England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/03/2007

Lady Justice Smith : This is the judgment of the Court.

1. This is an appeal by way of case stated by Brian Leslie Griffiths against his conviction by the North Surrey Justices on 30^th October 2006 for a speeding offence which occurred on the A3 trunk road, Esher Bypass. The allegation was that the appellant drove his LDV goods vehicle GN54 PLV at a speed in excess of the 50mph speed limit. The prosecution relied on a reading taken by a Gatsometer BV Type 24 speed camera, a device approved by the Secretary of State under the Road Traffic Offenders (Prescribed Devices) Order 1992.
2. The statement of case recorded that the court heard evidence from Mr Perman a camera technician authorised by the Chief Constable. He said that a Gatsometer device placed on the Esher Bypass had recorded a speed of 81 mph at 6.12am on 5^th October 2005. The registration number of the vehicle was GN54 PLV. Later, the appellant had signed and returned a notice issued under section 172 of the RTA 1988 admitting that he had driven that vehicle on that road on that day.
3. Mr Perman said that, in accordance with ACPO guidelines, the film loading device would have been tested at the time of loading the film and again when it was unloaded. The film was developed by the Surrey Camera Partnership. Mr Perman produced two photographic prints, which he said would have been taken by the Gatsometer device at an interval of 0.5 seconds. That is how the device operates. The photographs display a data block which shows the time, date, file number, site number, sequence number and the speed as calculated by the device's radar system. The vehicle registration number is visible in one of the photographs. The speed calculated by the Gatsometer's radar system can be cross-checked from the photographs. These show the vehicle crossing a number of lines painted on the road. The lines are two metres apart. By counting the number of spaces crossed between the first and second photographs, the speed of the vehicle can be calculated. In this case, the vehicle had travelled 9 spaces which meant that it had travelled 18 metres in half a second or 36 metres per second which is 81 mph. Mr Perman explained that, for the purpose of making the cross-check calculation, he had viewed the images on his computer screen not on the photographic prints.
4. A number of challenges were made to Mr Perman's evidence, all of which are relevant to this appeal. First, he was asked about the lines on the road; he said that these used to be set at 5 feet apart but, in response to a European directive, they were now set 2 metres apart. He himself had checked the accuracy of the spaces between the lines at this site.
5. Second, Mr Perman was shown the prints that had been served on the defence some time before the hearing. He agreed that the quality of the prints was 'dreadful' (they were very dark) and said that he would not have been able to make the secondary check from them. The Crown had served a better set of prints on the defence on the day of the hearing and Mr Perman said that these prints showed exactly what he had seen on his computer screen.
6. Third, it was put to Mr Perman that the data block in the machine, which produced the data on the photographs could be altered. He said that it could not be.
7. Fourth he was asked about the calibration of the machine. He said that it was done annually and had last been done on the 2^nd December 2004. He produced the certificate of calibration.
8. The statement of case recorded that Mr Perman had said that the machine was very accurate and it automatically operated so as to take the photographs at an interval of half a second. He said: 'If the machine is not working properly then it will not record the 0.5 seconds'.
9. In re-examination, Mr Perman reiterated that he had no doubts as to veracity of the evidence.
10. There followed a submission of no case to answer on the following grounds:

"(a) There was no evidence before the court from the maker of the prints, therefore the prints are inadmissible evidence and do not fall under the category of a record for the purposes of section 20(1) of the Road Traffic Offenders Act 1988.

(b) There was no second check notice and that the court had heard effectively hearsay evidence of what Mr Perman saw on his computer equipment.

(c) There was no evidence before the court that the computer was accurate or reliable.

(d) To put before the court a calibration of the Gatso camera which was nearly a year old was insufficient. The court cannot be sure that the Gatso device was working correctly. The onus of proof rests on the Crown, in the absence of a statutory presumption that the Gatso device was in working order.

(e) The clock on the data block on the prints does not show tenths of a second, only 0.5 of a second, which means that the defence are unable to make a secondary check of their own nor could the defence check the accuracy of the timer, as the prosecution cannot say to the necessary level of accuracy when each photograph was taken.

(f) To have a metric sign on the road in the United Kingdom is illegal as there needs to be an authority before signs are painted on the road. There is no such authority before the court therefore the Gatsometer camera is illegal. The defence requested that this point is reserved.

(g) It was not accepted that the 7 days notice under section 20(8) of the Road Traffic Offenders Act 1988 was waived by defence.

11. The justices held that there was a case to answer and dealt with each point as follows:

(a) The photographs taken to record the speed are admissible under section 20(1) Road Traffic Offenders Act. They are a record produced by a prescribed device and evidence was given by Mr Perman as to the circumstances in which the photographs were taken. As such there was no need to have evidence before the court from the maker of the prints.

