Davies v Heatley Lord
4 FEBRUARY 1971
QUEEN'S BENCH DIVISION
DAVIES v HEATLEYLORD
PARKER CJ, MELFORD STEVENSON and COOKE JJ
Traffic sign
—Road marking
—Sign not complying with regulations
—Intermittent white line between two continuous while lines not prescribed distance apart
—Whether'prescribed' sign
—Failure to comply with indication
—Whether offence
—RoadTrafficAct 1960s 14(1)—Road Traffic Regulation Act J967 s 54(2)—-Traffic SignsRegulationsand General Directions 1964 reg 23(1)(2)(, diagram 1013 (as amended byTrafficSigns (Amendment) Regulations 1966).Section 14(1) of the Road Traffic Act 1960 provides:'Where . . . a traffic sign, being a sign of the prescribed size, colour andtype . . , hasbeen lawfully placed on or near a road. a person driving ... a vehicle who... ( fails tocompty with the indication given by the sign, shall be liable' [to penalty],Section 54(2) of the Road Traffic Regulation Act 1967 provides:'Traffic signs shall be of the size, colour and type prescribed byregulations . . .'Regulation 23 of theTrafiic Signs Regulations and General Directions 1964(as amended)provides:'(1) A road marking for conveying the requirements specified in the nextsucceedingparagraph ... shall be of the size and type shown in diagram 1013. (2) Therequirementsconveyed ... shall be . . . ( ... every vehicle . . . shall be so driven asto keep the ...'line on the right hand . . . side of the vehicle.'Diagram 1013 provides:'...Longitudinal lines to indicate ... the requirements... prescribed byregulation 23(2)...(See Direction 5A)'.A bend in a road bore a traffic marking consisting of continuous doublewhite lines andbetween them the remains of an intermittent white line with which the roadhad previouslybeen marked; the distance between the continuous double white lines differedfrom thedistance prescribed by diagram 1013 and regulation 23(1) of the TrafficSigns Regulationsand General Directions 1964, as amended by the Traffic Signs (Amendment)Regulations1966 and section 54(2) of the Road Traffic Regulation Act 1967. Thedefendant, whodrove a motor vehicle at the bend, did not keep to the left of the marking,and he wascharged with contravening section 14(1) (A) of the Road Traffic Act 1960 byfailing tocomply with the indication given by a traffic sign. The justices were ofopinion that thedefendant was left in no doubt as to the nature of the sign and that,although it did notstrictly comply with the regulations, it was clearly visible andrecognisable and, therefore,binding on him, and they convicted him.On appeal against conviction :Held, allowing the appeal, that the scheme of the legislation confined theoffence tofailure to comply with the prescribed sign (p 148E); and that, since thetraffic markingdid not conform strictly to the sign as prescribed by the regulation, nooffence had beencommitted, and the conviction would be quashed.Cases referred to in the judgment:James v Cavey [1967] 2 QB 676: [1967] 2 WLR 1239; [1967] 1 All EH 1048.DCPower v Davidson (1964) 62 LGR 320. DCReg. v Priest [1961] OWN 166Additional case cited in argument: 'MacLeod v Hamilton. 1965 SLT 305Case stated by Glamorgan Justices sitting at PontardaweOn 30 April 1970 an information was preferred by the prosecutor, IvorHeatley, against thedefendant, Charles Russel Davies, that he, on 9 March 1970 at Lianguicke inGlamorganbeing the person driving a vehicle, namely Morris motor lorry, registrationnumber190 DWN on a road, at Gelligron Hill. Pontardawe. did fail to comply withthe indicationgiven by a traffic sign, namely, did fail to keep to the left of acontinuous while line placedon the left of a continuous while line, contrary to section 14 of the RoadTraffic Act 1960.The defendant pleaded not guilty.The justices heard the information on 29 May 1970 and found the followingfacts.At 3.40 pm on Monday 9 March 1970 Brian Williams, a police constable of theSouthWales constabulary was on Panda patrol duty in Gelligron Road, Pontardawe,andtravelling down a hill in the direction of traffic lights. Proceeding infront of the constablewere two heavily laden motor lorries travelling at a very slow speed. As aright-handbend was being negotiated the constable saw the vehicle directly in front ofhim,Morris motor lorry registration number 190 DWN, pull out to its offside ofthe road, andin doing so cross continuous double white lines placed in the centre of theroad. Thevehicle then accelerated past the front lorry. Motor lorry registrationnumber 190 DWNwas stopped, and the constable spoke to ihe driver, the defendant, and toldhim that itwas an offence to cross double continuous white lines placed on a road.Whanasked foran explanation the defendant made no reply. When told that he would bereported bythe constable for the consideration of the question of proceedings beingtaken againstthe defendant for failing to conform to a traffic sign he, after caution,made no reply.The traffic sign in question was as shown in a photograph produced to thecourt andexhibited to the case and consisted of two continuous white lines with anintermittentwhite line in the centre. The sign was placed on the road at sometime in1970, and theconstable confirmed In evidence that the photograph showed the sign as itexisted on thedate of the alleged offence.It was contended by the defendant that there was no case for him to answerin so faras no offence in law had been committed as the traffic sign in question wasnot a lawfulsign within the meaning of section 54 of the Road Traffic Regulation Act1967, and asprescribed by the Traffic Signs Regulations and General Directions 1964.The Justices were referred to the following cases:MacLeod v Hamilton. 1965 SLT 305Miners v Gillard [1950] WN 347.DCReg v Priest [1961] OWN 166On a case to answer being found the defendant elected to give evidence andstated that,as he was proceeding down the hill, around bends, he saw certain roadmarkings on theroad, namely, continuous while lines with an intermittentwhite line in the centre of same.He stated that he may have crossed the lines but thought he had not,The justices were of opinion that the defendant was left in no doubt as tothe nature ofthe sign in question; and that though the sign did not strictly comply withthe Regulationsin so far as there was an intermittent white line placed between twocontinuous whitelines, the sign, which was situated on an 'S' bend, was clearly visible andrecognisableand therefore, binding on the defendant. They accordingly, convicted thedefendantand he was was fined £10, his licence was endorsed, and he was ordered topay 10s costs.The defendantdant appealed.The question for the opinion of the court was whether, in view of thejustices' findingthat the defendant fully appreciated the nature of the sign in question,they were correctin law to decide that the intermittent white line between the continuouswhite linesdid not affect the validity of the sign.Anthony Kenny for the defendantB R Oliver the prosecutorLord Parker CJ This is an appeal by way of case stated from a decisionof Glamorgan Justices sitting at Pontardawe, whereby they convicted thedefendant of an offence contrary to section 14 of the Road Traffic Act 1960,in that he did fail to comply with the indication given by a traffic sign,namely, that he failed to keep to the left of a continuous white line placedon the left of a continuous white line. There was evidence from tha policethat, on a bend in the road where there were two white lines, the defendantdriving a heavily laden motor lorry went over the double white line in orderto pass a slower moving lorry in front of him. Although, after the rejectionof a submission of no case, the defendant did not admit that he had crossedthe double white line, it is quite clear that, if nothing more was said,this isa plain case for a conviction.However, the matter does not end there, because the point taken before thejustices and before this court is that the double white line in this casedidnot conform to the type of white line laid down by the legislation. A photo-graph is attached to the case which shows quite clearly that between thedouble white fines there is an old intermittent line, in other words itseemspretty certain that at one time on this bend there was the ordinaryintermittentwhite line, but a time came when, as it were. superimposed on thatand on either side of it were put these double white lines. The justicesexpressed their view, a view with which I have every sympathy, and onewhich could be said to be a common sense view, as follows:'We were of opinion that the defendant was left in no doubt as to the natureof the signin question; and that though the sign did not strictly comply with theRegulations inso far as there was an intermittent white line placed between two continuouswhiteline, the sign, which was situated on an \"S\" bend, was clearly visible andrecognisableand, therefore, binding on the defendant'.I have come to the conclusion, though with some reluctance, that thejUstices were wrong. The legislation in question makes it abundantly clearthat there must be strict conformity with the traffic signs which are pre-cribed. One begins with section 14(1) of the Road Traffic Act 1960, whichprovides, so far as it is material:Where...a traffic sign, being a sign of the prescribed size, colour and type. . has beenlawfully placed on or near a road. a person driving or propelling a vehiclewho—(a) neglectsor refuses to stop the vehicle or to make it proceed in, or keep to, aparlicular lineof traffic when directed so to do by the police constable in the executionof his duty, or( fails to comply with the indication given by the sign, shall be liable onsummaryconviction . ..'to a penalty.The Road Traffic Regulation Act 1967 further provides by section 54(2):'Traffic signs shall be of the size. colour and type prescribed byregulations made asaforesaid\".The regulations in question here are the Traffic Signs Regulations andGeneral Directions 1964. Regulation 23(1) of those regulations provides:'A road marking for conveying the requirements specified in the nextsucceedingparagraph...shall be of the size and type shown in diagram 1013',and though it is unnecessary to read it, regulation 23(2)(6) deals, amongother matters, with signs of the type in question here, namely, the doublewhite line. When one turns to diagram 1013, one finds laid down themarkings, with which we are all familiar, of the double white line, and itprovides what the width of each double white line should be and thedistance between them. It is only necessary to add that the distancebetween them was in fact varied by the Traffic Signs (Amendment)Regulations 1966. Accordingly, as it seems to me, the scheme of thelegislation here is to confine