Case No: CO10579 / 2010
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
ON APPEAL FROM THE CROWN COURT AT CAERNARFON
Manchester Civil Justice Centre
Before :
THE HONOURABLE Mr JUSTICE CHARLES and THE HONOURABLE Mr JUSTICE WYN WILLIAMS
Between :
CRAIG NICHOLAS JONES | Appellant |
- and - | |
DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
Simon Gurney (instructed by Russell, Jones and Walker) for the Appellant
Dafydd Owen Roberts (instructed by the DPP) for the Respondent
Hearing date: 17 December 2010
Approved Judgment
Charles J :
Introduction
This is an appeal by way of Case Stated from the dismissal of an appeal by the Crown Court sitting at Caernarfon against the conviction of the Appellant by District Judge Gascoyne sitting at Llandudno Magistrates’ Court on 21 December 2009 of the single offence with which he was charged namely: that on 1 April 2009 at Old Colwyn he drove a motor vehicle on a special road, namely the Llanddulas to Colwyn Bay special road at a speed exceeding 50 mph, contrary to the Special Road (Llanddulas to Colwyn Bay) Regulations 1984, section 17 (2), (3) and (4) of the Road Traffic Regulation Act 1984 (“RTRA 1984”) and Schedule 2 to the Road Traffic Offenders Act 1988 (“RTOA 1988”). That appeal was heard by Mr. Recorder G Walters and two Lay Justices on 26 and 30 March 2010. The evidence before them was agreed and the relevant facts are clearly and helpfully set out in the ruling of the Crown Court and in the Case Stated. I can do no better than, and so adopt, the description of the relevant facts found by the Crown Court that are set out in the Case Stated, namely:
The “A55” is a “special road” and a “trunk road” running along the length of the Northern coast of Wales. The “local traffic authority” (as defined by section 121A of the RTRA 1984) responsible for the maintenance of the road is the Welsh Assembly which delegates its functions to the North Wales Trunk Road Agency;
Different parts of the A55 are subject to different speed limits, some imposed as national speed restrictions and others, specifically for the sections of the A55 designated as special roads, are imposed by statutory instruments pertaining to a specific locality. The Westbound carriageway at Old Colwyn, with which this appeal was concerned, is ordinarily subject to a speed limit of 50 mph. That speed limit begins at the point on the road where there are to be found two “terminal” traffic signs indicating the commencement of the 50 mph zone. Those signs are, ordinarily, electro illuminated, i.e. illuminated internally;
On 27 March 2009, William Roberts, an engineer for the local authority, Conwy County Borough Council, noted that the two terminal signs on the Westbound carriageway were not illuminated as expected. That engineer sent an e-mail to Sergeant Hughes, Western Community Policing Sergeant with the North Wales Police, and the North Wales Trunk Road Agency stating that “the lanterns on the terminal 50 mph signs on the A55 east of Colwyn Bay have disappeared”. He went on to say that “not having them illuminated may cause embarrassment to the Police if a speeding ticket is challenged”;
On 1 April 2009, at 13:59, Sergeant Hughes forwarded that e-mail to Mr Lloyd-Jones, the Route Manager for the A55 (this e-mail was copied to Inspector Nicholson and the engineer, William Roberts). Sergeant Hughes asked Mr Lloyd-Jones for his views about the e-mail sent by the engineer. He asked for those views “before we consider stopping enforcement at this location”. He asked explicitly, “should the 50 mph signs be illuminated?”;
Later that day, at 22:40 hours, Police Constable Collis was on duty in a marked police vehicle on the A55 Westbound carriageway at Old Colwyn. Constable Collis is an advanced driver and has been a Roads Policing Officer for over five years. He regularly patrols the A55 including the stretch of road central to this case. Constable Collis saw a Volkswagen Golf motor car being driven towards Conwy at a speed he believed to be in excess of the speed limit. He deployed a laser device and found that the vehicle was travelling at a speed of 98 mph;
Constable Collis pursued the offending vehicle and caused it to stop. The vehicle was being driven by the Appellant. The Appellant got out of the car and approached the marked police vehicle. Constable Collis then recognise the Appellant as a Police Sergeant in the North Wales Police but dressed in civilian clothing. Before Constable Collis had said anything the Appellant said, “I’m on a job and I’ve got a prisoner in the back of the car. We will be leaving Black Cat and re-joining, it’s complicated to explain now”;
At that time Constable Collis was satisfied that the Appellant was on police duties and engaged in an operation which he thought would be compromised if he further delayed the Appellant. Constable Collis then contacted his supervisor. Later it was confirmed that the vehicle involved was an unmarked police vehicle and that the Appellant was a North Wales Police Officer who was on duty at the time and engaged in police business;
Neither of the traffic signs erected to indicate the commencement of the 50 mph limit were illuminated at the time of the alleged offence on 1 April 2009;
On 7 April 2009 at 17:01 hours, Mr Lloyd-Jones, the A55 Route Manager responded to the e-mail sent by Sergeant Hughes six days earlier regarding the illumination of the signs. Mr Lloyd-Jones said “the 50 signs on the Westbound at Rainbow Bridge should be illuminated. The current signs that were installed last June were electro illuminated, i.e. illuminated internally. It appears that the internal lighting has failed. We are arranging for them to be illuminated externally and once complete we will advise you. In the meantime the 50 is not enforceable”;
And later, at 18:20 hours, Sergeant Hughes sent an e-mail to the members of the Road Policing Unit stating, “enforcement to be stopped at this location until further notice”. The location referred to was the 50 mph restricted area on the A55 Westbound at Colwyn Bay. This e-mail was copied to Chief Inspector Gary Ashton: a senior officer in the Roads Policing Unit;
Constable Collis received the e-mail on 7 April 2009. Police Constable Collis was intrigued as to what the problem was as he worked the area on a daily basis. During one nightshift he turned off his vehicle lights to see what could be seen of the signs showing the speed limit of 50 mph. He said that without any lights on his vehicle he could not read the sign but says that with the illumination provided by his vehicle there was no difficulty whatsoever in clearly seeing the sign concerned;
He also noticed that there are 17 “repeater signs” after the first 50 mph sign and that there were 7 such signs between the initial un-illuminated terminal sign and the point at which the Appellant was detected to be speeding;
There is no doubting that the Appellant knew this stretch of road well and knew what the speed limit was;
It was not until 16 July 2009 that the terminal signs indicating the commencement of the 50 mph limit were repaired. On 17 July 2009 Sergeant Hughes sent a further e-mail to the Roads Policing Units indicating that enforcement could recommence in the “50s” at Colwyn Bay.
