MacLeod v Hamiliton
MacLeod v. Hamilton,
Summary: Where a local authority makes a traffic regulation order pursuant to the Road Traffic Act 1960 prohibiting the parking of motor-vehicles in a certain street, an offence is not committed by parking in that street unless notice of the prohibition is given to the public in the form of a traffic sign within the definition of the Road Traffic Act 1960 s. 51.
MacLeod v. Hamilton
High Court of Justiciary
(The Lord Justice-General (Clyde), Lords Carmont and Migdale)
25 June 1965
Article 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 in the streets specified in the Fifth Schedule in the Order between certain hours on certain days. Section 26 (7) of the Road Traffic Act, 1960, provides that a person who uses a vehicle in contravention of a traffic regulation order shall be liable to certain penalties. Section 29 (2) of the Road Traffic Act, 1960, provides that where a traffic regulation order is made by the local authority the local authority shall publish in such manner as may be prescribed by regulations made by the appropriate minister notice of the making and effect of the order. Regulation 15 of the Traffic Regulations Orders (Procedure) (Scotland) Regulations, 1961, provided, inter alia, that after an order had been made by a council, the council should take all steps which were reasonably practicable to erect traffic signs on or near the roads affected by the order. A motorist left her motor car in a street 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 conform to the requirements of section 51 of the 1960 Act.
Held, that the Edinburgh Corporation Traffic Order, 1964, was not valid as traffic signs complying with the requirements of section 51 of the 1960 Act had not been erected by the Corporation and, accordingly, that no offence had been committed.
Stated Case: Mary Elizabeth Hamilton was charged in the Sheriff Court of the Lothians 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 a vehicle 9016 SC to wait; contrary to article (7) of the Edinburgh Corporation (Tollcross Area -- Various Streets) Traffic Order, 1964, made under sections 26 and 27 of the Road Traffic 1960, and to section 26 (7) of the said Act.
The accused pleaded not guilty and evidence was led.
On 6th April 1965, the Sheriff-Substitute (Cohen) found the accused not guilty.
The sheriff-substitute appended the following note:--
It was argued for the complainer, in the first place, that, since the offence consisted in a contravention of an order, and not merely in failure to obey a traffic sign, as for example under section 14 of the Road Traffic Act, 1960, the question whether a sign conformed to a particular design or even whether a sign had been erected, was immaterial. This argument, if pressed to its logical conclusion, and the complainer did not shrink from so contending, would mean that even if there were no signs at all in the Tollcross area, nonetheless, any motorist who allowed his car to wait there (unless he could bring himself within one of the excepted categories) could be successfully prosecuted for a contravention of the order although he was totally unaware of the existence of the order. The implications of this are not, however, confined to the Tollcross area; a similar situation would arise wherever a council, having made an order, then failed to erect any signs. The prospect for a considerable proportion of the citizens of this country would be indeed alarming, since unless they had read on one particular day the notice inserted in a local newspaper or in the Edinburgh Gazette in terms of Regulation 15 of the Statutory Instrument No. 669 of 1961, they would be committing an offence of which they knew nothing. In short, the question comes to be whether mens rea is essential to a contravention of the present order.
The law regarding mens rea in relation to a statutory offence was stated by Lord 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 a common law crime, and there is no novelty in holding that a statutory offence may be committed although there is a complete absence of mens rea. Nevertheless, the burden lies on the Crown of showing that a statute imposes an absolute obligation, breach of which constitutes an offence and subjects to a penalty one who is entirely free from all moral culpability... .Yet the Crown must always show that the language of the statute is, without distortion or strain, habile to impose an absolute obligation.\" The present order was made by Edinburgh Corporation by virtue of regulations made by the Secretary of State and set forth in Statutory Instrument No. 669 of 1961. Regulation 15 (c) sets out the steps which a council shall take \"forthwith\" to erect signs. If the complainer's contention that no signs are necessary is sound then this part of the regulation can amount to little more than a pious hope that the council will do so. I do not think the regulation should be interpreted in that way and, in my opinion, the regulation simply means what it says, namely, that adequate information is to be given to persons using the road and that is to be done by the erection of signs. This is quite the opposite to an absolute obligation and I think the Crown has failed to show that the words used in the regulation are habile to impose such an obligation.