the offence to a case where there has beenfailure to comply with the prescribed sign.One asks, therefore, here whether this was the prescribed sign. I thouahtat one point that it might be said that the old intermittent line, on asensibleapproach, forms no part of the double white line sign, that it is old and itisjust not completely rubbed out, but, as was pointed out, even if oneassumed that it was subtracted and formed no part of the line itself, thedistance between the two continuous white lines is a long way differentfrom that prescribed by the regulations. Accordingly, as it seems to me,and apart from authority, much as one sympathises with the approach ofthe justices, it is impossible to say that an offence was committed.The court has been referred to a number of authorities, incuding — and Ifind it unnecessary to refer to them — James v Cavey [1967] 2 QB 676 andPower v Davidson (1964) 62 LGR 320, cases which were analogous in thissense, that it was held in each case that there was no offence of the typethere alleged unless there had been complete compliance with theregulations.Indeed, the only case to which the court has been referred, and speakingfor myself I am grateful for Mr Kenny's researches, which goes the otherway is Reg. v Priest in Ontario, Canada [1961] OWN 166. It was a casein the Court of Appeal, and Roach J in giving the judgment of the courtsaid, at p 168:'On the other hand. a top sign that complies, though not strictly but sosubstantiallywith the regulations as reasonably to indicate that it is authoritative anderected by thecompetent authority in intended compliance with its power under the Act, inmy opinionis equally binding on the driver, provided that he could have seen it if hewas keepinga proper look out\".It is, however, to be observed there that the scheme of the legislation wassubstantially different. The Act in that case, the Highway Traffic ActR.S.O,1960, c. 172, provided that a driver on approaching a stop sign at anintersection, 'shall bring the car or vehicle to a full stop...', and thentheAct went on to provide that the lieutenant governor in council may makeregulations providing for the erection of signs on any highways andprescribing the type of signs to be erected and the location of each typeof sign. One sees at ones that the Act did not make it an offence to fail tocomply with a 'prescribed stop sign', but only with a stop sign. It seems tome that under that scheme of legislation it was permissible to take theview that the Court of Appeal took there and the justices took in thepresentcase.Under the scheme of legislation, however, with which we are concerned,I see no escape from saying that here no offence was committed, andaccordingly I would allow the appeal and quash the conviction.Melford Stevenson J I agree.Cooke J I also agree.Appeal allowed with coatsConviction quashedSolicitors for the defendants: Tuck & Mann & Geffen S T D Jones S Co forPrice Williams & Partners. LlandeiloSolicitors for the prosecutor: Sharpe, Pritchard & Co for R H C Rowlands.GlamorganReported by Mrs Celia Fox Barrister-at-Law___________________________________________________________________MacLeod v. HamiltonHigh Court of JusticiaryHCJ Appeal(The Lord Justice-General(Clyde), Lords Carmont and Migdale)25 June 1965Article 7 of the Edinburgh Corporation (Tollcross Area -- Various Streets)Traffic Order, 1964, made under section 26 (2) of the Road Traffic Act,1960, provided that no person should cause or permit any vehicle to wait inthe streets specified in the Fifth Schedule in the Order between certainhours on certain days. Section 26 (7) of the Road Traffic Act, 1960,provides that a person who uses a vehicle in contravention of a trafficregulation order shall be liable to certain penalties. Section 29 (2) of theRoad Traffic Act, 1960, provides that where a traffic regulation order ismade by the local authority the local authority shall publish in such manneras may be prescribed by regulations made by the appropriate minister noticeof the making and effect of the order. Regulation 15 of the TrafficRegulations Orders (Procedure) (Scotland) Regulations, 1961, provided, interalia, that after an order had been made by a council, the council shouldtake all steps which were reasonably practicable to erect traffic signs onor near the roads affected by the order. A motorist left her motor car in astreet subject to the provisions of the Edinburgh Corporation Traffic Order,1964, for a period of twenty minutes at a time when no waiting was allowed.Edinburgh Corporation had erected signs in the street which did not conformto the requirements of section 51 of the 1960 Act.Held, that the Edinburgh Corporation Traffic Order, 1964, was not valid astraffic signs complying with the requirements of section 51 of the 1960 Acthad not been erected by the Corporation and, accordingly, that no offencehad been committed.Stated CaseMary Elizabeth Hamilton was charged in the Sheriff Court of theLothians and Peebles at Edinburgh at the instance of Angus MacLeod,Procurator-Fiscal, Edinburgh, upon a complaint on 12th November 1964,between the hours 8 a.m. and 6 p.m. in High Riggs she caused permitted avehicle 9016 SC to wait; contrary to article (7) of the EdinburghCorporation (Tollcross Area -- Various Streets) Traffic Order, 1964, madeunder sections 26 and 27 of the Road Traffic 1960, and to section 26 (7) ofthe said Act.The accused pleaded not guilty and evidence was led.On 6th April 1965, the Sheriff-Substitute (Cohen) found the accused notguilty.The sheriff-substitute appended the following note:--It was argued for the complainer, in the first place, that, since theoffence consisted in a contravention of an order, and not merely in failureto obey a traffic sign, as for example under section 14 of the Road TrafficAct, 1960, the question whether a sign conformed to a particular design oreven whether a sign had been erected, was immaterial. This argument, ifpressed to its logical conclusion, and the complainer did not shrink from socontending, would mean that even if there were no signs at all in theTollcross area, nonetheless, any motorist who allowed his car to wait there(unless he could bring himself within one of the excepted categories) couldbe successfully prosecuted for a contravention of the order although he wastotally unaware of the existence of the order. The implications of this arenot, however, confined to the Tollcross area; a similar situation wouldarise wherever a council, having made an order, then failed to erect anysigns. The prospect for a considerable proportion of the citizens of thiscountry would be indeed alarming, since unless they had read on oneparticular day the notice inserted in a local newspaper or in the EdinburghGazette in terms of Regulation 15 of the Statutory Instrument No. 669 of1961, they would be committing an offence of which they knew nothing. Inshort, the question comes to be whether mens rea is essential to acontravention of the present order.The law regarding mens rea in relation to a statutory offence was stated byLord Normand in Mitchell v. Morrison, 1938 J.C. 64, at page 71 (1938 S.L.T.201)in these terms: \"We are dealing with a statutory offence, not with acommon law crime, and there is no novelty in holding that a statutoryoffence may be committed although there is a complete absence of mens rea.Nevertheless, the burden lies on the Crown of showing that a statute imposesan absolute obligation, breach of which constitutes an offence and subjectsto a penalty one who is entirely free from all moral culpability... .Yet theCrown must always show that the language of the statute is, withoutdistortion or strain, habile to impose an absolute obligation.\" The presentorder was made by Edinburgh Corporation by virtue of regulations made by theSecretary of State and set forth in Statutory Instrument No. 669 of 1961.Regulation 15 © sets out the steps which a council shall take \"forthwith\"to erect signs. If the complainer's contention that no signs are necessaryis sound then this part of the regulation can amount to little more than apious hope that the council will do so. I do not think the regulation shouldbe interpreted in that way and, in my opinion, the regulation simply meanswhat it says, namely, that adequate information is to be given to personsusing the road and that is to be done by the erection of signs. This isquite the opposite to an absolute obligation and I think the Crown hasfailed to show that the words used in the regulation are habile to imposesuch an obligation.It was next maintained for the complainer that, even if the erection ofsigns was a necessary prerequisite to a contravention of the order, then thesigns (productions Nos. 7 and were sufficient, because, since this was notan area which had been created in virtue of an order made by the Secretaryof State, the provisions of section 51 of the Road Traffic Act, 1960, whichrelate to traffic signs, did apply to the Tollcross area. Accordingly, no*306 obligation was laid upon the Corporation to erect the type of signs setout in the regulations which the Secretary of State has made under thepowers granted to him by section 51 or by section 48 of the Road TrafficAct, 1930, now repealed.I have already referred to Regulation 15 of the Statutory Instrument No.669. I do not think that the word \"requisite\" as it is used insub-paragraph © refers to the type of signs to be erected, it seems to me torefer to the positions in which the signs are to be placed. Therefore, thediscretion which is given to a council by the use of the words \"considersrequisite\" does not extend to signs. The complainer does not, therefore,obtain any support from Regulation 15. Section 51 of the 1960 Act definesthe words \"traffic signs\". As I read this section it does not apply onlyto traffic signs which have been erected under an order made by theSecretary of State. The section appears to me to give the Secretary of Statepower to make regulations specifying any object (traffic sign) for conveyingto traffic warnings, information, etc. The section is not restricted toenabling the Secretary of State to make regulations specifying restrictionsor prohibitions, he already has those powers by virtue of other sections inthe Act. The Secretary of State has in fact made regulations which specifyin some detail the type of sign which may be erected. These regulations areto be found in Statutory Instrument No. 13 of 1957 as amended by Nos. 2149and 2150 of the same year. Regulation 8 in No. 13 deals in sub-paragraph ©with what may be described as \"prohibitory\" signs. There is nothing inRegulation 8 which suggests that it is to apply only to signs erected wherethe Secretary of State