(b) There was a secondary check made by Mr Perman. Whilst the photographs were not produced by Mr Perman himself, in his evidence he stated clearly that they were an accurate portrayal of what he had viewed on his screen. We were of the opinion that the 0.5 of a second shown on the data block of the second photograph accurately recorded the time lapse between the first and second photographs. The unit of measurement for the distance travelled as marked as on the road was 2 metres and Mr Perman confirmed that he himself had checked this. He then told us the standard formula used to convert metric measurements to miles per hour and the court accepted that this is sufficiently accurate to bring a proper prosecution for excess speed.

(c) The Gatso speed device is Home Office Approved. We heard no evidence to rebut the presumption that it was working correctly and was properly used. It had been properly calibrated on the 2^nd December 2004, in accordance with the ACPO guidelines which state that the device should be calibrated annually.

(d) Photographs had been served more than 7 days before the trial on the appellant in accordance with section 20(8) RTOA 1988, together with a certificate signed by Mr Perman, certifying that a Gatso Radar Type 24, is a prescribed device of a type approved by the Secretary of State and to the best of his knowledge and belief, the aforementioned condition to which the type approval is subject was satisfied. The photographs served at trial were clearly the same as those served on the defence, but of better quality. We were of the opinion that the appellant was not prejudiced by the service of the better quality prints at trial as he would have been on notice of the content. There was no application to adjourn the proceedings.

(e) We were of the opinion that the road markings were lawful. Without such road markings it would be impossible to make a second check against the reading of Gatso camera. We heard evidence that it was a European Directive that the lines in the road were changed from 5 feet to 2 metres approximately 3 years ago. We took the view that as these particular road markings are not intended to direct traffic or drivers, the fact that they are metric and not imperial is irrelevant. If such authority is required for such road marking, we were not referred to any legal authorities by the defence."

12. The court then heard evidence from the appellant who said that he had been travelling along the bypass in his vehicle which was a mobile workshop. It had a capacity of 3.5 tonnes. The engine was a 2.5 litres turbo diesel. He thought that he was driving at between 50 to 60 mph. He said that his van would not go at 81 mph. However, no expert evidence was called in support of that. In cross-examination he said that his van would rattle if he went at 80 mph.
13. The Court found that:

"(a) The Gatsometer radar device used to take the photographs had been calibrated properly and in accordance with the Association of Chief Police Officers guidelines."

(b) In accordance with section 20 of the RTOA 1988 the evidence was recorded by a prescribed device which was in good working order as evidence was given by Mr Perman that he carried out the secondary check and was confident that the computer was working "properly, accurately and reliably".

(c) The photographs used in evidence were an accurate portrayal of the image Mr Perman viewed to conduct the secondary checks.

(d) Secondary checks showed that the vehicle was travelling at 36 metres per second which equates to 81 mph which agrees with the camera reading.

(e) The technical evidence produced by the prosecution is conclusive that Mr Griffiths was travelling at 81mph.

(f) The assertion made by the defendant that his vehicle could not attain 81mph, and if so would be rattling, without any other evidence was insufficient to throw doubt upon the working of the Gatsometer radar device."

14. The justices posed eight questions for this court, representing eight points on which the justices' decision was initially challenged in this court. However, in the course of argument, Mr Shrimpton who appeared for the appellant, abandoned two points. I will set out only those points on which the Court must rule.

"(a) Is a print developed from chemical film in a Gatso camera a record within the meaning of Section 20(1) of the RTOA 1988?

(b) If the answer to (a) is yes, is the print produced by the camera?

(c) If the answer to either (a) or (b) is no, does the chain of evidence require evidence from the person who develops the prints?

(d) Was the service of a set of prints which was not relied upon at trial sufficient for the purposes of Section 20(8) RTOA 1988?

(e) Should the prosecution have disclosed the computer file used to make the secondary check and if so what is the effect of non-disclosure?

(g) Do the requirements of a fair trial extend to allowing the defence to check the timing gap between the two photographs taken by the Gatso camera?"

15. The first three questions are closely related and we will deal with them together. They all relate to the provisions within section 20 of the Road Traffic Offences Act 1988. That section relates to the admissibility of evidence in connection with speeding offences produced by the use of speedmeters. Subsection (1) provides:

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 behalf of the chief officer of police for the police area in which the offence is alleged to have been committed;

but subject to the following provisions of this section.

16. Subsections 2 and 3 describe the types of speeding offence to which the section applies. Subsection (4) provides:

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.

