Scottish High Court of Justiciary Decisons

MOHAMMED ASLAM PERVEZ v. PROCURATOR FISCAL, KIRKCALDY [2000] ScotHC 111 (8th December, 2000)

[1] The appeal in this case was heard along with an appeal by Stated Case by James Will Hogg, from the District Court at Selkirk. The cases were unrelated, and the appellants were separately represented. While similar issues arise in relation to both cases, there are significant evidential and factual differences, and it is appropriate to issue separate Opinions in the two cases.

[2] The appellant Mohammed Aslam Pervez appeared in the District Court at Kirkcaldy, on a complaint containing one charge. The charge was that, on 18 March 1999, on the A92 East Fife regional road, he drove a motor vehicle at a speed of 86 m.p.h. and 90 m.p.h., contrary to an order made in terms of sections 88 and 89 of the Road Traffic Regulation Act 1984. The matter proceeded to trial on 13 December 1999. Evidence was led for the Crown, but no evidence was led for the appellant. The appellant was found guilty as libelled. On 16 December he was fined £80, and three penalty points were ordered to be endorsed on his licence.

[3] The question in the case is whether the justice was entitled to convict the appellant. According to undisputed findings of fact, the appellant was driving his car at approximately 11.50 p.m. on 18 March 1999 on the East Fife regional road, between the Lochgelly interchange and the Kirkcaldy West interchange at a point where the road is a dual carriageway, with a speed limit of 70 m.p.h. He was seen by two constables in a police car, and followed. They maintained a distance of approximately 100 meters behind him, and "it was noted that the speedometer in the marked police car displayed a speed of between 86 m.p.h. and 90 m.p.h." He was stopped by the police at the Chapel exit from the regional road, and cautioned and charged with speeding.

[4] The two final findings in fact are as follows:

It is accepted by the Crown that finding 6 is essential to conviction.

[5] In the application for a Stated Case, seeking to bring under review the question of whether the Crown had proved, by corroborated evidence and beyond reasonable doubt that the appellant committed the offence, a large number of matters were raised relating to the equipment used by the police to measure the speed of the appellant's car, the accuracy of the method used to measure that speed, and the evidence given in relation to the prior checking of the accuracy of the police speedometer over a distance between two marked fence posts on a road known as the Standing Stane road between Kirkcaldy and Leven. Having regard to the way in which the application set out these matters, it would in our opinion have been more appropriate for specific findings of fact to have been made, dealing with that stage of events, to show the foundation for the inferential finding stated at finding 6. After the draft Stated Case had been issued, adjustments were proposed by both the appellant and the respondent, and a number of adjustments were made - in particular, in the justice's note on the evidence.

[6] In relation to finding 6, as it now stands, it was submitted by Mr. Sudjic for the appellant that there had been no corroboration of the measurement of the half mile distance on the Standing Stane road, and that accordingly the justice would not be entitled to hold that the speedometer was accurate. Evidence was given by the two police officers, Constable Muir and Sergeant Carrol as to their observations of the appellant and as to prior checking of the speedometer. The justice accepted the evidence of both of these two witnesses, which she found to be credible and reliable. No other evidence was given, and it is in the accepted evidence of these two witnesses that the foundation for finding 6 must be sought. It is worth noting that no certificate relating to the accuracy of the equipment used by the police to measure the speed of the appellant's vehicle was lodged by the prosecution in terms of section 280 of the Criminal Procedure (Scotland) Act 1995: such issues as may arise where such certificates are relied upon do not arise in this case, where the Crown relied upon the evidence of the two police officers alone.

[7] Constable Muir spoke to his own speedometer never displaying a speed of less than 86 m.p.h., and never more than 90 m.p.h., as he followed the appellant over approximately 21/2 miles. (He also said that when he noticed the appellant's car first, it was driving at a speed "which appeared to him" to be in excess of 70 m.p.h.; but there is no indication as to whether that impression was itself derived from what was displayed on the speedometer in his own car, and in any event the findings in fact turn on the speedometer alone). As spoken to by Constable Muir, the check on the accuracy of the speedometer is evidently quite simple. As we understand it, the car would travel at a maintained speed, shown on the speedometer as 60 m.p.h. The passenger in the car would have a calibrated stopwatch, which would be used to measure the time taken by the car to cover a distance between two marked posts. That was a measured distance of half a mile. If that distance was covered in 30 seconds, the speedometer was accurate. In chief and in cross examination, Constable Muir gave evidence on a number of matters, including the possible effect of tyre pressure and of reaction times. He also described how the stopwatches were calibrated. But the justice's entitlement to make finding 6 was not said to be undermined by evidence upon these matters. Nor was it suggested that when the check was carried out, the speedometer had not remained at 60 m.p.h. over the relevant distance.