has made the order, nor does Part III of the FirstSchedule, where the various signs are set out in diagrams. Direction threeof No. 13 only permitted signs of the type illustrated in Part III to beerected at sites approved in writing by the Secretary of State, but this wassoon amended by No. 2150, the effect of which was to permit certain signs inPart III to be placed at sites without the approval in writing of theSecretary of State provided that they were not placed there to indicate theeffect of an order made by him. This in fact seems to envisage the kind ofsituation which has arisen in the present case because this is not an areain regard to which the Secretary of State has made an order. But there isnothing in any of the foregoing regulations which says that a council, orindeed any other body at all, has a discretion to erect any kind of signthey wish. It therefore seems to me that the words \"every traffic sign\"inRegulation 8 mean that unless an exception can be found every sign mustcomply with the requirements specified. I can find no such exception.Regulation 9 of No. 13 allows, what are described as, \"permittedvariants\"on certain signs. At the very best for the complainer onlysub-paragraphs (a) and ( could possibly be said to apply to the signs atHigh Riggs. Sub-paragraph (a) however, refers to numerals and the variationin the present case is much more than that. So far as sub-paragraph ( isconcerned it permits the wording to be varied, but the variation is allowedonly with reference to certain signs identified by their particular numbers.The signs erected by the Corporation do not appear to be identified with anyof the listed signs and no power is given to vary unlisted signs. Thepresent signs are not, therefore, signs upon which any variation is allowed.Finally, it was argued that the Secretary of State, acting presumably underRegulation 4 of No. 13, had allowed signs of the \"C\" type (productionsNos. 1 and 2) to be erected for the George Street area, accordingly thistype having received authorisation for one area it could be erected inanother area. This argument seems to me to fail for two reasons. Firstly,because there is nothing to show that the authorisation for George Streetwas intended to be authorisation for the whole of the City of Edinburgh.There was no evidence at all to enable such an inference to be established.Secondly, it fails, because the High Riggs signs are, in fact, differentfrom those authorised for George Street. The words used are not the same andthe High Riggs signs have the loose boards superimposed upon them.For the foregoing reasons, I have reached the conclusion that there has beenno contravention of the Tollcross Order and, accordingly, the accused is notguilty.The procurator-fiscal appealed to the High Court of Justiciary by statedcase.The stated case set forth, inter alia:The following facts were admitted or proved:--1. Production No. 5 is a Certified Copy of the Edinburgh Corporation(Tollcross Area -- Various Streets) Traffic Order, 1964.2. The said Order applies to the whole street in High Riggs.3. The photograph, production No. 7, is a photograph of the sign erected onthe South side of High Riggs at the east end thereof.4. The photograph, production No. 8, is a photograph of the sign erected onthe North side of High Riggs at the east end thereof.5. The photograph, production No. 10, is a photograph of the east end ofHigh Riggs.6. The photograph, production No. 9, is a photograph of the sign erected inShandwick Place, Edinburgh.7. The plan, production No. 6, is a plan having marked thereon the positionof the signs erected in the Central Edinburgh area by virtue of the saidEdinburgh Corporation Tollcross Area (Various Streets) Traffic Order, 1964.8. The letter, production No. 11, is a letter from the Town Clerk,Edinburgh, to Messrs J. & A. Hastie, 43 York Place, Edinburgh, therespondent's law agents, and in terms thereof the Corporation of Edinburghhave not asked for any authorisation to erect signs in connection with thesaid Edinburgh Corporation Tollcross Area (Various Streets) Traffic Order,1964, from the Secretary of State.9. The sketches, productions Nos. 1 and 2, are sketches showing the type ofsign used in parking zone areas. 10. George Street, Edinburgh, is a parkingmeter zone area authorised by the Secretary of State in virtue of the powersgranted to him by section 85 of the Road Traffic Act, 1960.11. The signs used to indicate that George Street is a parking meter zoneconform to those shown in productions Nos. 1 and 2, they were authorised bythe Secretary of State, the letter, production No. 3, contains the approval,and the letter, production No. 4, is from the Scottish Home Department tothe Town Clerk's Department in regard to signs for the George Street zone.12. The signs shown in productions Nos. 7 and 8, are similar in shape tothose erected for the George Street zone but they do not have the words\"Meter Parking Only\" the days and times are different and there are noloose boards hung *307 on the George Street zone signs bearing the words\"No Waiting Except As Authorised by Tollcross Area Traffic Control Order\".13. The said loose boards are made of hardboard, the background is whitewith black lettering.14. On 12th November 1964 between the hours of 8 a.m. and 6 p.m. therespondent left her motor car, registered number 9016 SC in High Riggs onthe south side thereof, for a period of twenty minutes.I found the respondent not guilty for the reasons which are given in thesecond opinion attached hereto.The question of law for the opinion of the Court was:\"Upon the foregoing facts was I entitled to find the respondent notguilty?\"The case was heard before the High Court of Justiciary on 24th June 1965.Arguedfor Appellant.--It was conceded that the signs erected in High Riggsdid not comply with the regulations prescribed by the Minister under section51 of the principal Act. (i) The respondent was charged with a contraventionof article 7 of the Order. There was no question of mens rea and she hadadmittedly left her car in High Riggs for a period of twenty minutes. Theterms of article 7 were absolute: Anderson v. Rose, 1919 J.C. 20, 1919 2S.L.T. 86; Howman v. Russell, 1923 J.C. 32, 1923 S.L.T. 336; and Mitchell v.Morrison, 1938 J.C. 64, 1938 S.L.T. 201 (ii) Estoknowledge was required, itcould be inferred. The question of what was adequate notice was not dealtwith by the sheriff-substitute: Macdonald on The Criminal Law of Scotland,5th edition, page 1. (iii) The erection of signs under the Road Traffic Act,1960 was not a necessary preliminary for contravention of the order.Regulation 15 © was accordingly ultra vires.Failure to do something after anorder had been made could not affect the validity of the order. (iv) In anyevent traffic signs in the regulations did not mean the same as trafficsigns under the 1960 Act. There was no definition of traffic signs in the1961 Regulations. The definition was contained in the regulationsthemselves.Arguedfor Respondent.--Dole was required when a person was convicted of acriminal offence, Mitchell v. Morrison (supra). (i) The 1964 Order did notcreate any offence and no penalty was specified in it. The problem was toapply the principles of Mitchell v. Morrison to the 1960 Act. Section 26 (7)assumed a duly published order under section 29 (2) and Regulation 15 © ofthe 1961 Regulations. Parliament contemplated publication as part and parcelof the order. The traffic signs were manifestly inadequate as the essentialinformation was missing. (ii) Prima facie the term \"traffic signs\"shouldhave the same meaning as in the principal Act. In terms of section 51 thesigns conveyed either information or warnings. The signs envisaged byRegulation 15 © had to conform to the regulations made under section 51 (2)of the principal Act. Counsel also referred to Lim Chin Aik v. The Queen[1963] A.C. 160.On 25th June 1965 the Court answered the question in the affirmative andrefused the appeal.The Lord Justice-General (Clyde).This is a stated case which raises quite an important issue in regard totraffic signs in relation to offences regarding traffic orders. Therespondent was charged with a contravention of article 7 of the EdinburghCorporation (Tollcross Area -- Various Streets) Traffic Order, 1964. I shallrefer to this order hereafter as the 1964 Order. The sheriff-substitute heldthat she was not guilty and this appeal has been taken by the prosecutoragainst that decision.Article 7 of the Order provides, inter alia, that no person shall cause orpermit any vehicle to wait in any of the lengths of road specified in theFifth Schedule to the Order between certain hours and on certain days. Inthe Schedule, one of the lengths of roads specified is High Riggs (wholestreet). It is not in dispute that the respondent did leave her car in thestreet during a non-permitted period. The main contention for the Crown wasthat this undisputed fact, together with the terms of the 1964 Order, wassufficient to justify the conviction of the respondent.But, in my opinion, this is too superficial a view of the situation. The1964 Order does not, by itself, create any offence nor warrant any penalty.It is a piece of delegated legislation valid only in so far as authorised bythe statute under which it is executed, namely sections 26 and 27 of theRoad Traffic Act, 1960. It is in section 26 (2) of the 1960 Statute and notin the 1964 Order that the offence is created and a penalty authorised. Itis, therefore, necessary to consider what was the offence which Parliamentwas creating.The offence (see section 26 (7)) was an offence against a traffic regulationorder. The requisites of such an order are set out in section 26 of the nextthree following sections (see the opening words in section 26 (1)). Section29 (2) of the Act, inter alia, provides that where a traffic regulationorder is made by a local authority, the local authority shall publish insuch manner as may be prescribed by regulations made by the appropriateminister, notice of the making and effect of the order. Such regulationshave in fact been made and are the Traffic Regulation Orders (Procedure)(Scotland) Regulations, 1961, Statutory Rules and Orders, 1961, No. 669.These regulations expressly purport to be made in the exercise of the powerconferred by section 29 of the 1960 Act. Paragraph 15 of these Regulations,inter alia, provides: \"After an order has been made by a council\" (i.e. inthe present case the Corporation) \"the council shall ... (c.) forthwithtake all such steps as are reasonably practicable to cause to be erected onor near to the said roads, traffic signs in such positions as the councilmay consider to *308 be requisite for the purpose of securing that adequateinformation as to the effect of the order is given to persons using the saidroads.