APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Emslie Lord Abernethy	[2009] HCJAC 49 Appeal No: XJ100/08 OPINION OF THE COURT in the stated case ROBBIE THE PICT Appellant; against THE PROCURATOR FISCAL, DUMFRIES Respondent: _______

Appellant: CM Mitchell; McClure Collins (for George Mathers & Co, Aberdeen)

Respondent: McConnachie QC, AD; Crown Agent

15 May 2009

1. Background

[1] The appellant was charged on a summary complaint before the District Court of Dumfries and Galloway at Annan that:

"on 17 November 2006 on the A74(M) Glasgow - Carlisle road, southbound carriageway near to Whicketthorn Overbridge, Kirkpatrick Fleming, being a road subject to the aftermentioned regulations, you... did drive a motor vehicle, namely a motor car registered number M213 USR at a speed exceeding the 70 miles per hour maximum permitted speed namely at a speed of 85 miles per hour;

CONTRARY to the Motorways Traffic (Speed Limit) Regulations 1974, Regulation 3 and the Road Traffic Regulation Act 1984, Section 17(4)".

It is worth observing, in limine, that, although the appellant pled not guilty to the charge, as he was fully entitled to do, he has never maintained that, at the place and date libelled, he was not driving at 85 mph on what must have appeared to him to have been a motorway.

[2] The case first called on 4 April 2007 and intermediate and trial diets were set for 20 June and 18 July 2007. At the intermediate diet, the appellant represented himself and sought to raise a preliminary issue challenging the competency of the complaint and the proceedings. Leave to do so late was refused. The appellant then attempted to lodge an application, said to be in terms of section 7(1)(b) of the Human Rights Act 1998, to the effect that he had been denied a fair hearing. This was not permitted, as that section deals with the right of a party to bring separate proceedings against a public authority. The appellant unsuccessfully raised the matter at the commencement of the trial diet.

[3] On the first day of the trial, which was held before three Justices of the Peace, the Crown led the evidence of Robert McMillan, an enforcement officer employed by the Dumfries and Galloway Safety Camera Partnership, who had previously been a traffic police officer for twenty three years. His evidence was completed at an adjourned diet of trial on 20 or 21 August 2007. At that diet there was also testimony from the corroborating witness, namely James Boyd, who was similarly employed by the Safety Camera Partnership. The evidence of these officers was that they had been trained on the use of the LTI 20/20 Speedscope Speed Measuring Device and the Lastec Local Video System.

[4] Both witnesses testified that they had been on duty on 17 November 2006. They had carried out checks on the Speedscope at their headquarters before setting up both devices at Whicketthorn Overbridge on the A74(M) Glasgow to Carlisle road, where the devices were again checked. During the course of that morning the officers' attention was drawn to a red Mazda car, registration number M213 USR, which was travelling in the third lane of the motorway at what appeared to be a speed in excess of 70 mph. On using the Speedscope device, the reading for the car was 85 mph. The Lastec video device was then used to identify the driver and to record the registration number. On checking the Police National Computer, the registered keeper transpired to be the appellant and the standard Notice of Intended Prosecution was sent to, and completed by, the appellant.

[5] Mr McMillan said that the devices were approved by the Secretary of State for the purposes of section 20 of the Road Traffic Offenders Act 1988. The appellant objected to Mr McMillan's response on the basis that approval of the devices had not been established. This objection was repelled. The procurator fiscal depute then referred Mr McMillan to Production No. 1, which contained "The Light Beam Speed Measuring Device Approval 1996" and "The Light Beam Speed Measuring Device Approval 1998". Mr McMillan confirmed that these were the Approvals of the Speedscope and Lastec devices. The Speedscope recorded the speed of vehicles by emitting a series of light pulses. A laser beam was targeted on to the front of a car and the device measured the distance to the car as it travelled and thus calculated its speed by dividing distance travelled by the time which that travel took. Mr Boyd similarly confirmed in examination-in-chief that the devices were approved.

[6] Cross-examination covered the issue of whether the Approvals were statutory instruments. Mr McMillan said that they were not themselves statutory instruments, but they were authorised by statutory instrument. In re-examination, he was referred in that connection to Production 4, the Road Traffic Offenders (Prescribed Devices) Order 1993. The appellant objected to the use of this Order. For his part, Mr Boyd confirmed awareness of the relevant documentation.