The information upon which the prosecution of the Appellant was based was laid by the Chief Superintendent of North Wales Police on 9 September 2009, and thus some time after the events described above.
As appears from the findings set out above the relevant stretch of road is a “special road”. As explained by the Crown Court in their Ruling and the Case Stated, and as is agreed between the parties, this means that the speed limit for that stretch of road:
must be assigned to it and thus imposed by appropriate regulations,
in the absence of any such lawfully prescribed speed limit no default maximum speed limit applies, and it follows that
if there is no speed limit imposed by appropriate regulations, which can be effectively enforced, then there is no speed limit at all.
This is explained in the Explanatory Note relating to Regulation 13 of the Special Road (Llanddulas to Colwyn Bay) Regulations 1984 – “the Special Road Regulations” (which imposes the relevant 50 mph limit). It also explains why the information was laid in the terms that it was and thus why the Appellant was not charged with exceeding a default maximum speed limit.
As before the Crown Court, the Appellant advances two lines of argument, namely that:
the prosecution of the Appellant was an abuse of process, and in any event that
The Appellant does not claim, and in the proceedings never has claimed, that he is exempt from the sanction of the law as it applies to every other motorist by reason of the fact that he is a serving police officer and that at the time of the alleged offence he was on duty. Nor has this been asserted by either side to be relevant to the Appellant’s argument whether the prosecution was an abuse of the process. Also, as the earlier cases demonstrate (see for example Peake v DPP [2010] EWHC 286 (Admin) at paragraph 35), the fact that the Appellant knew that the speed limit was 50 mph is not relevant.
Abuse of process
The Appellant’s argument is based on the agreed fact that at the time of the alleged offence on 1 April 2009 the position on the ground was the same as it was between 7 April and 16 July 2009 when the instruction given by the e-mail of 7 April 2009 that:
“enforcement to be stopped at this location until further notice”
was in place. From that base it is asserted that:
the decision to prosecute was contrary to a clear and settled policy relating to the circumstances that existed at the time of the alleged offence, and
the fact that this policy was not decided upon until after the alleged offence took place does not mean that it should not have been applied to this case.
The information was laid, and thus it seems the decision to prosecute was taken, at a time when it was known that this instruction had been given. The agreed facts indicate that this instruction was based on the view expressed by Mr Lloyd-Jones, was implemented by Sergeant Hughes and copied to a more senior officer.
It was submitted on behalf of the Defendant, that the level and nature of the decision making process was such that the instruction could not:
be a clear and settled policy, or in any event that it could or should not
in any way fetter the duty of the North Wales Police to enforce the speed limit or their decision to prosecute.
The evidence and agreed facts do not cover points relating to the authority of Sergeant Hughes to issue the instruction and in those circumstances (and particularly because the e-mail giving the instruction was copied to a senior officer) I reject the first of those alternative arguments. The second alternative is subsumed in the general application of the law relating to abuse of process.
Unsurprisingly, the principles and approach to be applied were not in dispute. We were referred to Archbold 2010 Edition at paragraph 4-48 and following and in particular to R v Beckford [1996] 1 Cr.App.R 94, A-G of Trinidad and Tobago [1995] 1 AC 396, Hui Chi-Ming v R [1992] 1 AC 34, a civil case Re: Barings Plc. (No 2) [1999] 1 All ER 311 (relating to a stay) and R (oao Mondelly)v Commissioner of Police for the Metropolis [2006] EWHC 2370 at paragraph 42.
The Appellant relied on the strand of principle relating to abuse of process that it would be unfair for him to be tried and has never asserted that the trial itself was or would be unfair. At the heart of his argument, is the proposition set out by Moses LJ in Mondelly and which I accept, that whilst the courts are reluctant to intervene regarding decisions to prosecute, they may do so where there has been a breach of a prosecuting authority’s clear and settled policy. This reflects an aspect of general principles relating to the exercise of judicial discretion concerning issues of substantive and procedural fairness, and their impact on the lawfulness of decisions and decision making.
In the context of abuse of process, as was submitted on behalf of the Appellant, the matters founding the abuse of process argument have to be so unfair and wrong that the Court should not allow the prosecutor to proceed. By analogy with the approach to a stay of civil proceedings, those matters have to support the conclusion that to allow the proceedings to continue would bring the administration of justice into disrepute among right thinking people, which would be the case if the court was allowing its process to be used as an instrument of oppression, injustice and unfairness. I accept that analysis of the approach to be taken by the court.
