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
		31 October 2012

1. MR JUSTICE SINGH: Permission to bring this claim for judicial review was granted after a renewed application by Wilkie J on 13 March 2012. The decision under challenge on the face of it is the refusal by the magistrates' court to state a case for the opinion of this court. In accordance with normal practice, the defendant has not taken any active part in these proceedings although it has sought to assist the court by providing relevant correspondence. The Crown Prosecution Service has played an active part in these proceedings as an interested party and opposes the claim for judicial review for reasons which will become apparent.
2. Before I turn to the specific facts of this case, it is important to remind ourselves of the appropriate approach which this court should take in cases of this kind. That approach was helpfully set out by Simon Brown LJ as he then was, sitting in the Divisional Court with Turner J, in Sunworld Limited and Hammersmith and Fulham London Borough Council [2000] 1 WLR 2102.
3. At page 2106, Simon Brown LJ set out the relevant principles in the following way, where it is sought to claim judicial review against the refusal by either a magistrates' court or the Crown Court to state a case for the opinion of the Divisional Court:

"Although it is impossible to lay down principles which will apply in every case, and this court should retain flexibility to deal with unusual situations as they arise, I would suggest the following approach.

(1) Where a court, be it a magistrates' court or the Crown Court, refuses to state a case, then the party aggrieved should without delay apply for permission to bring judicial review either

(a) to mandamus it to state a case and/or

(b) to quash the order sought to appealed.

(2) If the court below has already

(a) given a reasoned judgment containing all the necessary findings of fact and/or

(b) explained its refusal to state a case in terms which clearly raised the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all.

(3) If the court below has stated a case but in respect of some questions only, as here, the better course may be to apply for the case stated to be amended unless again, as here, there already exists sufficient material to enable the Divisional Court to deal with all the properly arguable issues in the case.

(4) This court for its part will adopt whatever course involves the fewest additional steps and the least expense, delay and duplication of the proceedings."

4. For reasons that will become apparent in the course of this judgment, I have come to the firm conclusion that not least in the interests of avoiding unnecessary expense, delay and duplication of proceedings, the appropriate course for this court to take would be to deal with the substance of the real dispute which has emerged before us, rather than to grant the claim for judicial review in any formal sense and to send it back to the magistrates' court for a case to be stated.
5. The factual background of the case can be summarised as follows. The allegation before the magistrates' court against the present claimant was that he had been speeding. The information alleged that on 14 January 2010, the claimant had driven his car on a restricted road at a speed exceeding the speed limit applicable which was 30 miles per hour, contrary to sections 81 and 89 of the Road Traffic Regulation Act 1984. The trial eventually took place before the magistrates' court on 14 March 2011 and evidence was given on behalf of the prosecution by PC Venney, a camera technician.
6. It is clear from the notes taken of the proceedings by the legal adviser to the magistrates which is before this court, that in his evidence PC Venney did produce records of what a device known as a Gatso or Gatsometer had displayed at the time in question. In particular, there were photographs which he produced before the court, so we are told, and as recorded in the notes of the adviser which had, on their face, a marking that the speed recorded was 40 miles per hour.
7. PC Venney gave evidence before the magistrates that the Gatso concerned was a device of a type approved by the Secretary of State. It had been activated on a stretch of the A240 on 14 January 2010. In addition, he had carried out a secondary check as it was known by reference to two images recorded by the Gatso which he viewed on a computer screen. Using those images, he could see if the vehicle had passed a number of white lines on the road which were, he believed, 2 metres apart. The secondary checks suggested the speed of 40 miles per hour also. PC Venney produced photographs representing the images recorded by the device. He said that the quality of those photographs was lower than the quality of the images he observed on the computer screen.
8. Finally, he gave evidence that he did not himself visit the scene nor had he measured the distance between the white lines. There was also expert evidence called on behalf of the prosecution given by Stephen Langdon. He had examined the photographs exhibited by PC Venney. He accepted that the quality of the images were "not the greatest" but said that he had been able to establish from the photographs that the vehicle was travelling "between 36 to 44 miles per hour but most likely 38 miles per hour." He added that it was "inconceivable" that the vehicle was travelling at a speed less than 30 miles per hour.
9. However, he conceded that his calculations were based on an assumption about the distance between the white lines. He accepted that he had not visited the site to make any measurements himself and he added that he had assumed the distance between each mark to be 2 metres because he had been told this was the case. I interpose to remark that that is the "hearsay evidence" in the present case as it has become known. In the course of his cross-examination, Mr Langdon said that the distance between the lines varied depending on the police force concerned and could be either 2 metres or 5 feet.
10. I would make reference at this juncture to a passage in a judgment by Smith LJ sitting in the Divisional Court in Griffiths and DPP [2007] EWHC 619 [Admin] at paragraph 37, because what is helpfully set out there is the two different methods which a device of this type uses in order to measure the speed of a car.

