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R (Zafar Ali) v Mid Sussex Magistrates' Court






Royal Courts of Justice


London WC2A 2LL

Thursday, 19 July 2012

B e f o r e:









Computer‑Aided Transcript of the Stenograph Notes of

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MR D GEORGE (instructed by Freeman & Co) appeared on behalf of the Claimant

No one appeared on behalf of the Defendant


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1. MR GEORGE: My Lord, I appear on behalf of Mr Ali.


3. MR GEORGE: This is an application for permission to move for judicial review against East Middlesex Magistrates' Court's decision to refuse to reopen a guilty plea. The decision made by East Middlesex ‑‑

4. SIR JOHN THOMAS: We have read the papers.

5. MR GEORGE: Thank you very much.

6. In my submission, for reasons set out in paragraph 4 of the original statement of grounds, there are properly arguable grounds for the decision being overturned. Perhaps ground 4.1 is the strongest ground because if they are right, then, in my submission, number two would flow anyway because the decision would be unreasonable and, three, it would be against the interests of justice not to overturn the decision.

7. Your Lordship would have seen from the papers that there ‑‑

8. SIR JOHN THOMAS: He admitted he was travelling at 117 miles an hour in his Porsche, didn't he?

9. MR GEORGE: At one stage, yes. The difficulty is that the plea that was entered was entered to a summons which appears to have been based upon incorrect ‑‑

10. SIR JOHN THOMAS: Surely he knew whether he was travelling at 117 miles an hour or not?

11. MR GEORGE: That's only one ‑‑

12. SIR JOHN THOMAS: What injustice is there? At the moment, I wholly fail to understand what conceivable injustice there is in this case.

13. MR GEORGE: Can I perhaps take it from the beginning then. The first statement by PC Creal of course is dated 13 April and then a summons is issued upon the back of that. PC Creal ‑‑

14. SIR JOHN THOMAS: What are you complaining about in the difference between the two statements?

15. MR GEORGE: For example ‑‑

16. SIR JOHN THOMAS: Let us look at them.

17. MR GEORGE: Yes. I have written them out.

18. SIR JOHN THOMAS: They are at page 37 of the bundle I think, aren't they? The first of them is. What's the problem?

19. MR GEORGE: Perhaps the biggest difficulty ‑‑ I don't know if your Lordships are familiar with the A34, but it runs through East Sussex and West Sussex. The biggest difference is when he's referring to two different parts of the jurisdiction. If one is to take it from the third paragraph of each statement.

20. SIR JOHN THOMAS: What page?

21. MR GEORGE: I am sorry, I have not been provided with the bundle.

22. MR JUSTICE GLOBE: Is it the first statement?

23. MR GEORGE: It's the second statement.

24. MR JUSTICE GLOBE: Page 37.

25. MR GEORGE: Thank you very much.

26. SIR JOHN THOMAS: So what's the problem?

27. MR GEORGE: If one takes the third paragraph in that statement, at 17.10 it starts.


29. MR GEORGE: There, we can see the officer referring to West Sussex, the A34 runs through West Sussex.

30. SIR JOHN THOMAS: Let us have a look at the first statement. I have lost it. Here we are.

31. MR JUSTICE GLOBE: Haywards Heath.

32. MR GEORGE: My Lord, yes.

33. SIR JOHN THOMAS: And, what, the error is West Sussex?

34. MR GEORGE: Yes, in the County of West Sussex.

35. MR JUSTICE GLOBE: The other one is Haywards Heath as well.

36. SIR JOHN THOMAS: I see. So it makes a difference. Really, are you seriously arguing that it makes a difference that because the words "West Sussex" are omitted there is something wrong with this statement?

37. MR GEORGE: It's not merely that West Sussex is omitted. If one goes down to the next paragraph, the officer refers to being on "the northbound coming out of Brighton in the County of East Sussex".

38. SIR JOHN THOMAS: Let us just look at these matters.

39. "At 17.10 the same day I conducted a calibration check on the Police Pilot device fitted to this vehicle at Traunstein Way, Haywards Heath, West Sussex, this being a measured distance of half a mile. The check confirmed the device to be working correctly. The Police Pilot device was calibrated on 11 April."

40. Now, yes, "At 2100 hours the same day I was mobile on the A23", heading north, yes, "Coming out of Brighton into the County of East Sussex."

41. MR GEORGE: Yes.

42. SIR JOHN THOMAS: He says the County of West Sussex, but why does that make a difference?

43. MR GEORGE: The difficulty with this officer's statement, as he conceded when he gave evidence, is that the first statement, Exhibit A, 13 April, was based on a proforma. Undoubtedly the officer would have stopped a number of people that particular day. What he says in his evidence was that he, by error, inserted Mr Ali's details into the original proforma on the 13 April statement.


45. MR GEORGE: Therefore, that statement must be completely unreliable. It does have discrepancies between the two.

46. SIR JOHN THOMAS: But it is obvious in this day and age where you have a computer programme that someone will have a proforma and you put things into it.

47. MR GEORGE: But in this case the officer is saying what's in it is wrong.

48. SIR JOHN THOMAS: Well, what is wrong? We have not found anything else, apart from a muddle between East Sussex and West Sussex, a matter which I am sure, save in the days of technical points, which this court made very, very clear in the Chorley Justices case have been banished from our system. What is the error?

49. MR GEORGE: The error is, according to the officer, he has wrongly inserted Mr Ali's details into the first statement.

50. SIR JOHN THOMAS: Did he say he didn't do it? The statements I can see have minor discrepancies, but is it your case that in the first statement he was not referring to Mr Ali?

51. MR GEORGE: Yes, because that's what his evidence was. His evidence was: I don't know why this has been produced; his name must have accidentally been inserted into the proforma; it's the second statement that's correct, not the first.

52. SIR JOHN THOMAS: All right. So he's prosecuted on the basis of the ‑‑ let us look at the reality of the evidence, all right. Now, what is the difference between these two statements, apart from East Sussex and West Sussex which, quite frankly, is the most absurd point I have heard in a long time?

