APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Wheatley	[2014] HCJAC 39 XJ87/14   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   STATED CASE   by   GARY CUSICK Appellant;   against   PROCURATOR FISCAL, AIRDRIE Respondent:   _____________

Appellant: MacKintosh; John Pryde & Co

Respondent: Fairley, QC AD; the Crown Agent

 

6 May 2014
[1] On 28 October 2013, at Cumbernauld Justice of the Peace Court, the appellant was found guilty of driving on Castlecary Road, Cumbernauld at 49mph, which was in excess of the 30mph speed limit, on 1 March 2012, contrary to the Road Traffic Regulation Act 1984, sections 81 and 89. He was fined £300 and 4 penalty points were imposed on his licence.

[2] During the trial the appellant objected to the evidence from the police about the readings from a Unipar SL700 laser speed detection device, on the basis that the conditions of the relevant Approval Order had not been satisfied. In this regard, section 20(4) of the Road Traffic Offenders Act 1988 provides that the record produced by a prescribed device is not admissible as evidence unless that device is of an approved type and any conditions, subject to which the approval was given, are satisfied. Section 20(5) provides that any approval may be given subject to conditions as to the purposes for which, and the manner and other circumstances in which, any device is to be used (see, generally, Robbie the Pict v Corrins 2009 JC 11).

[3] The objection was that, in terms of an agreement between the Home Office and the manufacturer, relative to the Unipar SL700, there was a condition (Clause 14) whereby the manufacturer was required to advise if there was any change in the legal personality of the manufacturer. The agreement itself bears to run in the name of Unipar Services, but the signatures appended to it are under the name Unipar Services Limited. In terms of a letter dated 4 December 2012 from Companies House, the limited company was dissolved in 2008 and there was no evidence that the Home Office had been notified of this event. According to the appellant, therefore, this was a breach of a condition. However, a letter from Unipar Services intimates that it is a continuing partnership which continues to service the Unipar SL700. The limited company had been formed for another purpose, which had since passed. The use of "Limited" on the agreement had been an error.

[4] The Justice of the Peace, having taken advice from his clerk, reasoned that the condition founded upon was not one of the type referred to in section 20(5). In addition, he was not persuaded that the dissolved company was the same one as was specified on the agreement. The objection was therefore repelled. The evidence continued with the police stating that they were familiar with, and trained in, the use of the Unipar SL700 and that it was an approved device. The Approval Order, namely the Light Beam Speed Measuring Device Approval 2005, was duly produced.

[5] The argument today follows that which had been made in the Justice of the Peace Court; notably that there was a condition attached to the Approval Order as contained in the agreement and that that condition had been breached because of the non-notification of the dissolution of the manufacturer as demonstrated by the letter from Companies House. In response to the general argument, the advocate depute advanced 4 propositions. First, the Approval Order was ex facie unconditional and, whatever the terms of the agreement were, they did not form part of the conditions of that approval. Secondly, if that were wrong, on a construction of subsections (4) and (5), the condition in the agreement was not one which was covered by subsection 20(5) as it did not relate to the purposes etc of the device. Thirdly, if it were a condition in terms of subsection (4), then what had happened to the company did not amount to a contravention of the condition since, as the company had been dissolved, it could hardly have done anything subsequent to that event to purify the term. Finally, if all of these arguments were wrong, then the agreement simply contained a misnomer in relation to the manufacturer (Nittan UK v Solent Steel Fabrication (1981) 1 Lloyd's LR 633 and Derek Hodd v Climate Change Capital [2013] EWHC 1665).

[6] The arguments advanced by the advocate depute are well founded. First, the terms of the Approval Order are clear and there is no reference in it to any condition, far less one relative to notification as described in the agreement. The agreement bears to be a private contract between the manufacturers and the Home Office, which has no bearing at all on the Approval Order and the purposes for which the device could be used. Secondly, in any event, section 20 has to be construed as a whole and, when that is done, it can been seen that the reference to a condition must be one which is permitted by subsection (5); that is to say one which relates to the "purposes for which, and the manner and other circumstances in which, any device ... is to be used". The term in the agreement is not one which would fall under that heading.

[7] That disposes of the appeal, although the court considers that there is force in the two subsidiary points which were advanced by the Crown. In these circumstances, the court will answer the questions in the affirmative and refuse the appeal.