"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 would be different from that of the transmitted signal and the difference between the two is the function of speed of the approaching vehicle. The device is able to calculate 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 would there be 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 second because if the camera are not correct, it would be an extraordinary coincidence as a result of the two checks independently carried out, should turn out to be the same."

11. In the skeleton argument filed on behalf of the Crown Prosecution Service in this court at paragraph 12, it is conceded that the evidence given by PC Venney and Mr Langdon about the secondary check was inadmissible for the purpose of proving the speed of the car. To that extent, it is accepted that it was inadmissible hearsay evidence.
12. Before the magistrates' court, the claimant himself gave evidence. He also called on his behalf evidence from an expert witness called Robert Finch. Mr Finch said that the photographs were of insufficient quality for him to be able to conduct a secondary check. The justices convicted the defendant. In their reasons they stated a follows:

"We have heard that the Gatso equipment was working correctly and have no evidence to the contrary. Mr Seroka has challenged the quality of the photographs as inadequate basis that a secondary could be performed and their admissibility. Both experts agreed that the quality of the photographs was poor and Mr Finch said he would not undertake any analysis based on them. But it is the case that the secondary check was carried out by Mr Venney using images on a computer which were of a higher quality than the photographs. The purpose of the photos supplied to Mr Seroka and shown in court was never to form the basis as a secondary check.

We accept Mr Langdon's evidence that the photos were good enough to give a minimum speed of 38 miles per hour based on his expertise and experience in this field. While we do not doubt that Mr Seroka believed that he was not speeding, given the evidence of the Gatso camera, the secondary check and Mr Langdon, we find the case proved beyond a reasonable doubt."

13. On 1 April 2011 the claimant applied to the magistrates' court to state a case for the opinion of this court. The question was:

"Were we right to admit the hearsay evidence that the road markings were 2 metres apart when the alternative possibility of 3 feet would have vindicated the defendant's case?"

That application was refused. No reasons for the refusal were given at that time. The claimant was notified of that decision in a letter from the legal adviser dated 14 April 2011.

14. By a letter dated 3 May 2011 the claimant asked the magistrates to reconsider their decision. He posed a different question:

"Would a properly directed bench convicted the defendant on the basis of two submissions and spacing of the lines though one favours the defendant and one the prosecution and no further measurement is possible because the lines no longer exist?"

Upon consideration of the claimant's request, the magistrates' decision remained the same.

15. The claimant was notified of this decision by a letter from their legal adviser dated 12 May 2011. The magistrates issued a certificate of refusal dated 11 May 2011 stating that they were of the view that the application for a case to be stated was frivolous.
16. I turn to the material legislation. The claimant relies upon the provisions of section 20 of the Road Traffic Offenders Act 1988 which provides a statutory procedure by which evidence from "prescribed devices" may be admitted into evidence for the purpose of proving the allegation of speeding. A prescribed device means a device of the description specified in an order made by the Secretary of State: see section 20(9). In the present case, there is no dispute that the device concerned was such a device approved by and made by the Secretary of State.
17. Section 20(1) provides that.

"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 prescribed device and

(b) in the same or another document a certificate as to the circumstances in which the record is produced and signed by a constable or a person authorized by or on 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 provision of this section."

18. Section 20(4) provides that.

"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 condition subject to which the approval was given is satisfied."

As section 20(5) makes clear, the approval may be "Subject to conditions as to the purposes for which and the manner and other circumstances in which, any device of the type concerned is to be used."

