Camera boss admits flaw
07 February 2007 10:59
THE CROWN COURT No. A20060224
AT PRESTON The Combined Law Courts
Friday 19th January 2007
HIS HONOUR JUDGE WOOLMAN
(Sitting with Justices)
RE. THE APPEAL OF: BRIAN WILTSHIRE
Transcript prepared from the official record by
The Cater Walsh Transcription Ltd., 1st Floor,
Paddington House, New Road, Kidderminster DY10 1AL.
Tel: 01562 60921/510118; fax: 01562 743235;
MISS K. HODSON appeared on behalf of the Appellant.
MISS S. JOHNSTON appeared on behalf of the Respondent.
C R O S S – E X A M I N A T I O N
T H E W I T N E S S F R A N K G A R R E T T
Friday 19th January 2007
Cross-examination commenced by Miss Hodson of the witness FRANK GARRETT
Q. Mr Garrett, I want to just ask you to turn back to your qualifications briefly, please?
Q. In terms of your degree there’s law degree, is that right? A. Yes, indeed. Yes.
Q. And your background effectively, is it, as a police officer until you formed your company in 1992. A. That’s essentially correct, but as a police officer I spent a great deal of time working in the scientific areas of communications which is not mentioned there but, more particularly, on the various committees in fact I served for many years as a member of the committee that is currently effectively the Type Approvals Committee, so I have, if you like, some technical experience let’s put it that way.
Q. Well, Mr Garrett, perhaps you’re anticipating my question. Broadly speaking, your background is as a police officer, and then as the owner of this company Tele-Traffic U. K., is that right? A. Well that is correct but as the---
Q. Thank you. A. Yes.
Q. And is it right, Mr Garrett, you don’t have a science degree? A. I don’t have a science degree but I have a great deal of exposure to and working with and studying the technology involved.
Q. Well, that’s gained through experience, is that right? A. I suppose you could say that, yes, your honour, indeed.
Q. Yes. No formal qualification in science. A. No, I have no formal I have no formal scientific qualification.
Q. ---physics, anything of that sort. A. Apart from O and A-levels.
Q. And your report says that you’re the former managing director--- A. Yes.
Q. ---and founder of the Tele-Traffic U. K., doesn’t it? A. Yes.
Q. What it doesn’t say, Mr Garrett, is that your still in effect the owner of that company, aren’t you? A. Well, since my wife died in July I’m the sole owner in the sense that I’m the sole shareholder yes, indeed.
Q. It doesn’t mention that does it? A. It doesn’t mention it there but I think it’s a generally accepted principle if you like.
Q. Well--- A. It certainly, it certainly is a question that’s been exercised in many other courts.
Q. Well, is there a reason why your report only indicates that you’re the former managing director and doesn’t indicate your current interest? A. No. No, I really can't answer that question why I didn’t put it in there I don't know it didn’t seem to me to be…
Q. Well, Mr Garrett, were you about to say, it didn’t seem to you to be relevant or important? A. Yes, if you wish. Yes. It didn’t seem to be relevant to this particular prosecution.
Q. Well, let me ask you this you are the sole shareholder in that company, aren’t you? A. Indeed.
Q. You, therefore, receive or are entitled to all of the profits that result from that company. A. Well, I suppose that’s correct. Yes, indeed.
Q. And in recent years the profits of that company have been in excess of £1.5m, haven't they? A. Erm… yes, yes, you’re probably right. I can't tell you exactly but I mean it’s in that sort of region, yes.
Q. You’ve got a significant financial interest in that company--- A. Oh, yes.
Q. ---haven't you, Mr Garrett? A. Oh, indeed. Indeed.
Q. And your company would have supplied the device that’s at the centre of this case, wouldn't it? A. Uh-huh. Yes, indeed.
Q. It did supply that device, didn’t it? A. It did. Yes, it did.
Q. Your company calibrated the device that’s at the centre of this case, didn’t it?
A. Well it did because that’s a Home Office requirement.
Q. Well, it may be a Home Office requirement but it was your company that did that.
A. Oh, yes.
Q. And we’ve already heard is it right that your company is the sole manufacturer of that device throughout the U. K. to police forces? A. The status of the company is that we are the, I suppose, for want of a better term, the manufacturers’ agents for that particular piece of equipment in the U. K. and Ireland, but we are also the European engineering facility so we provide maintenance service for the whole of Europe and calibration service for the whole of Europe on that equipment.
Q. There isn’t any other company supplying the device in question is there? A. Not this particular device, no.
Q. And police forces throughout the country use this device, don’t they? A. This and other devices from other companies, yes.
Q. No doubt, Mr Garrett, you want police forces to continue using your devices, don’t you? A. Well if you’re talking about… yes, of course in terms of the commercial interest of the company of course we’d want to sell equipment I mean that is the commercial interest of the company but I don't think that necessarily reflects in my status here today.
Q. Well, Mr Garrett, your company manufactures and supplies these products, is responsible for the upkeep of these products. You have an interest, don’t you, in your product being seen to be reliable? A. I certainly, in the commercial sense, yes, of course, but in terms of my integrity it’s not in my best commercial interest to falsify facts in a forum such as this.
Q. Wouldn't it be a huge blow to your company, Mr Garrett, if it was found that your products weren’t functioning in the way that they are supposed to? A. Well I think that is a matter for Home Office decision. I mean, point of fact we as a manufacturing company have manufactured the device, have provided a device to Home Office standards and requirements.
Q. So, Mr Garrett, I’ll repeat: wouldn't it be a huge blow to you if that changed?
A. Well, of course, this is just one of the activities of this company we do have others, so it wouldn't necessarily and there are other lasers that are now Type Approved so I suppose the obvious answer is, yes, but perhaps not as big a blow as you might suggest.
Q. You see, Mr Garrett, I suggest to you that you have got an interest, a financial interest, in the decisions that this court is asked to reach in this case. You want this court to decide that it’s reliable, don’t you? A. I want this court to decide what it believes is right.
Q. Now, this particular device it’s a complicated piece of machinery, isn’t it? A. Yes. Yes, it is certainly a complex piece of technology, yes.
Q. And, .Mr Garrett, without a science degree I take it that you personally didn’t design every feature of that device? A. I didn’t design every feature but I was part of the consult of the design team that worked towards that.
JUDGE WOOLMAN: It’s actually made in the States, is it? A. The device is actually made in the States, your honour, but the principle is that, if you like, the leading dealers from around the world actually are involved in the design of new products.
MISS HODSON: And before an officer’s let loose with this piece of machinery, an officer has to have training it’s essential, isn’t it? A. It’s absolutely essential, in my view, that officers should be properly trained. Yes.
Q. It’s also necessary for an officer to follow the A. C. P. O. guidelines. A. The A. C. P. O. guidelines are a code of practice an identification of best practice which are---
Q. Do the Codes not indicate, Mr Garrett, that they have to be followed by police officers? A. That is what is being suggested but the status of them is that they are they’re not mandatory, they’re not statutory, they are an identification of best practice, and I applaud that and I believe that they should be followed. But having said that, having said that, in terms of they’re in part advisory, they’re in part informatory and they in part sort of recommend operating practices if you like.
Q. They are designed, they exist, for the purpose of police officers following their guidance, don’t they? A. Oh, indeed. I mean, the A. C. P. O. guidelines in these matters arise out of a radar case in the Gwent area in the 1950s, your honour.
Q. And--- A. I can't remember the name of the case, but certainly they arise out of that. And in fact, I’ve been involved in the A. C. P. O. guidelines and the writing of them for many years until I left the Police Force.
Q. You were involved in writing the guidelines? A. Yes, not for this particular piece of equipment, no, because this particular piece of equipment wasn’t in existence when I retired from the Police Force.
Q. Presumably, therefore, quite a lot of effort goes into writing those guidelines---
A. Oh, indeed, yes.
Q. ---a lot of research. A. It’s, it’s, it’s… Indeed, in fact---
Q. They’re not just plucked from thin air are they? A. No, and they largely rely, in all sorts of ways, on the manufacturers instructions.
Q. Yes, I was about to turn to that--- A. Uh-huh.
Q. ---the manufacturer’s instructions they’re important too, aren’t they? A. I’m sorry?
Q. The manufacturer’s instructions, the operations manuals, they’re important too.
A. They are indeed.
Q. They should be followed--- A. Indeed.
Q. ---when these complicated pieces of machinery are being used. A. Yes.
Q. So, it’s right, isn’t it, that these machines have to be used properly. That’s why all these checks--- A. Indeed.
Q. ---training--- A. Indeed.
Q. ---all these guidelines exist. A. Indeed. Indeed, I agree with that entirely.
Q. And any opinion you express about these machines has to be dependent on them being used properly, doesn’t it? A. I think what you’re asking me is: should the guidelines be followed?
Q. Well, you say, in many places throughout your report, things like, “The machine is failsafe, reliable”. A. Yes, I do.
Q. That opinion is conditional, isn’t it, on the devices being used--- A. Correctly.
Q. ---in the way that they are supposed to be used? A. Oh, indeed. Oh, indeed, yes. Indeed, yes.
JUDGE WOOLMAN: Well, it is a bit like driving a car, is it not, it is safe until you if you drive badly when you are drunk it is dangerous and you drive properly it is all right?
A. Indeed. Well, I mean the analogy I would use, your honour, is your V. C. R. at home unless you use it correctly it will not do what you want it to do, it will not record what you need it to do.
MISS HODSON: Now, in fact you say that yourself, don’t you, at paragraph 12.7 of your first report? A. Yes.
Q. “It should be said that like any technical piece of equipment however efficient it is it needs to be used in accordance with the manufacturer’s instructions, etc, i.e. used properly”. A. Yes, indeed.
Q. And when it says ‘etc.’ there, is that the reference to things like the A. C. P. O. guidelines? A. Well, yes, it was a shorthand term for any other documentation that relates to the use of the device. Yes.
Q. And at paragraph 12.10--- A. Indeed.
Q. ---you comment on the reason why those instructions and guidelines exist. A. Uh-huh.
Q. It’s to preserve the integrity--- A. Yes.
Q. ---of those machines, isn’t it? A. Well, that’s right. I mean I can only reiterate as far as A. C. P. O. guidelines are concerned, it’s an identification of best practice which I would applaud, your honour.
Q. In fact during your report where you comment upon Dr Clarke’s report you seek to criticise his tests, don’t you, on the basis that, you say, A. C. P. O. guidelines weren’t followed. A. Well, in all the evidence I’ve seen of Dr Clarke’s tests and have been able to review, including the more recent ones, apart from one circumstance which is operationally extreme, I believe that all the tests were conducted operating outside those guidelines, yes.
Q. You criticised Dr Clarke’s tests for that, don’t you--- A. I do, yes.
Q. ---for not following the A. C. P. O. guidelines? A. Indeed.
Q. They are that important, aren’t they, Mr Garrett? A. The guidelines?
Q. Yes. A. Oh, indeed, yes.
Q. You won't stand by and let Dr Clarke, you say, rely on tests that don’t follow those guidelines. A. No, that’s right.
Q. So, information received by those machines in breach of the A. C. P. O. guidelines shouldn't be relied upon is that what you would say? A. I would say except in the circumstances of: has the officer made notes of certain tests and things like that I think that’s a matter for the officer’s evidence.
Q. Apart from notes being taken--- A. Notes being taken of tests.
Q. Apart from notes. A. But I mean I think it’s imperative, your honour, that to satisfy the technical, evidential requirement those tests should be done---
Q. Imperative, Mr Garrett. A. ---except that there are circumstances, for instance, where in the technical circumstances the end of tour range check might not happen for all sorts of reasons and I don’t believe that that attacks the integrity of the device.
Q. Well, Mr Garrett, you can't have it both ways. You can't criticise Dr Clarke for not carrying out or following those guidelines, and yet seek to carve exceptions.
JUDGE WOOLMAN: It depends what you are talking about, does it not? It depends which breaches. Some might be significant some might not be.
MISS HODSON: Well, Mr Garrett, the only exceptions you’re seeking to carve at the present time are those exceptions, those breaches, that arise in this case, is that right?
