Director of Public Prosecutions v Wells & Anor [2007] EWHC 3259 (Admin)

[2007] EWHC 3259 (Admin)

Case No CO/6337/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 12th December 2007

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE BURTON

Between

DIRECTOR OF PUBLIC PROSECUTIONSClaimant

Between

WELLSDefendant

HALLIWELLDefendant

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Mr M Forster (instructed by CPS Southampton) appeared for Claimant

Mr M D Laprell (instructed by Blake Lapthorn Tarlo Lyons) appeared for Defendants

J U D G M E N T

[1]MR JUSTICE BURTON: On 9th October 2004 the first respondent, Mr Wells, was driving along the A23 Redbridge Road in the Southampton area at a speed which exceeded the temporary speed limit imposed by the city of Southampton (Millbrook and Redbridge Flyovers) Temporary Traffic Regulation Order 2004 ("the 2004 Order") and his speeding was captured on a speed camera. On 16th October 2004 the second respondent, Mr Halliwell, suffered the same fate.

[2]The 2004 Order was made by the local authority, but pursuant to the provisions of s14 of the Road Traffic Regulation Act 1984 (“the 1984 Act”) which reads in material part:

"14. (1) If the traffic authority for a road are satisfied that traffic on the road should be restricted or prohibited -- (a) because works are being or are proposed to be executed on or near the road; or (b) because of the likelihood of danger to the public, or of serious damage to the road, which is not attributable to such works . . . . the authority may by order restrict or prohibit temporarily the use of that road, or of any part of it, by vehicles, or vehicles of any class, or by pedestrians to such extent and subject to such conditions or exceptions as they may consider necessary."

At subsection (4) the section continues:

"The provision that may be made by an order or notice under the foregoing provisions is . . . (b) any provision restricting the speed of vehicles . . . "

It is plain, because I have not recited the entirety of s14, that there is a number of other restrictions which can be and are imposed or which result in orders made by the local authority pursuant to s14. One of those restrictions is a provision restricting the speed of vehicles.

[3]On 24th July 2006, the first respondent was convicted by a District Judge as a result of a charge against him under s89(1) of the 1984 Act, the same Act as contains s14. S89 reads, in material part, as follows:

"89. (1) A person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence. (2) A person prosecuted for such an offence shall not be liable to be convicted solely on the evidence of one witness to the effect that, in the opinion of the witness, the person prosecuted was driving the vehicle at the speed exceeding a specified limit. (3) The enactments to which this section applies are -- (a) any enactment contained in this Act except section 17(2) . . . "

I shall return to s17(2) later in this judgment.

[4]On 5th September 2006 the second respondent was convicted by a District Judge, having been charged similarly under s89 with driving a motor vehicle on the road at a speed exceeding the limit imposed by or under any enactment to which s89 applied, as defined in subsection 89(3)(a), to which I have referred.

[5]Both respondents appealed to the Crown Court at Southampton. On 5th March 2007 His Honour Judge Milligan and two lay Justices determined a preliminary issue, leaving aside other issues of fact and law which might have led to the appeal being successful, but concentrating only on the point which has now come before us by way of case stated, on an appeal by the prosecution. That preliminary issue was whether the respondents had been properly charged under s89 of the 1984 Act, to which I have referred, or whether they should have been charged under s16 of the same Act. S16 reads as follows:

"16. (1) A person who contravenes, or who uses or permits the use of a vehicle in contravention of, a restriction or prohibition imposed under section 14 of this Act shall be guilty of an offence."

[6]The basis of the appeal was thus that the respondents had been incorrectly charged and, if successful, as they were before the Crown Court, that would mean that they must be acquitted on the charges laid against them under s89 and it would be by then too late for them to be charged under what was concluded by the Crown Court to be the correct provision, namely s16.

