Speeding Loopholes

How to challenge a speeding offence

Suspected of speeding? All our time is spent fighting for motorists charged with driving offences. We defend cases all across England and Wales, and have first hand knowledge of most Magistrates' Courts. We would never recommend defending a criminal case without the help and guidance of a specialist solicitor. If you think any of the defences below might apply in your case, please call us immediately for free advice.

The defences below apply to the following speed cameras;

  • Gatso Cameras (yellow box)
  • Average and Variable Cameras (found mainly on motorways)
  • Hand-held laser devices (including camera vans)

You should be aware that some radar devices are manually operated by the police whilst others, such as the Gatso Camera and motorway HADECS cameras, are automatic. Either way, the police should follow the procedures laid down in the guidelines issued.

Consider carefully the list below - it will help you determine whether the police and the CPS can prove the case against you.

  1. The secondary check

    If you were ‘flashed’ by an automatic Camera, have you seen the independent secondary check? Automatic unattended devices operate without a police officer being present. These cameras only provide primary evidence of an offence. As such there is a requirement for the police to provide secondary evidence - a secondary check - as to the accuracy of the device. The secondary check is usually two photographs clearly showing the distance travelled by the vehicle. The photographs must contain clear images of the white line measurements along the road. It is then possible to undertake a manual calculation of the physical distance travelled over a given time, thus determining your alleged speed.

    Please note. In our experience it is difficult for the police to prove the accuracy of the speed by the secondary check when the alleged speed is only marginally over the limit, even where the white lines are clear. This is because of the spacing between the white line measurements on the road and the margin of error built into the devices.  

    In addition, our team have seen many photographs where the white line measurements cannot be seen clearly, or at all. This could be as a result of other vehicles in the way, bad weather, road resurfacing, etc.  If the lines are not clear, and therefore no secondary check can be established, there should not be a conviction irrespective of the alleged speed.

    The police are often reluctant to disclose the photographs of your vehicle, often stating that you are not entitled to see such evidence. This may be a tactic to place pressure on a motorist and force a guilty plea. However a refusal to disclose the photographs can work in your favour providing you have raised this as a defence issue with the CPS. You should take legal advice on this particular point as it involves complex law relating to admissibility of evidence. It can be used as a ‘loophole’ by solicitors to prove that the CPS do not have enough evidence for a conviction.

  2. Is there any evidence of the white line measurements being laid to engineering standards?

    It is vital that the white line measurements painted onto the road surface are accurate. The police are not responsible for painting the lines and therefore evidence should be produced from the company or agency responsible. This may be the Trading Standards Department of the local council or a separate engineering company. Please note. The requirement for the CPS to prove the accuracy of the white line measurements is often overlooked. It may involve the CPS obtaining additional evidence from the person or agency who originally measured and laid the lines. However, unless you raise this as a defence point and require the CPS to prove the accuracy of the white line measurements then the court will simply presume everything was correct. As with the point above, it is certainly beneficial to discuss this issue with a solicitor.

  3. Did the police undertake a risk assessment before choosing the location and operating the radar device?

     If you think that the officer may have been stood or parked on private land it is worth checking if the officer had permission to be there. In addition, if the officer was parked on a grass verge or pavement, did he have authority from the Highway’s Agency?

  4. Have you seen evidence to prove that the officer was properly trained to use the radar device and, where relevant, video equipment?

     You may be surprised to learn how little training some police officers have before being allowed to operate speed equipment. The majority of officers I have spoken to had between 2 and 4 hours training. In one case I found that the officer (traffic officer with several years experience) had not been trained at all in the use of the particular device.  

  5. Have you received a ‘section 20 certificate’?

    Please note. In cases involving a Gatso Camera where there is no direct police involvement at the time of the alleged speeding offence, the CPS will often seek to rely on section 20 of the Road Traffic Offenders Act 1988 to prove its case. The quotation above, contained in the ACPO Code, makes clear that the device must be type approved if the evidence produced from the device is to be admissible.  The CPS may therefore supply you with a statement confirming that the device was type approved in accordance with s.20, or words to that effect. However, it is important to check the statement from the CPS carefully as, in several cases I have been involved with, the CPS did not provide the information in the correct format, or at all!