53. MR GEORGE: There are about 20 differences.

54. SIR JOHN THOMAS: Okay. Well, let us hope they are slightly better than that one.

55. MR GEORGE: Okay. For example ‑‑

56. MR JUSTICE GLOBE: You have one difference.

57. MR GEORGE: We have one difference.

58. MR JUSTICE GLOBE: Which relates to the difference in time when he was stopped.

59. MR GEORGE: The difference in time.

60. MR JUSTICE GLOBE: Or when he started following.

61. MR GEORGE: When he started following.

62. MR JUSTICE GLOBE: 2109 and 2110. That's 1 minute.

63. MR GEORGE: That's a 1 minute difference.

64. SIR JOHN THOMAS: Now, you are not relying on that, are you?

65. MR GEORGE: No. It's the totality of the statement.

66. SIR JOHN THOMAS: Well, let us have a look at them. A totality of points which are completely stupid, the result is a completely stupid one.

67. MR GEORGE: Starting off on the second paragraph of the first page of each statement.


69. MR GEORGE: We start with 1700 hours on 13 April. We start off with 1630 hours in the second statement.


71. MR GEORGE: There are some additional words in the first statement. The calibration points in the third paragraph is included in the first statement, which is a potential requirement of proof which is not included in the second statement.


73. MR GEORGE: The Police Pilot device was calibrated on 11 April; your Lordships will see that in paragraph 3.


75. MR GEORGE: Paragraph 4, we have dealt with the discrepancy in the time. I accept it's only a minute. The potential discrepancy in the area.

76. We then have where the officer says that the vehicle ‑‑ he uses slightly different phraseology ‑‑ comes up behind him. This is towards the bottom of the first pages of each statement. If one then turns over, your Lordships will see that in the first statement he is referring to the Porsche speeding in lane two; in the second statement he is referring to the Porsche speeding in lane one.

77. There are then some discrepancies as to how he caught up.


79. MR GEORGE: We have some slight discrepancies in the words that he used in terms of what the officer says he utters to Mr Ali when he says he's going to report him for the offence. In terms of the caution, in the first statement it is suggested Mr Ali replied, "I thought I was going 80 miles per hour." In the second, there was no reply at all.


81. MR GEORGE: We then have a discrepancy towards the end as to the time when police checks were undertaken.

82. SIR JOHN THOMAS: A discrepancy about what, sorry?

83. MR GEORGE: The time checks, the enforcement.

84. SIR JOHN THOMAS: Half an hour.

85. MR GEORGE: 2300 hours on one and 2230 on the other. So it's the totality of the statement, firstly.

86. Secondly, in my respectful submission, we know that Mr Ali pleaded on 20 May. Had he been in possession of both these statements, and of course both of these statements were in existence on that date, he would have been entitled to say, "Hang on, there are some fundamental or significant differences which the officer can be cross‑examined about and it may make a difference to his credibility in any account he gives."

87. SIR JOHN THOMAS: But the man pleaded guilty.

88. MR GEORGE: But he pleaded guilty on the basis that he only knew of the first ‑‑

89. SIR JOHN THOMAS: I see. I cannot imagine ‑‑ so you are saying these discrepancies make a difference to his plea?

90. MR GEORGE: They may well do, yes, and also as to the reliability ‑‑

91. SIR JOHN THOMAS: Who was his adviser in this case? Were you?

92. MR GEORGE: I wasn't, no.

93. SIR JOHN THOMAS: Did he have a solicitor?

94. MR GEORGE: At the first appearance he had I think a junior member of chambers, yes.

95. SIR JOHN THOMAS: Who was giving him this, and who gave him the advice in relation to the second plea? I don't want to know what the advice was.

96. MR GEORGE: I assume ‑‑

97. SIR JOHN THOMAS: You were not there?

98. MR GEORGE: I was not there, no. I have only been instructed post all of these ‑‑

99. SIR JOHN THOMAS: Who was present on the second occasion?

100. MR GEORGE: I think on the second occasion it may have been Mr Freeman.

101. SIR JOHN THOMAS: Mr Freeman, the well‑known traffic lawyer?

102. MR GEORGE: My Lord, yes.

103. SIR JOHN THOMAS: He would have actually seriously taken these ‑‑ it's complete and utter nonsense.

104. MR GEORGE: Not all of it's nonsense. For example, when the officer gave evidence it became clear that there was no corroboration, which is an essential requirement for a speeding offence, corroboration on a non‑motorway in respect of the officer's evidence. I appreciate ‑‑

105. SIR JOHN THOMAS: So what's the lack of corroboration?

106. MR GEORGE: Well, there normally needs to be two sources of information to suggest that the vehicle was speeding. As I understand it, and the way that it reads ‑‑

107. SIR JOHN THOMAS: Where do we find that requirement?

108. MR GEORGE: That's in the witness statement of Miss Faye Williams, which is to be found ‑‑

109. SIR JOHN THOMAS: Where is that?

110. MR GEORGE: ‑‑ at paragraph 20 of her statement.

111. SIR JOHN THOMAS: Paragraph 20 of her statement.

112. MR GEORGE: Just below halfway down.

113. MR JUSTICE GLOBE: The officer had shown the driver of the motor vehicle the speed on the car's Pilot tracking device.

114. MR GEORGE: That would not amount to corroboration though, my Lord. That would simply amount to reiteration of the primary source of information that suggested Mr Ali was speeding.

115. SIR JOHN THOMAS: Where is the requirement? Sorry, you were taking me to the paragraph which said corroboration was required. Where is that?

116. MR GEORGE: Sorry, I did not say ‑‑ this was the fact there was a lack of corroboration.

117. SIR JOHN THOMAS: Where is a requirement for corroboration.

118. MR GEORGE: It's in the Road Traffic Offenders Act. I have it in my ‑‑

119. SIR JOHN THOMAS: What does it say?

120. MR GEORGE: Does your Lordship wish me to read the precise provision?

121. SIR JOHN THOMAS: Yes. It's not set out in your skeleton.

122. MR GEORGE: It's not set out in my skeleton argument. I am sorry about that.

123. SIR JOHN THOMAS: What does it say? That doesn't matter for the moment. What does it say?

124. MR GEORGE: It is summarised in my Wilkinson's. I hope I can read it in summary form.


126. MR GEORGE: By Road Traffic Regulation 1984, section 89.2, which is the relevant provision, a person prosecuted for driving a motor vehicle at a speed exceeding a limit imposed by or under any enactment shall not be convicted solely on the evidence of one witness to the effect that, in the opinion of the witness, the defendant was driving at a speed exceeding that limit. These corroboration requirements do not apply to motorway speeding offences, although this is a dual carriageway.