[7]There is no substantive difference now in the effect of the two offences. Both offences carry the same penalty as a result of amendments to Schedule 2 of the 1984 Act which came into force in 1992. The penalties under both offences are identical in terms of maximum fine, in terms of endorsement and in terms of penalty points. Both offences now, as a result of an amendment to the Road Traffic Offenders Act 1988, which came into force again in 1992, require there to have been a notice of intended prosecution. The one difference between the two sections which appears to continue is that whereas there is an express provision in respect of any charge under s89 requiring corroborative evidence if the only evidence is the opinion of a witness that the person prosecuted was driving the vehicle at an excessive speed, there is no such requirement under s16. In practice, that is wholly unlikely to be a material difference because of the existence of speed cameras in almost all cases, I suspect. But in any event, if there is a difference, it means that it is better and fairer for a motorist to be charged under s89 which has that requirement. That is the section that the prosecution in this case did adopt, so that the motorists in this case were to that extent advantaged.

[8]The reason for the appeal, of course, is the fortuitous nature of the facts to which I have referred; namely that, if they are successful, it will now be too late for them to be charged under what they would submit to be, and what the Crown Court has found to be, the correct section. It is fairly described by counsel for the respondent, Mr Laprell, who has argued the matter very forcefully but also frankly before us, as an opportunistic appeal. Opportunistic it may be, but it is said by Mr Laprell to be a necessary result (and the Crown Court so found it) of a decision of this Divisional Court in Platten v Gowing

[1982] 4 Cr.App.R (S) 386

, by which he submitted the Crown Court was bound, and we, although not necessarily bound, would be heavily persuaded. It is upon Platten alone, and not any underlying merit, all such merits being left no doubt to the Crown Court for further consideration if this preliminary issue is unsuccessful, before us.

[9]At the time of the decision in Platten v Gowing in 1982, the relevant statute was the predecessor to the 1984 Act, the Road Traffic Regulation Act 1967 (“the 1967 Act”). The equivalent of sections 14 and 16 under the 1984 Act was s12 of the 1967 Act, which read as follows:

"12. (1) Subject to the provisions of this section, if a highway authority are satisfied that traffic on a road should, by reason of any works being executed or proposed to be executed on or near the road, be restricted or prohibited, they may by order restrict or prohibit the use of that road ..."

Subsection (4) was, in material terms, the same, but subsection (9) included what is now a separate section in s16 of the Act, namely reading as follows:

"A person who uses or permits the use of a vehicle in contravention of a restriction or prohibition imposed under this section shall be liable on summary conviction to a fine not exceeding £20."

That was a specifically dedicated penalty, not of course including any provision for endorsement of licence or any other penalty.

[10]The relevant equivalent section to s89 of the 1984 Act was s78A, and s78A of the 1967 Act was identical to s89, except for the fact that it did not have the following words contained in it, which are now in subsection (3) of the 1984 Act, which I have read, namely the words "except section 17(2)" at the end of s89(3)(a). That is a material difference, as I shall explain later in this judgment. But with the exception of that difference, there was no difference in the wording of the general scope of old s78A and new s89.

[11]The facts in Platten do not wholly clearly appear from the report to which I have referred. The headnote reads as follows:

"The offence of using or permitting the use of a vehicle in breach of a temporary speed restriction imposed under [the 1967 Act] section 12, is not subject to the maximum penalty provided by [the 1967 Act], section 78A, for exceeding a general speed limit (namely, a fine of £100 and compulsory endorsement)."

The facts are set out in the headnote by reference to the driving of the car by the respondent, which was subject to a temporary speed restriction under s12 of the 1967 Act, at a speed in excess of the temporary limit but within the general speed limit for the road, and the fact that the Magistrates imposed a fine of £20 which was the maximum fine under s12(9) of the Act. The headnote continues:

"The appellant appealed on the ground that the maximum penalty for the offence was that provided by Road Traffic Regulation Act 1967, section 78A, namely a fine of £100 and mandatory endorsement."

The headnote describes the result as being:

"The offence of driving in excess of a temporary speed restriction was not the same as driving at a speed in excess of the general speed limit, and the maximum penalties for that offence did not apply to driving in excess of a temporary speed limit."

