Scottish High Court of Justiciary Decisons

JAMES WILLIAM HOGG v. PROCURATOR FISCAL, SELKIRK [2000] ScotHC 110 (8th December, 2000)

[1] This appeal was heard along with another appeal, from the District Court at Kirkcaldy. The cases were unrelated, and the appellants were separately represented. The appeals gave rise to similar issues; but there were significant differences of evidence and fact, and it is convenient to issue separate Opinions in the two appeals.

[2] The appellant, James William Hogg, appeared in the District Court at Selkirk on a complaint containing a single charge. The charge was that on 4 August 1999, on the A68 road between Lauder and Earlston Road, Galadean, the appellant drove a motor car at a speed of 87 m.p.h., contrary to an order made in terms of sections 88 and 89 of the Road Traffic Regulation Act 1984. The trial took place on 16 December 1999. On behalf of the Crown, evidence was led from two police officers. A submission was made in terms of section 160 of the Criminal Procedure (Scotland) Act 1995, which the justice rejected. No evidence was led for the defence. The appellant was convicted, and the justice fined him £250. He also imposed five penalty points. Two questions are stated. The first relates to the rejection of the submission. No separate question is asked in relation to conviction. The second question is whether the sentence of £250 fine and five penalty points was excessive. Leave to appeal was granted only in relation to one point, which relates to the first question only. The question relating to sentence is accordingly answered in the negative. We would mention also that while a certificate in terms of section 280 of the Criminal Procedure (Scotland) Act 1995 had been lodged, in relation to the accuracy of speed detection equipment, objection had been taken to that certificate, and the basis upon which the trial, and the conviction, proceeded was the oral evidence of the two police officers.

[3] According to undisputed findings in fact, on 4 August 1999 the two police officers were in a police car travelling northwards on the A68 between Lauder and Earlston. They saw a vehicle travelling southbound, and carried out a speed check using equipment with which their vehicle was fitted. The check was carried out over a distance of 0.29 of a mile, and indicated that the other vehicle was travelling at 87 m.p.h. The driver of that vehicle was the appellant.

[4] The justice makes a number of findings in relation to the equipment in question. It is described as the successor to the Visual Average Speed Computer and Recorder (VASCAR). Finding 2 states that it was tested by the two police officers at the beginning and end of the shift during which the equipment was used; and that for calibration purposes the vehicle was repeatedly driven between two set points on the A7 road at Ashkirk. Finding 3 is in the following terms:

Findings 4 and 5 state that the equipment "confirmed the set speed at which the vehicle was travelling", and that the police officers had used the same marked distance on numerous prior occasions to calibrate equipment of that type.

[5] The submission advanced at trial in terms of section 160 was made upon two grounds, of which the second is no longer in point. The first ground, however, was that there was no direct evidence from the Crown witnesses that the "measured half mile" was in fact an exact half mile: that was something which the Crown must show, and if it was not in fact an exact half mile, then any readings obtained from the equipment must be inaccurate. Correspondingly, the first question in the Stated Case is whether the justice was correct in rejecting the submission made under section 160 "that the police speed detection equipment could not be relied upon". In terms of the findings in fact, the finding crucial to this issue is to be found in the first sentence of finding 3, to the effect that the painted marks on the road "mark out the distance of half a mile".

[6] On behalf of the appellant, it was accepted that if this finding, that these marks mark out the distance of half a mile, was properly founded in evidence, then the justice had been entitled to reject the section 160 submission, and the first question in the Stated Case could properly be answered in the affirmative. But it was submitted that there was no foundation for this finding, and that accordingly the section 160 submission should have been upheld. The question in the case should accordingly be answered in the negative, and the conviction quashed.

[7] The justice does not include in the case any detailed narrative of the evidence given by each of the two police officers. However, in narrating the submission and the Crown's response to it, and in explaining his rejection of the submission, he refers to various aspects of the police evidence. We shall come to their evidence as to what they themselves did, when testing this equipment. But in relation to any prior physical measurement of the distance between the two painted marks on the road, it was evidently submitted by the appellant's solicitor that both police had conceded under cross-examination that they had never themselves measured the half mile. That does not appear to have been contradicted on behalf of the Crown; and the justice refers to "the Crown's failure to offer any direct evidence that the distance upon which the machinery had been calibrated was in fact a half mile." Parties' submissions to us proceeded upon the basis that neither of these police officers spoke, or could speak, to having measured the distance between the painted marks. Moreover, no evidence was led from any witness who had measured that distance, either when the painted marks were made or subsequently, or indeed prior to this trial, when it was known that there was objection to the certificate which had been lodged. The police had said in evidence that they had been told that it was a half mile, by the Council who would have measured it, and by somebody described as "the Officers' Inspector". But that was hearsay evidence, and did not apparently even derive directly from someone who had actually measured the distance personally. That was not a basis for finding that this was a correctly measured distance of half a mile.

