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Motorway Variable Speed Limits

The BBC and the Daily Mail have reported that drivers caught speeding within the variable speed limit on the M42 motorway have had their cases dropped due to “defects in the speed limit signs.” Whilst the story relates to the M42, this issue applies to all variable speed limits on motorways and will have a bearing on those drivers who have been to court or accepted a fixed penalty – both resulting in speeding points. The story is clearly making headlines.

Variable speed limits have been in place on some sections of our busiest motorways for many years. The speed limit in force is denoted by means of electronic signs which are housed within gantries situated above motorway lanes. The Highways Agency has stated that up to 27th November 2012 these electronic speed limit signs were defective because they had not been authorised for use. In the case of just one part of the M42, some 11,000 notices of intended prosecution (“NIP’s”) were issued against speeding motorists between February and November in 2012, who had fallen foul of the speed cameras on that section of the motorway.  So one can imagine the scale of the injustice where drivers have been wrongly convicted or have accepted fixed penalties under false pretences.

Having the power to vary a speed limit has enabled the Highways Agency to regulate the flow of traffic at peak times by reducing the speed, to keep traffic moving. The default speed limit on all motorways of 70 miles per hour was set in 1974 by way of a statutory instrument laid before Parliament. That applies to all motorways unless there is another subsequent traffic order saying otherwise. Therefore, in order to introduce a variable speed limit on a section of a motorway, traffic orders have had to be made by way of further statutory instruments. In the case of the M42, this is the M42 Motorway (Junctions 7 to 9) (Variable Speed Limits) Regulations 2009. In the case of the M25, these were introduced as early as 2001 with successive traffic orders since and they apply to various parts of the M25.

However, a driver cannot be convicted of exceeding a variable speed limit speed unless he has been given adequate guidance of the speed limit in force. There are strict legal requirements for enforcing speed limits. One of these legal requirements is that the speed limit signs have to be legally compliant.  To make a traffic sign legally compliant it needs either to be approved by Parliament (by statutory instrument) or by the Secretary of State for Transport by way of a special authorisation. This means traffic signs have to be of the type, size, colour and dimensions (subject to any permitted variants) as prescribed either by Parliament or authorised by the Secretary of State.

It was reported in the Mail’s article that the reason for the defect was due to the electronic signs having “wrong-shaped numbers” - that the numbers appeared “stretched.” It is not clear who was the source of those comments, but that was reported as being the official line. It was also reported that the police stopped enforcing the variable speed limit on the M42 as a result.

In the Mail article the numbers in the two pictures (helpfully labelled “wrong” and “right”)   are slightly different. This defect has now been corrected by the Secretary of State for Transport who has authorised the use of the (correct) electronic signs, as of the 27th November 2012. In fact, the “wrong” sign is actually the one approved by the Secretary of State and the “right” one is the one that was defective.

So, we now finally have approved signs and the police are back enforcing (all motorway variable speed limits) Job done then? No.

The first point to note is that whilst there were (by Regulation) authorised electronic signs prior the 27th November 2012, their use was specific, so to say that the electronic signs were defective just because of “wrong-shaped numbers” is not quite correct. 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.

The second point is that the motorway variable speed limits may still be unenforceable. The Secretary of State for Transport has approved the electronic signage for use, but this may not give effect to the speed limit order. We are challenging the police on this and are working together with Independent Traffic Signs Consultant Richard Bentley. It is our view that drivers caught exceeding a variable speed limit on a motorway after the 27th November 2012 may still have a defence.

For more information contact Road Traffic Lawyer Philip Somarakis.

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