[12]The judgment which was given on behalf of the Divisional Court by Ackner LJ, seemingly as the judgment of the Court consisting of himself and Webster J, does not make the facts any clearer. It recites that Mr Gowing understandably anticipated that he would not be exposed to a fine exceeding £20:

[13]“His understanding of the law was shared by the justices for the County of Norfolk … who fined him £20. This did not, however, satisfy Mr Platten, the police inspector of the Norfolk Constabulary, who appeals against their decision by way of case stated. He contended that the maximum penalty for breach of a speeding restriction under section 12(2) is that contained in section 78A of the 1967 Act, namely £100 plus compulsory endorsement.”

[14]It appears almost certain, and I believe it to be the case, that what had occurred here is that Mr Gowing was charged under s12, as provided in s12(9), and that once convicted he was sentenced under s12(9) by the Justices, but that the prosecuting authority said that once he had been convicted under s 12, s78A should govern the sentence to be imposed. It was that which was rejected by the Divisional Court. It does not suggest anywhere, either in the headnote or in the full report of the judgment, that what had occurred was that Mr Gowing was prosecuted under section 78A and should not have been. It appears to me that all that occurred was that he was prosecuted under s12 and that the prosecution sought to say that there should then have been a penalty imposed under s78A.

[15]Mr Laprell has argued that if matters were as simple as that, all that Ackner LJ would have needed to say would have been that Mr Gowing, having been charged under s12, should have been sentenced under s12. But it is quite apparent to me that the prosecution were submitting that, because section 78A applied, consequently once there had been a conviction for a speeding offence, it was the sentencing provision of section 78A which was to be applied. It was that which was rejected by the Divisional Court. However, I shall return later in this judgment to what, if anything, hangs upon that view of the facts.

[16]The important point is that what Mr Laprell heavily relies upon is the reasoning of the Divisional Court in that case. That is contained concisely in the following paragraphs in the judgment.

[17]“If the temporary speed restriction amounts to a speed limit imposed by any enactment contained in the 1967 Act, then Mr Gowing would be subject to alternative penalties. This would indeed be a very odd situation.

[18]We consider the answer to this problem, as indeed did the magistrates, to be quite a simple one. Section 12 is dealing with temporary restrictions, including temporary speed restrictions, and it provides its own code for the breach of the restrictions. The fact that the maximum of £20 may appear nowadays to be a very modest maximum penalty had occurred to Parliament, who are currently proposing … to increase it to £200.

[19]In our opinion there is a clear distinction to be drawn between a temporary speed restriction lasting only a matter of days and the more general speed limits created by sections 71, 74 and 78.

[20]It is, of course, obvious that the temporary speed restriction must always be lower than the relevant general relevant speed limit, otherwise there would be no necessity for the restriction. It is equally obvious that a person may so excessively exceed the temporary restriction as to exceed also the relevant general speed limit. In such a situation he will have committed two offences and the prosecuting authorities, providing that they have given the appropriate warning and that corroborative evidence exists, may proceed under section 78A if so minded. We need hardly add that if the driver drives in excess of the temporary speed restriction in such a manner that is either dangerous or careless, then the prosecuting authorities can proceed in respect of careless or dangerous driving as they think the evidence justifies.

[21]We are accordingly quite satisfied that Parliament was deliberately making the distinction between temporary speed restrictions imposed by virtue of section 12(2), the breach of which is punishable by section 12(9), and general speed limits created by sections 71, 74 and 78 in respect of which different procedures a higher standard of proof and more severe penalties are provided.”

[22]The appellants, for whom Mr Forster has appeared, as he appeared below, submit that what Ackner LJ described as the "very odd situation" is now resolved. The justification for Platten is gone. There is now no different penalty for breach of the one section and the other. They are now identical, as indeed is the requirement for a notice of intended prosecution. He further submits that the correct approach, in which this point has never been taken to the contrary, is exemplified by two recent decisions: one a decision of this court per Schiemann LJ and Astill J in Wawrzynczyk v Chief Constable of Staffordshire Constabulary, reported in the Times Law Reports, March 16th 2000, in which there was a conviction of the motorist for exceeding the speed limit contrary to a speed restriction order made under s14 of the 1984 Act, and contrary to ss54(1) and 89(1) of the Act, ie, a situation in which the allegation of fact was there had been a breach of the temporary speed limit and the offence was charged and convicted under the general speeding offence section, s89. Although other points were taken, none was taken in relation to the relevance of Platten. The fact that the point was not argued does not automatically suggest that Platten is consequently wrong, but it does illustrate, Mr Forster submits, the perfectly satisfactory way in which, as a matter of common sense, s89 is and can be enforced. He also refers to another decision of the Divisional Court, DPP v Evans, CO/2785/2004, where parallel operation of two different provisions of the Act was accepted as perfectly normal.

