By Marcus A Johnstone, Solicitor
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Listed below are my ‘21 Top Tips’ to finding fault with the evidence against you. All the points listed below are important and ones which I would check in every case for my own clients when searching for a mistake or ‘loophole’ in the evidence. (I do, however, also check about a further 100 more detailed and complicated points!)
Marcus A Johnstone is a senior solicitor who specialises in Road Traffic Law, especially speeding defence law. He has appeared on BBC Television, BBC Radio and has been quoted in national and regional press, including the law section of The Times. More recently he could be heard on the Jeremy Vine show on BBC Radio 2 discussing speed cameras.
Marcus runs his own law firm specialising in motoring defence law. He has an exceptional reputation for winning cases and is known for finding mistakes or ‘loopholes’ in the prosecution evidence. With a superb success rate he is in demand throughout England and Wales. He is able to represent you in any Magistrates’ Court.
Marcus has written numerous articles for publications and has designed and presented training seminars for other lawyers. Prior to entering private practice as a solicitor Marcus spent several years working as a lecturer in law and politics.
1. You should not be convicted solely on the evidence of one police officer alone.
As there is only one police officer operating the laser device it is vital that the officer has additional evidence to corroborate his opinion as to your speed. His word alone is not enough for a conviction.
Section 89(2) Road Traffic Regulation Act 1984 states:
“A person prosecuted for [a speeding] 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.”
The police will use the laser device as corroborative evidence. Therefore, if the police cannot prove that the laser device was working correctly it does not matter that the police officer says you were speeding. Without the back-up of a correctly used laser device you should not be convicted.
The only exception to the above is if you are caught speeding on a motorway. Strangely, the law does allow the evidence from one police officer alone to be used to prove speed. However, in my experience the police officer will still use a speed device to corroborate his opinion, even if the motorist was on a motorway.
2. You should not be convicted solely on the evidence of the laser device.
As noted above in point 1 above, the laser device is only there to corroborate the evidence of the police officer. If the officer does not document his own opinion of your speed correctly then it does not matter what speed the laser recorded.
The police officer should provide evidence of his ‘prior opinion’ of your speed. This means that he should have formed an opinion as to your speed before using the laser. If the officer simply aimed the laser at every passing car – panning from one car to another – then how did he form a ‘prior opinion’ that you were exceeding the speed limit before using the laser?
3. You should not be convicted unless the police have BOTH ‘primary’ and ‘secondary’ evidence.
Primary evidence relates to the ‘prior opinion’ of the officer as to the speed of your vehicle. Secondary evidence relates to the speed and distance recorded by the laser device. As you will have noted from points 1 and 2 above, one without the other is not enough!
But what if the police officer states that he formed a ‘prior opinion’ that you were speeding? Does this amount to primary evidence? Well, unless you challenge it, it will. You may want to consider how the officer formed his opinion as to your speed, and whether it is accurate. For example, is it realistic that an officer could tell the difference between 60mph and 50mph looking head on at a car some 1000 feet away? How about 70mph and 50mph? The car looks like it is hardly moving at that distance.
I have recently had a case where the police officer formed an opinion that my client was speeding when he was 2057 feet away, directly behind another vehicle and could not be seen by the officer.
It is important therefore to consider the alleged speed and the distance involved. For example, if the laser device recorded your vehicle as being 1000 feet away, then if the officer did form a ‘prior opinion’ before using the laser, then you may have been some 1300 feet away, or more. Has the officer ever attended a training course to teach him how to estimate car speeds when viewed several hundred feet away? Unlikely, as there is no such course as far as I’m aware.
Who do you think would be able to give a more accurate indication as to your speed – the untrained officer standing 1300 feet away, or you, the actual driver with the speedometer in front of you? Remember that your evidence is important, but unless you challenge the evidence of the police the court will never get to hear what you have to say. More importantly, if your evidence is presented to the CPS in the correct way then your case may never even reach court as the CPS may decide to drop the case.
Secondary evidence relates to the information produced by the laser device. So what can go wrong here? The police have often said to me that lasers are 100% accurate. Consider the points below and make up your own mind!
Consider also the location where the officer obtained the evidence. Was he stood or parked on private land (the entrance to someone’s driveway, perhaps) and, if so, did he have permission from the land owner? Was the officer’s car or van parked on a pavement or a grass verge? If so, did he have permission from the Highways Authority? It’s always worth asking the questions!
4. Was the officer using an approved device?
This means that the laser device has to be a prescribed device – Home Office approved and satisfying any conditions laid down by the Home Office. If not, the evidence should not be used.
It may be accepted with established laser devices that they have approval, but what about new devices, and have you checked for conditions?
