England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		30 June 2010

1. MR JUSTICE MITTING: On 27 May 2009 an information was laid by the Chief Constable of Derbyshire Constabulary against the appellant, that on 29 March 2009 at Leanlow he had driven a motor car (a Porsche) on the A515 at a speed exceeding 50 miles per hour. The information was laid under local orders and under sections 84 and 89(1) of the Road Traffic Regulation Act 1984. The case was heard by the District Judge on two days (5 October 2009 and 9 November 2009).
2. The District Judge found the following facts. On 29 March the appellant had driven his Porsche motor car on the A515 road at Leanlow at an average speed of 103.37 miles per hour over a distance of .259 miles as measured by a Police Pilot Device. He also found that the speed limit on the road was 50 miles per hour as provided in the Local Government Order.
3. The case was proved by the evidence of, amongst others, PC Shaun Downing, who, in a document tendered under section 9 of the Criminal Justice Act 1967, stated that he had calibrated the Police Pilot instrument, used by reference to points along the road, either one mile or half a mile apart. The admissibility of that statement was at the heart of the submissions made to the District Judge and of this appeal.
4. A subsidiary point taken before the District Judge, but no longer taken in this appeal, is that the Local Government Order establishing the 50 mile an hour speed limit on that section of road was not properly authenticated by a certificate. Because that ground of appeal is no longer pursued, I need make no further reference to it.
5. The stated case records the appellant's contentions:

"(i) The copy statement under section 9 which had been served did not bear the signature of the maker of the statement.

(ii) Section 9(2)(a) requires the statement to be signed, and section 9(2)(c) requires a copy of it to be served on the other party.

(iii) Rule 27.1 Criminal Procedure Rules 2005 requires the written statement to be in a form which includes the signature of the maker.

(iv) The version served on the appellant was therefore not a copy of the original; the appellant was not in a position to accept it or reject it; and accordingly the original statement was not admissible."

6. The District Judge went on to set out his reasons for ruling that the statement was admissible:

"(i) It was proper for me to have regard to the history of the case. On 5 October 2009 I had ruled that proof of the measurement of the measured mile was essential if the respondent wished to rely on it and the appellant did not accept it. I felt that the defence had not given adequate notice in accordance with the Criminal Procedure Rules, that this was one of the issues in the case. I accordingly adjourned the case, following a submission of no case to answer on this point for the respondent to have an opportunity of establishing that the pre-measured distance was indeed a mile.

(ii) The respondent served the copy statement (unsigned) on the appellant's solicitor on 23 October 2009. On 5 November 2009 the appellant's solicitors had written to the respondent indicating, 'We have noted that it was not signed and therefore we are not in a position to agree it s.9'. That letter had not reached the respondent's file on the resumption of the trial on 9 November 2009.

(iii) I allowed the appellant's solicitor an opportunity to check the served unsigned copy against the original. It was acknowledged that there were no substantive differences, albeit the original statement was dated October 2009, and the unsigned copy January 2009.

(iv) I ruled that there may have been a technical breach of the requirements of section 9 and rule 27, but if there were such a breach it in no way prejudiced the appellant, and I was entitled to ignore it.

(v) I did not regard the letter of 5 November 2009 from the appellant's solicitors as a notice of objection to the statement being tendered in evidence, under section 9(2)(d). Even if it were, it had not been sent in due time.

(vi) Accordingly, I exercised my discretion to admit the statement in evidence."

7. Before me, Mr Ley, who appears for the appellant, raises an additional ground not canvassed before the District Judge and not the subject of any observation in the stated case, namely that the documents served, which bore the statutory declaration on its first page, referred erroneously to only two pages, each signed by the maker of the statement, whereas in fact there are three, both in the document served on the appellant's solicitor bearing the January date, and in the signed document dated 19 October 2009, which was the one that was admitted in evidence by the District Judge.
8. I deprecate the taking of points of that kind in this court on an appeal by way of case stated when not canvassed at first instance. I will rule upon it, but I do so without acknowledging the propriety of the step taken by Mr Ley, and simply to demonstrate what the answer to the point is.
9. As far as his first point goes, it is necessary to set out the relevant provisions of sections 9(1) and (2) of the Criminal Justice Act 1967, which provide:

"(1) In any criminal proceedings, other than committal proceedings ... a written statement by any person shall, if such of the conditions mentioned in the next following subsection as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.

(2) The said conditions are—

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true;

(c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and

(d) none of the other parties or their solicitors, within seven days from the service of the copy of the statement, serves a notice on the party so proposing objecting to the statement being tendered in evidence under this section ..."

10. It is necessary to determine what Parliament meant by "statement". In my view, it is perfectly clear that what Parliament meant by "statement": the written assertion of facts made by the person who signed the document. "Statement" does not simply therefore mean document. If what was required to be served was an identical copy of the document, then there might be some force in Mr Ley's submission. But if what is required is that the written assertions of fact were contained in a document in identical terms to those in the document admitted in evidence at the trial, then the point goes. The words of the two documents, apart from the date, were identical. The date was immaterial.
11. The earlier dated document contained identical words to the later dated document. Applying the test posed by the Divisional Court in Chief Constable of Surrey v Wickins [1985] RTR 277 at page 281F, "Is that a copy of the certificate which you signed?", the answer is plain: the one statement is plainly a copy of the other. That authority also establishes that the fact that a document containing the copy statement was not signed is immaterial for precisely the same reason.
12. The answer to the question posed in the stated case, "Was I entitled to admit in evidence the statement under section 9 Criminal Justice Act 1967?" is therefore "yes". I would add by way of addendum to that answer that the District Judge did not have to go on to consider, as he did, whether there had been a technical breach of section 9, because there had been no breach.
13. I deal now with Mr Ley's second point. In Paterson v Director of Public Prosecutions [1990] RTR 329, evidence was given by means of a section 9 statement which contained a number of defects. Importantly, the statutory declaration did not correctly encompass all of the pages of the document upon which the prosecution relied. Because it did not comply with the statutory conditions, the Divisional Court held that it was inadmissible.
14. In determining whether or not the erroneous reference to two rather than three pages undermined the validity of the declaration made on the first page, it is necessary to have in mind exactly what Parliament provided that the declaration must contain. The provision is that "the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief etc". This statement contained exactly that provision. The fact that it misidentifies the number of pages in the statement is neither here nor there. There is no doubt whatever what statement the declaration referred to. It referred to a statement contained in a document of three pages, each of which was signed by Mr Downing. No one would have any difficulty in ascertaining what statement Mr Downing was making, the truth of which he was certifying. For that simple reason there is no force in Mr Ley's second point. There would be no good purpose in my remitting the case to the District Judge for him to state a question on that point. It is a bad one.
15. For those reasons, this appeal is rejected.