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Direct Action Appeal Successful


Tony Bennett outside Maidstone Crown Court, shortly after his aquittal (30/10/02).
Direct action campaigner Tony Bennett has succeeded in his Appeal against criminal conviction for the theft of metric signs in Kent in July 2001.

Appeal Judge Simpson said he and his two accompanying lay-judges had "no hesitation whatsoever" in acquitting Tony Bennett of the theft of 29 metric road signs. Judge Simpson said that the prosecution had proven neither dishonesty on Mr Bennett's part, nor that he had an intention to permanently deprive signage company McAlpine of the signs.
On the remaining matter of damage to one sign, Judge Simpson granted Mr Bennett an absolute discharge. He described Mr Bennett's action of painting over the word "metre" as a matter of "minimal gravity". This means that Tony Bennett's sentence of 50 hours of community service is null and void. Tony is delighted with the result. After the proceedings, BWMA representives discussed the case over lunch with Tony and his barrister Christopher Johnston. There were frequent phone calls from press and radio reporters wishing to hear Tony's comments.
The trial was brought originally by the Crown Prosecution Service with support of the owners of the signs McAlpine, contractors to pipeline company Transco. Transco's contractors have used illegal metric signs elsewhere, including Sussex, Lancashire and Cheshire.
"Metric signs are illegal"
Direct action against unlawful signs: Tony Bennett

The background to the case can be reached via these links:
Judge Kelly's overturned verdict - delivered May 22nd 2002 at Maidstone Magistrates Court
Legal Analysis - did Judge Kelly mislead the Court?
The Trial (Day One, April 4th 2002, Sevenoaks Magistrates Court)
The Trial (Day Two, May 1st 2002, Maidstone Magistrates Court)
History of the Case

The overturned verdict: Judge Kelly's written judgment in full (delivered 22 May 2002, Maidstone Magistrates Court)

"Background

Contractors were working to lay a gas pipeline arcoss Kent The pipeline went under various roads and the work there created a hazard for road users. "Count down" signs were placed on the approaches to these roads to warm of this hazard and some of these warning signs showed distances in metres. Mr Anthony Bennett, the defendant in this case, objected to the display of measurements in metres and sought to prevent the use of such signs by appropriating them and/or altering them to remove any reference to "metres". He has been charged with theft and criminal damage to which he pleads not guilty.

The Hearing

At the outset Mr Shrimpton, for the defendant, made a submission that the prosecution was an abuse of process. There was no basis in fact or law for this submission and I rejected it.

I heard evidence from Mr Alistair Paterson, a public relations officer employed by the contractors McAJpine PPS Joint Venture. He explained the purpose of the work and the nature of the signs. Approximately 50 of the signs had been taken and others had been defaced with grey paint. These signs had to be replaced at a cost of about £40 each. Mr Paterson believed that the signs had been purchased by McAlpine and that the signs belonged to McAlpine. They were ordered and were delivered to the construction site. Mr Paterson was not aware that, to conform to the Traffic Signs Regulations 1994, the signs should have displayed measurements in yards instead of metres. Had a request been made the signs would have been changed to imperial measurements.

Various photographs of the signs in question were produced and accepted by Mr Paterson and copies of letters written by Mr Bennett on 2ud July 2001 and 18th July 2001 and a letter written on 12th July by Mr Chaderton, Project Manager for McAlpine PPS jv were produced in evidence. Mr Paterson's evidence was unchallenged and I accepted it.

Mr Scott Lambert, Pipeline foreman employed by McAlpine at the Staplehurst construction site, gave evidence about his responsibility for the maintenance of Road Signs.

On 1st July 2001 he was checking various sites and he saw that a sign was missing. He noticed a metallic Green Ford Escort Estate car with the boot open and he noticed that some road signs had been placed in this vehicle. Mr Lambert saw a man on his knees removing a metre sign from a wooden post by the roadside. Mr Lambert asked the man what he was doing. He was handed a piece of headed note-paper with some sort of traffic regulations on it. Mr Lambert followed the man and approached him again as he tried to remove an 800 metre sign. Mr Lambert asked the man his name, address and telephone number. The man seemed nervous. He was told by the man that his name was Ray Stevens but an address and telephone number were refused and the man who said he was Mr Stevens drove off.

Mr Lambert was not aware that signs which displayed measurements in metres did not conform to the Traffic Signs Regulations. Mixed metric and imperial signs were not displayed in the same area of road. Mr Lambert felt it was better to have a sign warning of a hazard than no sign at all. If a complaint had been made about the signs he would have referred the to his employers the next day. I found Mr Lambert to be a credible witness.

