Robbie The Pict V. The Procurator Fiscal, Dumfries
| Jurisdiction | Scotland |
| Judge | Lord Abernethy,Lord Emslie,Lord Carloway |
| Judgment Date | 15 May 2009 |
| Neutral Citation | [2009] HCJAC 49 |
| Date | 15 May 2009 |
| Docket Number | XJ100/08 |
| Court | High Court of Justiciary |
| Published date | 15 May 2009 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Emslie Lord Abernethy | [2009] HCJAC 49 Appeal No: XJ100/08 OPINION OF THE COURT in the stated case ROBBIE THE PICT Appellant; against THE PROCURATOR FISCAL, DUMFRIES Respondent: _______ |
15 May 2009
1. Background
[1] The appellant was charged on a summary complaint before the District Court of Dumfries and Galloway at Annan that:
"on 17 November 2006 on the A74(M) Glasgow - Carlisle road, southbound carriageway near to Whicketthorn Overbridge, Kirkpatrick Fleming, being a road subject to the aftermentioned regulations, you... did drive a motor vehicle, namely a motor car registered number M213 USR at a speed exceeding the 70 miles per hour maximum permitted speed namely at a speed of 85 miles per hour;
CONTRARY to the Motorways Traffic (Speed Limit) Regulations 1974, Regulation 3 and the Road Traffic Regulation Act 1984, Section 17(4)".
It is worth observing, in limine, that, although the appellant pled not guilty to the charge, as he was fully entitled to do, he has never maintained that, at the place and date libelled, he was not driving at 85 mph on what must have appeared to him to have been a motorway.
[2] The case first called on 4 April 2007 and intermediate and trial diets were set for 20 June and 18 July 2007. At the intermediate diet, the appellant represented himself and sought to raise a preliminary issue challenging the competency of the complaint and the proceedings. Leave to do so late was refused. The appellant then attempted to lodge an application, said to be in terms of section 7(1)(b) of the Human Rights Act 1998, to the effect that he had been denied a fair hearing. This was not permitted, as that section deals with the right of a party to bring separate proceedings against a public authority. The appellant unsuccessfully raised the matter at the commencement of the trial diet.
[3] On the first day of the trial, which was held before three Justices of the Peace, the Crown led the evidence of Robert McMillan, an enforcement officer employed by the Dumfries and Galloway Safety Camera Partnership, who had previously been a traffic police officer for twenty three years. His evidence was completed at an adjourned diet of trial on 20 or 21 August 2007. At that diet there was also testimony from the corroborating witness, namely James Boyd, who was similarly employed by the Safety Camera Partnership. The evidence of these officers was that they had been trained on the use of the LTI 20/20 Speedscope Speed Measuring Device and the Lastec Local Video System.
[4] Both witnesses testified that they had been on duty on 17 November 2006. They had carried out checks on the Speedscope at their headquarters before setting up both devices at Whicketthorn Overbridge on the A74(M) Glasgow to Carlisle road, where the devices were again checked. During the course of that morning the officers' attention was drawn to a red Mazda car, registration number M213 USR, which was travelling in the third lane of the motorway at what appeared to be a speed in excess of 70 mph. On using the Speedscope device, the reading for the car was 85 mph. The Lastec video device was then used to identify the driver and to record the registration number. On checking the Police National Computer, the registered keeper transpired to be the appellant and the standard Notice of Intended Prosecution was sent to, and completed by, the appellant.
[5] Mr McMillan said that the devices were approved by the Secretary of State for the purposes of section 20 of the Road Traffic Offenders Act 1988. The appellant objected to Mr McMillan's response on the basis that approval of the devices had not been established. This objection was repelled. The procurator fiscal depute then referred Mr McMillan to Production No. 1, which contained "The Light Beam Speed Measuring Device Approval 1996" and "The Light Beam Speed Measuring Device Approval 1998". Mr McMillan confirmed that these were the Approvals of the Speedscope and Lastec devices. The Speedscope recorded the speed of vehicles by emitting a series of light pulses. A laser beam was targeted on to the front of a car and the device measured the distance to the car as it travelled and thus calculated its speed by dividing distance travelled by the time which that travel took. Mr Boyd similarly confirmed in examination-in-chief that the devices were approved.