The police and CPS are usually very keen to inform you that the device is approved, but are usually not so keen to prove it. A certificate or statement may be provided from the police clearly setting out important details relating to the speed measurement in your case, the circumstances in which it was made, or stating that all conditions were satisfied. This is a complex area of law where the police and the CPS do not always do what they should – leading to cases being thrown out of court.
I find that the police and the CPS are continually making mistakes in this particular area and I have won several cases simply because the police failed to do what they were legally obliged to do. If you think that you have not been provided with the correct information from the police, please discuss this with your solicitor.
5. Is the laser actually measuring your speed?
Were you informed that the laser recorded you exceeding the speed limit? This may be incorrect. The laser device only measures the time it takes for a laser beam to hit a target and be reflected back to the device. For this reason the police will ‘fire’ several laser pulses at the target vehicle. By taking a number of measurements the device will calculate the distance travelled over a certain time, thus producing your alleged speed. But this is subject to several possible problems (see below).
6. How wide is the laser beam?
The police will often take great pleasure in explaining that the laser device is so accurate because it has such a narrow laser beam and therefore it only ‘hits’ your number plate before being reflected back (the police usually aim at the number plate as it is a flat surface with a reflective material). I have personally had a number of cases where the police have explained that the laser beam is only a few centimetres wide when hitting the car.
However, laser devices are subject to beam ‘spread’. By the time the laser ‘hits’ your vehicle the width of the beam can be considerably wider than the few centimetres the police may have led you to believe. As an example, at just 400 metres the laser beam can be up to 1.2 metres wide! At 800 metres it can be up to 2.4 metres wide! Even if the laser device has been aligned correctly (and it may not have been – see below) the laser is therefore being reflected back from several different objects and angles – and possibly not even your vehicle.
Consider my recent case referred to above where my client was 2057 feet from the laser. The laser beam would be over 8 feet wide at this distance!
I have dealt with hundreds of cases over several years and yet there has only been one case where the police officer acknowledged in his initial statement that the laser beam was subject to considerable beam spread. This indicates that the police will not tell you this – either because they don’t want you to know or because they don’t know.
7. Was the laser aligned with the sight?
Did you ever fire an air rifle as a kid and wonder why you missed the target? You could be looking through the sight, aiming directly at the target, but miss completely. Why?
Firing a laser device is, by analogy, like firing a gun. Every laser device will have a separate aiming device mounted on the top – similar to a telescopic sight. Have you seen films on television where the assassin trains his telescopic sight onto the target – usually with cross-hairs or a red dot in the sight to
assist with aiming? It all looks so simple, doesn’t it? In fact it is incredibly easy to miss and great care needs to be taken to ensure that the sight is aligned with the precise spot where the bullet, or laser beam, will hit.
An added problem is that the laser beam is invisible! If you miss the target with a bullet from a gun you know immediately – because there is no bullet hole in the target and you can see the damage caused by the bullet nearby! But if the laser beam is invisible, and does not create any mark, how can the officer know it has actually ‘hit’ your vehicle? He doesn’t!
The police should follow a precise procedure for aligning the sight with the laser – both before and after it is used to detect an offence. It is also recommended that this set-up is carried out at the site where it is to be used. In addition, the police should record and document this procedure and supply evidence that it has been carried out correctly. Have you been provided with such evidence? My guess is that you have not – because, in my experience, the police do not always have it!
Beware of being misled by wording usually inserted in police witness statements saying: “the device was aligned in accordance with manufacturer’s instructions”, or words to that effect. This is automatically generated by computerised witness statements and does not mean that it has actually been done. I have personally had numerous cases where the police officers using the laser devices did not know how to carry out a correct alignment check, even though they made statements that it had been done.
What’s more, not only does that alignment check have to be carried out accurately and in accordance with manufacturer’s instructions, the police are also subject to the Association of Chief Police Officers Code of Practice for the use of such devices. This also lays down additional rules as to how the police officer should document his alignment check for use as evidence. Guess what, in my experience the police do not document this procedure correctly, or at all!
Please note that it may be of assistance if you check out my booklets that I have written relating to laser and radar devices. These booklets summarise all the correct procedures relating to the use of laser and radar devices and presentation of evidence, along with tick boxes for you to assess the weight of evidence against you. More information can be found at www.speedingsolicitor.co.uk.
8. Did the police carry out a distance check?
The laser device will measure the distance from where the officer was stood to where you were allegedly speeding. If you have been recorded onto video then the distance is superimposed onto the video along with various other details such as your alleged speed, direction of travel, log number, etc. If you have received a Summons from the court then you should also have been provided with a statement from the police officer who operated the laser device stating your alleged speed and distance.