127. SIR JOHN THOMAS: What you are saying is what the statute says is you cannot be corroborated because an officer says you were travelling at more than such and such.

128. MR GEORGE: Yes.

129. SIR JOHN THOMAS: But here there is evidence from his machine.

130. MR GEORGE: It's the officer saying, "This is the speed you were going."

131. MR JUSTICE GLOBE: No, the requirement is that the officer cannot come and say, "I was travelling behind the vehicle and I believe it was travelling in excess of the speed limit", in other words, the officer's opinion.

132. MR GEORGE: Yes.

133. MR JUSTICE GLOBE: That's why the cars have the Pilot tracking device.

134. MR GEORGE: I agree, my Lord.

135. MR JUSTICE GLOBE: Now, the officer's evidence was that he had the Pilot tracking device.

136. MR GEORGE: It was.

137. MR JUSTICE GLOBE: And it was shown to the driver.

138. MR GEORGE: That does not appear to be his evidence, it appears to be what's in his statement, because, according to the witness statement, there was no evidence of corroboration.

139. SIR JOHN THOMAS: Where is the evidence, what you say is evidence, set out for us to look at?

140. MR GEORGE: I can only say it's in the witness statement. There has been no dispute that it is wrong, from either the Magistrates' Court or the Crown Prosecution Service.

141. MR JUSTICE GLOBE: Sorry, I could not hear you.

142. MR GEORGE: There has been no dispute by the Magistrates' Court that the witness statement is correct or by the Crown Prosecution Service who also filed a reply. The evidence is simply based upon the witness statement at the moment, paragraph 20, that there had been no evidence of corroboration in respect of the alleged speeding offence.


144. MR JUSTICE GLOBE: No, that's a witness statement of somebody who was not present who is saying what Mr Freeman had submitted to the bench in the course of the proceedings.

145. MR GEORGE: Yes, I agree it's hearsay, but it's been served on ‑‑

146. MR JUSTICE GLOBE: And it's a submission of Mr Freeman.

147. MR GEORGE: But it must be reflected upon the basis of the evidence.

148. SIR JOHN THOMAS: How could he possibly know that? His statement, both statements, say that the speed was registered on the instrument at 117.9 miles per hour.

149. MR GEORGE: I can only make my submissions on the basis of the evidence as opposed to ‑‑

150. SIR JOHN THOMAS: Well, that is the evidence.

151. MR GEORGE: The only evidence is contained within this witness statement.

152. SIR JOHN THOMAS: Let us have a look at it.

153. MR GEORGE: Which is at paragraph 20. It's the only evidence I have.

154. SIR JOHN THOMAS: Let us go back.

155. MR JUSTICE GLOBE: Why can't the Pilot tracking device be corroboration?

156. MR GEORGE: Because it would need to corroborate something else, in my respectful submission.

157. MR JUSTICE GLOBE: Well, it corroborates the police officer saying that he saw his speedometer showing 117 miles an hour.

158. MR GEORGE: Yes. It may be my fault. I appreciate that's in the witness statement. As to what came out as evidence, what appears to have come out as evidence doesn't appear to have reflected that.

159. MR JUSTICE GLOBE: Right. So you accept the fact that the Pilot tracking device can be corroboration?

160. MR GEORGE: As a matter of fact, yes.

161. MR JUSTICE GLOBE: The evidence that you are talking about related to the second summons.

162. MR GEORGE: Yes, my Lord.

163. MR JUSTICE GLOBE: Which isn't a matter for consideration by this court.

164. MR GEORGE: It's not a matter for consideration.

165. MR JUSTICE GLOBE: What needs to be considered is the evidence upon which he pleaded guilty.

166. MR GEORGE: But if that was right, then if we all know that the first statement has been abandoned, in essence, by the ‑‑

167. SIR JOHN THOMAS: It has not been abandoned. It's nonsense, I suggest. Look, the reality of this case, in anything other than someone's imagination, is that the officer made a simple mistake on his word processor. It's perfectly clear that both statements say that the machine registered 117.9 miles per hour and your client pleaded guilty.

168. MR GEORGE: Yes.

169. SIR JOHN THOMAS: He had no defence to this. If there was something, for example, if the second statement said he was only travelling at 40 miles an hour, of course you would have a case, but this is absurd.

170. MR GEORGE: There is additional evidence in the first statement of course because it is suggested that the driver acknowledges the speeding in reply to the caution.

171. SIR JOHN THOMAS: If Mr Ali really believed he wasn't travelling at this speed he could have pleaded not guilty. What you are doing is something that I find repugnant ‑‑ and not you personally ‑‑ but Mr Freeman's conduct I find repugnant and improper conduct of the proceedings in that someone who has made a genuine error comes along, your client has pleaded guilty, knew all along what he was doing, and these nonsensical arguments are being used to waste the courts' time. I am sorry to put it so brutally, but the single judge said this was a nonsense and it is a nonsense, this application.

172. MR GEORGE: I can only go on the basis of the evidence I have before me.

173. SIR JOHN THOMAS: Yes, but the evidence you have, there isn't any. There is no transcript. There is no statement as to what the police constable said. It's all to do with Mr Freeman's submissions. I regret to say that, in view of the way in which he has conducted this case, I am not prepared to believe what he says in relation to things.

174. MR GEORGE: Can I ask your Lordship to perhaps reconsider that aspect because we do know that these documents have been served properly on the Crown Prosecution Service and on the court.

175. SIR JOHN THOMAS: The Crown Prosecution Service is not here to waste taxpayers' money on some nonsensical series of points.

176. MR GEORGE: No, but if they were of the view that the evidential position being put forward by those instructing me was wrong ‑‑

177. SIR JOHN THOMAS: No. The Crown Prosecution Service has a great deal of other things to do. They saw what the single judge had to say about this case, which was pretty stark. You have come back to us on a renewed application. Why should they waste their money when it is obvious what happened? The police officer saw your client travelling at this speed. He put in a statement, which was an error in word processing. On the second occasion it was quite apparent that the two statements are in all material respects similar, there is no difference in his evidence. What your client is seeking to say is that, although he pleaded guilty, because there is some discrepancy in the statements he is somehow entitled to set it aside. It's nonsensical.

