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
		3 July 2009

1. MR JUSTICE MADDISON: On 3 August 2007 at Huddersfield Magistrates' Court, before District Judge Sawyer, the claimant, Mrs Vicky Fielden, was convicted after a trial of exceeding a 30-mile an hour speed limit on the A616 New Mill Road at Brockholes in Huddersfield. She appealed against her conviction to the Crown Court. The appeal was heard at the Crown Court in Bradford by Mr Recorder Hill QC and two magistrates. The hearing of the appeal began on 11 December 2007. The appeal had to be adjourned part heard and the judgment of the court was ultimately delivered on 25 June 2008. The appeal was dismissed and Mrs Fielden was ordered to pay £15,000 towards the cost of the prosecution, to be paid within 6-months.
2. The Crown Court was then asked to state a case for the consideration of the High Court in relation to 27 proposed grounds of appeal. The Crown Court declined to do so. It gave its reasons in writing on 22 October 2008. Though the reasons referred separately to each of the 27 proposed grounds, the central reason for refusal, based on Rule 64(7)(6) of the Criminal Procedure Rules 2005, was that the application to state a case was frivolous in the sense of being futile, misconceived, hopeless or academic.
3. Mrs Fielden then applied to this court for permission to apply for judicial review of the refusal to state an case. The application was refused on the papers by Munby J, to some of whose reasons I will return. The application for permission has now been renewed and falls to be considered today.
4. I would approach this renewed application by considering whether, had a case been stated by the Crown Court, the resultant appeal would have had any real prospect of success. If so it would clearly be appropriate to order the Crown Court to state a case. If not, no useful purpose would be served by doing so.
5. I turn to the hearing of the appeal in the Crown Court. The case for the prosecution was that at 18 minutes past 5 on the morning of Sunday 4 June 2007, Mrs Fielden was driving her Volkswagen Polo car with her husband, Dr Iain Fielden, as a passenger, along New Mill Road which was governed by a 30-mile an hour speed limit when, quite simply, she was caught by what is commonly known as a speed camera travelling at 36 miles an hour. The device concerned is technically described as a Gatso BV Type 24 Speed Detector Device.
6. There was uncontested evidence about how such a device works in general terms. If, as in the present case, it is installed on the pavement to the near side of the traffic the speed of which it is intended to detect, it should be positioned in such a way that it directs a radar beam into the road at an angle of 20-degrees, taken from the near side kerb, so that traffic moving away from the device, having passed it, would go through that beam. The beam is not in the shape of a narrow line, like for example a laser beam. It is 5 degrees wide with the 20-degree line at the centre. Thus, the area of road covered by the beam increases as the beam extends away from the device. The radar is set in such a way as to detect any vehicle travelling in excess of 35 miles an hour. If such a vehicle is detected, its speed is automatically recorded and then as soon as the vehicle leaves the beam two photographs of it are taken in quick succession, in fact at an interval of exactly half a second. During that short time, the vehicle will have crossed over a number of short parallel lines painted on the road, of the kind familiar to all motorists. The lines are a uniform distance apart from each other. In the present case the distance was 5 feet. By observing, from the two photographs taken, how far the vehicle has travelled during the half second concerned, it is possible to calculate the vehicle's speed. That calculation can be made independently of the radar measurement of the speed, though obviously in the vast majority of cases one would expect the two speeds to be the same or very closely similar. Mrs Fielden's speed was recorded by the radar equipment in the device concerned at 36-miles an hour. The same speed was arrived at on examination of the two photographs by the witness, Janet Pearson, whose statement was read to the court by agreement.
7. The installation manual of the manufacturer of the device indicates that the radar detection equipment is best used on an entirely straight stretch of road. There was a great deal of evidence given at the appeal about the extent to which the device will provide reliable measurements of speed if the section of road which it covers is in fact curved to some degree. Briefly, the manual states that the degree of curvature of the road should be measured by reference to a straight line 30 meters long, starting at the point at which the device is mounted on its pole, and running parallel to the line of the kerb at that point. A measurement is then taken of the extent to which the half way point on that line, namely 15 meters along it, is removed from the nearest kerb at that point. Based on the extent of the deviation, it is possible to draw an arc covering the 30 meter distance, and then to calculate the notional radius of the circle of which that arc, if extended, would form a part. If, but only if, the notional radius is 1200 meters or more, the manual indicates that the radar measurements will be reliable.