On behalf of Mr Bennett, Mr Shrimpton accepted that signs had been covered over to remove what he described as "illegal measurements". He also accepted that the signs had been taken by Mr Bennett.

At this stage Miss Scott Lynch was permitted to amend the charges to show that the property which was the subject of the Theft and Criminal Damage charges belonged to McAlpine and not McAlpine Transco Construction.

The defendant's record of interview was admitted in evidence. It was relevant to show the attitude of the defendant to the offences with which he was charged.

Mr Shrimpton submitted that there was no case for the defendant to answer. Miss Scott Lynch opposed the submissions. I have already summarized my reasons for rejecting them.

The Defence Case

Mr Paul R, a building surveyor, gave evidence about correspondence with Transco in 1997 concerning the display of metric signs which he said were illegal. Transco appeared to accept his arguments and the signs were removed.

I heard evidence from Mr Anthony Bennett. He told me that he was a non-practising Solicitor, having been admitted in May 1995. He also had degrees in social work and geography. Mr Bennett's research had led him to believe that any metric road sign was "unlawful". He had studied the Road Traffic Regulations and he had established that 107 local authorities had erected metric road signs.

He had been referred to Section 131(2) of the Highways Act 1980 and he believed that this allowed him to remove "unlawful" signs. He had taken legal advice and he was legally satisfied with his actions in this case. In summer 2000 Mr Bennett published a leaflet "Guard the Yard' which purported to advise that it would not be criminal damage to paint out or remove a metric road sign.

A large number of letters from various local authorities and other agencies were produced which appeared to accept that metric road signs should not be displayed and a number of the letters contained the word "illegal" in relation to the signs. In particular a letter from the DETR was produced which stated that it was the opinion of the author, Julie Ferebee, from the traffic signs policy branch of the department that, "it is not lawful to use directions signs which show distances in metres or kilometres rather than miles and yards"'. Mr Bennett said that he had raised the issue of metric signs with Transco in Cheshire and Lancashire.

Mr Bennett decided to inspect the signs in Kent on lst July 2001. He saw a number of metric signs and signs showing that the pipeline was being laid for Transco. A telephone number was given in case of emergency. He considered what approach he should take and he thought that the only effective way of getting something done was to remove the road signs. He proceeded to remove 29 signs and placed them at 4 locations in ditches and under bushes. All the signs were returned on the afternoon of 31st October 2001 immediately after he had appeared in court. He only removed signs showing distances in metres and he denied removing any of the "danger men at work signs".

Mr Bennett gave a false name to Mr Lambert because, " I panicked and I thought the company would not be too thrilled at my removal of their signs". He was anxious not to be arrested again. He said that he wrote the following day telling the company that the signs had been removed and giving his home address. However he accepted that this letter was "misleading" and "not fully accurate". He was hoping to avoid the consequences of his actions but he did not believe that his actions were illegal. Mr Bennett said that he thought his actions would teach the company a lesson and in his view it jolly well did!

He said that he felt emboldened to take the action because he had arrested at Stansted for spraying over a metric distance sign. He had been charged with criminal damage but the charge had been dropped. After this he reached the conclusion that it was safe to move from writing letters to covering over metric signs. He thought that covering over an "illegality" could not be treated as a criminal act.

He suggested that he had offered to return the signs on 18th July 2001 but when he got a call from the police he asked why the company needed to have the signs back. He was told they might be wanted for scrap. Mr Bennett was only willing to return the signs if he had confirmation in writing that the signs would be scrapped or if there was a written guarantee that they would not be displayed again.

Mr Bennett argued that he was acting on the authority of the law of the land. As a citizen he had the right to arrest someone committing a criminal offence and this right included the right to act to remove "illegal" signs. The only way to deal with authorities and others flouting the law was to take direct action. He contended that he had the right to interfere with someone else's property if that property was creating an "illegality". He made it dear that he had no intention of returning the signs unless he had it in writing that they would not be used "illegally".

The apparent "illegality" of metric road signs

It has been a constant theme of the defence in this case that Mr Bennett was acting lawfully to remove "illegal" metric road signs. Indeed, it sometimes seemed that McAlpine was on trial for displaying them.

Mr Bennett's beliefs are relevant to the question of whether or not he thought he had the right in law to appropriate the road signs or whether he was dishonest and perhaps, to the defence of lawful excuse in criminal damage. It is not a criminal offence to display metric road signs and there are no statutory sanctions for displaying such signs. However, such signs are not approved by the Secretary of State for Transport, with the exception of some relating to height and width. Approved signs are set out in the Road Traffic Signs Regulations and Directions 1994.