A. No, no, no, I would make the same comment. And in fact, in my report you’ll find I draw attention to the fact that there is no evidence or notes made of indeed the alignment check or the end of tour check. I would always draw the attention, as an advice of the court, your honour, to that sort of circumstance that I might find. What I do say is that the failure to either note or do some of those checks isn’t necessarily fatal to the prosecution.
Q. Not necessarily. A. Not necessarily fatal to the prosecution.
Q. But it could have an effect, couldn't it? A. Well I don't believe, for instance, in this case the end of tour check or the failure to do the end of tour check does actually have an effect because had that device been found faulty, as the officer said, the next day, then it would have been returned to us, and when it came back in---
Q. Well, do you--- A. ---when it came back in for its calibration twelve months later it was okay.
Q. Well, you weren’t there on that day, were you? A. No, no.
Q. You’re relying on what the officer tells you. A. I can only rely on the officer’s evidence as I see it in the papers or hear it in the witness box. Yes.
Q. There is in fact no evidence as to what happened to the device on the following day--- A. No, no, I accept that.
Q. ---that officer didn’t use it did he? A. I accept that. I accept that.
JUDGE WOOLMAN: Well, I am not sure it is as simple as that because it is a matter for us to decide as to whether it is within the officer’s knowledge whether he would have known if the device had gone back to this company.
MISS HODSON: Yes.
JUDGE WOOLMAN: And indeed, it would be a matter of record within this company I dare say if the device came back to them, I assume? A. There would be a record indeed, your honour, yes.
Q. So you would be able to one would be able to establish, for the purposes of this hearing - maybe not immediately, but during the course of the day - whether there is any record of that device being returned to them as faulty at any stage up to its next calibration check, would there not, I assume? A. Yes, indeed. Each piece of equipment has a complete maintenance record---
Q. Yes, so--- A. ---which we hold the Police Force doesn’t hold we hold.
MISS HODSON: Well, there are--- A. So, certainly we could provide that information if it was necessary, your honour.
JUDGE WOOLMAN: Well it seems to me that it might be if it is being suggested that it might have been faulty--- A. Uh-huh.
Q. ---and you are the only people that can repair it, is that right? A. That is correct.
Q. So it could not have gone anywhere else. A. No, no.
Q. So I think it might be of importance for us to know whether it was returned to you as faulty, frankly. And then---
MISS HODSON: Well, your honour, I would welcome---
JUDGE WOOLMAN: Yes.
MISS HODSON: ---disclosure of the record that’s just been spoken of.
JUDGE WOOLMAN: Yes, I think it would be helpful to all parties. You do not want to take false points and equally nor does anybody want to take false points. So, I think it would be helpful if you could provide at some point--- A. Indeed.
Q. ---as soon as soon as possible photocopies or faxes or whatever of the maintenance record for this device--- A. Uh-huh.
Q. ---at the material time between effectively 19th October 2005 and its next calibration check. A. Indeed.
Q. That would be very helpful. A. I will certainly do that.
Q. Thank you, very much that would be very helpful.
MISS HODSON: Mr Garrett, can I ask you this? The A. C. P. O. guidelines clearly state that at the start and at the end of each tour of duty a distance check should be performed. A. Yes, they do.
Q. If that is not fatal if that would not affect a reading why do the A. C. P. O. guidelines say that that should take place? A. Well, if I may say the history of that particular check, your honour, if you look at it in terms of the manufacturer’s recommendations, is that that is a check that was only required to be done occasionally, and we do suggest once a week, as a confidence check, if you like, for the operator of the equipment. A. C. P. O. themselves have adopted the notion of doing those checks at the beginning and the end of the tour. So what I’m suggesting is that in terms of the technical integrity of the device, certainly we as manufacturer’s would not suggest that check’s done everyday purely and simply because as you turn the device on it checks its own status, if you like, and would identify faults that would lead to a calibration error.
Q. Mr Garrett, can I---
JUDGE WOOLMAN: Well, one can see from a police point of view why it is helpful to do it at the beginning and the end because it avoids arguments like this. (Laughter).
A. Well, precisely so and it’s exactly why when the original for the very first device instructions were written from the manufacturer, we suggested the beginning and end of enforcement session for alignment checks---
Q. Yes. A. ---for evidential integrity effectively.
Q. Absolutely, yes. Yes, sorry.
MISS HODSON: Mr Garrett, the A. C. P. O. guidelines are written by the Police in effect, aren’t they? A. I think they’re currently written by sort of a Police and Home Office team.
Q. The Chief of Police. A. Well, yes, yes.
Q. And you’ve been involved in writing them. A. Oh I have, yes.
Q. The Police wouldn't want to put obligations on their officers that were unnecessary on a day-to-day basis, would they, there must be a reason for requiring that check? A. I think they’re, they’re intention in this is to preserve evidential integrity I think that’s purely and simply it.
Q. Yes. Because, let me present a scenario to you, Mr Garrett. There is a reason why a check should be done at the end of tour of duty because a device something could go wrong with the device, couldn't it, during a tour of duty? A. If something were to go wrong with the device during a tour of duty it wouldn't operate it would give an engineering error reading and the device would lock out and it couldn't be used.
Q. Well, why do any checks then if the device is always going to tell you if something’s wrong why ever do a distance check? A. Well, I mean the point of view, if you like, of the supplier, the manufacturer, and indeed me as an expert is that it’s not necessary every day it’s there as a confidence check for the police officer because the device’s integrity in terms of it being switched on it will identify if there are any faults at that point in time.
Q. Mr Garrett, can I take you back to your answer? A. Yes.
Q. You’ve said that if something went wrong there’d be a manufacture’s report---
A. Yes, yes, it will---
Q. ---it would tell you. A. Yes.
Q. But a manufacturer’s report clearly can't be produced in every circumstance otherwise there wouldn't be any need for these checks at all would there? A. Well. I think we are slightly at cross-purposes on your point. The point is in terms of the engin---
Q. Well, Mr Garrett, if you could answer my question. A. Yes, well I’m trying to answer your question. In terms of the evidential correction in terms of the engineering integrity of the device, then these checks are simply the sort of checks you might do just to have confidence that it’s still working. It’s just, if you like, a mental that’s what we recommend, apart from the alignment check because there is a potential for that alignment to go out of alignment when the thing’s being transported. The purpose of those checks is that in terms of the integrity of the technology that range check isn’t really necessary it’s there as a sort of mental competence check. What has actually happened in terms of evidential integrity as identified A. C. P. O. is they’ve put those in as a recommended practice.
Q. Even though, Mr Garrett, you say, “Not really necessary they’re just a confidence check”, is that your evidence? A. And that is what you’ll find in the manufacturer’s handbook, yes.
Q. Very well. What about this---
JUDGE WOOLMAN: But it is not necessary from an engineering point of view, whether it is sensible from a legal point of view is--- A. I think that’s precisely the point, your honour.
Q. ---is another matter. I think that is what he is saying.
MISS HODSON: Yes. Isn’t it possible that at the start of the day the machine would be cold, wouldn't it? A. Yeah.
Q. During the course of the day it would heat up. A. Yeah.
Q. Is it not possible that that might result in some sort of fault? A. No. In the in terms of The Home Office requirement for tark(?) agreeable testing it’s tested down to about – I just forget the exact figures – something like -30° Centigrade, and I can't remember the top figure but it’s well outside the range of temperatures that you might find in this country.
Q. Well, Mr Garrett, what I’m suggesting to you in broad terms is that something had happened to that device during the course of the day--- A. Yeah.
Q. ---during operation--- A. Yeah.
Q. ---that would affect it’s reliability, and that--- A. Well---
Q. ---it wouldn't be necessarily picked up the next morning. A. ---if there was something technical---
Q. ---and that’s why---
JUDGE WOOLMAN: You have not actually let him answer it.
MISS HODSON: Forgive me. A. If there was something technical to go wrong with the equipment, it would actually, as I said earlier, throw not provide a speed reading but throw up an error reading which is an engineering error reading, and they’re in the fifties and sixties range and the equipment would lock out and not allow the officer to use it. And that’s very well demonstrated in all sorts of testings that we and I think indeed The Home Office have conducted.
Q. Well, Mr Garrett, I’ll return to that in due course, but I suggest to you that that final distance check is an important one it pertains of the reliability of the device. A. I think it’s a factor evidentially I’m not sure that I agree with you that it’s a factor in terms of the technical performance of the equipment.
Q. Now, you speak of the operation of the device--- A. Uh-huh.
Q. ---and how it obtains a speed and reading. A. Yeah.
Q. And your evidence was that during the first three pulses--- A. Uh-huh.
Q. ---it takes a record of that information it logs the information that comes back and its from those first three pulses that it eventually is able to identify the speed. A. It’s from those first three pulses that it predicts the returns that it would expect from the rest of the pulse cycle.
Q. Yes. And those first three pulses give the criteria in effect--- A. Effectually, yes.
Q. ---for the eventual speed reading--- A. Yes.
Q. ---at about twenty-five, is that right? A. Sorry, say that again.
Q. They set the criteria. Did you not say that it was variations from those first three pulses that allow you to decide upon the speed reading? A. No. No, what I said was that the first pulses identify a criteria, if you like, and predict that the rest of the pulses just fall within that pattern.
Q. Very well. Well, let me ask you about that then, Mr Garrett. Those first three pulses set the criteria. A. Yes.
Q. They’re crucial then those first three pulses the information within those? A. Oh, indeed, yes.
Q. So, Mr Garrett, if something goes wrong within the first three pulses--- A. Uh-huh.
Q. ---then the criteria’s going to be wrong, isn’t it? A. In which case the device will produce an error because it won't have got anything it can calculate on in the first three pulses.
JUDGE WOOLMAN: It depends what the something goes wrong is, does it not?
A. Well, yes, indeed.
MISS HODSON: The other readings that you speak of the three different types, they’re generated, aren’t they, as a result of in some cases variations from the criteria generated by the first three pulses? A. Error 3 is the error reading that will identify that the other thirty-nine, forty pulses do not fit the criteria predicted by the first three. Errors 1 and 2 will simply not deal with the situation because it hasn’t got sufficient data effectively to do it.
Q. And Error 3, you say, is the most usual error. A. Error 3’s the most usual one because it relates to the not only the steadiness of the---
Q. So--- A. ---of the officer but the steadiness of the target vehicle.
Q. So, Mr Garrett, it follows, doesn’t it, that if there’s an error within the first three pulses the criteria is going to be wrong; if there’s a slip during the first three pulses, if the first three pulses are generated from another object, if they’re generated from another vehicle the criteria is going to be wrong, isn’t it? A. I think you’ll find that in terms of slip, which is a different situation altogether, the first three pulses… I’m sorry will you, I’m sorry I’m just… say that again.
Q. If within the first three pulses there’s a slip along the bonnet of the car, for example, if within the first three pulses a different target is struck--- A. Uh-huh.
Q. ---another vehicle---
JUDGE WOOLMAN: Completely you mean, a completely different target?
MISS HODSON: Yes. ---or a road, another vehicle or a road, then the criteria for the error being generated would result from that. A. Yes. I understand where you’re coming from now. There are a number of issues here, your honour. First of all, what I didn’t mention in my primary evidence was that the device in recovering data looks for a return signal of clearly the right frequency or wavelength, the right pulse rate - pulse interval – pulse repetition interval – a significantly powerful return signal so it won't take everything it has to meet a---
JUDGE WOOLMAN: Just let me write this down. A. I’m sorry.
Q. The device looks for the strength of the signal. A. The strength of the signal.
Q. The second one was what? A. The wavelength or the frequency because it will be working in an infrared frequency which is about 904 nanometres.
Q. Yes, the wavelength frequency. A. Yes.
Q. Yes. A. The pulse repetition interval---
Q. Pulse repetition. A. ---the space between the pulses, and also the return signal path. So it will not take signals that are scattered from the side it will only take it effectively back down the path that it transmits.
