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 Post subject: McKenzie v DPP May 1996
PostPosted: Thu Jul 06, 2017 9:47 pm 
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Thursday 2 May 1996

Lord Justice Pill

Mr Justice Newman will give the first judgment of the court.

Mr Justice Newman

This is an appeal by way of case stated. The appellant was convicted by magistrates on 12 April 1995 of failing to conform with the indication given by a traffic sign, namely a double white line marking, contrary tosection 36(1) of the Road Traffic Act 1988. He appealed to the Crown Court and the Crown Court dismissed his appeal.

The prohibition on a vehicle stopping on any length of road on which there is a double white line is imposed by regulation 26(2)(a) of the Traffic Sign Regulations 1994. This appeal raises an interesting and not unimportant point of interpretation. It is necessary for me to set out the relevant subsections in full. The prohibition commences:

"(2) The requirements conveyed by the road marking mentioned in paragraph (1) shall be that—

(a) subject to paragraph (3), no vehicle shall stop on any length of road along which the marking has been placed at any point between the ends of the marking; and

….

(3) Nothing in paragraph (2)(a) shall apply—

(a) so as to prevent a vehicle stopping on any length of road so long as may be necessary for any of the following purposes—

(i) to enable a person to board or alight from the vehicle,

(ii) to enable goods to be loaded on to or to be unloaded from the vehicle,

(iii) to enable the vehicle to be used in connection with—

(a) any building operation or demolition;

(b) the removal of any obstruction to traffic;

(c) the maintenance, improvement or reconstruction of that length of road; or

(d) the laying, erection, alteration or repair in or near that length of road on any sewer or any main, pipe or apparatus for the supply of gas, water or electricity, or of any telecommunications apparatus as defined in paragraph 1(1) of Schedule 2 to the Telecommunications Act 1984(a),

if the vehicle cannot be used for such a purpose without stopping on the length of road;"

The appellant contended in the courts below that he fell within regulation 26(3)(a), namely that he was someone who was permitted to stop on the length of road under these regulations because he stopped for the purpose set out in (i), namely to enable a person to board the vehicle.

The appellant was a taxi driver. On 27 November 1994, the occasion in question, he was sent to a public house to collect a fare. Finding that he could not get into the public house car park, he stopped directly outside the premises and turned down his lights. At that point the road was governed by double white lines in its centre. While the fares were making their way to the taxi, a car approaching from the opposite direction collided with the taxi.

On those facts, which were not in dispute, plainly the appellant was enabling a person or persons to board the vehicle. However, the prosecution contended that subsection (3)(a)(i) was qualified by the words which appear at the end of subsection (3)(iii), namely these critical words "if the vehicle cannot be used for such a purpose without stopping on the length of road".

On the evidence, and it is not in dispute, there were places available where the appellant could have drawn off the road, parked and picked up his fare. For that reason he was convicted by the magistrates and for that reason his appeal to the Crown Court was unsuccessful.

The only issue, therefore, which arises on this appeal is whether or not the prosecution were right to contend that the purpose which the appellant was fulfilling on the night in question was on that particular road governed by the critical words which I have set out above.

Mr Drew, who appeared for the appellant in this court, in his helpful submissions made a number of points in support of an interpretation of the subsection which confined the application ofwhat I have already, and shall in future refer to as "the critical words" to the purposes set out in (iii) at (a), (b), (c) and (d). He submitted that there was a distinction between the purposes at (i) upon which the appellant relies, and (ii) which enables goods to be loaded or to be unloaded from a vehicle. He submitted that the purposes at (iii)(a), (b), (c) and (d) are purpose which would take a longer period of time to fulfil than the purposes at (i) and (ii). His submission was that the legislative purpose did not require limiting the right to make such short stops in what amounts to a "last resort situation", as the critical words provide.

Secondly he submitted that the words "used for such a purpose" in the critical words reflected the words at the commencement of (iii), namely "to enable the vehicle to be used in connection with".