In applying that approach I make the assumption in favour of the Appellant, that there was a clear and settled policy as he asserts between 7 April and 16 July 2009, based on a factual situation on the ground that was identical to that which existed on 1 April 2009 - the date of the alleged offence.
On that approach and assumption, I have concluded that the decision to prosecute (and thus the prosecution) cannot be categorised as an abuse of process for the reasons set out below.
The instruction not to enforce the 50 mph speed limit is based on an interpretation of the relevant primary and secondary legislation in the agreed circumstances that are relied on by the Appellant in advancing his alternative argument. So, although it is open to the police and the local traffic authority to take their own view thereon, that interpretation is ultimately a matter for the courts who could find that the instruction (and thus the policy) was based on an error of law and so did not serve the intention of Parliament and thus the relevant public interests.
It follows that the impact of this limb of the Appellant’s argument would be to deprive the courts of the opportunity of considering whether or not the instruction and thus the policy was soundly based in law and so reflected the relevant public interests.
In my judgment, against that background and even if the instruction had been given before the alleged offence took place, the circumstances of this case (and it is in this context, and only this context, that the speed at which the Appellant was driving is relevant) lead inexorably to the conclusion that the above descriptions of the nature and degree of unfairness required to render a prosecution an abuse are not satisfied. Indeed, I would go further and record that in my view right thinking people would conclude that in those circumstances a decision not to prosecute in this case based on the instruction, and the underlying reason for it, would bring the administration of justice, by the performance of the duties of the North Wales Police, in enforcing a 50 mph speed limit on a special road into disrepute. This is because such people would conclude that justice and fairness required the validity of that reason, and thus the Appellant’s alternative argument, to be put before the courts.
The fact that the instruction was not given until after the date of the alleged offence supports that conclusion and means that there is no need to speculate on what a police officer on the ground would have done, and further or alternatively whether the Defendant would have decided to prosecute, if the alleged offence had taken place whilst the instruction (and thus the policy relied on) was in force. These points are not covered by the evidence and the agreed facts set out in the Case Stated.
Bar to Conviction
This argument and defence is based on the interpretation of the relevant primary and secondary legislation.
The crucial provision is s. 85 RTRA 1984. This has to be read, interpreted and applied in its context. In particular:
section 17, which defines the offence (referred to in Schedule 2 of the RTOA 1988) with which the Appellant was charged, namely breaking the 50 mph speed limit set by the Special Road Regulations made under s. 17(2) and (3) RTRA 1984, and
The relevant regulations in respect of traffic signs are the Traffic Signs Regulations and General Directions 2002 (SI No 2002/3113) (“the 2002 Regulations” which has two parts namely Part I – The Traffic Signs Regulations 2002 and Part II - The Traffic Signs General Directions 2002) and were made pursuant to the powers conferred by ss. 64 and 85 RTRA 1984 (and other sections thereof).
The 2002 Regulations cross refer to diagrams and cover a wide range of signage.
The relevant provisions in this case are in mandatory terms. The general provision as to signs is in mandatory terms namely that they “shall” be of the size, colour and type shown in the relevant diagram (Regulation 11 of Part 1) and in respect of their size a range of permitted variations in the dimensions of signs is provided for. There are no relevant provisions in the 2002 Regulations dealing with the effect of a failure to comply in whole or in part with provisions of those Regulations in mandatory (or permissive) terms.
Regulation 18 and Schedule 17 of the 2002 Regulations (Part I) deal in mandatory terms with the illumination of signs. It is common ground that they provide that the terminal signs in this case to mark the start of the 50 mph limit on the relevant part of the special road “shall” be illuminated internally throughout the hours of darkness, and thus at the time of the alleged offence (see diagram 670, Regulation 4 of the 2002 Regulations (Part I), and Item 10 Column 3 of Schedule 17).
Respectively (a) Directions 8 and 9 and (b) Direction 11 of the 2002 Regulations (Part II) provide in mandatory terms for the placement of (a) terminal signs (e.g. where a speed limit begins and ends) and (b) repeater signs at regular intervals.
It is also common ground that when erected the relevant terminal signs were correctly positioned and complied completely with the relevant regulations. So the only defect and non compliance with the 2002 Regulations in the signage that is relied on is the failure of the internal illumination of the terminal signs marking the commencement of the 50 mph speed limit. The facts set out (and agreed) do not indicate whether this was at the commencement of an increase or a decrease in the relevant speed limit.
It is not asserted that the repeater signs failed to comply in any way with the 2002 Regulations.
Section 64 (1) and (2) RTRA 1984 provide as follows:
“General provisions as to traffic signs
(1) In this Act “traffic sign” means any object or device (whether fixed or portable) for conveying, to traffic on roads or any specified class of traffic, warnings, information, requirements, restrictions or prohibitions of any description specified by regulations made by (a) the Ministers acting jointly, or (b) authorised by the Secretary of State ---------------
(2) Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above except where the Secretary of State authorises the erection or retention of a sign of another character; and for the purposes of this subsection illumination, whether by lighting or by the use of reflectors or reflecting material, or the absence of such illumination, shall be part of the type or character of a sign”
Section 85 RTRA provides as follows:
“Traffic signs for indicating speed restrictions
(1) For the purpose of securing that adequate guidance is given to drivers of motor vehicles as to whether any, and if so what, limit of speed is to be observed on any road, it shall be the duty of the Secretary of State, in the case of a road for which he is the traffic authority, to direct and maintain traffic signs in such positions as may be requisite for that purpose.