Q. That is four so there are four features. A. There are four criteria effectively four criteria that it examines, yes. Four core criteria that it examines before it will accept the data. Now that is significant, your honour, in terms of movement or targeting against the front or rear of a vehicle, if you were to target against an object such as the court wall of even reflectivity and move the device, then you would get something of a speed B because, as long as you providing you move the device evenly which is precisely why the guidelines say “Keep it still”. Now the difference between that and targeting the front of the vehicle is there are different levels of reflectivity and surfaces on a vehicle which will return different signals, and it’s that way that the device, having captured the first three, will look for the rest of the signals to come back with the same values if you like.
MISS HODSON: Mr Garrett, could I return to some more points then, please? A. Uh-huh.
Q. Do you accept this that if within the first three pulses the device strikes a different object, whether that be a car or a wall, that object will set the criteria? A. You mean a different you mean the second pulse strikes a different object than the first pulse?
Q. No. If the first three pulses--- A. Yes.
Q. ---strike a different object than the target vehicle that different object will set the criteria, will it not? A. That sets the criteria.
Q. Yes. A. But of course, if then if the rest of the beams are striking a different target then it will reject the reading because they won't come in with the predicted criteria from the first target.
Q. Well, but you agree with me, don’t you, that if a different object is struck within the first three pulses that will set the criteria? A. Well, I think I understand what you mean. Yes, the first three pulses will set the criteria whatever it locks on to but it will expect the rest of the criteria to come back, as predicted from that particular object that it strikes.
JUDGE WOOLMAN: So if, let us say there are two cars one overtaking the other---
A. Yes, indeed.
Q. ---and the officer is cross-eyed. A. Yes.
Q. And gets the left-hand car that when he meant to aim for the right-hand car--- A. Uh-huh.
Q. ---but the criteria is then set on the left-hand car. A. If, for instance, as is contended that the device is misaligned and he’s looking at that---
Q. Yes, or it is misaligned. A. ---it potentially can read that yes, of course you can.
Q. So it will then read all the data from the car that the first three pulses have hit effectively. A. It should do. If for any reason the beam moves to the other car then clearly it will reject it.
Q. Yes, as an error. A. Provided we’ve got a complete set of data because they had no gap on the movement---
Q. Yes, it would be an Error 3. A. ---then it would be an Error 3, yes.
MISS HODSON: But of course, if the operator continued to follow the wrong object there wouldn't be an error reading would there? A. Well, I mean my contention would be that it isn’t possible to misalign this so significantly that following one car would actually, would actually what’s the word I’m looking for? Would equally follow the other car because there will always be a subtle difference in movement. But that, if I may say so, is precisely why the alignment checks are in place.
Q. In theory that’s right, though, isn’t it? A. In strict academic theory you’re right, yes.
Q. Within the first three pulses if the wrong object’s struck and then followed there wouldn't be an error message. A. Well, define ‘wrong object’ because in terms of the laser it’s not the wrong object it’s the wrong object in terms of what the officer’s trying to target.
Q. And you say it wouldn't be possible to strike another vehicle in your opinion---
A. Well, my---
Q. ---wasn’t your evidence, Mr Garrett, that at 400 metres there’s a divergence in the beam of 1.2 metres? A. Yes, that’s correct.
Q. Isn’t that almost as wide, if not wider, than the front of a vehicle? A. It’s not quite at 400 metres it’s not quite as wide as the front of a vehicle. But, no, I mean the salient point there is that the device should be properly aligned.
Q. Well let’s deal with alignment then. A. Uh-huh.
Q. It’s necessary when aligning these devices to do a horizontal and vertical alignment. A. Yes, it is indeed.
Q. The purpose of that is that an officer should pass from an open space, over a targeted object--- A. Uh-huh.
Q. ---and back on to an open space. A. That’s the way we teach it, yes, indeed. That’s the examples we give in our tutorials. Yes.
Q. So in the case of a lamppost--- A. Uh-huh.
Q. ---when doing the horizontal alignment--- A. That way, yes.
Q. ---the officer should pass--- A. Yes.
Q. ---from the opening space--- A. Yes---
Q. ---over the lamppost--- A. ---and out the other side.
Q. ---and back to the open space. A. Indeed.
Q. And the key is the officer should hear a different noise--- A. Yes.
Q. ---as he passes over the lamppost. A. Yes.
Q. And the opposite with the vertical alignment. A. Yes.
Q. And the officer should do both the horizontal and a vertical alignment. A. That is the recommendation. That is what we recommend, yes.
Q. Now, the officer’s evidence in this case was different, wasn't it, because he said---
A. It was, yes.
Q. ---that when he did the lamppost he passed up and down the lamppost. That would not generate a difference in noise that would allow him to check the alignment, would it? A. No, that’s right. But my recollection is at some stage he did describe the movement across the lamppost. But, no, in terms of your specific question moving it up and down the lamppost with the dot on the lamppost would not generate what we’re looking for, no.
Q. It’s pointless, isn’t it? A. Yes, it is. It is.
Q. Absolutely pointless. A. It is I agree.
JUDGE WOOLMAN: I think my note is that that is what he had said he had done---
MISS HODSON: Yes.
JUDGE WOOLMAN: ---but that was purporting to be for the vertical alignment if I understood that correctly. A. The only way that would work, your honour, if that’s the case, is if he could take it off the top of the post---
Q. Yes. A. But, yes, I mean---
MISS HODSON: Would you agree, Mr Garrett--- A. ---I think he didn’t describe it well that’s what I’m saying.
Q. No. Well, we heard his evidence.
JUDGE WOOLMAN: Well, that is a matter for us. But, yes. A. Yes, indeed.
MISS HODSON: The only way that that lamppost could operate to vertically align would be if he went off the bottom of the lamppost and somehow there was an open space there and if he went above the top. A. Yes.
Q. A lamppost really, Mr Garrett, isn’t an appropriate--- A. Well, I mean---
Q. ---object to check vertical alignment, is it, you need a thin object, don’t you? A. A lamppost to check in both planes on the same object needs to be that shape.
Q. Yes. A. No, I see nothing, well, there is a lamppost there in Picture 1 but that seems to be masked by trees so it’s not an ideal circumstance.
JUDGE WOOLMAN: And he wasn’t actually saying that he could specifically recall what object he had used other than he was pretty sure that he used the chevron. A. That’s right.
Q. That is as I understood his evidence--- A. Yes.
MISS HODSON: Yes.
JUDGE WOOLMAN: ---as well as whatever other object it was. A. Yes.
MISS HODSON: But his evidence, Mr Garrett, was, wasn't it, that rather than moving on and off these objects, he was moving about on them? Because you gave similar evidence in relation to the chevron, didn’t he, and I asked him about that? He was moving about on the surface of the chevron up and down? A. Well, yeah, yeah. In pure semantics, though, I think that’s the way he was describing it.
Q. Well--- A. But the fact remains that he would not notice a change in note if he just moved up and down the object---
Q. Well--- A. ---so I suspect he… well…
Q. Mr Garrett, if that interpretation of his evidence is correct, and that’s ultimately a matter for the court. A. Indeed.
Q. But if that interpretation is correct he didn’t do a proper alignment check did he?
A. If that interpretation is correct, I would have to say that, no, it was not a satisfactory alignment check.
Q. And you said yourself whilst the distance check might not be so important at the end of a tour of duty--- A. Uh-huh.
Q. ---the alignment check certainly is, isn’t it? A. I believe it’s certainly evidentially important and quite clearly from the proper operations advice it’s important technically as well.
Q. Because the alignment is something that can be changed the distance is built into the device, isn’t it? A. Yes.
Q. But the alignment can be changed from operator to operator. A. The alignment, yes. I mean, in pure pragmatic practical terms, your honour, it very rarely needs adjustment is the sort of history that I get back from end users. But nevertheless, the facility is there on all the devices, because there is a potential for the mirror system that operates the red dot to move a little, perhaps during transit.
JUDGE WOOLMAN: It is the same point as before, from an engineering point of view it might be fine from one calibration test in one year to the calibration test in the next year--- A. Yes.
Q. ---but from the an evidential point of view it is quite possible that the alignment has gone off--- A. Indeed.
Q. ---and therefore that is the importance of doing the checks--- A. Those… yes, indeed.
Q. ---that are prescribed. A. Yes, I mean to take a terminology from the A. C. P. O. I believe my own view is for proper operation those checks are imperative. They’re vital.
MISS HODSON: I also want to ask you about the chevron--- A. Yes.
Q. ---because you have suggested that that was a satisfactory object. Ignoring the way in which the officer scanned over it, that chevron I suggest to you really isn’t--- A. Well---
Q. ---a satisfactory object is it, the advice is to choose something smaller than that?
A. That is certainly the advice. That is the nature of the tutorial. That is what they’re taught, but quite clearly during that operational training then these issues and what the device actually does are discussed. I hear what you’re going to say, sorry, you perhaps ought to...
Q. Well, you have not been to that site have you? A. No, I haven't, no. On this occasion I haven't been to the site because of the timescales constrained against it.
Q. You’ve suggested in your evidence that there’s potentially non-reflective material behind there but you don’t know what’s in the bushes--- A. No, no, I don’t.
Q. ---for example--- A. No, no, no. I’m really just working on the basis of what I see on those photographs---
Q. ---what’s behind the bushes. A. ---which I saw yesterday only. No, I’ve got no idea.
Q. You don’t know that. A. No.
Q. You don’t know, well, we can see the wall. You can't say, can you, Mr Garrett, based on that photograph that it was truly a satisfactory object? A. Well, no I cannot identify clearly exactly what is behind that chevron board, except even by the nature of the photograph, it’s clearly of lower reflectivity than the chevron board itself.
Q. But there’s something there, isn’t there, and the advice is that there should be clear air behind? A. That’s exactly right, yes.
Q. And without checking further, Mr Garrett--- A. No, no.
Q. ---you can't confidently say, can you--- A. No. I mean, if I can sort of if I can just comment on the nature of that check? I mean, in terms of the way we operate in the company, for instance, your honour, we do all sorts of checks against reflective targets which are mounted on walls highly reflective targets mounted on walls so that the wall gives a lower reflective return than the marker. And in that way we can do alignments. But in terms of the operational recommendation most certainly we talk about infinity behind the target object.
JUDGE WOOLMAN: Is it important that the alignment checks are done at the scene, as opposed to--- A. Well---
Q. ---at a prescribed place? I mean, the distance checks are done at a prescribed place---A. Yes, indeed.
Q. ---but I suppose… and then you could set up ideal objects, could you not, for the alignment check but the trouble is you are then going to transport the equipment to somewhere else? A. Yes, indeed. Indeed, although the officer didn’t say so, and I’m not totally aware of the Lancashire practice on this, many forces do in fact do alignment checks at the range site at the same time. The only what’s the word I’m looking for? The only problem I have with taking that as the ultimate check, if you like, is that once one gets to site it clearly has been transported in some way shape or form.
Q. Yes. A. It is potentially possible and it’s a very low risk but nevertheless it’s potentially possible that that alignment might go fractionally out because of the transportation---
Q. Yes. A. ---which is why we as manufacturer’s from Day 1 have always recommended before and after checks on-site.
Q. Yes, I can see that. But of course, you run the risk of not being able quite to find a suitable object. A. Well there are from time to time in my experience, your honour, there are sites where it is not practical to do it on-site, but they often do it off-site but very close to the site.
Q. Somewhere nearby. A. Somewhere else, yes.
MISS HODSON: Mr Garrett, can I now ask you about the distance from which that alignment check should be done? A. Yes.
Q. Your manufacturer’s, well, your operations manual contained a mistake did it, when it said two hundred metres? A. Yes, that’s correct. In fact I identified that some time ago, your honour, when… I didn’t write that manual I wasn’t involved with that.
Q. Was the manual not checked by The Home Office as part of the Type Approval process? A. Strangely enough, yes, they, well, no, correction we have to lodge a copy with The Home Office. I’m not sure that they check it but we have to lodge a copy with The Home Office.
Q. Yes. A. But the problem was identified some time ago and the manual was rewritten in that context, as I said in evidence-in-chief.
Q. So the rigorous Type Approval process that you spoke of, they don’t read the manuals or you’re not sure about that. A. No, no, no, I’m not sure. I suspect they do but I’m not sure.
Q. Both you and The Home Office missed that typing error in the document that’s distributed to police forces throughout the country. A. Well, I didn’t miss it personally. But, yes, it was missed it was either a typographical error or a mistake in transposition.