178. MR GEORGE: Perhaps it's my fault. Firstly, the Crown Prosecution Service replied to the original claim form.


180. MR GEORGE: They have not disputed the factual position as far as one can tell from their position. So they have not disputed the factual presentation as put forward by those instructing me.

181. SIR JOHN THOMAS: Why should they?

182. MR GEORGE: If there was an obvious error, since it's the lawyer who was present, as I understand it, who has had an input into this, they no doubt would have said, "Well, that's wrong factually. Factually the basis for your submissions are wrong. You start off on the wrong premise", and they don't do that. Nobody seems to be suggesting that the factual premise is wrong. The only ‑‑

183. MR JUSTICE GLOBE: Why does what happened in relation to the summons which was dismissed have relevance now?

184. MR GEORGE: Only because on the second occasion the officer was saying that the first statement is wrong, "I didn't" ‑‑

185. MR JUSTICE GLOBE: No, dealing with your point at the moment.

186. MR GEORGE: Yes.

187. MR JUSTICE GLOBE: Why does that matter? Why does it matter whether there was corroboration or not corroboration on the face of the officer's evidence in those proceedings?

188. MR GEORGE: Well, when one is considering ‑‑

189. MR JUSTICE GLOBE: Because there is evidence in his witness statement which led to your client pleading guilty.

190. MR GEORGE: My Lord, yes, but in my respectful submission one has to look at what the officer said about that first statement afterwards because one is going back to the Magistrates' Court to apply to overturn a conviction upon a subsequent discovery that the police officer says, "It was a proforma. I added Mr Ali's name into that first statement by accident. The first statement shouldn't be one that should be relied on. It should be the second statement", those would all be relevant factors to the interests of justice.

191. In my submission, there is also, as I have set out in the third paragraph of the third ground, paragraph 4.3, the wider interest point to be considered, which is where people are going along, particularly on these types of offences, it's paramount, in my submission, that the statements are accurate because one is trying to ensure speedy, efficient justice.

192. SIR JOHN THOMAS: Of course.

193. MR GEORGE: There has to be confidence in the process. At the moment the officer is saying, "You cannot have confidence in that first statement."

194. SIR JOHN THOMAS: Can we look at paragraph 3 of the acknowledgment of service.

195. MR GEORGE: My Lord, yes.

196. SIR JOHN THOMAS: What they say is this:

197. "It is accepted there were some discrepancies in the detail [correct] but in substance they were the same. The claimant makes no mention there was a DVD of the incident which the prosecution informed the court was the same disc referred to."

198. MR GEORGE: But that's the prosecution making the submission that the disc is one and the same.

199. SIR JOHN THOMAS: But your client ‑‑ I see, are you saying it's different?

200. MR GEORGE: No.

201. SIR JOHN THOMAS: No doubt if we called for the DVD it would no doubt show this incident.

202. MR GEORGE: I genuinely don't know. I have never seen the DVD.

203. SIR JOHN THOMAS: Why was this not drawn to the attention of the court? Are you seriously disputing that there was a ‑‑ the CPS say there was a DVD of the incident.

204. MR GEORGE: Yes, there must have been.

205. SIR JOHN THOMAS: We know, in these courts, that actually DVDs are extremely reliable. If there was a DVD of this incident and it showed your client driving, maybe we should call for it and call for why this case is before the court. Because if it is the same person, this court has been misled ‑‑

206. MR GEORGE: I don't know ‑‑

207. SIR JOHN THOMAS: ‑‑ in a most serious manner. I think what we should do is call for that to be produced.

208. MR GEORGE: Can I just ‑‑

209. SIR JOHN THOMAS: No. Shouldn't we do that?

210. MR GEORGE: No, my Lord.

211. SIR JOHN THOMAS: Because if that is the same DVD, these whole proceedings have been an abuse of the process of this court.

212. MR GEORGE: May I ‑‑

213. SIR JOHN THOMAS: Do you want to take some instructions while we deal with the next case?

214. MR GEORGE: I can, of course.

215. SIR JOHN THOMAS: You see the gravity of what I am saying?

216. MR GEORGE: I do appreciate that, my Lord. Can I just ‑‑

217. SIR JOHN THOMAS: Because we are not here ‑‑ we are here dealing with a judicial review of a decision. I have no idea whether the DVD is the same, but if it is, and Mr Freeman must have known this, this application is an abuse of the process of this court and it might contend further sanctions. We simply cannot have this happening.

218. MR GEORGE: It would appear that the issue as to ‑‑ I don't know whether ‑‑

219. SIR JOHN THOMAS: Because if the DVD is the same, there was a DVD of this incident and it showed your client speeding, this case is an abuse of the process of this court.

220. MR GEORGE: I don't invite your Lordship to call for the DVD.

221. SIR JOHN THOMAS: No. You can go and take some instructions as to whether you wish to proceed. You go and ring Mr Freeman up and find out ‑‑ we have another case ‑‑ and we will deal with it. I am sorry, I had not noticed that until now. But what the CPS are saying is it makes no mention of the DVD of the incident which the prosecution informed the court was the same in each statement. If there was a DVD, how can there possibly be any miscarriage of justice at all?

222. MR GEORGE: I don't know what happened precisely during the second trial with the DVD or not. As I said, I wasn't present in either of those hearings.

223. SIR JOHN THOMAS: Can I ask you one more question.

224. MR GEORGE: Of course, my Lord.

225. SIR JOHN THOMAS: When the second case came on.

226. MR GEORGE: Yes.

227. SIR JOHN THOMAS: Was the court told, as this court has said in the Chorley Justices case, precisely what you were going to do, your client was going to do (i.e. the cards were put on the table), that they would seek to get the second one dismissed and then try and reopen the first one?

228. MR GEORGE: The way that the witness statement reads is that there was to be an investigation by the officer as to exactly what he was referring to. So when one goes back to Miss Williams's witness statement, it's dealt with I think from paragraph 15 onwards, and the question at paragraph 20 as to whether the officer was referring to the same incident or not.


230. MR GEORGE: One can see that they made the application to reopen before the same magistrates so no one was being misled.