He next submitted that the layout of the limitation as it is in the 1994 regulations, by which I mean the precise position on the Queen's Printers' copy of the regulations of the critical words, falling as they do below the words "to enable" which commence (iii), and beneath the words "to enable" which commence (i) and (ii) is of assistance. His submission was that the position beneath the words "to enable" indicated that the critical words qualified only the purposes at (a), (b), (c) and (d). Further he also submitted, this being a penal provision, there were at least two reasonable interpretations and the court should adopt the construction which avoided a penalty. He relied upon the case of Tuck v Priester [1887] 19 QBD 629, per Lord Esher at page 6638. He also relied, in his skeleton argument, upon Director of Public Prosecutions v Ottewell [1970] AC, per Lord Reid at page 649. That particular passage was also relied upon by Mr Campbell-Tiech for the respondent.

Additionally, Mr Drew referred us to the current edition of the Highway Code and to the fact that, as appears from the box on the inside of the frontispiece, it is issued with the authority of Parliament. It is a code which was laid before both Houses of Parliament in June 1992. At page 34, Rule 138 states: "You must not stop or park on:" There are then various bullet marks, the relevant one reads:

"a road marked with double white lines even if one of the lines is broken, except to pick up to set down passengers;"

He further referred us to a letter, dated 6 February 1996, from the Department of Transport, signed by somebody from the Traffic Signs Branch, dealing with stopping within double white lines. It was a letter sent in response to the appellant; it is personally addressed to him. In its relevant part it states:

"Regulation 26(3((a)(i) of the 1994 Traffic Signs Regulations states that 'nothing ….shall prevent a vehicle stopping on any length of road ….to enable a person to board or alight from the vehicle'. There is no qualification to that provision. The qualification at the end of regulation 26(3)(a)—'if the vehicle cannot be used for such a purpose without stopping on the length of road' only applies to the various activities listed in sub-paragraphs (a) to (d) of Regulations 26(23)(a)(iii) and not to (i) and (ii)—stopping to set down or pick up passengers or to load or unload goods.

The qualification relating to a lay-by or verge in regulation 23(3) in the 1981 Traffic Signs Regulations was removed in the 1994 Regulations, because many verges now have waiting restrictions imposed on them, and we also wanted to make it clear that a vehicle could stop in a lay-by forany purpose on a length of road with double white lines."

Mr Drew invited our attention to the Highway Code and to that letter because, in my judgment, he rightly states there could not be a clearer statement of what he, on behalf of the appellant, says is the true meaning of the regulation. As part of the legal exercise in interpretation he submits that it is permissible for the court to have regard to it because if one seeks to determine whether there is more than one reasonable interpretation of a provision, and thereafter applies the relevant principle to which I have alluded, then this supports his contention that two reasonable interpretations exist.

Further, he drew attention to the 1981 Regulations, which it will be apparent the 1994 Regulations replaced. The relevant 1981 Regulations are the Traffic Signs Regulations and General Directions 1981, SI 1981 No. 859. He drew our attention to, as it was then, Regulation 23 and the relevant subsections and their content and lay-out to which I shall return.

Speaking for myself, I found these submissions helpful. When construing a statutory provision it is always helpful to have regard to any number of points that can properly be made, even though many may be ambivalent. They may point in both directions and none may be conclusive. In such cases a leaning towards a particular meaning normally emerges from the process of considering each of the relevant points. However, in this instance I derive most assistance from the content and to a much lesser extent the format of the 1981 Regulations. Regulation 23(2) provided:

"The requirements conveyed by the road marking mentioned in the last preceding paragraph shall be that—

(a) subject to the provisions of paragraph (3), no vehicle shall stop on any length of road along which the marking has been placed at any point between the two ends of the marking;

….

(3) Nothing in sub-paragraph (a) of the last preceding paragraph shall apply—

(a) so as to prevent a vehicle stopping on any length of road so long as may be necessary;"

(i) and (ii) are identical to the 1994 Regulations, but (iii) in the 1981 Regulations significantly, in my judgment, provided as follows:

"to enable the vehicle, if it cannot be used for such purpose without stopping on that length of road, to be used in connection with …."