8. Despite the length of the hearing of the appeal, which went on over several days, and the number and complexity of the issues investigated, Mrs Fielden had two central points to raise. The first was that the radar device was not being used in accordance with the approval which it was accepted it had been given by the Home Secretary; in which case, the effect of section 20(4)(b) of the Road Traffic Offenders Act 1988, would be to render the measurement made by the device inadmissible. This submission was based on evidence which eventual emerged at the appeal, and which was not disputed, that the notional radius to which I have referred was in fact significantly less than 1200 meters. Having heard evidence on the matter, the Crown Court rejected the submission. In essence, its grounds for doing so were that the device had indeed been approved by the Home Office and that there were no conditions attaching to the Home Office approval of the device which corresponded with or reflected the guidance given in the installation manual to which I have referred. Giving the written judgment of the court, the Recorder referred to evidence given at the appeal that the initial Home Office approval, given in 1992, was unconditional. Moreover, at that time the installation manual did not exist; it was not written until 1996. In 2000 the Home Office reconsidered the approval and did impose certain conditions but these did not include compliance with the installation manual in relation to roads with a degree of curvature. It was submitted on behalf of Mrs Fielden that, nevertheless, compliance with the manufacturer's installation manual must be regarded as an implied condition subject to which the device was approved. The court rejected that submission referring to DPP v Carey [1970] A.C. 1072, in which the House of Lords held, amongst other things, that compliance with the instructions of the manufacturer of breathalyser equipment was not to be regarded as a condition of the Home Secretary's approval of such equipment. It is now submitted on behalf of Mrs Fielden that the Crown Court was wrong to regard that case as analogous with the present one.
9. In my view, there were similar features, and the court was entitled to draw some assistance from that case when considering the case of Mrs Fielden; but it is in fact unnecessary to go beyond the clear words of section 20(4)(b) itself. The words, "any conditions subject to which the approval was given", and I would emphasise the words, "was given", clearly refer only to express conditions. In my view, it is not properly arguable that the Crown Court erred in law in concluding that the radar evidence was inadmissible.
10. The second central point taken on Mrs Fielden's behalf at the hearing of the appeal was that, in any event, the fact that the device was sited at a point at which the notional radius was less than 1200 meters, had led to, or could have led to, a false reading. The Crown Court rejected that submission as well.
11. Far from that being a decision which no reasonable court could have taken, in my judgment, the Crown Court's decision in that regard was correct. During an adjournment of the hearing of the appeal, the site was revisited and re-measured of representatives both of the appellant and of the respondent at the Crown Court, following which an agreed report was submitted to the court when the hearing resumed. That report indicated that for a distance of 18 meters from the device, the road was in fact entirely straight. Only thereafter did it begin to bend. The radar beam which detected the appellant's car was positioned within the 18 meter straight stretch of road. Thus, the fact that the road later began to bend within the distance of 30 meters, to which I referred earlier, was immaterial.