Q. Are there any other mistakes that you can identify now? A. Not that I’m aware unless you can draw my attention to them.
Q. Well, have you come across any others? A. No, no, I haven't.
Q. So just that one is it? A. That’s what I said, yes.
Q. Are you sure that it didn’t say 200 metres because that’s actually the preferred distance? A. Well, I mean interestingly enough, viewing some tests conducted by Dr Clarke quite recently he found it impossible to get a reading off a lamppost or off a pole at 200 metres. So it quite clearly… and I would have expected that because of the way the beam works on this test.
Q. That’s because--- A. So clearly, 200 metres is far too far to do this test.
Q. So 200 metres is too far for an officer to do an alignment check against a lamppost, for example--- A. Well---
Q. ---but it’s not too far for him to aim accurately and, in one place, at the number plate of a vehicle. A. Well, no, you’re talking about two different functions of the device.
Q. But you’re all--- A. No, no, no. You’re talking about two different functions of the device. Lampposts generally it all depends on reflectivity of the object that you’re against. If you wanted to do an alignment check against a reflective sign at two hundred metres, then you would get it because it’s a significant return that the device can read. If you’re talking about a rounded lamppost in grey or green or very dark colours, then it might not get sufficient reflectivity.
Q. So the difference there is the reflectivity, is it? A. Yes.
Q. Are you sure it isn’t because there is such a wide beam divergence at that distance---A. No, no, it’s a matter of reflectivity.
Q. ---that it’s difficult to aim? A. Quite simply, the device will not read anything that doesn’t come back with the correct power.
Q. In any event, your evidence was, assuming the fifty metres is in fact accurate---
Q. ---that that’s the earliest point at which it’s satisfactory to do the test. A. The manufacturer’s guidelines, which I would agree with, actually say, “Fifty metres or better”.
Q. So, no less than fifty metres. A. No less than fifty metres.
Q. Forty metres wouldn't be good enough then? A. Well, you would have the ability to do a check but, in my view, fifty metres is really the range at which you should do it. But you could do it at the lower range but I would prefer in realistic terms that it’s fifty metres or better.
Q. Now, you’re saying, “realistic terms” because the purpose of alignment is to check that the officer’s going to able to aim properly at a car. A. Well, that’s, yes, yes.
Q. And that can be done at a distance of up to six hundred metres--- A. Yes.
Q. ---so there’s very little point checking the alignment at very short distances, is there? A. Well, no, I mean the minimum range of this device is twenty-three metres I think.
Q. Thank you. Forgive me, if you would just bear with me one moment. Mr Garrett, I just want to return to the error readings--- A. Yes.
Q. ---that you’ve spoken of three different types of error reading. A. Uh-huh.
Q. Only three? A. Well, there are more error readings built into the system but in terms of the officer’s operational practice there are three error readings that he’ll see most regularly, yes. There are other readings that relate to other conditions of the device but they are really engineering readings that only show, in this device, that only show when there is a fault.
Q. Error number 3--- A. Yes.
Q. ---the most usual one. A. Yes.
Q. That operates using a set of data that tells the instrument what to expect back from the vehicle. A. Effectively, yes.
Q. And that data is compiled from the first three pulses. A. The data isn’t compiled from the first three pulses.
Q. Well, that data operates--- A. The first three pulses predict the data that’s coming back. Yes.
Q. And there’s a calculation within the device, is there--- A. There are.
Q. ---that allows it to do that prediction? A. Oh, yes.
Q. And in effect, the device therefore sets parameters based on those first three pulses it expects results back within certain parameters. A. Yes.
Q. And if those parameters are exceeded, another reading is generated. A. Exceeded in the, yes, exceeded in the sense that they fall outside that fairly narrow prediction. Yes.
Q. Do those parameters allow for some change in the speed of the vehicle? A. Well that depends on how those parameters are set which is all part of the algorithms which of course we regard as commercially confidential for all sorts of reasons. But you would---
Q. Well, Mr Garrett, can you tell us--- A. Just, yes.
Q. ---how they’re set?
JUDGE WOOLMAN: Let him answer first, he is going to give us an answer. A. But they are within very narrow, as I said to you, the value that we would look at, if you like, the device will detect down to plus or minus twenty millimetres, which is two centimetres.
MISS HODSON: How does that translate in relation to speed? A. I haven't calculated how far a vehicle moves in two centimetres in terms of time terms but I mean it really is marginal, bear in mind that we’re looking at speed readings in whole values anyway.
JUDGE WOOLMAN: So, is this a fair note: “The device is sensitive…” that’s not quite the right word but--- A. Yes.
Q. ---“…sensitive to differences of plus or minus two centimetres”? A. Two centimetres - twenty millimetres, two centimetres.
Q. Yes. A. Yes.
Q. So that if… yes, I see. So and does it work in distances then rather than speed is that how it calculates it? A. Well, the whole basis of speed calculations are time distance.
Q. Yes, it’s time--- A. Time distance.
Q. Yes. A. And this is no different to a vascar device or any other device---
Q. No. A. ---it works time distance. But what it does is calculate over forty-three readings that display decreasing or increasing---
Q. Distances. A. –shift, it’s a shift really it’s a displacement.
Q. Yes. So if this vehicle is more than two… what happens if the vehicle is more than two centimetres outside the parameters of where it should be? A. Well, that particular pulse will get rejected and that will lead to an error reading.
Q. Even a rejection of one pulse? A. Oh, no, no, no. No, no, it has to take, no, no, to be fair it’s allowed to drop I think five pulses on this one.
Q. It can drop five--- A. Yes.
Q. ---road pulses. A. Yes.
Q. Is that right? A. Yes.
Q. I see. A. I think it’s five don’t hold me exactly to that but it’s allowed to drop a few pulses.
Q. It can drop approximately--- A. Yes.
Q. ---five road readings, is that right? A. Yes, yes.
Q. I see. Yes?
MISS HODSON: Mr Garrett, forgive me I’m not a scientist or a mathematician but in practical terms does the device give some leeway to account for the fact that a vehicle being targeted might be accelerating or decelerating or that its speed may change? A. If it, well, we’re talking about a time interval of four hundred milliseconds which is, what, under half a second. Acceleration rates and deceleration rates in that time would not be significant. But, having said that, if they are significant---
JUDGE WOOLMAN: It is not a rocket, is it? A. Exactly so.
Q. So--- A. If they are significant, no, it will reject it because it’s starting to get readings outside the parameters.
MISS HODSON: Well, Mr Garrett, what I suggest to you is that perhaps the parameters on these devices aren’t actually tight enough. A. Well, you might suggest that I would disagree with you and simply say that they are probably, so far as I’m aware, and I work in the international field as well, they are, in terms of this device even, they vary from country to country and these are probably along with Germany the tightest in the world.
Q. The reason I suggest that to you, Mr Garrett, is because it has been shown time and again that your devices don’t always show error readings when false speeds have been detected. A. Well, those aren’t the results that flow from all the testing conducted under The Home Office Type Approval requirements. And if we are looking at the submissions by Dr Clarke, my contention is that the device has been used to achieve those results outside the operating parameters.
(Discussion commenced with regard to comparisons between the two experts theories)
(Re-called witness P. C. HODSON)
(Witness FRANCIS GARRETT resumed in the witness box)
(Dr Clarke’s video was played with regard to tests he performed)
Cross-examination of FRANCIS GARRETT resumed by Miss Hodson
MISS HODSON: Mr Garrett, I’m going to give you the opportunity now to comment on what was shown in that DVD, it’s a DVD you’re very familiar with that’s right, isn’t it? A. Yes, indeed. Yes, indeed.
Q. Now, one of the examples given on that DVD was the example of the slip effect.
Q. And there were two examples of this in effect, weren’t there, the example of slip along a static object--- A. Yes.
Q. ---a road surface--- A. Yes.
Q. ---or a wall--- A. Uh-huh.
Q. ---and slip across a moving vehicle? A. Yes.
Q. Dealing with the road surface and wall first of all. A. Uh-huh.
Q. It was possible, wasn't it, for the operator moving the device across the road surface and wall to obtain a reading? A. Yes, this is a known this is a known factor of the laser technology involved it’s well documented.
Q. So, it clearly is possible then for such surfaces to generate readings? A. Yes, but there are two factors involved in that, your honour. Firstly, the device is not being held steady in accordance with the operating parameters because it’s being slid along the wall.
JUDGE WOOLMAN: Yes. A. And effectively it’s probably more than ten degrees from, if you like, the line of travel, for want of a better term, of the target. So we’re sliding it along the wall like so. So far as the road is concerned, what’s effectively happening is, at relatively short range, you’re actually turning the road into a wall by pointing down at the road. So the same rules, if you like, apply. But the key issue is that and you’re targeting a static target the device is not designed strictly speaking to measure the speed of a static target.
MISS HODSON: Mr Garrett, I just want to clarify first of all, however, that those surfaces can, when moved across them, generate readings. A. Yes, if they are regular surfaces of even reflectivity because if they’re of uneven reflectivity then the device will detect that uneven reflectivity and probably give an error reading.
Q. And if they are relatively smooth an error reading won't be generated. A. No, that’s true. But I mean that’s well demonstrated, and indeed well documented in cases in this country and in America, or certainly in America.
Q. And you speak of the operator being at further than a ten degrees--- A. Yes.
Q. ---angle from the object that’s actually an advantage, isn’t it, inasmuch as wasn’t your evidence that if a device is used outside that parameter--- A. Uh-huh.
Q. ---it will give an under reading--- A. Yes, but I think you’re---
Q. ---rather than an over reading? A. No, I don't think I said that.
Q. Well, I’ll be--- A. I think what I actually said is if it’s used outside that parameter but the front of the vehicle is being targeted, it will give a, yes, I hear what you say, it will give a reading which will be, because of the co-sign effect, a little lower than the true speed of vehicle.
JUDGE WOOLMAN: So it’s in the motorist’s--- A. In the motorist’s favour.
Q. ---error in the motorist’s favour, as it were. A. Indeed, your honour. And even within the ten-degree angle it’ll suffer from the same effect, co-sign will operate at any angle. So, it might only be a decimal point or two of a mile per hour to which the device will round off the decimal point anyway, but nevertheless it will give a reading in favour to---
JUDGE WOOLMAN: So the greater the angle the greater the degree of error in the motorist’s favour, is that right? A. That’s correct, your honour, yes.
MISS HODSON: Mr Garrett, can I put that another way? A. Yes.
Q. The greater the angle the lower the speed that’s likely to be recorded.
JUDGE WOOLMAN: Or lower the speed. A. Yes, the greater the angle the lower the speed that is going to be read by the device. Yes.
MISS HODSON: And in terms of those tests, therefore, any criticism of the angle, and you’re saying it would have been greater than ten degrees, it would have the same effect those tests perhaps showing lower readings. A. No, not at all, not at all because we’re not talking about the same animal. We’re not talking about targeting a moving target. We’re talking about creating motion in the device rather than of the target, if you follow me.
Q. Well, but these tests demonstrate, don’t they, and I accept, Mr Garrett, that this is entirely dependent upon the way that the user operates the device, but these devices demonstrate that it is possible by movement of the device to obtain a reading from a static surface? A. Yes, that’s correct. Yes, it is.
Q. They also demonstrate, and again I concede it’s entirely dependent upon how the device is used, that a greater reading can be obtained from a moving object by slipping across its surface. A. That depends which way you’re slipping.
JUDGE WOOLMAN: Because if you slip up--- A. Well, if you slip along that way, your honour, you’ll get you’ll potentially get a greater speed. But again, we’re talking about a slightly different test, if you follow me. If you slip this way you’re going to shorten, no, sorry, the other way round---
Q. The other way round. A. ---if you slip this way you’re going to have a greater speed if you slip that way you’re going to have a shorter speed.
Q. Yes, if you slip off the number plate. A. Erm---
Q. If you start on the number plate but slip up the bonnet you actually are getting---
A. Well in that circumstance, your honour, this device will trap the error because it’s already locked on to the number plate. But in strict theory without error trapping if you were to slip up the beam you’re increasing the displacement distance---
Q. Yes. A. ---so you’re going to have an effectively higher speed.
Q. Oh a higher speed, yes. A. But of course, that is exactly what error trapping is designed to prevent.
MISS HODSON: But these tests demonstrate, don’t they, that an error signal isn’t always produced? A. Well, the caveat of course is: providing the device is used properly.