\" It was argued to us that Regulation 15 was ultra vires but it seemsto me clearly to be within the powers conferred by Parliament by section 29(2) of the 1960 Act.I quite recognise that when Parliament creates a new offence by statute itmay so frame the duty on the members of the public that an offence can becommitted even though there is no negligence on the part of that member ofthe public, no mens rea and no knowledge even of the existence of the newstatutory duty. But that is not a situation which is lightly to be presumedand the burden would be on the Crown to satisfy the Court that the dutycreated by the statute is of this absolute character (Mitchell v. Morrison,1938 J.C, 64, per Lord Justice-General Normand, at page 71, 1938 S.L.T.201): (compare Anderson v. Rose, 1919 J.C. 20, 1919 2 S.L.T. 86; Howman v.Russell, 1913 J.C. 32, 1923 S.L.T. 336; Hunter v. Clark, 1956 J.C. 59, 1956S.L.T. 188, and Lim Chin Aik v. The Queen [1963] A.C. 160). But from thestatutory provisions in the present case to which I have already referred itseems quite clear that in this case Parliament never intended to impose anyabsolute obligation at all. It was an integral part of the statutory schemefor a traffic regulation order that notice by means of traffic signs shouldbe given to the public using the roads which were restricted so as to warnusers of their obligations. Unless these traffic signs were thereaccordingly and the opportunity was thus afforded to the public to know whatthey could not legally do, no offence would be committed. It would, indeed,be anomalous and absurd were the position otherwise. Apart altogether frompersons familiar with the restrictions, visitors or long-distance travellerscould not reasonably be expected to know of the existence of therestrictions in any particular street and it is only natural therefore thatParliament required adequate notice of the restriction on the site before anoffence against these traffic regulations could be charged and a penaltyexacted.The next question therefore is whether in this case the notice required byRegulation 15 © was given. The notice required is to take the form of\"traffic signs\". There is no further definition in the regulations of whatis meant by \"traffic signs\" and one is, therefore, driven back to thestatute under which the regulations were made for a definition of thesewords. The definition is contained in section 51 of the 1960 Act. Unlessthere had been some restricted meaning given in the regulations to the words\"traffic signs\" it is necessary, according to ordinary rules ofconstruction, that the words as used in the Regulations of 1961 which weremade under the Act must have the same meaning as these words in the Actitself. But it is clear that the signs erected at High Riggs did not conformto the requirements of a traffic sign as defined in section 51 and theregulations made by the Secretary of State under that section. There is noprovision in the Act or in the regulations for a different kind of trafficsign not authorised by the minister.On the whole matter, therefore, in my opinion, there was a duty imposed onthe Corporation as an essential part of the validity of the TrafficRegulation Order to publicise the order in a certain way, namely by erectingcertain specified traffic signs. The requisite signs were not erected andthe offence charged, which is a purely statutory offence, was not thereforecommitted. For the existence of a valid traffic regulation order inconformity with the Act and Regulations is a sine qua non of theestablishment of an offence against the order.The question put to us therefore, in my opinion, should be answered in theaffirmative.Lord Carmont.I agree with your Lordship.Lord Migdale.In view of what your Lordship has said I do not find it necessary to repeatthe facts in detail. Two things are clear (first) the signs erected do notconform to the pattern and colour laid down by Statutory Instrument 13 of1957 and (second) the signs erected are ambiguous.If the appellant is right neither of these things matter. His argument isthat the Tollcross Area Traffic Order is by itself effective to impose anabsolute prohibition against waiting in High Riggs. As the respondent's cardid wait there for some twenty minutes she was liable, on summaryconviction, to a fine not exceeding £20. The test to be applied is anobjective one and the fact that the respondent claimed she had no mens reawas irrelevant. This contention was rejected by the sheriff-substitute and,in my view, he was right to do so. Ignorance that a statutory regulation hasbeen breached is no defence if the obligation is an absolute one (see LordJustice-General Normand in Mitchell v. Morrison, 1938 J.C. 64, at page 71,1938 S.L.T. 201). The question whether the obligation is an absolute one, oris qualified in some way so as to imply that the breach must have beencommitted \"knowingly\", is to be decided by considering both the languageof the order creating the offence and the subject matter with which itdeals. In the case of Lim Chin Aik v. The Queen [1963] A.C. 160, P.C.LordEvershed referred (at page 172) with approval to a passage by Mr JusticeWright in Sherras' case ([1895] 1 Q.B. 918, at page 921). \"There is apresumption that mens rea or evil intention or knowledge of the wrongfulnessof the Act, is an essential ingredient in every offence, but thatpresumption is liable to be displaced either by the words of the statutecreating the offence or by the subject matter with which it deals and bothmust be considered\". I think this accords with our law in Scotland and thatthe subject matter must be looked at as well as the phraseology.The appellant contended that the words of the order were unambiguous andthat paragraph (7) imposed an absolute prohibition against waiting in HighRiggs between certain hours on certain days. Once that order was signed andsealed it came *309 into force and although it required to be published oncein a local newspaper and the Edinburgh Gazette no sign boards required to beerected at the entry to High Riggs.The subject matter of this order is the regulation of traffic in theTollcross area of the city. This requires that traffic shall proceed in onedirection along another street. Certain turns are prohibited in some streetsand waiting is banned in yet another group of streets. If the appellant isright this well regulated flow of traffic is to be achieved by nothing morethan signing an order in the City Chambers. Common sense, if nothing more,requires that there should be adequate and intelligible notices at theimportant points on the streets concerned so that those who do not read theScotsman or subscribe to the Edinburgh Gazette may know what to do when theyget to Tollcross. The fact that notices of a kind were in fact put upsuggests that this aspect of the problem was not overlooked.However the question is, in my view, resolved if one turns from the order tothe Road Traffic Act. 1960. Section 26 of that Act is the statutory warrantfor the making of the order in question. Counsel for the appellant said onemust not look beyond that section and in particular we must not have regardto section 29 (2) of the Act because it deals only with the procedure ofmaking the order and not with steps to make it effective. For my part I donot know why I should not have regard to the statute as a whole. Section 29provides that where a traffic regulation is made by a local authority \"thelocal authority shall publish, in such manner as may be prescribed byregulations made by the minister, notice of the making and effect of theorder\". The Traffic Regulation Orders (Procedure) (Scotland) Regulations,1961 (S.I. 1961, No. 669) were made under section 29 of the Road TrafficAct, 1960. Regulation 15 requires that after the order has been made thecouncil shall take certain steps. These include giving notice in the pressand in the Gazette and shall \"© forthwith take all such steps as arereasonably practicable to cause to be erected on the roads, traffic signs... for the purpose of securing that adequate information as to the effectof the order is given to persons using the said roads\".In my opinion the erection of traffic signs at the locus is properlyrequired by the regulations as part of the procedure to make known theeffect of the order. In deference to counsel for the appellant's contention,I would point out that the primary meaning of the words \"published\" is notconfined to printing in a newspaper but is \"to make known publicly orgenerally\" (see S.O.D., Volume II, page 1615).If I am right it means that the order is not effective unless and until thecouncil complies with Regulation 15 © and erects road signs at the locus.Signs were erected but they were not the proper ones nor were they clear.Section 51 of the Road Traffic Act deals with Road Signs and StatutoryInstrument No. 13 of 1957. Regulation 8 deals with \"prohibitory signs\" anddefines their form and colour. It is conceded in this case that the signserected do not match the pattern laid down. Accordingly, it would appearthat the council has not done all that it is required to do regarding theorder and cannot claim that the respondent is liable to the penalty imposedby section 26 (7) of the Road Traffic Act, 1960.Even if I am wrong regarding the application of section 51 of the Act andthe Statutory Instruments of 1957 and take the view that the Corporation isentitled to design signs to its own pattern, I do not regard the one shownin production No. 7 as giving adequate information to persons using the HighRiggs. If it had said \"No waiting\" or \"No waiting in this Street\"itmight have had that effect but all it says is that the driver is entering a\"controlled zone\" and can only wait if authorised to do so by the order.How is he to know if his \"wait\" is \"prohibited\" or \"authorised\"?At any rate it is clear that the notice does not impose on the driver anabsolute obligation not to wait in High Riggs.For these reasons, I think the question should be answered in theaffirmative.Hope this helps.Regards,GilesIf the truth can be told so as to be understood it will be believed -Terence McKenna>From: "Giles Pepperell">To: >Subject: Signs Must Be As Prescribed>Date: Thu, 27 Jul 2006 23:00:43 +0100>MIME-Version: 1.0>Received: from lon-gs3dmrelay.mistral.net ([217.154.246.188]) by>bay0-mc1-f15.bay0.hotmail.com with Microsoft SMTPSVC(6.0.3790.2444); Thu,>27 Jul 2006 14:56:45 -0700>Received: from mail.starpointcs.com ([217.154.200.150]>helo=svengalisj1oxz)by lon-gs3dmrelay.mistral.net with smtp (Exim 4.51)id>1G6DoN-0002LQ-Mjfor gilespepperell@hotmail.com; Thu, 27 Jul 2006 22:54:32>+0100>X-Message-Info: txF49lGdW43YAVNpKOVI3k8tYdgm/oZ6XoAtX9DI8c4=>X-MSMail-Priority: Normal>X-Mailer: Microsoft Outlook IMO, Build 9.0.6604 (9.0.2911.0)>X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2800.1807>Return-Path: giles@militia.demon.co.uk>X-OriginalArrivalTime: 27 Jul 2006 21:56:45.0783 (UTC)>FILETIME=[8D894670:01C6B1C7]>>