[7] When asked about the speed limit on the road, Mr McMillan replied that it was 70 mph. His response was objected to on the basis that it was hearsay. He was asked how he knew what the limit was and he replied that he had read the relevant statutory instrument for this section of the road. Under cross-examination he referred to regulation 3 of the Motorways Traffic (Speed Limit) Regulations 1974 and to section 17(4) of the Road Traffic Regulation Act 1984; those being the statutory provisions libelled. In the course of his evidence, Mr Boyd confirmed awareness that the A74(M) was a motorway, having observed features such as signage and lanes and having seen the relevant "paperwork". The speed limit was 70 mph in accordance with signs on the motorway to that effect.

[8] The appellant made a "no case to answer" submission on the basis that: (first) the locus was not a motorway and that the 70 mph limit did not apply; and (secondly) that the devices had not been approved and the evidence derived from them was inadmissible. In developing his argument, the appellant produced a number of documents including The Glasgow-Carlisle Special Road (A74) M (Ecclefechan to Kirkpatrick Fleming) Special Roads Scheme 1992 (SI 1992 No 2168). At the conclusion of the submission, the procurator fiscal depute requested an adjournment to consider what appears to have been an intricate argument from the appellant. The diet was adjourned until 3 October 2007, when the depute completed her submissions.

[9] The Court repelled the "no case to answer" submission. The appellant did not lead any evidence. He was found guilty. He was fined £100 and his licence was endorsed with three penalty points. The appellant then applied for a stated case on, amongst other points, the matters raised in the "no case to answer" submission. The Justices have provided a detailed thirty seven page stated case setting out the procedural history, the nature of the various arguments raised before them, the evidence, the reasons for their decisions and their findings in fact. Critically, they found that: (first) the locus was a motorway; (secondly) the devices used were approved; and (thirdly) the appellant had been driving at 85 mph at the locus on the day libelled.

[10] The stated case called for a hearing on 1 October 2008, when counsel then instructed for the appellant moved to adjourn the diet on the basis that he was considering a new ground of appeal concerning the relevancy of the complaint. His motion was granted, but at a Procedural Hearing on 27 January 2009 he stated that he was no longer considering that matter and no new grounds of appeal would be proposed. The case called again for a hearing on 26 March 2009, when the appellant's new counsel advanced the two matters which had already been canvassed before the Justices, viz: (1) were the devices approved? and (2) was the road a motorway?

2. The "devices" issue

[11] Section 20 of the Road Traffic Offenders Act 1988 (c 53), as substituted by section 23 of the Road Traffic Act 1991, (c 40) provides:

"(1) Evidence (which in Scotland shall be sufficient evidence) of a fact relevant to proceedings for an offence to which this section applies may be given by the production of -

(a)   a record produced by a prescribed device...

...

but subject to the following provisions of this section.

(2) This section applies to -

...

(b)  an offence under subsection (4) of section 17 of [the Road traffic Regulation Act 1984] consisting in the contravention of a restriction on the speed of vehicles imposed under that section;

...

(3) The Secretary of State may by order amend subsection (2) above by making additions to or deletions from the list of offences for the time being set out there;...

(4) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which this section applies unless -

(a) the device is of a type approved by the Secretary of State, and

(b) any conditions subject to which the approval was given are satisfied.

(5) Any approval given by the Secretary of State for the purposes of this section may be given subject to conditions as to the purposes for which, and the manner and other circumstances in which, any device of the type concerned is to be used.

...

(9) In this section "prescribed device" means device of a description specified in an order made by the Secretary of State.

(10) The powers to make orders under subsections (3) and (9) above shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament".

[12] The Road Traffic Offenders (Prescribed Devices) Order 1993 (1993 SI No. 1698) provides:

"2. The following devices are prescribed devices for the purposes of section 20 of the Road Traffic Offenders Act 1988 -

...

(b)  a device designed or adapted for recording a measurement of the speed of motor vehicles activated by means of a light beam or beams".

