Clarke v Crown Prosecution Service [2013] EWHC 366 (Admin)

Case No CO/12864/2012

[2013] EWHC 366 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday 7 February 2013

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE GOLDRING

and

MR JUSTICE FULFORD

Between

LEE DAVID CLARKEAppellant

B E T W E E N:

- v -

Between

CROWN PROSECUTION SERVICERespondent

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Miss S Hayden (instructed by Kirwans, Wirral CH42 8PE)

appeared for Appellant

Mr S Heptonstall (instructed by the Crown Prosecution Service)

appeared for Respondent

J U D G M E N T

Thursday 7 February 2013

[1]This appeal is brought by way of case stated against the appellant's conviction by lay justices sitting at the Staines Magistrates' Court on 3 September 2012 for an offence of exceeding the 50mph speed limit on the A30 Egham by-pass on 8 March 2012. It is to be observed at the outset that when the proceedings were first before the court for hearing on 23 May 2012 the appellant indicated that the trial would turn on the accuracy of the officer's speed-measuring device.

[2]The justices found the following facts, as set out in the case stated:(1) CSO Bernath, who had over two years' experience, formed the opinion that Mr Clarke was exceeding the speed limit and he used an Ultralyte 20/20 speed-detection device to confirm his assessment.

(2) The speed shown on this device was 68mph.

(3) Mr Bernath ensured the accuracy of the device (which was in any event self-checking) in accordance with his training, on several occasions during the day. This included a distance check at the site (before and after the speed reading) over 427.9 metres, as well as checks at the beginning and end of the day at the police station. The latter involved a measured-distance calculation, although Mr Bernath had not himself established the length of the test site at the police station. At no time did the device give any indication that it was not working correctly, but rather it responded and sounded as expected. If the device is not working it gives an "error" reading.

(4) Mr Clarke's vehicle was in the offside lane and travelling noticeably quicker than other vehicles. (5). Mr Clarke did not check his speedometer at the relevant time and could not say at what speed he was travelling.

[3]At trial the appellant contended that the accuracy of the device had not been "verified as required". It was emphasised that CSO Bernath had not measured the distance at the police station in advance of undertaking the measured-distance test, and, moreover, he had not been present when it was originally calculated. Instead, he relied on information from another officer and, as he understood it, the distance had last been checked some five years previously. In the circumstances the appellant contended that there was no direct evidence of this measurement which was used to verify the accuracy of the device, and the court had not given permission for hearsay evidence to be introduced.

[4]The justices were invited to consider the Scottish authority of Cox v Procurator Fiscal, Aberdeen [2011] HCJAC 14, and the relevant Association of Chief Police Officers Guideline ("ACPO"). In Cox (a case that went on appeal to the High Court of Justiciary) the accuracy of a Unipar SL 700 laser speed detection device in part depended on the reliability of a range test. The device was mounted on a mono-pod and fired at a board 30 metres away at a police garage. The distance was written on a plate on a wall next to the test site. The court concluded that it was sufficient if one of the officers who testified in the case had on an earlier occasion measured and confirmed the relevant distance. The court accepted that "there should be direct evidence of such a measurement before it would be used to vouch the accuracy of an approved device". It is important to note, however, that the court was clearly not laying down an inflexible rule as to how devices are to be tested for accuracy. During the course of his judgment, having quoted from an earlier Scottish case of McLean v McLeod which indicated that corroborated evidence of the accuracy of the device would be necessary to establish the charge, Lord Hardie said:

"However, that does not mean that there has to be corroboration of every component part of the evidence. It is sufficient if the concurrence of testimony establishes the accuracy of the device, a fact which may be established in many different ways."