QUEEN'S BENCH DIVISION
DAVIES v HEATLEYLORD
PARKER CJ, MELFORD STEVENSON and COOKE JJ
Traffic sign
—Road marking
—Sign not complying with regulations
—Intermittent white line between two continuous while lines not prescribed distance apart
—Whether'prescribed' sign
—Failure to comply with indication
—Whether offence
—RoadTrafficAct 1960s 14(1)—Road Traffic Regulation Act J967 s 54(2)—-Traffic SignsRegulationsand General Directions 1964 reg 23(1)(2)(, diagram 1013 (as amended byTrafficSigns (Amendment) Regulations 1966).Section 14(1) of the Road Traffic Act 1960 provides:'Where . . . a traffic sign, being a sign of the prescribed size, colour andtype . . , hasbeen lawfully placed on or near a road. a person driving ... a vehicle who... ( fails tocompty with the indication given by the sign, shall be liable' [to penalty],Section 54(2) of the Road Traffic Regulation Act 1967 provides:'Traffic signs shall be of the size, colour and type prescribed byregulations . . .'Regulation 23 of theTrafiic Signs Regulations and General Directions 1964(as amended)provides:'(1) A road marking for conveying the requirements specified in the nextsucceedingparagraph ... shall be of the size and type shown in diagram 1013. (2) Therequirementsconveyed ... shall be . . . ( ... every vehicle . . . shall be so driven asto keep the ...'line on the right hand . . . side of the vehicle.'Diagram 1013 provides:'...Longitudinal lines to indicate ... the requirements... prescribed byregulation 23(2)...(See Direction 5A)'.A bend in a road bore a traffic marking consisting of continuous doublewhite lines andbetween them the remains of an intermittent white line with which the roadhad previouslybeen marked; the distance between the continuous double white lines differedfrom thedistance prescribed by diagram 1013 and regulation 23(1) of the TrafficSigns Regulationsand General Directions 1964, as amended by the Traffic Signs (Amendment)Regulations1966 and section 54(2) of the Road Traffic Regulation Act 1967. Thedefendant, whodrove a motor vehicle at the bend, did not keep to the left of the marking,and he wascharged with contravening section 14(1) (A) of the Road Traffic Act 1960 byfailing tocomply with the indication given by a traffic sign. The justices were ofopinion that thedefendant was left in no doubt as to the nature of the sign and that,although it did notstrictly comply with the regulations, it was clearly visible andrecognisable and, therefore,binding on him, and they convicted him.On appeal against conviction :Held, allowing the appeal, that the scheme of the legislation confined theoffence tofailure to comply with the prescribed sign (p 148E); and that, since thetraffic markingdid not conform strictly to the sign as prescribed by the regulation, nooffence had beencommitted, and the conviction would be quashed.Cases referred to in the judgment:James v Cavey [1967] 2 QB 676: [1967] 2 WLR 1239; [1967] 1 All EH 1048.DCPower v Davidson (1964) 62 LGR 320. DCReg. v Priest [1961] OWN 166Additional case cited in argument: 'MacLeod v Hamilton. 1965 SLT 305Case stated by Glamorgan Justices sitting at PontardaweOn 30 April 1970 an information was preferred by the prosecutor, IvorHeatley, against thedefendant, Charles Russel Davies, that he, on 9 March 1970 at Lianguicke inGlamorganbeing the person driving a vehicle, namely Morris motor lorry, registrationnumber190 DWN on a road, at Gelligron Hill. Pontardawe. did fail to comply withthe indicationgiven by a traffic sign, namely, did fail to keep to the left of acontinuous while line placedon the left of a continuous while line, contrary to section 14 of the RoadTraffic Act 1960.The defendant pleaded not guilty.The justices heard the information on 29 May 1970 and found the followingfacts.At 3.40 pm on Monday 9 March 1970 Brian Williams, a police constable of theSouthWales constabulary was on Panda patrol duty in Gelligron Road, Pontardawe,andtravelling down a hill in the direction of traffic lights. Proceeding infront of the constablewere two heavily laden motor lorries travelling at a very slow speed. As aright-handbend was being negotiated the constable saw the vehicle directly in front ofhim,Morris motor lorry registration number 190 DWN, pull out to its offside ofthe road, andin doing so cross continuous double white lines placed in the centre of theroad. Thevehicle then accelerated past the front lorry. Motor lorry registrationnumber 190 DWNwas stopped, and the constable spoke to ihe driver, the defendant, and toldhim that itwas an offence to cross double continuous white lines placed on a road.Whanasked foran explanation the defendant made no reply. When told that he would bereported bythe constable for the consideration of the question of proceedings beingtaken againstthe defendant for failing to conform to a traffic sign he, after caution,made no reply.The traffic sign in question was as shown in a photograph produced to thecourt andexhibited to the case and consisted of two continuous white lines with anintermittentwhite line in the centre. The sign was placed on the road at sometime in1970, and theconstable confirmed In evidence that the photograph showed the sign as itexisted on thedate of the alleged offence.It was contended by the defendant that there was no case for him to answerin so faras no offence in law had been committed as the traffic sign in question wasnot a lawfulsign within the meaning of section 54 of the Road Traffic Regulation Act1967, and asprescribed by the Traffic Signs Regulations and General Directions 1964.The Justices were referred to the following cases:MacLeod v Hamilton. 1965 SLT 305Miners v Gillard [1950] WN 347.DCReg v Priest [1961] OWN 166On a case to answer being found the defendant elected to give evidence andstated that,as he was proceeding down the hill, around bends, he saw certain roadmarkings on theroad, namely, continuous while lines with an intermittentwhite line in the centre of same.He stated that he may have crossed the lines but thought he had not,The justices were of opinion that the defendant was left in no doubt as tothe nature ofthe sign in question; and that though the sign did not strictly comply withthe Regulationsin so far as there was an intermittent white line placed between twocontinuous whitelines, the sign, which was situated on an 'S' bend, was clearly visible andrecognisableand therefore, binding on the defendant. They accordingly, convicted thedefendantand he was was fined £10, his licence was endorsed, and he was ordered topay 10s costs.The defendantdant appealed.The question for the opinion of the court was whether, in view of thejustices' findingthat the defendant fully appreciated the nature of the sign in question,they were correctin law to decide that the intermittent white line between the continuouswhite linesdid not affect the validity of the sign.Anthony Kenny for the defendantB R Oliver the prosecutorLord Parker CJ This is an appeal by way of case stated from a decisionof Glamorgan Justices sitting at Pontardawe, whereby they convicted thedefendant of an offence contrary to section 14 of the Road Traffic Act 1960,in that he did fail to comply with the indication given by a traffic sign,namely, that he failed to keep to the left of a continuous white line placedon the left of a continuous white line. There was evidence from tha policethat, on a bend in the road where there were two white lines, the defendantdriving a heavily laden motor lorry went over the double white line in orderto pass a slower moving lorry in front of him. Although, after the rejectionof a submission of no case, the defendant did not admit that he had crossedthe double white line, it is quite clear that, if nothing more was said,this isa plain case for a conviction.However, the matter does not end there, because the point taken before thejustices and before this court is that the double white line in this casedidnot conform to the type of white line laid down by the legislation. A photo-graph is attached to the case which shows quite clearly that between thedouble white fines there is an old intermittent line, in other words itseemspretty certain that at one time on this bend there was the ordinaryintermittentwhite line, but a time came when, as it were. superimposed on thatand on either side of it were put these double white lines. The justicesexpressed their view, a view with which I have every sympathy, and onewhich could be said to be a common sense view, as follows:'We were of opinion that the defendant was left in no doubt as to the natureof the signin question; and that though the sign did not strictly comply with theRegulations inso far as there was an intermittent white line placed between two continuouswhiteline, the sign, which was situated on an \"S\" bend, was clearly visible andrecognisableand, therefore, binding on the defendant'.I have come to the conclusion, though with some reluctance, that thejUstices were wrong. The legislation in question makes it abundantly clearthat there must be strict conformity with the traffic signs which are pre-cribed. One begins with section 14(1) of the Road Traffic Act 1960, whichprovides, so far as it is material:Where...a traffic sign, being a sign of the prescribed size, colour and type. . has beenlawfully placed on or near a road. a person driving or propelling a vehiclewho—(a) neglectsor refuses to stop the vehicle or to make it proceed in, or keep to, aparlicular lineof traffic when directed so to do by the police constable in the executionof his duty, or( fails to comply with the indication given by the sign, shall be liable onsummaryconviction . ..'to a penalty.The Road Traffic Regulation Act 1967 further provides by section 54(2):'Traffic signs shall be of the size. colour and type prescribed byregulations made asaforesaid\".The regulations in question here are the Traffic Signs Regulations andGeneral Directions 1964. Regulation 23(1) of those regulations provides:'A road marking for conveying the requirements specified in the nextsucceedingparagraph...shall be of the size and type shown in diagram 1013',and though it is unnecessary to read it, regulation 23(2)(6) deals, amongother matters, with signs of the type in question here, namely, the doublewhite line. When one turns to diagram 1013, one finds laid down themarkings, with