APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Brodie	[2012] HCJAC 148 XJ174/12     OPINION OF THE COURT   delivered by LORD BRODIE   in   APPEAL AGAINST CONVICTION BY WAY OF STATED CASE   by   RICHARD ANDREW WILSON Appellant;   against   PROCURATOR FISCAL, KILMARNOCK Respondent: _____________

 

Appellant: Iain Paterson, Sol Adv; Paterson Bell, Solicitors;

Respondent: Scullion, AD; Crown Agent

 

 

11 October 2012

[1] This is an appeal by way of Stated Case by Richard Andrew Wilson who, on 7 March 2011, was convicted after trial in the Justice of the Peace Court at Kilmarnock in the following terms:

"on 3 March 2010 at A71 Kilmarnock bypass near to Campbell Street, Kilmarnock you Richard Andrew Wilson did drive a motor vehicle, namely motor car registered number BL05WVS, at a speed exceeding 50 miles per hour, namely at a speed of 63 miles per hour; CONTRARY to the East Ayrshire Council (Route A71 Bellfield Interchange Roundabout to Moorfield Roundabout Kilmarnock) (50 mph speed limit) Order 2007 and the Road Traffic Regulations Act 1984 Section 84 and 89."

 

[2] On 16 May 2011, exceptional hardship having been established, the Justices imposed a fine of £180 to be paid in instalments of £20 per week commencing on 23 May 2011, imposed 3 penalty points and ordered endorsement of the appellant's driving licence.

[3] On 19 May 2011 the appellant craved the Justice of the Peace Court to state a case for the opinion of this court. The Stated Case, as adjusted, contains the following findings in fact.

"1. The accused Richard Andrew Wilson was driving on the A71 westwards between Bellfield Interchange and Moorfield Roundabout at around 22.07 hours on 10 March 2010.

 

2. The accused was driving a black Jaguar car registration number BL05 WVS at that time.

 

3. Officers Hunter and Norwood were parked on the slip road to join the A71 westbound carrying out speed checks when the accused's car came to their attention.

 

4. The speed limit for that section of roadway is 50 mph and this was clearly marked at the entrance to the road from the Bellfield Interchange and confirmed along the road with repeater signs.

 

5. PC Norwood was operating a Unipar SL700 speed detection device, serial number SL 70 707. This was within the calibration period required by the manufacture and is a type approved device. Calibration checks on the device were also carried out by him in the presence of PC Hunter at Ayr Police Office at the start and end of shifts that day.

 

6. The accused's car was detected by the Unipar device as travelling at 63 mph away from the officer's position.

 

7. The police officers carried out a visual inspection of the signage on that length of road and were satisfied there were adequate repeaters. This was confirmed to them by a traffic management officer from Strathclyde Police. Further, following an enquiry about the signage, investigations were made into the signage and the police satisfied that the signs complied with all legal requirements.

 

8. After being stopped the accused was cautioned in terms of section 1 of the Road Traffic Offenders Act.

 

9. The accused was convicted previously of speeding on the same stretch of road, that incident taking place three weeks prior to the date of this incident. The accused would therefore have been aware of what the police state the speed limit of this road is."

 

[4] There are five questions stated for the Court, but Mr Paterson who appeared on behalf of the appellant confirmed that questions 1 and 2 were no longer in issue and accordingly we do not address ourselves to these questions. Questions 3, 4 and 5 are as follows:

"3. Was the Court entitled to repel the submission of no case to answer made by the defence?

 

4. Was the Court correct in determining that there is no prescribed distances for speed limit repeater signs?

 

5. On the facts stated was the Court entitled to convict the appellant?"

 

These three questions are conveniently considered together. They relate to the application, in the circumstances of the case, of section 85 of the Road Traffic Regulation Act 1984.

