Director of Public Prosecutions v Butler [2010] EWHC 669 (Admin)

Case No CO/1288/2009[2010] EWHC 669 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 4 March 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE OWEN
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSClaimantv
Between
BUTLERDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR T BRENNAND appeared for ClaimantThe Defendant was unrepresented
J U D G M E N T
[1]MR JUSTICE OWEN: This is an appeal by way of case stated following the decision of the justices for the County of Cumbria sitting as and for the Petty Sessional Area of South Lakeland and sitting in Kendal on 30 October 2008 whereby they dismissed the case against the respondent, Gareth Butler, who does not appear today but from whom we have received written submissions.[2]The respondent was charged with driving a motor vehicle on the A591 at Ings on 5 March 2008 at a speed exceeding 40 miles per hour, contrary to sections 84 and 89(1) of the Road Traffic Regulation Act 1984 and schedule 2 to the Road Traffic Offenders Act 1988. It was not disputed that the respondent was travelling at 46 miles per hour, but the justices dismissed the case on the basis that they were not satisfied that at the time and date in question, the signage on the relevant stretch of the A591 complied with the Traffic Signs Regulations, specifically that the terminal 40mph speed signs were not illuminated. The appellant contends that they were in error in dismissing the case on that basis.[3]The relevant regulation is to be found in schedule 17, item 10, of the Traffic Signs Regulations and General Directions 1994, which provides that:
"1) Where a sign is a terminal sign and is erected on a principal road within 50 meters of a street lamp lit by electricity, shall, throughout the hours of darkness (a) be continuously illuminated by means of internal or external lighting and may also be illuminated by the use of retroreflective material; or (b) while the street lamp is lit, be continuously illuminated by means of external lighting and shall also by illuminated by the use of retroreflective material."
[4]The respondent submitted at trial that the terminal 40mph sign covering the stretch of road in question appeared from the photographic evidence used by the prosecution to be within 50 meters of a street lamp, and that as the A591 at Ings is a principal road within the meaning of the regulations, the terminal 40mph speed signs should be illuminated. He gave evidence that the relevant signs were neither lit nor reflective, and that in consequence he was unaware that he was in a 40 mile per hour limit.[5]The respondent was charged with an offence under section 89 of the Road Traffic Regulation Act 1994, which simply provides that: "A person who drives a motor vehicle on a road at a speed exceeding the limit it goes by or under any enactment which the section applies, shall be guilty of an offence".[6]Under section 85 of the same Act, which addresses traffic signs for indicating speed restrictions, the Secretary of State, or where appropriate the Local Traffic Authority, is obliged to erect and maintain traffic signs "For the purpose of securing adequate guidance as given to drivers of motor vehicles as to whether any, and if so what, limited speed is to be observed on any road". Then, under section 85(4): "Where no such system of street or carriageway lighting as is mentioned in section 82(1) is provided on a road [I interject that that does not apply in this case] but limited speed is to be observed on a road, a person shall not be convicted of driving a motor vehicle on a road at a speed exceeding the limit, unless the limit is indicated by means of such traffic signs as are mentioned in subsection (1) or subsection (2) above".[7]Section 64 of the Act makes general provision as to traffic signs, and provides at subsection (2) that:
"For the purposes of that section, illumination, whether by lighting or by the use of reflectors, shall be part of a type or character of a sign"
. I should add in this context that it appears from the case stated, that at trial the appellant sought to rely upon the deeming provisions in section 36 of the Road Traffic Act 1988. But they relate only to an offence of failing to comply with the directions given by a sign, not to the offence of which the appellant is now charged. Mr Brennand, in his succinct but most helpful submissions to us, acknowledged that that section has no relevance to the instant case.[8]The appellant adduced a witness statement from a Safety Camera Technician Data and Operational Manager, Jan Juel Sjorup. The relevant parts were in the following terms: "On 28 June 2007, I had reason to visit the fixed camera site on the A591 at Ings And photograph a number of road signs in the vicinity as part of a site survey. These images are attached separately and identified as exhibit 1 ... I have attached these separately. I have also consulted with the County Council Highways Department regarding the site, and can confirm that the signage application fulfils the requirements of the Traffic Signs Regulations and General Directions 2002 for a 40mph speed limit".