12. Perhaps appreciating the difficulty which this presented to Mrs Fielden's case, another matter was then investigated on her behalf. This was whether the path of her vehicle may have deviated to such an extent as to invalidate the speed measurement, notwithstanding that the stretch of road itself was entirely straight. It is right that the witness Mr Janssen, the technical director of the Dutch company that maufactured the device, declined to say exactly what degree of change of direction would produce this effect, on grounds of public interest immunity and commercial confidentiality. One of the many points taken before this court on Mrs Fielden's behalf is that Mr Janssen was wrong to do so. However, in my view, evidence from him on this subject would, in the event, have been irrelevant. Evidence from the respondent's witness, Mr Rustead, who superimposed the positions in the road of Mrs Fielden's vehicle on the two photographs, was to the effect that the vehicle was proceeding as indeed one would expect it to have done along a steady, if not a perfectly straight, course. Though neither Mrs nor Dr Fielden were obliged to give evidence, the fact is that neither of them did so, so that there was no evidence of a sudden change of direction from either of the occupants of the car. In any event, as Mr Janssen pointed out, there was an air of unreality about this line of enquiry, since it would be physically impossible for any vehicle travelling at any normal speed to change direction substantially over the very narrow stretch of road covered by the radar view.
13. Thus in my view, the Crown Court was right to reject the two central points taken on behalf of Mrs Fielden.
14. I would add that although most of the evidence focused on the radar evidence, in my view the court would have been entitled to convict Mrs Fielden solely on the basis of the evidence of her speed calculated from the two photographs. Evidence was read to the court by agreement that the camera was calibrated annually and had last been checked only two days before the alleged speeding offence; and that the speed calculated from the two photographs was 36 miles an hour. Mr Janssen also gave evidence about this matter. He considered, having viewed the photographs, that the car had travelled a distance equivalent to five and a half of the gaps between the parallel lines on the road, in other words 27 and a half feet, during the half-second interval between the taking of the two photgraphs. That would have required a speed of 37.4 miles per hour. Making every allowance in Mrs Fielden's favour however, and working on the basis (which was not in fact his evidence) that the car had travelled over only five gaps, or 25 feet, and no further, the speed would still have been 34.4 miles per hour. There was also evidence from the respondent's witness, Mr Rustead, that the two photographs indicated a speed of at least 36 miles per hour.
15. One of Mr Shrimpton's submissions before this court, on behalf of Mrs Fielden, is based on Mr Janssen's evidence that the device was set in such a way that the camera would take photographs only of vehicles measured by the radar to have been travelling in excess of 35 miles per hour. This, he submits, suggests a policy of not prosecuting motorists for speeding offences unless they exceed the speed limit by 10 per cent, plus 2 miles an hour. Indeed he submits, and for present purposes I would be prepared to accept, that such a policy is implemented in practice by prosecuting authorities, though no direct evidence to that effect has been placed before this court. Mr Shrimpton's submission continued that since the camera evidence could not clearly demonstrate a speed of more than 34 miles an hour, a point which he says was conceded by Miss Downing of counsel, junior advocate for the respondent in her opening speech at the Crown Court, it would be wrong to allow the conviction to stand. Mrs Fielden would have a legitimate expectation either that she would not be prosecuted, or that she would, if prosecuted, not be convicted in reliance on evidence of such a speed.
16. In my view, that submission is beset by difficulties. The main one, of course, is my conclusion that the radar evidence showing a speed of 36 miles per hour was rightly admitted. On the basis of that evidence the Crown Court came to the conclusion, as it was entitled in my view to do, that the speed exceeded the 35-mile an hour practical limit for which Mr Shrimpton contends. In addition, no less than three witnesses, to whom I have referred, all said that in their view the speed indicated by the two photographs was one of not less than 36 miles an hour. The only witness to speak of 34 miles an hour was Mr Janssen. His evidence was that the car had in fact travelled a distance equivalent to more than five intervals between the parallel lines and he calculated an actual speed of 37.4 miles an hour. However, in giving what he described as "a little bit of tolerance", he said that the speed would have been 39.4 miles an hour had the distance travelled been 5.8 intervals, and 34.4 miles an hour had the distance been exactly 5 intervals. It was not his evidence that the speed detected by the camera was in fact 34.4 miles an hour.
17. I turn to the supposed concession made by Miss Downing in opening the case on behalf of the respondent at the Crown Court. What she actually said was as follows, in a passage which begins on page 5 line 40 of tab 6 in the bundle of documents with which this court has helpfully been provided:

