BAILII Citation Number: [2009] EWHC B10 (Admin)
Case No. CO/3260/2008 

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 4th March 2009
 
B e f o r e:

LORD JUSTICE LAWS 

MR JUSTICE OUSELEY 
Between: 
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ROBBIE THE PICT 
Claimant

v 

CROWN PROSECUTION SERVICE 
Defendant 
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Mr M Shrimpton (instructed by Bhatia Best) appeared on behalf of the Claimant 
Mr J Cleary (instructed by CPS Nottingham) appeared on behalf of the Defendant 
PROCEEDINGS
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Judgment

1.	MR SHRIMPTON:  Good morning, I appear for Robbie the Pict, who is the appellant in this matter.  My learned friend Mr Cleary represents the Crown Prosecution Service but not the Director of Public Prosecutions, who is involved in related cases.  It is in your Lordships' court for directions only this morning.  Would it assist the court if I summarise very, very quickly the issues and the directions that we seek this morning?
2.	LORD JUSTICE LAWS:  Yes, thank you.
3.	MR SHRIMPTON:  The issue is a constitutional one as to whether or not the Secretary of State has taken from Parliament powers reserved to it and properly approved a red traffic light camera.  This case is a traffic light camera case.  We say the order on which the Secretary of State relies is either ultra vires or, if intra vires, works nothing because it does not approve this particular Gatsometer ‑‑ 
4.	LORD JUSTICE LAWS:  I did not recognise that as being the issue from the terms of the case stated.
5.	MR SHRIMPTON:  My Lord, one has to look beyond the question, of course, to the facts of the case.  We see at paragraph 3(1) reference to the camera.  This is the Gatsometer type 36.  This is a camera mounted on traffic lights.  There is no dispute about the facts.  They are found by the District Judge.  The argument was that the Gatsometer type 36 was not properly approved by Parliament.
6.	LORD JUSTICE LAWS:  That is to say whether or not it was approved by an order made by the Secretary of State under section 30(9) of the Road Traffic Offenders Act.  Such an order is required to be made by way of statutory instrument subject to resolution procedure ‑‑ 
7.	MR SHRIMPTON:  Exactly.
8.	LORD JUSTICE LAWS:  It is a simple question of fact whether there was a relevant statutory instrument or not.
9.	MR SHRIMPTON:  The statutory instrument on which the Crown Prosecution Service rely, we say, is plainly ultra vires.  That is the way in which it was argued below.  The question stated by the District Judge is stated in short order, but it obviously includes the issue of vires of the statutory instrument on which the Secretary of State relies. 
10.	LORD JUSTICE LAWS:  You want to say that the putative statutory instrument relied on was ultra vires for some reason.
11.	MR SHRIMPTON:  My Lord, yes.  It clearly must be because ‑‑ 
12.	LORD JUSTICE LAWS:  This hearing is for directions only.  
13.	MR SHRIMPTON:  Exactly.  The problem is that the statutory instrument on which the CPS rely makes no reference to Gatsometer 36.  The agreed fact is that the Rover motorcar is caught by a Gatsometer type 36, a red traffic light camera; agreed that the statutory instrument on which the CPS rely makes no reference to that, so the issue can be shortly be stated: is it sufficient for the purposes of the Act for there to be a statutory instrument making no reference to the camera on which the CPS rely? 
14.	LORD JUSTICE LAWS:  You tell me what directions you are seeking.
15.	MR SHRIMPTON:  My Lord, in addition to this case there are very similar issues in relation to speed cameras.  The constitutional point affects all speed cameras in use in the United Kingdom, some 2.5 million cases per year ‑‑ 
16.	LORD JUSTICE LAWS:  Subject to my Lord, I am not going to link this with any other cases.  This is a short and straightforward case and ought to be treated as such.
17.	MR SHRIMPTON:  The difficulty with that approach, with great respect, my Lord, is that the issues are very similar to those raised in the speed camera cases.
18.	LORD JUSTICE LAWS:  No doubt the parties in those cases will be interested in the court's judgment in this one.
19.	MR SHRIMPTON:  My Lord, the first case is to be heard in Edinburgh on 26th March.  The same appellant in this case is also an appellant in the first of the two Scottish appeals which are listed before the High Court of Justiciary in Edinburgh on 26th March.  I shall be going up to watch those proceedings.  I would strongly urge the court to consolidate this case with the case of Brotherston, which was decided in Manchester last month where the application to state a case has been lodged and there are some 14 other cases at various stages of the legal system, either awaiting fixed dates in Magistrates' Courts or fixed dates in the Crown Courts.  Two Magistrates' Courts are adjourning, it would seem, all speed camera cases.  They are awaiting the outcome of this case. 