[23]Mr Forster submits in any event that s16 is not in any way duplicative of s89, in so far as it remains on the statute book, because it will apply to prosecution in relation to breaches of other restrictions than those relating to speeding, which would not be covered by s89. He also relied on the additional words of s89, to which I referred earlier, to point out that s17(2), which is specifically excepted by the 1984 Act, by s89(3), is a section which was in fact in the 1967 Act in the form of s13, and remains almost unchanged in the 1984 Act. It relates to temporary speed restrictions, among other matters. As he submits, if it had not been thought by Parliament that it would otherwise fall within s89, albeit that it related to the prosecution of temporary speed restrictions, there would have been no need to make the specific exemption for it which Parliament so made.

[24]Mr Laprell submits that Platten is still binding, and that the most recent editions of Wilkinson on Road Traffic Offences record its applicability and do not suggest that it was wrongly decided. He also points to the fact that in the Road Traffic Offenders Act 1988, as amended in 1992 so as to introduce the requirement for notices of intended prosecution across the board in respect of offences of speeding, there was specific provision made in s1A in respect not only of s89 but separately in respect of ss16 and 17.

[25]I am, as I indicated earlier in the judgment, entirely satisfied that in the Platten appeal all that was effectively necessary to be decided by the Divisional Court related to the facts of that case, in which the motorist appears to me to have been charged under s12, which contained s12(9), and sought to be sentenced, on the prosecution case under s78A. That is a very different situation from that with which we are dealing. In this case the motorist was charged under s89A and is sought to be sentenced under s89A, the underlying breach being that of s14. The equivalent to a Platten situation would be if he had been charged under s16 of the 1994 Act and was sought to be sentenced under s89. In this case he was charged under s89 and will be sentenced under s89, and it is the motorist who is saying that he should have been charged under s16. That is entirely different, in my view, and, to put Platten in modern terms, if you are charged under s16 you must be sentenced under s16.

[26]In so far as the Divisional Court in that case went further, and said that the motorist could not have been charged under the then equivalent of s89, then such remarks were, in my judgment, obiter. Included in those obiter remarks would be Ackner LJ's view that if a motorist were, by one and the same act of driving, exceeding both a temporary and a permanent speed limit he could be charged with two offences. He states:

"It is equally obvious that a person may so excessively exceed the temporary restriction as to exceed also the relevant general speed limit. In such a situation he will have committed two offences . . . "

This to my mind is not at all obvious. Indeed, I see it as the reverse of what would be appropriate or obvious. The overwhelmingly likely situation would be, as it was in the case here, that once a temporary speed limit is imposed the higher speed limit is either expressly or impliedly suspended or irrelevant. Of course, there will be a higher penalty no doubt imposed in respect of a speed which is so great not only as to exceed the temporary speed limit but such that it also exceeded the general speed limit, had the general speed limit been in place. But it seems to me not only unlikely to arise but inappropriate, in respect of the same piece of driving, for a motorist to be charged with breaching two different speed limits, only one of which was in fact in place at the time.

[27]It is, in my judgment, a much more straightforward answer, rather than suggesting that both offences could be charged in appropriate cases, simply to say that both offences are available to be charged as alternatives. But it is plainly tidier and more sensible to deal with all questions of speeding under s89 where there is, in any event, the express protection of the motorist by virtue of the need for corroboration.

[28]Further, contained in the remarks of Ackner LJ, which would in my judgment thus be obiter but which would, in any event, appear to have been per incuriam, by virtue of the absence of reference to any of the other sections which appear to me to be necessary to consider before such conclusions could be reached, is the suggestion that there was some different regime applying as between temporary restrictions and general limits.