231. SIR JOHN THOMAS: But was everyone told in advance? That's not enough. This court made clear in the Chorley Justices case that it's the duty of the solicitor appearing to put his cards on the table. As this court has made clear in numerous instances, this is not a game: this is the administration of justice.

232. MR GEORGE: The best I can do in answering your Lordship's question at the moment is to refer to the magistrates' reply.

233. SIR JOHN THOMAS: Where is that?

234. MR GEORGE: I am very sorry but I don't have a paginated bundle. I am very sorry about that. The magistrates replied first on 6 March.

235. SIR JOHN THOMAS: Let me find it.

236. MR JUSTICE GLOBE: I am not sure we have that, in fact.

237. MR GEORGE: I am sorry. In essence, it says.

238. "The issues for the trial will be that the Crown are put to strict proof on each and every element of the offence and, in particular, the defence will raise issues in respect of admissibility of the hearsay evidence; compliance with the ACPO guidelines; compliance with the Home Office Speed Meter Handbook; calibration of the device; before and after checks and proper operation of the device. The defence will rely, if appropriate, on Hogg v McNeill. PC Creal's statement is not agreed and his attendance will be required at the trial."

239. MR JUSTICE GLOBE: Nothing in that referred to the fact that he had already been convicted of the offence.

240. MR GEORGE: Not from the way that I am reading the reply.

241. MR JUSTICE GLOBE: The interested party suggests that nothing in the case management form, the case preparation form, leading up to trial raised the issue of the May conviction; is that right?

242. MR GEORGE: I don't know. It's not unusual.

243. MR JUSTICE GLOBE: It's not contested.

244. MR GEORGE: It is not unusual in road traffic cases for there to be no lawyer physically present at some of these pre‑trial hearings.

245. MR JUSTICE GLOBE: No, I am not talking about that hearing. But there was a not guilty plea that led to the November trial.

246. MR GEORGE: Yes.

247. MR JUSTICE GLOBE: There would have needed to be a case preparation form, a case management form, in relation to the trial.

248. MR GEORGE: My understanding ‑‑

249. MR JUSTICE GLOBE: The interested party suggested in that form that nothing was mentioned as to the true issue in the case; it was just that the prosecution were being put to proof.

250. MR GEORGE: My understanding is often in these road traffic cases, rather than a case management form being sent, a letter is sent in advance of the trial. I assume that which I just referred your Lordships to at paragraph 4 was a summary of the letter.

251. MR JUSTICE GLOBE: Yes. Well, whether it was a formal case management form or a case preparation form, the same process was conducted. In the response, nothing was mentioned about the conviction and it was just a matter of putting the prosecution to proof. That seems to be what is being suggested.

252. MR GEORGE: I can only take what I can from paragraph 4 of the magistrates' reply and the total of the pages.

253. SIR JOHN THOMAS: I think you had better take instructions. But the thing I am most concerned about is that if there was a DVD of this incident exhibited to both statements, how this application can have been put forward I do not begin to understand because it's unarguable.

254. MR GEORGE: Well, it's only one basis of course. There is not only one basis for contesting this. Sometimes in these cases these ‑‑

255. SIR JOHN THOMAS: Look, are you seriously going to put an argument to this court that if there was a DVD exhibited to the first statement and a DVD exhibited to the second statement and that showed the same incident, there could be any conceivable grounds for saying there was injustice here? Are you?

256. MR GEORGE: No DVD would have been sent with the first statement.

257. SIR JOHN THOMAS: No. But the first thing: if your client was seriously thinking of contesting it, he could have asked for it. Secondly, if you are saying there is some injustice, were those DVDs looked at and they showed different people? But if they showed your client on both of them, I simply don't begin to understand (a) why this court wasn't told and (b) how it was proper to bring this application.

258. But can you go and take some instructions because what I am putting to you is very serious. It's not your fault because you are only here to argue the case, but those who gave you those instructions I am very concerned about. I don't know, but could you go and take some instructions. We will deal with the next case.

259. MR GEORGE: My Lord, yes. May I leave?

260. SIR JOHN THOMAS: Yes, of course. You will need to take some instructions. How long is this next case likely to be, about an hour?

261. MR WATKINS: Yes, I would expect about an hour.

262. SIR JOHN THOMAS: On the assumption we don't adjourn it.

263. MR WATKINS: On the assumption we don't adjourn it, and the arguments are fairly narrow now.

264. SIR JOHN THOMAS: Very well. Mr George, I must emphasise none of this is your fault, but it's the fault of the (inaudible). There are very serious issues as to how this has come before us.

265. MR GEORGE: My Lord, I will seek to ‑‑

266. SIR JOHN THOMAS: There is no personal criticism of you at all. I want to make that abundantly clear.

267. MR GEORGE: Thank you.

(Short break)

268. SIR JOHN THOMAS: Yes, Mr George, we can now return to your case.

269. MR GEORGE: There was no DVD in the first case.

270. SIR JOHN THOMAS: No DVD. Thank you. So the prosecution was wrong?

271. MR GEORGE: I am sorry, my Lord, I missed that.

272. SIR JOHN THOMAS: The prosecution is wrong. There was no DVD.

273. MR GEORGE: Not in the first case. Your Lordship has the first witness statement from PC Creal. It does not exhibit it in the first case. You will see in the second case the officer has added a third page.

274. SIR JOHN THOMAS: We don't actually have the whole of the witness statement in our bundle.

275. MR GEORGE: I am very sorry.

276. SIR JOHN THOMAS: No, it's all right.

277. MR GEORGE: It's Annexe A and Annexe C.

278. SIR JOHN THOMAS: Yes, but Annexe A says "PTO".

279. MR GEORGE: Annexe A should have two pages on it. It says two of two.

280. SIR JOHN THOMAS: And that's it, is it?

281. MR GEORGE: That's it.

282. SIR JOHN THOMAS: So it's a mistake by the CPS.

283. MR GEORGE: My Lord, yes, it would appear.

284. MR JUSTICE GLOBE: Sorry, where does it say two of two?

285. MR GEORGE: If one looks at the first page of PC Creal's statement.

286. SIR JOHN THOMAS: "This statement consisting of two pages signed by me."

287. MR GEORGE: That's the one.


289. MR GEORGE: If one then looks at the other statement, it's three pages.

290. SIR JOHN THOMAS: So this is an error by the CPS.

291. MR GEORGE: It would appear to be an error.

292. SIR JOHN THOMAS: When it says, "Ali was shown the Pilot footage and it was explained to him", what's that?

293. MR GEORGE: I don't know. I don't know what that is referring to.

294. SIR JOHN THOMAS: It must be referring to the same thing which is referred to as, "Zafar was allowed to see the police Pilot device." So both statements say he was shown the Pilot device, and the second statement says he was shown the DVD.