Metric road signs are "unlawful" only in the sense that they do not comply with these regulations.

Mr Bennett asserts that he has a legal right and responsibility to defend the rest of us from the "metric menace".

His contention that he has a right to steal and damage property to prevent the display of metric road signs is patently absurd. Is a member of the public entitled to demolish a wall built in breach of planning regulations? May a member of the public remove the number plates from a car if those number plates do not conform to the regulations even though a road traffic offence may be being committed? Can Mr Bennett appropriate someone's car because that car has failed to comply with an approved traffic sign? Of course not! These are all matters for the police or the proper authorities. Mr Bennett could and did make representations about the signs. He had no right or authority to take the law Into his own hands and become an "imperial vigilante".

I turn now to the particular offences.

A person commits an offence of Theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit. Section 1 Theft Act 1968.

Belonging to another

Mr Shrimpton suggests that his submission that there is no evidence of ownership is "a killer point". He is mistaken. There is clear evidence that the signs belonged to McAlpine. It must have been clear to anyone in the circumstances that these signs belonged to McAlpine, the contractors who were laying the gas pipeline across Kent. They were in the contractors who had control of the signs. The signs were in the custody and under the control of Mr Lambert, one of their employees. Even Mr Bennett knew to whom the signs belonged. The day after he took the signs he wrote to the contractors about the signs he had taken. Mr Bennett knew that the property, the signs, belonged to another. Section 5 (1) of the Theft Act 1968 says, "Property shall be regarded as belonging to any person having possession or control of it, or having it in any propriety right or interest". I accept that the signs belonged to another.

Mr Bennett's dishonesty

Mr Bennett says that he was entitled to remove the signs, which were "illegal", to prevent further breaches of the law. However, when he was challenged he gave a false name, he was nervous and he refused to provide an address and telephone number. He thought that the company would not be too thrilled at having their signs removed. He was anxious not to be arrested again. As a solicitor Mr Bennett must have been well aware of the provisions of the Theft Act and the Criminal Damage Act. They are basic facts of criminal law which every lawyer learns about. He will have been well aware of the clear definition of theft contained in the Act and he will have clearly understood that he did not have any legal rights to appropriate the metric road signs. He suggested that he thought he could rely on the defence in Section 131(2) of the Highways Act 1980.

Section 131(2) says, "lf a person without lawful authority or excuse pulls down or obliterates a traffic sign placed on or over the highway - he is guilty of an offence; but it is a defence in any proceedings under this subsection to show that the traffic sign was not lawfully placed".

Mr Bennett is not being prosecuted under the Highways Act. As A lawyer he must have been aware that the defence in Section 131 was only available to him If he was prosecuted under that Act.

I do not believe Mr Bennett when he says that he thought that he was acting lawfully. He lied at the scene of the crime and I believe he lied to me when he said he thought he had a right in law to appropriate the signs. He dumped the signs in ditches and under bushes and by dealing with them in this way he assumed the rights of an owner. Was Mr Bennett dishonest? I am sure that he was.

It is suggested that the following day 2nd July 2001 Mr Bennett gave his correct name and address. On examination of the letter of 2nd July to McAlpine it gives no indication that Mr Bennett was the person who took the signs. This letter was deliberately misleading and is further evidence of Mr Bennett's dishonesty. Applying the test in R v Ghosh [1982] QB 1053, 1 have no doubt that appropriating the signs in these circumstances was dishonest according to the ordinary standards of reasonable and honest people. Even if Mr Bennett asserts that he was morally justified in acting he did, he must have known that ordinary people would consider him to be dishonest. He accepted that "the company would not be too thrilled at the removal of their signs" and he hoped to avoid the consequences of his actions. Mr Bennett lied about his identity when he was caught taking the signs? He has been unable to explain his nervousness and his attempts to conceal his identity. In my view he was beyond doubt dishonest.

An Intention to permanently deprive

It was said that Mr Bennett had no use for the signs. By dumping them under bushes and in ditches Mr Bennett clearly had the intention to treat the signs as his to dispose of regardless of the owner's rights. He abandoned them in circumstances where he could not be sure that they would still be there if he returned for them.