Thereafter there followed a series of purposes or operations which are subsequently reflected in the 1994 amendment of new regulations by the alphabetical division of those purposes into (a), (b), (c) and (d). After the rolled-up form of purposes had been set out the provision went on to provide:

"….so, however, that no vehicle shall be enabled by virtue of this sub-paragraph to stop for any of the purpose at (i), (ii) or (iii) above on a part of that length of road, not being a lay-by or a road verge, if it is reasonably practicable to stop the vehicle for that purpose on a part ofthat length of the road, being a lay-by or a road verge;"

Again it can be seen from the lay-out in the 1981 Regulations that those particular words commencing with "so" and ending with "verge" are positioned in the Queen's Printers' edition of the Regulations far to the left, namely to a point which falls immediately below the margin on the left-hand side of the body of the Regulations. Two points, in my judgment, can be made about the critical words. The critical words are the same in the 1981 Regulations, save only for consequential amendments. Further, they are at the commencement of sub-paragraph (iii) and as a result only qualify that paragraph and not (i) and (ii).

Secondly, the qualification relating to the use of lay-bys and verges which is expressly stated to apply to each of the sub-paragraphs (i), (ii) and (iii) has been removed by the 1994 Regulations. Thus, in my judgment, looking at the two sets of Regulations, it is apparent that the substantive amendment brought about the 1994 Regulations was to delete the qualification relating to lay-bys and road verges. Thereafter the draftsman of the regulations carried out consequentially structural alterations to the section because that particular provision has been deleted. He did two things. He unscrambled the unidentified list as it had appeared in the 1981 Regulations, presenting it alphabetically, and then, as Mr Drew has pointed out, he shifted the paragraph which in its position and in its content had originally related to lay-bys. By amendment he shifted the words which had been at the commencement of the sub-paragraph to the end where they replace the lay-by and road verges provision. Having looked at the two regulations and having compared them, in my judgment there can be no basis for contending that the 1994 Regulations carried out two substantive amendments, namely, not only deleting the provision in relation to verges and lay-bys, but also causing the purposes at (i) and (ii) to be embraced by the qualification of the critical words, when they had hitherto not been so embraced.

Any other material which may be available to indicate to the contrary must be examined. But, as I have stated, taking that point on its own, in my judgment, unless there were strong indicationsthat Parliament had intended an amendment of the type upon which the prosecution here rely, I conclude that the meaning is clear from what I have set out above.

Other matters now fall for consideration. Mr Drew submitted that the layout itself, namely the fact that the relevant words had been shifted from the far left to a position I have already identified beneath the words "to enable" was deliberately employed by the draftsman and was therefore significant. In my the judgment the point is not without interest. We were taken to a number of authorities, but none took the matter further. As a matter of principle I would be cautious in placing much weight upon spacing and lay-out in the way that Mr Drew invited us. But having seen what indeed the draftsman did, I believe that what can be gained from it is that that meaning, which in my judgment is the true meaning of the 1994 Regulations, can at least be said to be reflected in the action that the draftsman had taken by way of changed lay-out.

As to the other points made by Mr Drew, I would not place much weight on the penal argument. Mr Campbell-Tiech submitted that it is only to be resorted to when there is a true ambiguity, not just good argument for more than one meaning.

Mr Drew, as I have indicated, relied upon the wording of the 1994 Regulations which introduced the use of the plural "purposes" at the commencement of the section. He contrasted that with that part of the critical words which related to "for such a purpose". I take that as a confirming indication of the correctness of the limits by way of amendment effected by the 1994 regulations.

Whilst the Highway Code carries the weight and approval of Parliament, it would not be safe in my judgment to treat it as going that far to resolve the issue. The letter to the appellant from the Department of Transport goes even less far. They both represent statements by way of reassurance of the true meaning, as I find it to be.

Mr Campbell-Tiech's further submission was that the mischief aimed at within the regulations was any stopping on a road marked by a double white line, save in last resort. I do not accept that is clear from the regulations. Indeed, I take comfort from the fact that that is not the mischief aimed at by the content of the Highway Code, and the letter, which can be taken to represent the views of thosewho are experienced and have responsibility in these matters.