A document signed by the Minister of State at the Home Office on 20 March 1996 is in the following terms:

"ROAD TRAFFIC

The Light Beam Speed Measuring Device Approval 1996

The Secretary of State, in exercise of the powers conferred by section 20(4) and (5) of the Road Traffic Offenders Act 1988 (Speeding offences etc... admissibility of certain evidence) having prescribed for the purpose of that section a device designed or adapted for recording a measurement of the speed of motor vehicles activated by means of a light beam or beams, hereby approves as from 1^st April 1996 for the purpose of detection of offences specified in section 20(2)...(b)...the type of device known as the LTI 20.20 TS/M "Speedscope" Speed Measuring Device manufactured by Laser Technology Inc. of Colorado USA and Tele Traffic A/S of Drammen Norway".

A further document also signed by the Minister of State at the Home Office on 20 January 1998 is in the following terms:

"ROAD TRAFFIC

The Light Beam Speed Measuring Device Approval 1998

The Secretary of State, in exercise of the powers conferred upon him by section 20(4) and (5) of the Road Traffic Offenders Act 1988 (Speeding offences etc: admissibility of certain evidence) having prescribed for the purposes of that section a device designed or adapted for recording a measurement of the speed of motor vehicles activated by means of a light beam or beams, hereby approves as from 10^th February 1998 for the purpose of detection of offences specified in section 20(2)...(b)...the type of device set out in the Schedule hereto. This Approval is subject to the condition set out in that Schedule

SCHEDULE

The LASTEC Local Video System, manufactured by Laser Technology Inc. of Colorado USA and Tele Traffic (UK) Limited, when used in conjunction with...the LTI 20.20 TS/M "Speedscope" speed measuring device".

[13] Both documents were produced at the trial. The appellant's counsel submitted that any approval of a particular device had to be made by statutory instrument; that is to say by an instrument which named the particular make and model of device. Sub-section 20(4) referred to a device "of a type approved by the Secretary of State" and sub-section 20(9) provided that a "prescribed device" was a device "of a description specified in an order made by the Secretary of State".

[14] With conspicuous fairness, counsel drew the attention of the Court to an unauthenticated transcript of a decision by Judge Gibson, sitting with two Magistrates, in Manchester Crown Court, in William Brotherston, dated January 2009. In that transcript, a description of the legislative procedure is given as follows:

"A detailed specification for devices to which a statutory instrument refers is placed before Parliament together with the proposed Statutory Instrument. Parliament, if it accedes to the Instrument, allows generic prescription of devices (as described in the Instrument). Subsequently, insofar as individual devices such as the LTI 20.20 are concerned, there is an individual type approval process (including stringent testing of the device) which results in the ministerial approval if the relevant specification is met and if otherwise successful.

The original s 20, which provided only for ministerial approval, referred to the device being of a type "approved by the Secretary of State".

Upon close reading of the substituted s 20, it is only orders under subsections (3) and (9) which must be exercisable by SI (crucially, not subsection (4)). Subsection (4) retains the pre-substitution scheme of ministerial approval. Indeed, s 20(4)(a) uses precisely the same phrase as that in the original s 20, namely "the device is of a type approved by the Secretary of State" (without any further or revised definition being given). There is thus a distinction between the expressions, "prescribed device" in (4), that referring to what we might refer to as "Stage 1" of the process, namely the generic prescription by way of SI and "type approved" referring to "Stage 2", namely the approval of the device by the Secretary of State.

This reading of the section is supported by an analysis of phrases "prescribed device" in (4) and "device of the type" in (5), referring to approval subject to conditions. It is plain, in our judgment, that prescribed device refers to Stage 1 and device of the type to Stage 2".

[15] Counsel quoted from the Road Traffic Offenders (Prescribed Devices) Order 2008 (SI No. 1332) which refers, in paragraph 3, to "a manually activated device". It was said that this is what the Speedscope was, since it was operated by a trigger which required to be pressed by the operator. In that sense, it was not, in terms of the 1993 Order, "a device designed or adapted for recording a measurement of the speed of motor vehicles by means of a light beam or beams". This argument was, however, rejected by the Court in Brotherston as follows:

"Whilst it may be said that the process of capture of the vehicle speed is initiated by the operator of the device pulling the trigger, it is obvious that the reading itself is initiated by and completely dependent upon the light beams emitted from and received by the device and we have no hesitation in finding that this is a device which is "a device designed or adapted for recording a measurement of the speed of motor vehicles by means of a light beam or beams".

[16] The Advocate Depute maintained that the reasoning in Brotherston was sound. There was a two stage process; first, of Parliament approving a generic type of device followed, secondly, by the approval by the Secretary of State of a particular make and model. That is what this Court had concluded in Wylie v Robbie the Pict 2007 SCCR 114, Lord Nimmo Smith at paras [9] to [11].