It was next maintained for the complainer that, even if the erection of signs was a necessary prerequisite to a contravention of the order, then the signs (productions Nos. 7 and 8) were sufficient, because, since this was not an area which had been created in virtue of an order made by the Secretary of State, the provisions of section 51 of the Road Traffic Act, 1960, which relate to traffic signs, did apply to the Tollcross area. Accordingly, no *306 obligation was laid upon the Corporation to erect the type of signs set out in the regulations which the Secretary of State has made under the powers granted to him by section 51 or by section 48 of the Road Traffic Act, 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 in sub-paragraph (c) refers to the type of signs to be erected, it seems to me to refer to the positions in which the signs are to be placed. Therefore, the discretion which is given to a council by the use of the words \"considers requisite\" does not extend to signs. The complainer does not, therefore, obtain any support from Regulation 15. Section 51 of the 1960 Act defines the words \"traffic signs\". As I read this section it does not apply only to traffic signs which have been erected under an order made by the Secretary of State. The section appears to me to give the Secretary of State power to make regulations specifying any object (traffic sign) for conveying to traffic warnings, information, etc. The section is not restricted to enabling the Secretary of State to make regulations specifying restrictions or prohibitions, he already has those powers by virtue of other sections in the Act. The Secretary of State has in fact made regulations which specify in some detail the type of sign which may be erected. These regulations are to be found in Statutory Instrument No. 13 of 1957 as amended by Nos. 2149 and 2150 of the same year.
Regulation 8 in No. 13 deals in sub-paragraph (c) with what may be described as \"prohibitory\" signs. There is nothing in Regulation 8 which suggests that it is to apply only to signs erected where the Secretary of State has made the order, nor does Part III of the First Schedule, where the various signs are set out in diagrams. Direction three of No. 13 only permitted signs of the type illustrated in Part III to be erected at sites approved in writing by the Secretary of State, but this was soon amended by No. 2150, the effect of which was to permit certain signs in Part III to be placed at sites without the approval in writing of the Secretary of State provided that they were not placed there to indicate the effect of an order made by him. This in fact seems to envisage the kind of situation which has arisen in the present case because this is not an area in regard to which the Secretary of State has made an order. But there is nothing in any of the foregoing regulations which says that a council, or indeed any other body at all, has a discretion to erect any kind of sign they wish. It therefore seems to me that the words \"every traffic sign\" in Regulation 8 mean that unless an exception can be found every sign must comply with the requirements specified. I can find no such exception.
Regulation 9 of No. 13 allows, what are described as, \"permitted variants\"on certain signs. At the very best for the complainer only sub-paragraphs (a) and (b) could possibly be said to apply to the signs at High Riggs. Sub-paragraph (a) however, refers to numerals and the variation in the present case is much more than that. So far as sub-paragraph (b) is concerned it permits the wording to be varied, but the variation is allowed only with reference to certain signs identified by their particular numbers. The signs erected by the Corporation do not appear to be identified with any of the listed signs and no power is given to vary unlisted signs. The present signs are not, therefore, signs upon which any variation is allowed.
Finally, it was argued that the Secretary of State, acting presumably under Regulation 4 of No. 13, had allowed signs of the \"C\" type (productions Nos. 1 and 2) to be erected for the George Street area, accordingly this type having received authorisation for one area it could be erected in another area. This argument seems to me to fail for two reasons. Firstly, because there is nothing to show that the authorisation for George Street was 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, different from those authorised for George Street. The words used are not the same and the High Riggs signs have the loose boards superimposed upon them.
For the foregoing reasons, I have reached the conclusion that there has been no contravention of the Tollcross Order and, accordingly, the accused is not guilty.
