Chief Constable of Kent Police, R (on the application of) v Geoffrey Marshall & Anor

This is an appeal by way of case stated. It follows the acquittal of the first respondent (Mr Marshall) of one offence of speeding, after a trial before the Sevenoaks Magistrates' Court ("the Court") on 19 February 2025; the charge against Mr Marshall was that he:

“On 17/12/2023 at Dartford in the county of Kent drove a motor vehicle, namely a PEUGEOT 3008 index KV72WZG, on a road, namely the A282 Dartford Tunnel Approach Road, subject of a local traffic order, namely The A282 Trunk Road (Dartford – Thurrock Crossing and Approach Roads) (Speed Limits) Order 2014, at a speed exceeding 50 miles per hour. 

- Contrary to the above local traffic order and sections 84 and 89(1) of the Road Traffic Regulation Act 1984 and Schedule 2 to the Road Traffic Offenders Act 1988” 

The case was stated by the Court on 1 May 2025 and served on the parties on 7 May 2025. The questions identified for this court were stated as follows:

“a)

Taking account of the evidence adduced by the prosecutor and of the defendant’s case, was the acquittal a determination which any court properly considering the matter could reasonably make?

b)

Were our findings of fact lacking an evidential basis such that the acquittal amounted to an error of law?”

Although not a party to the proceedings below, the appellant is aggrieved by the acquittal and filed a notice of appeal on 12 May 2025; the relief sought by the appellant is for this matter to be remitted for a new trial.

Ms Khan now appears for the appellant; she did not appear below. At the trial Mr Marshall appeared in person, as he has done before me today. The second respondent (the CPS, acting as prosecutor) was represented by an in-house lawyer before the Court below, but it has not entered a response in the current proceedings nor sought to make any representations at this hearing.

Mr Marshall was issued with a notice of intended prosecution on 29 January 2024; which alleged that at 08:28 hours on 17 December 2023, at the A282 Dartford Tunnel approach road, Dartford, Kent, his Peugeot motor vehicle, registration number KV72 WZG, exceeded the 50 miles per hour speed limit, travelling at an average speed of 57 miles per hour. Mr Marshall has told me that the original notice gave a different location to later notices served, although the photographs taken of his car stayed the same.

On 21 May 2024 Mr Marshall was issued with a Single Justice Procedure ("SJP") Notice on behalf of the appellant. On 3 June 2024, he submitted a “not guilty” plea, by which he denied he had been driving in excess of the speed limit in a 50 miles an hour zone. He put the prosecution to proof that a reduced speed limit was in force at the time of the alleged offence. Given Mr Marshall's not guilty plea, the case was referred out of the SJP on 26 July 2024, for trial on 19 February 2025.

On 13 November 2024, the CPS served evidence upon Mr Marshall which was accompanied by a “Notice to Defendant: proof by written statement (CJ Act 1967 section 9, MCA 1980 section 1-2, MC Rules 1981 rule 70)"; this listed one statement from Mark Wood, dated 7 November 2024 (referred to as: “MG11-1”), and a number of exhibits, marked as “MW01” to “MW11”, although in fact only exhibits MW01 to MW05 were referenced in MG11-1. On the same date, Mr Wood produced a second statement (which was referred to as “MG11-2”), which was described as a “rebuttal statement” and addressed points identified in Mr Marshall's not guilty plea; it was this statement that exhibited MW06 to MW11.

It is unclear to me whether MG11-2 was in fact included within the documents served on Mr Marshall on 13 November 2024; absent this statement, however, exhibits MW06 to MW11 would not have been explained. In any event, Mr Marshall raised no objection to the evidence that had thus been served on him being introduced in writing.

At the trial on 19 February 2025 the CPS presented the two statements from Mr Wood to the Court, together with the exhibits MW01 to MW11. The images relied on by the CPS were viewed through the Court video presentation system.

The Court heard oral evidence from Mr Marshall. It was Mr Marshall's case that the evidence put forward by the CPS was contradictory and the photographs did not show the location of the offence as the CPS had described it and could not be relied upon. He has explained to me today that he does not believe he ever breached the speed limit and he felt something must have gone wrong, as indicated by the different locations that had been identified on the different notices of intended prosecution that had been served on him; that was the point Mr Marshall tells me he was seeking to make below, exhibiting two printed photographs (“GM/01” and “GM/02”) to support his case. No application was made by the CPS to call any live witness evidence to rebut Mr Marshall's assertions.