So why is the distance important? It’s all down to a mathematical equation: speed equals distance divided by time. As noted above, the laser beam does not measure speed, it only measures the time it takes for a series of laser beam pulses to hit a target and be reflected back to the device. The device will therefore need to perform a series of calculations – to assess the distance travelled over a known time – to determine your speed. By carrying out a distance check before using the device the police are able to determine whether the device is working correctly. It is also important that a distance check is carried out after the device has been used to detect an offence.
It is extremely important to check that the police did actually carry out a distance check properly and
there is evidence to prove the distance check was accurate. This is an area where the police and / or the CPS often make mistakes – leading to cases being dropped. Believe it or not, I often find that the police and the CPS do not even know how to prove the accuracy of the distance check and so just don’t bother! Unfortunately, if you don’t know either, and no mention is made of it, then chances are you will be convicted.
9. Did the police complete a timing accuracy check?
For the same reason as a distance check is required, it is also recommended that the police carry out a timing accuracy check prior to using the device. This is where the police officer ‘fires’ the device against an object where the speed of that object is already known. This is an extra check to ensure that the device is making the correct calculations.
10. Was a video connected to the laser device?
If the laser device was operated from van parked at the roadside then it is likely that it was attached to a video recording device. This can help in the defence of your case considerably. It is important to check the accuracy not just of the laser device but also the video camera, the camera control unit and the video recorder.
Again, the police are often at pains to stress that the video proves your speed. Rubbish! The video does not prove your speed, it is only a contemporaneous record of your vehicle being at that location. In addition, the video may not even be recording the vehicle that the laser is aimed at. For example, if a video was used in your case, how do you know if the cross-hairs on the video camera (showing where the camera was aiming) were aligned with the red dot on the laser sight? Even then, you cannot be sure that the red dot on the laser sight was actually aligned with the laser beam. Two separate alignment checks have to be completed.
The video should also show what checks, if any, have been completed by the police before and after the use of the laser device (distance, timing, alignment). It can also be very useful evidence to assist your argument that the officer did not form a correct ‘prior opinion’ as to your speed – because he was simply panning from one car to another.
The speed produced from the laser device will be superimposed onto the video – but this does not mean that the video proves the speed is correct. If the laser is wrong, the speed on the video will be wrong.
It may be important to obtain the video recording – although, not surprisingly, the police are very reluctant to disclose it.
11. The problem with movement.
Have you ever taken a photograph only to find that the picture was blurred because you didn’t keep the camera steady? Now imagine you are trying to take a photograph of a moving car several hundred feet away, through a telephoto lens. Even the slightest movement is magnified.
Whether the police officer was stood at the side of the road or in a van, the vibrations from passing traffic add to the problem of movement. The important point here is that if the officer moved the device a fraction as he pressed the trigger the laser may have ‘hit’ another vehicle close to yours. Even the slightest of movement on the laser device can result in a large ‘miss’ several hundred metres away. At a distance of 300 metres, just one degree of movement is equivalent to an error, or miss, of 5.2 metres!
With this margin of error it is possible that the laser beam was actually reflected back from another vehicle nearby, and not yours.
12. Does your vehicle have any shiny, curved, reflective surfaces?
Of course it does – the curvature of the bonnet, headlights, bumpers, mirrors, etc. So how does the officer know that the laser beam, even if it ‘hit’ your vehicle, was not reflected from your vehicle onto another vehicle nearby. It is possible that the laser beam, reflected from your vehicle onto another, was reflected back from the other vehicle. The speed shown on the device was therefore that of the other vehicle, not yours.
This is especially likely to happen if the laser beam skims along the side of your vehicle. In this situation the laser beam will very easily slide off your vehicle without being reflected back to the device. The laser beam may then hit the vehicle behind or at the side of your vehicle before being reflected back. You will then get the blame for the other vehicle’s speed!
It is therefore important to know whether any other vehicles were on the road at the time of the alleged offence. The officer may fail to make mention of this. Do you recall how busy the road was? Can you remember any vehicle just in front of you, behind you, at the side? Your evidence is important – so use it!
13. The ‘slip’ effect
Can a brick wall be both stationary and moving at the same time?
It can if a laser device has been used to measure the speed! A laser beam can be tricked into believing that an object is moving when it is not. There are reported examples of stationary vehicles and even brick walls exceeding the speed limit. How?
The laser device may move slightly at the moment the trigger is pressed. As the device ‘fires’ several pulses of laser light it is possible for a ‘slip’ to occur and the device will record a speed reading where the vehicle was stationary. Perhaps more importantly, the device may record a speed of 40mph when the vehicle was only travelling at 30mph, or 100mph when actually travelling at 70mph.
