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I've been taking a look at some classic cases which are used as precedents for adjudications of PCNs involving traffic orders. I started with the most venerable, Macleod v Hamilton 1965 STR 305. This is the one which found that there is no contravention of a traffic order unless adequate notice has been given of its effect.

I was surprised to find it stated explicitly that:

• contravening a traffic order requires either mens rea or some element of negligence;
• the signage as to the effects of the traffic order must be adequate to inform visitors or long-distance travellers, i.e. not just locals who know what it all means;

It also confirmed that:

• the traffic signs used must be authorised by the Secretary of State (i.e. either in TSRGD or specially authorised),

although this has been relaxed slightly by the subsequent move towards a more purposive approach to statutory interpretation and, in particular, by Soneji (of which more in a later post).

I'd be interested in the views of others, in particular about mens rea and Lord Justice-General Clyde's remarks about the adequacy of the signage for visitors and long-distance travellers (aka Sassenachs). These aspects of the judgment appear to have been lost with the passage of time.


Macleod v Hamilton

Circumstances

Edinburgh Corporation had made a traffic order which prohibited waiting in various streets, including High Riggs. It had erected signs there which declared "controlled zone" together with loose pieces of hardboard bearing the words "No Waiting Except As Authorised by Tollcross Area Traffic Control Order". Mary Hamilton parked her car on High Riggs for twenty minutes within the period covered by the traffic order. She was charged in the Sheriff Court with contravening the order. She pleaded not guilty.


Trial

The Sheriff-substitute found her not guilty, writing:

It was argued for the [prosecution]... that, since the offence consisted in a contravention of an order ... 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 [prosecutor] 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...  In short, the question comes to be whether mens rea is essential to a contravention of the present order.

...  in my opinion, [regulation 15(c) of the Procedure Regulations, equivalent to regulation 18 of LATOR 1996] 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 erectiоn 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 ... impose such an obligation.

Appeal by Case Stated

The procurator-fiscal, Angus Macleod, appealed to the High Court of Justiciary by case stated, i.e. on a point of law. He conceded that the signs did not comply with the Procedure Regulations but contended that the offence was one of strict liability and that mens rea was not necessary.

Sitting as an appeal court under Lord Clyde (the head of the justiciary in Scotland) with Lords Carmont and Migdale, the High Court of Justiciary found that the Sheriff-substitute was entitled to find Mary Hamilton not guilty.

Lord Clyde (with whom Lord Carmont agreed) wrote:

... 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 ... 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. ... 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.

Lord Migdale wrote:

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. ... 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 ...

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....

In my opinion the erectiоn 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. ... 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.

Even if I am wrong ... and ... the Corporation is entitled to design signs to its own pattern, I do not regard the one shown ... 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.

@Bustagate I guess what you’re really saying is that adjudicators today don’t always follow past precedents consistently. I think most would agree with this. In my experience, wining a complex case at adjudication comes down to one thing: presentation.

I'd be interested in the views of others... about... Lord Justice-General Clyde's remarks about the adequacy of the signage for visitors and long-distance travellers

Where any sign shows a street name in a sentence (eg “No access to Bell Street except buses”) it is almost certainly non-compliant and in my view inadequate because it doesn’t cater for those who are unfamiliar with Bell Street.

The thing that seems to have changed in the last 15 years or so, is the test of ‘substantial’ compliance which is subjective - hence presentation is key.

Don’t forget that Macleod was a criminal case. The concept of mens rea doesn’t tend to feature in civil law.

Oxford Bus Gate Case

R (Oxfordshire C.C.) v. Bus Lane Adjudicator [2010] EWHC 894 (Admin) is one of the few cases involving signs for moving traffic which reached the High Court. It concerned the High Street in Oxford, which the Council wished to restrict as a through route during the day (7.30 a.m - 6.30 p.m.) to buses, taxis and cycles. Those restrictions remain in place today, and the signage is now uncontroversial.

