APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord Mackay of Drumadoon	[2010] HCJAC 82 Appeal No: XJ896/08 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in Appeal by Stated Case in causa JOHN HUNTER Appellant; against PROCURATOR FISCAL, SELKIRK Respondent: _____________

Appellant: Ogg, Solicitor Advocate; McClure Collins, Solicitors

Respondent: Carmichael, Solicitor Advocate, A.D.; Crown Agent

6 August 2010

Introduction

[1] The appellant appeared on a summary complaint before the district court of the Lothians and Borders at Selkirk libelling the following charge:

"on 9 November 2005 on the A68 Edinburgh - Newcastle Road at Soutra Hill near to the east entrance of Dunlaw Wind Farm Scottish Borders being a length of single carriageway road, you JOHN HUNTER did drive a motor vehicle, namely motor car registered number KS02ONW at a speed exceeding 60 miles per hour, namely 78 miles per hour; CONTRARY to the 70 miles per hour, 60 miles per hour and 50 miles per hour (Temporary Speed Limit) Order 1977 Paragraph 3(b); the 70 miles per hour, 60 miles per hour and 50 miles per hour (Temporary Speed Limit) (Continuation) Order 1978 and the Road Traffic Regulation Act 1984 Sections 88 and 89."

[2] The proceedings against the appellant have had a long history. The case first called on 20 April 2006 when the appellant raised a preliminary plea to the competency of the unsigned complaint, which had been served on the appellant. A diet of debate was fixed for 18 May 2006. On that date, following a debate, the plea was repelled. The appellant pled not guilty and the case was adjourned for trial to 24 August 2006, with an intermediate diet being fixed for 10 August 2006. However, on 18 May 2006, the appellant also sought and was refused leave to appeal against the decision on the preliminary plea, following which he lodged a petition to the High Court of Justiciary. The petition was ultimately refused as incompetent. The lodging of that petition led to the trial diet being adjourned to 1 February 2007, with a fresh intermediate diet fixed for 18 January 2007. There then ensued a number of continued intermediate diets, which led to further adjournments to enable the appellant to prepare for trial. One diet of trial required to be postponed due to the absence of an essential Crown witness. The case eventually went to trial on 22 November 2007, when the trial was part heard. The trial was concluded after a further hearing on 14 February 2008. The appellant was convicted on the charge he faced. Sentence was adjourned until 27 March 2008, when the appellant was fined £150 and his driving licence was endorsed with three penalty points. The appellant has appealed against his conviction and sentence by way of stated case.

Findings in Fact

[3] During the trial the Crown led the evidence of three witnesses, Nicola Currie and Douglas Stewart, two Safety Camera Enforcement Officers, who were on duty on the A68 on 9 November 2005, and David Moyes, a Temporary Police Clerical Assistant. The appellant gave evidence. Although the appellant instructed an expert witness, that expert did not give evidence.

[4] The findings in fact made by the Justice were as follows:

" 1. On 9 November 2005, Camera Operators Nicola Currie and Douglas Stewart were on duty on the A68 at Soutra Hill in their Renault Master van, which was highly marked with safety camera insignia, carrying out speed checks. The speed limit on this road for the type of vehicle which the Appellant was driving is 60 miles per hour and the camera operators were working to a speed threshold of 71 miles per hour on this particular day.

2. Both camera operators were appropriately trained in the operation of the speed detection equipment used on that date.

3. The safety camera equipment used on that date consisted of an LT120.20 Speedscope laser speed measuring device connected to a video recorder which displays and records the results, this equipment being a prescribed device of a type approved by the Secretary of State for the purpose of detection of speeding offences. The equipment is mounted on a bar in the van.

4. On 9 November 2005, the Camera Enforcement Officers carried out all necessary checks on their speed recording equipment, including two separate distance checks completed before and after their shift, a "self check" of the safety camera equipment prior to use on the date in question and a variety of other tests. Additionally, the equipment self calibrates each time the trigger is depressed.

