The penalty upon conviction, unless special reasons against endorsement exist, is endorsement of the driving licence with 3 penalty points and associated financial penalty. A Court also has the power of discretionary disqualification available.
By dint of the applicable penalty prescribed by law, the majority of allegations of contravening s.36 will commence by way of Conditional Offer of Fixed Penalty of 3 penalty points and £100 fine. This represents the minimum penalty prescribed by law with the Fixed Penalty either offered by the police when the driver is spoken to or in a more formal manner by the Crown Office and Procurator Fiscal Service, or a combination of both. If the conduct described is denied, then the Fixed Penalty should be put to one side.
Non-acceptance of such an offer is the means by which indication is given that the charge is to be subject to challenge; the Crown will thereafter, in the likely event that a decision is made to prosecute, raise and forward to the accused the relevant court citation intimating a court diet at which the he or she will require to submit a plea of either guilty or not guilty.
This procedure may be truncated in a situation where the Crown is aware that the driver in question already has 9 or more live penalty points on the driving licence. Here, no Fixed Penalty can ever be accepted owing to the driver being subject to potential disqualification under the “totting-up" provisions, with the likelihood being that the matter would proceed straight to court citation.
A prosecution under this legislation is one of the select few types of offence in Scotland that formally dispense with the need for corroboration of the essential facts and allows that an accused may be convicted on the evidence of only one witness. Section 21 of the Road Traffic Offenders Act 1988 refers.
A number of technical measures require to be followed before a traffic sign complies with the Road Traffic Act and thus becomes the type where contravention renders a driver subject to prosecution. The sign requires to be:
- of the prescribed size,
- colour and type,
- and lawfully placed on or near a road
“Lawfully placed” effectively means that it gives an indication of a statutory prohibition, restriction or requirement, and also one that is properly established by the legislation. Moreover, a reverse onus of proof exists in these cases as a traffic sign will be deemed to be compliant unless the contrary is proved. This means that it is for the Defence to show that a traffic sign is illegal, not for the Crown to prove that it is.
Crucially, a traffic sign must conform exactly to the description given to it in the regulations that govern such matters. Principally, these are contained within the Traffic Signs and General Directions 2002. The signs that apply are myriad, and include the usual directions such as “Stop” and “Give Way” to solid white, directional arrows and zig-zag lines painted on the carriageway. Temporary signage conferring restriction owing to the presence of, for example, road works, is also likely to be covered by the provisions.
A trivial departure from what is required under the 2002 Regulations is not something that will be entertained by a Court as the basis of acquittal for a prosecution under section 36. However, if any defect is more material, if it results in a driver being misled or misinformed as to the intention or purpose of the traffic sign, then if properly investigated, prepared and presented the error may amount to a defence.
At Michael Lyon Solicitors, as the years have passed we have successfully defended innumerable such cases in this particularly complex area of road traffic law. It is instructive to note the often fundamental errors that are made by the authorities in erecting and maintaining proper signage which only comes to light after our expertise has been applied to the situation. Who this doesn’t assist, of course, are the many motorists who may have previously been wrongly convicted, accepted needless endorsement of their driving licence or even served a period of disqualification as they have not first sought out the input of a true specialist.
We have uncovered instances where:
- whole lengths of lowered speed limits on motorways and dual carriageways have been invalid (and therefore effectively reverting to the statutory 70mph) owing to incorrectly sized signage that is only present on one side of the carriageway,
- improper lighting or use of reflective material on terminal or repeater signage.
- A sign indicating “No Right Turn” that was completely obscured by scaffolding on an adjacent building
- Illegible road markings. In the former instance, the obvious defect did not stop the police from stationing a patrol car on the one-way street to catch and prosecute any unsuspecting, innocent, motorist.
In defending all manner of road traffic prosecutions the length and breadth of Scotland, and ensuring that we remain to truly specialise in this area by virtue of the fact that we deal with no other type of case, we have the knowledge and experience to ensure that proper, honest advice is given to allow anyone facing the prospect of prosecution for failing to obey the instruction of a road traffic sign make the right choice in how to deal with their case.
Our Track Record
Click on the button below to see examples of how we have successfully defended this offence over the last decade