19. I turn to the factual background so far as it relates to the approval of the type of Gatso device with which we are concerned. Initially that approval was given by the Secretary of State on 24 June 1992. That approval was subsequently modified on 8 November 2000. By that modification it was made clear that the approval was subject to the condition that the device should be used to obtain evidence only in connection with the enforcement of the speed limits of 30 miles per hour or above. Of course, on the facts of the present case that would be satisfied.
20. On 11 October 2000 shortly before the amended approval was granted, the Secretary of State entered into an agreement with Serco Limited, the agents who manufacture the Gatso device. Clause 11 of that agreement in turn directed attention to the schedule.
21. In that schedule one of the terms related to checking of the operation of the equipment said to be from two photographs. It is submitted on behalf the interested party before this court that what is significant, for present purposes, is that the only conditions which were attached were to be found in the approval or its modified form.
22. It is also submitted that any reference to being able to do to a secondary check was only to be found in a separate agreement between the Secretary of State and Serco. Further, it is submitted, that all that the requirement in that agreement itself related to was whether the equipment as such was by its nature and in principle capable of performing the kind of check that was referred to in the agreement. It is submitted that it was not intended to nor did it have the effect of requiring that it had to be shown on the facts of a particular case that on the ground, as it were, two photographs were indeed of the sort that would corroborate a particular speed a particular person was said to have done.
23. During the course of the proceedings before the magistrates' court, it was would appear the claimant made a submission to the effect that the requirement which I have outlined was indeed a "condition" within the meaning of section 20(5) of the 1988 Act. He submitted that unless the operation of the equipment was checked in the manner prescribed, the equipment could not be regarded as having been approved by the Secretary of State. He submitted that it would therefore follow that the primary evidence was inadmissible.
24. In response on behalf of the interested party, it is been submitted to this court that the primary evidence of the Gatso device itself was indeed admissible for the following different reasons in the alternative. First, it is submitted that it was not a condition of the approval given by the Secretary of State that the primary evidence should be capable of being checked by a way of secondary check. It is said that the approval itself was given subject only to one condition namely, the device was only to be used to obtain evidence in connection with the enforcement of speeds of 30 miles per hour or above and that that condition, as I have said, was satisfied in the present case.
25. Secondly, it is submitted that even if the requirement of checking was a condition of the approval, that condition was satisfied in the present case. As I have indicated, the submission is that the machine itself was capable of delivering the kind of measurements which the agreement of Serco required it to do. It is submitted that that finding is not affected by the fact the distance between the lines in this particular case was not in fact known.
26. Thirdly, it is submitted that in any event the question of whether or not a device is of a type approved by the Secretary of State, only becomes relevant when the prosecution seek to rely on the evidential procedure contained in section 20 of the 1988 Act. In the present case it is submitted the prosecution did not in fact seek to rely on that procedure at all. Rather it is submitted that PC Venney produced the Gatso record as real evidence. It is submitted on behalf of the interested party that section 20(1) does not provide an exclusive procedure by which evidence of a record produced by a prescribed device may be given in evidence.
27. To analyse that submission in more detail, it is important to refer to some of the authorities which have been drawn to our attention. The first principal authority that Mr Hays on behalf of the CPS relies on is DPP and Thornley [2006] EWHC 312 (Admin) in particular at paragraphs 9, 10 and 15 in the judgment of Owen J with which Hallett LJ agreed. He said at paragraph 9 and 10 so far as material:

"It therefore is necessary to consider the proper construction of section 20(1) and (8). In my judgment it is permissive and does not exclude the possibility of evidence of the record produced by the prescribed device being adduced in another way.

10. In my judgment the provision have the same effect of section 10 of the Road Traffic Act 1972 as substituted by section 16 of the Road Traffic Offenders' Act which makes provision for the admission of the printout produced by a device for measuring breath alcohol levels. The effect of section 10 was considered by the court in Garner and Director of Public Prosecution in [1990] RTR 208, in which, following Castle v Cross [1984] 1 WLR 1372, the court heard the admissibility of the statement automatically produced by the device (commonly called the printout) did not just arise from the Road Traffic Offenders' Act 1988, section 16, and that the statement itself was an admissible document and represented real evidence if properly produced. The court held that the purpose and effect of section 10 is to enable the printout, together with an appropriate certificate, to be tendered at the hearing and to be capable of establishing the facts stated in it without necessity of anybody being called."

Owen J said at paragraph 15.

"…the purpose and effect of section 20 is to enable the record and certificate to be tendered in evidence at the hearing without the necessity of anybody being called to prove them but section 20 does not preclude such evidence being called in the conventional manner."

By the "conventional manner", Owen J meant producing records in oral evidence by a live witness. That is precisely what happened in the present case before the magistrates' court.

