R Seroka v Redhill Magistrates Court

JurisdictionEngland & Wales
JudgeMr Justice Singh,Lord Justice Elias
Judgment Date31 October 2012
Neutral Citation[2012] EWHC 3827 (Admin)
Docket NumberCO/6485/2011
Date31 October 2012
CourtQueen's Bench Division (Administrative Court)

[2012] EWHC 3827 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Lord Justice Elias

Mr Justice Singh

CO/6485/2011

Between
The Queen on the Application of Seroka
Claimant
and
Redhill Magistrates Court
Defendant

Mr E Seroka appeared in person

Mr W Hays appeared on behalf of the Crown Prosecution Service

Mr Justice Singh
1

Permission to bring this claim for judicial review was granted after a renewed application by Wilkie J on 13 March 2012. The decision under challenge on the face of it is the refusal by the magistrates' court to state a case for the opinion of this court. In accordance with normal practice, the defendant has not taken any active part in these proceedings although it has sought to assist the court by providing relevant correspondence. The Crown Prosecution Service has played an active part in these proceedings as an interested party and opposes the claim for judicial review for reasons which will become apparent.

2

Before I turn to the specific facts of this case, it is important to remind ourselves of the appropriate approach which this court should take in cases of this kind. That approach was helpfully set out by Simon Brown LJ as he then was, sitting in the Divisional Court with Turner J, in Sunworld Limited and Hammersmith and Fulham London Borough Council [2001] 1 WLR 2102.

3

At page 2106, Simon Brown LJ set out the relevant principles in the following way, where it is sought to claim judicial review against the refusal by either a magistrates' court or the Crown Court to state a case for the opinion of the Divisional Court:

"Although it is impossible to lay down principles which will apply in every case, and this court should retain flexibility to deal with unusual situations as they arise, I would suggest the following approach.

(1) Where a court, be it a magistrates' court or the Crown Court, refuses to state a case, then the party aggrieved should without delay apply for permission to bring judicial review either

(a) to mandamus it to state a case and/or

(b) to quash the order sought to appealed.

(2) If the court below has already

(a) given a reasoned judgment containing all the necessary findings of fact and/or

(b) explained its refusal to state a case in terms which clearly raised the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all.

(3) If the court below has stated a case but in respect of some questions only, as here, the better course may be to apply for the case stated to be amended unless again, as here, there already exists sufficient material to enable the Divisional Court to deal with all the properly arguable issues in the case.

(4) This court for its part will adopt whatever course involves the fewest additional steps and the least expense, delay and duplication of the proceedings."

4

For reasons that will become apparent in the course of this judgment, I have come to the firm conclusion that not least in the interests of avoiding unnecessary expense, delay and duplication of proceedings, the appropriate course for this court to take would be to deal with the substance of the real dispute which has emerged before us, rather than to grant the claim for judicial review in any formal sense and to send it back to the magistrates' court for a case to be stated.

5

The factual background of the case can be summarised as follows. The allegation before the magistrates' court against the present claimant was that he had been speeding. The information alleged that on 14 January 2010, the claimant had driven his car on a restricted road at a speed exceeding the speed limit applicable which was 30 miles per hour, contrary to sections 81 and 89 of the Road Traffic Regulation Act 1984. The trial eventually took place before the magistrates' court on 14 March 2011 and evidence was given on behalf of the prosecution by PC Venney, a camera technician.

6

It is clear from the notes taken of the proceedings by the legal adviser to the magistrates which is before this court, that in his evidence PC Venney did produce records of what a device known as a Gatso or Gatsometer had displayed at the time in question. In particular, there were photographs which he produced before the court, so we are told, and as recorded in the notes of the adviser which had, on their face, a marking that the speed recorded was 40 miles per hour.

7

PC Venney gave evidence before the magistrates that the Gatso concerned was a device of a type approved by the Secretary of State. It had been activated on a stretch of the A240 on 14 January 2010. In addition, he had carried out a secondary check as it was known by reference to two images recorded by the Gatso which he viewed on a computer screen. Using those images, he could see if the vehicle had passed a number of white lines on the road which were, he believed, 2 metres apart. The secondary checks suggested the speed of 40 miles per hour also. PC Venney produced photographs representing the images recorded by the device. He said that the quality of those photographs was lower than the quality of the images he observed on the computer screen.

8

Finally, he gave evidence that he did not himself visit the scene nor had he measured the distance between the white lines. There was also expert evidence called on behalf of the prosecution given by Stephen Langdon. He had examined the photographs exhibited by PC Venney. He accepted that the quality of the images were "not the greatest" but said that he had been able to establish from the photographs that the vehicle was travelling "between 36 to 44 miles per hour but most likely 38 miles per hour." He added that it was "inconceivable" that the vehicle was travelling at a speed less than 30 miles per hour.

9

However, he conceded that his calculations were based on an assumption about the distance between the white lines. He accepted that he had not visited the site to make any measurements himself and he added that he had assumed the distance between each mark to be 2 metres because he had been told this was the case. I interpose to remark that that is the "hearsay evidence" in the present case as it has become known. In the course of his cross-examination, Mr Langdon said that the distance between the lines varied depending on the police force concerned and could be either 2 metres or 5 feet.

10

I would make reference at this juncture to a passage in a judgment by Smith LJ sitting in the Divisional Court in Griffiths and DPP [2007] EWHC 619 [Admin] at paragraph 37, because what is helpfully set out there is the two different methods which a device of this type uses in order to measure the speed of a car.

"The device makes use of two completely independent types of technology. The primary speed check uses radar and is dependent on the "Doppler effect." The device emits a high frequency radio beam along the road. A vehicle approaching the device will reflect some of the signal back to the device. The frequency of the returned signal would be different from that of the transmitted signal and the difference between the two is the function of speed of the approaching vehicle. The device is able to calculate speed from the difference in frequency. Thus the primary speed check is wholly independent of the correct working of the clock inside the device.

The secondary check is dependent on the clock only if the secondary check tallies with the primary check would there be prosecution. It seems to us that it is not unfair to require the defence to take on trust the correct functioning of the camera at an interval of half second because if the camera are not correct, it would be an extraordinary coincidence as a result of the two checks independently carried out, should turn out to be the same."

11

In the skeleton argument filed on behalf of the Crown Prosecution Service in this court at paragraph 12, it is conceded that the evidence given by PC Venney and Mr Langdon about the secondary check was inadmissible for the purpose of proving the speed of the car. To that extent, it is accepted that it was inadmissible hearsay evidence.

12

Before the magistrates' court, the claimant himself gave evidence. He also called on his behalf evidence from an expert witness called Robert Finch. Mr Finch said that the photographs were of insufficient quality for him to be able to conduct a secondary check. The justices convicted the defendant. In their reasons they stated a follows:

"We have heard that the Gatso equipment was working correctly and have no evidence to the contrary. Mr Seroka has challenged the quality of the photographs as inadequate basis that a secondary could be performed and their admissibility. Both experts agreed that the quality of the photographs was poor and Mr Finch said he would not undertake any analysis based on them. But it is the case that the secondary check was carried out by Mr Venney using images on a computer which were of a higher quality than the photographs. The purpose of the photos supplied to Mr Seroka and shown in court was never to form the basis as a secondary check.

We accept Mr Langdon's evidence that the photos were good enough to give a minimum speed of 38 miles per hour based on his expertise and experience in this field. While we do not doubt that Mr Seroka believed that he was not speeding, given the evidence of the Gatso camera, the secondary check...

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1 cases
  • Lee David Clarke v Crown Prosecution Service
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 7 February 2013
    ...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 ......

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