A crown court ruling could pave the way for thousands of company car and van drivers to have their speeding convictions overturned.
Leamington Spa Crown Court has decided that motorists who have been prosecuted for speeding in connection with variable speed limits on the M42 – displayed on Advance Motorway Indicators (AMIs) – should be allowed to apply to the magistrates court to have their cases re-opened.
Its decision relates to the wrong font being used to display the variable speed limits of 40mph, 50mph and 60mph on overhead gantries.
Philip Somarakis, head of the motoring offences team at Davenport Lyons, told Fleet News that he made his first application last week on behalf of a motorist who had received five penalty points for doing 73mph when the AMI was displaying a 40mph limit.
His conviction and sentence were set aside and a trial date is expected to be set on Wednesday (April 24).
The regulations governing variable speed limit signs are set out in Government document Traffic Signs Regulations and General Directions 2002.
If a sign fails to comply with the document’s specification then it needs separate approval from the Department for Transport before it can be used as a means of enforcement.
The Crown Prosecution Service (CPS) said the AMI signs near Coventry showed mph figures taller and narrower than they should have been and alerted Warwickshire Police in November last year.
As a result, police took the decision to stop using the signs as a means of enforcement and dropped prosecutions they were intending to pursue.
However, by then thousands of motorists had already been convicted and fined since the first signs went into operation in 2006.
Last year alone, more than 11,000 fixed penalties were issued to motorists breaking the variable speed limit between junctions seven and nine of the M42.
The Highways Agency, which is responsible for maintaining and operating the cameras, rectified the issue on November 27, 2012, when it obtained authorisation for the signage from the Secretary of State for Transport.
Neil Davies, principal solicitor at Caddick Davies Solicitors, which first identified the problem through a freedom of information request, said: “Ultimately, the Crown Prosecution Service decided to drop all ongoing prosecutions in connection with alleged offences occurring before November 27, 2012.
“This, however, has left the question as to what will happen to the many thousands of motorists convicted before this defect was discovered who have already received penalty points, large fines and, in some cases, faced disqualification.”
Davies says the CPS has strongly opposed the suggestion that there is any recourse for wrongly-convicted motorists, asserting that the error in the signage makes no difference.
Indeed, the Highways Agency told Fleet News that “the signs were always entirely legible and the mandatory speed limit clear”.
However, several drivers appealed to Leamington Spa Crown Court. At the hearing, the CPS argued the courts could not re-open cases as a guilty plea could not be overturned unless that plea had been entered in error.
At the same time, Andrew Perry, appearing on behalf of the CPS, said that in dropping cases against a number of motorists but prosecuting others, it “had treated all motorists fairly, but had treated some more fairly than others”.
However, it was successfully argued that the magistrates court did have the discretion to re-open the cases of convicted motorists, including those who had pleaded guilty, if the magistrates agreed that it was in the interests of justice to do so.
It means that motorists convicted of speeding offences arising from the variable speed limit signage operated on the M42 prior to November 27 may now make an application before the convicting magistrates court (Leamington Spa) to have their conviction and sentence set aside and re-opened.
However, the decision to re-open cases will be determined on a case-by-case basis and will face stiff opposition from the CPS.
Davies concluded: “It would be our submission that in the majority of cases the correct decision would be to withdraw the case against the motorist, as it would be unfair for the CPS to prosecute some motorists but not others.”
Issue may be more widespread
The courts may have paved the way for motorists to challenge speeding convictions on the M42, but a legal expert is questioning whether thousands more may have grounds for appeal.
Philip Somarakis believes that the issue with signage may be more widespread.
Variable speed limits are used to help manage traffic flows on a number of other motorways and Somarakis suggests that signs elsewhere on the network may have been similarly defective.
Somarakis, who is company secretary at ACFO, said: “The authorisation made on November 27 also authorised their use on the other motorways where variable speed limits are in force, so it’s reasonable to assume that the defects were also present on those signs.”
The Highways Agency said the same AMI units are used across the strategic road network and the authorisation signed on November 27 also covered these signs.
Somarakis said: “The defective signs were in operation not only on the M42 but on all other motorways where variable speed limit signs have been in force.
“Drivers who have paid speeding fines will want their money back.
“This will either mean writing a letter to the fixed penalty office or where the case has gone to court, asking for it to be reopened or appealing to the crown court.”
He also argues that the motorway variable speed limits may still be unenforceable. Somarakis said: “The Secretary of State for Transport has approved the electronic signage for use, but this may not give effect to the speed limit order.
“It is our view that drivers caught exceeding a variable speed limit on a motorway after the November, 27 2012, may still have a defence.”
However, the Highways Agency told Fleet News that the approval given on November 27 met “all the necessary requirements”.