[5]The Bench was also referred by the appellant, as I have just indicated, to the Association of Chief Police Officers Guidance for the use of speed-measuring equipment, in which it is observed:

"Most laser speedmeters .... may be periodically tested for range or speed accuracy on a target of known speed or distance ...." (10.2.2). At 10.5.1 of the Guidance it is said: "

A range of known distance between a marked target and operating point can be constructed to carry out periodic confidence checks. At 10.5.2 the following is to be found: 7. "Note the distance and record the evidence of the range set-up or measurement in a statement form for later use in court. 8. Officers can check an existing range using any of [a number of approved methods] so that they can evidence the details of the range measurements themselves in a statement, if required to do so in court." (I note that these matters are, in essence, expressed as possible steps that can be taken, rather than being described as absolute requirements.)

[6]On behalf of the respondent it was contended before the lay justices that there was no evidence which raised doubts as to the accuracy of the machine, which was self-checking and in any event was secondary corroborating evidence. The Bench was taken to the decision in Connell v DPP

[2011] EWHC 158 (Admin)

, in which this court decided that an officer's opinion as to speed might be corroborated by a prescribed device which had not been approved by the Secretary of State. I shall turn to the line of authority on which Connell is based in a moment.

At 10.5.2 the following is to be found:

[7]The justices were of the opinion that CSO Bernath had carried out all of the required checks during the day in accordance with his training and instructions and, bearing in mind there was no indication of anything amiss with the instrument, he was entitled to rely on the speed-detection device to corroborate his opinion that the appellant was exceeding the speed limit. The magistrates were not persuaded to follow the approach reflected in Cox (viz. "there should be direct evidence of (the test site) measurement before it would be used to vouch the accuracy of an approved device"), which concerned a different machine. Given the lack of any evidence to undermine or contradict the officer's opinion, the justices found the case proved.

[8]The questions posed for this court are:

"(1) On the evidence and procedure in this case were we entitled to rely on the hearsay? (2) Were we entitled to rely on the accuracy of the speed-detection device in this case? (3) Were we correct not to follow the case of Cox v Procurator Fiscal?"

[9]The appellant accepts that he was guilty of an offence if it was established that he had been driving over 50mph. By section 89(2) of the Road Traffic Regulation Act 1984, a person prosecuted for driving a motor vehicle at a speed exceeding the limit imposed by or under any enactment shall not be convicted solely on the evidence of one witness to the effect that, in the opinion of the witness, the defendant was driving at a speed exceeding that limit. Corroboration is usually provided by some kind of mechanical or digital device such as speed-testing equipment.

[10]The sole point taken by the appellant on this appeal is his contention that it is necessary for the courts to reconsider the present approach to speed-measuring devices in this context, in the sense that it is argued it should no longer be presumed that the devices are accurate and instead direct evidence as to their proper functioning should be provided (see the appellant's skeleton argument at paragraph 25).

[11]The reason that the case is argued in this way is that under the relevant case law of England and Wales there is no requirement that the device should have been tested to ensure it was functioning properly. In Nicholas v Penny

[1950] 2 KB 466

(at pages 473 and 475) this court decided that the police officer's assessment of a defendant's speed could be corroborated by evidence as to the reading of a speedometer, even if the latter device had not been checked for the accuracy of its reading, unless there were particular reasons for deciding otherwise.

[12]Nicholas v Penny was followed in Swain v Gillett [1974] RTR 446, in that this court again held that a speedometer was capable of providing corroboration of the police officer's opinion as to speed, without proof from a test as to its accuracy (page 450B).

[13]The disinclination on the part of the Courts of England and Wales to impose strict requirements of testing that have not been created by statute or regulations was demonstrated in Kelly Communications v DPP

[2002] EWHC 2752 (Admin)

when the court declined to require strict proof (viz. a Trading Standards Certificate) that a weighbridge used to assess the weight of vehicles was functioning properly.

[14]In order to sustain the proposition that the line of authorities to which I have just referred should no longer be followed, the appellant argues:(i) that the operator's manual for the device in question (which recommends, inter alia, the fixed distance test is carried out each time the device is taken on duty in order to ensure the accuracy of the precise time measurements and the machine's ability to perform mathematical calculations: page 19) is an important document that should influence our decision. I interpolate to observe, first, that this is no more than a recommendation, and, second, it was followed on this occasion, save there was no separate check of the length of the test site at the police station.

