APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Paton Lord Hardie	[2011] HCJAC 14 Appeal No: NO. OPINION OF THE COURT delivered by LORD HARDIE in STATED CASE by DANIEL JAMES COX Appellant; against PROCURATOR FISCAL, ABERDEEN Respondent: _______

Appellant: Brown; Drummond Miller LLP

Respondent: MacKay, A.D.; Crown Agent

15 February 2011

[1] On 16 September 2009, the appellant appeared for trial at the Justice of the Peace Court in Aberdeen in respect of the following charge to which he had tendered a plea of not guilty:

"On 24 September 2008 at North Esplanade West, Aberdeen, you Daniel James Cox did drive a motor vehicle, namely motor car registered number P632 LSR at a speed exceeding 30 miles per hour namely at a speed of 49 miles per hour; CONTRARY to the Grampian Regional Council (Restricted Roads, Aberdeen) (Consolidation) Order 1987 and the Road Traffic Regulation Act 1984 Sections 84 and 189."

The respondent called two witnesses, namely PC Steven Manson and PC Brendan Merchant, both of Grampian Police. In the course of the evidence of each of these witnesses, the appellant's solicitor objected to the admissibility of their evidence relating to the calibration of the speed measuring device used to detect the speed of the appellant's motor car on the date libelled. Their evidence was heard under reservation of the issues of relevance and competence. If the objection had been sustained, there would have been no evidence of the speed at which the appellant had been driving, as his speed had been recorded only by that device. At the close of the Crown case, the appellant's solicitor made a submission under section 160(1) of the Criminal Procedure (Scotland) Act 1995 to the effect that there was no case to answer. The Justice rejected that submission. No evidence was led on behalf of the appellant and the Justice convicted the appellant, fined him £250, payable at £40 per month and ordered three penalty points to be endorsed on his driving licence.

[2] Although five questions were posed for the opinion of the court, counsel for the appellant submitted that it was unnecessary to answer the first two questions and his submissions were focused upon questions 3-5 inclusive which were in the following terms:

"3. Upon the evidence before me, did I err in repelling the Appellant's no case to answer submission in terms of section 160(1) of the Criminal Procedure (Scotland) Act 1995.

4. Was there sufficient evidence the Unipar SL 700 laser speed detection meter unit serial number SL 70154 was accurate?

5. Was I entitled, on the facts proved and admitted, to convict the appellant of the charge as libelled?"

He invited us to answer question 3 in the affirmative and each of questions 4 and 5 in the negative. The focus of the submissions on behalf of the appellant was directed to the answer to question 4. The answer to that question would provide the answer to questions 3 and 5.

[3] At the commencement of the trial, the Crown had sought to lodge a certificate of accuracy of the apparatus used by the two police officers for measuring the speed of the appellant's car on the date libelled. Objection was taken to the use of the certificate, no certificate of calibration was served or produced, and the respondent required to rely upon the evidence of the two police officers about the accuracy of the apparatus.

[4] The relevant evidence about the accuracy of the device is in short compass. The first witness, PC Manson, was a 31 year old police officer with 8 years' police service, three of which had been in the Traffic Department. On 24 September 2008, he met his colleague, PC Merchant, at Nelson Street police office, Aberdeen. There they both carried out checks on a Unipar SL 700 laser speed detection device serial number SL 70154 which they intended to use later in the evening. The checks were carried out in accordance with an aide memoire that consisted of five distinct stages. The remote viewing screen was attached to the device and switched on. An audible sound was heard confirming that it had been switched on. The display indicated the "calibration due date", being the date when the device next required calibration. The date shown was at the end of November 2008. This date was checked against a sticker on the casing of the device which also gave an identical "calibration due date". The device is self-checking and the witness was familiar with and trained in the use of the equipment. He used the device almost every day in the course of his duties. He adjusted the camera on the back of the laser and found that the camera was working correctly and the viewing screen was accurate. He pressed the test button to start the test procedure sequence. He explained that when the alignment mode is reached in the sequence of checks, a red dot is duplicated on the screen and is used to target vehicles. A lamppost in the yard of a depot across the road from the police office is used as a target to test the laser device. As the witness passed the laser across the lamppost horizontally, his colleague observed the red dot on the screen. The dot was found to be accurate and correctly positioned. The device was then turned through 90 degrees to check the vertical alignment and this was also found to be working correctly. Thereafter a range test was carried out. He explained that when targeting a vehicle, the range will tell the operator how far away the vehicle is. At Nelson Street police office garage, there is a distance measured between two points. The laser device is placed on a mono-pod and fired at a board at the other end of the garage. The device measures the distance. This test was carried out three times to check the reading of the distance and to make sure that it was measuring the distance accurately. The distance measured from the board on the wall to the nail on the ground, on which the mono-pod sits, is written on a plate on the wall as being 30 metres. That distance had been measured by NESCAM (the local safety camera unit). The distance was displayed on the screen on each occasion and the readings taken were all within 20cms of 30 metres, which indicated to this witness that the device was accurately displaying the distance. At the conclusion of the tests, the witness concluded that the device was operating correctly and was within its calibration date. If it had failed any of its tests, he would not have used it. After testing the device, the witness and his colleague proceeded to carry out speed checks in the Aberdeen area, in the course of which the device recorded the appellant travelling at 49 miles per hour in a 30 miles per hour speed limit. At the conclusion of his duties the witness and his colleague returned to Nelson Street police office where they carried out identical checks to those undertaken earlier in the evening. Again the device was found to be working properly. He explained that the device does self-checks and will not give a reading if it is not working correctly. In cross-examination the witness confirmed that he did not calibrate the device himself and he did not personally measure the 30 metre distance at the garage in the police station.