295. MR GEORGE: I am not sure the Pilot device and the DVD are necessarily the same.

296. SIR JOHN THOMAS: No, he says, "I can produce a copy of Provida footage of this offence." What's that?

297. MR GEORGE: I don't know, is the answer.

298. SIR JOHN THOMAS: Okay. Right.

299. MR GEORGE: The third one or the second statement has that additional exhibit.

300. SIR JOHN THOMAS: So you say that the CPS is in error in saying that there was no ‑‑ okay. Fine.

301. MR GEORGE: That's the only point in relation to that.

302. I should also clear up one matter which is my fault. This case is a Freeman Keep on Driving case, which is a separate company from Freeman & Co. Mr Freeman himself was only instructed about two or three days before the second trial, I am told. He was instructed as an agent from Keep on Driving to Freeman & Co.

303. SIR JOHN THOMAS: So he was not responsible for failing to draw to the attention of the court what was the tactic that was being deployed?

304. MR GEORGE: No.


306. MR GEORGE: That was not under his supervision. So it's slightly my fault. I got drawn in or I probably drew your Lordships into concentrating on the second case. Really this is all about ‑‑ the second case is somewhat irrelevant. It is really the first case that's relevant, in my submission, and whether there are proper grounds for contending that the ‑‑

307. SIR JOHN THOMAS: But surely the prosecution then would have had to say ‑‑ the prosecution would have to have been told, "We are abandoning the first case." If you look at what Mr Justice Wilkie said:

308. "Reasons; there is no merit to the claim which is unarguable."

309. Right.

310. "The obvious defence to the second summons was autrefois convict be reason of the conviction on 20 May. This was not raised until after cross‑examination of PC Creal on 15 November. At that point the prosecution rightly decided, on that basis, to offer no evidence."


311. MR GEORGE: Can I respectfully say that's somewhat outside the remit of ‑‑

312. SIR JOHN THOMAS: Wait a minute. No, no, no. I am going to go on and read all this out because I think (inaudible) Mr Freeman personally.

313. "The explanation of PC Creal ... in those circumstances, having been acquitted of the second summons, justice had been done. There was no basis for any conclusion that the claimant had been misled by the statement of 13 April. The conduct of the claimant's solicitors as described above seems to amount to sharp practice in not disclosing the true nature of the defence until, for tactical reasons, it suited them."

314. Now, if you were going to take the point, and this is the gravamen of the criticism, then it should have been put, cards on the table, because the obvious thing if there was something wrong with the first conviction would have been to try him on the second one.

315. MR GEORGE: I am sorry, it may be my fault. That criticism is levied at the second case which isn't part of the grounds ‑‑

316. SIR JOHN THOMAS: Yes, I am afraid this is the sort of kind of point. It's ludicrous, this argument.

317. MR GEORGE: My Lord, I ‑‑

318. SIR JOHN THOMAS: We are looking at justice.

319. MR GEORGE: Of course.

320. SIR JOHN THOMAS: If you were going to take the point with the prosecution that you should set the first conviction aside because of what had happened in the second one where they offered no evidence, the court should have said, "There is something wrong with the first conviction." The court could then have looked at the overall justice of it. It could have said to Mr Ali, "What is your position?" You cannot dissect it in the way ‑‑ this is shocking conduct. "Sharp practice" is probably the right description of it.

321. MR GEORGE: I hope I am not dissecting it in that way.

322. SIR JOHN THOMAS: No, you are trying to put the argument justifying the conduct of the person who did this, and it was sharp practice.

323. MR GEORGE: I was seeking to stay away from the conduct in respect of the second aspect ‑‑

324. SIR JOHN THOMAS: You cannot.

325. MR GEORGE: ‑‑ of the case.

326. SIR JOHN THOMAS: Because we have to look into whether it's in the interests of justice to overturn/to open up the first one; and, looking at the interests of justice, you look at what happened in the second one.

327. MR GEORGE: My main point is if the officer says that's not the right statement, that's as high as my argument gets on that point, I suspect.

328. SIR JOHN THOMAS: But how can it conceivably be just? I am sorry, Mr Justice Wilkie described your solicitor's conduct as sharp practice. He then says it's unarguable. He then says it's totally without merit. I hear what you say, and we accept what you say, that there were not two DVDs and the CPS made a mistake, but there can be no doubt that it was your client driving. This guy pleaded guilty.

329. There can be no doubt that what happened in this case was that Mr Freeman tried to take, adopting sharp practice as the judge said, a course of conduct in the second hearing, tried to get the second ‑‑ got the prosecution to abandon the second hearing and then turned around to attack the first one. That is sharp practice, isn't it?

330. MR GEORGE: I wouldn't agree that Mr Freeman adopted sharp practice, no.


332. MR GEORGE: Because he's instructed a few days before the hearing.

333. SIR JOHN THOMAS: He said what?

334. MR GEORGE: He's instructed a few days before the second hearing. If the client wants to challenge ‑‑

335. SIR JOHN THOMAS: Did he say to the court, "I am challenging the second one and then when that goes I am going to have a go at the first one?"

336. MR GEORGE: I don't know what was said because I wasn't present. I am really sorry, I don't know, and unfortunately ‑‑

337. SIR JOHN THOMAS: No, but Mr Freeman has no doubt given you instructions that this serious criticism by a very experienced High Court judge of his conduct was wrong. So this court in this judgment should affirm the conduct of your instructing solicitor that it was sharp practice.

338. MR GEORGE: I would seek to dissuade the court from that.

339. SIR JOHN THOMAS: Why? What happened? Did he or did he not tell the court what he was trying to do?

340. MR GEORGE: I don't know the precise form. The problem is I am instructed of course by Freeman Keep on Driving. I spoke to Mr Freeman very briefly.