28. Moreover, Mr Hays submits that in the absence of any evidence suggests the Gatso was not working correctly, the evidence was compelling. He draws our attention to that part of the magistrates' reasons which expressly made such a finding as to the workings of the Gatso concerned.
29. Accordingly, it is submitted by Mr Hays that the issue raised by the claimant in the present application as to the admissibility of certain hearsay evidence, in fact had no material bearing on the admissibility of the record produced by the Gatso device. The record he says showed the claimant was speeding and the justices accepted the evidence of the record. In those circumstances, he submits the claimant was properly convicted and this claim for judicial review should be dismissed, not least because it would serve no practical purpose.
30. For my part, I would accept the submissions made on behalf of the CPS but only to an extent. I do accept that for the reasons essentially advanced by Mr Hays that section 20 of the 1988 Act does not provide an exclusive procedure whereby evidence of the record of the Gatso device could be adduced. So much is clear from the authorities which I have already summarised. In this case, there was live evidence producing the relevant records by PC Venney and that was admissible in my judgment without recourse to the certificate procedure which is laid out in section 20.
31. What that procedure does is to obviate the need in many cases for a live witness to have to come to court at all. That was not however the procedure that was relied upon in the present case. Much of the argument therefore that apparently took place before the magistrates' court and to some extent before this court, was not strictly speaking therefore necessary.
32. In my judgment, Mr Hays is correct to submit that that rule of the common law allows such evidence to be admitted because it is real evidence and not hearsay evidence, and does not depend on there being a condition complied with in the approval granted by the Secretary of State. That reference to conditions attached to approvals only comes into issue if it is the section 20 procedure which the prosecution rely upon and need to rely upon. But in any event, insofar as section 20 did need to be relied upon in a case of this sort, I also accept the submission made by Mr Hays that the only condition which was attached to the Secretary of State's approval for the device in question here was the condition in 2000 that the device should only be used for measuring speeds of 30 miles per hour or above. I would accept his submission that the contents of the agreement with Serco did not impose a "condition" within the meaning of section 20(5) of the 1988 Act.
33. However, if that were wrong, I would also go on to accept the submission made by Mr Hays that in any event the requirement in that agreement was in fact complied with. It was not breached. This is because what the requirement related to was the nature of the device and what it was capable of measuring in principle. I accept Mr Hays' submission that it did not then have to be proved that a secondary check was in fact done on the facts of a particular case in order to corroborate the primary evidence produced by the record of a device itself.
34. So far as I have said, I would be prepared to accept the submissions made by Mr Hays on behalf of the CPS. Where with respect to his submissions I disagree, is when it comes to the consequences of all of this. It seems to me, that the consequences have to be as ascertained by reference to the reasons which the justices themselves set out in their written statement of reasons dated 14 March which I have already cited at length.
35. It seems to me that on a fair reading of those reasons as a whole, it is impossible to say that the justices did not place at least some reliance upon the evidence which was known as the secondary check and also Mr Langdon's evidence. As I have already said in quoting from their reasons, when the justices referred to Mr Langdon's evidence, they specifically included reference to his evidence that the photos were good enough to give a minimum speed of 38 miles per hour.
36. Taking into account the particular way in which it was expressed in the final paragraph of the justices' reasons, it seems to me that they were relying on all of the matters which they set out, and I quote again: "Given the evidence of the Gatso camera, the secondary check and Mr Langdon, we find the case proved beyond a reasonable doubt."
37. It may well be, as Mr Hays submitted to this court, that the background reason why so much of the time of the magistrates' court was taken up with the question of what became known as the secondary check, was because the prosecution wished to rebut any suggestion on behalf of the present claimant that it was not possible to perform a secondary check. It may well be, therefore, that the background reason why this all became raised was because the submission was being made by Mr Seroka, the claimant, that a "condition" within the meaning of section 20(5) of 1988 Act had not been complied with.
38. As a matter of law, as I have already indicated, that submission may well have been one that would lead the claimant in fact nowhere. The difficulty, in my judgment, is that the reasoning which the justices adopted does not make it clear that they would necessarily have convicted this defendant, if the only evidence before them had been -- being called before us the primary evidence -- the records produced by the Gatso equipment and no more. They expressly referred to a number of other features of the evidence before them and expressly, in my judgment, relied upon those other pieces of evidence in reaching their conclusion in the final paragraph of their reasons.
39. Accordingly, I have come to the conclusion that it would not be possible for this court to say that this conviction is safe. Accordingly, having regard to the practical recommendations made by Simon Brown LJ in Sunworld which I cited at the beginning of this judgment, it would appear to me that the appropriate and just course for this court to take would be as follows:

1) I would grant the claim for judicial review but not on the express ground that actually is raised to date before this court.

2) It would be unnecessary and expensive in my view to require a case to be stated.

3) It seems to me the practical way forward is for this court to grant the claim for judicial review on a broader basis, that the conviction at the end of the day is one which is not safe and accordingly must be quashed.