(2) In the case of any other road, it is the duty of the local traffic authority:
(a) to erect and maintain traffic signs in such positions as may be requisite in order to give effect to general or other directions given by the Secretary of State for the purpose mentioned in subsection (1) above, and
(b) to alter or remove traffic signs as may be requisite in order to give effect to such directions, either in consequence of the making of an order by the Secretary of State or otherwise.
(3) If a local traffic authority makes default in executing any works required for the performance of the duty imposed on them by subsection (2) above, the Secretary of State may himself execute the works; and the expense incurred by him in doing so shall be recoverable by him from the local traffic authority and, in England and Wales, shall be so recoverable as a civil debt.
(4) Where no such system of street or carriageway lighting as is mentioned in section 82(1) is provided on a road, but a limit of speed is to be observed on the road, a person shall not be convicted of driving a motor vehicle on the road at a speed exceeding the limit unless the limit is indicated by means of such traffic signs as are mentioned in subsection (1) or subsection (2) above.
(5) ------------------
(6) ------------------
(7) The power to give general directions under subsection (2) about shall be exercisable by statutory instrument.”
It is common ground that the operative sections are ss. 85(2) and 85(4) and thus that (i) s. 85(6) which I have not set out does not disapply s.85, and (ii) s. 82(1) does not apply (albeit that as I understand it the requirement for illumination was because the signs were within 50 metres of a street lamp lit by electricity – see the trigger to the application of Item 10 Column 3 of Schedule 17 to the 2002 Regulations, which also provides that the sign may be reflectorised and I note that if Item 10 does not require a sign to be illuminated Item 11 reverses the mandatory and permissive provisions and provides that the sign may be illuminated but if it is not it shall be reflectorised).
The duty imposed on the local traffic authority by subsection 85(2)(a) has two expressed purposes namely to give effect to the 2002 Regulations for the purpose mentioned in subsection (1).
But subsections 85(1), (2) and (4) all refer to traffic signs and therefore incorporate the mandatory provisions of s. 64 that the signs are to be of the type (and thus have the illumination) prescribed by the 2002 Regulations for the purpose of conveying to traffic warnings, information, requirements, restrictions or prohibitions of any description specified by the Ministers or the Secretary of State. Further to, and in line with, that general purpose (set out in s. 64) s. 85(1) provides that the statutory purpose of the signs conveying the speed limit is for “securing that adequate guidance is given to drivers of motor vehicles as to whether, and if so what, limit of speed is to be observed, on any road”.
This purpose in respect of signs conveying the speed limit is expressly included in s. 85(2)(a) and if the cross reference to that subsection in s. 85(4) is replaced by the language to which it refers it reads as follows:
“-------- a person shall not be convicted of driving a motor vehicle on the road at a speed exceeding the limit unless the limit is indicated by means of [ such traffic signs as are mentioned in subsection (1) or subsection (2) above ] traffic signs in such positions as may be requisite in order to give effect to general or other directions given by the Secretary of State [the 2002 Regulations] for the purpose of securing that adequate guidance is given to drivers of motor vehicles as to whether any, and if so what, limit of speed is to be observed on any road”
The problem in this case does not relate to the positioning of the relevant terminal signs but to their illumination and thus their type or character. So the non-compliance with the duty imposed by s. 85(2) that is relied on by the Appellant is a failure to maintain terminal traffic signs that give effect to (and thus comply with the mandatory provisions of) the 2002 Regulations concerning their illumination.
The Appellant’s argument is that on its true construction the protection from conviction given by s. 85(4) has two limbs or tests in that it provides that:
subject to the de minimis principle, there can be no conviction unless there is compliance with the mandatory provisions of 2002 Regulations, and
This approach seeks to confine (save in the context of the application of the de minimis principle) the relevance of the statutory purpose of speed limit signs, and thus a purposive approach, to the additional protection from prosecution given by the second limb or test.
It was argued that this approach served the public interest and thus the underlying purpose of the legislation because it provided a structure that (a) protected motorists, and (b) promoted the compliance by local traffic authorities to comply with the regulations issued by the Secretary of State and by that means road safety. It was asserted that if the first limb of the tests set by s. 85(4) was interpreted purposively, with the result that the only question the court had to address was whether the signage provided adequate guidance as to the speed limit, this:
would mean that a conviction could be founded on less extensive or clear signage to that required by the 2002 Regulations, which
could encourage local traffic authorities to take a less rigorous approach to compliance with their statutory duty to erect and maintain signage as required by the 2002 Regulations (and future regulations), and so would
frustrate the intention of Parliament when it imposed the duty on local traffic authorities to erect and maintain traffic signs and approved the 2002 Regulations in mandatory terms, and
could ultimately have a detrimental effect on the safety of roads because it would lead to non uniformity of signage and some signage that was less adequate than others.
The Appellant relies only on the first limb of the protection from conviction that he says is provided by s. 85(4) and in advancing it asserted that as the terminal signs were not illuminated they do not qualify as traffic signs placed at the point where the 50 mph speed limit commenced and so:
the local traffic authority had failed to comply with the statutory duty imposed on it by s. 85(2) to maintain traffic signs in compliance with the 2002 Regulations, with the results that
he cannot be convicted.