Moving Traffic Offences (Criminal) v Bus Lane Offences (Civil)

At the time, moving traffic offences outside London could only be the subject of criminal proceedings. Elsewhere, civil enforcement, i.e. the issue of PCNs and the collection of penalty charges, applied only to bus lanes and parking. That meant that if the sections of road to which the restrictions applied were bus lanes, the civil proceedings for contravening the bus lane were lawful; otherwise they were not.

Complicating this was that these were not conventional "with-flow" bus lanes, i.e. the ones at the edge of the carriageway with a thick white line at the outer edge to separate the bus lane from other traffic going in the same direction. Instead, the section of carriageway next to the kerb in each direction was a cycle lane. Working towards the centre of the road, next came a long traffic island, then a lane for motor vehicles and then a central long traffic island. Given the traffic islands between the lanes, there were no lane markings:
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A traffic order specified that between 7.30 a.m. and 6.30 p.m. the only motor vehicles which could use the lanes either side of the central traffic island were local buses and taxis. Local buses did indeed use these lanes but they were not designated as bus lanes under the relevant legislation and did not use the traffic signs which are mandatory for bus lanes.

At the restrictions, the Council had hoped to use "blue roundel" signs (diagram 953) which show a bus, a cycle and the word "taxi". These were widely used at such restrictions, which are known as "bus gates" (because early ones used rising barriers). However, the Department for Transport was adamant that the blue roundel sign could only be used where the restriction applied 24 hours a day. While the Department would provide special authorisation for some relaxations of the Traffic Signs Regulations and General Directions (then TSRGD 2002), it refused to do so in this instance.

Instead it told the Council that it should use the No Motor Vehicles sign (diagram 619 aka the "flying motorcycle") with an Except plate to permit buses and taxis. Its reasoning was that this sign (especially when it appears as part of the Pedestrian Zone sign) is often used part-time with the hours of operation specified on the sign. The Council acquiesced, but the result was inelegant and gave succour to those arguing that contraventions of the signs were moving traffic offences rather than bus lane offences.

Advance Notice of the Restrictions

Another issue before the court was the adequacy of the advance notice of the restrictions. It didn't help that the Council chose mostly to use text signs, e.g. "Entry to High Street restricted 130 yards ahead" rather than the more-easily assimilated "flying motorcycle" sign with the plate "130 yards" beneath it. There were then, and are today, "No Through Road" signs at the last junction before the restrictions with the plates "Except authorised vehicles" and "7.30 a.m - 6.30 p.m.". However, this isn't much consolation when you have driven half a mile and reach unexpected signs barring your way.

One feature of the Oxford scheme was (and is) that, 20 yards before the restriction, there is a final warning sign with the opportunity and encouragement to do a U-turn and avoid the traffic cameras, whose presence is advertised (see image above).

This scheme was (and is) very different to those schemes in which motorists find themselves unexpectedly facing a sign which bars them but where there is no escape: they must continue or risk an accident. Also, the speed limit in Oxford is 20 mph for the half mile to the restriction.

Judgment

The key paragraph in the judgment was paragraph 65:

The Defendant's submission that the fact that signs are prescribed or authorised does not mean they are sufficient for securing adequate information as to the effect of an order is made available to road users is clearly correct. If the signs do not in fact provide adequate information no offence is committed; see James v Cavey [1967] 2 QB 676. Such information is a requirement and, as Jackson J stated in R (Barnet LBC) v Parking Adjudicator [2006] EWHC 2357 (Admin) at [41], if the statutory conditions are not met the financial liability does not arise. This, however, is not a decision like Case RG2541 Wright v Reading BC, a decision of the Parking Adjudicator involving ambiguous signs. The ambiguity in that case concerned the period of time during which the prohibition operated i.e. ambiguity as to its extent. Subject to one qualification, in this case the 'confusion' and the 'inadequacy' found relates to the precise judicial basis of the prohibition and not to its existence or extent.

