Director of Public Prosecutions v Thornley

The statutory procedure for admitting records and certificates from prescribed devices is permissive. Failure to comply with its service requirements prevents reliance on the statutory shortcut, but does not prevent the same record being admitted and proved in the ordinary way as real evidence. A witness may identify the record and give evidence about the circumstances in which it was produced. Where late service causes a defendant practical disadvantage, the appropriate safeguards include an adjournment and, where justified, an order for costs thrown away.

The Director of Public Prosecutions appealed by case stated from the Cheshire Justices, who dismissed an information alleging that John Thornley had exceeded a temporary 40 miles per hour speed limit. The prosecution relied on images produced by a prescribed speed-detection device. The images were served less than seven days before trial.

The justices held that the failure to comply with section 20(8) of the Road Traffic Offenders Act 1988 made the images inadmissible and that the responsible police officer could not use the device data as an aide-memoire or give oral evidence of the speed. The central issue was whether non-compliance with the statutory service procedure prevented the record being admitted and proved by other means.

1. Appeal allowed. The justices were wrong to conclude that failure to comply with the seven-day service requirement necessarily precluded admission of the device record. The matter was remitted to the Magistrates’ Court for hearing.
2. Section 20(1) and (8) of the Road Traffic Offenders Act 1988 provides a statutory means by which a prescribed-device record and certificate may be tendered without calling a witness to prove them. The language is permissive. It does not exclude other admissible methods of proof.
3. The statutory scheme has the same effect as the corresponding breathalyser provisions considered in Garner v Director of Public Prosecutions [1990] RTR 208. The record produced by the device was real evidence and could be admitted at common law if properly produced and proved. The statutory provisions enable the record and certificate to establish the matters stated without requiring the maker to attend.
4. The prosecution had put the SVDD record in evidence. Police Constable Troup could identify the record and give evidence about the circumstances in which it was obtained. The record itself was therefore capable of proving the recorded speed. The distinction from Owen v Chesters [1985] RTR 191 was that, in that case, the machine printout had not been produced.
5. The court did not need to determine the second question concerning use of the data as an aide-memoire. If late service placed a defendant at a disadvantage, the defendant could seek an adjournment to analyse or have the record scientifically examined. An order for costs thrown away could also be sought.

• High Court (Administrative Court): allowed the appeal by case stated from the Cheshire Justices and remitted the matter to the Magistrates’ Court for hearing.
• Cheshire Justices, Warrington: dismissed the information after ruling the prescribed-device evidence inadmissible.