5. To operate the device, which is done after the Camera Assistants have formed an opinion that a particular vehicle is travelling in excess of the speed limit, the operator looks through the viewfinder at the target vehicle, then aligns the red dot shown in the viewfinder with a flat surface (normally the number plate) on the target vehicle, then depresses the trigger, which then produced a reading of the speed. It is possible to achieve a reading from a non flat surface but this is more difficult.

6. I found the LT120.20 speed measuring device to be reliable and accurate and to have been operated properly on the date in question.

7. At approximately 14.05 on the date in question, the two Camera Enforcement Officers observed a motor car registration number KS02ONW driving along the A68, and perceived it to be exceeding the speed limit. They therefore targeted the motor car with the camera equipment and recorded footage of the motor car travelling along the A68 (and I viewed the video footage in Court).

8. The motor car registration number KS02ONW was being driven by the Appellant.

9. At 14.05 on 9 November 2005, on the A68 Edinburgh - Newcastle road at Soutra Hill near to the east entrance of Dunlaw Wind Farm, the Appellant drove his motor car registration number KS02ONW at a speed of 78 miles per hour, that being a stretch of road where the speed limit for that vehicle was 60 miles per hour".

Questions for the court

[5] In the stated case the questions posed for the opinion of the court are as follows:

"1. Did I err in law in repelling the submission made on behalf of the appellant in terms of section 160 of the Criminal Procedure (Scotland) Act 1995?

2. Was there sufficient evidence in law to entitle me to make findings in fact 6 and 9, as detailed on page 2 of the stated case?

3. Did I err in law in repelling the objection made on behalf of the appellant relative to the identification of Crown Production 7 by Crown witness David Moyes and its admissibility in evidence?

4. Did I err in law in using my mathematical ability as an engineer in my decision making process when this use was not capable of being the subject of cross examination by the appellant?

5. Did I err I law in terms of section 92(1) of the Criminal Procedure (Scotland) Act 1995, in having discussions on timetabling matters in Chambers in the absence of the appellant?

6. Was the sentence imposed excessive?"

[6] This Opinion deals with the appeal against conviction. In arguing that appeal, the solicitor advocate for the appellant did not advance any submissions in relation to questions 3 and 5. Question 6 relates to the appeal against sentence and is not dealt with in this Opinion.

Submissions for appellant

[7] The submissions on behalf of the appellant fell into three chapters. It was argued firstly that the Justice should not have relied on the LTI20 20 Speedscope laser speed measuring device, attached to a video recorder that records what is happening and displays the results ("the safety camera"). The Crown maintained that an accurate reading of the speed at which the appellant's car had been driving on 9 November 2005 at the locus specified in the charge, namely a reading of 78 miles per hour, had been made by the safety camera and recorded on a video of the appellant's car, which had been played in the district court. A still photo, made from the video, showing the appellant's car and a reading of 78 miles per hour at 14.06.19 hours on 9 November 2005 had also been available to this court.

[8] In advancing this branch of her submissions the solicitor advocate for the appellant dealt with a number of factors relating to the operation of the safety camera, which had been raised during the trial as possible reasons why the safety camera might not been operating correctly and why the reading of the speed of the appellant's car might not be accurate. These factors were:-

(a) "slippage", which can occur if the laser beam from the safety camera is directed by the camera operator across the side of a moving vehicle or when the safety camera is itself moving;

(b) diffusion of the laser beam through glass, contrary to the ACPO guidelines;

(c) a - 0.00 mph reading taken by the safety camera, 16 seconds prior to the reading upon which the prosecution of the appellant was based,

(d) the fact that the laser beam of the safety camera did not "time out" in 0.3 of a second, and

(e) the fact that the camera enforcement officers had not operated the safety camera in accordance with ACPO guidelines.