Q. Well--- A. And on this occasion, if I may say so, it’s not being used properly. That’s not what it’s designed to be used for.
Q. Well, Mr Garrett, they are demonstrating what in terms of physics can occur. Yes? A. They demonstrate in terms of physics what can occur---
Q. Yes. A. ---but they’re not demonstrating what can occur in terms of the proper use of the equipment.
Q. Well, that’s a separate point isn’t it, Mr Garrett, because I put the caveat with my questions: it depends on how the device is being used; each of these examples is entirely dependent upon that? A. Yes, I must concur with that.
Q. But it’s nonetheless technically possible for these devices, if used in that way, to produce higher readings than are the true speed of the vehicle. A. If used incorrectly higher or lower depending on how it’s used incorrectly.
JUDGE WOOLMAN: Sorry, can I just understand this answer I am sorry to interrupt. A. Yes.
Q. Your answer before was that if, let us say, the red dot slips up the bonnet--- A. Yes.
Q. ---that in theory it should give an error notice because it should not--- A. In terms of the design specification of the way this device operates---
Q. But do you accept that on the example we saw on the DVD--- A. Uh-huh.
Q. ---that it did not seem to, or did not I think? A. I’m not sure which example you’re describing, your honour.
Q. I thought there was an example of it slipping up a bonnet, or was that..? A. There was a diagram of it slipping up a bonnet.
Q. A diagram rather. Yes, sorry, you are quite right it was a diagram. A. Yes, indeed. Well, I mean the point I would make about that diagram is again we were looking down.
Q. Down the bonnet or have I got it the wrong way round?
MISS HODSON: There was the ITV footage I believe showed a slip down the bonnet.
JUDGE WOOLMAN: Down the bonnet. Sorry, I have only seen it once so…
MISS HODSON: Yes.
JUDGE WOOLMAN: Yes. This was down the bonnet which actually would give a reading in the motorist’s favour, would it not, if it gives a reading at all?
MISS HODSON: No, your honour. A. No, that would work the other way. That would give a…
JUDGE WOOLMAN: No, we had it right the first time. Up the bonnet gives a lower reading and down the bonnet gives a higher reading. A. A higher reading, yes, that’s correct.
Q. Yes. So that is what I have just… A. Yes, yes, indeed.
Q. So, the example given, you say, if it is going down if he starts off on the number plate--- A. Yes.
Q. ---and slips up--- A. Yes.
Q. ---which would give a higher reading, is that right, have I got that right?
MISS HODSON: A lower reading.
JUDGE WOOLMAN: A lower reading, all right. Gives a lower reading. A. Yes.
Q. It should nonetheless produce an error notice but if it does not it is producing a lower reading. Is that right? A. Well, I mean, I think your question presumes the error trapping is in place my contention will be that if it starts on the number plate that’s the point it will lock on, and then the readings that occur outside the expected profiles along the bonnet will actually generate an error trapping. Now, if there was no error trapping at all, your honour, and it simply took a series of pulses without analysing them for predictive accuracy, then it would actually provide the reading as you describe.
Q. That is a lower reading than reality, is that right the right way round? A. If we’re going that way.
Q. If we are going up the bonnet by mistake. A. Up the bonnet we’re talking lower reading.
Q. No, just let me get this. If you slip up the bonnet you will get a I have just written down, “You will get a greater speed” but that is wrong you will get a lower speed. A. If you slip up the bonnet from the front of the vehicle backwards---
Q. Yes, you get a lower speed of course. A. ---you get a lower speed.
Q. Yes, you get a lower speed. It should give an error notice but if it does not, if it does not the speed shown is lower than reality. If you slip down the bonnet--- A. If you slip down the bonnet you’ve started at the top of the bonnet---
Q. ---then obviously you are going to get a greater speed. A. ---you’re going to get a greater speed because you’re, that’s right, you’re exaggerating the displacement---
Q. ---you are exaggerating the distance travelled. A. That’s exactly right.
Q. Yes, yes. You are exaggerating the distance travelled. Again, you would say it should give an error notice. A. Yes.
Q. But that presupposes that the operator started off not on the number plate but at the top of the bonnet. A. That’s right. Well, yes. But in my contention, your honour, I believe that this device will trap that error in the circumstance you’re talking about anyway.
Q. But what we had on the video was a diagram. A. That was a diagram, yes, indeed.
Q. So that has not been, as far as we know yet, tested to see whether it actually does produce an error notice or not. A. Well all I know is what I’ve seen on the films, your honour, yes.
Q. Yes. Well, unless we hear from Dr Clarke otherwise that was not, I do not think it was, a real test.
MISS HODSON: Would your honour, excuse my back for one moment?
JUDGE WOOLMAN: Yes.
MISS HODSON: Your honour?
JUDGE WOOLMAN: (Discussion with Magistrates). Sorry, yes?
MISS HODSON: I believe that there was footage of a slip down a bonnet on the ITV programme showing an increased reading---
JUDGE WOOLMAN: Without an error notice?
MISS HODSON: ---without an error message. I don't know whether it would assist to play that part again.
JUDGE WOOLMAN: I do not know whether you recall it. A. I think the difficulty I have with those images, your honour, is that they are not absolutely clear where the beam is in relation to---
Q. Well let us have a look at it again. A. It would be sensible, yes.
Q. Let us not be in any doubt. A. Yes.
(Part of the DVD was played again)
JUDGE WOOLMAN: So, although we did not see the actual test it looks as though the test that was done, as we will hear from Dr Clarke I am sure, what was done was to slide the camera down the bonnet, is that right?
MISS HODSON: Yes.
JUDGE WOOLMAN: And this of course is a fixed camera on a tripod.
MISS HODSON: This---
JUDGE WOOLMAN: Can we just be clear from Dr Clarke, perhaps you can just take instructions, was that a test that was actually done?
MISS HODSON: Yes, he moved the site down the bonnet as the vehicle drove towards him.
JUDGE WOOLMAN: So, and I take it that Dr Clarke in due course is going to say it did not produce an error notice?
MISS HODSON: Yes.
JUDGE WOOLMAN: So that is the contention then. A. Yes, your honour, well I mean I think that’s perhaps in a sense the point I was making that it’s very difficult to be clear exactly where the beam was. I’d assumed that that test was down the side of the vehicle if you like. I really couldn't take it any further but I’m not satisfied that that necessarily is coming down the bonnet. Having said that, no, I don’t think I can add to that, your honour.
JUDGE WOOLMAN: There is no footage of the actual test itself--- A. No.
Q. ---that we have seen so far. A. No.
Q. There is a computerised diagram. A. There is a diagram, your honour, and I would suggest that that is not the true representation because we are really looking down on that vehicle.
Q. But I suspect the diagram is going to be said that the diagram represents what was actually done it is just a way of showing it. A. Yes, indeed.
Q. If you see what I mean. A. And the other point I would make is I suspect we are going outside the ten-degree angle as a matter of fact. But, no, I mean I can't take that any further. I would not be satisfied on what I’ve seen on that DVD that we’ve actually generated a spurious reading from the bonnet of the car, we really need to know exactly where the beam was and see the red dot.
Q. Have you at any point tried a test slipping the – I appreciate it is not what the operator should do--- A. No.
Q. ---but trying to see if you can simulate sliding it down the bonnet--- A. Oh, indeed, your honour. Indeed.
Q. without producing an error notice? A. Indeed, yes. I mean, quite clearly in preparing these devices for Type Approval testing we do our own testing, I mean the testing on this really goes back ten years---
Q. Yes. A. ---and those are the sort of tests that would manifest themselves in all the sort of in-house testing that we do. And of course, I have to say in all the testing done by the Type Approval authorities that syndrome didn’t manifest itself.
Q. So, you would say that the tests that you have done to get Type Approval would show that sliding it down the bonnet, what, would produce an error notice? A. Would produce an error message, yes indeed.
Q. But that is not, at the moment, what Dr Clarke is contending. A. Indeed, indeed. I understand what Dr Clarke’s submission is and I would disagree with him, your honour.
Q. All right.
MISS HODSON: Mr Garrett, you weren’t there were you? A. No, indeed.
Q. No. A. All I have is the evidence of my eyes on that DVD.
Q. And of course, what Dr Clarke tells us--- A. Indeed.
Q. ---of course. A. Indeed.
Q. And, just to be clear, what will be suggested before this court is that slipping, well, that device on that day was Type Approved? A. Well if it’s the device I understand, that device on that day was certainly a Type Approved device, your honour. It was not in police use or operational it’s in possession of a private company to whom it was sold for laboratory testing purposes---
Q. Do you accept--- A. ---and it certainly on the day in question was not it’s never been back to the factory it was not in calibration, that’s not to say it was necessarily not accurate but it was not within calibration.
JUDGE WOOLMAN: I think we will assume for the moment Dr Clarke is sufficiently savvy to start with a properly calibrated machine. A. Indeed. Your honour, yes, I just make the point again as a matter of fact. And the other thing there is a comment I think in Dr Clarke’s report that it’s said that just tapping the siting scope will move the red dot. Well, “Just a light tap” I think is the term used. Now, if that is true then that really needs some maintenance that’s all I can.
MISS HODSON: Mr Garrett, can I continue to ask you about this particular point, please--- A. Yes.
Q. ---before we move to other areas? I’m putting this to you: Dr Clarke has carried out a test that’s evidenced there on the video with a Type Approved device that he calibrated that he used on a vehicle we could see it was said there travelling at no more than thirty miles an hour, by moving the device down the bonnet he obtained a reading of thirty-six miles an hour without an error reading. A. Well, I understand what his contention is and I can only say that I don’t accept the results of that test. I believe that that I don't know I would have to have a closer examination of that test. I don't believe that that result was obtained from being slipped down the bonnet of a car.
Q. Well, what are you suggesting, Mr Garrett? A. I don't know---
Q. You don’t know. A. ---because I suspect if it’s been obtained at all it’s been slipped along the side of the vehicle.
Q. Well, I’m putting to you, Mr Garrett, that that isn’t what happened. A. Well…
Q. There will be evidence called as to it having been moved down the bonnet of the car. Are you suggesting that that’s untruthful evidence? A. No, no, I’m not suggesting that for a moment. The point I would make is of course to move it down the bonnet of the car it is not held steady.
Q. Well, so therefore do you accept that if it’s not held steady and it does slip down the bonnet of a car in that way an erroneous reading can be obtained without an error warning? A. No, I don’t. In those circumstances I don’t accept that. Certainly any tests that I have done have not demonstrated that.
Q. Well, have you got evidence of such tests? A. I haven't got any, no, not in front of me. I mean I use, not now and not for a little time, but I’ve used these devices all day and everyday they’re not necessarily documented tests.
Q. Well, Mr Garrett, you knew before you came here today that it was going to be suggested that slipping down the bonnet of a car might produce erroneous readings in this way, did you not think to fetch some test results with you that show that that doesn’t happen, tests that you’ve carried out that show it doesn’t occur? A. No, my response to those comments are actually my report.
Q. Well, and your response today is that you don’t know why but you don’t accept that that’s what happened. A. I don’t see sufficient evidence with my eyes there that that’s exactly what happened to obtain whatever reading was obtained.
Q. Well, I’m putting to you what happened you don’t accept that that’s the case, do you not? A. No, I don’t.
JUDGE WOOLMAN: Miss Hodson, I am sorry to interrupt. Have we got a description in the defence evidence, the written evidence, of exactly what Dr Clarke did?
MISS HODSON: I’m sure there is, your honour.
JUDGE WOOLMAN: Yes, would you like just to show me it?
MISS HODSON: Your honour, I’ll just get the page reference. It’s the first report that appears in the bundle.
JUDGE WOOLMAN: If you just find us the page I think that is going to be the easiest.
MISS HODSON: Paragraph 41, page 120.
JUDGE WOOLMAN: Thank you.
