APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Philip	[2012] HCJAC 132 XJ534/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL BY STATED CASE by JAMIE JAMES WILLIAMS Appellant; against PROCURATOR FISCAL, PERTH Respondent: _____________

Appellant: S Collins, solicitor advocate; Wilson McLeod

Respondent: A F Stewart, QC AD; Crown Agent

25 September 2012

[1] On 6 March 2012, at the Justice of the Peace Court in Perth, the appellant was found guilty of speeding at 103 mph on his motorcycle on the M90 Perth to Inverkeithing road on 15 May 2011; contrary to the Motorways Traffic (Speed Limit) Regulations 1974, regulation 3 and the Road Traffic Regulation Act 1984, section 17(4).

[2] The respondent led the evidence of two experienced police officers, who spoke to their detection of the appellant's speed using a Unipar laser device. They were both trained in the use of this particular device. They had used it frequently in checking the speed of motorists. The officers said that they had tested the device before setting out on patrol that day. This involved a range test and an alignment check. The first officer stated that he believed that the device was calibrated by the manufacturers annually and the second spoke to it being licensed for police use. It had a sticker on it showing that its annual calibration had been carried out. There was also a joint minute lodged, which included a Home Office headed document called "Agreement for a Light Beam Speed Measuring Device". This undated and unsigned document indicated that the Secretary of State had intended to approve the Unipar device.

[3] The police officers testified that they had observed the motorcycle approaching the flyover, where they were positioned, at what seemed to be an excessive speed. On training the Unipar device upon the motorcycle, a recording of 103 mph was made. The police pursued the motorcycle at speeds of up to 110 and 130 mph and stopped it.

[4] At the end of the shift, the device was tested as before and satisfactory results were obtained.

[5] At the trial, the appellant had made a no case to answer submission based upon the absence of evidence on the accuracy, calibration and type approval of the Unipar device. At the appeal hearing it was accepted, as it was bound to be, that there had been sufficient evidence of accuracy and calibration. The primary question for this court was whether there had been enough evidence of the approval of the Unipar device for the purposes of recording speed. In that regard it was conceded that Mackie v Scott 1992 SCCR 614 posed certain problems for the appellant (infra). Nevertheless, it was argued that, standing the content of the Home Office document, the issue of whether the device had ever been approved was contentious, and, if there was such a problem relative to the authorisation, it would not be legitimate to draw an inference from other facts and circumstances.

[6] The Crown response was essentially one which founded on Mackie v Scott (supra) and, in particular, the entitlement of the Justice of the Peace to infer approval from the evidence: that the police officers had received training on the use of the device; that it was used by the police on a daily basis; and that it was being used to carry out checks on the speeds of all relevant vehicles on the particular road.

[7] The court considers that Mackie v Scott 1992 SCCR 614 is determinative of this appeal. It is authority for the proposition that a court can infer that a device has been approved by looking at all the facts and circumstances. There was, first, the Home Office document, which certainly suggests that there was an intention to approve the Unipar device. The court remains somewhat baffled as to why the approval order was not simply produced, given that that could have been done very quickly and easily. A copy can, for example, be downloaded from the internet. Nevertheless, the existence of the document which was produced, coupled with the evidence of the police that the Unipar device was in regular use by them, that they had received training on it, and that it was used generally on this road to check speed, was sufficient for the Justice of the Peace to hold, as is indeed in fact the case, that the Unipar device is approved.

[8] In all these circumstances, of consent, the court will answer the second and third questions concerning accuracy and calibration in the affirmative. It will answer the contentious question four (on device approval) also in the affirmative, the first question (on entitlement to repel a no case to answer submission) in the negative and the fifth question (on whether the JP was entitled to convict) in the affirmative. The appeal is therefore refused.

DL