In support of his approach the Appellant relies on a passage from the judgment of Walker J in Coombes v DPP [2006] EWHC 3263 (Admin) which was a case where the relevant signs were compliant with the 2002 Regulations but obscured by overgrown hedges. Walker J says, at paragraph 23 of his judgment, that the ordinary meaning of the words of s. 85(4) is that there are two tests namely that there were signs as is mentioned in s. 85(1) or (2) and secondly that they indicated the relevant speed limit. For the purposes of that case that is an accurate judicial description but it is not appropriate to take judicial paraphrases as substitutes for the words of the statute (see for example In re Sevenoaks Stationers Ltd[1981] Ch 164 at 176F). Also, and in any event, that case was not concerned with any non compliance with a provision of the 2002 Regulations. Rather, it was dealing with the question whether there could be a conviction if compliant signs did not give adequate guidance to motorists. The conclusion was that the Appellant in that case had been wrongly convicted essentially because to cite from a later part of paragraph 24 the objective of s. 85(4) is that motorists should not be convicted in the absence of adequate guidance. As appears later this purposive approach was approved by Elias LJ in Peake.
In my view, therefore Coombes provides no assistance to the Appellant on the question in this case, namely whether notwithstanding a failure to comply with the 2002 Regulations adequate guidance was given to motorists of the relevant speed limit at the point of the alleged offence and thus enforcement on the particular road by (a) the terminal signs being clearly visible because of reflection from head lights, and (b) the 7 repeater signs being clearly visible in the manner envisaged by the 2002 Regulations.
The Appellant places particular reliance on paragraphs 34 and 36 of the judgment of Elias LJ in Peake v DPP [2010] EWHC 286 (Admin). There the Divisional Court dismissed an appeal in which the Appellant argued that he should not have been convicted because errors in signage within an envelope of roads were defective. The essential question, as indicated by Elias LJ was where the limit must be indicated.
At paragraphs 34 and 36 Elias LJ said:
“34 The effect of sub-section (4) is that there can be no conviction unless there are signs complying with the directions indicating the speed limit. The question is: Where must the limit to be indicated? The Act is silent on this point. Plainly it cannot simply be at the place where the alleged speeding occurs, which I shall call the “point of enforcement”. If, for example, repeaters signs indicate a speed limit at the point of enforcement but there were no signs placed in positions indicating the speed limit leading up to that point, then there would be no signs requisite to the purpose of providing adequate guidance as to the speed limit. It follows that there must be compliant signs on the road or roads leading up to the point of enforcement. But how far back need they go? That is essentially the issue raised in this case.
36. Second, if the limit is not indicated by the appropriate signs complying with the relevant directions then there can be no conviction even though there are some signs in place and even if the court takes the view that these did give adequate guidance to the driver. It is for the Secretary of State to determine what signs should be imposed for the purpose of securing adequate guidance, and if those signs are not provided then it must be inferred that the guidance is inadequate. Sub-section (4) is not satisfied and the conviction cannot stand”
When read in isolation those passages provide support for the Appellant’s argument on the true construction and effect of s. 85(4).
But they need to be read (a) against the background that such judicial descriptions of a statuteshould not be used in another case as a substitute for the words of the statute itself and on the basis that the focus of the court’s attention was as to where compliant signs must be, and (b) with paragraphs 38 to 40, 43 and 44 where Elias LJ sets out his approach to, and conclusions on, the issues in the case in the light of, and thus in his application of, his earlier remarks on the meaning and effect of the section. In those paragraphs he said:
“38. It is not disputed that the local traffic authority had not complied with their duty under subsection (2) to provide compliant signs throughout the area subject to the 40 mph limit. Hence if the appellant is right, the conviction cannot stand.
39. The respondent submits that there is no warrant for reading this section in this way. It gives insufficient weight to the purpose for which the traffic signs are erected. This is to provide adequate guidance to drivers as to the speed limit. All that need be asked is whether there is compliant signing so that anyone who is caught speeding at the point of enforcement will have been given adequate guidance by compliant signs of the appropriate limit and will therefore be culpable of transgressing it. If there are such signs and if they will have provided adequate guidance whichever route may have been adopted by a driver up to that point of enforcement, then section 85(4) is satisfied. In other words the reference in subsection (4) to the limit being indicated by means of traffic signs is merely a reference to the limit at the point of enforcement on the particular road. Section 85(4) refers to the ---- road; it makes no reference to zones or envelopes or such similar terms.
40. I prefer the respondent’s argument. In my judgment it leads to a just result and I think it is a more natural meaning of the statutory language. The appellant’s argument gives no substance at all to the purpose of providing signs, and it seems to me that the purpose ought to dictate the construction of the legislation, particularly since it is identified in the section itself. If at the point of enforcement there are signs complying with the directions of the Secretary of State which in fact provide adequate guidance of the speed limit at that point, this satisfies the requirements of section 85(4). If the prosecution can establish the route taken by the defendant, it will only have to show that compliant signs provide adequate guidance at the point of enforcement for someone taking that route. If they cannot establish the route, they will have to show that there were compliant signs on all routes which the driver may have taken.
43. The appellant also relies heavily upon Coombes v DPP ----------------- It is submitted that the twofold test identified by Mr Justice Walker in that case, which Mr Justice Calvert–Smith has set out in paragraph 19 above, supports the appellant’s argument.
44. I do not agree. It simply stipulates that there must be signs as mentioned in section 85(1) or (2). It does not assist in determining where those signs must be located in order to make a conviction lawful and in accordance with subsection (4). Indeed the test adumbrated by Mr Justice Walker emphasises that the crucial question is whether a motorist could reasonably be expected to know the speed limit so that he would be able to reduce his speed from a previous lawful speed to a speed within that new limit. In my judgment, that is entirely consistent with the formulation principle which the respondent relies upon in this case.”