[29]Temporary or Permanent.

[30]The first basis of differentiation must relate to the suggestion that there is a difference between a temporary restriction or limit and a general one, which Ackner LJ drew by reference to the difference between s12 and the sections which dealt with general speed limits.

[31]There was, however, and still is, a number of other sections in the Act, apart from s12, dealing with temporary restrictions or limits. The most obvious one is s17, to which I have already referred, which was s13 at the time of Platten. That relates to temporary limits, by virtue of regulations which may be made by the Secretary of State with respect to the use of special roads. There is also s88 of the 1984 Act, headed up in our statutory form, "Temporary speed limits". That relates to a situation in which it appears to the Secretary of State desirable, in the interests of safety or for the purpose of facilitating movement of traffic, to impose either under subsection (a) a temporary speed limit or, in some cases, under subsection (b), a temporary minimum speed. That was s77 in the 1967 Act. Both the offence under s17 (s13 as it would then have been), but for the now exemption in the new Act, and the offence under s88(1)(a) (which was then s77(1)(a)) would have been, and would have only been, prosecutable under s78A (now s89), although s17 is now specifically excluded from s89.

[32]It is thus plain that, as looked at by Ackner LJ at the time, had there been consideration of these other sections it would have been apparent on any basis that s78A would have been the relevant section, and indeed the only available section, for the purpose of prosecuting at least some other temporary speed restrictions.

[33]Restriction or Limit

[34]The alternative, as Mr Laprell submits to us, is not to regard Ackner LJ as distinguishing between a temporary and a permanent regime, in his view that there was a different regime for temporary restrictions as against permanent limits, but to concentrate on his use of the words "restriction" and "limit" so that he could thus have been interpreted as having concluded that there was a different regime for restrictions as against limits. That, again, was clearly not fully argued before him and any conclusion can be -- and in my judgment should be -- regarded as per incuriam if it was not obiter.

[35]There is, in my judgment, no justification for a distinction that can be drawn out of the 1984 Act between speed restrictions and speed limits. A number of sections have been carefully considered, at the instance of both counsel. S17(2), to which I have already referred as being the specific exemption under s89, provides (inter alia) in subsection (2)(c) how the regulations which the Secretary of State may make with respect to the use of special roads may, in particular, relax, or enable any specified authority to relax, any prohibition or restriction imposed by the regulations. By s85(6) there is a provision relating to where by regulations made under s17(2) of the Act a “limit” of speed is to be observed. To that extent it would appear that "restriction" and "limit" are being used interchangeably in respect of s17. There is no justification, in my judgment, for considering that restrictions on speed imposed pursuant to s14 are different in character from speed limits.

[36]Mr Forster has persuasively referred us to s87 of the 1984 Act which provides:

"No statutory provisions imposing a speed limit on motor vehicles shall apply to any vehicle on an occasion when it is being used by for fire and rescue authority, ambulance or police purposes, if the observance of that provision would be likely to hinder the use of the vehicle for the purpose for which it is being used on that occasion."

Mr Forster submits that if the word "limit" is only intended to refer to the general speed limits, and not to temporary speed restrictions, then that would mean that there is no protection under the Act in respect of an ambulance exceeding a speed in a temporary speed restriction area, but only an exemption for exceeding the speed in a speed limit area. There is, in my judgment, no conceivable basis for distinguishing between the words "limit" and "restriction" which are liberally strewn throughout the Act and interchangeably, in my judgment, unless the restriction is wider than limit which is also an acceptable possibility.

[37]Mr Laprell sought to submit that it might be that some distinction could be drawn between restrictions or limits that were imposed by local authorities as compared with those that were imposed by the Secretary of State, but I see no basis whatever for either assumption.

[38]In those circumstances, there was no justification for the way in which the Divisional Court in Platten sought to avoid what was otherwise the plainest terms of s78A of the 1967 Act which, it is to be recalled, specifically said that a person who drives a motor vehicle on a road with a speed exceeding a limit imposed by or under any enactment to which the section applies will be guilty of an offence -- that is an offence under s78A -- and that any enactment was defined as any enactment contained in the Act. In order to avoid those very clear words, the Divisional Court had to construct these alleged two different regimes for which I, for my part, see no justification.