which we are all familiar, of the double white line, and itprovides what the width of each double white line should be and thedistance between them. It is only necessary to add that the distancebetween them was in fact varied by the Traffic Signs (Amendment)Regulations 1966. Accordingly, as it seems to me, the scheme of thelegislation here is to confine the offence to a case where there has beenfailure to comply with the prescribed sign.One asks, therefore, here whether this was the prescribed sign. I thouahtat one point that it might be said that the old intermittent line, on asensibleapproach, forms no part of the double white line sign, that it is old and itisjust not completely rubbed out, but, as was pointed out, even if oneassumed that it was subtracted and formed no part of the line itself, thedistance between the two continuous white lines is a long way differentfrom that prescribed by the regulations. Accordingly, as it seems to me,and apart from authority, much as one sympathises with the approach ofthe justices, it is impossible to say that an offence was committed.The court has been referred to a number of authorities, incuding — and Ifind it unnecessary to refer to them — James v Cavey [1967] 2 QB 676 andPower v Davidson (1964) 62 LGR 320, cases which were analogous in thissense, that it was held in each case that there was no offence of the typethere alleged unless there had been complete compliance with theregulations.Indeed, the only case to which the court has been referred, and speakingfor myself I am grateful for Mr Kenny's researches, which goes the otherway is Reg. v Priest in Ontario, Canada [1961] OWN 166. It was a casein the Court of Appeal, and Roach J in giving the judgment of the courtsaid, at p 168:'On the other hand. a top sign that complies, though not strictly but sosubstantiallywith the regulations as reasonably to indicate that it is authoritative anderected by thecompetent authority in intended compliance with its power under the Act, inmy opinionis equally binding on the driver, provided that he could have seen it if hewas keepinga proper look out\".It is, however, to be observed there that the scheme of the legislation wassubstantially different. The Act in that case, the Highway Traffic ActR.S.O,1960, c. 172, provided that a driver on approaching a stop sign at anintersection, 'shall bring the car or vehicle to a full stop...', and thentheAct went on to provide that the lieutenant governor in council may makeregulations providing for the erection of signs on any highways andprescribing the type of signs to be erected and the location of each typeof sign. One sees at ones that the Act did not make it an offence to fail tocomply with a 'prescribed stop sign', but only with a stop sign. It seems tome that under that scheme of legislation it was permissible to take theview that the Court of Appeal took there and the justices took in thepresentcase.Under the scheme of legislation, however, with which we are concerned,I see no escape from saying that here no offence was committed, andaccordingly I would allow the appeal and quash the conviction.Melford Stevenson J I agree.Cooke J I also agree.Appeal allowed with coatsConviction quashedSolicitors for the defendants: Tuck & Mann & Geffen S T D Jones S Co forPrice Williams & Partners. LlandeiloSolicitors for the prosecutor: Sharpe, Pritchard & Co for R H C Rowlands.GlamorganReported by Mrs Celia Fox Barrister-at-Law___________________________________________________________________MacLeod v. HamiltonHigh Court of JusticiaryHCJ Appeal(The Lord Justice-General(Clyde), Lords Carmont and Migdale)25 June 1965Article 7 of the Edinburgh Corporation (Tollcross Area -- Various Streets)Traffic Order, 1964, made under section 26 (2) of the Road Traffic Act,1960, provided that no person should cause or permit any vehicle to wait inthe streets specified in the Fifth Schedule in the Order between certainhours on certain days. Section 26 (7) of the Road Traffic Act, 1960,provides that a person who uses a vehicle in contravention of a trafficregulation order shall be liable to certain penalties. Section 29 (2) of theRoad Traffic Act, 1960, provides that where a traffic regulation order ismade by the local authority the local authority shall publish in such manneras may be prescribed by regulations made by the appropriate minister noticeof the making and effect of the order. Regulation 15 of the TrafficRegulations Orders (Procedure) (Scotland) Regulations, 1961, provided, interalia, that after an order had been made by a council, the council shouldtake all steps which were reasonably practicable to erect traffic signs onor near the roads affected by the order. A motorist left her motor car in astreet subject to the provisions of the Edinburgh Corporation Traffic Order,1964, for a period of twenty minutes at a time when no waiting was allowed.Edinburgh Corporation had erected signs in the street which did not conformto the requirements of section 51 of the 1960 Act.Held, that the Edinburgh Corporation Traffic Order, 1964, was not valid astraffic signs complying with the requirements of section 51 of the 1960 Acthad not been erected by the Corporation and, accordingly, that no offencehad been committed.Stated CaseMary Elizabeth Hamilton was charged in the Sheriff Court of theLothians and Peebles at Edinburgh at the instance of Angus MacLeod,Procurator-Fiscal, Edinburgh, upon a complaint on 12th November 1964,between the hours 8 a.m. and 6 p.m. in High Riggs she caused permitted avehicle 9016 SC to wait; contrary to article (7) of the EdinburghCorporation (Tollcross Area -- Various Streets) Traffic Order, 1964, madeunder sections 26 and 27 of the Road Traffic 1960, and to section 26 (7) ofthe said Act.The accused pleaded not guilty and evidence was led.On 6th April 1965, the Sheriff-Substitute (Cohen) found the accused notguilty.The sheriff-substitute appended the following note:--It was argued for the complainer, in the first place, that, since theoffence consisted in a contravention of an order, and not merely in failureto obey a traffic sign, as for example under section 14 of the Road TrafficAct, 1960, the question whether a sign conformed to a particular design oreven whether a sign had been erected, was immaterial. This argument, ifpressed to its logical conclusion, and the complainer did not shrink from socontending, would mean that even if there were no signs at all in theTollcross area, nonetheless, any motorist who allowed his car to wait there(unless he could bring himself within one of the excepted categories) couldbe successfully prosecuted for a contravention of the order although he wastotally unaware of the existence of the order. The implications of this arenot, however, confined to the Tollcross area; a similar situation wouldarise wherever a council, having made an order, then failed to erect anysigns. The prospect for a considerable proportion of the citizens of thiscountry would be indeed alarming, since unless they had read on oneparticular day the notice inserted in a local newspaper or in the EdinburghGazette in terms of Regulation 15 of the Statutory Instrument No. 669 of1961, they would be committing an offence of which they knew nothing. Inshort, the question comes to be whether mens rea is essential to acontravention of the present order.The law regarding mens rea in relation to a statutory offence was stated byLord Normand in Mitchell v. Morrison, 1938 J.C. 64, at page 71 (1938 S.L.T.201)in these terms: \"We are dealing with a statutory offence, not with acommon law crime, and there is no novelty in holding that a statutoryoffence may be committed although there is a complete absence of mens rea.Nevertheless, the burden lies on the Crown of showing that a statute imposesan absolute obligation, breach of which constitutes an offence and subjectsto a penalty one who is entirely free from all moral culpability... .Yet theCrown must always show that the language of the statute is, withoutdistortion or strain, habile to impose an absolute obligation.\" The presentorder was made by Edinburgh Corporation by virtue of regulations made by theSecretary of State and set forth in Statutory Instrument No. 669 of 1961.Regulation 15 © sets out the steps which a council shall take \"forthwith\"to erect signs. If the complainer's contention that no signs are necessaryis sound then this part of the regulation can amount to little more than apious hope that the council will do so. I do not think the regulation shouldbe interpreted in that way and, in my opinion, the regulation simply meanswhat it says, namely, that adequate information is to be given to personsusing the road and that is to be done by the erection of signs. This isquite the opposite to an absolute obligation and I think the Crown hasfailed to show that the words used in the regulation are habile to imposesuch an obligation.It was next maintained for the complainer that, even if the erection ofsigns was a necessary prerequisite to a contravention of the order, then thesigns (productions Nos. 7 and were sufficient, because, since this was notan area which had been created in virtue of an order made by the Secretaryof State, the provisions of section 51 of the Road Traffic Act, 1960, whichrelate to traffic signs, did apply to the Tollcross area. Accordingly, no*306 obligation was laid upon the Corporation to erect the type of signs setout in the regulations which the Secretary of State has made under thepowers granted to him by section 51 or by section 48 of the Road TrafficAct, 1930, now repealed.I have already referred to Regulation 15 of the Statutory Instrument No.669. I do not think that the word \"requisite\" as it is used insub-paragraph © refers to the type of signs to be erected, it seems to me torefer to the positions in which the signs are to be placed. Therefore, thediscretion which is given to a council by the use of the words \"considersrequisite\" does not extend to signs. The complainer does not, therefore,obtain any support from Regulation 15. Section 51 of the 1960 Act definesthe words \"traffic signs\". As I read this section it does not apply onlyto traffic signs which have been erected under an order made by theSecretary of State. The section appears to me to give the Secretary of Statepower to make regulations specifying any object (traffic sign) for conveyingto traffic warnings, information, etc. The section is not restricted toenabling the Secretary of State to make regulations specifying restrictionsor prohibitions, he already has those powers by virtue of other sections inthe Act. The Secretary of State has in fact made regulations which specifyin some detail the type of sign