    It is vital that you approach this area with care and, ideally, you should seek advice from a solicitor. If the CPS does not provide you with a s.20 certificate in the correct format, or at all, then you should win your case at court. Be careful not to tip off the CPS that the s.20 certificate does not contain the correct information. Within seven days of the trial date it is too late for the CPS to serve the certificate and the CPS may be persuaded to drop the case.

    If you do receive a s.20 certificate you should check that it contains all the correct information. I have personally won numerous cases where the CPS failed to supply the correct information within the certificate.

  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.  

    In a recent case, 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 sight on top of a gun. 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. In our experience the police do not document this procedure correctly, or at all!

Gatso Camera & Radar Speed Guns

A Motorist’s Guide to the ACPO Requirements for the Use of Gatso Camera & Radar Devices

An indispensable guide for anyone caught speeding

- Conor Johnstone, Solicitor
  • Practical advice for every motorist accused of speeding
  • Check whether the police complied with their own rules
  • A simple check-list to help you find mistakes made by the police
  • Discover loopholes in the evidence against you
  • 68 key questions to test the police

Police Guidance on Speeding Offences

Any police officer or camera enforcement officer who operates a radar gun to measure a motorist’s speed or who views images from a Gatso Camera, should comply with the police force’s own Code of Practice. This booklet concerns the 2004 Association of Chief Police Officers’ Code of Practice for the Operational Use of Road Policing Enforcement Technology (referred to as the ‘ACPO Code’ throughout this booklet).

Please note that the 2004 ACPO Code has been replaced by the 2011 Association of Chief Police Officers’ Guide for the Operational Use of Speed and Red Light Offence Detection Technology (issued December 2011). A separate booklet exists for the 2011 Guide.

This booklet, relating to the 2004 ACPO Code remains relevant because many police forces and / or individual officers still operate speed devices according to the 2004 ACPO Code. The vast majority of officers who operate speed speed devices will have been doing so since before December 2011 will therefore have been trained according to the 2004 version.

I hesitate to use the word “will” in relation to training. Perhaps “should” have been trained would be more precise. Many officer have never received any formal training.

This booklet contains an important summary of the ACPO Code of Practice and sets out all the responsibilities of the police when operating radar speed enforcement equipment. I have also incorporated a self assessment check-list to help you determine whether the police have followed the correct procedures when using a radar device to measure your speed.

The booklet is intended as guidance to motorists who have been accused of speeding and I hope it will help you find a mistake or ‘loophole’ in the evidence against you. The check-list contained in this booklet raises 68 important questions to help you determine whether the police actually have the evidence required to achieve a conviction. All the questions raised are important and ones which I would check in every case for my own clients.

The rules relating to the use of radar devices are vast. If the police do not operate the devices correctly then the evidence may not be enough to achieve a conviction – but unfortunately the police do not tell you whether they have made a mistake. It’s up to you to find out. But don’t automatically think that the police are out to cheat you – they may not know what evidence is required either!

I have personally dealt with cases where the police officer dealing with the radar device evidence failed to complete even the most basic checks to ensure the accuracy of the device. If you are unsure – ask! Ask for the evidence and put the prosecution to proof – make them prove their case.

This booklet applies to any of the radar devices currently on the market, including the notorious Gatso Camera widely used by police forces throughout the UK.

Please note that a separate booklet exists for speed offences detected by laser devices. Laser devices are usually manually operated by a police officer.

What is the ACPO Code of Practice?

ACPO stands for the Association of Chief Police Officers. This group of senior police officers have produced a Code of Practice for the Operational Use of Road Policing Enforcement Technology (referred to as the ‘ACPO Code’ throughout this booklet). It applies to all police officers who operate speed enforcement equipment throughout England and Wales. Importantly for the motorist it means that any police officer who fails to follow the ACPO Code precisely when using a radar gun may have his evidence discredited and the motorist may avoid a conviction.

The ACPO Code makes it clear that a failure by the police to follow the ACPO Code precisely may result in the evidence obtained by the police being unreliable or inadmissible.