17. Subsection (5) provides that type approval may be subject to conditions as to the circumstances in which the device is to be used. Subsection (6) provides:

In proceedings for an offence to which this section applies, 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 the type approved for the purposes of this section or that any of the 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.

18. The only other subsections of section 20 to which I need to refer are subsections (7) and (8). They provide:

(7) For the purposes of this section a document purporting to be a record of the kind mentioned in subsection (1) above, … shall be deemed to be such a record …. unless the contrary is proved.

(8) Nothing in subsection (1) … above makes a document admissible as evidence in proceedings for an offence unless a copy of it is 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 3 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.

19. Mr Shrimpton accepted that the Gatsometer camera is a prescribed device but submitted that a print developed from a chemical film in such a camera is not a record produced by the device within the meaning of section 20(1). Nor, he submitted, is the print produced by the camera. Therefore the prints used in this case were not capable of being admitted under section 20. Before these prints could be admitted in evidence, it would be necessary for the evidential chain to be proved. There would have to be a statement of evidence from the person who removed the film from the camera and took it to the Surrey Camera Partnership. There would also have to be statement from the person who developed the film and printed the photographs. That person would 'produce' the prints, adequately identified. In short, the evidential chain between the camera and the prints has to be proved in the way in which it is usually done in criminal proceedings and the fact that the camera is part of an approved device is nothing to be point.
20. Mr Bendall, for the DPP, contended that the prints used in this case were a record produced by the Gatsometer camera and were therefore admissible under section 20. He agreed that the camera in the device is not digital so the photographic prints are not produced directly by the device. Because the device uses 'wet' film, the prints were produced indirectly by the camera. He contended that the court should construe subsection (1) so as to give a purposive effect to the provision. He submitted that, as the Gatsometer device had been approved by the Secretary of State for the purposes of rendering its records admissible under section 20(4), it would be difficult to see for what purpose the device had been approved if the photographs were not records within section 20(1). The device did not produce anything other than the photographs, which bear the data block which provides the information relevant to the offence (namely the result of the calculation performed by the device itself). At one point, Mr Bendall submitted that section 20(1) would be of no use if the prints resulting from the use of a Gatsometer were not treated as a record produced by the device. However he did accept that there are other types of speedmeter which produce a direct record of information to be used in evidence and such a record would plainly fall within section 20.
21. In our judgment, Mr Bendall is right in that the photographs are a record produced by the Gatsometer, even though they are not produced directly by the device. The record produced directly by the device is the negative image on the film. It contains not only the image of the vehicle but all the relevant data, including the code number of the device (from which its position can be identified) the time at which the camera operated and the speed of the vehicle, as calculated by the device. The record produced directly by the device, the film, is not readable until it has been developed. It is then readable through a viewer or it can be printed on to paper. The photographic print is, in our view, a record produced (albeit indirectly) by the device, notwithstanding the need for the development and printing processes. We do not consider that the scope of section 20(1) is limited to records which issue directly from the machine, such as those produced by devices which use a digital camera or other form of printout. In our judgment, a print produced from a film used in a Gatsometer is a record produced by a prescribed device.
22. There is, in our view, no need for evidence of continuity to be given. The film carries its own identification information on the data block. There is no possibility that the person developing the film and printing the images could change the information on the data block and therefore no possibility that the wrong photographs will be attributed to the case. Mr Shrimpton's submission that there is a possibility that someone might have retouched the photographs or altered them in some way on a computer does not persuade us. Of course we recognise that such things are possible. But, proof of continuity would not assist in the detection of such actions. If the defence were to raise the issue that there had been tampering with the photographs, no doubt the prosecution could be required to identify those involved in the developing and printing processes so that they could be questioned; but without such an issue being raised, we think that evidence of continuity would be quite pointless.
23. There is an additional point to be considered here. Two sets of prints were produced; one set (which were very dark) was served in advance of the trial; the other set which was of better quality was served on the defence on the day of the trial. The justices were of the view (as in our view they were entitled to be) that the two sets of prints were essentially the same photographs (that is printed from the same negatives) and that both were therefore records produced by the prescribed device.
24. Accordingly, we would answer questions (a) and (b) in the affirmative. Accordingly, question (c) does not strictly arise. But for the avoidance of doubt we say that, if the photographs were to be admitted under section 20, there was no need to prove continuity.
25. We turn to question (d) which concerns the provision in section 20(8) that, if a document (viz the record, in this case the photographic prints) is to be admissible in evidence under the section it must be served on the defence 7 days before the trial. Mr Shrimpton submitted that, as the first set of prints was of such poor quality as to be unusable for its purpose, there was in effect no service prior to the trial. Service was effected only on the day of the trial.
