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Cite as: [2007] EWHC 3193 (Admin)

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Neutral Citation Number: [2007] EWHC 3193 (Admin)
CO/4702/2006

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand
London WC2A 2LL
7 December 2007

B e f o r e :

LORD JUSTICE DYSON
MR JUSTICE HENRIQUES

____________________

Between:
FENTON MARTIN Claimant
v
HARROW CROWN COURT Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
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____________________

Miss RJ Calder (instructed by Shearman Bowen) appeared on behalf of the Claimant
Mr P Wauchope (instructed by CPS) appeared on behalf of the Interested Party

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE DYSON: This claimant was charged with driving a motor vehicle on 2 August 2004 on a restricted road at a speed exceeding 30 miles per hour, contrary to section 81(1) of the Road Traffic Regulation Act 1984 (the 1984 Act). In fact, it was alleged that he drove at 61 miles per hour. The Crown case was that the speed had been measured by a ProLaser III device, a prescribed device within the meaning of section 20 of the Road Traffic Offenders Act 1988.
  2. The road in question was Park View Road in the London Borough of Ealing. On 5 July 2005, in his absence, he was convicted by the Brent Magistrates and fined 330, ordered to pay 100 costs and six points were added to his previously clean driving licence. He appealed against conviction to the Harrow Crown Court where his case was heard on 20 October 2005 by Ms Recorder Briscoe, sitting with Mrs Waxman and Mr Brandt. The appeal was dismissed and the court increased the fine to 400. He was disqualified from driving for 56 days and ordered to pay 197 costs.
  3. There were several strands to his defence before the Crown Court. His case was that it had not been proved that the road was a restricted road within the meaning of section 82(1)(a) of the 1984 Act, or that his speed had been measured by a prescribed device approved by the Secretary of State, or that any of the conditions to which approval of the device had been given had been satisfied: see section 20(4) of the 1988 Act. Last, but not least, he in any event disputed that he had been driving at a speed in excess of 30 miles per hour. The court found in favour of the Crown on all these points.
  4. On 3 November 2005, the claimant requested the Crown Court to state a case. On 10 November, Sullivan J ordered that the disqualification be suspended pending the determination of the appeal by way of case stated or refusal to state a case. On 24 May 2006, the Recorder refused to state a case. The certificate of refusal included the following:
  5. "3. The appellant was represented by counsel who informed the court from the outset that she was partially deaf and without her glasses. It became apparent during the appeal that counsel's disabilities were significant. She was unable to hear the evidence at times and on others misunderstood what the witnesses had said and as a result counsel repeatedly misheard what evidence had been given. There were repeated occasions during the hearing when counsel informed the court that she was unable to hear.
    4. There was no evidence before the court that a reasonable bench properly directed could conclude that the prosecution had not proved their case, beyond reasonable doubt that section 82(1) and 85 of the Road Traffic Regulation Act 1984 that Park View Road was a restricted road.
    5. The appropriate certificates were provided to the court to indicate that the instrument used to measure the appellant's speed was of a type approved by the Secretary of State and all conditions subject to which approval was given were satisfied. This was a point not apparent to counsel until she called for the certificate to be produced and it was provided to her by the officer.
    6. Another point that counsel took was that the officer had not personally measured the distance between the trees, along the relevant stretch of road to ascertain whether it was a restricted road. This point had no merit at all. The definition of restricted road is provided statute and case law. It was not necessary for the officer to personally measure the distance from tree to tree.
    7. This application is without merit and is misconceived and I have previously stated my reasons."
