Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Mackay of Drumadoon Lord Marnoch	[2010] HCJAC Appeal No: XJ678/10 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal by PROCURATOR FISCAL, AIRDRIE Appellant; against THOMAS McCONNELL Respondent: _______

Appellant: DAC Young QC, AD; The Crown Agent

Respondent: Brown QC; Road Traffic Law, Glasgow

15 October 2010

[1] The respondent was charged with a contravention of the A80 Trunk Road (Stepps to Haggs) (Temporary 40mph Speed Restriction) Order 2009 (SSI No 77) and sections 14 and 16 of the Road Traffic Regulation Act 1984 (c 27). The complaint, which called before the Justice of the Peace Court at Cumbernauld on 15 June 2010, libelled that he had driven along that road at 65 mph on 12 May 2009. The respondent challenged the validity of the Order on the basis that it had not been notified by the traffic authority, namely the Scottish Ministers, to the police or the fire brigade "on or before" it was made, as required by the Road Traffic (Temporary Restrictions) Procedure Regulations 1992 (SI No 1215).

[2] Section 14 of the 1984 Act provides that a traffic authority can "by order" restrict the use of a road to the extent that they consider necessary. Section 16 makes it an offence to contravene a restriction and empowers the Secretary of State to make regulations "with respect to the procedure to be followed in connection with the making of orders". Regulation 3 of the Regulations, which are made under the powers conferred by section 16, provides, so far as applicable in Scotland, that:

"(1) ...this regulation makes provision for the procedure to be followed in connection with the making of an order under section 14 of the 1984 Act.

...

(4) The traffic authority shall, on or before the day on which the order is made, give notice of the order-

(a) to the chief police officer of police of any police area in which any road to which the order relates is situated;

(b) where the traffic authority is not the fire authority for the area in which any road is situated, to the chief officer of the fire authority for that area;

...

(5) Within 14 days after making the order but before the order comes into operation the traffic authority shall publish a notice of the making of the order in one or more newspapers circulating in the area in which any road to which the order relates is situated. (see regulation 15(2)(c))

...

(8) When the order has been made, the traffic authority shall comply with the requirements of Part III of the Schedule to these Regulations (traffic signs)".

The Schedule provides:

"The authority shall take such steps as are necessary to secure-

(a) before the instrument comes into force, the placing on or near each road to which the instrument relates of such traffic signs in such positions as the authority may consider requisite for the purposes of securing that adequate information as to the effect of the instrument is made available to persons using the road...".

[3] Paragraph 1 of the 2009 Order prohibited persons from driving along the relevant section of road at a speed exceeding 40 mph when the appropriate traffic signs specifying that maximum were in place. The Order was made, under delegated powers from the Scottish Ministers, on 18 February 2009 and, in terms of paragraph 1, was to come into force on 25 February 2005. It was accepted that the police and fire services were not notified of the order until 23 February, which was before it was due to come into force but some time after the day when the order was made, as was required by regulation 3(4) (supra).

[4] The submission for the respondent before the Justice of the Peace was that the requirements of the regulation were mandatory and, since they had not been complied with, the Order was invalid. Reference was made to Macleod v Hamilton 1965 SLT 305; Smith v Rankine 1976 SCCR Supp 154; James v Cavey [1967] 2 WLR 1239; Cotterill v Chapman [1984] RTR 73; Davies v Heatley [1971] RTR 145; Peake v DPP [2010] EWHC 286 (Admin); and Derwent Holdings v Liverpool City Council [2008] EWHC 3023 (Admin). The appellant did submit under reference to the latter case that the Order was not invalidated because of a failure to comply with a procedural requirement. However, according to the Justice of the Peace's determination, the appellant did not challenge the respondent's contention that the provisions of regulation 3 were mandatory. Rather, the appellant's argument was that the non-compliance was "de minimis". The Justice of the Peace correctly considered that the cases cited to her were not of great assistance as they mainly related to the adequacy of signage specifying a traffic prohibition. However, she did hold that:

"adherence to [the] procedure was the authority on which any temporary speed restriction order relied. Such a temporary restriction order, properly made, would provide the correct, and necessary, foundation for the other activities i.e. the erection of appropriate signage; enforcement proceedings if the temporary restriction was not adhered to".

She did not regard the failures as minimal and, having regard to the use of the word "shall" in the regulation, sustained the respondent's plea that the Order was invalid.

[5] Before this court, the argument between the parties had a different, but more accurate, focus. The issue was the straightforward one of whether the provisions in regulation 3 fell to be regarded as mandatory or directory. If they fell into the former category, the Order was invalid. If not, the Order would remain valid, particularly if there had been substantial compliance with the procedural requirements. The court requires to ascertain what the legislator intended when enacting the regulation, given that there is no guidance in the Regulations about the consequences of a failure to comply with its provisions.

[6] It is plain from the terms of section 16 of the Act, and the regulation itself, that regulation 3 is concerned with the procedure to be followed "in connection with" the making of an order. The steps to be taken are not stated to be pre-requisites of an order being made. In relation to the notification requirements, these do not have to be made before the order is made. Rather, that to the police and fire authorities can be made later on in the day when the order is made and that to the public can occur within fourteen days thereafter. This in turn suggests that what is intended is something which does not directly affect the validity of the order itself. The purpose of notifying the police is no doubt so that they can enforce the terms of the order. That to the public may be so that they might consider alternative routes. It is not to enable any objections to be tabled. So far as the public is concerned, the notification of the existence of the speed restriction comes in the form of the relevant traffic signage which, in terms of the Order itself, requires to be in place on the road before the terms of the order can be contravened.

[7] For all the foregoing reasons, the court considers that regulation 3 is directory only and that, since its purposes have been satisfied, there has been substantial compliance with its provisions. The court will accordingly allow the appeal, repel the respondent's plea to the competency of the complaint and remit the case to the Justice of the Peace Court to proceed as accords.