[9] It was argued that the Justice had erred by considering these factors individually, rather than cumulatively, and by holding that the factors did not cast doubt on whether the speed camera had been working accurately, when it recorded the speed of the appellant's car. It was submitted that if those factors were looked at cumulatively they "should have been enough for the (Justice) to have excluded" the evidence relating to the speed of the appellant's car. That evidence should have been rejected at the no case to answer stage, failing which the Justice should have come to the view that the evidence of the two camera enforcement officers was of such limited quality as to have raised a reasonable doubt in his mind as to the guilt of the appellant.

[10] Reference was made to Kent v Stamps [1982] RTR 273. On the basis of that authority it was argued that the Justice had not been entitled to ignore the appellant's evidence, simply because the speed camera had recorded the reading it did. In the circumstances of this case the Justice's decision to rely on the reading taken of the speed of the appellant's car had been perverse. No reasonable Justice would have reached such a decision and this court should interfere with that finding.

[11] The second chapter of the submissions on behalf of the appellant related to how the Justice had dealt with the evidence the appellant gave. That evidence was summarised in the stated case as follows:-

"The Appellant then took the oath and gave evidence in his defence. He stated that he was retired, having previously been involved in building prior to retirement, and that he was aged 70 years. He had been driving his own Mercedes car on the A68 on the day of the offence, some time in the afternoon. He said that his car was red despite a green car being shown in the video, but agreed that the registration of his car and the car on the video was KS02 ONW. He had been driving for 52 years and makes a habit of not speeding.

His car has a Road Pilot Camera Warning Device, which was in operation that day. The car was being driven by him in accordance with the law, and he firmly denied driving at 78mph. He said he knows that road and drives it regularly and that there were no camera warning signs that day on the B6368 westwards and between the junction of that road with the A68 and the camera van. The Laser detector on his device flashed up a camera warning signal as he was driving up the hill, he checked his speed and was doing just under 60. He then came up behind a queue of traffic and saw the camera van and thought no more about it. He completed and returned the NIP. He would have pled guilty if he had been doing 78, but he knows he was driving under 60. He has spent a long number of hours on research.

In cross examination, when asked why he needed an anti speeding device if he makes a habit of not speeding, he said that the Road Pilot device was really a toy rather than an anti-speeding device and that its speed measuring was far more accurate than the speedometer in the Mercedes. It is a good reminder not to speed, and also acts as a warning and a reminder. It alerts if there are cameras or lasers ahead. He uses it all the time and was using it on that day. He disputed the reading on the camera and said that in his view the Camera Operators made an error. The beam passed a white van and caught his car headlight, thereby going through glass and down the side, thereby giving a wrong reading.

The Appellant lodged as productions, an explanatory brochure about the Road Pilot device, a copy of the section of the ACPO Guidelines referred to and a sketch illustrating the slope of the speed detection site, which had been put to the witnesses Currie and Stewart in cross examination."

[12] In advancing this branch of her submission, the solicitor advocate for the appellant founded on what had been said by the Justice about the appellant's evidence at two separate parts of the stated case. At page 13 the Justice stated:

"The Defence stated that if I found the Appellant to be credible that should be enough and I need not examine the technical evidence, but I considered that there was not sufficient evidence before me to form an opinion on the Appellant's credibility and reliability and I therefore needed to consider the technical evidence."

And at page 15 the Justice continued:

"The Appellant's credibility and reliability: In trials where the Crown are able to produce satisfactory technical evidence in support of a prosecution, for example speeding, drink driving etc, issues regarding the credibility, or more particularly the reliability of the Accused person may be of less significance than in other types of case.

An Accused in his own mind may be perfectly certain that he was not speeding, but the reliability of that evidence must be considered against the technical evidence produced by the Crown, which in this instance I found to be entirely credible and reliable. The Appellant's evidence did not raise a reasonable doubt in my mind."

[13] It was submitted that having regard to those two passages it was clear that the Justice had not given proper consideration to the appellant's evidence. In particular he had not come to any conclusion about the credibility of the appellant's evidence, or as to the reliability of his evidence.