To my mind the application of s. 85(4) by Elias LJ in Peake provides clear confirmation of the point that the reference to the road in s. 85(4) cannot be construed as the whole road (and thus here as to the A55 or the special road in question). This was readily and inevitably conceded by the Appellant with the result that a failure to comply with the 2002 Regulations has to be on a relevant part or parts of the special road rather than on any part of it. Many examples could be given of the absurdity of a different conclusion two are (a) non-compliance on the eastern carriageway, and (b) non-compliance on a part of the A55 (a special road and a trunk road) that is subject to a different speed limit.
In my view, Peake (and Coombes although it addresses a different question)provide confirmation of the point that the relevant part of the road is identified by reference to the express purpose of s. 85, namely whether adequate guidance of the relevant speed limit has been given by means of the signage referred to in s. 85(4). Also, in my view this conclusion is supported by the express reference to the positioning of the signage in s. 85(1) and (2).
Obviously, and as confirmed by Peake,the extent of the relevant part of the road falls to be determined by reference to the location of the alleged offence (described in Peake as the point of enforcement) and it seems to me that in line with the application of s. 85(4) in Peake the question to be asked is:
Whether by the point on the road where the alleged offence took place (the point of enforcement) the driver by reference to the route taken thereto has been given (or drivers generally have been given) adequate guidance of the speed limit to be observed at that point on the road by the traffic signs referred to in s. 85(4) that are on the relevant part or parts of the road?
This question leaves open the degree of compliance with the 2002 Regulations that is necessary for a traffic sign to be so described and taken into account, and I shall return to this.
But first I shall consider this question by reference only to wholly compliant signage (and thus the 7 repeater signs) which effectively confines the issue to what is the minimum extent of the relevant part or parts of the road.
On that basis, in my view the answer to that purposive question is “Yes”.
In my view, this conclusion accords with the conclusion in Peake and is not at odds with the example given by Elias LJ in paragraph 34 of his judgment in Peake because here there were signs leading up to (as well as at or near) the point of enforcement.
If this conclusion is correct the non-illumination of the terminal signs is irrelevant. It becomes relevant if they are to be included in (or cannot be excluded from) the relevant part of parts of the road. And, in any event, that conclusion would be reinforced, and could not I think be sensibly challenged, if the fact that the terminal signs were clearly visible when the car’s headlights were on could be taken into account.
This raises the central point as to what “are traffic signs as are mentioned in ss. 85(1) or (2)”. In my view Peake does not provide the answer to this either by reference to (a) the affirmative answer to the second question posed for the court in that case, namely whether the District Judge was right to conclude that provided signage was adequate, minor breaches of the regulations did not impact on the legality and enforceability of the speed limit, or (b) the passages relied on by the Appellant.
The core of the Appellant’s argument is that:
the terminal signs are important (and I agree with this on the basis that they mark the beginning and end and thus a change in the relevant speed limit),
they are thus on a part of (even if only at the beginning of) the relevant stretch of road, and therefore part of the signage referred to in s. 85(4), and
as they were not illuminated in accordance with the 2002 Regulations
This argument, as I have explained, is dependent upon the view that (subject to the de minimis principle) complete compliance with the 2002 Regulations is required in respect of all signs that are required by them to be erected and maintained on the relevant part or parts of the road.
I do not accept this argument.
In my view the references in paragraphs 34 and 36 of Peake to the need for “compliant signs” and “appropriate signs complying with the 2002 Regulations" is not part of the ratio of the judgment of Elias LJ or of Calvert-Smith J in that case.
Further, and although I fully accept that the language of those paragraphs should not be subjected to a process equivalent to statutory construction, in my view the references to compliance therein, as a matter of language, have a range of meaning from being references from:
signs that are completely compliant with all requirements of the 2002 Regulations (the sense asserted by the Appellant), to
signs in so far as (and thus to the extent that) they are compliant with the 2002 Regulations.
The top end of that range (which represents the interpretation relied on by the Appellant) is at odds with the answer to the second question posed for the court in Peake,namely that if the signage was adequate, minor breaches of the regulations did not impact on the legality and enforceability of the speed limit. I accept that that answer might be explained by an application of the de minimis principle, or on the basis that there was complete compliance on the relevant parts of the road. But, the lack of any such explanation supports the view that the court was not directing its attention to the central question I am now addressing relating to the degree of compliance with the 2002 regulations that is necessary to comply with the duty imposed by s. 85(2) RTRA 1984 and thus, by reference to s. 85(4) (with the cross reference written in – see paragraph 33 above) “to give effect to the 2002 Regulations for the purpose of securing that adequate guidance is given to drivers of motor vehicles as to whether any, and if so what, limit of speed is to be observed on any road”.
In any event, if these passages in paragraphs 34 and 36 of Peake are to be read as supporting the view that (subject to the de minimis principle):
a sign, on the relevant part or parts of the road (and thus its effect), can only be taken into account in determining whether a motorist has been given adequate guidance of the relevant speed limit in the manner mentioned in s. 85(4) if and so long as it complies completely with the 2002 Regulations, or
the absence of, or a defect in, a sign required by the 2002 Regulations means that the other signs on the relevant part or parts of the road (and their effect) cannot be taken into account in determining whether adequate guidance of the relevant speed limit has been given in the manner referred to in s. 85(4),
I respectfully disagree.
However, I hasten to add that I wholeheartedly agree with the point made by Elias LJ that it is the Secretary of State who determines what signs should be imposed and thus what signs are appropriate to give adequate guidance as to the relevant speed limit. Additionally, here it is the Secretary of State who, by the Special Road Regulations imposed the relevant speed limit.