The procurator-fiscal appealed to the High Court of Justiciary by stated case.
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 on the South side of High Riggs at the east end thereof.
4. The photograph, production No. 8, is a photograph of the sign erected on the North side of High Riggs at the east end thereof.
5. The photograph, production No. 10, is a photograph of the east end of High Riggs.
6. The photograph, production No. 9, is a photograph of the sign erected in Shandwick Place, Edinburgh.
7. The plan, production No. 6, is a plan having marked thereon the position of the signs erected in the Central Edinburgh area by virtue of the said Edinburgh 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, the respondent's law agents, and in terms thereof the Corporation of Edinburgh have not asked for any authorisation to erect signs in connection with the said 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 of sign used in parking zone areas. 10. George Street, Edinburgh, is a parking meter zone area authorised by the Secretary of State in virtue of the powers granted to him by section 85 of the Road Traffic Act, 1960.
11. The signs used to indicate that George Street is a parking meter zone conform to those shown in productions Nos. 1 and 2, they were authorised by the Secretary of State, the letter, production No. 3, contains the approval, and the letter, production No. 4, is from the Scottish Home Department to the 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 to those 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 no loose 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 white with black lettering.
14. On 12th November 1964 between the hours of 8 a.m. and 6 p.m. the respondent left her motor car, registered number 9016 SC in High Riggs on the south side thereof, for a period of twenty minutes.
I found the respondent not guilty for the reasons which are given in the second 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 not guilty?\"
The case was heard before the High Court of Justiciary on 24th June 1965.
Argued for Appellant.--It was conceded that the signs erected in High Riggs did not comply with the regulations prescribed by the Minister under section 51 of the principal Act. (i) The respondent was charged with a contravention of article 7 of the Order. There was no question of mens rea and she had admittedly left her car in High Riggs for a period of twenty minutes. The terms of article 7 were absolute: Anderson v. Rose, 1919 J.C. 20, 1919 2 S.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) as to knowledge was required, it could be inferred. The question of what was adequate notice was not dealt with 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 (c) was accordingly ultra vires. Failure to do something after an order had been made could not affect the validity of the order. (iv) In any event traffic signs in the regulations did not mean the same as traffic signs under the 1960 Act. There was no definition of traffic signs in the 1961 Regulations. The definition was contained in the regulations themselves.
Argued for Respondent.--Dole was required when a person was convicted of a criminal offence, Mitchell v. Morrison (supra). (i) The 1964 Order did not create any offence and no penalty was specified in it. The problem was to apply 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 (c) of the 1961 Regulations. Parliament contemplated publication as part and parcel of the order. The traffic signs were manifestly inadequate as the essential information was missing. (ii) Prima facie the term \"traffic signs\"should have the same meaning as in the principal Act. In terms of section 51 the signs conveyed either information or warnings. The signs envisaged by Regulation 15 (c) 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  A.C. 160.
On 25th June 1965 the Court answered the question in the affirmative and refused the appeal.
The Lord Justice-General (Clyde).
This is a stated case which raises quite an important issue in regard to traffic signs in relation to offences regarding traffic orders. The respondent was charged with a contravention of article 7 of the Edinburgh Corporation (Tollcross Area -- Various Streets) Traffic Order, 1964. I shall refer to this order hereafter as the 1964 Order. The sheriff-substitute held that she was not guilty and this appeal has been taken by the prosecutor against that decision.
Article 7 of the Order provides, inter alia, that no person shall cause or permit any vehicle to wait in any of the lengths of road specified in the Fifth Schedule to the Order between certain hours and on certain days. In the Schedule, one of the lengths of roads specified is High Riggs (whole street). It is not in dispute that the respondent did leave her car in the street during a non-permitted period. The main contention for the Crown was that this undisputed fact, together with the terms of the 1964 Order, was sufficient to justify the conviction of the respondent.
