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[3] According to undisputed findings in fact, on 4 August 1999 the two police officers were in a police car travelling northwards on the A68 between Lauder and Earlston. They saw a vehicle travelling southbound, and carried out a speed check using equipment with which their vehicle was fitted. The check was carried out over a distance of 0.29 of a mile, and indicated that the other vehicle was travelling at 87 m.p.h. The driver of that vehicle was the appellant.
[4] The justice makes a number of findings in relation to the equipment in question. It is described as the successor to the Visual Average Speed Computer and Recorder (VASCAR). Finding 2 states that it was tested by the two police officers at the beginning and end of the shift during which the equipment was used; and that for calibration purposes the vehicle was repeatedly driven between two set points on the A7 road at Ashkirk. Finding 3 is in the following terms:
"The test consisted of driving between two painted marks on the road which mark out the distance of half a mile. The distance of half a mile was pre-fed into the equipment at the start of the test and the vehicle was then driver over the distance at three different set speeds. The set speeds were confirmed by the speedometer in the equipment and on the calibrated dashboard speedometer in the police vehicle. A stopwatch used to measure the time taken to travel the distance was an electronic digital stopwatch."
Findings 4 and 5 state that the equipment "confirmed the set speed at which the vehicle was travelling", and that the police officers had used the same marked distance on numerous prior occasions to calibrate equipment of that type.
[6] On behalf of the appellant, it was accepted that if this finding, that these marks mark out the distance of half a mile, was properly founded in evidence, then the justice had been entitled to reject the section 160 submission, and the first question in the Stated Case could properly be answered in the affirmative. But it was submitted that there was no foundation for this finding, and that accordingly the section 160 submission should have been upheld. The question in the case should accordingly be answered in the negative, and the conviction quashed.
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