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> Primary evidence - formed or prior opinion , Discussion on the need for prior opinion
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The primary evidence for a speed trap run by police officers is not that produced by the speed meter, it is the opinion of the officer himself. The speed meter evidence corroborates his opinion and turns it from opinion into evidence of fact. This is supported by primary legislation RTA 1984 [1], the type approval instructions Speedmeter Handbook [2], the type approval conditions listed in the ACPO RPET code of practice for the meter’s use [3], the conditions for use in the ACPO RPET [4] [5] [6], and case law [7] [8].

So the evidence pack should contain an S9 WS from the officer where he ‘formed the opinion’ of excess speed. However sometimes this seems to be on the S20 instead, and sometimes the officer will attend court to provide his opinion.

If there is no such evidence then this should be fatal to the prosecution case, but they can and do convict without it [Dangerousdave, Hixxy]. One technique is to confuse the court between active and automatic speed meters: the latter by nature do not require ‘prior opinion’ but also then have a second independent means to verify the speed, such as marks on the road. Two still frames along with an S20 are sufficient for automatic unattended devices. This confusion is made easier when the meter is approved for both active and automatic modes, such as the Gatsometer BV 24, and/or does not appear to have a means to be manually operated in the first place.

In Scotland unfortunately the S20 alone is sufficient and the prior opinion of an officer is not required [9]. However, this section of the road traffic act further supports the case for prior opinion in England and Wales [NI unknown].

Whether a civilian can form a prior opinion is open to debate. This has not stopped successful prosecutions using evidence only from civilian operators of cameras [examples required]. The civilian primary evidence is being challenged in High Court currently [10] on the basis that there does not appear to be any law or statutory instrument that conveys such powers.

[internet links required for full documents. How much of the document needs to be taken to court? Article please someone!]

[1] Road traffic regulation act 1984 section 89 Speeding offences generally: one witness insufficient
(1) A person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence.

(2) A person prosecuted for such an offence shall not be liable to be convicted solely on the evidence of one witness to the effect that, in the opinion of the witness, the person prosecuted was driving the vehicle at a speed exceeding a specified limit.

(3) The enactments to which this section applies are--

(a) any enactment contained in this Act except section 17(2);

(b) section 2 of the Parks Regulation (Amendment) Act 1926; and

© any enactment not contained in this Act, but passed after 1st September 1960, whether before or after the passing of this Act.

(4) If a person who employs other persons to drive motor vehicles on roads publishes or issues any time-table or schedule, or gives any directions, under which any journey, or any stage or part of any journey, is to be completed within some specified time, and it is not practicable in the circumstances of the case for that journey (or that stage or part of it) to be completed in the specified time without the commission of such an offence as is mentioned in subsection (1) above, the publication or issue of the time-table or schedule, or the giving of the directions may be produced as prima facie evidence that the employer procured or (as the case may be) incited the persons employed by him to drive the vehicles to commit such an offence.
[2] Speedmeter handbook Sect 3.1: witness evidence crucial
3.1 Attended actively operated
Equipment designed to be set up and actively operated by a trained user. The accuracy of the evidence from such equipment is verified by the operator in every case at the time of the offence. Such equipment may or may not record an image of an offending vehicle, but its operations are at all times supervised and controlled by the operator, whose evidence of the offence is crucial.
[3] ACPO RPET P95: attended actively operated, not primary evidence
Example from p95 LTI 20.20
Light beam Speed Measuring Devices (laser)
Device: The LTI 20.20. TS/M "Speedscope"
Operating Modes: Attended Actively operated mode
Operating Criteria: Handheld or supported on a tripod and triggered by the operator, Approaching or receding traffic

Example from p99
Device: LASTEC Local Video System [for use with LTI 20.20 TS/M or LTI 20.20 TS/M "Speedscope" only] Operating Modes: Attended actively operated mode
Operating Criteria: Approved video attachment, Use is optional and the recording is not the primary evidence