One other aspect of Beatson J's judgment in this case was the care which he took to review the advance signage (he recorded signs placed 450, 180 and 20 yards before the designated section when approaching from the west) and that the signage could be seen. Paragraph 69 begins:

In such circumstances, where the signs have not been placed in positions where they cannot be seen or easily seen, are not obscured by vegetation or other street furniture, and are clearly visible and comply with Departmental Guidance, there must be strong reasons given for concluding that they do not provide adequate information. None were given in this case. Nor indeed are the two documents containing the Department's Guidance referred to in the relevant part of the decision.

Although more obiter than precedent as to how to evaluate the adequacy of signage, this judgment does exert strong influence on lesser tribunals.

Changes since 2010

Local authorities in London had been able to use civil enforcement for moving traffic offences from 2006. Other local authorities in England obtained this power from 2022. In 2022 the Department for Transport published statutory guidance on civil enforcement of bus lane and moving traffic contraventions. This advised authorities outside London what they needed to do to obtain civil enforcement powers and how they should use them. Oxford now has these powers.

TSRGD 2002 and DfT policy prevented Oxford from using the blue roundel sign (diagram 953) because the restrictions were part-time. That changed with TSRGD 2016, which provided much greater freedom in how signs could be used. Oxford now uses blue roundels both at the restrictions and for advance notices:
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Neil Herron

Zonal Restrictions

Neil Herron is a businessman in Sunderland who campaigned against restrictions in a Controlled Parking Zone (CPZ) there. Such zonal restrictions (they also apply to 20 mph speed limits) involve signs at each entrance to the zone and then further, more limited signs, across the zone.

Key to these schemes is that the subsidiary signs throughout the zone may not individually provide full details of the restrictions, but the motorist has been put on notice of them by the signs at the zone's entrance. Their Achilles heel is that the legislation specifies what must be on subsidiary signs and relationships between them, e.g. the maximum distance between signs. It is hard to ensure that these are satisfied everywhere across the zone.

Neil Herron's Campaign

As the judgment in the Court of Appeal explained:

16. The Appellants are both based in the City of Sunderland. The First Appellant is a campaigner against parking restrictions. The Appellants were served with 55 penalty charge notices relating to various parking contraventions alleged to have been committed within the CPZ...

17. The appeals to the Parking Adjudicator were on numerous grounds, and voluminous evidence was put before him. There was, and is, no challenge to the designation of the Sunderland CPZ as a CPZ. The only ground now relevant was that there were irregularities in the signage in the Sunderland CPZ, namely that there were signs that did not comply with the statutory specification or that the requisite signs were lacking, so that it could not be said that every part of every road in the CPZ had been marked with one or more of the road markings listed in regulation 4 of the TSRGD.

Adjudication

Dismissing the appeal against the PCNs, the adjudicator, Mr Keenan wrote

19. ... Looking therefore at the CPZ as a whole the absence of a yellow line, the fact that the single stretch of road had not been marked, or that some of the bays, taxi, disabled, bus-stops, etc had not been correctly marked, should be considered trivialities which could not mislead a driver who parked on a clearly marked restriction. I am of the view that applying that decision the CPZ in Sunderland stands and that contraventions against the TROs in particular streets should be considered on an individual basis within the CPZ depending upon the signings and linings where the vehicle was actually parked.
...
... I remain of the view that a motorist driving into an area which is a CPZ will be correctly notified of that by the entry signs and will know that there are restrictions in place for parking during the hours stated upon that. If the motorist then chooses to park on a yellow line he or she must expect a contravention to have occurred and if the motorist parks in a bay then he or she should abide by the restrictions and timings indicated on any plate relevant to that bay.

adding

In the event the Appellant in this case is well aware of the restrictions imposed by the CPZ and in my view in the majority of cases has deliberately parked his vehicle to ensure the issue of a PCN so that he can challenge the validity of the CPZ as has been the case in these appeals.

