It has been a long road, but the tide seems to be turning against the legitimacy of speed devices. As the coalition government refuses to further finance the “cash cows” for the Treasury, and the Oates-Lee case in England being ruled of constitutional importance, campaigner Robbie the Pict deconstructs the judicial quagmire.

I had deliberately invited a prosecution on the M74 near Dumfries by travelling toward a camera van at 85mph.

After an appalling history of legal ignorance by the magistrates at Annan, and abuse of process by the Crown, a conviction was secured. An appeal could thus be taken to the Scottish Court of Justiciary Appeal, which could then provide a binding authority. There is actually no worthwhile public point in winning in the lower Court. This became Pict v. PF Dumfries, and the grounds of appeal were that the motion of ‘no case to answer’ should have been upheld, there being no admissible evidence of 85mph by my vehicle, and as it turned out, no available evidence of a Motorway having been lawfully erected.

There was therefore no crime available for me to commit.

Whilst waiting for this appeal, Brotherston v. Manchester Magistrates was heard before Judge Gibson. I call it a tragedy because Her Majesty’s Court Service, and thus its judicial hirelings, were compromised by their membership of the local Safety Camera Partnerships. Andrew Perry, acting ostensibly for the Crown but seemingly on some kind of retainer by a private organisation created a fraudulent legal fiction which Judge Gibson either stupidly or by arrangement readily bought into. My suggestion that Perry’s role is questionable is based on him being photo-featured in a magazine published by Road Safety Support as a Crown Advocate ‘seconded’ to RSS as part of their ‘dream team’ to combat challenges to speed cameras.

The ‘Perry Dream Scenario’ claimed that series of ‘general’ statutory instruments was raised first, providing legal umbrellas for any ‘specific’ technologies that might be created in the future. Thus, the fantasy goes, an S.I. for ‘radar’, or ‘transverse rubber strips’ was created and then, when a speedmeter using that technology arrived, all that needed to happen was the Home Office boffins checked it out and a private firm called ACPO road-tested it for several months and it received a legal certification. This declared it as fit to provide information which could be used either as evidence or to demand fines. This certification was a note from the Home Office called an ‘Approval’ and if the ‘Approval’ could be related to a general ‘umbrella’ S.I. then everything was tickety-boo.

Unfortunately for the fantasist Perry that is not what the law says. Historically, Section 20 of the Road Traffic Offenders Act 1988 introduced the concept of a document called an ‘Approval’ which had to be issued by the Home Secretary to give legal blessing to radar speedmeters, the only type known at the time. However the end of that decade saw the arrival of the speed-camera industry as we now know it, and the law was obliged to have a re-think of its arrangements.

Section 23 of the Road Traffic Act 1991 expanded the old Section 20 from the 1988 Act into ten sub-sections which laid out the new requirements, designed both to accommodate technologies other than radar and to protect the public interest by taking legal approval by mere Home Office ‘Approval’ notes up to a level called ‘prescription’ which is a gift of Parliament in the form of an Order, published for sale as a ‘Statutory Instrument’. An S.I. can be thought of as a ‘mini-Act’ of Parliament, with a bar-code, proposed by the same Home Secretary but, if it survived the scrutiny procedure, issued under the authority of Parliament itself.

However, this is not a power which the Home Secretary can delegate to himself. Thus under the new legislation, effective from July 1992, any device bench-tested and road-tested by the Home Office and their ACPO buddies is first ‘approved’ by them. Then and only then that device, as specifically described, becomes the subject of a draft S.I. from the Home Secretary of State and is sent by him to be laid before both Houses of Parliament for two weeks. If there is no objection from Members of either House, it becomes law passively, in a manner known as the ‘negative resolution’ system.

In another camera challenge run by myself in Fort William, Lord Nimmo Smith chose to interject 800 or so words of ‘obiter’ (ancient Italian for ‘passing observation, unreasoned and of no relevance’l on the topic of authorization of devices.

This, please remember, is pre-trial and wholly opens up a principal aspect of the defence case, attacking it without the opportunity of reply and researched by the Judges themselves, without invitation and in their own leisure time. This became known as Pict v. Wylie. We must then take you to the eventual appeal hearing for the M74 incident, Pict v. PF Dumfries. Lord Carloway presided, flanked by Lords Abernethy and Emslie. In short, they bought into the Perry/Gibson myth from Brotherston and the pre-trial obiter from Nimmo Smith in Pict v. Wylie, using the obiter as a reasoned authority, against all legal propriety. That was a first high-level UK test case and would have provided a citable authority in England and Wales. If successful it would have annulled all speedmeter or red-light convictions since 1992, requiring removal of points and the return of hundreds of £millions in fines.

The indefensible was desperately defended by an unpublished memo from Brotherston, currently under consideration for appeal, and a mere obiter from a Human Rights judgment. This was legal Elastoplast at best - the Rule of Political Convenience and Cowardice prevails over the previously respected, now forgotten, Rule of Law.

In Pict v. PF Dumfries, Carloway says Nimmo Smith’s obiter in Pict v. Wylie is a convincing and reasoned authority. It is used, along with Brotherston, to refuse the appeal and protect the unlawful devices. Let us call it then a ‘BLACK’ authority. We return to a later stage of Pict v. Wylie, still pre-trial and point out this BLACK authority as potentially prejudicial to lay judges. Lord Hardie disdainfully dismisses this suggestion and declares the same judgment a very ‘WHITE’ obiter, completely harmless and without authoritative prejudice in law. (However he is thus far refusing to commit this to writing!)

Readers who do not enjoy the sublime absurdities and intellectual metaphysicality of Lewis Carroll may well have lost the will to live by this point but it gets worse, or funnier if you enjoyed Alice’s adventures.

Developments continued as recently as 26 May. A Skye man by the name of Hector Cormack, in Cormack v. PF Portree, who had adopted the ‘lack of legal prescription’ defence at trial, was summoned to Edinburgh for his Appeal Court hearing. He appeared before Lord Kingarth, sitting with Lords Bonomy and Emslie, who denied his appeal in a blunt and cursory manner, refusing to entertain any challenge to Carloway’s dependence on non-authorities or to hear any technical argument about laser not actually being light beams and therefore even in the botched system not having any umbrella S.I.. They simply said Carloway has decided this. Hector, being a Skye man, was aware of Lord Hardie’s recent ruling and that Pict v. Wylie had been recently declared obiter by the same Appeal Court. His Counsel pointed this out, also reminding Lords Bonomy and Emslie that they even sat on the Bench which made that finding.

In a transcendental fusion of the Red Queen and Humpty Dumpty, the Noble Senators of the College of Justice simply switched poles and declared Carloway’s use of Pict v. Wylie a legitimate dependence on a legitimate authority and not impugned by the opinion of Lord Hardie’s Bench, something they even pointed out ‘was not in writing’ and therefore an ‘unofficial opinion’! WHITE obiter had thus reverted to BLACK authority! We await that write-up with interest, but thus far, like Hardie’s, it is being refused a reasoned judgment in writing.

The camera wars thus go on. The secret is perseverance in the face of crass and contrary obstructionism by the cynically political and morally bankrupt judiciary.

Returning to the camera farce currently bringing the Scottish Courts into disrepute, there are doubtless legal maxims concerning Courts contradicting themselves, but at a human level, should I be concerned on Lord Emslie’s behalf? Lord Bonomy has only done WHITE to BLACK within 5 weeks, but Lord Emslie has done BLACK - WHITE - BLACK which may indicate a bi-polar disorder of some kind. I think we should be told.