26. Mr Bendall submitted that subsection (8) requires only that a copy be served and says nothing about the quality of the copy. We find that argument most unattractive. If a copy of a document is so poor that it cannot be used for the purpose for which it is served, we would hold that that is not service. Mr Perman said in evidence that he would have been unable to use the first set of prints for the purpose of counting the number of lines crossed in half a second, so as to carry out the secondary check. That means that the copy was so poor it could not be used for the purpose for which it was served which was to allow the defence to see and understand the evidence on which the Crown relied for the secondary check. We would hold that there was no service of the photographs until the day of the trial.
27. The justices held (in paragraph 6(d) of the case stated) that the photographs served on the day were clearly the same as those served earlier but of better quality. It is not clear whether they regarded service of the first set as good service. The justices went on to say that the appellant had not been prejudiced by the service of the better quality prints on the day of the hearing, as he would have been on notice of the contents. We cannot accept that that was so, even assuming that prejudice is a material factor. The appellant was prejudiced by late service in that the first set of prints were so dark that the lines on the road could not be counted. He was not therefore on notice of all the contents of the documents, although the data block was legible (including the speed calculated by the device's radar system). We regard that as some prejudice. However, it is true to say that, once a good set of prints was provided, the work of counting the lines crossed and performing the secondary check takes only a few seconds. Nonetheless, if section 20 is relied on, a defendant is entitled to have that material in his hands at least 7 days before trial.
28. As we have said, it is not clear whether the justices thought that service had been good and considered that they could waive the defect on the ground that there had been no prejudice. We do not think that the service requirement can be dispensed with other than by waiver by the defence. The justices seemed to think that, because the defence did not ask for an adjournment, the service requirement could be dispensed with. Mr Shrimpton told us that he had certainly not waived the requirement; indeed he had relied upon it. He wished to tell us what had happened that day. Although this information was not part of the case stated, we received it by consent. Mr Shrimpton said that he had first objected to the admissibility of the prints on the ground of lack of continuity. The legal adviser advised the bench that the prosecution had to prove continuity and the bench retired. While they were considering that matter, the legal adviser consulted her superior who advised that the prosecution could rely on section 20(1) and would not therefore need to prove continuity. The justices returned. Counsel appearing for the CPS adopted section 20(1). Mr Shrimpton then pointed out that, if reliance were to be placed on section 20, there should have been service of the prints seven days before trial. There had not been. The justices retired for a second time and, on their return, announced that the Crown could rely on the second set of photographs under section 20. Mr Shrimpton submitted to us that it was not for the defence to seek an adjournment; it was for the Crown to do so because they could not rely on section 20 due to late service of the usable prints.
29. In our view Mr Shrimpton's submission on this point is correct. Section 20(8) requires service of evidence 7 days before the hearing. If the photographs served were of such poor quality that they could not be used to carry out the secondary check, there was no service. The prosecution was in real difficulty if it intended to rely on section 20. Counsel should have conceded that he was in difficulty and should have asked for an adjournment. That would have put the defence into the position of having either to waive the short service or go away and come back on another day with all its attendant inconvenience. But in the absence of a waiver, it seems to me that the prints were not admissible under section 20. The answer to question (d) is no.
30. However, it seems to us that this question is not dispositive of the appeal, in the way that Mr Shrimpton contended. He submitted that, if the photographs were not admissible under section 20 because of short service, they were not admissible at all. That in our view is not so and it demonstrates a misunderstanding of the purpose of section 20. The purpose of the section is to provide for the possibility that the record produced by the device may be admitted in evidence without being produced by a witness. Section 20(6) says that that may be done and section 20(8) lays down the procedure which must be followed if advantage is to be taken of section 20(6). That appears to us to be so from examination of the words of section 20. But it was also the view taken by this court in DPP v Thornley [2006] EWHC 312 (Admin). In that case, Owen J (with whose judgment Hallett LJ agreed) considered the consequences of a failure to disclose photographs produced by a prescribed device more than 7 days before the hearing. The court held that the provisions of section 20 were permissive and did not preclude the prosecution from adducing the evidence of the record in some other way. The court referred to and cited Garner v DPP [1990] RTR 208 in which the court had considered the effect of provisions of section 10 of the Road Traffic Act 1972, (which were virtually identical to section 20 of the 1988 Act) relating to the admissibility of evidence produced by a prescribed device for measuring breath alcohol levels. In Garner, the court held that the record (the printout from a Lion Intoximeter device) was admissible either under the statutory provision without the necessity of calling any witness to produce it or as real evidence, if produced by someone who was able to identify the exhibit and link it to the case against the defendant. At page 216L, Stocker LJ said:

"The question can be put in this form? Was the printout admissible? The argument that it was not depends upon the proposition that is admissibility arises solely from the terms of section 10(3) of the Act of 1972. For my part, I do not agree that such admissibility does arise solely through the terms of that section. In my view it was, quite apart from that section, an admissible document at common law as representing real evidence."

