APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice ClerkLord Mackay of Drumadoon Lord Philip
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XJ534/12
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL BY STATED CASE
by
JAMIE JAMES WILLIAMS
Appellant;
against
PROCURATOR FISCAL, PERTH
Respondent:
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Appellant: S Collins, solicitor advocate; Wilson McLeod
Respondent: A F Stewart, QC AD; Crown Agent
25 September 2012
[1] On 6 March
2012, at the Justice of the Peace Court in Perth,
the appellant was found guilty of speeding at 103 mph
on his motorcycle on the M90 Perth to Inverkeithing road on 15 May
2011; contrary to the Motorways Traffic (Speed
Limit) Regulations 1974, regulation 3 and the Road Traffic Regulation Act
1984, section 17(4).
[2] The
respondent led the evidence of two experienced police officers, who spoke to
their detection of the appellant's speed using a Unipar laser device. They were
both trained in the use of this particular device. They had used it frequently
in checking the speed of motorists. The officers said that they had tested the
device before setting out on patrol that day. This involved a range test and
an alignment check. The first officer stated that he believed that the device
was calibrated by the manufacturers annually and the second spoke to it being
licensed for police use. It had a sticker on it showing that its annual
calibration had been carried out. There was also a joint minute lodged, which
included a Home Office headed document called "Agreement for a Light Beam Speed
Measuring Device". This undated and unsigned document indicated that the
Secretary of State had intended to approve the Unipar device.
[3] The police officers
testified that they had observed the motorcycle approaching the flyover, where
they were positioned, at what seemed to be an excessive speed. On training the
Unipar device upon the motorcycle, a recording of 103 mph
was made. The police pursued the motorcycle at speeds of up to 110 and 130 mph
and stopped it.
[4] At the end
of the shift, the device was tested as before and satisfactory results were
obtained.
[5] At the
trial, the appellant had made a no case to answer submission based upon the
absence of evidence on the accuracy, calibration and type approval of the
Unipar device. At the appeal hearing it was accepted, as it was bound to be,
that there had been sufficient evidence of accuracy and calibration. The
primary question for this court was whether there had been enough evidence of
the approval of the Unipar device for the purposes of recording speed. In that
regard it was conceded that Mackie v Scott 1992 SCCR 614 posed
certain problems for the appellant (infra). Nevertheless, it was argued
that, standing the content of the Home Office document, the issue of whether
the device had ever been approved was contentious, and, if there was such a
problem relative to the authorisation, it would not be legitimate to draw an
inference from other facts and circumstances.
[6] The Crown
response was essentially one which founded on Mackie v Scott (supra)
and, in particular, the entitlement of the Justice of the Peace to infer
approval from the evidence: that the police officers had received training on
the use of the device; that it was used by the police on a daily basis; and
that it was being used to carry out checks on the speeds of all relevant
vehicles on the particular road.
[7] The court
considers that Mackie v Scott 1992 SCCR 614 is determinative of
this appeal. It is authority for the proposition that a court can infer that a
device has been approved by looking at all the facts and circumstances. There
was, first, the Home Office document, which certainly suggests that there was
an intention to approve the Unipar device. The court remains somewhat baffled
as to why the approval order was not simply produced, given that that could
have been done very quickly and easily. A copy can, for example, be downloaded
from the internet. Nevertheless, the existence of the document which was
produced, coupled with the evidence of the police that the Unipar device was in
regular use by them, that they had received training on it, and that it was
used generally on this road to check speed, was sufficient for the Justice of
the Peace to hold, as is indeed in fact the case, that the Unipar device is
approved.
[8] In all
these circumstances, of consent, the court will answer the second and third
questions concerning accuracy and calibration in the affirmative. It will
answer the contentious question four (on device approval) also in the
affirmative, the first question (on entitlement to repel a no case to answer
submission) in the negative and the fifth question (on whether the JP was
entitled to convict) in the affirmative. The appeal is therefore refused.
DL