Geoffrey Payne v South Lakeland Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PITCHFORD,MR JUSTICE SUPPERSTONE |
| Judgment Date | 30 June 2011 |
| Neutral Citation | [2011] EWHC 1802 (Admin) |
| Date | 30 June 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6214/2010 |
[2011] EWHC 1802 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Pitchford
Mr Justice Supperstone
CO/6214/2010
Mr Neil Corre (instructed by Motoringlawyers.com) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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…"
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."
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."
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."
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.
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...
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...featuring throughout the Leveson Review.16. See e.g. Pitchford LJ in R (on the application of Payne) vSouth Lakeland Magistrates’ Court [2011] EWHC 1802 at [40].17. As Lord Justice Moses put it, ‘[t]he accused must believe his brief will tell the judge to go to the devil if that is what his......