(ii) The ACPO Guideline suggests that officers can "note the distance and record the evidence of the range set-up or measurement in a statement form for later use in court" and "check an existing range using any of [a number of approved methods] so that they can evidence the details or the range measurements themselves in a statement, if required to do so in court".

(iii) There have been cases in which devices have malfunctioned and this possibility should not be ignored: Kent v Stamps [1982] RTR 273.

(iv) Recent Scottish jurisprudence is to be preferred to Nicholas v Penny (Cox, cited above, and Hogg v McNeill

[2000] SLT 873

), given the relevant recent Scottish cases involved consideration of laser devices similar to the one in the instant case "which used the same technology and are reliant on the device accurately measuring distance in order to be able accurately to measure speed. Both [cases] are recent. In stark contrast, the leading English authorities concern speedometers, a mechanical device which measures distance in a fundamentally different way to a laser" (skeleton argument, paragraph 21).

(v) It is illogical for the law of England and Wales and that of Scotland to be allowed to continue to develop inconsistently.

(vi) The court should derive the "evidential principle" from The Queen on the Application of Seroka v Redhill Magistrates' Court

[2012] EWHC 3827 (Admin)

that if a distance measurement is undertaken to check a device is functioning properly and the officer has not personally measured the distance, any evidence based on the use of the machine is inadmissible.

[15]For the respondent we are invited to conclude that another officer's measurement of the distance constitutes part of the business records of the police and as such it was potentially admissible pursuant to section 117 of the Criminal Justice Act 2003. For reasons which will become clear hereafter it is not necessary, in my judgment, to make a determination on this submission. Otherwise the respondent relies on the domestic jurisprudence, set out above.

[16]Although I am grateful to Miss Hayden for her extremely clear and concise submissions, I am unable to accept the arguments that she advanced. The approach to the law in England and Wales on the one hand, and in Scotland on the other, has diverged in a significant number of areas and an aspiration that there should be convergence over an aspect of road traffic law is, by itself, an insufficient reason to overturn the application of the criminal law when it has operated successfully for over half a century. Furthermore, there is simply no evidence on this appeal that the approach of the Scottish courts is to be preferred to domestic jurisprudence. There is no material to suggest that the detail of the requirements for daily checks set out in the operator's manual and the ACPO Guideline represents a necessary step, given a risk of malfunctioning equipment, rather than an essentially cautious, "best practice" approach. Furthermore, the operator's manual and the ACPO Guideline make suggestions in this context rather than create absolute requirements.

[17]Even though the appellant raised concerns about the accuracy of the speed readings in a letter sent to the court below in advance of the trial, no evidence was adduced to suggest that devices of this kind are prone to produce unreliable results. Instead, as the justices observed and I have already rehearsed, the officer checked the accuracy of the device (which was in any event self-checking) on several occasions during the day in accordance with his training. This exercise included a distance check at the site before and after the speed reading at a distance of 427.9 metres, as well as tests at the beginning and the end of the day at the police station. This latter step involved a measured-distance check, and although CSO Bernath did not confirm the distance himself, he was able to rely on information from another officer as to the length of the station test site. The device gave every indication that it was functioning properly, and it did not produce an error reading.

[18]In reality, therefore, this case solely concerns the complaint that the officer had been informed of the length of a particular fixed distance at a police station which had been used for tests in this context for five years, and the conviction is said to be vitiated because he did not personally verify what he had been told as to the measurement.

