J, Judge Gibson and Mr Recorder Malcolm – is correct.[28]In its original form, section 20 contained a generic description of a device which might be used to provide admissible evidence of a motorist’s speed, but it was limited to devices of that description. If technology led, as it has, to the development of speed monitoring devices of a different description (laser rather than radar), there would have to be a change in the primary legislation in order to permit use of the up to date technology for evidential purposes. The present form of the section provides a way of enabling technological advances to be accommodated without the need for amending primary legislation. It does so by authorising the Secretary of State to place a statutory instrument before Parliament containing a description of any device which is to be prescribed for the purposes of the section. I see nothing to suggest that Parliament intended that the description of the device in the statutory instrument need be more specific than the generic description in the original form of the section.[29]On the contrary, the plain effect of section 20 (4) is that the requirement for the type of the device to be approved is additional to the requirement that the description of the device is specified in the relevant statutory instrument. This follows from the words “A record produced or measurement made by a prescribed device shall not be admissible…unless the device is of a type approved by the Secretary of State.” It necessarily follows that the “description” of the device need not identify the particular brand of product. Mr Shrimpton’s argument that the expressions “of a description specified” and “of a type approved” have been used interchangeably is not in my judgment tenable, and I do not see this case as one involving important constitutional issues.[30]Mr Shrimpton advanced a second argument in the cases which involved a mobile speed camera (the three appellants other than Mr Komlosi). He submitted that the LTI 20.20 devices did not fall within SI 1993/1698 (“a device designed or adapted for recording a measurement of the speed of motor vehicles activated by means of a light beam or beams”) because they were activated by the operator pulling the trigger. He relied in particular on a finding of fact in the case stated in relation to Mr Brotherston that the device “is activated by a trigger pressed by the operator.” His argument had been rejected by the court in its judgment in that case in a passage adopted by the Scottish High Court in Robbie the Pict v The Procurator Fiscal, Dumfries:
“Whilst it may be said that the process of capture of the vehicle speed is initiated by the operator of the device pulling the trigger, it is obvious that the reading itself is initiated and completely dependant upon the light beams emitted from and received by the device and we have no hesitation in finding that it is a device which is “a device designed or adapted for recording a measurement of the speed of motor vehicles by means of a light beam or beams”.”
[31]I agree. The fact that device is activated, i.e. its operation is initiated, by the pulling of the trigger in no way contradicts the court’s conclusion that the reading which the machine then provides is activated by a light beam or beams within the meaning of the statutory instrument.[32]I would hold that the relevant statutory instruments and approvals complied with the statutory requirements and I would dismiss the appeals.[33]I agree.