[9]The justices found the following facts: "(a) The respondent was travelling at 46mph in a 40mph speed limit on the A591 road at the time and date in question; (b)(i) The A591 at Ings is a is a (inaudible) or principal road; (b)(ii) At the time of the offence it was dark; (c) The terminal 40mph speed signs were not illuminated; (d) The photographic evidence suggested there was at least one lit street lamp within 50 meters of the terminal sign; (e) On 28 June 2007, all signage on this stretch of road complied with the Traffic Signs Regulations. Therefore the appellant did not adduce any evidence to prove that the signage at the date and time of the offence complied with the Traffic Signs Regulations; and (g) The appellant did not adduce any evidence to explain what type of street lighting was evident (inaudible) if any of that lighting".[10]It is submitted on behalf of the appellant that the justices erred in dismissing the case. Mr Brennand accepted in his skeleton argument that paragraph 8 of the case stated correctly summarised the law as to the illumination of speed signs, but argued that such provisions had no relevance or applicability in the context of the case. He submitted, on instructions, that: "The agreed evidence on the issue was that the signage conformed with the regulations and was legitimate" and further submitted that there was no evidential basis for the justices' conclusion that they could not be sure beyond all reasonable doubt that the terminal signs indicating the speed restriction in question did comply with the Traffic Signs Regulations.[11]Accordingly, two questions were raised by the appeal; first as to the requirements of the regulations relating to the signage in question; and secondly, as to whether there was evidence before the justices that compelled the conclusion that the signage conformed to the regulations, and in particular was properly illuminated on 5 March 2008.[12]As to the first, I am satisfied that, on the material before them, the justices were correct in concluding that regulation 17, item 10 of the Traffic Sign Regulations and General Directions 1994 applied, and that in consequence the signage was required to be illuminated.[13]As to the second, the appellant relied on the evidence of Mr Sjorup; but it is necessary carefully to analyse its content. First, he states that he visited the site on 28 June 2007, 9 months before the alleged offence, as part of his site survey when he took the photographs that he exhibited. However, he does not assert in his witness statement that the signage then complied with the regulations. In particular, he makes no reference to its illumination, and the exhibited photographs, which were taken in daylight, do not help as to that. Secondly, Mr Sjorup states that he had consulted the County Council Highways Department and:
"Confirmed that the signage application fulfils the requirements of the directions for a 40mph speed limit."
[14]Two points arise. First, he does not specify the date on which he consulted the Highways Department. The statement, which was dated 26 June 2008, says that "the signage fulfils [present tense] the requirements", it does not purport to address the condition of the signage, in particular its illumination, in March 2008. Secondly, he asserts, albeit second hand, that the signage fulfilled the requirements of the 2002 regulations for a 40mph speed limit. That does not address the specific issue raised by the respondent, namely whether it fulfilled the requirements for a sign within 50 meters of a street lamp lit by electricity. Thus, the contention that the witness statement from Mr Sjorup amounted to agreed expert evidence that was conclusive as to the critical issue of whether the signage met the regulatory requirements, is simply not made out on a proper analysis of its contents. Indeed, the justices could be criticised for finding that on 28 June 2007 all signage on the stretch of road complied with the regulations; that was not the effect of the evidence given by Mr Sjorup. Of course, such criticism does not assist the appellant.[15]On the other hand, the justices had clear evidence from the respondent that the speed signs were neither lit nor reflective.[16]In my judgment, it was open to the justices to find on the evidence, that the appellant had failed to discharge the burden of proving that the signage complied with the relevant regulations.[17]A further point was taken on behalf of the claimant in the notice of appeal, namely that there was procedural irregularity, in that the justices were referred by their legal assistant to schedule 17, item 10 of the 1992 regulations after they had retired to consider their verdict, without either of the parties being given the opportunity to make submissions as to whether it applied. There is nothing in the point. But in any event, and as Mr Brennand readily acknowledged, this is not a challenge by way of judicial review and this court has no jurisdiction to quash the decision made by the justices on the basis of a procedural irregularity.[18]For those reasons, I dismiss the appeal.

LORD JUSTICE TOULSON: I agree.

[20]Mr Brennand, thank you very much. You have given us a very able demonstration of how to make bricks without straw.[21]MR BRENNAND: I am very much obliged, my Lord. Thank you.

Cited in 1 later judgment