10. The photographs, according to the prosecution evidence, revealed that the Respondent's car had passed under the gantry which was between junctions 13 and 14 and exceeded the speed limit as indicated. The Respondent gave evidence. Clearly that evidence was impressive to the Justices. He did not dispute that the car in the photograph was his. Quite clearly it was. It has been pointed out to us that the close up photograph, one of three which was produced to the Justices, indicates that the passengers were in the back seats. He did not dispute that he had been travelling at the speed alleged. However he made the contention that he could not have been travelling between junctions 13 and 14 and the Justices so found.

11. He gave evidence in addition that as a professional driver he would have seen and acted upon the 50 mile an hour limit had it been displayed and available for him to see. Of course, it is to be accepted that a driver, even a driver who has driven without blemish for 40 years, may make a mistake. It is not difficult to make mistakes when driving and no doubt the Justices must have had that possibility in mind. However, it is clear that they were impressed by him.

12. The prosecutor contended that there had been no evidence to suggest that the device had not been working properly and accordingly argued that here an illegal speed of 58 mph was clearly shown by the photograph. In addition it must be taken that the 50 mile an hour limit had been shown to drivers on that road. However, the Justices not only accepted the Respondent's evidence, after hearing such submissions they found that the alleged offence could not have been committed on that part of the road which was alleged in the information. They found that that was a material averment.

13. As to that matter, it is mentioned in the first point of their question. Their question for this Court is:

"Were we right in law to determine that, in the circumstances of this particular case, the location where the offence took place was a material averment?"

14. The answer to that is: certainly it was a material averment that the road was subject to the variable speed limit regulations. However, the specification between junctions 13 and 14 was not a material averment as is now conceded. The second and third questions are these:

"2. Were we right in law to conclude that there was sufficient evidence before us to doubt whether the Serco Speed Enforcement System was working correctly?

3. Were we right in law to conclude that as the Serco Speed Enforcement System had been challenged by the respondent it was for the appellant to adduce evidence regarding how the system worked, what integrity checks are carried out and how faults disable the system?"

15. Counsel for the driver, before the Justices, questioned not the whole of the working of the device, but only the display of the altered speed limit. The Justices seemed to have concluded that in view of the challenge it was for the prosecution to adduce evidence as to the working of the device so as to convince the Court that the whole system was working correctly in the absence of such evidence, and, accepting the evidence of the driver as truthful, the Justices concluded that there was sufficient doubt for them not to accept that the display was working properly.

16. At this stage it is necessary to emphasise the submission of Mr Spencer for the Appellants. Relying upon the decision in R v Skegness Magistrates' Court ex parte Cardy [1985] RTR 49, he says that there is a presumption of correct working. In particular, at page 56 in the judgment of Goff LJ, as he then was, appear the words:

"... the printout is no more than evidence and although, on the principle..., there is a presumption that the device was in order when used, it is open to the defendant to rebut that presumption by calling evidence challenging the reliability of the device at the relevant time."

17. We accept that there is that presumption. Indeed, if there were not such a presumption it would lead to the farcical result that the prosecution would have to produce evidence to prove the correct working of a machine such as that with which we are concerned on every occasion and that could not be right. It is however necessary to bear in mind that it is no more than a presumption. As against this presumption, for the driver it is argued that "it was incumbent on the prosecution to adduce evidence either by way of certification or oral evidence that the system was working properly on the day in question." If that were to have been intended as a general proposition of law, it could not be justified. However, the necessity, as we understand it, is argued upon this basis: firstly, the driver's evidence. That is the driver's evidence as to the weather and the road conditions and the fact that he says he would have seen, as certainly he should have seen, the 50 mile an hour sign if it had been showing.

18. Secondly, the driver's evidence that at no time did he travel along the stretch of motorway from junction 13 to 14 which they specifically accepted. That poses a problem, the solution of which we cannot, with any certainty, give. It may be that it was a matter of carelessness upon the witness's part in mixing up films, in misstating the gantry, in not checking where the gantry was. It is not possible for us to say. What is possible for us to say is that there was certainly a matter which the Justices must have seen as a matter which required some explanation.