But, in my opinion, this is too superficial a view of the situation. The 1964 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 by the statute under which it is executed, namely sections 26 and 27 of the Road Traffic Act, 1960. It is in section 26 (2) of the 1960 Statute and not in the 1964 Order that the offence is created and a penalty authorised. It is, therefore, necessary to consider what was the offence which Parliament was creating.
The offence (see section 26 (7)) was an offence against a traffic regulation order. The requisites of such an order are set out in section 26 of the next three following sections (see the opening words in section 26 (1)). Section 29 (2) of the Act, inter alia, provides that where a traffic regulation order is made by a local authority, the local authority shall publish in such manner as may be prescribed by regulations made by the appropriate minister, notice of the making and effect of the order. Such regulations have 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 power conferred 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. in the present case the Corporation) \"the council shall ... (c.) forthwith take all such steps as are reasonably practicable to cause to be erected on or near to the said roads, traffic signs in such positions as the council may consider to *308 be requisite for the purpose of securing that adequate information as to the effect of the order is given to persons using the said roads.\" It was argued to us that Regulation 15 was ultra vires but it seems to 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 it may so frame the duty on the members of the public that an offence can be committed even though there is no negligence on the part of that member of the public, no mens rea and no knowledge even of the existence of the new statutory duty. But that is not a situation which is lightly to be presumed and the burden would be on the Crown to satisfy the Court that the duty created 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, 1956 S.L.T. 188, and Lim Chin Aik v. The Queen  A.C. 160). But from the statutory provisions in the present case to which I have already referred it seems quite clear that in this case Parliament never intended to impose any absolute obligation at all. It was an integral part of the statutory scheme for a traffic regulation order that notice by means of traffic signs should be given to the public using the roads which were restricted so as to warn users of their obligations. Unless these traffic signs were there accordingly and the opportunity was thus afforded to the public to know what they could not legally do, no offence would be committed. It would, indeed, be anomalous and absurd were the position otherwise. Apart altogether from persons familiar with the restrictions, visitors or long-distance travellers could not reasonably be expected to know of the existence of the restrictions in any particular street and it is only natural therefore that Parliament required adequate notice of the restriction on the site before an offence against these traffic regulations could be charged and a penalty exacted.
The next question therefore is whether in this case the notice required by Regulation 15 (c) was given. The notice required is to take the form of \"traffic signs\". There is no further definition in the regulations of what is meant by \"traffic signs\" and one is, therefore, driven back to the statute under which the regulations were made for a definition of these words. The definition is contained in section 51 of the 1960 Act. Unless there had been some restricted meaning given in the regulations to the words \"traffic signs\" it is necessary, according to ordinary rules of construction, that the words as used in the Regulations of 1961 which were made under the Act must have the same meaning as these words in the Act itself. But it is clear that the signs erected at High Riggs did not conform to the requirements of a traffic sign as defined in section 51 and the regulations made by the Secretary of State under that section. There is no provision in the Act or in the regulations for a different kind of traffic sign not authorised by the minister.
On the whole matter, therefore, in my opinion, there was a duty imposed on the Corporation as an essential part of the validity of the Traffic Regulation Order to publicise the order in a certain way, namely by erecting certain specified traffic signs. The requisite signs were not erected and the offence charged, which is a purely statutory offence, was not therefore committed. For the existence of a valid traffic regulation order in conformity with the Act and Regulations is a sine qua non of the establishment of an offence against the order.
The question put to us therefore, in my opinion, should be answered in the affirmative.
I agree with your Lordship.
In view of what your Lordship has said I do not find it necessary to repeat the facts in detail. Two things are clear (first) the signs erected do not conform to the pattern and colour laid down by Statutory Instrument 13 of 1957 and (second) the signs erected are ambiguous.