"If I may outline very briefly the mathematics upon which evidence will be adduced, when one looks at the photographs the appellant's vehicle has travelled over five and a half lines ... if one works using that equation, the distance travelled over five and a half lines, knowing that the interval between the lines is 5 feet, is 27.5 feet ... we know that that was over a time interval of 0.5 of a second, so the speed would be 27.5 feet per half second. In due course the mathematics will be adduced in evidence, but equating that to miles per hour is 37.5 miles per hour. If the appellant is given the benefit of the doubt that she only travelled over five of those lines and not five and a half, then that would be a distance of 25 feet in half a second, again converting that into miles per hour, that is 34.09 miles per hour."

The Recorder then asked:

"Would she have been prosecuted if she had been doing that speed?"

Miss Downing replied:

"Yes, your Honour. The average for those two figures, the 37.5 miles per hour and the 34.09 miles per hour, is 35.79 miles per hour which the respondent submits is extremely close to the 36 miles per hour which the Gatso speed camera recorded her vehicle travelling at. I respectfully remind your Honour, and your Honour's colleagues, that the respondent need only prove that the appellant has exceeded the speed limit of 30 miles per hour".

To which the Recorder replied:

"Yes, of course. It is not a question of policy at this stage, it is a question of whether she was exceeding".

18. In my view, it is impossible fairly to read into the passage that I have cited, a concession on behalf of the respondent to the appeal that the speed was in fact 34 miles per hour, and that was certainly not the effect of the evidence that was called on behalf of the respondent.
19. Mr Shrimpton goes on to submit that if one had a case (which as it happens this case is not) in which a prosecution was mounted on the basis that the speed detected had exceeded 35 miles an hour but in which the evidence established for sure only that the speed, though greater than 30 miles an hour was not as high as 35-miles an hour, then the court would be obliged to stay the proceedings, despite having in effect found the defendant concerned guilty, as an abuse of process because the speed ultimately proved was one at which the defendant concerned would not have been prosecuted. It is not necessary, it seems to me, for this court to express any concluded view in relation to that argument, but for my own part I would regard it as an astonishing state of affairs if the court, having for sure found facts sufficient to constitute the offence as charged, were then required in effect to stay the proceedings as an abuse of the process of the court at the very last minute.
20. I deal next with various discrete points. One is that at one stage of his written judgment, Mr Recorder Hill QC, who wrote the judgment of the court, but clearly on behalf of all the members of it, stated that, in relation to the second of the two arguments to which I have referred, namely the reliability of the measurements taken by the equipment, it was for Mrs Fielden to prove on the balance of probabilities that the radar readings were erroneous. I am grateful to Mr Shrimpton for the care with which he has dealt with this matter in his written submissions, and indeed during the course of his oral argument before this court this morning. However, I do not consider it necessary to decide whether or not the passage in the judgment referred to amounted to an error on the part of the Crown Court, because in the final paragraph of the written judgment Mr Recorder Hill QC said:

"We are satisfied on the evidence that we have heard, not only that the appellant has not discharged the burden, but we are satisfied so that we are sure that this device was operating accurately and that the appellant was exceeding the speed limit."