[5] In this case the traffic authority for the length of road in question is the East Ayrshire Council. As it is empowered to do by sections 14(1) and 84(2) of the 1984 Act, the Council has, by the 2007 Order which is referred to in the complaint, made the length of road there specified a restricted road, as that expression is to be understood in terms of the 1984 Act, in respect of which the driving of motor vehicles at a speed in excess of 50 miles per hour is prohibited. Accordingly, a person who drives a motor vehicle on that road in excess of that speed commits an offence in terms of section 89(1) of the 1984 Act. That is the offence of which the appellant has been convicted. That he drove on that road at such a speed is not now in issue. What was put in issue in this appeal is whether the Justices were entitled to be satisfied that the 50 miles per hour speed limit as applying to that road was properly indicated by traffic signs. Before the Justices it had been argued on the appellant's behalf that the repeater signs, between the sign indicating the beginning of the restricted road and the sign indicating the end of the restricted road, had to be no more that 450 metres apart on alternate sides of both carriageways. That argument was not insisted upon by Mr Paterson and indeed he accepted that it involved an unsupportable proposition of law. Nevertheless Mr Paterson did submit that there had been insufficient evidence led to entitle the Justices to conclude that the speed limit had been indicated by adequate signs.

[6] Although the provisions do not appear from the terms of the Stated Case to have been mentioned in the course of the discussion of the submission made under reference to section 160 of the Criminal Procedure (Scotland) Act 1995 that there was no case to answer, or during submissions after the close of the defence case, as Mr Paterson confirmed, the provisions contained in section 85(1), (2), (4) and (7) of the 1984 Act are of particular relevance. These provisions are in the following terms:

"(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) ... 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

 

...

 

(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 (2) above.

 

...

 

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

 

[7] Thus, the power of the Secretary of State to give general directions under subsection (2) of section 85 is only exercisable by statutory instrument albeit that it is open to him to give "other" directions. The general directions are to be found in Part 2 of the Traffic Signs Regulations and General Directions of 2002, SI 2002/3113. Quite separate from this statutory instrument containing the general directions given by the Secretary of State is a larger document, the Traffic Signs Manual. The Traffic Signs Manual is published by the Department of Transport (on its behalf and on behalf of, among others, the Scottish Ministers) in order to advise traffic authorities on the use, siting and illumination of traffic signs. It was first published in 1982 and amended in 2004. Mr Paterson lodged with the Court what was an eighth impression dated 2009. The Manual is divided into various chapters. Chapter 3 is concerned with regulatory signs, of which speed limit signs, discussed in section 14 of the chapter, are examples. The Justices' and our attention was directed to paragraph 14.21 and the associated table 14-2, which give advice on repeater signs indicating maximum speeds. As appears from the stated case, the argument before the Justices was that there was an obligation on the traffic authority to place repeater signs at the distances specified in table 14-2 and as the evidence had not established beyond reasonable doubt that repeater signs had been placed at no more than that distance apart on the road in question the appellant should be acquitted. When the Justices inquired as to what was the legal status of the Manual the defence agent indicated that "he understood it to be a statutory instrument which he had downloaded from a government website".

[8] The Justices rejected the submission on behalf of the appellant that traffic authorities were bound by the terms of the Manual and, in particular, bound to place repeater signs at the distances recommended in table 14-2. In our opinion they were right to do so and Mr Paterson accepted that. The objective of the Department of Transport in publishing the Manual appears from the introductory paragraph to section 1 of chapter 3. The paragraph is in the following terms:

"1.1 The Traffic Signs Manual is intended to give advice to traffic authorities and their agents on the correct use of signs and road markings. Mandatory requirements are set out in the current version of the Traffic Signs Regulations and General Directions; nothing in the Manual can override these. The advice is given to assist authorities in the discharge of their duties under section 122 of the Road Traffic Regulation Act 1984 and Part 2 of the Traffic Management Act 2004. Subject always to compliance with the Directions, which, except in Northern Ireland, are mandatory (see para 1.4), it is for traffic authorities to determine what signing is necessary to meet those duties, although failure to follow the Manual's guidance without good reason might well lead to enforcement difficulties. In particular, adjudicators might consider such failure to be evidence that the signing was unclear. Traffic authorities should always remember that the purpose of regulatory signs is to ensure that drivers clearly understand what restrictions or prohibitions are in force."