[17] The reasoning of the Court in Brotherston and Wylie is plainly correct. In terms of sub-section 20(9) of the 1988, a prescribed device must be a "device of a description specified in an order made by the Secretary of State". Sub-section 20(10) provides that any order must be in the form of a statutory instrument. Thus, there requires to be a statutory instrument which describes a type of device into which the device actually used must fall. The 1993 Order refers to a "device...activated by means of a light beam or beams". Despite the ingenuity of the argument about the need to switch on the device by means of a trigger, we are satisfied that the LTI 20.20 TS/M "Speedscope" Speed Measuring Device is a device in which the "measurement of the speed of motor vehicles" is "activated by means of a light beam or beams". In the context of paragraph 2 of the Order, it is the "measurement" being "activated" that is important and not the mechanism which switches on the device. Sub-section 20(4) states that the device must be of a "type approved by the Secretary of State". But there is no requirement there, or in the section as a whole, that the approval be contained in a statutory instrument. Approval can be, and is, achieved by the issue of a Notice of Approval signed by, or on behalf of, the Secretary of State. That being so, the argument under this head must fail.

3. The "motorway" issue

[18] Counsel's second main argument, presented by reference to questions 5, 6, 7 and 8 in the stated case, was to the effect that the Crown had failed to establish the validity of the statutory instrument (1992 No. 2168) by which the Secretary of State purported to make the "Glasgow - Carlisle Special Road (A74)M (Ecclefechan - Kirkpatrick Fleming) Special Road Scheme 1992". It was accepted that the scheme covered the stretch of the A74(M) on which the appellant's speeding offence was alleged to have occurred; that if the relevant statutory instrument was valid, this stretch of the road would qualify as part of a motorway for the purposes of the Motorways Traffic (Speed Limit) Regulations 1974; and that in such circumstances the 70mph speed limit alleged against the appellant under regulation 3 of these Regulations could not be denied. In counsel's submission, however, the Crown case must fail if the relevant statutory instrument was never validly brought into force in the first place.

[19] So far as relevant for present purposes, the Roads (Scotland) Act 1984 ("the 1984 Act") provides as follows:

" 7 (3) A roads authority may be authorised by means of a scheme under this section to provide, along a route prescribed by the scheme, a special road for the use of traffic of any class so prescribed.

...

(6) A scheme under this section authorising the provision of a special road shall -

(a) in the case of a road to be provided by the Secretary of State, be made by the Secretary of State ...

in accordance with the provisions of Parts II and III of Schedule 1 to this Act.

8 (1) Different classes of traffic may be prescribed by a scheme under section 7 of this Act in relation to different parts of the special road to which the scheme relates.

(2) The classes of traffic prescribed by any such scheme shall be prescribed by reference to the classes set out in Schedule 3 to this Act.

(3) The Secretary of State may by order vary the classes of traffic specified in the said Schedule 3 and the composition of any such class; ...

(4) A variation order may contain provision applying the variations made by the order to existing schemes ... made by the Secretary of State.

143 (1) Where a power to make regulations or orders, or to make or confirm schemes, is exercisable by the Secretary of State by virtue of this Act, the exercise of that power shall be by statutory instrument under this subsection ...

(2) A statutory instrument ―

(a) made under subsection (1) above and containing ―

(i) regulations; or

(ii) an order under section 8 ... of this Act

shall be subject to annulment in pursuance of a resolution of either House of Parliament ...".

[20] The relevant statutory instrument (1992 No. 2168) bore to have been made by the Secretary of State in exercise of the powers conferred on him by section 7 as read with inter alia sections 8 and 143(1) of the 1984 Act, and to have been signed by a person designed as "Deputy Chief Engineer, The Scottish Office". Paragraph 2 of the scheme described the routes of the special road by reference to schedule 1 annexed, and paragraph 3 prescribed classes of traffic by reference to schedule 3 of the 1984 Act.