21. It seems to me that, in those circumstances, it is not properly arguable that if there was an error during the course of the judgment, it had any practical effect by the end, because those concluding words of the judgment make it clear that the court did in fact consider the case by reference to the criminal burden and standard of proof.
22. The second discrete matter, raised again in the course of argument before us today, is Mr Shrimpton's submission that the Crown Court failed to give effect to section 89(2) of the Road Traffic Regulation Act 1984 in that it proceeded on the basis that corroborative evidence was not required. Quite simply in my view, that subsection had no relevance to this case. It provides that a person shall not be convicted of a speeding offence, "solely on the evidence of one witness to the effect that, in the opinion of the witness, the person prosecuted was driving the vehicle at a speed exceeding the specified limit". In this case, there was the radar evidence, and the witnesses who expressed an opinion as to speed by reference to the photographs were not doing so purely by expressing an opinion based on their observations at the time but based on an examination of the two photographs to which I have referred.
23. Next, this court is aware that Dr Fielden in effect wishes to introduce fresh evidence at this stage. A significant part of this consists of telephone conversations which he held after the dismissal of the appeal with the prosecution witness Mr Janssen, to whom I have referred. Those conversations were recorded on tape. Mr Janssen did not of course know that they were being recorded, but it was not illegal to record them. Moreover, Dr Fielden assumed a false identity. He introduced himself on the telephone as Mr Andrew Perry who was one of the advocates for the respondent at the hearing of the appeal. Indeed, he introduced the conversation, this court having been provided with the recordings concerned, by saying that he, supposedly Andrew Perry, had received a fax saying that Mr Fielden was planning to appeal his case. This must have been a slip of the tongue, because this of course is not Dr Fielden's case, it is Mrs Fielden's case. Dr Fielden contends that during the conversations Mr Janssen said things inconsistent with the evidence that he gave at the appeal. Indeed, Mr Shrimpton has submitted that there is prima facie evidence of perjury here. It seems to me that before one could go as far as saying that there was prima facie evidence of perjury, one would have to engage in a very careful analysis of and comparison between the evidence which was given at the Crown Court and the content of the tapes. For my part, though it is not determinative of any part of my ultimate decision, I am not satisfied that there is in fact prima facie evidence of perjury. In any event, I would add that none of this affects the conclusions which I have expressed about this case so far and which I will express later in this judgment. Most of Mr Janssen's contributions to the bogus telephone calls on which it is now sought to rely, relate directly or indirectly to the measurement of the curvature of the road, which, for the reasons I have explained, ceased in my judgment to be relevant once it was established that the radar beam was applied to an entirely straight stretch of road; or the telephone conversations relating to the joint inspection, to which I have also referred, and which was attended by representatives of both sides and the result of which was a joint report to the court. Nothing in this additional material persuades me that it is properly arguable that the Crown Court made any error of law, exceeded its jurisdiction, or acted in a way in which no reasonable court could have done in dismissing Mrs Fielden's appeal on the basis of what, in my view, was in fact the clearest of evidence.
24. I turn now to consider the question of costs. A substantial order of costs was made, and when compared with the amount of the fine that was imposed in the Magistrates' Court and was not altered by the Crown Court, there would appear at first blush to be an element of disproportionality. There were clearly grounds on which to disallow some of the costs that the prosecution were originally claiming, it being true for example that substantial extra costs were incurred as a result of the inaccurate evidence of Mr Janssen as to the curvature of the 30 meter stretch of road to which I have referred, that being an inaccuracy that was subsequently accepted by the Crown. Having said that, the ensuing joint report, in my opinion, took away any merit in the road curvature point. The Recorder warned Mrs Fielden that costs were mounting, and in particular asked Mrs Fielden to review her position once the joint report with its joint measurements was available. However, even after the joint report had been received, the appeal was pursued with renewed vigour. The outcome was that the appeal was dismissed. I share the view of Munby J when refusing permission, that a simple case had been made exceedingly and unnecessarily complex. The Crown Court took into account the evidence given about Mrs Fielden's means and allowed the prosecution only a third of the costs that they had originally been claiming. It is not arguable, in my view, that the Crown Court acted unlawfully or unreasonably in doing so.