So, I accept and acknowledge that it would be a breach of duty for local traffic authorities to substitute their own views on signage and to adopt them, or for the court to conclude that any such substituted approach gave adequate guidance by the method (i.e. the signage) referred to in s. 85(4). But in my view, that does not mean that any departure from compliance with the requirements of the 2002 Regulations (apart from one covered by the de minimis principle) relating to (i) the erection of signs on the relevant part or parts of the road, or (ii) the results of their day to day maintenance, has the consequence contended for by the Appellant.
The de minimis principle is based on the legal policy that unless a contrary intention is shown the law does not concern itself with trifling matters (see Halsbury’s Laws 4th edition Vol 44(1) at paragraph 1441). This naturally introduces the question as to the approach to be taken to determining whether or not a matter is trifling which, in turn, creates a link to the approach taken by the courts to mandatory and directory duties and powers. That approach is discussed and commented on in Halsbury’s Laws 4th edition Vol 44(1) at paragraphs 1238 and 1467 and in de Smith’s Judicial Review paragraphs 5-049 to 5-063 (as to which an extract from an earlier edition dealing with this topic was approved and adopted by the Court of Appeal in Sec of State for Trade and Industry v Langridge[1991] Ch 402 at 411).
In my view, the approach to be taken to non-compliance with duties and powers expressed in mandatory terms guides the approach to be taken to answering whether the protection from conviction given by s. 85(4) is or is not triggered. This is because the trigger is whether or not the duty imposed by s. 85(2) has been performed by the local traffic authority giving effect to the 2002 Regulations for the specified purpose (see paragraph 33 above ) and thus whether “the limit is indicated by means of traffic signs as are mentioned in subsection (1) or subsection (2) above”.
As to that approach I cite and adopt the following passages from de Smith:
“ When Parliament prescribes the manner or form in which a duty is to be performed or a power exercise, it seldom lays down what would be the legal consequences of failure to observe its prescriptions. The courts have therefore formulated their own criteria for determining whether the prescriptions are to be regarded as mandatory, in which case disobedience will normally render invalid what has been done, or as directory, in which case disobedience may be treated as an irregularity not affecting the validity of what has been done. (5-049)
These terms, like the others we have been considering in this chapter, often cause more problems than they solve. The law relating to the effect of failure to comply with statutory requirements thus resembles an inextricable tangle of loose ends and judges have often stressed the impracticability of specifying exact rules for the assignment of a provision to the appropriate category ------ (5-050)
A second reason for the tangle in this area is the use of the terms "mandatory" and “directory"; the latter term is especially misleading. All statutory requirements are prima facie mandatory. However, in some situations the violation of a provision will, in the context of the statute as a whole and the circumstances of the particular decision, not violate the object and purpose of the statute. Condoning such a breach does not, however, render the statutory provision directory or discretionary. The breach of the particular provision is treated in the circumstances as not involving a breach of the statute taken as a whole. Furthermore, logically, a provision cannot be mandatory if the court has discretion not to enforce it. (5-052)
Lord Hailsham expressed this point well in London and Clydeside v Aberdeen District Council where he distinguished two ends of a spectrum. At the one end are cases "where a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequence". At the other end of the spectrum the defect may be "so nugatory or trivial" that the authority can proceed on the assumption that "if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint". Lord Hailsham considered that language like "mandatory", "directory", "void", "voidable" and "nullity" only served to confuse the situation and stretch or cramp the facts of the case into rigid legal categories or "on a bed of Procrustes invented by lawyers for convenient exposition. (5-053)
In order to decide whether a presumption that a provision is "mandatory" is in fact rebutted, the whole scope and purpose of the enactment must be considered, and one must assess "the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be served by the Act". In assessing the importance of the provision, particular regard should be given to its significance as a protection of individual rights; the relative value that is normally attached to the rights that may be adversely affected by the decision, and the importance of the procedural requirements in the overall administrative scheme established by the statute. Breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements are introduced. But the requirement will be treated as "fundamental" and of "of central importance" if members of the public might suffer from its breach. Another factor influencing the categorisation is whether there may be another opportunity to rectify the situation; of putting right the failure to observe the requirement. (5-054)”
As the cases cited in these passages of de Smith show, the approach to be applied is a purposive one and is one that applies (a) to duties and powers, and (b) in criminal as well as civil cases. In my view, the protection given by s. 85(4) does not of itself address or govern the issue as to the degree of non-compliance with the relevant duty and thus the 2002 Regulations that is required to trigger it. But (and it is an important but) the point that the relevant provisions are in criminal statutes, and further or alternatively relate to penalties and a conviction, is relevant to the application of the approach to deciding what the consequences of a breach of the duty (and thus the 2002 Regulations) are (see Halsbury’s Laws 4th edition Vol 44(1) at paragraphs 1239 and 1240, and the reference in the approach to be adopted in paragraph 5-054 of de Smith to the importance of the provision as a protection). So, the point that s.85(4) RTRA 1984 provides protection from conviction is an important one and one that strongly favours a conclusion that unless there is strict compliance with the 2002 Regulations there cannot be a conviction. There is a strong public interest in this protection of the individual.
Equally the relevance of the purposes of the Act as a whole in the application of the approach to be adopted:
indicates that this purpose and the public interest underlying it as well as the potentially competing purpose and public interest that underlies s. 85(4) RTRA 1984 are both relevant to the determination of (a) the breadth of the spectrum described by Lord Hailsham, one end of which equates to the de minimis principle, and (b) the impact of circumstances between the two ends of that spectrum.