 

Thus, what the Manual contains is advice addressed to traffic authorities. What appears in the Manual is not necessarily mandatory and certainly nothing it contains is mandatory simply by virtue of appearing in the Manual. Contrary to what would appear to have been stated by the appellant's agent before the Justice of the Peace Court during closing argument, the Manual is not a statutory instrument. Certain parts of the Manual may reflect the terms of general directions (which are mandatory) but not everything in the Manual is a general direction.

[9] As is provided by section 85(4) of the 1984 Act, a person shall not be convicted of driving at a speed exceeding the limit unless the limit is indicated by means of traffic signs in such positions as may be requisite in order to give effect to general directions given by the Secretary of State for the purpose. Agreeing with the Justices, the only general direction which is of relevance to the siting of repeater signs is direction 11(2), which is in the following terms:

"(2) Subject to paragraphs 3 and 4, signs to which this paragraph applies shall be placed at regular intervals along a road which is subject to a restriction requirement, prohibition or speed limit which can be indicated by these signs."

 

[10] In our opinion, that was the only requirement which applied to the repeater signs situated on the relevant length of road. Mr Paterson, in the course of a rather different submission to that which had been deployed before the Justices, suggested that having regard to the terms of section 85(1) there was an additional requirement of "adequacy" of traffic signs and, whereas the Traffic Signs Manual did not have a statutory effect, it was to be regarded as an indication as of what might be adequate.

[11] We do not accept this submission. In terms of section 85(4) of the 1984 Act 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 section 85(2). "Such traffic signs as are mentioned in section 85(2)" are "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 [section 85(1)]". The purpose for which the Secretary of State may give directions under section 85(1) is to secure that adequate guidance is given to drivers of motor vehicles as to what limit of speed is to be observed but what amounts to adequate guidance is a matter for the Secretary of State. Contrary to what Mr. Paterson appeared to be suggesting, section 85(1) does not have the effect of imposing a requirement of "adequacy" of traffic signs over and above the requirement that traffic authorities should comply with the Secretary of State's directions. Putting it slightly differently, subject only to circumstances such as obtained in Smith v Rankin 1977 SLT 12 where a sign required by the general directions has become obscured or displaced, if the requirement to follow a general direction is met we do not consider that it can be argued that nevertheless adequate guidance was not given.

[12] In the present case there was evidence from PC Hunter that there were repeaters all along the east and west carriageways of the road, and there were big "50 signs", as he put it, as the driver comes off each roundabout on both carriageways. The signs complied with the officer's understanding of the Road Traffic Regulations albeit that this view was based on his reliance on advice given to him by Strathclyde Police Traffic Management Officer Constable Phillips and East Ayrshire Council. According to PC Hunter someone had recently brought up the subject of signs on this length of road and they were found to comply. His view was that there was ample signage along this stretch of road. PC Norwood gave evidence that there were speed limit signs at each roundabout with repeaters all along the road albeit that he could not speak the precise distance between the repeaters. When asked about the distance between repeaters he indicated that it was maybe a couple of hundred metres. That in our opinion was sufficient evidence that the repeater signs were placed at regular intervals. There was no need to prove the exact distance between repeaters or indeed that they were sited at precisely the same distance apart. The Justices were accordingly correct to repel the submission of no case to answer.

[13] Defence evidence was led both from the appellant and a friend who was familiar with the road. There was reference to some photographs. It does not appear that that evidence challenged the police evidence that there were repeater signs positioned along the length of the road.

[14] Having regard to the whole evidence in the case it is our opinion that the Justices were entitled to find the charge proved and therefore in respect of each of the questions which we have been asked to consider, that is (3), (4) and (5), the answer will be in the affirmative and the appeal is refused.