  6. I find it surprising that the Recorder thought it appropriate to make the remarks about counsel that she did. It seems to me that they had no relevance to the question whether the application to state a case should have been refused. It is somewhat ironic that in paragraph 6 of the certificate of refusal, the Recorder herself made a mistake. The officer did not speak of measuring the distance between trees, which would have been irrelevant; he spoke about the distance between street lamps which, as will become clear, was highly relevant.
  7. On 9 June 2006, Silber J suspended the disqualification until the determination of the application for judicial review of the refusal to state a case. Judicial review proceedings were issued. Permission to apply was refused on the papers by Leveson J, but granted by this court at a oral hearing on 1 November 2006. At that hearing the court also ordered that an application by the claimant for permission to amend the claim form to introduce into the judicial review proceedings grounds for quashing the dismissal of his appeal as well. The present procedural position is therefore somewhat complicated.
  8. There is an application for judicial review of the refusal to state a case in relation to three findings of the court. These are (1) that the road was a restricted road and therefore subject to a 30 mile per hour speed limit; (2) that the prescribed device had been approved by the Secretary of State; and (3) that any conditions to which approval of the device had been given had been satisfied. In addition, there is an application for permission to amend the claim form to quash the conviction on the grounds that (1) there was no evidence on which a reasonable court could have held (a) that the road was a restricted; (b) the prescribed device was of a type approved by the Secretary of State; or (c) any conditions subject to which any approval that may have been given was satisfied; (2) the Recorder made many interventions and comments during the appeal thereby denying the claimant a fair trial; (3) the Recorder gave an appearance of bias throughout the appeal in a number of ways.
  9. It seems to me, in these circumstances, that the application for a case to be stated serves no useful purpose. All the issues which the claimant seeks to raise by way of case stated can be raised in the judicial review proceedings to quash the conviction. We have full transcripts of the evidence and are in a position to deal with the three issues which are the subject of the case stated application, as well as the issues of unfairness and bias which, for obvious reasons, could not be the subject of an application to state a case. To the extent that it is necessary to do so, I would give permission to the claimant to amend his claim form to introduce the additional matters, and I would further give permission to apply for judicial review on all five points.
  10. I start with the restricted road issue. It is submitted that there was no evidence on which the court could properly conclude that Park View Road was a restricted road at the material time. The 1984 Act, so far as material, provides as follows:
  11. 81(1) It shall not be lawful for a person to drive a motor vehicle on a restricted road at a speed exceeding 30 miles per hour.
    ...
    82(1) subject to the provisions of this section ... a road is a restricted road for the purposes of section 81 of this Act if-
    (a) in England and Wales, there is provided on it a system of street lighting furnished by means of lamps placed not more than 200 yards apart ...
    ...
    85(5) In any proceedings for a contravention of section 81 of this Act, where the proceedings relate to driving on a road provided with such a system of street or carriageway lighting, evidence of the absence of traffic signs displayed in pursuance of this section to indicate that the road is not a restricted road for the purposes of that section shall be evidence that the road is a restricted road for those purposes."
  12. It is clear, therefore, that in order to prove that a road is a restricted road, subject to a 30 mile per hour speed limit, the prosecution must prove that there is provided on it a system of street lighting comprising lamps placed not more than 200 yards apart. It is the claimant's case that the Crown did not discharge the burden of proving this. I turn therefore to the relevant evidence on this point.
  13. The officer who gave evidence on behalf of the Crown was Mr Graham Brookes. In the course of his evidence-in-chief, he said at page 7F:
  14. "This was in a 30 mile an hour zone."