[21] Against that background, counsel's primary contention was advanced along the following lines:

(i) that although the operative verbs used in the scheme were "described" and "prescribed", the relevant statutory instrument could and should be seen as "regulating" both the lengths of road to which the scheme applied, and also the classes of traffic which could use the special road;

(ii) that on this basis the relevant statutory instrument contained "regulations" for the purposes of section 143(2)(a)(i) of the 1984 Act, and accordingly required to be subject to annulment in pursuance of a resolution of either House of Parliament; and

(ii) that since the Crown conceded that the negative resolution procedure had not been observed in this case, the relevant statutory instrument was fundamentally null and could not serve as the underlying basis for the appellant's prosecution.

By way of a subsidiary argument, counsel suggested that because the relevant statutory instrument bore to have been signed by the Deputy Chief Engineer it had not been made by the Secretary of State as required by section 7(6) of the 1984 Act.

[22] The Crown's response began with the contention that since the appellant's arguments were essentially in the nature of challenges to the relevancy of the complaint, they could not be entertained at this late stage. Section 144 of the Criminal Procedure (Scotland) Act 1995 provided inter alia as follows:

"144 (4) Any objection to the competency or relevancy of a summary complaint ... shall be stated before the accused pleads to the charge or any plea is tendered on his behalf.

(5) No objection ... such as is mentioned in subsection (4) above shall be allowed to be stated ... at any future diet in the case except with the leave of the court, which may be granted only on cause shown".

In this case no objection had been timeously stated under subsection (4); no late leave had been sought or granted for such an objection to be taken at the trial; and no cause had been shown for such a course. As the stated case showed, the Justices had de facto allowed the substance of the appellant's argument to be developed, and the procurator fiscal depute had responded. However, that was all in the context of a submission of no case to answer, which the court was bound to entertain, and the appellant could not legitimately circumvent the requirements of section 144 by such means. In MacQueen v Hingston 1997 S.C.C.R. 561, a case concerning alleged contravention of the Skye Bridge Crossing Toll Order 1992, the court held that where an objection to relevancy was not lawfully stated at the proper time, the Crown were entitled to proceed on the basis that the relevant legislation was in force and that this was not in dispute.

[23] On the merits, in any event, the appellant's position was untenable. His primary argument involved a misreading of both the 1984 Act and the relevant statutory instrument. Where section 143(1) of the Act expressly distinguished "regulations" from "orders" and "schemes", it could not be said that the scheme of 1992 comprised or contained "regulations" at all. On the contrary, it merely "described" or "prescribed" certain lengths of road and classes of traffic and, in common with countless similar measures of a local character (as illustrated by the H.M.S.O. list which the appellant had provided), it had been validly brought into effect by the more informal route expressly identified under section 7(6) of the 1984 Act, namely that of prescribed public advertisement allied to objection procedures in accordance with Parts II and III of schedule 1 thereto. The appellant was simply mistaken in his belief that, for the purposes of the present scheme, there was any requirement for the relevant statutory instrument to be subject to annulment in pursuance of a resolution of either House of Parliament. Section 143(2)(a)(i) of the 1984 Act did not, in other words, apply here.

[24] On the question whether the relevant statutory instrument was invalid as not having been signed by the Secretary of State personally, the Advocate Depute maintained that since it (correctly) bore in gremio to have been made by the Secretary of State it must correspondingly be taken to have been signed on his behalf and with his authority. In HMA v Copeland 1988 S.L.T. 249, where a similar issue arose in connection with a detention order promulgated under the Prevention of Terrorism (Temporary Provisions) Act 1984, the court observed (at p.250K/L):

"... Although this document does not specifically state in gremio that Quinn signed it on behalf of the Secretary of State the opening paragraph shows that he was in fact acting on behalf of the Secretary of State. It was conceded by counsel that had words such as "for the Secretary of State" or "on behalf of the Secretary of State" accompanied the signature, the document would have satisfied the requirements of (paragraph 7(1) of schedule 3 to the Act). We do not consider such an addition is necessary but it is clear that had it existed the present argument would have been obviated. However, we have no doubt that the requirements of para. 7(1) have been satisfied. It follows that the objection falls to be repelled.

A question may arise whether in fact the decision to extend the period of detention was made by the Secretary of State personally or on his behalf on his direct authority or by his officials in his name acting under their general powers. In our view it matters not which of these situations be the case. A line of authority, starting with Carltona Ltd v Commissioners of Works (1943 2 A.E.R. 560) and ending with a decision by Brightman J., as he then was, in Re Golden Chemical Products Ltd (1976 Ch. 300) establishes to our satisfaction that there is no obligation on the minister to exercise his powers personally even when those powers involve a serious invasion of the freedom or property rights of the subject. Thus even if it should transpire that the Secretary of State had no personal concern with the decision to extend the period, that decision would still be valid."