In my judgment, for the reasons I have set out above, the words "if the vehicle cannot be used for such a purpose without stopping on the length of road" do not qualify the purposes either at (i) or (ii). We are only concerned with (i) in this case. In those circumstances, it being perfectly apparent that all that the appellant did was to enable a person to board his vehicle, he committed no offence. In my judgment this appeal must be allowed.

Lord Justice Pill

The Parliamentary draftsman's difficulty with Regulation 26 was that within Regulation 26(3) there was not only a series of categories lettered (a)—(g), but within sub-paragraph (a) there were three categories numbered (i)—(iii) and within category (iii) there were sub-categories lettered (a)—(d). The qualifying words "if the vehicle cannot be used for such a purpose without stopping on the length of road" appear below the narrative in sub-category (d) and to the left. That lay-out presents difficulties of interpretation. Do the qualifying words refer only to category (iii) or to categories (i), (ii) and (iii)? The opening word "if" appears immediately below the opening word "to" in category (iii). But that also places it immediately below the same opening word in categories (i) and (ii). I understand the draftsman's problem. He had to make it clear that the qualifying words did not apply only to sub-category (d).

I would have had great difficulty in deciding which alternative was intended by the layout adopted in the Regulation. The issue is, however, resolved, in my view, by a consideration of the Regulation with the Regulation it replaced, Regulation 23 of the Traffic Signs and General Directions Regulations 1981. The Parliamentary intention then becomes clear for reasons given in his judgment by my Lord, Newman J. I too would allow this appeal. I am reassured that the Department of Transport take the same view of the Regulation as does the court. They have expressed it not only in a letter to the appellant, but also in the current edition of the Highway Code. I express the hope that lay-outs can be adopted, when drafting and enacting regulations, which avoid the difficulty presented to the courts in the present case.

Question (i) will be answered as follows: the words "if the vehicle cannot be used for such a purpose without stopping on the length of road" apply only to Regulation 26(3)(a)(iii).

My Lord, on that basis is it your Lordships' intention to remit the matter with directions to the lower court?

Lord Justice Pill

Yes. What other relief do you seek?

My Lord, my client is legally aided with a nil contribution. I would ask for legal aid taxation?

Lord Justice Pill

Yes. Otherwise it would come out of some other public funds?

My Lord, to protect the Legal Aid Board I am bound to apply for an order against the Crown.

Lord Justice Pill

Mr Campbell-Tiech, do you have any submissions on the question of costs?

My Lord, I appreciate that technically it comes from one fund or the other, but from the Crown Prosecution Service's point of view the costs would be more appropriate to be ordered from the Legal Aid Board.

Lord Justice Pill

What about central funds? That is a third fund.

My Lord, my initial intention was to apply for a taxation. This is a criminal appeal to a Divisional Court. Therefore I think the matter would usually fall—if my client was paying for his own defence it would fall to be dealt with by a defendant's costs order. But since he is now unemployed I would have thought that the appropriate order would be taxation.

Lord Justice Pill

Very well. In that case the appeal will be allowed. The case will be remitted to the Justices with a direction to acquit and you will have a legal aid taxation direction. We are grateful for your assistance.

I am obliged.

(Mr Drew returned to court later in the day)

My Lord, can I apologise? On leaving court it was pointed out to me that until relatively recently my client's litigation had been funded by the AA. So effectively he was a litigant paying his own legal costs. Therefore I would apply, up until the point that legal aid was granted, for a defendant's costs order.

Lord Justice Pill

Under which provision?

My Lord, I do not have Archbold with me.

Lord Justice Pill

What we have done in other cases is, under the Prosecution of Offences Act 1985, section 16(5), we have ordered costs out of central funds.

"Where any proceedings in a criminal cause or matter are determined before the Divisional Court of the Queen's Bench Division, the court may make a defendant's costs order in favour of the accused."

Is that what you ask for?

My Lord, indeed.

Lord Justice Pill

Subject to anything that you want to tell us, so be it. The AA probably would have considered the result you have achieved good value for money. We accede to that application.

Thank you.

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin


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