In stating the case, the Court also observed:

“We were not reminded by our Legal Adviser of the relevance of the statement MG11-1 and exhibits being served pursuant to Section 9 Criminal Justice Act 1967. We were not addressed on the omission of MG11-2 from the certificate of service.”

The case stated provides the following summary of the findings of fact made by the Court at trial:

Having found that the photographic evidence of the exit point was not sufficiently conclusive of its exact location, the Court concluded that the CPS had not proved the case beyond reasonable doubt, and therefore acquitted Mr Marshall.

The appellant relies on the evidence of Mr Wood in MG11-1. This had been served under section 9 of the Criminal Justice Act 1967, with no objection being raised by Mr Marshall. Mr Wood's evidence explained the review he had undertaken of the file, as maintained on “Star Dome”, a nationally accredited computer system that maintains an audit log of all actions associated with an individual case. As Mr Wood's statement set out, the speeding offence was recorded in this case by an unattended automated average speed machine (known as “SPECS3”), which is a prescribed device of a type approved by the Secretary of State for measuring the speed of motor vehicles. The device was measuring speeds over a known distance of 775 metres; a section of the carriageway referred to as the “detection zone”.

Mr Wood's statement explained that, at 08:28 on 17 December 2023, the vehicle in question was recorded leaving the detection zone sooner than the pre-set threshold speed would permit. That, he testified, caused the device to produce a record confirming the entry and exit times in and out of the detection zone, and showing photographic evidence of the vehicle and registration number taken at both entry and exit points. The device also recorded the average speed through the detection zone as 57 miles per hour.

As the appellant observes, Mr Marshall did not dispute that he was the driver of the vehicle in question at the relevant time, and he accepted the photographs exhibited by Mr Wood depicted him. The Court nevertheless found that the doubt introduced by Mr Marshall, as to the location of the exit point of the detection zone, was such that it could not be certain that the offence had been committed.

The appellant contends that, in reaching that conclusion, the Court failed to have regard to: (1) the sequential nature of the entry and exit photographs taken by the automated cameras shown on MW01, and (2) the fact that the cameras only capture evidence of vehicles travelling at excess speed. It is submitted that, in terms of both procedure and substance, the Court's consideration of the evidence was irrational so as to constitute an error of law.

By section 111 of the Magistrates' Court Act 1980, it is provided that any person who was a party to any proceedings before a magistrates' court or who is aggrieved by the conviction, order, determination or other proceeding of the Court may question the proceeding:

“on the ground that it is wrong in law or is in excess of jurisdiction”

by applying to the justices composing the Court to state a case for the opinion of the High Court on the question of law or jurisdiction involved.

Section 28A of the Senior Courts Act 1981 provides (relevantly) that where a case is stated for the opinion of the High Court pursuant to section 111 of the 1980 Act:

“(3)

The High Court shall hear and determine the question arising on the case (or the case as amended) and shall—

(a)

reverse, affirm or amend the determination in respect of which the case has been stated; or

(b)

remit the matter to the magistrates’ court, ... with the opinion of the High Court, and may make such other order in relation to the matter (including as to costs) as it thinks fit.”

As section 111(1) of the 1980 Act makes clear, a challenge to a decision of the Magistrates' Court to the High Court by way of case stated is only concerned with issues of law and jurisdiction. The High Court does not perform the role of fact finder. As the Divisional Court observed in Cuciurean v Crown Prosecution Service [2024] EWHC 848 (Admin) [31]:

“... an argument that a conviction was irrational or perverse on the evidence may be raised by way of case stated on the ground that the magistrates’ court must have misapplied the law in coming to its verdict; but a defendant who wishes to appeal on the basis that the conviction was against the weight of the evidence, and/or to challenge the magistrates' findings of fact, should appeal to the Crown Court rather than the High Court: ... It is not open to the High Court to depart from the facts stated in the case: see Wheeldon v Crown Prosecution Service [2018] EWHC 249 (Admin). ...”

The point is further made good by the Criminal Procedure Rules at rule 35.3(4)(d) and (5), which provides that, save where the question is whether there was sufficient evidence on which the Magistrates' Court could reasonably reach a finding of fact, the case stated must only state the facts found by the Magistrates' Court, and must not include an account of the evidence received by that court.