[39]If however that was the law as a result of the Divisional Court decision in 1982, in my judgment it was no longer the law after the 1984 Act was passed. Parliament must be taken to know the law, and to have been faced with a situation in which the clear words of s78A(2)(a) had been construed as in some way limited -- in some very unclear way, because it does not seem to have been an exclusion only in respect of s12, but rather in respect of some inherent group of provisions imposing temporary speed restrictions. Parliament took the opportunity to change s89 and to change it in a material way by making it clear that there was an exception to the generality of the words of s89(3)(a), but in respect of one section only, and that was s17(2), not s16 and not s88. That specific legislation, in my judgment, overruled the effect of Platten, if in fact Platten had previously been binding or the Court’s words were anything other than obiter dicta in this respect.

[40]In those circumstances, I do not consider that this court is bound by Platten, either because it is no longer the law or because it was per incuriam on the basis of the construction, not fully argued before it, of the alleged separate regime or on the basis that the views, powerful and persuasive as they were, of Ackner LJ were obiter. It is quite plain that the Divisional Court was setting out to do justice, and did considerable justice in that case, either on the straightforward basis that someone who was convicted under s12, which contained s12(9) (I interpose that of course now there are two separate sections) should have been sentenced under s12(9), or on the more general basis that it was unfair where there was a specific lesser penalty, and one which had been clearly considered by Parliament, that a higher penalty should be sought to be imposed upon them. That logic is no longer necessary now. The Wawrzynczyk logic appears a perfectly satisfactory one and the penalties are no different. As I said earlier, if anything, prosecution under s89 is more favourable to a motorist than under s16.

[41]In those circumstances I have no hesitation in allowing this appeal, the consequence of which of course will be that the text of Wilkinson will need to be reconsidered.

LORD JUSTICE MAURICE KAY: I agree with Burton J in his identification of the ratio in Platten v Gowing and with his approach to the obiter passages. Those passages do not seem to me to address the entirety of the statutory material with which we are now concerned. Notwithstanding the eminence of the members of court in Platten, I too decline to follow their obiter remarks in this case. They are not determinative of the present case. For these and for the other reasons given by my Lord, I too would allow this appeal.

[43]The case stated raised these two questions for the opinion of this court:

"(1) Was the court wrong in law to rule that no prosecution can lie under section 89 of the Road Traffic Act 1984 for exceeding -- (i) a temporary speed limit; and/or (ii) a temporary speed restriction imposed by an order under section 14(1) of the same Act? (2) Was it wrong in law to rule that the court was bound by the decision of the High Court in the case of Platten v Gowing to rule that no prosecution can lie under section 89 of the Road Traffic Regulation Act 1984 for exceeding -- (i) a temporary speed limit; and/or (ii) a temporary speed restriction imposed under section 14(1) of the same Act?"

It follows from what we have said that the answers to both questions are in the affirmative. If Mr Wells and Mr Halliwell wish to pursue the balance of their appeal to the Crown Court, it will now be necessary for the Crown Court in Southampton to resume with the hearing of that appeal. Thank you both very much.

[44]Mr Laprell, could you assist in that regard? Do you take it as read that both appeals will be pursued?

[45]MR LAPRELL: The court has given a legal ruling, but of course it has a discretion as to what action it directs should follow from the ruling. The reality is that the driving in both of these cases was October 2004. Any consequence in terms of points on the licence will already disappear three years thereafter in October 2007. Accordingly, what is actually at stake now in these two appeals, which occupied at first instance the time of the District Judge for eight days and was provisionally going to be set down in the Crown Court when all matters and all evidence were live for happily a shorter period than that but still the best part of a week, because there are also some issues about the quality of the signing.

LORD JUSTICE MAURICE KAY: Maybe there were, but I am astonished that the cases should have occupied that much time.

[47]MR LAPRELL: I do not want to take up the court's time with going into what the issues in respect of signing are, but this is a complex set of --

[48]MR JUSTICE BURTON: You hinted that something could come out of the difference in the two local orders.