[8] The issue relates to the distance between the posts. Constable Muir had not marked the posts himself. But he said that the half mile stretch had been measured with a steel tape. The justice goes on to narrate that he said "that he had seen this having been done for himself in the past", which is not perhaps entirely clear. However, it is later said that "he stated under further cross examination that he had used a steel tape which had been certified by trading standards to measure this half mile distance" and we did not understand it to be disputed that his evidence was indeed that he himself had measured the half mile between the posts with a steel tape.

[9] Sergeant Carrol confirmed that on following the appellant's car, the police vehicle maintained a speed of between 86 m.p.h. and 90 m.p.h. over 21/2 miles. That evidence was plainly based on what was shown on the police car's speedometer, and he said that the importance of checks had been made clear to him, with particular regard to calibrated speedometers, daily checks being required. He spoke to having checked this speedometer with Constable Muir that day. And the check which he described was the same - driving the police vehicle along the measured half mile at Standing Stane road at a steady speed of 60 m.p.h., while timing it with a stopwatch. His evidence covered a number of other matters which are not in point; but it is to be noted that he is not recorded as having given any evidence of having been involved in any measurements of any distances on the Standing Stane road. (It appears from the report of the hearing on proposed adjustments that it was agreed that the justice would insert a note to that effect in the Stated Case. That appears not to have been done. But the matter is clear).

[10] On behalf of the appellant, Mr. Sudjic submitted that it had not been established that the distance over which the speedometer was checked was indeed a half mile. For a check of a speedometer, it was essential to know not merely the time it had taken to cover the distance between the two posts, but what that distance was. The only evidence was of Constable Muir's measuring the distance, apparently in 1989, with a steel tape. But that was wholly uncorroborated. And measuring a distance on the ground with a tape merely transferred the question - was the tape itself accurate? There was no presumption that it was so, and no evidence that it was so. The accuracy of any given tape, like the accuracy of any given stopwatch, could have been the subject of evidence, but was not. Constable Muir's evidence was insufficient. The question in the case should be answered in the negative, and the conviction quashed.

[11] In responding to the submissions advanced on behalf of this appellant, and also the other appellant Mr. Hogg, the advocate depute made a number of relatively complex submissions, to which we refer in dealing with Mr. Hogg's case. It is not necessary to consider these in relation to the present case. In relation to the points taken by Mr. Sudjic, the advocate depute submitted that they were unsound. The offence was constituted by the speed at which the appellant had driven. There was corroborated evidence of that speed, if the accuracy of the speedometer in the police car was established by appropriate evidence. There was corroborated evidence that the speedometer had been checked by Constable Muir and sergeant Carrol, by the car being driven at a speed which the speedometer showed as 60 m.p.h., taking 30 seconds to cover the distance between the two posts. It was necessary to have evidence of what that distance was. And Constable Muir had given such evidence. That was sufficient: there was no need for each item in the Crown's case to be corroborated. There was corroborated evidence of guilt.

[12] On the specific question of whether Constable Muir's evidence could be taken as evidence that the distance between the two poles was half a mile, the advocate depute submitted that that was indeed its effect. In relation to any evidence regarding time or distance, a witness might merely be giving an estimate, or might be founding their evidence upon some means of measurement, such as a clock or a tape measure. It would be wholly absurd to suggest that wherever this was the basis of evidence, the evidence must be rejected unless the accuracy of the timepiece or measuring tape in question was positively established. That could lead to a completely unrealistic regress, if every check had to be checked. It was accepted that for this check upon the accuracy of a speedometer, the distance must be known with reasonable accuracy. But it had not merely been estimated, it had been measured. The tape had been described in terms which showed that it was likely to be accurate, with no indication that it was not. And although that was enough, it was of significance that this was a measured half mile which had been used very regularly over a substantial period, with no indication that its measurement might be wrong - which would be an obvious inference if vehicles with speedometers which otherwise appeared to be accurate took something over or above 30 seconds to cover this distance with the speedometer showing 60 m.p.h.

[13] We are satisfied that the distance between the two poles is not a matter which would require corroboration. And we are satisfied that Constable Muir's evidence as to the measured half mile was sufficient to establish that fact, without further evidence as to the accuracy of the tape. Past use of the same marked distance may suggest that inaccuracy might have emerged, but could not in our opinion establish accuracy, if Constable Muir's evidence had not been available and sufficient, as it was. In these circumstances, we answer the question in the case in the affirmative, and the appeal is refused.