40. For those reasons I would grant this claim for judicial review and make the order which I have proposed.
41. LORD JUSTICE ELIAS: I agree.
42. MR HAYS: My Lord, there is one slip and it is my fault because of what was contained in my skeleton argument. When my Lord was dealing with the distance between the lines, you indicated 3 feet.
43. MR JUSTICE SINGH: Should I have said 5?
44. MR HAYS: Yes.
45. MR JUSTICE SINGH: I see 5 as well in the papers.
46. MR HAYS: That was my fault.
47. MR JUSTICE SINGH: We will correct that in the perfected judgment.
48. MR HAYS: Thank you very much.
49. LORD JUSTICE ELIAS: Could I just add your submissions if I may say so were of conspicuous quality and assist us greatly even though you did not (Inaudible).
50. MR HAYS: Thank you very much.
51. MR SEROKA: My Lord, is it appropriate that I make an application for costs?
52. LORD JUSTICE ELIAS: What cost have you suffered?
53. MR SEROKA: There was the cost of the original penalty at Redbridge Magistrates of £1,000. There were various other copying costs, travel costs, other subsistence costs. I do feel that the levy on me was disproportionate to the level of criminality and I had £1,000 penalty placed on me.
54. LORD JUSTICE ELIAS: What was £1,000 penalty?
55. MR SEROKA: It was costs for the expert witness and I have my own experts witness costs as well to recover which was £250. I would summarise I have costs, if I round it all up probably £1,500 mark.
56. LORD JUSTICE ELIAS: They must be entitled to their cost below and such costs as they have incurred again which would not be very high.
57. MR HAYS: My Lord, the point that Mr Seroka raises about the costs order that was made against him in the court below, falls away because it was contingent on the conviction. I think that was one of the points that he was making that he wished to appeal the order for costs against him in the court below.
58. LORD JUSTICE ELIAS: I see. You had an order for costs against you from the court below?
59. MR SEROKA: Yes, sir.
60. LORD JUSTICE ELIAS: Well, that would have to be quashed as well.
61. MR HAYS: Yes.
62. LORD JUSTICE ELIAS: Have you paid those?
63. MR SEROKA: Yes, I paid everything.
64. LORD JUSTICE ELIAS: Sorry?
65. MR SEROKA: I have paid all of those costs, yes.
66. LORD JUSTICE ELIAS: That would have to be quashed.
67. MR SEROKA: And the various appeals fees for the judicial reviews and the various court fees as well, I had to pay and paid them.
68. LORD JUSTICE ELIAS: I thought he would have to have what he has paid returned and his own costs for the proceedings below and such relatively nominal costs that he has incurred on this hearing. I hope you can agree with that otherwise we will have to.
69. MR SEROKA: No, the cost recovered are going to be, they are not extortionate. They are just the monies that I had to pay out.
70. LORD JUSTICE ELIAS: I am sure. If you can provide details.
71. MR SEROKA: I can provide documentation. Thank you my Lord.
72. LORD JUSTICE ELIAS: Are you content with that?
73. MR HAYS: My Lord, I regret to say that I have not looked up the cost provisions for this, but would it not a defendant's cost order to be paid out of the central funds?
74. LORD JUSTICE ELIAS: I am just wondering the same thing. Whether that would be so in relation to the costs he has paid out already.
75. MR HAYS: Well that my Lord, there is no difficulty in relation to that because plainly there can be no costs order against him where there is no conviction upon which the costs order can be made. That will be resolved as a matter of course and of course, any costs that he has paid to the CPS will have to paid back. He is making a separate point in connection with the costs that he has incurred. Certainly, in the court below that would be a defendant's cost order.
76. LORD JUSTICE ELIAS: The principle is probably should be here.
77. MR HAYS: I am sorry.
78. LORD JUSTICE ELIAS: In principle it probably should be here.
79. MR HAYS: Yes.
80. LORD JUSTICE ELIAS: That does sound right. We will rise for five minutes to see if we can finalize it.
(A short adjournment)
81. LORD JUSTICE ELIAS: Yes, you are quite right. I will deal with the judicial review which it is but in a criminal matter. So it is the defence costs order out of central funds and you identified the costs you suffered. If and insofar as you paid money to the CPS draft from central funds, because they will have to pay them back. The principle is that you will get your money back and you will get the costs of below and you will get a small amount for representing yourself here. I don't know what the figures are. (Inaudible).
82. MR SEROKA: Thank you my Lord.