[49]MR LAPRELL: Well, there are two issues remaining. The first is whether the first order includes the slip roads onto the flyover, because if it does not it is relevant to the signing because the photographs of the number plates were actually taken on the main dual carriageway at the top of the slip road. There are regulations about where signing has to be in relation to where the speed limit starts. If the local authority put the signing at the bottom of the slip road then the speed restrictions have to start --

MR JUSTICE BURTON: That may be a better argument than the one which just failed before us today.

[51]MR LAPRELL: If I tell your Lordship that His Honour Judge Milligan provisionally expressed the view that that was a very dubious argument indeed when he canvassed what was still to come. There is a rather interesting argument that might end up in this court call the envelope argument which is that if you create a speed restriction area you have to restrict by signing all the accesses to it, otherwise you will have some motorists who are governed by it and some are not and you reverse the burden of proof by making it up to them to show the court where they came from. That clearly is wrong, we say. If you get very complex junctions, the signing is frequently wrong.

LORD JUSTICE MAURICE KAY: Where are we going? You say the penalty points were imposed when?

[53]MR LAPRELL: The penalty points were imposed by the District Judge in 2006 but they do not run from the date of conviction. They run from the date of commission of the offence.

LORD JUSTICE MAURICE KAY: So at the moment, as a result of our ruling, the penalty points remain. I appreciate three years have gone by but the reality of the conviction and its consequences remain documented.

[55]MR LAPRELL: They remain documented but they --

LORD JUSTICE MAURICE KAY: What are you suggesting we should do?

[57]MR LAPRELL: I take the point. The conviction stands unless the appellants pursue it or the prosecution take a certain view. I accept that. It is not the usual situation in this court where an appeal to the Crown Court is succeeded and the prosecution then can hear, and sometimes it is not necessarily sent back for the matter to be re-heard in the Crown Court. But I appreciate the point. It is different in this situation. I accept that.

LORD JUSTICE MAURICE KAY: So the ball is in your court. That is why I was asking whether your clients will actually be pursuing the balance of their appeal. There are some interesting points you raise. On the other hand, sometimes a point can be reached where people take the view that enough is enough. No pressure from the court, I am simply enquiring so we make the right order.

[59]MR LAPRELL: We will review that but I do not have instructions in relation to it. Accordingly, I think the only order that can be made in the circumstances is that the matter be remitted and the hearing continue.

LORD JUSTICE MAURICE KAY: To Judge Milligan and his two colleagues? There is no opportunity to go to anyone else unless listing makes it impracticable for them to hear it. Should it go back to the court constituted as before to carry on with the hearing or should it go to the listing melting pot in Southampton?

[61]MR LAPRELL: I do not believe there is any reason why it should or why it has to.

[62]MR JUSTICE BURTON: It is two Justices, is it not? Judge Milligan is going to be available, I am sure.

[63]MR LAPRELL: The fact is they did not hear any evidence at all. This was purely legal argument. On one line of authority, my view was that His Honour Judge Milligan could have dealt with it alone. Matters of pure law are matters for the judge alone and the lay Magistrates have to accept the judge's direction.

LORD JUSTICE MAURICE KAY: You would be entitled to remit to Southampton Crown Court so it can be relisted before a judge and lay justices but without restrictions to their identity.

[65]MR LAPRELL: Yes. I suspect it is initially for further directions to take stock of where the case has reached.

LORD JUSTICE MAURICE KAY: Yes. Well, Mr Forster, what do you say about that?

[67]MR FORSTER: My Lord, I agree with that proposition. There is one other issue and that is the question of costs. Those instructing me submitted a statement of costs for summary assessment. I do not know if that has reached your Lordships.

LORD JUSTICE MAURICE KAY: I have seen Mr Laprell's, I do not think I have seen yours. Was it served?

[69]MR FORSTER: It does not seem to have been served.

LORD JUSTICE MAURICE KAY: It is something else I received.

[71]MR LAPRELL: Could I indicate, in any event, because my learned friend may not be aware of this, both the appellants are publicly funded pursuant to an order of Collins J.

