England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2006

Mr Justice Walker :

Introduction

1. On 27 January 2006 the appellant was convicted by Mendip Magistrates' Court of an offence of speeding contrary to ss 81(1) and 89(1) of the Road Traffic Regulation Act 1984 ("the 1984 Act"). It was said by the prosecution, and accepted by the appellant, that on 4 July 2005 he drove on the B3139 Bath Road at Horrington near Wells at a speed of 46 miles per hour on a stretch of road which was subject to a 30 m.p.h. speed limit. I shall refer to the stretch of road which was subject to the 30 m.p.h. limit as "the relevant stretch". The appellant said that he had not seen signs indicating the speed limit. An appeal to Bristol Crown Court was heard by His Honour Judge Darlow and two lay justices on 21 April 2006. That appeal was dismissed by a majority of two to one. The appellant now brings an appeal by case stated to this court.

Background facts and the Case Stated

2. The facts found by the Crown Court, when read in context, include the following:

(a) The relevant stretch is immediately preceded by a stretch of road subject to a 40 m.p.h. speed restriction. There were, at the start of the relevant stretch, two roadside signs to signify the speed limit as well as two "30" roundels on the road surface and rumble strips. [Case stated, para 3].

(b) The roadside signs were in the correct place, were of the correct height, and were of the correct shape. [Case stated, para 7].

(c) The roadside signs were visible only at the point at which the Appellant drove past them. This was because until that point they were obscured by overgrown hedgerows. [Case stated paras 2 and 8].

(d) The appellant had no knowledge of the speed limit of 30 m.p.h. on the relevant stretch. [Case stated, para 13].

3. It is common ground that the 30 m.p.h. speed limit in the present case arose because the relevant stretch was a "restricted road" for the purposes of the 1984 Act. Under s 82(1) of that Act, one way in which a road can be a restricted road is if it has a system of street lighting furnished by means of lamps placed not more than 200 yards apart. We are not concerned with this in the present case, for there was no such system of street lighting on the relevant stretch. Its status as a restricted road came from an order made by the traffic authority under s 82(2).

4. The Appellant relied for his defence on s 85 of the 1984 Act. This provides:

"s 85 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 erect 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.

(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.

(7) The power to give general directions under subsection (2) above shall be exercisable by statutory instrument."

5. There are three other passages in the case stated which I must mention. The first is in paragraph 8. Having found that the roadside signs were visible only at the point at which the appellant drove past them, the Crown Court added that this would mean that it would have been impossible for the appellant to have avoided exceeding the 30 m.p.h. limit if he had been travelling at the permitted speed in the preceding 40 m.p.h. stretch of road. I understand this to mean that had the Appellant been travelling at 40 m.p.h. as he approached the signs at the start of the relevant stretch, then if he had not had local knowledge he would not have had time to reduce his speed below 30 m.p.h. before entering the relevant stretch.

6. Second, in paragraph 14 of the case stated the court gave its reasons for dismissing the appeal. These were as follows:

(a) The shape and size of the road side signs, irrespective of whether the number on them could be seen, were sufficient by themselves to indicate a change in the speed limit.

(b) Even if the Appellant had not seen the left hand sign he should have seen the one to his off side.

(c) The Appellant had local knowledge sufficient for him to be aware of the signs and what they said.

(d) The cumulative effect of the visible shape and size of the roadside signs together with the Defendant's local knowledge amounted to the discharge by the local/highways authority of its' obligation to provide "adequate signage required by s 85 of the Road Traffic Regulations Act of 1984"..

4. The questions identified for this court were:

(1) If the requisite speed limit signs have become obscured by vegetation, does that mean that the signs have not been "maintained" for the purposes of s.85?

(2) If only one speed limit sign is visible, is that sufficient signage for a person to be found guilty of speeding?

(3) If a driver can only see the speed limit notification signs at the point at which they are passed, are those signs sufficiently erected and maintained in order to sustain a speeding conviction?

(4) If the signs did not comply with the Regulations so as to afford the Defendant the defence under s.85 of the Road Traffic Regulation Act 1984, is that defence negated by reason of a Defendant's knowledge of the speed limit on a particular road?

