Iaciofano v Director of Public Prosecutions

Judicial notice cannot establish that a device is approved where reliable, objective and admitted evidence shows that approval to be false. Nor can approval be inferred solely from evidence that the device is widely used by police vehicles, particularly where the witness does not know whether it has been approved. The statutory evidential code for approved devices is permissive. However, an appellate court should not affirm a conviction on an alternative evidential basis that the magistrates did not clearly adopt. Where the case stated identifies only an erroneous basis for conviction, the proper course may be remission for retrial, provided the delay and other circumstances do not make a retrial unfair.

The claimant appealed by way of case stated against his conviction by Kingston upon Thames Magistrates’ Court for speeding contrary to sections 84 and 89(1) of the Road Traffic Regulation Act 1984, with the applicable provisions of the Road Traffic Offenders Act 1988. The alleged speed was recorded by a Police Pilot Provida device.

The magistrates found that the device was approved under the statutory scheme and treated the resulting evidence as conclusive and corroborative. It later emerged that the device had not been approved. The central issues were whether the magistrates had been entitled to take judicial notice of approval and whether the conviction could nevertheless be affirmed on an alternative basis.

1. The stated question was answered in the negative. The respondent accepted that the Police Pilot Provida device had not been approved by the Secretary of State for the purposes of section 20 of the Road Traffic Offenders Act 1988. Judicial notice cannot establish a fact shown by reliable, objective and admitted evidence to be palpably false (para [4]).
2. The magistrates were also wrong to infer approval solely from evidence that the device was installed in many police vehicles. The relevant officer did not know whether it had been approved. The principle in Roberts v the DPP [1994] Road Traffic Reports 31 supported that conclusion (para [5]).
3. Section 20 provides a permissive evidential code and is not the exclusive means of proving speeding. Evidence outside the code may include a properly corroborated police officer’s opinion or other evidence. That general principle was identified by reference to Nicholas v Penny 1952 All England Reports 89 (para [7]).
4. Despite the court’s wide powers under section 28(8)(iii) of the Senior Courts Act 1981, it was inappropriate to affirm the conviction on an entirely different basis. The case stated showed that the magistrates’ decision depended on the erroneous finding that the device was approved. No explicit alternative basis was discernible (paras [6], [9]–[10]).
5. The matter was remitted to a differently constituted bench for retrial. The nine-month delay did not create such unfairness or prejudice as to prevent a fair retrial. The magistrates were to determine what evidence should be heard (paras [11]–[16]).

• Kingston upon Thames Magistrates’ Court: convicted the claimant on 22 January 2010.
• High Court (Administrative Court): answered the case-stated question in the negative and remitted the matter to a differently constituted bench for retrial.