In my view, the Appellant’s public interest argument is an integral part of, and is subsumed by, the application of the approach set out above to the effect of non-compliance with a statutory duty.
The only provision I have found that expressly addresses non-compliance with the duty imposed by ss. 85(2), is ss. 85(3). This enables the Secretary of State to execute the works at the expense of the local traffic authority. I accept that this power does not effectively undermine the public interest point asserted by the Appellant because of the practicalities of the Secretary of State becoming aware of the problem and doing the work. Rather, to my mind this power reinforces the points made and acknowledged in paragraphs 58 and 59 above which are a part of the Appellant’s public interest argument.
But, paragraph 5-052 does found the view (which I have reached) that the Appellant’s public interest argument is flawed because it shows that if applying the approach set out above (which is a purposive one) to the interpretation and application of s. 85(4) RTRA 1984 the court concludes that the prosecution has proved appropriate compliance with the 2002 Regulations and thus the duty imposed by s. 85(2) (see DPP v Butler[2010] EWHC 669 (Admin), and I accept that this is the correct approach to be adopted in this case by reference to the facts set out in the Case Stated) this does not mean that the court is condoning the breach relied on by the Appellant, or undermining the point that it is for the Secretary of State to set out and thereby prescribe the guidance that should be given to motorists of the relevant speed limit to satisfy the purpose set out in s. 85(1).
In applying the above approach to the interpretation and application of s. 85(4) RTRA 1984 I have concluded that, notwithstanding the significant weight to be given to the point that the subsection provides protection from conviction, the following factors namely:
the potentially competing public interests underlying the provisions of the RTRA 1984, namely the setting and enforcement of speed limits for the benefit and protection of road users and the protection of drivers from conviction if they have not been given adequate warning of the relevant speed limit by traffic signs (as defined and erected and maintained pursuant to the relevant duty and thus the 2002 Regulations),
the nature and detail of the duties both as to erecting, and as to maintaining, signs pursuant to the duties imposed by the 2002 Regulations (for example, the reversal of the mandatory and additional discretionary provisions as to illumination and reflection in Items 10 and 11 of Schedule 17 to the 2002 Regulations which are an example of the obvious point in respect of traffic signs that the intention of the Secretary of State is that they should be clearly visible to motorists) give rise to a number of possibilities that could, from time to time, lead to the result that there may not be full compliance by all of the signs on a relevant stretch of road but that the signage thereon that is complaint, or partially compliant, with the 2002 Regulations will fulfil the underlying purposes of s. 64, the 2002 Regulations, and s. 85 of the RTRA 1984, and
the consistent adoption of a purposive approach in the earlier cases referred to above (see in particular paragraphs 40 and 40 of the judgment of Elias LJ in Peake),
Albeit that I am mindful of the warning and comments in paragraph 5-050 of de Smith (cited above), for the reasons set out above, I have concluded that:
whether the protection from conviction given by s. 85(4) RTRA 1984 applies
the appropriate question to determine this case (and perhaps others) is:
Whether by the point on the road where the alleged offence took place (the point of enforcement) the driver by reference to the route taken thereto has been given (or drivers generally have been given) adequate guidance of the speed limit to be observed at that point on the road by the signs on the relevant part of parts of the road in so far as (and thus to the extent that) those traffic signs comply with the 2002 Regulations?
This test makes it clear that it is the Secretary of State who sets the standard for, and detail of, the signage but means in this case that the impact of the compliant aspects (and thus also of the non-compliance by the failure of the illumination) can be taken into account to see whether the duty imposed by s. 85(2) RTRA 1984, and thus the implementation of the 2002 Regulations, at the time of the alleged offence have served the purpose set out in s. 85 RTRA 1984 and achieved the right balance between the two public interests underlying the RTRA 1984 that I have identified.
In my judgment, on the facts set out in the Case Stated it is plain that the combination of the un-illuminated terminal signs, and thus their effect so far as (and thus to the extent that) they were compliant with the 2002 Regulations (and whether or not they were reflectorised – which is not expressly covered by the facts found and stated), together with the effect of the 7 compliant repeater signs, gave that guidance.
This conclusion means that if, for the purposes of s. 85(4) RTRA 1984, the un-illuminated terminal signs have to be included within the relevant parts of the road (on the basis that they mark the start of the relevant speed limit on the Westbound carriageway at Old Colwyn, or otherwise) the Appellant does not have the protection from conviction given by s. 85(4) RTRA 1984.
For the reasons given, and like the courts below, I reject the Appellant’s arguments and therefore I dismiss this appeal.
Wyn Williams J:
I agree with the reasoning and conclusion of my Lord. I, too, would dismiss this appeal.
The Appellant was convicted before a District Judge sitting at the Llandudno Magistrates Court. His appeal against conviction was heard at the Crown Court at Caernarfon. Yet this appeal was brought in the Administrative Court in Manchester. It may be that practitioners who undertake cases in or related to North Wales which are heard in the Administrative Court are still unaware that such cases can be heard in North Wales. While the Administrative Court Office for Wales is in Cardiff (with the consequence that North Wales cases have to be commenced in Cardiff) it should be well known by now that arrangements will be made for cases which ought properly to be heard in North Wales to be heard at a suitable venue either in the north east or north west. Had the Appellant commenced this appeal by way of case stated in Wales or had a transfer to Wales been sought by the Respondent and granted I have no doubt that suitable arrangements would have been put in place for this case to be heard in North Wales. In my judgment, a hearing in Wales would have been desirable given the obvious local interest in the outcome of the case.