MISS HODSON: Mr Garrett, do you have that in front of you--- A. I’m not sure---
Q. ---would you like a copy? A. Which reference are we talking about is it Dr Clarke’s report?
Q. Yes. A. First report?
JUDGE WOOLMAN: It is his report dated 14th October at page 9--- A. Page 9.
Q. ---paragraph 41. A. Ah. I’m sorry, your honour, my page 9 is---
MISS HODSON: There is a court bundle here. A. Ah. Thank you. Yes.
Q. Mr Garrett, it speaks there of the--- A. Yes.
Q. ---the slip effect being created diagonally across the bonnet. A. Yes.
Q. I’m putting to you that that’s exactly what happened an erroneous reading was obtained without an error message. What do you say to that are you saying that this is a lie? A. No, no, no. I’m not saying it’s a lie what I might be suggesting to you is that that may well be what Dr Clarke thought he was doing with this test, but if one thinks, your honour, of a moving vehicle with a bonnet like so with an angle to target like so. Now quite clearly, the side of the vehicle is before the bonnet, if you follow me, so we are trying to slip down the bonnet a portion of the beam is appearing on the side of the vehicle. You can't see the beam you can only see the red dot. Now we know and it will perhaps be produced in evidence later that the device will always read, given the right quality of the return signal, the nearest point of the target.
JUDGE WOOLMAN: Yes. A. Therefore it would probably be reading, if I may suggest, the side of the vehicle.
MISS HODSON: Mr Garrett, are you suggesting that Dr Clarke perhaps has obtained this reading when he thought he was going down the bonnet because in fact he’s either misaimed it or he has struck another area of the vehicle? A. Well, I think that may be the case. Let—
Q. Well--- A. Just let me---
Q. ---is that what you’re saying--- A. ---me answer the question.
Q. ---Mr Garrett? A. Sorry?
Q. Is that what you’re saying that--- A. What I’m saying is, and I’m trying to explain, that we have the vehicle like so with the device here. Now the device is at presumably eye level so we have no great proportion of the bonnet to be able to view and we certainly can't put the beam totally on the bonnet some of the beam will appear here.
JUDGE WOOLMAN: Well, the beam will be about at somewhere between sixty and a hundred and twenty centimetres wide, will it not? A. Yes, depending on the range, your honour.
Q. Depending on how far away it is. A. Yes. Well, I suppose what I’m saying is that for those reasons I find it difficult to accept this result I’m not doubting Dr Clarke’s intention.
JUDGE WOOLMAN: No, I see what you are saying.
MISS HODSON: But, Mr Garrett--- A. What I’m saying is I don't believe there’s sufficient in the demonstration of this test to convince me that we’re actually sliding the beam down the bonnet that’s all I’m saying.
Q. Well, Mr Garrett, Dr Clarke is saying that that’s where he aimed--- A. Yes.
Q. ---deliberately. A. Yes.
Q. And he will no doubt give evidence that he is sure that that’s where he aimed the device. A. Well---
Q. Are you suggesting that he may be mistaken--- A. No.
Q. ---about where the beam went? A. No, I’m mot suggesting that at all. You see the red dot is not the same size as the beam.
Q. Well, yes, Mr Garrett, I understand that. A. The red dot is actually the centre of the beam. So, if we’re sliding the red dot down the bonnet, by definition, I would suggest in this test, some of that beam is going to slide along the side portion of the bonnet or the wing of the car.
JUDGE WOOLMAN: But presumably it would be possible, I am not saying for this case, to with using different equipment with video attached to produce a videoed version of the exact test that is carried out? A. It would be possible, your honour. It would be better if you could see the beam while he was doing it.
Q. So then you would be able to see--- A. Yes.
Q. ---quite clearly where the red dot was at all stages during the test and what result was produced. A. I mean the key issue is where the beam is, your honour---
Q. Yes. A. ---the red dot should be in the centre of the beam of course if it’s properly aligned.
Q. Yes, well assuming it is properly aligned--- A. Yes.
Q. ---dot in the middle of the beam--- A. Uh-huh.
Q. ---equipment with a video attached you could then, presumably, see exactly what is happening. A. Uh-huh, indeed.
Q. And you are saying those tests are all done for Type Approval so--- A. Erm…
Q. ---or may be they are not. A. …yes, I’m not sure on that particular point.
Q. But for the purposes of a case in a court--- A. Uh-huh.
Q. ---it should be possible to see a video that shows everybody exactly what we are talking about. A. You see the better test, your honour, if I may say so, the better test would be to conduct that head-on, if you like, and then slide it along the bonnet in that way. But, even then, I suspect the beam would be capturing the forward part of the vehicle first.
MISS HODSON: Mr Garrett, aren’t you trying to have it both ways again? Because when Dr Clarke says that he was able to aim on the bonnet of the vehicle, you’re suggesting, well, because of the beam spread and so on he could have hit another area of the car. Yet you invite this court to accept that a police officer’s able to aim precisely at a registration plate. A. Yes, but there was no attempt to, on this test, to measure against a registration plate and I suspect it was greater than the ten-degree angle, but that’s not clear from the DVD to be honest. I mean, I read the figures in paragraph 41 but I suspect it was more than ten degrees.
Q. Well--- A. But in any event, there was no attempt to aim at the front of the vehicle.
Q. There was a deliberate attempt to aim at the bonnet. Dr Clarke’s evidence is that that is what he is satisfied he did, and your answer to that is, “Well, despite what he genuinely believes, it’s possible the beam struck another part of the vehicle”. A. That’s my contention it’s just possible, I don't know the answer to that.
Q. Well--- A. It’s just my judgement on what I’ve seen on the DVD.
Q. Well, if you accept that possibility in this example, Mr Garrett, isn’t it possible that in this case, although the police officer says he aimed at the registration plate, he struck another part of the vehicle? A. Part of the beam will spread itself over the vehicle but what the beam does, if he’s aiming it in accordance with the approved method, it will lock on the first point of the vehicle, and that’s where it takes its references for the predictions.
Q. You--- A. Now then, if it moves from that point of course clearly we should get an error reading.
Q. In any event, Mr Garrett, do you accept that that device, do you accept what Dr Clarke puts in his reports that he was able to obtain a speed of thirty-six miles an hour from a car travelling at twenty-nine to thirty miles an hour - irrespective of how that happened - do you accept that that occurred? A. I don’t quarrel with the results that he’s got. I don't believe for one moment that those results have been falsified.
Q. Well, if you don’t quarrel with the results how do you say that happened a car was travelling at twenty-nine miles an hour---
JUDGE WOOLMAN: How do we know?
MISS HODSON: Well, that’s Dr Clarke’s evidence.
JUDGE WOOLMAN: Yes.
MISS HODSON: He will give evidence on that.
JUDGE WOOLMAN: Is that from car speedometer or from other methods of calculation?
MISS HODSON: Well, your honour saw on the video there was radio communication. The driver of the vehicle was speaking out loud of the speed.
JUDGE WOOLMAN: As registered by his speedometer.
MISS HODSON: “Twenty-nine, thirty. Twenty-nine, thirty” and it was verified.
JUDGE WOOLMAN: Yes. All right, well we will hear evidence about that.
MISS HODSON: But that was the nature of the experiment.
JUDGE WOOLMAN: Well I know but he is relying on his speedometer being accurate presumably or not? No. Dr Clarke is saying…
DR CLARKE: That was a G. P. S. licensed vehicle.
MISS HODSON: That was a G. P. S. licensed vehicle.
JUDGE WOOLMAN: All right, thank you. That answers that.
MISS HODSON: But you accept the result--- A. I accept that---
Q. ---that a vehicle travelling at twenty-nine to thirty miles an hour produced a reading of 36? A. I accept the results the figures that Dr Clarke offers what I don’t accept is his contention as to how they might have occurred. I believe they may have occurred in a slightly different way to the circumstances that he believed.
Q. Well, how could they have occurred--- A. I---
Q. ---a moving car, one of your devices displaying a result of thirty-six miles an hour?
A. Well, there is, is there not, in other tests, a demonstration you can get slip effect off the side of a vehicle?
Q. So, you accept--- A. So what I’m suggesting is that this was probably slip effect off the side of the vehicle rather than the bonnet which Dr Clarke thought he was targeting.
Q. Well, again, was that not possible in this case then? A. I’m sorry, what’s not possible?
Q. Well, when Dr Clarke gives his example resulting in thirty-six miles an hour an over reading, you say that that’s possibly because of slip effect off the side of the vehicle. Is that not a possibility in this case? A. In this case?
Q. P. C. Hodson used the device or any other case when an officer uses the device?
A. Well, I mean there is evidence that we’re within ten degrees and the officer’s targeted in the front of the vehicle, so I say it’s not this case, no, not at all.
Q. Well, Mr Garrett, what if I suggest to you that Dr Clarke would have done everything to ensure he replicated the scenario that would be presented to a police officer. He aimed as precisely as a police officer might try to do. And yet still an erroneous reading?
A. Well, with respect a police officer wouldn't try, in the operating circumstances of this equipment, to aim the device as Dr Clarke claims or says he did, and I have no reason to doubt that on this occasion.
Q. But you doubt Dr Clarke’s skill but you don’t doubt the police officer’s skill.
A. Well, with respect police officers are trained to use the equipment to provide evidence, Dr Clarke is testing the equipment in slightly different out of parameter circumstances.
Q. Nonetheless, you accept then, do you, from your answers slip effect off the side of the vehicle could produce in an increased reading depending on how it was used?
A. Depending on which direction and that’s quite well demonstrated in others of the tests, but it’s an out of parameters out of angle---
JUDGE WOOLMAN: But from what we saw the test done by Dr Clarke showed, if I have understood it correctly, one of these devices on a tripod or stand. A. Uh-huh.
Q. Whereas of course, the police officer is hand holding it. A. On this occasion the police officer - it can be used from a tripod, your honour, but - on this occasion, yes.
Q. One is more likely to get error one would have thought from holding it in your hand than from having it mounted on a tripod. A. He’s more likely to get error readings, yes, hand held because of the factor of steadiness, yes. But providing he’s using it in the approved manner if you wish – the correct parameters - then it would be error readings because he’s not holding it steady and not spurious speed readings.
Q. I see.
MISS HODSON: You accept the phenomenon of the slip across the side of the vehicle resulting in the increased speed, is that right? A. Well, the slip effect across the side of a vehicle is exactly the same as exactly the same as the slip effect against a wall in terms of its technical performance the only---
Q. Thank you, Mr Garrett, do you accept that then? A. Yes, I do.
Q. Thank you. And you accept, now, the slip effect across the static surface wall or road could result in a reading of a static object? A. Well, I’m not quite sure what you mean by “now” I’ve always accepted that that is an occurrence---
Q. Well--- A. ---that is a---
Q. ---you have given--- A. ---that is a physical fact.
Q. ---evidence, haven't you, Mr Garrett, in other cases where you’ve denied that your machinery could produce a reading from a wall--- A. No.
Q. ---or a static object? A. No, I’ve never denied that in any case.
Q. In the case of Leigh did you not deny that? A. Erm… no, I think if you read that judgment you’ll find that I concede under cross-examination that you can get a low speed reading off a wall.
Q. Having initially denied it you conceded it. A. No, I don't think that’s necessarily I can't just remember exactly. But I was six hours in the witness box on that. That was a long examination. But certainly, it is a fact of life that is recognised from American cases in 1996 through to 1998 that you can get slip effect off a wall. So I’m hardly likely to have denied it in 2003/2004.
Q. Well, then you accept that. And in relation to slip down the bonnet what you’re saying is, well, you don’t quite know what’s gone on with Dr Clarke’s test but you don’t accept his results. A. I don't accept the results because I think, I’m not saying the test is flawed I think the interpretation of where the beam was is potentially wrong.
Q. Mr Garrett, I’m afraid I don’t follow. “His interpretation of where the beam was”? A. Well, he thinks he believes that he was slipping it down the bonnet I suggest that perhaps part of the beam was sliding down the side of the vehicle but I don't know definitively as, I suspect, neither does Dr Clarke.
Q. Well, let me ask you this then, Mr Garrett, you’ve given evidence in a number of cases where this issue’s repeatedly arisen, has it not? A. The issue of slip does arise in cases, yes.