(5) Did the "30" roundels painted onto the road surface at the beginning of the restricted stretch of road constitute "signs" for the purposes of the Traffic Signs Regulations and General Directions and, if so, did that mean that the defence provided by s.85 of the Road Traffic Regulation Act 1984 was not available to the Defendant (now Appellant)?

Primary legislation concerning traffic signs

5. In addition to the specific provisions of s 85, there are general provisions about traffic signs in Part V of the 1984 Act. Relevant general provisions are found in ss 64, 65 and 68. There is no suggestion that the signs did not comply with these provisions and for that reason I do not set them out here.

Other provisions relevant to the appeal

6. Relevant regulations and directions are set out in the Traffic Signs Regulations and General Directions 2002, SI 2002/3113. This statutory instrument sets out separately the Traffic Signs Regulations ("the Regulations") and the General Directions ("the Directions").
7. Reg 4 provides that "sign" means a traffic sign. Reg 11 provides:

"Signs, markings and signals to be of the size, colour and type shown in the diagrams

11(1) Subject to the provisions of these Regulations, a sign for conveying information or a warning, requirement, restriction, prohibition or speed limit of the description specified under a diagram in Schedules 1 to 7, Part II of Schedule 10 and Schedule 12 to traffic on roads shall be of the size colour and type shown in the diagram."

8. Direction 7, subject to an immaterial exception, provides:

"Signs to be placed only to indicate the effect of a statutory prohibition

7(1) … the signs to which this paragraph applies may be placed on or near a road only to indicate the effect of an Act, order, regulation, byelaw or notice ("the effect of a statutory provision") which prohibits or restricts the use of the road by traffic."

9. Paragraph (2) of Direction 7 applies paragraph (1) to a large number of diagrams. The roundels painted onto the road surface warning of the impending speed restriction are shown in diagram 1065 – applied by subparagraph (2).
10. Diagram 670 (also included in paragraph 7(2)) is the traditional speed restriction sign indicating the limit of 30 mph.
11. By virtue of paragraph 18 of the Directions certain road signs may be placed only in conjunction with other road markings as set out in the table 1 (page 52 of the bundle). These signs include the roundel painted on the road (diagram 1065) which may be placed only in conjunction with the sign in diagram 670 (the traditional speed limit sign).
12. The direction for the placement of the traditional roadside speed limit signs is Direction 8. This requires the placement of traditional signs (670) on each side of the carriageway at the point at which the speed restriction starts.

Question (4) in the Case Stated

13. Both sides agree that the answer to question (4) must be, "No." I am of the same view. Nothing in the statute suggests that the defence under s 85 is conditional on the defendant being unaware of the speed limit. In Wawrzynczyk v Chief Constable of Staffordshire Constabulary (CO/4116/99 – unreported, 28 February 2000) this court pointed out that the offence of 'exceeding the speed limit' is not an offence requiring a mental element. In that case the speeding motorist knew that temporary speed restriction signs had been placed in the wrong position. The Court held that his knowledge had no relevance to the matter. On the same basis the Appellant's local knowledge could not be relevant in this case.

The submissions of the parties on the remaining questions

17. Mr Cranfield on behalf of the appellant observes that the roadside signs were mandatory under the relevant directions. He submits that they were so obscured that the signs were not erected and maintained as required by s 85(2), and accordingly, the Appellant should not be convicted of speeding. His primary cases is the roadside signs were once visible, but have become invisible, and therefore have not been "maintained" within the meaning of s 85(2), as required by s 85(4). Alternatively he contends that the roadside signs were so overgrown that the limit was not "indicated" by those signs as required by s 85(4). For both these purposes, he submits that as Direction 8 refers to two roadside signs, the defence under s 85(4) will arise even though one of the signs complies with s 85(4) – so long as the other does not.

18. Mr Cranfield recognises that the roundels cannot be said to have been in any way obscured. However, he points out that under the Directions, the relevant authority merely has a discretion to use the roundels in conjunction with the mandatory roadside signs. It follows, he submits, that they are irrelevant to the defence under s 85(4).

