England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		1st March 2007

1. LADY JUSTICE SMITH: This is a renewed application for permission to seek judicial review of a decision of HHJ Kamil and two justices sitting at Bradford Crown Court, when they dismissed the applicant's appeal against his conviction for an offence of speeding, which had been found to have occurred on 9th February 2005. The allegation was that the applicant had driven in contravention of the speed limit, allegedly at 36 miles a hour, on Mount Road and Great Horton Road in Bradford. He denied the offence. It was his case that he was travelling at no more than about ten miles a hour but he was convicted by the Magistrates. The prosecution proved its case by reference to readings of a Pro-Laser III device. The applicant appealed to the Crown Court but on 26th April 2006 his appeal was dismissed.
2. The applicant now seeks judicial review of the appeal decision on the ground that he did not have a fair hearing. He alleges in his written grounds that the judge intervened in the proceedings and interrupted the evidence using, and I quote from the applicant's skeleton argument, "intimidatory rhetoric, abuse, threats, bias and prejudice towards the applicant" to such an extent as to deny the applicant a fair trial. Fortunately, there is a full transcript of the proceedings and we have been able to read what the judge said. Mr Warring-Davies makes the submission that the written words do not convey the tone of the judge's interventions. We understand that. We accept that transcripts cannot convey either body language or tone of voice. Nonetheless, it is important to read the transcript and we have done so. We asked Mr Warring-Davies to point out the worst examples of the judge's abusive or allegedly abusive or threatening interventions. He referred us to one, which is at the bottom of page 20 of the transcript, when he said this:

"Do not make statements. It is for me to comment on witnesses' answers and whether they are answering properly or not and it will apply to you as well. So do not try my patience, please. Ask the questions that you need to ask that are essential to the case."

Looking back as to what had brought about that instruction, it appears that Mr Warring-Davies, when cross-examining the police officer, who was the main witness, was to some extent arguing with the witness. We do recognise that it is difficult for litigants in person to cross-examine witnesses effectively and very easy to fall into the trap of arguing with them, but it is the judge's function to prevent that from happening. It may be, we know not, that the judge spoke rather more sharply to Mr Warring-Davies than appears from the written word. Mr Warring-Davies has submitted to us today that it can be very intimidating for a person in authority to speak in a raised voice to a litigant in person even one like himself who is a man of considerable education. We accept that that is so. Nonetheless, it does not appear to us that that intervention by the judge came anywhere near to fulfilling the criticism that was made of the judge of showing bias and prejudice so as to deny the applicant a fair trial.

3. Mr Warring-Davies has very helpfully explained to us the basis of the defence that he sought to run before the Magistrates and the Bradford Crown Court. It was to the effect that the video film shown by the prosecution demonstrated the length of time that it had taken his car to travel past a traffic island which he had measured as being 19 feet six inches in length. It was his case that the video film showed that it had taken slightly in excess of three seconds for his car to pass this traffic island. If that were right, simple mathematics indicates that his car could only have been travelling at something of the order of ten mph. This argument was fairly and squarely put to the officer. The officer never accepted it but to some extent the figures spoke for themselves. The officer did accept that it appeared to have taken three seconds to travel past that particular traffic island.
4. However, in his ruling at the end of the case, the judge made the point that the traffic island in question was not at the position on the road at which the car had been when the trigger on the device had been pulled. In other words, the speed at the position of the traffic island was not necessarily the speed at the moment when the trigger was pulled. The judge heard evidence as to the efficacy of the machine, that it had been properly calibrated both before the day's work and at the end of the day's work. The evidence was that, if Dr Warring-Davies had been travelling at only ten mph, the machine would not have registered his speed at all. In short, the judge and the Magistrates, for it was a joint decision, rejected that defence on the facts.
5. I for my part am quite satisfied that the conduct of this appeal was fair. The applicant was appearing in person. When the time came for him to give his evidence, the judge did question him. It seemed to me that he tried to assist the applicant to keep to relevant points but there is no sign of abuse or rhetoric or bias. Indeed, towards the beginning of his judgment, the judge expressed the sympathy of the court that the applicant had been convicted of travelling at an excessive speed but so little in excess of the speed at which he would have been prosecuted. It is my view that there is no merit in Dr Warring-Davies' submissions, courteously and intelligently though they have been advanced, and I would refuse this application.
6. MR JUSTICE GROSS: I agree.
7. LADY JUSTICE SMITH: I am sorry, Mr Warring-Davies, that is it so far as this conviction is concerned. You live to fight another day on the other one.
8. DR WARRING-DAVIES: My lady, I do thank you for your courtesy, and you my Lord. I thank you for what you say and I am grateful for the experience.
9. LADY JUSTICE SMITH: Thank you very much.