DPP v John Robert Thornley
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OWEN,LADY JUSTICE HALLETT |
| Judgment Date | 03 February 2006 |
| Neutral Citation | [2006] EWHC 312 (Admin) |
| Docket Number | CO/4129/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 February 2006 |
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lady Justice Hallett
Mr Justice Owen
CO/4129/2005
MR D POTTER (instructed by Director of Public Prosecutions) appeared on behalf of the CLAIMANT
THE DEFENDANT APPEARED IN PERSON WITH MR C MORLEY (AS HIS MCKENZIE FRIEND)
Friday, 3rd February 2006
This is an appeal by way of case stated from a decision of the Cheshire Justices sitting at Warrington Court on 11th April 2005 dismissing an information laid by the appellant against the respondent alleging an offence of driving a motor vehicle in excess of the temporary 40 miles per hour speed limit.
The offence, the subject of the information, was alleged to have been committed on 2nd May 2004 on the southbound carriageway of the M6 at Warrington. The respondent denied the offence and at trial the appellant sought to rely on images produced by the Speed Violation Detection Deterrent system (SVDD), a prescribed device approved by the Secretary of State under the Road Traffic Offenders (Prescribed Devices) Order 1999.
A record of the images produced by the device had been sent to the respondent on 5th April 2005; that is to say, less than 7 days before the hearing. In the course of the trial the respondent 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 Road Traffic Offenders Act 1988 as substituted by section 23 of the Road Traffic Act 1991, arguing that the statutory requirement that the document containing images produced by a prescribed device be served no less than 7 days before the hearing or trial, is a condition of admissibility.
In response it was argued on behalf of the appellant that it was open to the prosecution to rely on the evidence of PC Troup, the police officer responsible for operating the system, who sought to produce the record from the device.
The justices rejected the appellant's argument and upheld the submission of no case to answer dismissing the information. The justices' reasoning in upholding the respondent's application is set out in paragraph 6 of the case stated in the following terms:
"In the absence of an application by the appellant for an adjournment in order to comply with the service requirements of subsection (8), we reluctantly formed the opinion that;
A. 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 the digital images produced by the Speed Violation Detection Deterrent System recording the respondent's speed.
B. As PC Troupe had not directly witnessed the speeding offence he had no personal knowledge of it and he could not therefore, give any oral evidence of the measurements of the respondent's speed.
C. Having ruled the evidence produced by the Speed Violation Detection Deterrent system inadmissible, PC Troupe could not then use the data as an aide memoir and effectively adopt it as his own personal testimony.
D. As there was no certificate of service or formal admission from the respondent that the images had been served 4th June 2004 before the proceedings were commenced, we did not find that the images had been served in accordance with Section 20 at this point as contended by the appellant. In any event the words 'served on a person charged with the offence' in Section 20(8) meant that the evidence had to be served after the proceedings specified in paragraph (2) had commenced."
The question posed for the opinion of this court is in the following 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 Speed 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."
The use of evidence from a prescribed device in relating to a speeding offence is governed by section 20 of the Road Traffic Offenders Act 1988 as substituted by section 23 of the Road Traffic Act 1991. The relevant parts of section 20 are in the following terms:
"(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;
…
"(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.
…
(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."
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.
In my judgment the provision has the same effect as section 10 of the Road Traffic Act 1972, as substituted by section 16 of the Road Traffic Offenders Act, which makes provision for the admission of the printout produced by a device for measuring breath alcohol levels. The effect of section 10 was considered by the court in Garner v Directorof Public Prosecutions[1990] RTR 208, in which, following Castle v Cross [1984] 1 WLR 1372, the court held that the admissibility of the statement automatically produced by the device (commonly called the printout) did not just arise through the Road Traffic Offenders Act 1988, section 16, and that the statement itself was an admissible document and represented real evidence if properly produced. The court held that the purpose and effect of section 10 was to enable the printout, together with an appropriate certificate, to be tendered at the hearing, and to be capable of establishing the facts stated in it without the necessity of anybody being called.
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Subject Index
...vSpencer [1999] VSC301 . . . . . . . . . . . . . . 288DPP vSpratt [1995] 1IR 585. . . . . . . . . . . . . . . . 232DPP vThornley [2006] EWHC312 (Admin). . . 276Driscoll vR (1977) 137CLR 517. . . . . . . . . . . . . 301DS vHM Advocate [2007]UK PC D1 . . . . . . . . . . 76Em vThe Queen [2007]......