341. SIR JOHN THOMAS: Is that a different ‑‑

342. MR GEORGE: It's a different company.

343. SIR JOHN THOMAS: It has nothing to do with Mr Freeman?

344. MR GEORGE: I don't know if it has nothing to do with him. It has the same name. You could not get through to Mr Freeman if you rang that number. I know that for sure because I have worked for both. They are separate entities, with Mr Freeman being based at Freeman & Co. You cannot instruct Mr Freeman directly through Freeman Keep on Driving at all.

345. SIR JOHN THOMAS: You cannot tell us because you are instructed in respect ‑‑ you cannot tell us whether on the second hearing he told the court what he was trying to do?

346. MR GEORGE: I think I am a little flummoxed by the expression "what he was trying to do".

347. SIR JOHN THOMAS: It's perfectly obvious. What he was trying to do was to persuade the Crown in the second case not to proceed with it on the basis there was a previous conviction and then turn around and say there was something wrong with that. If a court is told, it needs to be told what's going on.

348. MR JUSTICE GLOBE: If the prosecution knew that was going to happen they would never have offered no further evidence on the second one, would they?

349. MR GEORGE: I think, having had a look at the way the statement reads, the preference would have been for the second one to continue without the corroboration and the first one ‑‑

350. MR JUSTICE GLOBE: But the case had been finished. By the looks of it, there was corroboration in the second one ‑‑ you can probably see it on page 3 ‑‑ that that one did have the DVD.

351. MR GEORGE: I wasn't ‑‑

352. SIR JOHN THOMAS: This is sharp practice of the highest order. The judge has said that. So there is nothing unfair in us saying that this is what the judge said, is there?

353. MR GEORGE: I would seek to invite your Lordships not to endorse those words. We don't precisely know what happened. Once we don't precisely know what happened ‑‑

354. SIR JOHN THOMAS: You have come here to renew an application.

355. MR GEORGE: I have.

356. SIR JOHN THOMAS: Which the High Court judge has said is totally without merit. "There is no merit in the claim which is unarguable." He criticises the solicitor for sharp practice. It is sharp practice of a kind this court has to see, in its overall supervisory jurisdiction of the lower courts, is stamped out.

357. MR GEORGE: In my submission, it's not sharp practice.

358. SIR JOHN THOMAS: Well, why?

359. MR GEORGE: Because one is entitled if you are instructed, and one has to, if you are instructed to contest a particular case, to contest it fully as you do, regardless of the advocate's view of it. If you are then instructed to reopen, you then reopen or you apply to reopen. If the court considers that to be justified ‑‑

360. SIR JOHN THOMAS: I see, you are saying that Mr Freeman, when he took this point before the justices, had no idea that he would be seeking to apply to reopen the first conviction?

361. MR GEORGE: I don't say one way or the other. I wasn't there, unfortunately.

362. SIR JOHN THOMAS: Let us have a look at the witness statement.

363. MR GEORGE: I wasn't there. That's why I say it's unfair to level criticism at him without us knowing what exchanged between the prosecutor ‑‑

364. SIR JOHN THOMAS: Why is it in the remotest degree unfair when the judge has said in his grounds ‑‑ I will read it to you again:

365. "There is no merit in this claim which is unarguable ... There was no basis for any conclusion that the claimant had been misled by the statement. The conduct of the claimant's solicitors as described above seems to amount to sharp practice in not disclosing the true nature of the defence until, for tactical reasons, it suited them"?

366. MR GEORGE: That's not levelled at Mr Freeman, that particular bit. That's levelled at whether the solicitor should have disclosed earlier the other statement.

367. SIR JOHN THOMAS: No, it's not. He's absolutely making clear there that if you are taking the point in the second hearing that he has been convicted earlier, you should then have said to the justices, "Well, I am very sorry, but what we want to do is reopen the first one." The justices could then have said, "Okay, we will reopen the first one and hear the evidence now", and your client, without any shadow of a doubt, would have been convicted. He had no defence.

368. MR GEORGE: The way that I read Mr Justice Wilkie is he's saying the true nature of the defence. He's not criticising, as I understand it, anything other than that. It must be on the basis of the lack of disclosure of the first statement because Mr Justice Wilkie is referring to that:

369. "The explanation of PC Creal that the 13 April statement was" ‑‑

370. SIR JOHN THOMAS: Can you answer me this question. Are you contending that if you go to a court and say, "I was convicted on a previous occasion. Therefore, I shouldn't be convicted now because I have been convicted", you don't have to then tell the court, "I am also, on the basis of what I know now, going to challenge that earlier conviction on the basis that the evidence which is being called in the present trial was not available on the first trial"? Because what the court would have done, had it known that, is it would have said, "Fine. We will hear the evidence now", and exercise, if necessary, its powers under section 142.

371. It cannot conceivably be in the interests of justice to reopen the matter when the court could have dealt with the matter at the second hearing. It is unarguable. I simply cannot understand how you can stand here and say that it can be in the interests of justice in those circumstances to reopen the first conviction.

372. MR GEORGE: I hope your Lordship will appreciate ‑‑

373. SIR JOHN THOMAS: What is the answer to that question?

374. MR GEORGE: The way that I understand it to have been done from the witness statement is to clarify via the officer as to how this first document comes into play ‑‑ there was no disclosure referred to it on the original one in the schedule ‑‑ and to work out what the statements were really about, it not being completely clear. They could, on one view, hear it, if I accept from your Lordships they relate to the same matter, but on the opposite version it would appear PC Creal is saying no.

375. SIR JOHN THOMAS: So the right thing to do would be to say to the court, if that's the position, "We are not sure whether the statement on the first occasion was proper. We are going to try and set that aside." The court would have said, "Well, we will exercise our powers under section 142. We will hear it all now." What's wrong with that?

376. MR GEORGE: I am not sure that the court would have done that. They would have wanted ‑‑

377. SIR JOHN THOMAS: Well, they could have jolly well considered it.

378. MR GEORGE: They would have wanted some evidence. The difficulty is to try and make repeated applications to set aside because if they say no, then ‑‑

379. SIR JOHN THOMAS: The only issue in this case is whether your client was driving this Porsche at 117 miles an hour, it was him who was doing it. There can be no doubt in the second hearing, Mr George, that all the evidence was there, correct?

380. MR GEORGE: It had potential. I can't say any more.

381. SIR JOHN THOMAS: Therefore, if you were seeking there was something wrong with the first conviction, it is dishonest not to tell the court that that's what you were seeking to do. I am sorry to put it in such blunt terms to you, but this is conduct this court cannot countenance.