    He was cross-examined on this point by Miss Calder, and it is necessary to read some extracts from the transcript. I start at page 29B:

    "Q: Well, I don't accept that it's a 30 mile an hour limit unless you tell me what, why do you say it's a 30 mile an hour road?
    A: Because the lampposts, the Highway Code refers to the lampposts being less than 200 yards apart and no other sign being present. If there is no other sign present then it's a 30 mile an hour road. There are probably signs at the entrance to the road and if not the signs will go back to the entrance of the last road. It's not a requirement to have 30 mile an hour speed limit signs there.
    RECORDER BRISCOE: What do you say the speed limit is of this particular road?
    Q: I don't, I don't say what the speed limit is."

    I interpolate, it says "Q" but that is an "A" given by counsel.

    "RECORDER BRISCOE: Well, if you're saying it's not 30 miles an hour, what do you say the speed limit is of that road? Please.
    Q: Is it the prosecution's case ...
    RECORDER BRISCOE. No, it's not. I am asking you to assist myself and my colleagues with what you say the speed limit is of that road if it is not 30 miles per hour.
    Q: I am challenging that it is 30 miles an hour.
    RECORDER BRISCOE: Yes, I appreciate that. But you put, I'm only going to ask once more ...
    Q: I have reason to put that, madam.
    RECORDER BRISCOE: You have put ...
    Q: I mean, sorry, your Honour.
    RECORDER BRISCOE: ... you have challenged that it is not 30 miles an hour.
    Q: Yes.
    RECORDER BRISCOE: Now, what does you client say the speed limit is?
    Q: What I'm asking the officer to tell me is how did he, how does he know it's a 30 mile an hour road?
    RECORDER BRISCOE: Is it in dispute that it is 30 miles an hour?
    Q: Everything's in dispute madam. Sorry, I just, I was in the Magistrates' Court yesterday. Your Honour, everything, all, everything is at issue in the case.
    RECORDER BRISCOE: Would you just give me a moment, please? (pause) Well, we seek clarification, please, because if it is being challenged that this was a 30 mile an hour restriction on that road, we would like to know what your client thought the speed limit was on that day.
    Q: The officer said it's a 30 mile an hour, at the moment we're going through the prosecution case. He said it's a 30 mile an hour, you will hear our case when it comes, your Honour, but the prosecution, the officer started out by saying it was a 30 mile an hour limit, and I'm asking him how he knows that.
    RECORDER BRISCOE: You see, we're asking for clarification for this reason. Of course, if your client was of the belief that it, that the speed limit was in excess of 30 miles in relation to that road, then irrespective of the shake of the pro-laser he was still speeding if he believed that it was, that the restriction on the road was in excess of 30 miles an hour. So ...
    Q: What I would ask ...
    RECORDER BRISCOE: ... would you please clarify ...
    Q: Yes. Your Honour, what I would ask is if you could bear with me on this point and you will see how it will, how it turns out, if I could ask you on that.
    RECORDER BRISCOE: I'll speak to my colleagues, please. (pause) Right. My colleagues and I would like you, please, to tell us what you, your client thought the speed limit was of that road.
    Q: We don't have to prove anything. All I can say is on that, the prosecution bring the case it is for them to prove ...
    RECORDER BRISCOE: Is it ...
    Q: ... Your Honour. And it is not for me to prove anything ...
    RECORDER BRISCOE: Yes.
    Q: ... at all.
    RECORDER BRISCOE: Is it the case that your ...
    Q: And it's not helping my case if, if you ask me to out of turn to sort of give information, because as you said earlier I can't give evidence anyway.
    RECORDER BRISCOE: No, you can't. But the fact of the matter is you put to this officer that it was not a 30 mile an hour speed limit. We the court have asked you to assist us on what your client thought that the speed limit was on the day. You've not been able to assist us and we cannot take it any further.
    Q: Thank you. So you said it was a 30 mile an hour limit you think for what reason? What were the reasons you gave?
    A: Because it's a residential street for a start, lampposts are likely to be less than 200 yards apart ...
    Q: Sorry, did you say they're likely to be less than ...
    A: Yes, I didn't measure them.
    Q: So you don't know?
    A: I don't know whether the lampposts were less than 200 yards apart, no.
    Q: So you've taken it for granted then?
    A: The lampposts spacing is irrelevant. It's a 30 miles an hour road.
    Q: Sorry, if they are? If the lampposts are?
    A: The Highway Code states that if, for a road to be designated a 30 mile an hour speed limit the lampposts, as a guide for drivers ... "
  15. Then I pass on to the bottom of page 32 between G and H:
  16. "Q: So that's the situation here then, is it? You're saying that there wasn't a sign saying 30 mile an hour limit, but the fact is there are the lampposts that are less than 200 yards apart?
