Regina v. ALAN HOWE
Note by A R Howe Date 11 June 2002
This is an exact copy, word for word of my Counsel's 'Defendant's submission on the Law', presented to the Crown Court Appeal - Judge John Holt, on 3rd November 2000.
The Appeal, as you know, was upheld, and the conviction and sentence quashed, following the CPS decision during the Appeal Hearing to withdraw, offering 'no evidence', as it was apparent that gradually the 'activities' of the Authorities and the state and legality of speed limits were becoming public.
My Counsel did not in my opinion fully understand the implications of Section 84(3), which I consider to be quite clear and not ambiguous. In fact I had a very heated discussion with him and my Solicitor during a pre-Appeal conference over this exact point. Fortunately, Judge John Holt's wisdom prevailed, and he did recognise the point, even though this submission does not reflect the implications that well.
Defendant's Submissions On the Law
1 For the purposes of these submissions it will be assumed that the following facts are agreed:
(a) Mr Howe's motor vehicle was travelling at a speed of 42mph at a point 9.6 metres Woodbridge side of lamp standard 509 on the B1438, Yarmouth Road.
(b) The Yarmouth Road is restricted to a speed limit of 30mph by virtue of Suffolk County Council (various Parishes, Suffolk Coastal area) (Restricted Roads) Order 1995, Schedule 2. The part of the said road that is restricted is the section stretching from a point 220 metres north of the junction of Yarmouth Road and Station Road for 886 metres in a northerly direction.
(c) On 13th October 1999 there was no speed limit repeater sign opposite Upper Melton Terrace. This is confirmed by the Defendant's photographs of the area taken on 28th October 1999. Subsequent to that date a repeater sign was erected - on the sign for 'Upper Melton Terrace' and is visible on PC Brinsley's photographs taken on 25th January 2000. This repeater sign is located 155.1 metres, after the start of limit signs.
(d) On the Suffolk County Council Highways Order 199- diagram dated January 1995, the signing details designate a further repeater sign to be erected 165 metres after the first repeater sign. That sign has never been erected.
(e) On the Suffolk County Council Highways Order 199- diagram dated January 1995, the signing details designate a further repeater sign to be erected 158 metres after the second repeater sign (on the opposite side of the road). The repeater has been erected 52 metres further on from its designated position. The distance between the Melton Terrace repeater and the next repeater is 375 metres.
(f) On 13th October 1999 the distance between the start of limit signs and the first repeater was 530.1 metres.
2 The summons gives the particulars of offence as follows:
'on the 13th of October 1999 at Yarmouth Road, Melton, you drove a motor car on a restricted road at a speed exceeding 30mph contrary to Sections 81(1) and 89(1) of the Road Traffic Regulations Act 1984 and Schedule 2 of the Road Traffic Offenders Act 1988.
3 Section 81(1) states:
'it shall not be lawful for a person to drive a motor vehicle on a restricted road at a speed exceeding 30 miles per hour'.
4 Section 82(1) states:
'subject to the provision of this Section and of Section 84(3) of this Act, a restricted road is a restricted road for the purposes of section 81 of this Act if-
a. In England and Wales, there is a system of street lighting furnished by means of lamps placed not more than 200 yards apart:
5 Section 82(2) states:
'The traffic authority may direct - (a) not relevant (b) that the road which is not a restricted road for (the purposes of section 81) shall become a restricted road for those purposes.
6 Section 83(2) states:
'A direction under section 82(2) by a local traffic authority shall be given by means of an order made by the authority.'
7 Section 84(1) states:
'An order made under this subsection as respects any road may prohibit: b. the driving of motor vehicles on that road at a speed exceeding that specified in the order'.
8 Section 84(3) states:
'While an order made by virtue of subsection(1)(a) above is in force as respects a road, that road shall not be a restricted road for the purposes of Section 81 of this Act.
9 The Defendant submits that in accordance with section 82(2) an order (see Section 83(2)) can only be made in respect of a road which is not restricted for the purposes of Section 81. The wording of subsection (2)(b) is quite clear - 'may direct'. that the road which is not restricted.
10 The Defendant further submits that the wording of section 82(1) means that any road which does have the system of 'street lighting' 'is a restricted road for the purposes of section 81'
11 It therefore follows that a restricted road for the purposes of Section 81 and an order made to restrict a road under Section 82(2) and section 83(2) are mutually exclusive.
12 The Defendant submits that evidence of an order being made in respect of a 'road' is evidence that a road does not have a system of lighting sufficient to make the road restricted in its own right under Section 82(1). In this case, the local authority have made the Suffolk County Council Order 1995 (as referred to in paragraph 1(b) of this submission).
13 The Defendant submits that this is not a case of an order being made under Section 84(1)(a). There is no reference in the order itself and there is no evidence that Section 84(2) has been complied with.
14 Section 85(4) states:
'Where no such system of street or carriageway lighting as is mentioned in section 82(1) is provided on a road but a limit of speed is to be observed on the road, a person shall not be convicted of driving a motor vehicle on the road at a speed exceeding the limit unless the limit is indicated by means of such traffic signs as are mentioned in subsection (1) or subsection(2) above'.
15 I will not repeat the entirety of subsections (1) and (2) of Section 85 here, but the duty placed upon a local authority is to 'erect and maintain traffic signs in such positions as may be requisite to give effect to general or other directions given by the Secretary of State' to secure 'that adequate guidance is given to drivers'. As to whether any, and if so what, limit of speed is to be observed.
16 The repeater signs in question are dealt with in the Traffic Signs Regulations 1994. The diagram of the repeater sign is to be found at Schedule 2, diagram 670. Part II of the TSR 1994 provides The Traffic Signs General Directions 1994. Direction 10 subsection 2 deals with the repeater sign in question. The subsection states that such a sign 'shall be placed at regular intervals'.
17 In the present case, repeater signs are not present at 'regular intervals'. That phrase implies consistency. Section 85(1) implies sufficient proximity to secure 'adequate guidance' as to the speed limit.
18 The evidence indicates, that on 13th October 1999, the first repeater sign was 530.1 metres from the limit start signs and in fact almost 100 metres beyond the 'speed trap'. In a road restricted by order the signing was simply inadequate to comply with Sections 85(1), 85(2) and therefore 85(4) of the Act. The Defendant may therefore not be convicted for an offence contrary to sections 81 and 89.
19 The evidence of the Suffolk County Highways Order 199- diagram dated January 1995 gives clear indication as to the intended signing details. These have not been implemented. On 13th October 1999 only 1 out of the recommended 3 repeater signs were in place, and that sign was 52 metres further down the road than it should have been. The Defendant submits that the diagram shows what would have amounted signs placed at regular intervals to give drivers adequate guidance as to the speed limit. The non-implementation is prima facie evidence of a failure to adhere to the provisions of Section 85.
Richard Kelly East Anglian Chambers
2nd November 2000