[25] In any event, according to the Advocate Depute, it was important to remember that the Crown were entitled to establish the motorway status of the relevant stretch of road in any competent manner. It was not always necessary to go into the detailed statutory history of a given stretch of road, and in the present case the appellant had failed to displace the conclusions which were legitimately open to the Justices from the evidence led at the trial and supplemented by his own production of the relevant statutory instrument. In particular, as narrated in the stated case, the two police officers who gave evidence for the Crown both affirmed that the A74(M) at the locus was a motorway, with appropriate carriageways, lanes, signage and speed limits. In addition, production of the relevant statutory instrument at the trial brought into play section 279A(3) of the 1995 Act, which provided as follows:

"Any order made by any of the departments of state or government ... under powers conferred under any statute or a print or a copy of such order, shall when produced in a prosecution be received in evidence of the due making, confirmation and existence of the order without being sworn to by any witness and without any further or other proof."

Admittedly subsection (4) of the same section preserved the right of an accused to challenge and displace any such evidential presumption if he could, but in the present case the appellant had failed to do so. His arguments were fundamentally unsound, and he had moreover led no defence evidence in that connection.

[26] In our judgment the appellant's attack on the validity of the relevant statutory instrument is without substance and cannot be sustained. In the first place, dealing with his main technical argument, we cannot accept that the relevant statutory instrument "contains ... regulations" so as to engage section 143(2)(a)(i) of the 1984 Act. Significantly, the opening words of that section bear to distinguish "regulations", on the one hand, from "orders" or "schemes", on the other; the operative verb in subsection (2)(a) is "contains"; it is only "regulations" in the plural, as opposed to "regulation" in the singular, which count in that context; and while the term "regulations" is extensively used in the Act it is conspicuously absent from sections 7 and 8 governing special road schemes. Against that background, and bearing in mind that the 1992 Scheme has no content beyond the minimum prescription required under section 7(3), we are unable to identify anything there which could properly qualify as "regulations" for the purposes of section 143(2)(a)(i). Perhaps realising that the appellant faced difficulty in this area, counsel sought to develop her argument by reference to the concept of regulation in general. In our view, however, this not only involved an illegitimate shift away from the particular language of section 143, but also confused "regulation" with the mere description or prescription of lengths of road and/or classes of traffic for the purposes of a special road scheme.

[27] A further important consideration, in our view, is that the procedural requirements imposed under section 143(2)(a) apply, not only where a statutory instrument contains "regulations", but also where it contains inter alia "an order under section 8 ... of (the) Act". As previously narrated, subsections (1) and (2) of section 8 contain provisions supplementary to section 7 regarding the prescription of classes of traffic, and subsections (3) and (4) authorise the making of variation orders in that general context. Had the appellant's argument on "regulations" been correct, it would we think have covered all measures taken under section 8 as well as those proceeding under section 7, and there would then have been no need for the special reference to "orders under section 8 ..." which appears in section 143(2)(a)(ii). As counsel for the appellant very fairly conceded, the effect of her primary argument was to render that special reference otiose and to deprive it of content.

[28] With the foregoing considerations in mind, we agree with the Advocate Depute that section 143(2)(a) was not engaged in the circumstances of this case, and that the relevant statutory instrument therefore did not require to be subject to annulment by resolution of either House of Parliament. We are fortified in that conclusion by Parliament's specific provision, in section 7(6) of the same Act, of a more informal procedure for the making of special road schemes. There was, as we understood it, no dispute that the informal procedure under section 7(6) had in fact been followed through here, and in any event it is clear that only a statutory instrument duly "made" would, under the Statutory Instruments Act 1946, have received its identifying number from the King's printer and thereafter appeared in the H.M.S.O. list to which we were referred.

[29] As regards the signature of the Deputy Chief Engineer on the relevant statutory instrument, we are again satisfied that the Crown's contentions are to be preferred. As confirmed in the case of HMA v Copeland, it is well settled that a Minister of State exercising statutory powers may do so through others acting in his name and with his authority. The relevant statutory instrument correctly proceeded in the name of the Secretary of State, and in our view the signature of the Deputy Chief Engineer may properly be taken, with or without express confirmation, as having been duly authorised on the Secretary of State's behalf.