Judicial Review

The Appellants took the case to judicial review. Here they introduced a new reason why the Sunderland CPZ was invalid: within the CPZ there were pedestrian crossings with zigzag lines, which meant that not every part of every road within it was marked as stipulated in regulation 4.

Bean J dismissed the claim for judicial review, writing:

23. In my judgment regulation 4 on its proper construction means that every part of every road in a CPZ, other than a parking bay, must be marked with a single or double yellow line (with or without the "loading and unloading" equivalents), except where an alternative parking prohibition is marked out such as that imposed by the zig-zags on the approach to a pedestrian crossing. Furthermore, I consider that any non-compliance, whether accidental or (if I am wrong on the previous point) arising from the presence of an alternative parking prohibition, is immaterial if it is too far from the location of the particular motorist's contravention to have led him or her into error.

Court of Appeal

Finally, Mr Herron and Parking Appeals Ltd took the case to the Court of Appeal: R (Neil Herron et al) v The Parking Adjudicator 2011 [EWCA] Civ 905.

At the Court of Appeal the various parties each put forward their submissions:

• Appellants: while accepting that there could be de minimis exceptions to strict observance of the regulations regarding zonal restrictions for a CPZ, those which the adjudicator had found exceeded any de minimis allowance
• Adjudicator: even viewed cumulatively, the exceptions were trivial, and therefore within the de minimis exception
• Sunderland: the ultimate question was: did the traffic signs convey adequate information as to the effect of the parking restriction at the time and place at which the PCN had been issued? A defect in signage in a CPZ remote from the parking infringement could not affect the question whether the infringement had been committed.

Judgment

Burnton LJ (with whom Aikens LJ and Sir David Keene agreed) wrote

28. In my judgment, [Sunderland's] submissions are essentially correct.
. . .
35. It has long been recognised that the enforceability of a TRO requires that adequate notice of the applicable restriction is given to the road user. This principle is derived from the duty imposed by Regulation 18 of [LATOR 1996]. In Macleod v Hamilton 1965 SLT 305 Lord Clyde said, at 308

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.

Lord Migdale said, at 309

Quote

... 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.

The regulation to which Lord Migdale referred was in the same terms, so far as material, as Regulation 18 of [LATOR 1996].

36. That principle was approved and applied by the Divisional Court in James v Cavey [1967] 2 QB 676. Giving a judgment with which the other members of the court [Ashworth and Widgery JJ] agreed, Winn LJ said:

Quote

regulation 15, by sub-paragraph (c) … [prescribed] that the authority should take forthwith

"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 local authority may consider to be requisite" - and here come the operative words in my opinion - "for the purpose of securing that adequate information as to the effect of the order is given to persons using the said roads …"

The authority should take all such steps as are reasonably practicable for the purpose of securing that adequate information is given to persons using the said roads.

The short answer in my view which requires that this appeal should be allowed is that the local authority here did not take such steps as they were required to take under that regulation. They did not take steps which clearly could have been taken and which clearly would have been practicable to cause adequate information to be given to persons using the road by the signs which they erected. …

See too R (Oxfordshire C.C.) v. Bus Lane Adjudicator [2010] EWHC 894 (Admin).

37. Applying this principle, the question for the Adjudicator was whether the local authority had taken steps to secure that adequate information was conveyed to the Appellants as to the parking restrictions that they had infringed. The definition in regulation 4, and whether the roads in the CPZ had been signed as it envisages, are relevant to that question. Provided in substance the requirements of the definition are satisfied, the CPZ is valid. The test for invalidity is not "Are the irregularities trivial?", but whether there is substantial compliance with the statutory definition.
. . .
39. There is authority involving the offence of failing to comply with traffic signs in which a stricter approach has been taken. In Davies v Heatley [1971] R.T.R. 145, the Divisional Court held that the offence had not been committed where the sign in question did not comply with the statutory specification, even though the magistrates had held that the sign was clearly visible and recognisable, and could have left the appellant in no doubt as to its nature. However, in Cotterill v Chapman [1984] R.T.R. 73, a trivial departure from the statutory specification was held not to have invalidated the sign or to have exculpated the defendant. That decision was followed more recently in Cannadine v DPP [2007] EWHC 383 (Admin).