    A: I haven't said that there weren't any 30 mile an hour speed limit signs. Looking at Hillcrest Road at the top of the map which is a 30, looking at Woodville Gardens at the bottom of the map which is also a 30, I would say it's probably unlikely that you would get a 30 mile an hour zone as you entered, sorry, a 30 mile sign as you entered Parkview Road, but I don't know.
    Q: So you're really talking about 30 mile an hour signs then, but you wouldn't expect one, you don't recall one and you don't expect there was a 30 mile an hour sign, is that right?
    A: That is a summary of what I just said, yes.
    Q: Yes. But there are lampposts.
    A: Probably.
    Q: You didn't make any notes of any lampposts at all?
    A: As you can see, I didn't, no. I didn't feel it necessary to note the lampposts, presence of.
    Q: Because we put it to you that it's not correct that there are lampposts that are less than 200 yards apart.
    A: But I haven't actually said there were. I said I don't know.
    Q: You don't know.
    A: No.
    Q: So you're saying then that, you're saying then that you had made the assumption.
    A: I'm saying that it was a 30 miles an hour zone.
    Q: Yes, you assumed, you don't, you didn't, if you're saying that the lampposts have to be less that 200 yards apart you don't know whether they're, about the lampposts, you're really saying you've assumed it's a 30 mile an hour zone.
    A: Well, I haven't assumed. I know the road to be a 30 mile an hour zone.
    Q: But you don't know about the lampposts.
    A: I haven't measured the lampposts. I know that it's a 30 mile an hour zone.
    Q: And it's put you to that there is not there a system of lampposts which are 200 yards, less than 200 yards apart.
    A: I can't answer that, your Honour, because I don't know. I haven't measured how far apart the lampposts are. I know it's a 30 mile an hour speed limit restriction.
    Q: Let's see what else you told us. (pause) You said that this was an approved device?"
  17. I need not read any further. So that was the evidence of the police officer. The claimant himself gave some evidence on the issue of the distance between the lampposts. At page 98D the following exchange occurred:
  18. "Q: The police officer said that he assumed that ... I'll just find the relevant place ... it was likely that there were lampposts up there less than 200 yards apart. Do you agree that's the case?
    A: No.
    Q: Can you tell me if ... there, well, can you tell me why you don't agree then?
    A: Why I, actually because obviously I've been very strongly about this case, I've actually checked a couple myself and, and there's at least a couple that I've checked which actually far exceed that measurement.
    Q: Can you give any measurement of any lampposts?
    A: Well, one of the ones that I remember off the top of my head from the notes I took because I've been, it's been an ongoing thing, was if I recall it was 240 yards.
    Q: And the whole street is only 540 is it, so that's quite ...
    A: Yes."
  19. The restricted road issue was the subject of submissions by counsel after the completion of the evidence. At part 2 of bundle 2 occurs this exchange:
  20. "RECORDER BRISCOE: I think you will find that the evidence that the officer gave when he was asked about it on a number of occasions was that it is a residential street, lamp posts are less than 200 feet apart.
    MS CALDER: Sorry, he said?
    RECORDER BRISCOE: Yes. The evidence from the officer, my note, I will read it, and then I will read my colleague's, is this: 'It is a residential street, the lamp posts are less than 200.' That is my note, and my colleague's note is: 'It is a residential street. The lamp posts are likely to be less than 200 feet apart.'"
  21. There then followed an exchange between counsel and the Recorder as to whether the officer had spoken of feet or yards, and the Recorder insisted that he had spoken of feet. When she came to give the judgment of the court on this issue, the Recorder said this at page 25F:
  22. "The officer's evidence was that this was a residential street. It was a very wide road, and the speed restriction was 30 miles per hour.
    The officer was asked about the lamp posts, and he said that the lamp post distance was less than 200 feet apart. It is correct, that when the matter was referred to again, the officer said that it was likely to be less than 200 feet."
  23. Then at 26G she said:
  24. "We find as a fact that: ... (2) That this was a residential street, and that that residential street comes within section 81(1) and 89(1) of the Road Traffic Regulations. (3) Although it is right that the measurements were not taken by the officer between the lamp posts, we are satisfied that this evidence was credible and compelling evidence. That is, namely; that the lamp posts were less than, or likely to be less than 200 feet. Therefore, the appeal is dismissed."