14. Was the police officer qualified to use the laser device?
Have you seen the officer’s Certificate of Competency? All operators of laser devices should be adequately trained and will have attended a training course. Satisfactory completion of the course should be evidenced by a certificate stating that the officer is competent to use the device.
I have recently had a case at Leeds Magistrates’ Court where the CPS continually refused to supply a copy of the police officer’s training certificate. It was only when we eventually went to court did the officer admit that he had failed to attend a training course and therefore did not have a Certificate of Competency for the particular device used. He did try to cover himself by stating that he had received ‘on the job’ training – but could not remember where, when or for how long, and neither was there any written record of it. Case won!
Even if the officer has attended a training course, you may be surprised to realise how little he actually knows about the correct operation of the device. This may be down to the fact that some training courses are only about two hours long! Make sure you obtain a copy of the officers Certificate of Competency and check the dates. In another recent case of mine I discovered that the officer’s training certificate was dated 2 months after the alleged offence!
15. Have you checked the speed limit signs?
This may sound silly but it is worth checking that the road was actually marked with the correct signage. Cases have been dropped by the CPS because a road sign was missing, knocked over, destroyed, damaged, covered by trees, not illuminated, etc, etc.
If the road where you were allegedly speeding was a restricted road (30mph), you should check the distance between each street light. The law says that the street lights “should be placed not more than 200 yards apart” (s.82(1)(a) Road Traffic Regulation Act 1984). If a system of street lighting is over 200 yards apart then there may be no evidence that the road was actually restricted.
Remember, unless you raise this query with the CPS nobody will check it – it is just presumed that the street lights, signage, etc, were all correct. Why not ask the prosecution to prove it – make them prove that all the signage was in fact correct?
16. Was the laser device used near the start or end of a speed limit?
The police will often set up a speed trap close to where the speed limit is reduced, for example, where the speed limit on a dual carriageway is reduced from 70mph to 50mph. Can you be sure that the police did not target your vehicle whilst you were still in the 70mph zone, even though the police were situated in the 50mph zone? Have you seen any evidence from the police confirming their precise location? Have you received evidence confirming the speed limit and how far away the sign was indicating a change of speed limit?
Unfortunately you cannot presume that the police will check this for you! Ask the questions – make the CPS prove its case.
17. Was the laser device used from an overhead bridge?
If so, have you seen any evidence of a height check? The height of the laser device from the road below must be multiplied by a factor of 10 to obtain the minimum distance for operation to comply with the ACPO Code of Practice.
18. Was the laser device calibrated?
Every laser device must be calibrated by the manufacturer every 12 months and a certificate of calibration must be held by the police, along with the results of the test. Although it is usual for the device to have been calibrated (by the manufacturer), it is still important to obtain the documentation to prove it. You never know, it may have been lost!
Please note, the police are usually keen to point out (in the witness statement that accompanies the Summons) that the device was calibrated correctly. In my view this is misleading for the following reasons:
- This reference to calibration is usually only referring to the test undertaken by the manufacturer once every 12 months.
- It is separate from the checks the police carry out (distance, speed, alignment, etc) each time the device is used.
- Even if the device has been calibrated by the manufacturer, it may not have been calibrated by the officer using the laser device.
- It implies that the police officer himself operated the laser device correctly, where in fact there may be no evidence of this.
- The police often fail to point out that a certificate of calibration can be obtained for you to check.
19. Did the police officer use the laser device through glass?
If so, the speed reading may be unreliable and should not be used to obtain a conviction. Laser speedmeters must not be used through glass or plastic screens to avoid diffraction or scattering of the laser beam. Elements within vehicle screens as well as their cleanliness makes the path of laser light less predictable.
The manufacturers of laser devices also state that the laser should not be used through glass. In a recent case of mine the police officer stated in court that he ‘fired’ the laser device through the windscreen of the police car. We won the case and we were awarded costs.
20. Have any alterations or changes been made to the laser device?
A laser device must only be used if it has Home Office Type Approval. However, any alteration to the laser device can invalidate the approval given.
21. Were the police using the correct instructions?
As you might expect, manufacturers are constantly updating their instructions as to the use of laser devices. It is therefore important to check that the officer in your case was actually up to date. I have personally had several cases where the officer involved was referring to manufacturer’s instructions that were several years out of date.
In addition, once you know the type of laser device used, you then need to check the precise version. For example, the LTI 20:20 laser device is probably the most widely used throughout the UK. The officer may fail to state in any documentation the precise version used. Was it the ‘Speedscope’, the Ultralyte 100 or the Ultralyte 1000? Was it connected to a Lastec video, Concept DVD or Ranger system?
I have personally had cases where the officers involved referred to the wrong version in court, and even one case where the officer presented a Prolaser instruction manual to the court despite using an LTI 20:20 device! Even the Prolaser device has different versions.