Thus, if the issue is one of fact, an appeal by way of case stated can only succeed if the finding amounts to an error of law, in that no reasonable tribunal could have reached the decisions reached by this particular bench (see Oladimeji v Director of Public Prosecutions [2006] EWHC 1199 (Admin)).

The decision under challenge in this case straightforwardly relates to the determination of a question of fact: where was the actual location of Mr Marshall's car when it was being photographed by the SPECS3 automated average speed machine, purportedly showing it was in the 50 miles an hour detection zone? This was the issue Mr Marshall had identified when entering his not guilty plea; he made clear his belief that he was in fact driving along a stretch of road that had a 60 miles an hour speed limit and that his (admitted) average driving speed of 57 miles per hour did not amount to an offence.

The questions posed by way of case stated ask, however, whether the Court's determination of this issue amounted to an error of law: taking account of the evidence adduced at trial, (a) was the acquittal a determination which any court properly considering the matter could reasonably make?, and/or (b) did the Court make findings of fact lacking an evidential basis?

The Court found the photograph at MW01(b) - showing Mr Marshall's car exiting the detection zone - did not enable the precise location to be identified. Viewing that photograph in isolation, that was a permissible finding: the image simply shows Mr Marshall's car in the nearside lane of a road of at least two lanes, with (on the passenger's side of the vehicle) an area alongside the car marked with chevrons and bordered by solid white lines; on the other side of that road marking there is a further carriageway, down the other side of which is a broken white line. The Court further concluded that it was not assisted by the photograph exhibited as MW11. That, again, was a permissible finding: MW11 shows a similar area with painted chevrons dividing the road from the other carriageway, albeit that the latter then seems to be bordered, on the other side, by a continuous white line, rather than a broken white line. The Court considered the two images sufficiently differed in appearance as to give rise to a reasonable doubt that they represented the same location. Simply looking at the two images in question, I cannot say the Court was not entitled to reach that conclusion.

The Court also took into account the second photograph adduced by Mr Marshall at the hearing (GM/02), which showed an aerial view of the A282, demonstrating there was another location further up the stretch of road, and within a 60 miles per hour limit, which was equally consistent with the image at MW01(b). I am unsure how this photograph confirms the speed limit at the location shown but, assuming the Court was entitled to find it showed a stretch of the A282 to which a 60 miles an hour speed limit applied, it would also appear to show the carriageway on the other side of the chevron-marked area as having a continuous white line along the other side. I do not know what, if any, features shown on GM/02 persuaded the Court that this might be the relevant location for the image at MW01(b), but, in any event, the reasoning provided does not go that far: the Court appears simply to have seen this as an image of another location that might cast doubt on the prosecution case.

Allowing that Mr Marshall was entitled to put the prosecution to proof, the question is whether the Court reached a permissible conclusion of fact in finding that it had failed to establish, beyond reasonable doubt, the location of the exit from the detection zone as shown in MW01(b). I cannot see that the photograph at GM/02 provided an evidential basis for that finding, but if the evidence was limited to the photographs then I accept the Court was entitled to conclude the images adduced by the prosecution did not establish that the record at MW01(b) was at the location shown on MW11 (where the 50 miles an hour signage is plainly shown).

The difficulty with the Court's reasoning is, however, that the evidence before it was not limited to the photographic images, and it appears to have taken no account of the unchallenged evidence in MG11-1 to the effect that the camera would only capture evidence of vehicles travelling at excess speed. Thus, the inference to be drawn from Mr Wood's statement is that it was the fact Mr Marshall was driving at a speed above the relevant limit within the detection zone that triggered the image at MW01(b).

Failing to have regard to that unchallenged evidence constituted an error of law, and, on that basis, I do find that the Court's findings of fact lacked an evidential basis such that the decision to acquit gave rise to an error of law.

Turning then to the appropriate relief, as I have already said, the order sought in the notice of appeal is for a new trial. Notwithstanding what I have said regarding the evidence before the Court below, given that I am not a fact-finding tribunal (and also bearing in mind that Mr Marshall appears before me today in person without having expected to make representations before the Court), I consider the appropriate course is indeed for me to quash the decision of the Court but remit this matter for a new trial, and I so order.