382. MR GEORGE: I wouldn't suggest there is any dishonesty, no.

383. SIR JOHN THOMAS: Well, it's sharp practice at the very lowest. Then to come back here and complain that it's in the interests of justice, having secured an acquittal on evidence that was happening, that you then turn around and say, on technical points such as the timing and this, that and the other, your client wouldn't have pleaded guilty, it's just unarguable.

384. MR GEORGE: Presumably the first case could still be litigated, so if he's convicted it would be to his detriment. If he reopened ‑‑

385. SIR JOHN THOMAS: No, you want us to act in the interests of justice. Very well, we have put the points to you. The criticism of Mr Freeman is that he engaged in sharp practice.

386. MR GEORGE: I formally dispute that on behalf of Mr Freeman. I don't understand Mr Justice Wilkie's comments to be aimed at Mr Freeman himself.

387. SIR JOHN THOMAS: He was the advocate in the second hearing, wasn't he?

388. MR GEORGE: He was the advocate in the second hearing. I think the way your Lordship is planning to deal with it is to suggest that there was some deliberate attempt by Mr Freeman to knock out the second case, hide the fact that he was going to do so, reopen ‑‑

389. SIR JOHN THOMAS: And then come to this court and ask them to set aside the first conviction when they could easily have heard the evidence on the second.

390. MR GEORGE: But they could still easily hear the evidence on the first.

391. SIR JOHN THOMAS: Let me just put it to you once more, Mr George. Everything was there and proper to go on the second occasion.

392. MR GEORGE: Yes, my Lord.

393. SIR JOHN THOMAS: They then turn around and say he was convicted of this, so the prosecution don't proceed.

394. MR GEORGE: That isn't my understanding of the way the cross‑examination went.


396. MR GEORGE: My understanding, from the way the statement reads, is the officer was cross‑examined. He's then asked about this other statement. He then says ‑‑ or he's initially asked how many statements he's made in respect of this. He says just the one. He's asked whether this other statement has anything to do with it. He says no, that that's a mistake and that Mr Ali's details had incorrectly been entered on that matter. Whatever the prosecution's reasons were for dropping it do not appear to have come from Mr Freeman to say, "Well, this is an autrefois type situation." That's not what, as I understand it, is being suggested by either party. The Crown may well have gone away and said, "Well, because there is already one conviction we are now dropping it."

397. SIR JOHN THOMAS: Then it was incumbent for him to have said, as an honest lawyer, "If he does that, I am going to say there is something wrong with the first conviction."

398. MR GEORGE: I don't know. I know your Lordship is perhaps ‑‑

399. SIR JOHN THOMAS: If that had happened, if that had happened, the prosecution would have said or the court would have said, "All right. We will deal with section 142", then and there. They could have heard all the evidence and dealt with it. It cannot be right to do what happened in this case.

400. MR GEORGE: It certainly isn't Mr Freeman who appears to have procured the Crown into saying that this is an autrefois type situation. There is no evidence to support that, in my respectful submission. He's not adopted sharp practice there. If the Crown go away ‑‑ the way that, as I said, the statement reads is that there were problems with the officer's account in any event, his statement or his evidence. Whether I am right or wrong about that, I can only go from what is on the statements. If the Crown then drop it, I don't see how it can be suggested that that is sharp practice by Mr Freeman. Of course if it is wrong that the first one should be reopened, then the court, as they have said, "Well, we won't reopen the first one because of that", but the argument really is down to that. Was that wrong?

401. SIR JOHN THOMAS: Can we look at paragraph 4 of what the CPS say in the AoS.

402. MR GEORGE: Just give me one moment please, my Lord, yes.

403. SIR JOHN THOMAS: How could it not have been proper to tell the court he had been convicted on a previous occasion?

404. MR GEORGE: It does not appear that the claimant is putting forward autrefois at that stage.

405. SIR JOHN THOMAS: So he didn't know he had been convicted?

406. MR GEORGE: He obviously knows he's been convicted.

407. SIR JOHN THOMAS: Why wasn't the court told about it?

408. MR GEORGE: As I explained to your Lordship, my understanding was the accuracy of the officer's statement was properly tested with him when he came to give evidence the second time round. There were discrepancies.

409. SIR JOHN THOMAS: But what was tried to be done was to get something to undermine the first conviction without telling the court that there had been a prior conviction; that can be the only ‑‑ and that is sharp practice.

410. MR GEORGE: But I am not sure that that's the only ‑‑

411. SIR JOHN THOMAS: I am afraid I have put it to you on a number of occasions.

412. MR GEORGE: You have.

413. SIR JOHN THOMAS: I do believe there is no doubt that that was sharp practice.

414. MR GEORGE: In my submission, there is not a proper foundation for ‑‑

415. SIR JOHN THOMAS: I have no doubt. We gave you an opportunity to go away and take instructions. It is clear what we have put to you. What was in paragraph 4 is beyond per adventure. I don't see, Mr George ‑‑ you have said what you have to say about it, and the court will have to reach the conclusion it does in this case.

416. MR GEORGE: Can I just invite your Lordships to also go on to paragraph 7 where it does say ‑‑

417. SIR JOHN THOMAS: Paragraph 7 of what?

418. MR GEORGE: Of the Crown's response where it does say that the claimant did not give autrefois.

419. SIR JOHN THOMAS: Where is paragraph 7?

420. MR GEORGE: Of the Crown's response. It's overleaf, page 3. It goes on to two pages.

421. SIR JOHN THOMAS: Wait a minute.

422. MR GEORGE: If one reads on.

423. MR JUSTICE GLOBE: But that was in the pre‑trial information.

424. MR GEORGE: I think your Lordship may be right, I am sorry.

425. SIR JOHN THOMAS: There can be no doubt that the only inference of your client's conduct was to try and secure out of the police constable evidence in which he could have sought to set aside the first conviction on the basis of the discrepancy, having obtained then the discontinuance of the second hearing. That is sharp practice.

426. MR GEORGE: Your Lordship knows I seek to defend that position on behalf of ‑‑

427. SIR JOHN THOMAS: We hear what you have to say, but that's the inescapable conclusion. We shall rise.

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