which may be erected. These regulations areto be found in Statutory Instrument No. 13 of 1957 as amended by Nos. 2149and 2150 of the same year. Regulation 8 in No. 13 deals in sub-paragraph ©with what may be described as \"prohibitory\" signs. There is nothing inRegulation 8 which suggests that it is to apply only to signs erected wherethe Secretary of State has made the order, nor does Part III of the FirstSchedule, where the various signs are set out in diagrams. Direction threeof No. 13 only permitted signs of the type illustrated in Part III to beerected at sites approved in writing by the Secretary of State, but this wassoon amended by No. 2150, the effect of which was to permit certain signs inPart III to be placed at sites without the approval in writing of theSecretary of State provided that they were not placed there to indicate theeffect of an order made by him. This in fact seems to envisage the kind ofsituation which has arisen in the present case because this is not an areain regard to which the Secretary of State has made an order. But there isnothing in any of the foregoing regulations which says that a council, orindeed any other body at all, has a discretion to erect any kind of signthey wish. It therefore seems to me that the words \"every traffic sign\"inRegulation 8 mean that unless an exception can be found every sign mustcomply with the requirements specified. I can find no such exception.Regulation 9 of No. 13 allows, what are described as, \"permittedvariants\"on certain signs. At the very best for the complainer onlysub-paragraphs (a) and ( could possibly be said to apply to the signs atHigh Riggs. Sub-paragraph (a) however, refers to numerals and the variationin the present case is much more than that. So far as sub-paragraph ( isconcerned it permits the wording to be varied, but the variation is allowedonly with reference to certain signs identified by their particular numbers.The signs erected by the Corporation do not appear to be identified with anyof the listed signs and no power is given to vary unlisted signs. Thepresent signs are not, therefore, signs upon which any variation is allowed.Finally, it was argued that the Secretary of State, acting presumably underRegulation 4 of No. 13, had allowed signs of the \"C\" type (productionsNos. 1 and 2) to be erected for the George Street area, accordingly thistype having received authorisation for one area it could be erected inanother area. This argument seems to me to fail for two reasons. Firstly,because there is nothing to show that the authorisation for George Streetwas intended to be authorisation for the whole of the City of Edinburgh.There was no evidence at all to enable such an inference to be established.Secondly, it fails, because the High Riggs signs are, in fact, differentfrom those authorised for George Street. The words used are not the same andthe High Riggs signs have the loose boards superimposed upon them.For the foregoing reasons, I have reached the conclusion that there has beenno contravention of the Tollcross Order and, accordingly, the accused is notguilty.The procurator-fiscal appealed to the High Court of Justiciary by statedcase.The stated case set forth, inter alia:The following facts were admitted or proved:--1. Production No. 5 is a Certified Copy of the Edinburgh Corporation(Tollcross Area -- Various Streets) Traffic Order, 1964.2. The said Order applies to the whole street in High Riggs.3. The photograph, production No. 7, is a photograph of the sign erected onthe South side of High Riggs at the east end thereof.4. The photograph, production No. 8, is a photograph of the sign erected onthe North side of High Riggs at the east end thereof.5. The photograph, production No. 10, is a photograph of the east end ofHigh Riggs.6. The photograph, production No. 9, is a photograph of the sign erected inShandwick Place, Edinburgh.7. The plan, production No. 6, is a plan having marked thereon the positionof the signs erected in the Central Edinburgh area by virtue of the saidEdinburgh Corporation Tollcross Area (Various Streets) Traffic Order, 1964.8. The letter, production No. 11, is a letter from the Town Clerk,Edinburgh, to Messrs J. & A. Hastie, 43 York Place, Edinburgh, therespondent's law agents, and in terms thereof the Corporation of Edinburghhave not asked for any authorisation to erect signs in connection with thesaid Edinburgh Corporation Tollcross Area (Various Streets) Traffic Order,1964, from the Secretary of State.9. The sketches, productions Nos. 1 and 2, are sketches showing the type ofsign used in parking zone areas. 10. George Street, Edinburgh, is a parkingmeter zone area authorised by the Secretary of State in virtue of the powersgranted to him by section 85 of the Road Traffic Act, 1960.11. The signs used to indicate that George Street is a parking meter zoneconform to those shown in productions Nos. 1 and 2, they were authorised bythe Secretary of State, the letter, production No. 3, contains the approval,and the letter, production No. 4, is from the Scottish Home Department tothe Town Clerk's Department in regard to signs for the George Street zone.12. The signs shown in productions Nos. 7 and 8, are similar in shape tothose erected for the George Street zone but they do not have the words\"Meter Parking Only\" the days and times are different and there are noloose boards hung *307 on the George Street zone signs bearing the words\"No Waiting Except As Authorised by Tollcross Area Traffic Control Order\".13. The said loose boards are made of hardboard, the background is whitewith black lettering.14. On 12th November 1964 between the hours of 8 a.m. and 6 p.m. therespondent left her motor car, registered number 9016 SC in High Riggs onthe south side thereof, for a period of twenty minutes.I found the respondent not guilty for the reasons which are given in thesecond opinion attached hereto.The question of law for the opinion of the Court was:\"Upon the foregoing facts was I entitled to find the respondent notguilty?\"The case was heard before the High Court of Justiciary on 24th June 1965.Arguedfor Appellant.--It was conceded that the signs erected in High Riggsdid not comply with the regulations prescribed by the Minister under section51 of the principal Act. (i) The respondent was charged with a contraventionof article 7 of the Order. There was no question of mens rea and she hadadmittedly left her car in High Riggs for a period of twenty minutes. Theterms of article 7 were absolute: Anderson v. Rose, 1919 J.C. 20, 1919 2S.L.T. 86; Howman v. Russell, 1923 J.C. 32, 1923 S.L.T. 336; and Mitchell v.Morrison, 1938 J.C. 64, 1938 S.L.T. 201 (ii) Estoknowledge was required, itcould be inferred. The question of what was adequate notice was not dealtwith by the sheriff-substitute: Macdonald on The Criminal Law of Scotland,5th edition, page 1. (iii) The erection of signs under the Road Traffic Act,1960 was not a necessary preliminary for contravention of the order.Regulation 15 © was accordingly ultra vires.Failure to do something after anorder had been made could not affect the validity of the order. (iv) In anyevent traffic signs in the regulations did not mean the same as trafficsigns under the 1960 Act. There was no definition of traffic signs in the1961 Regulations. The definition was contained in the regulationsthemselves.Arguedfor Respondent.--Dole was required when a person was convicted of acriminal offence, Mitchell v. Morrison (supra). (i) The 1964 Order did notcreate any offence and no penalty was specified in it. The problem was toapply the principles of Mitchell v. Morrison to the 1960 Act. Section 26 (7)assumed a duly published order under section 29 (2) and Regulation 15 © ofthe 1961 Regulations. Parliament contemplated publication as part and parcelof the order. The traffic signs were manifestly inadequate as the essentialinformation was missing. (ii) Prima facie the term \"traffic signs\"shouldhave the same meaning as in the principal Act. In terms of section 51 thesigns conveyed either information or warnings. The signs envisaged byRegulation 15 © had to conform to the regulations made under section 51 (2)of the principal Act. Counsel also referred to Lim Chin Aik v. The Queen[1963] A.C. 160.On 25th June 1965 the Court answered the question in the affirmative andrefused the appeal.The Lord Justice-General (Clyde).This is a stated case which raises quite an important issue in regard totraffic signs in relation to offences regarding traffic orders. Therespondent was charged with a contravention of article 7 of the EdinburghCorporation (Tollcross Area -- Various Streets) Traffic Order, 1964. I shallrefer to this order hereafter as the 1964 Order. The sheriff-substitute heldthat she was not guilty and this appeal has been taken by the prosecutoragainst that decision.Article 7 of the Order provides, inter alia, that no person shall cause orpermit any vehicle to wait in any of the lengths of road specified in theFifth Schedule to the Order between certain hours and on certain days. Inthe Schedule, one of the lengths of roads specified is High Riggs (wholestreet). It is not in dispute that the respondent did leave her car in thestreet during a non-permitted period. The main contention for the Crown wasthat this undisputed fact, together with the terms of the 1964 Order, wassufficient to justify the conviction of the respondent.But, in my opinion, this is too superficial a view of the situation. The1964 Order does not, by itself, create any offence nor warrant any penalty.It is a piece of delegated legislation valid only in so far as authorised bythe statute under which it is executed, namely sections 26 and 27 of theRoad Traffic Act, 1960. It is in section 26 (2) of the 1960 Statute and notin the 1964 Order that the offence is created and a penalty authorised. Itis, therefore, necessary to consider what was the offence which Parliamentwas creating.The offence (see section 26 (7)) was an offence against a traffic regulationorder. The requisites of such an order are set out in section 26 of the nextthree following sections (see the opening words in section 26 (1)). Section29 (2) of the Act, inter alia, provides that where a traffic regulationorder is made by a local authority, the local authority shall publish insuch manner as may be prescribed by regulations made by the appropriateminister, notice of the making and effect of the order. Such regulationshave in fact been made and are the Traffic Regulation Orders (Procedure)(Scotland) Regulations, 1961, Statutory Rules and Orders, 1961, No. 669.These regulations expressly purport to be made in the exercise of the powerconferred by section 29 of the 1960 Act. Paragraph 15 of these Regulations,inter alia, provides: \"After an order has been made by a council\" (i.e. inthe present case the Corporation) \"the council shall ... (c.) forthwithtake all such steps as are reasonably practicable to cause to be erected onor near to the said roads, traffic signs in such positions as the councilmay consider to *308 be requisite for the purpose of securing that adequateinformation as to the effect of the order is given to persons using the saidroads.