19. The Justices also of course took into account the driver's whole history of that day. No doubt they thought, and would have thought correctly if they had thought in this way, that if in fact he did not go to the airport, if in fact he was travelling on the road between junctions 13 and 14, then he was putting forward a story which was a lie, a deliberate lie, and a very serious matter accordingly. They were no doubt entitled to bear that in mind. The man's good character, it is said, is always to be borne in mind and no doubt they had that in mind.

20. Before coming to the final question, some mention should be made of an argument which was in the Respondent's skeleton argument relating to section 69 of the Police and Criminal Evidence Act and the decision of Darby v Director of Public Prosecutions , Times Law Reports, 4th November 1994. That decision decided, although with some reservations, that a speed trap device was a computer and accordingly the terms of section 69 of the Police and Criminal Evidence Act 1984 were applicable. It is not necessary to refer in any great detail to this. It will be sufficient to say that by that section a statement in a document produced by a computer shall not be admissible as evidence of any facts stated therein unless it is shown:

(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer;

(b) that at all material times the computer was operating properly, or if not that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of the contents;..."

21. It can be seen from that quotation that the effect is to put the burden of proof on the party producing the document. However, in the circumstances of this case it does not seem that that adds to the situation. Here the prosecution were able to say that there was a presumption that this device was working properly in both its aspects and such a presumption should not easily be rebutted. We accept that that is, in fact, the case. However, the decision for the Justices was in the final analysis a decision of fact not of law. The presumption that the machine was working properly in both respects was no more than a presumption and the Justices no doubt must have had that presumption in mind, although they did not specifically mention it in their statement of case.

22. Their view was that the evidence of the Respondent, together with the surrounding other evidence including the apparent mistake about the location of the driving, was such that it overcame the presumption so that the Justices could not say that they were sure of guilt. No doubt it must be a very unusual circumstance when the Justices can come to such a conclusion.

23. However, considering the matter, for my part, I could not say that this decision was in any way perverse, in fact to the contrary I can understand it was a decision for them and I would reject this appeal.


24. LORD JUSTICE BROWN: This is a very exceptional case and should not be thought a charter for those disappointed at being caught speeding by photographic evidence. What is exceptional about it is a combination of unusual circumstances. First one has a very experienced and wholly respectable driver with a 40 year clean record whom the Justices believed when he said that he would inevitably have seen and acted upon any 50 mph sign had it been displayed. Second one has the fact that the only evidence that the 50 mph sign was indeed displayed was that of a camera technician, a Mr Donhue who:

"... stated that he did not know how the safety procedures worked but explained that no photograph would be taken unless the 50 mph speed limit was displayed, assuming the technical equipment was working correctly."

25. The Justices, however, were entitled to regard the force of that evidence as diminished by two particular considerations.


26. First, that on any view Mr Donhue was mistaken in his evidence as to where on the M25 the gantry was from which the photograph in question was taken. The other, certainly no less important, consideration was that Mr Donhue:

"... had no knowledge of how the manual system worked and what effect it had, if any, on the visual displays on the overhead gantry."

27. But for those considerations the Justices would no doubt have felt bound, however reluctantly, to conclude that on this particular occasion Homer nodded, in other words, that the Respondent failed to see the sign, and they would have convicted him accordingly. Given all the circumstances, however, I share my Lord's view that, even if perhaps their conclusion might be thought generous, the Justices cannot be found to have acted perversely in acquitting this Respondent. I, too, would accordingly dismiss this appeal.

28. Yes, any consequential Orders sought?

29. MISS MACDONALD: There is an Order sought in respect of the costs of the Respondent to this appeal.


30. LORD JUSTICE SIMON BROWN: Can that be resisted, Mr Spencer? One would suppose not?


MR SPENCER: My Lord, no

31. LORD JUSTICE SIMON BROWN: What is the proper Order? Very well, costs from Central Funds. We are grateful for both your arguments. Thank you.




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