Q. Dr Clarke’s produced his video of a test and told the court about his test. Have you not done any tests in recent months to show that when you slip down the front of a bonnet you get an error reading or you can't get a reading at all? A. I haven't done any tests in recent months, no.
Q. Why haven't you done that this is an issue that keeps coming up and that of course would have proven--- A. Well---
Q. ---that Dr Clarke was wrong, wouldn't it? A. With respect I’ve worked with the equipment for a long time and I know in my own mind and I am of the view and my submission to the court is it will not do it in those circumstances.
Q. Well--- A. I felt no need to do extra tests simply because it’s been raised as in issue in court.
Q. Well, Mr Garrett, knowing what’s in your own mind is different from presenting evidence that a court can rely upon. Wouldn't that have been easier for you to do at your company to get someone to do these tests; could you not have said to somebody, “Look, we keep being criticised or its suggested that it does this” someone within your company, couldn't they have put together one of these tests and videoed it? A. Well, it’s certainly possible, yes. But we haven't done that.
Q. You haven't. A. No.
Q. Is that not because Dr Clarke’s right? A. No, it’s because we’re confident that it doesn’t do it.
Q. Do you also accept that what was depicted on that video when two cars were side by side accurately demonstrated how the beam spread--- A. Uh-huh.
Q. ---could result in the wrong car being targeted? A. Well, there are two issues there. First of all, there is an issue of beam spread. The first one is that the stationary vehicle, the lorry, was being targeted with the centre of the beam right on the very edge.
JUDGE WOOLMAN: Yes. A. And the second one is that the other vehicle, which was static and then moved, was parked very close to it. Now, in those circumstances, quite clearly we’ve got two vehicles in the beam providing we get the right quality of return signal it will always read the nearer target I mean that’s a matter that is not in contention.
Q. I’m just wondering whether this example, please tell me if I’ve got it wrong, is helpful because no one is suggesting that there was another car overtaking the appellant---
MISS HODSON: No.
JUDGE WOOLMAN: ---to produce the sort of result that that example – it may be interesting in other cases – but I’m wondering what relevance it has got to this case.
MISS HODSON: Well, your honour, my case is that there was a car in front, as I put to the officer.
JUDGE WOOLMAN: In front?.
MISS HODSON: Yes.
JUDGE WOOLMAN: What, within… I see. Yes, I see. All right. But that was an overtaking manoeuvre-type situation---
MISS HODSON: No---
JUDGE WOOLMAN: ---on the video, was it not?
MISS HODSON: ---I’m not suggesting that.
JUDGE WOOLMAN: No, all right.
MISS HODSON: There was a car. Let me put it this way, Mr Garrett, if two vehicles were travelling down the road within the range of the beam spread--- A. Yes.
Q. ---it is possible that even if the officer aimed for the vehicle that was furthest away the device would lock on to the nearest vehicle. A. There are two issues that - in broad principle I agree with it---
Q. Thank you. A. ---but there two issues there. Firstly, that nearer vehicle must be in the beam footprint, and that will be a smaller footprint the closer to the device because the beam actually narrows in that way. And secondly, the return signal from the beam must be of the correct quality for the device to accept it. But that, if I may say so, is a matter for correct operational use and clearly if the officer believes that he’s got two vehicles in the measurement footprint then he would clearly take no action on what results he gets.
Q. Well, you say, “clearly would take no action”. A. Well, that’s the A. C. P. O. guidelines certainly.
Q. Yes. So assuming they were followed--- A. Yes.
Q. ---this shouldn't arise but if there were in a vehicle within the beam the officer could feasibly lock on to the wrong one. A. If it were in the beam. But the officer’s view of that must be that the vehicles are in such close proximity---
JUDGE WOOLMAN: They going to have to be almost touching each other. A .Yes, indeed, or, if the nearer vehicle was well advanced, it has actually got to intrude upon the view of the vehicle behind because the beam is narrowing---
Q. Yes. A. ---the closer you get to the device.
Q. I must say I find this more easy to imagine on a much busier road, a motorway or something, than on a sort of road we have got here. But, anyway. A. Well, your honour, if I may comment, on reviewing evidence of this nature that is a factor that one has to take into account if we’re working on a busy motorway or other busy road.
Q. Yes. Well, I can see because the more vehicles there are around the more room for error there must be. A. Indeed.
Q. Yes. A. Indeed. And that’s precisely if I may say, your honour, if I may add, is why A. C. P. O. guidelines actually cover that point in terms of the review of evidence.
MISS HODSON: Perhaps that’s a matter for evidence, we’re simply trying to establish--- A. Yes.
Q. ---that in principle that’s a possibility.
JUDGE WOOLMAN: Yes. A. Oh, yes.
MISS HODSON: Thank you.
JUDGE WOOLMAN: Yes.
MISS HODSON: The notion of reflection--- A. Yes.
Q. ---has also arisen and I suggest to you that based on those tests--- A. Yes.
Q. ---what is demonstrated is that a reading can be obtained, via a reflection, but a false reading and that does not produce an error warning. What do you say to that in light of the tests that were shown? A. Having looked at the tests on there, your honour, and having looked at other tests conducted in the same say by the defence expert, there are a number of factors here. First of all, it’s a fact of physics the law of physics that a laser beam will reflect in a mirror. In fact we use them extensively in terms of our range and calibrations in the factory. What has actually happened with the tests as demonstrated by Dr Clarke is that he has used a static, in the first instance, used a static vehicle as a mirror then effectively driven a vehicle, having the beam active, has driven the vehicle past it until the reflective beam hits the rear or front of the vehicle. The return signal is coming back the same way. Now that is perfectly what will happen. I would say to you, because if you remember I said in evidence-in-chief, “The actual physical range to target is not important to the calculation it’s the differential and the shift that’s important”. Clearly the shift is the same whether the beam’s going that way or that way. And although I’ve not seen any evidence of the speeds of these vehicles, I would suspect the measured speed is actually the speed of the vehicle.
Q. Well, Mr Garrett, that may be correct but what happened on that DVD, and I’ll be corrected if I’m wrong, was that the device was pointed at a stationary vehicle. A. He was pointing at effectively a mirror---
Q. Yes. A. ---which happened to be in the shape of a stationary vehicle.
Q. Yes. A. Well that’s perfectly right.
Q. And although he was pointed at the stationary vehicle, he obtained the reading of a moving vehicle--- A. Yes.
Q. ---that was reflected from it. A. Yes, because the beam is being reflected through the mirror that way.
Q. Yes. But still, one of your devices pointed at a stationary vehicle obtaining a wrong reading. Because really what your device should have shown, Mr Garrett, was zero, shouldn't it? A. It depends on the angle to the target. If you’re doing it at that angle, then you will get a return signal from the mirror back this way. If you’re doing it at that sort of angle, then you will not the beam is doing, or not sufficient back, the beam is doing that and that.
Q. If a car--- A. I mean that’s exactly what’s happened if I’m, sorry, that’s exactly the way it happens on the mirrors on the ranges.
JUDGE WOOLMAN: Does this require - I am sorry to stop you, I need to understand this but does this require - another vehicle to get in the way of the beam or somehow, either on its outward journey or its return journey? A. Yes, indeed, your honour. I mean, effectively in simple terms the beam is being reflected like that. A vehicle is driven through, if you like, until the beam identifies that moving vehicle and will read a speed. The data will come back from that vehicle that way to the device.
MISS HODSON: Well, I don’t know if that does answer your honour’s question. Mr Garrett, can I make I clear what I’m suggesting happened on that DVD? The operator pointed the device at a vehicle that wasn’t moving, yes? A. That’s right.
Q. You say that vehicle effectively acted as a mirror. A. Yes.
Q. And the--- A. In fact if I may, sorry.
Q. ---the beam went struck that vehicle, the vehicle it was aimed off, bounced to a moving vehicle, bounced back and the device recorded the reading from the moving vehicle and not the stationary vehicle that was effectively acting as a mirror. Is that right? A. That’s the way Dr Clarke explains it and that’s what I agree with, yes.
Q. Yes. So, would you agree that a car can act as a mirror to your laser device?
A. Well, a stationary car certainly can in practical circumstances providing it’s (a) highly polished. I mean I have seen some tests that took thirty-one attempts to make this work.
Q. But it does happen, doesn’t it? A. If you point---
Q. Mr Garrett, we’ve seen it happen it does happen. A. Yes, if you point the device at a highly polished, if you like, stationary target, then certainly, yes, it will. But of course, that isn’t an operational parameter or practice.
Q. No. But, a mirror can operate on any angle, can't it? A. Well, you will get some return signal but the question is: is it providing sufficient return signal from the mirror straight back to the device? And on the occasions we see on the tests, no, it doesn’t.
Q. Is it not possible that on any occasion when a sufficiently shiny car is struck that if the angles are right and there’s another vehicle in the right place it could act as a mirror and record? A. A stationary vehicle certainly could do that, yes.
Q. Well, Mr Garrett, could you explain to me what is the difference between a stationary vehicle and a moving vehicle acting as a mirror in that way? A. To get a consistent return from a mirror into a single lens, then the mirror needs to be stationary. If both vehicles were moving the juxtaposition of the vehicles, and it’s well explained in my report I think, the juxtaposition of the vehicles would be such that we would not get sufficient accurate data back to be able to calculate a speed and we’d simply get an error reading.
JUDGE WOOLMAN: Well, as I understand it what you are saying is, because you have got a car, let us say, reasonably highly polished, is effectively acting like a mirror at various angles, is it not--- A. It is.
Q. ---because there are lots and lots and lots of mirrors--- A. Indeed.
Q. ---all because it is not straight planed it is bent all over the place. A. Indeed, your honour, yes.
Q. ---it is bent all over the place? A. Yes.
Q. So, some of the bits of laser light will go all over the place. A. Yes. Some will scatter, some will go onwards at the angle.
Q. Yes. If all you have is a straight number plate then roughly speaking most of your beam would come back, is that right? A. That is correct.
Q. But if you have got lots of different angled polished surfaces--- A. Uh-huh.
Q. ---like the bonnet and the headlights and whatever else--- A. Uh-huh.
Q. ---and the windscreen and so on, then some of the light hitting that will go off---
A. Yes, indeed.
Q. ---according to usual laws, at certain angles, is that right? A. Yes.
Q. And then the proposition is – I am not sure I quite follow it from here onwards – that that then effectively hits another vehicle that happens to be in the way as well and comes back via the other vehicle, is that the suggestion? A. Effectively, yes. So, if we have a stationary vehicle---
MISS HODSON: No, that’s not the suggestion.
JUDGE WOOLMAN: That is not the suggestion. All right what is the suggestion then?
MISS HODSON: Your honour, I don't know would it assist if I played the relevant part of the DVD again?
JUDGE WOOLMAN: It might.
(Part of the DVD played again)
MISS HODSON: I think this is repetition I think the point’s made.
JUDGE WOOLMAN: Yes.
MISS HODSON: In fact, I think that was a different clip.
JUDGE WOOLMAN: I thought it was. I must say I did not recall seeing that but…
MISS HODSON: No, but perhaps it clarifies the point.
JUDGE WOOLMAN: Anyway, yes. I think the point I was making was roughly right, although I have not put it quite right, that the light has got to bounce off the target, intended target car---
MISS HODSON: Yes.
JUDGE WOOLMAN: ---on to another one---
MISS HODSON: Yes.
JUDGE WOOLMAN: ---and the other car has got to be at the right angle in order to receive the laser beam light, so it has got to be in the right place.
MISS HODSON: Yes.
JUDGE WOOLMAN: And in the context of this case there is no suggestion that there was an overtaking car coming in the same direction as the appellant’s car and one behind would not operate because it was in the wrong place, so it would have to be a car on the opposite carriageway going the other way. Is that right? A. There has, yes, your honour, there has to be a car that is the mirror and there has to be a moving target which moves into the beam as its reflected.
Q. Yes. A. That effectively is the way it works.
Q. But a car behind the appellant could not be in the right place--- A. No.
Q. ---or it is difficult to imagine it. A. No. No, I don't believe it would be and particularly given the angles that the operator was using to the target vehicle.
