Martin v Harrow Crown Court

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.

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.

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.

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:

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.

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.

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.

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.

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:

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.

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:

Then I pass on to the bottom of page 32 between G and H:

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:

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:

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:

Then at 26G she said:

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.

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.

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.

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.

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.

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.

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.

MR JUSTICE HENRIQUES: I agree.

MISS CALDER: My Lord, the defendant is legally aided for this hearing. Could I ask for legal aid taxation?

LORD JUSTICE DYSON: Yes.

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?

LORD JUSTICE DYSON: Yes, you may.

MISS CALDER: I am obliged, my Lord.

LORD JUSTICE DYSON: Thank you.