14. Mr Barker on behalf of the respondent submits that it is enough that there is one sign that is visible. The requirement for two signs is made, in his submission, so as to cater for the possibility that a sign on one side may be obscured. This, he submitted, was the approach of the Crown Court, and it was right. In the present case the roundels had been lawfully placed in conjunction with the roadside signs. While it may have been difficult for the Appellant to see one of the roadside signs the Crown Court found that he should have seen the other roadside sign and there was no obstruction at all of the roundels painted on the road surface. Thus there were at least three signs which complied with the directions, and in those circumstances the appellant could not rely on s 85(4).
15. As to the alternative argument, Mr Barker submits that taken as a whole the roadside signs and roundels indicated the limit. He accepted that in order for a sign to "indicate" a speed limit, it must convey that limit to a reasonable motorist approaching the sign.
16. Mr Barker's skeleton argument cited an additional authority. In Hood v Lewis [1976] RTR 99 this court overturned a finding that the defendant was not guilty of the offence because he had not seen relevant signs. However, in that case there was a clear indication – in the form of street lighting at regular intervals - that the road was a restricted road. That case was entirely different from the present and I say no more about it.

Conclusions on the remaining questions

17. The researches of counsel have not identified any authority which directly deals with the points arising on questions (1) to (3) and (5). Accordingly I approach the matter from first principles.
18. It is convenient to deal first with the appellant's alternative argument. The ordinary meaning of the words used in s 85(4) is that two tests must be met before the appellant can be convicted. The first is that at the time when the offence is said to have been committed there were such signs as are mentioned in s 85(1) or (2). The second is that those signs indicated the relevant speed limit. At the very least it seems to me that this second test involves a requirement that, at the geographical point where the motorist exceeded the limit, the signs could reasonably be expected to have conveyed the limit to an approaching motorist in sufficient time for the motorist to reduce from a previous lawful speed to a speed within the new limit. This court observed in Wawrzynczyk that the purpose of section 85 is that "adequate guidance be given to motorists". The objective of s 85(4) is plainly that motorists should not be convicted in the absence of adequate guidance. In my view the requirement I have described is necessarily implicit in order to ensure this objective.
19. In the present case the Crown Court found, in effect, that had the appellant been travelling at 40 m.p.h. as he approached the signs at the start of the relevant stretch, then if he had not had local knowledge he would not have had time to reduce his speed below 30 m.p.h. when he entered the relevant stretch. This seems to me to be an assessment by the court of the cumulative effect of the roadside signs and roundels. The court made no explicit finding as to the precise location where the appellant had been recorded as travelling over the speed limit. Nor is there a finding that this location was any substantial distance from the start of the relevant stretch. In these unusual circumstances it seems to me impossible to do anything other than to conclude that in the appellant's case the requirement I have described was not met.
20. It follows that in my view the appeal must be allowed. It is unnecessary to determine whether it would be sufficient for a defendant to say in respect of one only of the roadside signs that it did not "indicate" the limit in the sense that I have described. Nor is it necessary to determine whether it would be sufficient that such a failure arose for reasons that might not reasonably be expected.
21. Equally it is unnecessary to consider the appellant's main argument. This refers to the first of the two tests described earlier – whether there were such signs as are mentioned in s 85(1) or (2). In this case we are concerned with s 85(2). The relevant obligation is to erect and maintain traffic signs in such positions as may be requisite in order to give effect to the Directions. The appellant's main argument has to overcome the difficulty that the Directions identify the form of the sign and where it must be placed, but impose no further obligation as to visibility. In the absence of any such further obligation, it seems to me to be difficult to say that the authority had not maintained the roadside signs in such position as might be requisite in order to give effect to the Directions. Moreover questions may arise as to evidence of procedures for inspection and remedial action when deciding whether there has been a failure to "maintain." However I do not express any concluded view on these points, in the absence of a need to do so.
22. Accordingly I would allow this appeal. My answer to questions (1), (2) and (5) would be, "These questions do not call for answer on the facts of this case." I would answer the remaining questions in the case stated:

"(3) There is a requirement that at the geographical point where the motorist exceeded the limit, the requisite signs could reasonably be expected to have conveyed the limit to an approaching motorist in sufficient time for the motorist to reduce from a previous lawful speed to a speed within the new limit.

(4) No."

LORD JUSTICE KEENE:

23. I agree, and I also would allow this appeal.