Q. Yes. It would have to be a car, and even then it is difficult to imagine because if you are… you see that clip was taken of a car on the opposite side of the road. So, if you are taking a clip of a car approaching on your side of the road where as is the case here---
A. Yes, indeed.
Q. ---my question is: can a car on the opposite side of the road going the opposite way get in the way of this or effectively pick up this bounced signal? That is my question.
A. Yes, well, I think, your honour, you are now hypothesising on two moving vehicles.
Q. Yes. A. Yes.
MISS HODSON: Yes.
Q. Well that is what this is about. A. Well, well, no, I mean this test is conducted with one stationary vehicle.
Q. Oh, I see. Yes. A. Now, my contention is that if there is that sort of movement, then there can't be a constant angle the juxtaposition of the movement of the two vehicles would actually generate error readings, erroneous date, or out of parameters data which would generate an error reading. There are no tests that Dr Clarke has conducted that demonstrate that two moving vehicles would---
JUDGE WOOLMAN: Just let me write that down. “No tests done show effect of two moving vehicles”. Just a moment. Yes? (Discussion with Magistrates) A. Your honour, might I refer you to my report at page 37?
Q. Yes. A. Which reproduces the diagrams you saw.
Q. Page 37? A. Page 37 of my, that’s the white-coloured---
Q. Yes. A. ---the white file. Yes.
Q. Yes, we have got it. A. That is actually my response to those tests. There are two or three little points, though, that I make. First of all, I believe the angle, although I know it’s meant to be diagrammatic, but in true sense the angle that we see from the laser device to the blue car and then on to the black car---
Q. Well what is wrong with all these drawings, it seems to me, is that they are all on the wrong side of the road. A. Well…
Q. I mean in the sense that this is if the officer was taking a car that was on the opposite side. A. Yes. I have seen tests by Dr Clarke in another context where the vehicle is actually on the other side of the road. But again, the separation between the laser and the angle to target is much the same but in reverse, if you follow me.
Q. So in other words, I mean so far as your example is concerned, it is as if, if the laser device had been really directed at the black car--- A. Uh-huh.
Q. ---all right? A. Uh-huh.
Q. Then there is no way, at least it is not easy to see how, if assuming the laser device was not straight on--- A. Uh-huh.
Q. ---assuming the laser device moves across to the left a bit on your diagram--- A. Uh-huh.
Q. ---and is pointed at the black car, I suppose it is possible to reproduce the results. But you then have a blue car moving in the opposite direction. A. Well, in this diagram I assume the blue car, like the example we saw, is stationary. If it was moving in the opposite direction there would constantly be changing angles, so we would not get the same return signal.
Q. No. It’s a very complicated example. A. It is. If I may add---
MISS HODSON: Would your honour---
JUDGE WOOLMAN: Sorry, yes?
MISS HODSON: ---allow me a moment to take some instructions before any further evidence is complete?
JUDGE WOOLMAN: Yes.
MISS HODSON: Thank you. I apologise, I did interrupt Mr Garrett but I’ve taken instructions now, thank you. A. Yes, I think the other point I would make, your honour, is that in the example provided and what we don’t know, because we’re not told in the DVD, is the actual speed of the moving vehicle. Now I suspect it isn’t the range to target, if you remember I said was the important thing in terms of the calculation, it’s the displacement of the vehicle and my diagram at 12.80 seeks to explain that in the sense that the displacement of the black car will be given co-sign effectively the same no matter what the path of the laser to that target is. So if the device thinks it’s at, if you like, ninety metres it’s probably at ninety-five or a hundred metres but the displacement remains the same so the speed calculation would be the same anyway. The difficulty is of course it’s the stationary car that’s being targeted deliberately to achieve this objective.
Q. Mr Garrett, I want to suggest to you that this issue of reflection can apply in relation to moving vehicles just as much as in relation to one stationary and one moving vehicle. A. Well, I would actually dispute that contention. I’ve never yet been able to achieve that sort of effect from two moving vehicles because of that sort of juxtaposition, and neither have I seen any experiments or tests to suggest that with two moving vehicles.
Q. Aren’t we talking about a result in being obtained in .04 of a second? A. Yes.
Q. I suggest to you that within .04 of a second it’s entirely feasible that two moving vehicles would be within each other’s reflective range. A. But not, I would suggest, because of the multifaceted nature of the mirror vehicle, for want of a better term, not to provide sufficient accurate data return from the pulses to do anything other than trigger error readings on the device. In fact, even on the circumstances we’ve seen, it takes a lot of careful preparation to be able to achieve the objective of this effect, even with one stationary vehicle acting as a mirror.
Q. Well, Mr Garrett, I suggest to you that that is not the case this is something that happens in practice that reflections sometimes result in false readings. A. No, I don't believe that’s the case.
Q. Can I hand you a diagram? A. Yes.
Q. I just want you to comment upon that. I don't know if it would assist if I showed your honour and your honour’s colleagues that before I ask any questions?
JUDGE WOOLMAN: Yes, I think it might, thank you.
MISS HODSON: It’s only a very rough sketch.
JUDGE WOOLMAN: Yes.
MISS HODSON: It’s only a rough sketch--- A. Uh-huh.
Q. ---by way of example. But what that seeks to depict is two vehicles travelling down a road in the same direction towards the position of a device that’s in the bottom right-hand corner of that sheet. A. Uh-huh.
Q. And what those lines seek to demonstrate is how, from the device, the beam could hit the side of the first vehicle, strike the number plate of the second vehicle, and then come back either via the same route or directly--- A. Yes.
Q. ---to the device itself via the broken line.
JUDGE WOOLMAN: How can it come back via the same route because light will automatically go off at the same angle to the other side, will it not?
MISS HODSON: Apparently, your honour, not off number plates.
JUDGE WOOLMAN: All right. A. Yes, a significant portion of the beam will come back along the angle at which it strikes the---
Q. Which it went in--- A. Yes.
Q. ---to be reflected. A. Yes, indeed.
Q. Yes, I see. All right.
MISS HODSON: I suggest to you that it’s possible that a reading could be obtained in the way depicted in that diagram. A. Well, I believe it’s highly unlikely to the point of being almost impossible. Can I just ask which vehicle is being targeted on this is it the second vehicle with the number plate, or is it the side of the first vehicle?
Q. Well, I suggest to you that given beam divergence it doesn’t matter which one’s being targeted both would be within the zone of the beam. A. Ah.
Q. But if it assists you to--- A. No, no, no.
Q. ---indicate how it would differ between each vehicle being targeted, Mr Garrett---
A. So, what you’re suggesting---
Q. ---let’s say the first one was being targeted. A. So what you’re suggesting the first one is being targeted?
Q. Well, if you think it makes a difference, Mr Garrett, please explain what difference it makes which vehicle is being targeted? A. Well, first of all, both these vehicles are moving so the operator will be having to hold the device steady on his target in a vehicle. Now, assuming that the centre of the beam is down the dotted line, because you’re talking about beam spread here, yes?
Q. Well--- A. Then the portion of the beam that’s striking the other vehicle is actually travelling further than the centre of the beam which is being targeted. Now, by definition the device will accept that that it’s striking the first vehicle and that’s where the return will come from. So, in terms of two moving vehicles I think this is almost an impossible scenario.
Q. Well, I suggest to you that that’s a feasible scenario. I don't know whether your honour wishes for me to take the matter further. Perhaps Dr Clarke will be best qualified to give further on that.
JUDGE WOOLMAN: Yes, you have put it to the witness, you have had your answer.
MISS HODSON: Yes.
JUDGE WOOLMAN: Yes, I agree. You cannot take it any further.
MISS HODSON: Thank you. Mr Garrett, I just want to refer you to one or two matters within the report now, please, could you turn to your first report--- A. Uh-huh.
Q. ---at paragraph 3.04? A. Yes.
Q. You say that the device has a speed measuring accuracy within plus or minus one mile an hour. A. Yes.
Q. Do you have any evidence to support that claim, Mr Garrett? A. Well, I haven't got any documented evidence here in court. But certainly, that is, if you like, the academic determination of the tolerance of the equipment by both the manufacturers and under test ourselves.
Q. And how is that arrived at? A. By---
Q. How are you able to say that it’s--- A. ---well, exactly, it’s in part a practical in part a mathematical… We’re required within the A. C. P. O. guidelines to have equipment, correction, within the Type Approval process to have equipment that has tolerances of plus two or minus five miles an hour. In point of fact this equipment is much more accurate than that, as is well demonstrated in the Type Approval testing.
Q. But no evidence of that, Mr Garrett. A. I haven't got any documented evidence that I can present to you with mathematical calculations that would demonstrate that to the court at the moment. That is, if you like, the manufacturers tolerance specification.
Q. Mr Garrett, when I put to you today the various tests that have been performed by Dr Clarke--- A. Uh-huh.
Q. ---you have accepted the possibility of, well, you accepted the validity of most of those tests, haven't you, except the one concerning the slip factor down the bonnet?
A. I’m not quite sure that that’s accurate. What I have---
Q. Well, let me put it this way, what I’m suggesting to you is that, although you may not accept that what they show happens in real life, you accept that those tests and those results are valid. A. I think what I accept from those results is that, like any device, unless it’s operated within the prescribed parameters it may well not perform in the way that you would expect it to do. And the same applies, as I say in my report, to a V. C. R., and indeed an oscilloscope.
Q. But as far as Dr Clarke’s test results are concerned, the only one that you would suggest should not be relied upon is the one where he slipped down the bonnet. A. No way.
Q. All the others you accept that those tests were carried out and those results were obtained in the way that he describes. A. Those results were obtained by using it outside parameters, yes indeed.
Q. And the only test that you dispute concerns slipping down the bonnet where you didn’t accept that he necessarily properly aimed it at the bonnet, is that right? A. I, well that is my contention, yes, indeed. I actually believe that is I’m not saying a flawed test but the results are perhaps not properly understood.
Q. And I want to be clear that’s the terms of your objection to his test results. A. The terms of my objection really are that I, well, what I’ve already said that, I don't believe that it was necessarily doing what he makes the assumptions it was doing or some conclusions that he was doing. And secondly, in any event it was being conducted outside the parameters. And there was a third point, your honour, but I’m afraid it’s gone I’ve just lost, for a second, I’ve just lost it if I may come back to it in a moment.
Q. Well, Mr Garrett, the reason I ask you that is because throughout your report to seek to criticise the way that Dr Clarke performed his tests but in evidence today you’ve accepted--- A. No, no, no.
Q. ---the results of those tests, bar the slip down the bonnet, is that right? A. In my submitted opinions, I accept he’s done the tests what I don’t actually accept is the results, so far as they are relevant proper operational use within parameters of this equipment.
Q. Mr Garrett, I’ve got that point. You do therefore accept that those tests were carried out in the way that he described and did obtain those results with the exception of the bonnet slip. A. I have no doubt. But all I doubt is the relevance (a) to this case, and (b) to the proper operational use of the equipment.
Q. Well, I suggest to you that the claims that you make about this device being accurate and failsafe throughout your report cannot be sustained in light of the results of those tests. A. Well, those claims are sustained by the Type Approval, and in fact by the notion of its operational use all around the world. And the Type Approval has tested it and deemed it fit for purpose---
Q. Well--- A. ---in exactly the terms that I’ve talked about.
Q. That’s a fact, Mr Garrett, but I suggest that those tests that Dr Clarke has performed nonetheless cast doubt on the suggestion that your device is failsafe. A. Well, as you said in a very early question in my cross-examination, “All my comments in the report have the caveat that the equipment is used properly”.
Q. I suggest to you that, even when an officer uses his best endeavours, this device isn’t perfect and mistakes can occur. A. The officer should and will have to conduct the checks that are laid down. Providing those are satisfactory, then I believe my comments are appropriate.
Q. Would your honour excuse my back for one moment?
JUDGE WOOLMAN: Yes, certainly.
MISS HODSON: Thank you, your honour, I have no further questions.
This extract has been transcribed from the tapes in the case of
Wiltshire B. and is true and accurate to the best of my ability.
Transcript prepared by: Glenis Ostridge....................……………..