Attended Actively operated mode
Hand held or supported on a tripod and triggered by the operator.
Approaching or receding traffic
[4] ACPO RPET P31: corroborates prior opinion
Note that the bold in this section is from the original document!
5. Attended Actively Operated Devices: Presentation of Evidence
Any prosecution depends upon the integrity of the method of operation, accurate observations by the officer operating the device and their professional presentation of evidence, if challenged, before the Court. It is in this area that the integrity of the device and its operation will be closely scrutinised.
Operators should record evidence concerning the target vehicle, such as speed, direction of travel, etc. Additionally, they should note any other factor (such as the presence of any other vehicle in the vicinity), which may be used in defence when challenging prosecution evidence. (Criminal Procedure & Investigations Act 1996).
All evidence must be properly documented.
The evidence from attended actively operated equipment corroborates the operator's prior opinion the target vehicle was travelling in excess of the permitted speed limit for the road or class of vehicle.
If the operator has any doubt as to the validity of the reading obtained by the device in comparison to their personal estimation of the speed of the target vehicle, then they will stop the check.
[5] ACPO RPET P65: corroborates prior opinion
14.2 Hand-held
Operators should bear in mind the device confirms and corroborates their prior personal observations and opinion.
[6] ACPO RPET P71: corroborates prior opinion
15. Cameras in, or attached to, enforcement devices
15.1 Introduction
This section deals with evidence and records made from video or camera attachments approved as part of, or for optional use with, specified Home Office and ACPO approved devices.
The devices in these combinations of equipment may be used separately where approval for such separate use has been given, e.g. Auto-vision and DS2.
The absence of a camera will in no way affect the type approval of the device should non-photographic operation be decided upon. Where a camera is attached to a Home Office approved device, the camera must have Home Office Type Approval for use in conjunction with that particular device.
If a camera attachment is used for recording purposes in the attended mode, one photograph will suffice as the device only corroborates the witness’s opinion.
[7] Nicholas v Penny KING'S BENCH DIVISION LORD GODDARD CJ, HUMPHREYS AND MORRIS JJ: Police opinion is the primary evidence
9 MAY 1950
Street Traffic – Excessive speed – Proof of speed – Evidence by one police officer of speedometer reading – Road Traffic Act, 1930 (c 43), s 10(3) (as substituted by Road Traffic Act 1934 (c 50), s 2(3)).
The appellant was convicted of the offence of driving a motor car in a built-up area at a speed exceeding thirty miles per hour contrary to the Road Traffic Act 1934, s 1(1). The only witness called for the prosecution, a police constable, stated that he followed the appellant's car over a measured distance, keeping an even space between him and the appellant, and that the speedometer in the police car showed a speed of forty miles per hour. Tests of the speedometer had been carried out before and after the day of the alleged offence by other officers who informed the witness of the result of those tests, but did not give evidence themselves. For the appellant it was contended that the constable had no personal knowledge of the correctness of the speedometer and that any evidence of communications received by him from the other officers was hearsay and inadmissible.
Held – A person might be convicted of exceeding the speed limit on the evidence of one police officer if it was supported by evidence of the reading of a speedometer or some other mechanical means by which the officer's evidence became evidence of fact and not of mere opinion; in the present case the constable alleged that his speedometer registered a speed of forty miles an hour; and that was evidence on which, if so minded, the justices might act, even though there was no admissible evidence that the speedometer had been tested.
[8] Darby v dpp [1995] RTR 294, 159 JP 533: Police opinion is the primary evidence
ROSE LJ: I agree. If the GR Speedman reading had been central to this case, and if it had produced a printout on which the prosecution had relied, Mr Browne's submission that the printout was caught by s 10(1)© of the Civil Evidence Act 1968 might well have had substance. But it was the police constable's opinion evidence which was central to the case, and that, as Penny v Nicholas and Swain v Gillett to which my Lord has referred show, was capable of being corroborated by a technical device, the accuracy of which had not been proved by an expert. This particular device is, we are told, not capable of producing a printout. Certainly none was relied upon.
Accordingly, and for the reasons given by my Lord, this appeal will be dismissed and the questions posed by the Justices will be answered in the way which he has indicated.
[9] Road Traffic Act 1991 (c. 40) S20 only sufficient evidence in Scotland
20. — (1) Evidence (which in Scotland shall be sufficient evidence) of a fact relevant to proceedings for an offence to which this section applies may be given by the production of—
(a) a record produced by a prescribed device, and
(B) (in the same or another document) a certificate as to the circumstances in which the record was produced signed by a constable or by a person authorised by or on behalf of the chief officer of police for the police area in which the offence is alleged to have been committed;
but subject to the following provisions of this section.
[10] High court appeal against civilian operators

Last update: Sat, 28 Jul 2007 - 15:25 by potkettleblack    Created: Sat, 28 Jul 2007 - 15:25 by potkettleblack    Edits: 1    Views: 6,451
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