If the appellant is right neither of these things matter. His argument is that the Tollcross Area Traffic Order is by itself effective to impose an absolute prohibition against waiting in High Riggs. As the respondent's car did wait there for some twenty minutes she was liable, on summary conviction, to a fine not exceeding £20. The test to be applied is an objective one and the fact that the respondent claimed she had no mens rea was irrelevant. This contention was rejected by the sheriff-substitute and, in my view, he was right to do so. Ignorance that a statutory regulation has been breached is no defence if the obligation is an absolute one (see Lord Justice-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, or is qualified in some way so as to imply that the breach must have been committed \"knowingly\", is to be decided by considering both the language of the order creating the offence and the subject matter with which it deals. In the case of Lim Chin Aik v. The Queen  A.C. 160, P.C. Lord Evershed referred (at page 172) with approval to a passage by Mr Justice Wright in Sherras' case ( 1 Q.B. 918, at page 921). \"There is a presumption that mens rea or evil intention or knowledge of the wrongfulness of the Act, is an essential ingredient in every offence, but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals and both must be considered\". I think this accords with our law in Scotland and that the subject matter must be looked at as well as the phraseology.
The appellant contended that the words of the order were unambiguous and that paragraph (7) imposed an absolute prohibition against waiting in High Riggs between certain hours on certain days. Once that order was signed and sealed it came *309 into force and although it required to be published once in a local newspaper and the Edinburgh Gazette no sign boards required to be erected at the entry to High Riggs.
The subject matter of this order is the regulation of traffic in the Tollcross area of the city. This requires that traffic shall proceed in one direction along another street. Certain turns are prohibited in some streets and waiting is banned in yet another group of streets. If the appellant is right this well regulated flow of traffic is to be achieved by nothing more than signing an order in the City Chambers. Common sense, if nothing more, requires that there should be adequate and intelligible notices at the important points on the streets concerned so that those who do not read the Scotsman or subscribe to the Edinburgh Gazette may know what to do when they get to Tollcross. The fact that notices of a kind were in fact put up suggests that this aspect of the problem was not overlooked.
However the question is, in my view, resolved if one turns from the order to the Road Traffic Act. 1960. Section 26 of that Act is the statutory warrant for the making of the order in question. Counsel for the appellant said one must not look beyond that section and in particular we must not have regard to section 29 (2) of the Act because it deals only with the procedure of making the order and not with steps to make it effective. For my part I do not know why I should not have regard to the statute as a whole. Section 29 provides that where a traffic regulation is made by a local authority \"the local authority shall publish, in such manner as may be prescribed by regulations made by the minister, notice of the making and effect of the order\". The Traffic Regulation Orders (Procedure) (Scotland) Regulations, 1961 (S.I. 1961, No. 669) were made under section 29 of the Road Traffic Act, 1960. Regulation 15 requires that after the order has been made the council shall take certain steps. These include giving notice in the press and in the Gazette and shall \"(c) forthwith take all such steps as are reasonably practicable to cause to be erected on the roads, traffic signs ... for the purpose of securing that adequate information as to the effect of the order is given to persons using the said roads\".
In my opinion the erection of traffic signs at the locus is properly required by the regulations as part of the procedure to make known the effect 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 not confined to printing in a newspaper but is \"to make known publicly or generally\" (see S.O.D., Volume II, page 1615).
If I am right it means that the order is not effective unless and until the council complies with Regulation 15 (c) 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 Statutory Instrument No. 13 of 1957. Regulation 8 deals with \"prohibitory signs\" and defines their form and colour. It is conceded in this case that the signs erected do not match the pattern laid down. Accordingly, it would appear that the council has not done all that it is required to do regarding the order and cannot claim that the respondent is liable to the penalty imposed by section 26 (7) of the Road Traffic Act, 1960.
Even if I am wrong regarding the application of section 51 of the Act and the Statutory Instruments of 1957 and take the view that the Corporation is entitled to design signs to its own pattern, I do not regard the one shown in production No. 7 as giving adequate information to persons using the High Riggs. If it had said \"No waiting\" or \"No waiting in this Street\"it might 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 an absolute obligation not to wait in High Riggs.
For these reasons, I think the question should be answered in the affirmative.