[30] On all of these grounds it seems to us that the evidential presumption under section 279A(3) of the 1995 Act has been positively confirmed here, and that the appellant's challenge to the validity of the relevant statutory instrument has altogether failed.

[31] In any event, turning to the ordinary practical realities of the situation, we consider that the evidence led by the Crown at the trial was amply sufficient to entitle the Justices to hold, as they did, that the relevant stretch of the A74(M) was a motorway for the purposes of the speed limit regulations on which the charge was based. Two experienced local police officers gave evidence to that effect, by reference to signage and other features, and in our opinion this evidence, if accepted, was of itself a sufficient basis for the conclusion reached. It would moreover have been within the judicial knowledge of local Justices (and indeed of any court in Scotland) that the M74/A74(M) is a major motorway, and in that connection we would endorse the comments made by the court in Donaldson v Valentine 1996 S.C.C.R. 374 to which reference is made in the stated case. In circumstances similar to the present, the court said:

"We are satisfied, however, that the Justices were entitled to rely on the evidence of the two police constables. They stated that the road in question was the M9 and that it was a motorway with a 70mph speed limit. Their evidence to that effect was not challenged. That evidence thus became part of the evidence in causa upon which the Justices were entitled to rely. Furthermore, the Justices were entitled to hold it within judicial knowledge that the prefix 'M' on "M9" denoted a motorway. Moreover, we think that the principal omnia rite acta praesumuntur provides a further answer to the appellant's contention that the various statutory requirements necessary to make the road a motorway had not been observed. It follows that there was sufficient evidence before the Justices to entitle them to hold that the stretch of roadway was part of the motorway."

Here the suffix "(M)" in "A74(M)" is similarly known to denote motorway status, and in our judgment it would have required the most convincing and cogent proof to warrant the Justices reaching any contrary conclusion. In this context, the extreme consequences of the appellant's contentions would in our view require to be taken into account, namely the potential invalidation of (i) all statutory instruments made under section 7(6) of the 1984 Act, and (ii) all related convictions for motorway offences over the last two decades or more. While such considerations would not of course be an absolute bar to sustaining a challenge held to be well-founded, they must in our view represent powerful reasons why the appellant's contentions should not lightly be upheld.

[32] Finally, on the matter of the Crown's procedural objection based on section 144(4) and (5) of the 1995 Act, we are not persuaded that this would be an appropriate basis on which to determine the present appeal. In other circumstances the Crown's objection might have had considerable force, as in the case of MacQueen v Hingston, and the point might well be taken that a submission of no case to answer is intrinsically different from an application, on cause shown, for late leave to challenge the relevancy of a complaint. We are, however, conscious that the appellant, although a well known litigant, has no legal qualifications; that he appeared unrepresented before the District Court; that he was de facto allowed to present the substance of many of his present arguments at the closure of the Crown case; that notwithstanding a brief reference to section 144 of the 1995 Act the Procurator Fiscal Depute went on to respond to these arguments; and that the Justices then proceeded to consider and determine them. In these circumstances, we do not consider that this court could properly have contemplated refusing the appeal on purely procedural grounds under section 144(4) and (5) of the 1995 Act if (contrary to the views expressed above) the substantial merits had been determined in the appellant's favour. By the same token, it would in our view be inappropriate to sustain such an objection where the substance of the appellant's contentions has been comprehensively rejected.

4. Disposal
[33] For all of these reasons we shall answer question 3 in the stated case in the affirmative and questions 5, 6, 7 and 8 in the negative; we shall find it unnecessary to answer any of the other questions on which no argument was presented; and on the whole matter we shall refuse the appeal. In doing so, it is worth observing again that this appellant has never stated positively that he was not "speeding" on a "motorway" at the material time. Yet this case has occupied days of evidence and submissions at District and Appellate Court levels. Virtually all of this time, and consequent public expense, has been taken up with the appellant's pursuit of ill-founded technical arguments in respect of an offence which ultimately attracted a modest fine and the minimum number of penalty points. Such misuse of the legal process is not acceptable. We hasten to add, however, that these comments are made with no disrespect at all to the counsel who ultimately presented the appeal (for which leave was granted at second sift) with admirable economy and skill.