At page 219A, Roch LJ put the matter thus:

"As real evidence, such a printout can be proved, as any other real evidence can be proved, namely by being produced as an exhibit by a witness who can identify what the exhibit is and link it to the case against a defendant. Once the exhibit is properly proved in that way it speaks for itself."

31. In the present case, it seems that the prosecutor was not clear as to whether it sought to rely on Mr Perman as the witness who was to produce the photographs or whether it intended to rely on section 20. If it were to rely on Mr Perman, there was no obligation under section 20(8) to disclose the photographs 7 days in advance, although advance disclosure of evidence is, we believe, now regarded as good practice even in respect of purely summary offences. If it were to rely on section 20, there would have to be disclosure of the photographs 7 days in advance, with an appropriate certificate as required by section 1(1)(b), and it would have been open to the defence (not less than 3 days before the trial) to call for the attendance of the person who had signed the certificate. We do not know whether any certificate was served in this case; there is no reference to it in the case. It may be that it had always been the intention of the prosecution to get Mr Perman to produce the photographs and that reliance was only placed on section 20 as the result of a suggestion by the legal adviser's supervisor as a means of obviating the need to prove continuity of the photographs.
32. Our view is that Mr Perman was able to produce the photographs and did in fact do so. He knew how the machine worked and explained to the justices that the photographs showed on their face (by the data block) when and where they had been taken. He was able to connect the photographs to the appellant. Doubt about his ability to produce the photographs only arose because it was submitted that he could not show continuity. We have held that for photographs of this kind, which identify themselves through the data block, there is no need for the prosecution to prove continuity. Our holding in paragraph 22 above is relevant whether it is sought to admit the photographs under section 20 or at common law.
33. Thus we conclude that the evidence of the (good) photographs was properly admitted by the justices, even though the reasons they gave for admitting them do not stand up to scrutiny. Accordingly, the full answer to question (d) is 'No, but it does not matter'.
34. We turn to question (e). Mr Shrimpton also took the point that Mr Perman had not looked at the photographs to carry out his secondary check; he had used his computer screen and the source of the material which had been put into his computer was not known. The computer file should have been disclosed. We would observe first that, no doubt if Mr Perman had been asked what he had put into his computer, he would have explained. But the point is in any event without merit. Mr Perman looked at his computer screen to carry out the secondary check. He said that it showed the same images as the photographs. If any objection were taken to the use of a computer screen as opposed to the photographic prints, he could have carried out the secondary check in court, using the photographic prints. We were able to do it for ourselves. No doubt the justices did too. The point is that the photographs are real evidence from which anyone can carry out the secondary check, so it matters not that Mr Perman relied on images on a computer screen. The point is completely without merit.
35. Finally we turn to question (g), whether the requirements of a fair trial extend to allowing the defence to check the time interval between the photographs taken by the camera. Mr Shrimpton's complaint was that the defence has no way of knowing whether the device is working properly; it is supposed to take photographs at an interval of half a second but the defence has to take that completely on trust. The defence cannot even rely on the data block; it gives the timing of the photographs only to the nearest second. Mr Shrimpton submitted that the timing shown on the data block ought to be accurate to one hundredth of a second or at least to one tenth. Even a small inaccuracy in the time interval between the two photographs could cause a significant difference to the result of the secondary check.
36. Mr Bendall submitted that the device was type approved. It was devised so as to operate at a half-second interval. Provided that the machine had been calibrated in accordance with the conditions attached to the type approval (and there was no suggestion that it had not been) that was all that was to be said. Mr Shrimpton submitted that, notwithstanding type approval, reliance on this evidence was fundamentally unfair.
37. We do not accept that the use of this approved device is fundamentally unfair and consequently a breach of a defendant's right to a fair trial. 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 will be different from that of the transmitted signal and the difference between the two is a function of the speed of the approaching vehicle. The device is able to calculate the 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 will there be a 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 a second because, if the camera timing were not correct, it would be an extraordinary coincidence that the result of the two checks, independently carried out, should turn out to be the same. Accordingly we answer question (g) in the negative.
38. That disposes of all matters in the prosecution's favour and the appeal must be dismissed.