[6] Cross-examination covered the issue of whether the Approvals were statutory instruments. Mr McMillan said that they were not themselves statutory instruments, but they were authorised by statutory instrument. In re-examination, he was referred in that connection to Production 4, the Road Traffic Offenders (Prescribed Devices) Order 1993. The appellant objected to the use of this Order. For his part, Mr Boyd confirmed awareness of the relevant documentation.
[7] When asked about the speed limit on the road, Mr McMillan replied that it was 70 mph. His response was objected to on the basis that it was hearsay. He was asked how he knew what the limit was and he replied that he had read the relevant statutory instrument for this section of the road. Under cross-examination he referred to regulation 3 of the Motorways Traffic (Speed Limit) Regulations 1974 and to section 17(4) of the Road Traffic Regulation Act 1984; those being the statutory provisions libelled. In the course of his evidence, Mr Boyd confirmed awareness that the A74(M) was a motorway, having observed features such as signage and lanes and having seen the relevant "paperwork". The speed limit was 70 mph in accordance with signs on the motorway to that effect.
[8] The appellant made a "no case to answer" submission on the basis that: (first) the locus was not a motorway and that the 70 mph limit did not apply; and (secondly) that the devices had not been approved and the evidence derived from them was inadmissible. In developing his argument, the appellant produced a number of documents including The Glasgow-Carlisle Special Road (A74) M (Ecclefechan to Kirkpatrick Fleming) Special Roads Scheme 1992 (SI 1992 No 2168). At the conclusion of the submission, the procurator fiscal depute requested an adjournment to consider what appears to have been an intricate argument from the appellant. The diet was adjourned until 3 October 2007, when the depute completed her submissions.
[9] The Court repelled the "no case to answer" submission. The appellant did not lead any evidence. He was found guilty. He was fined £100 and his licence was endorsed with three penalty points. The appellant then applied for a stated case on, amongst other points, the matters raised in the "no case to answer" submission. The Justices have provided a detailed thirty seven page stated case setting out the procedural history, the nature of the various arguments raised before them, the evidence, the reasons for their decisions and their findings in fact. Critically, they found that: (first) the locus was a motorway; (secondly) the devices used were approved; and (thirdly) the appellant had been driving at 85 mph at the locus on the day libelled.
[10] The stated case called for a hearing on 1 October 2008, when counsel then instructed for the appellant moved to adjourn the diet on the basis that he was considering a new ground of appeal concerning the relevancy of the complaint. His motion was granted, but at a Procedural Hearing on 27 January 2009 he stated that he was no longer considering that matter and no new grounds of appeal would be proposed. The case called again for a hearing on 26 March 2009, when the appellant's new counsel advanced the two matters which had already been canvassed before the Justices, viz: (1) were the devices approved? and (2) was the road a motorway?
2. The "devices" issue
[11] Section 20 of the Road Traffic Offenders Act 1988 (c 53), as substituted by section 23 of the Road Traffic Act 1991, (c 40) provides:
"(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...
...
but subject to the following provisions of this section.
(2) This section applies to -
...
(b) an offence under subsection (4) of section 17 of [the Road traffic Regulation Act 1984] consisting in the contravention of a restriction on the speed of vehicles imposed under that section;
...
(3) The Secretary of State may by order amend subsection (2) above by making additions to or deletions from the list of offences for the time being set out there;...
(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.
(5) Any approval given by the Secretary of State for the purposes of this section may be given subject to conditions as to the purposes for which, and the manner and other circumstances in which, any device of the type concerned is to be used.
...
(9) In this section "prescribed device" means device of a description specified in an order made by the Secretary of State.
(10) The powers to make orders under subsections (3) and (9) above shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament".
[12] The Road Traffic Offenders (Prescribed Devices) Order 1993 (1993 SI No. 1698) provides:
"2. 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...
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