“It is imperative that the procedures set out in this Manual [the ACPO Code] are applied scrupulously - each link in the evidential chain is of importance, and upon its careful application lays the integrity of the Police Service.” (Foreword to the ACPO Code)

From an evidential point of view, the ACPO Code can be even more important than the actual manufacturer’s instructions for the device used.

“This Association of Chief Police Officers’ (ACPO) Code of Practice provides the operational standards for the Police Service use of road policing enforcement equipment. It should be read in conjunction with manufacturers' instructions. The Code of Practice takes precedence where ACPO’s standards vary from those laid down by the manufacturers.” (ACPO Code - Introduction)

The full ACPO Code is a detailed and complex document running to some 110 pages in length. Much of the information contained within the ACPO Code will not be relevant to your case as it deals with all different types of speed enforcement equipment, not just radar devices. For this reason I have produced this booklet as a guide to the ACPO Code relating solely to radar devices. In addition, I have listed a number of important evidential issues that the police and prosecution need to prove, cross-referenced with the relevant sections in the ACPO Code.

In order to simplify matters, this booklet is designed to pick out only those sections of the ACPO Code that are particularly relevant when a radar device has been used by the police. It is vital to check whether the police complied with the ACPO Code and from a defence point of view the ACPO Code can be used to your advantage.

“This Code of Practice is for the guidance of the enforcer and for the information of those accused of alleged offences who wish to satisfy themselves the correct procedures have been followed when technology was used to detect the alleged offence.” (Introduction – ACPO Code)

This booklet contains a series of questions - a self assessment check-list with a box at the start of each question. You should consider each of the questions asked. If you answer positively then place a tick in the box at the start of each question. Any questions not ticked may indicate an error made by the police and further investigations can then be undertaken in that area.

After each question is a quotation from the ACPO Code along with the relevant section of the ACPO Code. This is provided so that you can see the connection between the questions and the specific responsibility placed upon the police by the ACPO Code.

Do you need legal advice?

The information contained within this booklet should not be regarded as legal advice for your specific case. It is intended as general assistance to help you identify factors that could be relevant in your own case. It goes without saying (but I need to say it anyway for legal reasons) you should obtain proper legal advice from a solicitor before acting on any of the assistance given in this booklet.

Another word of warning, unless you are someone who cuts their own hair and does their own dentistry, please think very carefully before deciding to represent yourself. It will cost you very little, if anything, to have a word with a specialist solicitor prior to taking any action in connection with your own case.

 

A few words on obtaining legal advice – please bear the following points in mind:

  • It may not be as expensive as you think, and it could save you a lot of money in the long run, as well as your driving licence. Some solicitors will also agree to represent you on a fixed fee basis, meaning you will know in advance what it will cost - the fixed fee will not increase whether the case takes one month or one year to resolve.

  • Ensure that the solicitor you speak to is a speeding solicitor who specialises in speeding defence law. Don’t be afraid to ask how much of their time is spent handling speeding cases. If they also handle other areas of law, chances are they are not specialist at all.

  • Check the charges. I would always advise agreeing a fixed fee so you know exactly what the advice will cost. This way, whether your case takes two months or two years to resolve, your bill stays the same!

  • Try to have a chat with the solicitor who will be handling your case – if you don’t feel entirely comfortable, don’t use them.

  • If you can’t actually speak with the solicitor direct, forget it. Some solicitors employ unqualified case workers or clerks to handle their work. It will drive you crazy if the only people you can ever get hold of know very little about your case.

  • Contact a solicitor direct. A number of internet sites are not actually solicitors but third parties who just refer your case to a solicitor – for a fee.

  • Try to find a solicitor who will offer free initial advice.

  • Be wary of companies who ask for payment immediately - before you even speak with anyone.

Clarke v CPS 2013 EWHC 366 (Admin)

It is worth considering the decision in the above case. In this case, the defendant The court concluded that there is no legal requirement for the police officer involved in a case to check speed detection equipment. The police officer in this case was not the person who carried out the distance check that has to be completed before a tour of duty begins.

Clarke argued that the device had not been "verified as required" by the police officer and such such the Prosecution could not rely on the recorded speed because of this. Clarke also argued that the officer relied on the checks being carried out by another officer and the court had not allowed the hearsay evidence to be admitted in this case.