[5] The second witness, PC Merchant, was a 32 year old police officer with 11 years' police service, seven of which had been in the Traffic Department. He had been trained by the manufacturers in the use of the Unipar SL 700 laser speed detection device. On 24 September 2008, he was on duty along with the previous witness. They were using the Unipar SL 700 laser speed detection device, a piece of equipment which he uses most days. He confirmed that the equipment is self-checking and displays the calibration due date. In this case the due date was at the end of November 2008. Checks were carried out including alignment checks and range checks. The range checks were carried out between two points at Nelson Street police garage described as points "A" and "B". The device was found to be working correctly and was placed in normal operating mode. He was satisfied that the equipment was accurate and safe to use. Thereafter he and his colleague detected the appellant travelling at a speed of 49 miles per hour in a 30 miles per hour limit. In cross-examination he confirmed that he had not personally calibrated the device but on a previous occasion he had personally measured the distance between point "A" and "B" using a fibreglass measuring tape. The distance was 30 metres. He did not measure the distance on the day on which the checks were carried out but had done so some time previously. The tape used by him had been supplied by Grampian Police Traffic Department.

[6] Counsel for the appellant submitted that it was necessary to have corroborated evidence of the accuracy of the device (McLean v McLeod 2002 SCCR 127). While it was not disputed that the two police officers had gone through the proper procedure to test the machine prior to its use and were trained to do so, their evidence was insufficient to establish that the machine was accurate. In particular, part of the test for accuracy involved a measurement of distance. Only one of the police officers had done so, whereas that measurement ought to have been corroborated (Hogg v MacNeill 2001 SCCR 134 cf Pervez v Clark 2001 SCCR 138).

[7] In response, the Advocate depute submitted that the evidence as to accuracy of the device was sufficient. The two officers had carried out the necessary checks. The device itself checks its accuracy and will not give readings if it is not working correctly. As far as the distance is concerned, all three measurements of the range had been within 20cms of a 30 metre distance. One witness was sufficient as to the measurement of the distance.

[8] In Gillespie v MacMillan 1957 JC 31 the court was concerned with an appeal against a conviction of a motorist driving at a speed in excess of the speed limit. Although the methodology adopted at that time did not involve the use of approved devices but rather the use by a police constable at each end of a measured distance of a stopwatch, the issue for the court was similar to the issue in the present case. The contention of the appellant in that case was that there was not sufficient evidence in law to warrant the conviction of the appellant, since the exact moment of entry into the measured distance was spoken to by one witness only, as was the exact moment of exit from the measured distance, and that each of these two events must be proved by two witnesses. In his opinion, Lord Justice Clerk Thomson stated at page 40:

"If law were an exact science or even a department of logic, there might be something to be said for this argument. By relying on the disparate qualities of space and time the logician can prove that in a race the hare can never overtake the tortoise. But law is a practical affair and has to approach its problems in a mundane common-sense way. We cannot expect always to have a tidy and interrelated picture; in real life a surrealistic element is apt to creep in, and the picture, though untidy and inharmonious may be a picture all the same."

Adopting that approach to the present case, we note that there are several adminicles of evidence which are of assistance in determining the question of whether the device has been proved to be accurate at the date libelled. The first is that the two police officers were experienced traffic officers who regularly used such devices and as such were familiar with them. In particular, they testified that the device displayed the date by which the machine had to be recalibrated. Second, they undertook tests of the machine prior to its use on that day. These tests disclosed that the date for calibration of the machine was shown by the machine to be in November 2008, a date in excess of a month after the date libelled. Third, the calibration date shown on the screen of the machine coincided with the date stamped on a label fixed to the machine. Fourth, when the laser was checked for accuracy in its horizontal and vertical planes against a lamppost within grounds opposite Nelson Street police office, it was found to be accurate in both respects. Fifth, when the device was placed on a mono-pod at a fixed point in the police garage and aimed at another fixed point the three separate readings each recorded a distance of 30 metres within a tolerance of 20cms. Sixth, the distance in question had been measured on a previous occasion by one of the witnesses and was established to be 30 metres. Finally, the device itself undertakes checks and will not produce a reading if it is not working correctly.

[9] We respectfully agree with the observation in McLean v McLeod that

"if proof of the precise speed at which a vehicle was travelling were necessary in order to prove the commission of an offence and if that proof was offered by reference to a device ..., then corroborated evidence of the accuracy of the device would be necessary to establish the charge."

However that does not mean that there has to be corroboration of every component part of the evidence. It is sufficient if the concurrence of testimony establishes the accuracy of the device, a fact which may be established in many different ways. In so far as the appellant seeks to rely upon Hogg v MacNeill, we are not persuaded that it vouches the proposition that a distance upon which proof of the accuracy of a device depends must be established by corroborated evidence. In that case, neither police officer had measured the distance of the section of road which was used to test the accuracy of the device in advance of its use and each of them depended upon hearsay evidence. In these circumstances the court merely determined that there should be direct evidence of such a measurement before it could be used to vouch the accuracy of an approved device. We are reinforced in that view by the Opinion of the Court in Pervez v Clark, a decision decided by the same Bench on the same date as Hogg v MacNeill. In Pervez v Clark only one officer had measured the distance but the court held that the distance did not require to be corroborated. In the present case when the evidence of PC Merchant, elicited in cross-examination, that he had personally measured the distance in the garage on a previous occasion and established it to be 30 metres is considered along with the other evidence of both officers about the tests undertaken by them in advance of using the machine and also at the end of their shift, we are satisfied that there was a sufficiency of evidence to entitle the Justice to conclude that the authorised device was accurate on the date libelled.

[10] For the foregoing reasons, we shall answer question 3 in the negative and questions 4 and 5 in the affirmative. Questions 1 and 2 are superseded.