[14] The third chapter of the submissions on behalf of the appellant involved arguing that the Justice had erred in using his own experience as an engineer when assessing the evidence as to the operation of the machine. That submission was founded on a number of paragraphs in the stated case, between pages 13 and 14:

"The defence raised a number of instances where they challenged the accuracy/efficiency of the equipment. I was satisfied that the type approval acknowledges the accuracy/efficiency of the equipment along with the self checks and distance checks. I was satisfied that all tests and checks had been carried out in the way they should and that the equipment was working on the day as the manufacturer intended.

I noted that the minus zero reading had not been fully explained, but having seen the video myself formed an opinion that at the time of this reading, the cross hairs were pointing at the road surface. If that was the case, a 0 reading, whether + or - is understandable. The other evidence given on behalf of the Crown showed that if there was a fault with the machine, an error message would be displayed. It was clear to me that in every instance where there had been an error, an error message is given rather than a wrong reading.

In relation to the suggestion by the Appellant's agent that the machine should not be used through glass or mirrors I was satisfied that this guideline is in the context of using the camera through glass or mirrors within the operating vehicle. This was my own interpretation of the guidelines, no witness gave evidence stating that the said guidelines were to be read as relating only to a situation where the camera was used through glass or mirrors within the operating vehicle.

In relation to the time which the machine took to time out the reading, the witness Stewart had stated that the machine would take a reading within 0.33 of a second and it did. He had stated that the equipment could be used up to a distance of 1,000 metres. In this case the range was just over 500 metres and it locked on in 0.16 seconds.

With the benefit of my engineering degree I would suspect that at a distance of 500 metres a reading could be taken within around half of 0.33 seconds and indeed the time recorded was 0.16 of a second, which this was.

I noted that the car was shown in the video as being coloured green whereas the Appellant insisted it was red. However there was no dispute as to the registration of the vehicle and the Appellant had admitted to being the driver. Mr Moyes explained in his evidence that the age of the video tape could have caused this discolouration. I accepted this as a reasonable explanation, and, given that the Defence agent had not queried this anomaly, I was confident that the vehicle on the video tape was indeed the Appellant's.

I also considered the issues in relation to the spacing between the vehicles at the time of the alleged offence and the issue of whether the laser beam had reflected from a flat surface. There was no evidence that taking a reading from other than a flat surface could give a false reading, only that it would be more difficult to obtain a reading. I am clear that the camera operators did their best to quickly obtain an effective reading.

Whilst the camera van was parked on a spot that was not perfectly level, I was satisfied that the camera apparatus had been sufficiently levelled. The witness Currie did not state in her evidence the spirit level fixed to the equipment had been used to level the equipment when it had been set up on 9 November 2005, nor was she cross examined on this.

With regard to the question of slippage of the beam along the side surface of the van, it is clear from the camera operators that in their opinion there was a clear shot of the vehicle in question and if the white van had caused any interference it would have resulted in an error message.

I was therefore satisfied that the camera was working under the context of type approval and that the daily checks confirm its accuracy on the day and I had no reason to suppose it was not accurate.

I considered each of the Crown witnesses to be both credible and reliable. Each of the witnesses had particular areas of expertise within their own sphere of influence, whether as an operator of the equipment or as an interpreter of the information provided by the equipment."

[15] Under reference to Hunt v Aitken 2008 SCCR 919 it was submitted that whilst the Justice had been perfectly entitled to consider the evidence he had heard in private, he should have returned to court and articulated his thoughts as to recording a reading at 50 metres in 0.16 seconds before proceeding to convict the appellant. He had accordingly erred in law, by the approach he took to deploying his own engineering experience when considering issues that had been raised on behalf of the appellant, in relation to the evidence led by the Crown

