Appellant: Ogg, Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: Erroch, Advocate Depute; Crown Agent

7 August 2013

[1] On 25 July 2012 the appellant was driving a grey BMW, registration number SB12 UHO, on Glasgow Road in Kilmarnock. Two police officers, using a speed check device, noted his speed as 87 mph in a 40 mph zone. Evidence was led before three justices of the peace. The appellant was convicted of a speeding offence, fined £700 and disqualified for nine months.

Appeal against conviction: Ground of Appeal 1

[2] In the appeal against conviction, Miss Ogg for the appellant argued that there was insufficient evidence that the speed check device (a Unipar SL70264) was within calibration and working properly. Reference was made to Cox v McGowan 2011 SCCR 265. As was set out in the stated case, it was contended that: first, there was no evidence of the date when the speed check device was due for its annual calibration check; secondly, there was no evidence of the distances which the two officers obtained when carrying out checks on the device before and after their period of duty; thirdly, there was no corroboration about the TXi function of the police radios; fourthly, there was no corroboration that the device was aimed at the appellant's car; fifthly, there was no evidence that the device was operated correctly at the locus. We should say that the third and fourth points in the stated case were not rehearsed in the submissions before us today.

[3] In considering the issues raised by the appellant, the justices helpfully set out a precis of the evidence which they had heard from two police officers and that can be found at pages 8 to 10 of the stated case. We quote from these pages as follows:

"We were satisfied that the officers carried out, and witnessed, the necessary checks before and after the tour of duty. Both officers described to us in some detail the distance and alignment checks carried out. Both referred to the fixed distance used for the distance check as 20.8 metres. We accept that it may have been desirable for them to note the actual distances measured by them, however this was not necessary as both confirmed that the measurements taken were within tolerance. At this stage we require to take the evidence we have heard at its highest. Consequently both officers stating that the measurements were within the tolerances allowed was sufficient. The alignment checks were also explained to us in detail and nothing appeared out of the ordinary with these, inferring that the device was operating correctly. Finally the agent drew our attention to the calibration certificate, inviting us to conclude there was no evidence that the device was within calibration. Both officers explained the device would have a sticker attached to it indicating when it required to be calibrated. Both checked this sticker, and were satisfied the device was not due for calibration, so proceeded to use it in their duties. Both were quite adamant that if the device was not within the time period allowed, they would not have used it. Once again it may have been useful if they had noted, or could tell us, what the expiry date was for the calibration. It is however our view that at this stage we require to take evidence at its highest, and we have here two officers saying that the device was within calibration, with nothing to contradict that. For these reasons we were satisfied that the appropriate checks were carried out based upon the test we require to apply at this time.

Our attention was then directed to whether the device was operating correctly at the locus of the alleged offence. We had evidence from two experienced traffic officers that they were located at the bell mouth of the junction, had clear line of sight of the accused's vehicle, which was the only vehicle on the road at that time. Both officers were of the view it was travelling in excess of the speed limit, and PC Thomson then targeted the vehicle with the Unipar device and detected a speed of 87 mph. Various alternative propositions were put to the witnesses by the defence, including that they were not at that location, that they were using the device through a hole in the hedge, that it may have been distorted by reflecting off roadside signage. The officers remained firm in their description of events, and accepting their evidence at its highest, we are satisfied that the device was operated correctly at the locus."

[4] We should add that in her submissions to us today, Miss Ogg also pointed out that there was no evidence about the two police officers' road traffic experience, no evidence that the speed check device had any internal checking system and, in conclusion, while accepting that this was a narrow point, submitted that there was not sufficient evidential detail such as was contained in the case of Cox. There was simply an insufficiency of evidence.

[5] We agree with the justices that there was indeed sufficient evidence to justify the rejection of the submission of "no case to answer" - that is, in relation to the working of the device both at the roadside and after the incident - for all the reasons which the justices gave. We would add that not every adminicle of evidence in a charge such as this requires corroboration. We should also add that the case of Cox v McGowan gave a certain extent of factual detail which is not necessarily required in every case. Each case must be decided on its own facts and, in our opinion, the crucial elements in the charge were fully proved in this particular case. Accordingly, we answer questions one and two of the stated case in the affirmative and we refuse the first ground of appeal.

[6] The second and third grounds of appeal were not insisted upon, and accordingly questions three and four in the stated case do not require to be answered.

Appeal against sentence: Ground of Appeal 4

[7] In the appeal against sentence, Miss Ogg contended that the solicitor representing the appellant should have been permitted an opportunity to make submissions about disqualification. In any event, the period of disqualification imposed was excessive. Factors put before us today included the fact that the appellant was a self-employed garage owner, he had an MOT qualification, he had three employees and, if the appellant were to be disqualified, the VOSA would have the right to remove his MOT testing authorisation. That would require him to close down his business; it would be a loss of work for three employees; it would be undue hardship to him as he had a family to support. All of that information would have been put before the justices had an opportunity been given.

[8] We note that the justices record at pages 22 to 24 of the stated case that the speed limit was exceeded by 47 mph, or by 117%. They observe that, on a motorway, this percentage would equate to travelling at around 152 mph. They describe the locus as an illuminated intersection with vehicles merging and separating, and they point out that it would have been evident to any reasonable person that the speed limit there was reduced for safety reasons. They add that the consequences to other road users of being involved in any contact with a car travelling so far in excess of the speed limit were potentially catastrophic, and they bear in mind the fact that the appellant had a previous speeding conviction for which he was allocated five penalty points. Taking all these circumstances into account the justices concluded that a period of disqualification was necessary and appropriate for public protection and for deterrence. The justices also add that the appellant appeared with the benefit of legal representation - a solicitor experienced in road traffic matters - and they point out that it was open to the solicitor to make representations as to why no discretionary disqualification should be imposed. Miss Ogg drew our attention to the case of Purdie 1997 SLT 483 to support her submission that the justices should have enquired into the circumstances of the appellant, or perhaps should have invited the solicitor to address them on reasons why a period of discretionary disqualification should not be imposed. We accept the observations in Purdie suggest that to invite such submissions might be a wise course of action, but it is nevertheless not mandatory, and the fact is that the appellant was fully represented at the time of sentencing.

[9] In the result, bearing in mind the aims of retribution and deterrence, we have not been persuaded either that the justices erred in any way in imposing a period of disqualification or that the period of disqualification imposed was excessive. We therefore answer questions five and six of the stated case in the negative and refuse the fourth ground of appeal.

SM