  25. It is submitted on behalf of the claimant that the Recorder did not fairly or accurately summarise the evidence in relation to the restricted street issue. She did not deal with the fact that the officer admitted that he had not measured the distance between the lamps, and that he did not know what the distance was. Nor did she make any reference to the evidence given by the claimant himself at all. Nor did she make any reference to whether there was any evidence as to the existence of any traffic sign indicating any other speed limit (see section 85(5)). To that can be added the obvious error made by the Recorder in finding that the lamp posts were less than, or likely to be less than, 200 feet apart. That was plainly based upon a mistaken appreciation of the evidence given by the officer. On no fewer than five or six occasions he referred to 200 yards. On no occasion did he speak of feet.
  26. On behalf of the Crown, Mr Wauchope submits that the Crown had discharged the burden of proof upon it to establish that this was a restricted road because the officer had asserted that the road was within a 30 mile per hour zone. Mr Wauchope submits that this street was one of a complex of streets in a residential area, and that it was obvious that it was a residential street and, as I understand it, that there was no need for the Crown to prove that the distance between the street lights was no more than 200 yards.
  27. I cannot accept Mr Wauchope's submissions. In my judgment, there was no evidence on which the court could properly conclude that Park View Road was a restricted road. The statute is absolutely clear. It defines a restricted road for the purposes of an offence contrary to section 81 in section 82(1)(a) quite clearly in terms of whether there is provided a system of street lighting furnished by means of lamps placed not more than 200 yards apart.
  28. In my judgment, the Crown failed to prove that the street lamps were not more than 200 yards apart. The police officer candidly accepted that he did not know the distance between the lamps. To say that it was "likely" that they were no more than 200 yards apart was not good enough. Nor is there any indication as to the basis upon which the officer was able to give that evidence. It seems that he just assumed that this road was in a 30 mile an hour zone and therefore a restricted road. There was in fact in this case some evidence that the distance between one pair of lamps was about 240 yards. In view of the fact that this was a very short street so that the number of lamps in it was likely to be very small, the fact that the distance between one pair was about 240 yards strongly suggested that there had not been provided in this street a system of street lighting furnished by means of lamps placed not more than 200 yards apart. But even if the claimant himself had not given evidence, the Crown was clearly put to proof in this case that the road in question was a restricted road. I imagine that it would be in very few cases indeed where the Crown is put to proof in this way, but this was one such case.
  29. Where the Crown is put to strict proof, as they were here, the Crown must be in a position to prove what is required by section 82(1)(a). If they are unable to do that, then they must seek a short adjournment to enable the relevant facts to be established, either by a measurement or by the production of plans if it can be done in that way.
  30. What had happened in the present case is most regrettable. It seems to me that in order to avoid the need for such adjournments, with the possible cost implications resulting from an adjournment, good practice requires a defence to notify the Crown in advance that, if it be the case, they intend to put the Crown to proof that the road in question is a restricted road. In that way, the need for an adjournment, with the possible attendant costs, can be avoided. But that did not happen in the present case. The Crown did not seek an adjournment once it became clear that they were being put to proof that the road was a restricted road. They decided to take their stand on the evidence that was given by the police officer. For the reasons that I have given, the evidence did not prove that the road was a restricted road.
  31. It follows, in my judgment, that this application for judicial review must succeed and the conviction must be quashed. I do not therefore find it necessary to deal with the various other issues that have been raised by Miss Calder. The complaint that the claimant did not receive a fair trial and that the Recorder was biased is a serious complaint. I do not feel it necessary to go into those matters. I have, however, identified a number of respects in which it seems to me the Recorder's handling of this case fell somewhat short of what one would have expected. But for the reasons I have given, I would allow this application and quash the conviction.
  32. MR JUSTICE HENRIQUES: I agree.
  33. MISS CALDER: My Lord, the defendant is legally aided for this hearing. Could I ask for legal aid taxation?
  34. LORD JUSTICE DYSON: Yes.
  35. MISS CALDER: And could I can ask for costs out of central funds until such time as he was legally aided and in the court below?
  36. LORD JUSTICE DYSON: Yes, you may.
  37. MISS CALDER: I am obliged, my Lord.
  38. LORD JUSTICE DYSON: Thank you.


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