[19]Although the burden of proof rests on the Crown, no evidence has been proffered in these proceedings tending to indicate that the distance had been incorrectly recorded or false information had been supplied to the officer. But, more fundamentally, there is no requirement in domestic law that in these circumstances the officer should have undertaken this or any other checks on the device. I see no merit in the submission that it is necessary for this court to create the obligation for which the appellant now contends. I do not accept the argument of Miss Hayden that the case of Seroka establishes or reflects the suggested principle that in these circumstances the officer must have checked the relevant test site distance on each occasion, not least because the court in Seroka did not address the issue. Insofar as the subject of corroborating evidence arose in that case, the court was simply informed, first, that there was uncertainty as to whether the fixed points used for the secondary check were two or five metres apart (see paragraphs 7 and 9 of the judgment of Singh J), and, second, that the Crown Prosecution Service did not rely on that evidence in support of the appeal. In the event, the court was not asked to rule on the issue before us, given the prosecution's concession, and instead the judgment focused principally on a narrow issue concerning the admissibility of records produced by a Gatsometer in the context of compliance with the conditions set out in the approval of the Secretary of State for its use. That appeal ultimately turned on the question of whether the justices had potentially taken evidence into account that the prosecution conceded was inadmissible.

[20]No doubt, as in the present case, police officers will bear in mind the need to take all sensible measures to ensure that their equipment in this general context is functioning properly.

[21]In conclusion, the law does not require that the relevant device must have been checked for accuracy in order to provide corroborating evidence, unless, on the particular facts of a given case, the court considers that the particular evidence is without sufficient or any weight in the absence of confirmation that the machine was correctly functioning. Checks of this kind were undoubtedly unnecessary in the present case. The justices’ approach to the issue was, in my judgment, essentially faultless. I would dismiss this appeal.

[22]I consider it unnecessary to answer the first question, because it is not relevant to our determination as to whether this appeal should be allowed or dismissed. I would answer questions 2 and 3 "Yes". LORD JUSTICE GOLDRING: I agree. MR HEPTONSTALL: My Lords, at the rear of the bundle I provided this morning there was a schedule of costs. My Lords, before I turn to the detail of that, can I deal with the timing of the arrival of the bundle? LORD JUSTICE GOLDRING: Yes. MR HEPTONSTALL: My Lords, the court has the skeleton and the chronology. My Lords, it is a simple administrative error in those who instruct me. Although the claim was issued on the 30th, ordinarily the documents supporting the claim within the skeleton bundle should have been provided by the appellant fourteen days later. They were chased in January -- on the 6th and then the 8th when the listing for today came, but they then arrived on the 24th and it was not recognised and no advocate was instructed until I was asked, having returned from your Lordships' court, I was asked on Tuesday evening to take up this case. LORD JUSTICE GOLDRING: Yes. It is not the first series of errors, I am afraid, in which the Crown Prosecution Service has been involved since we began at the beginning of this week. MR HEPTONSTALL: My Lord, I heard, of course, that which went on in an earlier case this morning. LORD JUSTICE GOLDRING: That was only one example. There was another. I do not think I can take it any further. MR HEPTONSTALL: I can only apologise to the court for any inconvenience which has been caused. LORD JUSTICE GOLDRING: So the costs you are asking for are set out. It is £810, as I understand it, is it? MR HEPTONSTALL: My Lord, yes. My Lord, the court will see that that reflects only the work that I am undertaking, recognising, of course, what has happened prior to Tuesday evening. LORD JUSTICE GOLDRING: Yes. MR HEPTONSTALL: My Lord will perhaps recall another alteration that was made on Tuesday to reduce item 2 to £165, given the hour at which this hearing will conclude. Therefore the appropriate figure would be £645. LORD JUSTICE GOLDRING: Yes. MR JUSTICE FULFORD: What is the order you are asking for then? Costs from whom or from where? MR HEPTONSTALL: From the appellant. MR JUSTICE FULFORD: From the appellant? MR HEPTONSTALL: My Lord, yes. MISS HAYDEN: I am unable to resist in the circumstances, my Lord. LORD JUSTICE GOLDRING: I think you are. We will make the order. We will award you your costs of £645, Mr Heptonstall. MR HEPTONSTALL: I am grateful, my Lord. MR JUSTICE FULFORD: Although late, it was a very useful skeleton, Mr Heptonstall. Thank you very much. MR HEPTONSTALL: I am grateful for the indication. LORD JUSTICE GOLDRING: Yes, and may I just add to what my Lord said? Miss Hayden, you presented the case extremely succinctly and very well indeed. MISS HAYDEN: I am grateful.