LORD JUSTICE MAURICE KAY: That is not necessarily important.

MR JUSTICE BURTON: They have been Legally Aided throughout?

[74]MR LAPRELL: My understanding is that they have and the reason for the delayed skeleton argument was because an extension was required. I think that was granted by Collins J in August.

LORD JUSTICE MAURICE KAY: Do you get Legal Aid in the Magistrates' Court?

[76]MR LAPRELL: My understanding is that because of the exceptional complexity, despite the fact it is a motoring offence for which it is not normally available, there is a discretionary power to grant it given to the Legal Services Commission in cases if you satisfy them on legal and factual complexity.

LORD JUSTICE MAURICE KAY: When they were convicted in the Magistrates' Court what order was made?

[78]MR LAPRELL: There were 89 defendants who were taking the same points, not all of whom gave evidence. My understanding is that the costs were divided between them. There were seven test cases and each of the seven were ordered to pay £28 each. £128.

[79]MR FORSTER: That is the figure I have. Mr Wells was fined £50 and was ordered to pay £128 costs.

LORD JUSTICE MAURICE KAY: Presumably that array of fast drivers some would be affluent, some would be poor, many would be somewhere in between.

[81]MR LAPRELL: Yes.

LORD JUSTICE MAURICE KAY: We know nothing of the means of these two except when he applied for Legal Aid to the Administrative Court he supplied a statement of means. What are you asking for Mr Forster?

[83]MR FORSTER: My Lord, the document which has not been filed asks for a total of £6,383, but that is mainly based on a misunderstanding of the amount of my fees for this hearing. My solicitor's fees, or the cost attributable to my instructing solicitor, is £885. My fees would be £1,760 plus VAT.

LORD JUSTICE MAURICE KAY: So it is about £2,500.

[85]MR FORSTER: Yes, £2,500 exclusive of VAT.

LORD JUSTICE MAURICE KAY: You can only get the costs from the respondent. There is no power for us to award costs out of Central Funds.

[87]MR FORSTER: No.

[88]MR LAPRELL: My Lord, could I invite the court to consider three matters in relation to that. Firstly, I cannot tell your Lordship what the details are but they certainly passed the test to be publicly funded. Secondly, on any view they have taken a point which -- and I appreciate normally costs follow the event and those who live by the sword die by it, I understand that, but nonetheless there was an authority which stated very clearly, according to the editors of Wilkinson --

MR JUSTICE BURTON: Perhaps you can get a contribution from the editors of Wilkinson.

[90]MR LAPRELL: I will try. It is a legal point. It was actively supported for 20 odd years by the editors of Wilkinson. I appreciate they have lost today. One can say that is too bad and those who rely on these points take the risk. The final factor is this. The prosecution's case is that there is no effective difference between the two. This was not an argument that was sprung. It was put in writing to the prosecution in the lower court. There was never an application to amend. If the two are the same, they could just as easily have amended section 16 and gone on and taken the point away from us. Same penalties. They elected not to do that. In those circumstances, they cannot really complain if the point is taken when they could have sidestepped it.

[91]MR FORSTER: My Lord, I submit that that is a thoroughly bad point because the point was raised after the six months, I think, had expired. In any event the prosecution had made a decision to proceed under a section which your Lordships have found no entitlement to proceed under.

[92]MR LAPRELL: My Lord, I am reminded by my instructing solicitor that there are two cases awaiting disposal in the Southampton Crown Court and these two have been taken as the test cases. There are two others already in the Crown Court dependant on it and I think seven others in the Magistrates' Court, so there are a total of 11. Now, this point has been taken on these two because they were listed first. It seems rather harsh if they have to bear all the costs when clearly other cases were depending on it.

LORD JUSTICE MAURICE KAY: All I am able to discover from the Legal Aid forms is that they are both in their mid-60s and it is impossible to deduce what their financial circumstances are. Do you have any instructions, Mr Laprell?

[94]MR LAPRELL: No. I can take instructions.

MR JUSTICE BURTON: Are they in work?

[96]MR LAPRELL: My understanding is that they have both retired.