20.	MR JUSTICE OUSELEY:  It should be got on as quickly as possible, should it not?  Even the Scots may help.
21.	MR SHRIMPTON:  My Lord, it is perfectly clear that the judge of the High Court of Justiciary in Edinburgh is bound to be of assistance.  The points raised are very similar.  That is the first application.  The second suggestion, which is a matter entirely for the court, is that it might be reserved to the Lord Chief Justice.
22.	LORD JUSTICE LAWS:  I do not think so.
23.	MR SHRIMPTON:  My Lord, it affects a very large number of cases.
24.	LORD JUSTICE LAWS:  Thank you.
25.	MR SHRIMPTON:  The third is we need to fix a date if we can today, and a time estimate.  Skeletons and bundles, I imagine, will follow almost automatically from the fixing of the date and there is an application to extend Legal Aid for a solicitor and/or a junior counsel. 
26.	LORD JUSTICE LAWS:  You do not need another counsel, Mr Shrimpton.  Your shoulders are broad enough.
27.	MR SHRIMPTON:  Thank you for your Lordship to suggest that.  I do have the details of the dates and the other cases ‑‑
28.	LORD JUSTICE LAWS:  We will ask you for that if we need it.  Thank you, Mr Shrimpton. 
29.	MR CLEARY:  My Lord, I fear I have not been instructed as to the issue of joining this case with other matters.
30.	LORD JUSTICE LAWS:  We do not propose to make any order for joining.
31.	MR CLEARY:  I am obliged.  I would agree with your Lordship's observations that it is very simple whether it is ultra vires or not.
32.	LORD JUSTICE LAWS:  What we think is required in this case by way of directions is very short and simple.  First of all, there should be an agreed bundle of documents.  It can be very short.  It must include the actual or putative statutory instrument relied on as a statutory authorisation, and any other documentation that relates to arguments concerning that statutory instrument.  Then there must be skeletons, obviously, and an early hearing date.  I think that is all.  Whether we can fix a date today, I am not sure that the listing people would thank us for doing that.  This will only take about an hour and a half.
33.	MR SHRIMPTON:  I would suggest two days.
34.	LORD JUSTICE LAWS:  Mr Shrimpton, this is not a two day case, not remotely.  The court's estimate of time for this case is half a day, and we propose to fix a date.  When is the Easter vacation?  When did you say the Edinburgh case is?
35.	MR SHRIMPTON:  It is listed for a full day in the High Court of Justiciary on 26th March. 
36.	LORD JUSTICE LAWS:  I do not know when they will give judgment.  They may give judgment straight away.
37.	MR SHRIMPTON:  I spoke to the solicitor in Edinburgh.  I think it is anticipated they will have a judgment at the end of the day.
38.	LORD JUSTICE LAWS:  Subject to my Lord and any further submissions, I would suggest ‑‑ and if it is agreed I will fix ‑‑ the date for half a day's hearing in the first week after the Easter vacation.  I think the court is agreed as to that.  Does anyone have any observations about that?
39.	MR CLEARY:  No, my Lord.
40.	MR SHRIMPTON:  I am in difficulties professionally in the sense that I am prosecuting a two day trial where there has been very great difficulty in fixing it.  It is spread over two days on the Tuesday and Thursday of that week.  I am in front of the Birmingham Magistrates arguing a speed camera test case on the 15th.  I appreciate this court takes precedence, but it is not an easy brief to return because of the complexity of the constitutional point.
41.	LORD JUSTICE LAWS:  We might be prepared to fix it for the week following.  Do you have anything to say, Mr Cleary?
42.	MR CLEARY:  No, my Lord.
43.	LORD JUSTICE LAWS:  We direct that the office list this case for half a day's hearing in the week commencing Monday 20th April.
44.	MR SHRIMPTON:  I have another speed camera fixed trial date at Scarborough Magistrates' Court on the 20th.  Might I ask for beginning the 21st? 
45.	LORD JUSTICE LAWS:  Yes.  It will be listed on any of those four days, Tuesday 21st to Friday 24th inclusive.  We do not reserve the case to any particular constitution of the court.
46.	MR SHRIMPTON:  Might there be Legal Aid for the solicitor because there is going to be a certain amount of work to do. 
47.	LORD JUSTICE LAWS:  Yes.  You will have Legal Aid for a solicitor, Mr Shrimpton, but no junior counsel. 
48.	MR JUSTICE OUSELEY:  Can you make sure the device approval document is included in the bundle.
49.	LORD JUSTICE LAWS:  Yes.
50.	MR SHRIMPTON:  Yes indeed.  As I understand it, although the DPP is doing the speed camera cases, this matter will remain with the CPS.
51.	LORD JUSTICE LAWS:  We make no directions about that. 
52.	MR JUSTICE OUSELEY:  You cannot choose your opponent.
53.	MR SHRIMPTON:  I am obliged.