[8] Thus far, these submissions appear to us to be well-founded: there was apparently no sufficient evidence as to physical measurement of the distance between the painted marks to justify a finding that they mark out the distance of half a mile. Where, in any particular case, the Crown seek to establish some particular distance, they may be able to do so by availing themselves of the statutory procedures relating to uncontroversial evidence. If they do not adopt that course, or if it is objected to by the defence, then they will require to establish the distance by appropriate evidence. And if they fail to do so, it will not do for them to suggest that they should not be required to do so. In the court below, and at some stages in the argument in this court, it was suggested that the defence submission effectively amounted to a requirement of the police to measure out the half mile in every single case. That does not appear to us to be the position. With the available procedures in relation to uncontroversial evidence, and the possibility of confirmatory measurement before trial, we are not persuaded that there would be any general problem of the kind suggested. But in any event, if the basis for seeking a finding of distance is that it has been measured, evidence to that fact will be essential.

[9] That is not, however, an end to the matter. Before the justice, the Crown appear to have adopted a simple, robust approach, asking the court to take a "common sense" approach, and hold that the police took all reasonable steps to ensure that their equipment was accurate. However, the justice adopts a rather more intricate form of reasoning, and in this court the advocate depute likewise suggested that simple measurement of the distance was unnecessary as a basis for holding that the equipment was accurate, and that the distance in question must have been half a mile.

[10] The justice had regard to the fact that one of the constables had said in evidence that both the police pilot system and the speedometer of the vehicle indicated that the distance was half a mile. He goes on to say that having regard to this, he found it so unlikely that the speedometer of the vehicle and the speed measuring equipment would both be inaccurate at the same time to the same extent that the possibility could quite simply be discounted. It was upon that basis that he decided to treat the speed detection equipment as reliable. He goes on to say that as the same distance had been used to calibrate equipment of that type on numerous occasions in the past, he considered that any inaccuracy in the distance between the two points would have been quickly detected, as the police would have been unable to calibrate consistently the equipment if there had been any such inaccuracy.

[11] In supporting that approach, the advocate depute drew our attention in particular to the second and third sentences of finding 3, which we have quoted above. At times, he appeared to be suggesting that with a distance "pre-fed" into the equipment, the accuracy of the marked half mile on the road did not matter. If that were so, it is not clear why the test should be carried out at that location, and in any event that would not justify the finding which is made in the first sentence of finding 3, which the justice apparently regards as established by working back from the police pilot system and the speedometer. We do not doubt that inferences may be possible where a number of tests at different speeds are carried out. But if, as we understand, the ordinary speedometer on this vehicle would itself have been calibrated over this same distance, we find it difficult to see how that would afford any guidance to what the marked distance was. In response to questions from the court, the advocate depute, perhaps understandably, moved from analysis and explanation of the material contained in the case into what was in effect evidence as to how this equipment works, and what is going on when material is either fed into it or derived from it. And apart from this being essentially new material, we do not feel that we derived from it any sufficient understanding as to how the distance against which the equipment was being tested could itself be a matter of inference from what the equipment showed.

[12] On the whole matter, we have come to the view that the distance between the two painted marks was not shown to have been measured as being half a mile, and that the fact that it was half a mile cannot be inferred from past use of that marked distance when calibrating other equipment or speedometers. Nor are we persuaded that the evidence mentioned by the justice provided a sufficient basis for inferring what the distance was, from what was done with, or shown by, the equipment or the speedometer at the time of the test by these police officers.

[13] We would emphasise that on the basis of the material before us, we do not feel able to make any general comment in relation to this particular equipment, and how its accuracy may be demonstrated. But upon the terms of this particular Stated Case, and the submissions made to us, we are satisfied that the first question in the case must be answered in the negative, and the conviction quashed.