\" It was argued to us that Regulation 15 was ultra vires but it seemsto me clearly to be within the powers conferred by Parliament by section 29(2) of the 1960 Act.I quite recognise that when Parliament creates a new offence by statute itmay so frame the duty on the members of the public that an offence can becommitted even though there is no negligence on the part of that member ofthe public, no mens rea and no knowledge even of the existence of the newstatutory duty. But that is not a situation which is lightly to be presumedand the burden would be on the Crown to satisfy the Court that the dutycreated by the statute is of this absolute character (Mitchell v. Morrison,1938 J.C, 64, per Lord Justice-General Normand, at page 71, 1938 S.L.T.201): (compare Anderson v. Rose, 1919 J.C. 20, 1919 2 S.L.T. 86; Howman v.Russell, 1913 J.C. 32, 1923 S.L.T. 336; Hunter v. Clark, 1956 J.C. 59, 1956S.L.T. 188, and Lim Chin Aik v. The Queen [1963] A.C. 160). But from thestatutory provisions in the present case to which I have already referred itseems quite clear that in this case Parliament never intended to impose anyabsolute obligation at all. It was an integral part of the statutory schemefor a traffic regulation order that notice by means of traffic signs shouldbe given to the public using the roads which were restricted so as to warnusers of their obligations. Unless these traffic signs were thereaccordingly and the opportunity was thus afforded to the public to know whatthey could not legally do, no offence would be committed. It would, indeed,be anomalous and absurd were the position otherwise. Apart altogether frompersons familiar with the restrictions, visitors or long-distance travellerscould not reasonably be expected to know of the existence of therestrictions in any particular street and it is only natural therefore thatParliament required adequate notice of the restriction on the site before anoffence against these traffic regulations could be charged and a penaltyexacted.The next question therefore is whether in this case the notice required byRegulation 15 © was given. The notice required is to take the form of\"traffic signs\". There is no further definition in the regulations of whatis meant by \"traffic signs\" and one is, therefore, driven back to thestatute under which the regulations were made for a definition of thesewords. The definition is contained in section 51 of the 1960 Act. Unlessthere had been some restricted meaning given in the regulations to the words\"traffic signs\" it is necessary, according to ordinary rules ofconstruction, that the words as used in the Regulations of 1961 which weremade under the Act must have the same meaning as these words in the Actitself. But it is clear that the signs erected at High Riggs did not conformto the requirements of a traffic sign as defined in section 51 and theregulations made by the Secretary of State under that section. There is noprovision in the Act or in the regulations for a different kind of trafficsign not authorised by the minister.On the whole matter, therefore, in my opinion, there was a duty imposed onthe Corporation as an essential part of the validity of the TrafficRegulation Order to publicise the order in a certain way, namely by erectingcertain specified traffic signs. The requisite signs were not erected andthe offence charged, which is a purely statutory offence, was not thereforecommitted. For the existence of a valid traffic regulation order inconformity with the Act and Regulations is a sine qua non of theestablishment of an offence against the order.The question put to us therefore, in my opinion, should be answered in theaffirmative.Lord Carmont.I agree with your Lordship.Lord Migdale.In view of what your Lordship has said I do not find it necessary to repeatthe facts in detail. Two things are clear (first) the signs erected do notconform to the pattern and colour laid down by Statutory Instrument 13 of1957 and (second) the signs erected are ambiguous.If the appellant is right neither of these things matter. His argument isthat the Tollcross Area Traffic Order is by itself effective to impose anabsolute prohibition against waiting in High Riggs. As the respondent's cardid wait there for some twenty minutes she was liable, on summaryconviction, to a fine not exceeding £20. The test to be applied is anobjective one and the fact that the respondent claimed she had no mens reawas irrelevant. This contention was rejected by the sheriff-substitute and,in my view, he was right to do so. Ignorance that a statutory regulation hasbeen breached is no defence if the obligation is an absolute one (see LordJustice-General Normand in Mitchell v. Morrison, 1938 J.C. 64, at page 71,1938 S.L.T. 201). The question whether the obligation is an absolute one, oris qualified in some way so as to imply that the breach must have beencommitted \"knowingly\", is to be decided by considering both the languageof the order creating the offence and the subject matter with which itdeals. In the case of Lim Chin Aik v. The Queen [1963] A.C. 160, P.C.LordEvershed referred (at page 172) with approval to a passage by Mr JusticeWright in Sherras' case ([1895] 1 Q.B. 918, at page 921). \"There is apresumption that mens rea or evil intention or knowledge of the wrongfulnessof the Act, is an essential ingredient in every offence, but thatpresumption is liable to be displaced either by the words of the statutecreating the offence or by the subject matter with which it deals and bothmust be considered\". I think this accords with our law in Scotland and thatthe subject matter must be looked at as well as the phraseology.The appellant contended that the words of the order were unambiguous andthat paragraph (7) imposed an absolute prohibition against waiting in HighRiggs between certain hours on certain days. Once that order was signed andsealed it came *309 into force and although it required to be published oncein a local newspaper and the Edinburgh Gazette no sign boards required to beerected at the entry to High Riggs.The subject matter of this order is the regulation of traffic in theTollcross area of the city. This requires that traffic shall proceed in onedirection along another street. Certain turns are prohibited in some streetsand waiting is banned in yet another group of streets. If the appellant isright this well regulated flow of traffic is to be achieved by nothing morethan signing an order in the City Chambers. Common sense, if nothing more,requires that there should be adequate and intelligible notices at theimportant points on the streets concerned so that those who do not read theScotsman or subscribe to the Edinburgh Gazette may know what to do when theyget to Tollcross. The fact that notices of a kind were in fact put upsuggests that this aspect of the problem was not overlooked.However the question is, in my view, resolved if one turns from the order tothe Road Traffic Act. 1960. Section 26 of that Act is the statutory warrantfor the making of the order in question. Counsel for the appellant said onemust not look beyond that section and in particular we must not have regardto section 29 (2) of the Act because it deals only with the procedure ofmaking the order and not with steps to make it effective. For my part I donot know why I should not have regard to the statute as a whole. Section 29provides that where a traffic regulation is made by a local authority \"thelocal authority shall publish, in such manner as may be prescribed byregulations made by the minister, notice of the making and effect of theorder\". The Traffic Regulation Orders (Procedure) (Scotland) Regulations,1961 (S.I. 1961, No. 669) were made under section 29 of the Road TrafficAct, 1960. Regulation 15 requires that after the order has been made thecouncil shall take certain steps. These include giving notice in the pressand in the Gazette and shall \"© forthwith take all such steps as arereasonably practicable to cause to be erected on the roads, traffic signs... for the purpose of securing that adequate information as to the effectof the order is given to persons using the said roads\".In my opinion the erection of traffic signs at the locus is properlyrequired by the regulations as part of the procedure to make known theeffect of the order. In deference to counsel for the appellant's contention,I would point out that the primary meaning of the words \"published\" is notconfined to printing in a newspaper but is \"to make known publicly orgenerally\" (see S.O.D., Volume II, page 1615).If I am right it means that the order is not effective unless and until thecouncil complies with Regulation 15 © and erects road signs at the locus.Signs were erected but they were not the proper ones nor were they clear.Section 51 of the Road Traffic Act deals with Road Signs and StatutoryInstrument No. 13 of 1957. Regulation 8 deals with \"prohibitory signs\" anddefines their form and colour. It is conceded in this case that the signserected do not match the pattern laid down. Accordingly, it would appearthat the council has not done all that it is required to do regarding theorder and cannot claim that the respondent is liable to the penalty imposedby section 26 (7) of the Road Traffic Act, 1960.Even if I am wrong regarding the application of section 51 of the Act andthe Statutory Instruments of 1957 and take the view that the Corporation isentitled to design signs to its own pattern, I do not regard the one shownin production No. 7 as giving adequate information to persons using the HighRiggs. If it had said \"No waiting\" or \"No waiting in this Street\"itmight have had that effect but all it says is that the driver is entering a\"controlled zone\" and can only wait if authorised to do so by the order.How is he to know if his \"wait\" is \"prohibited\" or \"authorised\"?At any rate it is clear that the notice does not impose on the driver anabsolute obligation not to wait in High Riggs.For these reasons, I think the question should be answered in theaffirmative.Hope this helps.Regards,GilesIf the truth can be told so as to be understood it will be believed -Terence McKenna>From: "Giles Pepperell"
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