Submissions for respondent

[16] In responding to those submissions the Advocate depute referred to Tudhope v McAllister 1984 SCCR 182 at page 185 and submitted that the question for this court was whether there was any basis in evidence for the Justice entertaining a reasonable doubt upon the matter of whether the safety camera was in proper working order. On the findings the Justice had made it was clear that the machine appeared to be working as it was intended to work. The Advocate depute referred to the evidence before the Justice that the speed camera was designed to display an error message if an error occurred. The Justice had heard evidence that that happened. The fact that it took the camera operator three attempts before he was able to record the speed at which the appellant's car had been travelling illustrated that the machine was working properly. The - 0.00 reading, of which a photograph had been available to the Justice, disclosed that the reading had been taken after the laser beam had been in contact with a stationary object, rather than a moving vehicle - no vehicle being shown in the video at the time. As had been suggested in evidence the most likely cause was the laser beam coming in contact with a fixed road sign. As far as the point raised about the beam going through glass was concerned, it was clear that the ACPO guideline 14.2, on which the appellant sought to found, related to the laser beam not going through glass in the police van, rather than the laser beam catching glass in the headlights of a moving vehicle.

[17] As far as the assessment of the appellant's evidence was concerned it was important to bear in mind, as was clear from the terms of the stated case, that when the Justice had been addressed by the solicitor for the appellant, the solicitor had suggested to the Justice that if he was satisfied that the appellant was an honourable and honest citizen, then simply on such an assessment of the credibility and reliability of the appellant's own evidence, there would be no need for the Justice to examine any other aspect of the evidence in the case. The solicitor had suggested that the appellant's evidence was backed up by the details of his use of the Road Pilot to which the appellant had referred during his evidence. The solicitor had indicated that only if the Justice was not satisfied by the appellant's evidence should he turn to the Crown case which he, the solicitor, suggested was open to criticism. Against that background the comment the Justice had made at page 13 of the stated case amounted to no more than the Justice taking the view that there was insufficient evidence before him to form an opinion on the appellant's credibility and reliability, by looking at his evidence alone, and it was therefore necessary for him to consider the evidence the Crown had led. Turning to the passage at page 15 the Advocate depute submitted that it was clear that the Justice was not saying that he had found the appellant to be incredible. Putting it another way the Justice was not saying that the appellant had been doing anything other than his best to tell the truth. On the other hand it was clear from that passage that the Justice had reached the conclusion that he was not prepared to rely on the appellant's evidence as casting doubt upon, and warranting his declining to rely upon, the Crown evidence which he had found to be entirely credible and reliable.

[18] As far as the third branch of the appellant's submissions was concerned, the Advocate depute argued that the Justice had been perfectly entitled to reach the conclusions that he did. He had dealt with all the factors referred to in an appropriate manner. The - 0.00 reading could well have been explained by the presence of a road sign. No car was to be seen in the video footage taken when that reading was made. As far as the timing out of reading within 0.33 of a second after the laser beam had locked onto the targeted vehicle, the Justice was clear about the evidence which he had heard. He had rejected an adjustment to the draft stated case proposed on behalf of the appellant and to the effect that the speed camera "required 0.33 of a second in order to take a reading". As far the Justice applying his own expert knowledge was concerned, the Justice had done no more than apply basic mathematics. In any event there had been no evidence contrary to the evidence given by the Crown witnesses upon which the Justice was entitled to rely on that particular factual issue. In the event any reference to the Justice's engineering background had been of no practical significance, in relation to the decision reached by him.

Discussion

[19] In our opinion, the Justice dealt perfectly adequately with the various factors referred to in the first chapter of the submissions on behalf of the appellant. It is clear from a reading of the stated case that those factors were only a few of the numerous factual issues that were raised during the cross-examination of the Crown's witnesses. The nature and extent of that cross-examination resulted in the Justice hearing a great deal of evidence about the safety camera, which consisted of a laser gun and a video camera, which were bolted together and designed to work in conjunction, whilst fixed to a bracket and mounted on a solid metal bar in the camera operator's van, referred to in finding in fact 1. The safety camera is locked in position and can only move on a pivot. The Justice heard evidence about how the safety camera was designed to operate, the tests carried out before the safety camera was used on 9 November 2005 and how the safety camera operated during the shift when the Crown claimed that the appellant's car was recorded as travelling at 78 mph.