40. The explanation of Davies v Heatley may be that the offence of failing to comply with a traffic sign requires that the sign is the statutory sign, so that anything other than a trivial departure from the specification results in the sign not being a traffic sign. The offences in the present case were not such offences. The present appeals concern infringements of parking restrictions that were undoubtedly validly imposed. I add, however, that I detect in the judgments in Cotterill v Chapman and the cases following it an understandable reluctance to follow Davies v Heatley, and it is difficult to reconcile the decision in that case with the modern approach to statutory interpretation exemplified by Soneji. Indeed, it is difficult to see what test should be applied in order to decide whether an irregularity is trivial other than: could it have misled a road user as to the significance of the road sign? I would therefore reserve my judgment as to whether Davies v Heatley should be followed today in a case in which the defendant could not have been misled by the irregularity in the road sign in question.

41. An apparently strict approach was followed in Hassan v DPP [1992] R.T.R. 209. However, in that case there had been no sign plate displaying the times of restricted parking. That was a failure to provide adequate information, and it is not surprising that the motorist's conviction was quashed.
...
47. In the present case, the Adjudicator held that, looking at the CPZ as a whole, the irregularities established by the Appellants were trivialities that could not mislead a driver. ...

48. The Adjudicator was right to hold that the individual contraventions by the Appellants would be considered on the basis of the signings and linings where the vehicle in question was actually parked. Similarly, Bean J was correct in holding that the irregularities relied on were immaterial if they were too far from the site of the contravention to lead the motorist into error.

49. There is no challenge to the Adjudicator's findings on the individual contraventions. I would therefore dismiss this appeal.

Conclusions
Neil Herron thus repeated precedents which judges in the High Court and adjudicators must follow:

• Macleod v. Hamilton: for a traffic order to be enforceable, adequate notice of the applicable restriction must be given to the road user;
• James v. Cavey: a traffic authority should take all such steps as are reasonably practicable to secure that adequate information is provided.

Applying Soneji, the judgment held:

• signage needs to be substantially compliant with the statutory requirements;
• courts are concerned primarily with signage which is close to where the alleged offence took place;
• trivial defects in the signage that could not mislead a driver do not invalidate a penalty charge.
  

Substantial Compliance
This judgment is often cited as precedent for applying "substantial compliance" as the test for individual traffic signs. Yet the whole case was concerned with zonal restrictions and the effect of missing signs remote from where the alleged offence had taken place. There are only two occurrences of the words "substantial compliance":

37. The test for invalidity [of the CPZ] is not "Are the irregularities trivial?", but whether there is substantial compliance with the statutory definition.

43. If, by "properly signed", Mr Hickinbottom meant that the sign had to be in substantial compliance with the statutory specification, and not such as to mislead or fail to inform the motorist, I would agree with this statement. If he meant that absolute and strict compliance with the specification of the sign is essential, even if the motorist is adequately informed of the restriction in question, he was wrong.

of which the second was obiter.

Paragraph 40 of the judgment summarised the discussion about individual signs, concluding

I would therefore reserve my judgment as to whether Davies v Heatley [in which a strict approach had been adopted] should be followed today in a case in which the defendant could not have been misled by the irregularity in the road sign in question.

See also Reply#5 for more about the circumstances of Davies v Heatley.

@Southpaw82 raises an interesting point about whether mens rea is relevant to what is civil litigation.

It seems perverse if, for an offence which can be subject to either civil or criminal proceedings, mens rea (or some element of negligence) should need to be present in criminal proceedings but can be completely absent to secure a financial penalty through civil proceedings.