25. This, I appreciate has been a long judgment, particularly in the context of a renewed application for permission. I have sought to cover what appear to me to be the main issues arising. I have not referred separately to every one of the 27 grounds, or in fact, including costs, now 28 grounds, which have been raised before this court, but I have considered them all. In my judgment, no useful purpose would be served by directing the Crown Court to state a case for the consideration of the High Court. Indeed it has, in my view, given adequate reasons for its refusal to do so. Any appeal by way of case stated would be doomed to failure.
26. So many points have been raised on Mrs Fielden's behalf that it would be easy to overlook the unavoidable, and in my view critical point, that Mrs Fielden was rightly convicted, on the clearest of evidence, arising both from the radar and the photographic evidence to which I have referred. For those reasons I would refuse this renewed application.
27. LORD JUSTICE RICHARDS: I agree. The application is therefore refused.
28. MR SHRIMPTON: My Lord, in relation to the costs, there is clearly no application today. The learned Recorder, your Lordship referred to one third --
29. MR JUSTICE MADDISON: Yes.
30. MR SHRIMPTON: -- and that is right, but it is clear that he intended to order one third but in fact did not, he got the sum wrong. He ordered £15,000 when the request was £25,000. The learned Recorder says, and I will be corrected if I am wrong, in principle one third is right, but of course the amount awarded was £15,000. It is not clear where the Recorder's error is, was he intending to say four fifths, or three fifths, or is it just a simple miscalculation?
31. MR JUSTICE MADDISON: Can I refer you please to tab 4, fourth page, reference at the top to ground 17.
32. MR SHRIMPTON: My Lord, yes.
33. MR JUSTICE MADDISON: "The appellant was warned as to mounting costs and we made a reduction of two thirds to take account of the shortcoming".
34. MR SHRIMPTON: Thank you, my Lord. That was exactly the passage I had in mind. The point is, the reduction was not two thirds. The Recorder does not seem to have picked up -- with great respect his mathematics may not be his strong point, that is not a criticism of a lawyer -- he has not made the two thirds reduction. Since there is a doubt, in my submission it would proper for the court to vary the order, effectively under, if one likes, a slip rule, so that the order for costs reflects the intention of the court.
35. LORD JUSTICE RICHARDS: If there is an error, it is in the observations of the Recorder on the grounds of appeal. The conclusion of the court is clear in the judgment of costs that the order should be in the sum of £15,000. That was the considered decision of the court, if in putting in his reasons in relation to the grounds of appeal he has erroneously referred to two thirds rather than to some other percentage, that is where the error lies.
36. MR SHRIMPTON: Well, my Lord, the contrary argument is that he intended to reduce by two thirds but just got the sums wrong. I see I am not getting traction on that point here, and I concede there might be a jurisdictional problem, I will advise those instructing me to write to the Crown Court inviting them to vary the order, and the learned Recorder can then say whether he did intend to reduce £25,000 by two thirds or not.
37. MR JUSTICE MADDISON: It may be that at the top of page four on tab four, what the Recorder had intended to say was we made a reduction to two thirds rather than of two thirds, but he does say of two thirds.
38. MR SHRIMPTON: (Inaudible).
39. My Lord, just very quickly, my understanding, I will be corrected if I am wrong, because this is a criminal court and it is a two judge court, Mrs Fielden has now exhausted her domestic remedies and the next stage of proceedings will have to be Strasbourg. My understanding is that we cannot renew to the Court Of Appeal.
40. LORD JUSTICE RICHARDS: That is also my understanding.
41. MR SHRIMPTON: I raise it my Lord, (inaudible), we will proceed straight then to Strasbourg. Obviously those instructing me are now in touch with the authorities in the Netherlands, whether Mr Janssen is prosecuted in the Netherlands is an issue for them having regard to their jurisdiction because the offence took place in England rather than the Netherlands. Whether there is an application now to extradite Mr Janssen from the Netherlands is obviously a matter for the UK authorities and those matters will be pursued, as I understand it, by those who instruct me.
42. One final word about the question of who leads who, my Lord the court has not expressed any disapproval of an arrangement whereby counsel is lead by a solicitor --
43. LORD JUSTICE RICHARDS: The matter raised in that respect is irrelevant to the issue and we are not going to express any view.
44. MR SHRIMPTON: My Lord, yes.