[20] In the stated case the Justice deals with each of the factors referred to by the solicitor advocate for the appellant. As far as slippage is concerned, he records the evidence relating to that topic. It is clear that he accepted the evidence of the camera operators that the safety camera had a clear shot of the appellant's car and that if its laser beam had been targeted on the side of the white van travelling ahead of the appellant's car an error message would have been displayed. The criticism of the camera operators having failed to follow the ACPO Code of Practice for Operational Use of Road Policing Enforcement Technology was advanced in the absence of any expert evidence as to the terms of that Code of Practice or their application to the safety camera which was being used on 9 November 2005. In our opinion, there was no evidential basis for arguing that the Justice was not entitled to take the view that he did, namely that the Code of Practice were guidelines. They were not statutory or mandatory. The particular focus on a laser beam not being projected through glass or mirrors relates to a passage in a section dealing with hand-held speedmeters (para 14.2), whereas the speed camera in the present case was fixed within the camera operators' vehicle. Furthermore on the basis of the evidence he heard, the Justice was entitled to take the view that the passage in para 14.2 of the Code of Practice related only to a situation where the safety camera was being used so that the laser beam was projected through glass within the operator's police vehicle.

[21] Likewise on the evidence he heard, the Justice was entitled to reach the view that the - 0.00 mph reading taken by the safety camera, 16 seconds prior to the reading upon which the prosecution of the appellant was based, could have arisen because the cross hairs on the screen of the safety camera had been pointing at the road surface. Neither that chapter of evidence nor that relating to whether the safety camera required 0.33 seconds to time out a reading at 1000 metres, or whether it could do so within that period of time, required the Justice to reach the conclusion that he could not be satisfied that the safety camera had been operating reliably and accurately on 9 November 2005.

[22] In our opinion, there is no merit in the argument that these various factors, whether looked at individually or collectively, required the Justice to reach the conclusion that the evidence he had heard from the camera operators could not be relied upon. It cannot be argued that the decision he reached in relation to their evidence was perverse. Nor can it be argued that it ought to have raised a reasonable doubt as to the guilt of the appellant. In these circumstances the Justice was entitled to refuse the submission of no case to answer and to make all the findings in fact that he did, in particular findings in fact 6 and 9.

[23] As far as the attack on the Justice's treatment of the appellant's evidence is concerned, there is little doubt that the Justice could have explained his assessment of that evidence in clearer detail. However having regard to the approach to the evidence which the appellant's solicitor invited the Justice to take, namely to look initially at the appellant's evidence on its own, the passage at page 13 of the stated case is more readily understandable. In our opinion, it clear from the passage at page 15 that the Advocate depute's submissions in this matter are well founded. It is quite clear that the Justice took the view that having considered all the evidence before him, he was not prepared to rely on the appellant's evidence as giving rise to a reasonable doubt as to whether the Crown had proved the appellant's guilt. There is no question posed for the opinion of the court which directly relates to this chapter of the submissions on behalf of the appellant.

[24] As far as the Justice's reliance on his own knowledge and experience as an engineer is concerned, here again we accept the submissions advanced on behalf of the Crown. It was perfectly in order for the Justice to bring that knowledge and experience to bear as he listened to the evidence he heard from the Crown witnesses and the appellant. As far as the evidence relating to - 0.00 mph reading and the issue of whether the speed camera required 0.33 of a second to time out a reading are concerned, whilst the Justice refers to having drawn on his knowledge as an engineer, we accept that the scientific knowledge deployed amounted to little more than basic arithmetic and common sense, which he applied in his consideration of the contents of the video recording and photographs before him and the evidence of the camera operators. In these circumstances we are not persuaded that the Justice erred in law.

[25] For these reasons, it follows that questions 1, 3, 4 and 5 should be answered in the negative and question 2 in the affirmative. The appeal against conviction is refused. The stated case will require to put out for a further hearing in respect of the appeal against sentence, if that appeal is being insisted upon.