Mr Bennett's letter of 2nd July informs McAlpine that the signs have been placed in safe custody and are being held as possible evidence. They were not in safe custody. They were dumped in a ditch! There is no evidence of any intention to return the signs. The letter from McAlpine of 12th July informed Mr Bennett that the stolen signs were being replaced and there is evidence from Mr Patterson that the signs were indeed replaced "to maintain road safety". The company might have wished to stick yard signs over the metre signs as they did to one of the site entrance signs in the photographs. Mr Bennett's letter of 18th July asserts that there was no intention to permanently deprive and "if you want to retrieve the signs for any reason, please let me know in writing". However the letter contains no indication that the signs will actually be returned.

In his interview on 27th October 2001 Mr Bennett said that he would only return the signs "if he (Mr Chaderton) will tell me for what purpose he could possibly require the signs". Mr Bennett was not prepared to say where the signs were. When he was contacted by the police he placed a condition on the return of the signs.

There is no evidence that Mr Bennett intended to return the signs at the time he appropriated them. His conduct suggested that it was his intention to treat the signs as his own to dispose of regardless of the rights of McAlpine. Mr Bennett intended that McAlpine should only get back what they were entitled to by agreeing to the condition he sought to impose on the use of the signs. I am sure that, in all the circumstances, Mr Bennett intended to permanently deprive McAlpine of their signs.

Criminal Damage

I now turn to the suggestion that no damage was done to the signs. The case of Hardman v Chief Constable of Somerset [1986] Crim LR 330 suggests that applying a water soluble paint to a pavement amounts to damage and in R v Whiteley 93 Cr App R 25, it was held that any alteration to the physical nature of the property concerned may amount to damage. It is that the signs were sprayed with black or grey paint by Mr Bennett to remove any metric references. I have no doubt that this is criminal damage within the meaning of the Criminal Damage Act.

Lawful Excuse

Me Bennett does not suggest that he destroyed or damaged the signs in order to protect property belonging to himself or another. He could have approached the contractors about the signs. He gave evidence that he had done this many times and as a result metric signs were removed. He did not contact the local authority or the police. He did not even speak to Mr Lambert about the signs. Instead, he lied to him about his identity. By removing or defacing the signs Mr Bennett removed any warning of a hazard and could be said to have said to have endangered other road users and contractors.

Belonging to another - criminal damage

My views on the theft charge apply mutatis mutandis to criminal damage.

Finally, Mr Shrimpton suggested that, while the Criminal Damage Act 1971 provides for the general offence of criminal damage Parliament may be taken to have repealed that part of the Act which related to criminal damage of traffic signs by the passing of Section 131 of the Highways Act 1980. I can find no legal basis for this assertion and I have no hesitation in rejecting it.

I find Mr Bennett guilty of the charges of theft and criminal damage. District Judge Michael Kelly, 22nd May 2002"

 

BWMA Legal Analysis of the Judgement - did Judge Kelly mislead the Court?

There are a large number of discrepancies and inadequacies in District Judge Michael Kelly's legal judgement. They are as follows:

Failure to describe accurately the case

In his opening paragraph, Judge Kelly misrepresents the background to the case. He says: "…warning signs showed distances in metres. Mr Anthony Bennett…objected to the display of measurements in metres and sought to prevent the use of such signs…"

The relevant issue before the Court was not that Mr Bennett "objected" to signs displayed metres but that the signs were non-compliant with the law. Judge Kelly's description of the case might conceivably apply to a case where, for example, a Welsh nationalist, seeing a sign in English, removes or obliterates it in order to protest against the use of English. In this example, the sign is perfectly legal; it merely gives offence to an individual.

Mr Bennett's case, however, did not revolve around removing or covering over signs because he "objected to the display of measurements in metres"; it concerned the fact that the signs were unauthorized under law. This places the case in a totally different context to that described in Judge Kelly's opening paragraph.

Failure to apply the Law

Judge Kelly fails to apply relevant Parliamentary legislation, namely section 131(2) of the 1980 Highways Act. This is now reproduced in full:

"If a person without lawful authority or excuse pulls down or obliterates a traffic sign placed on or over the highway - he is guilty of an offence; but it is a defence in any proceedings under this subsection to show that the traffic sign was not lawfully placed".

Judge Kelly says in his written judgement: "Is a member of the public entitled to demolish a wall built in breach of planning regulations? May a member of the public remove the number plates from a car if those number plates do not conform to the regulations even though a road traffic offence may be being committed? Can Mr Bennett appropriate someone's car because that car has failed to comply with an approved traffic sign? Of course not!"

Judge Kelly is saying that private individuals have no authority to take the above actions. He is right in the examples he chooses because no Acts of Parliament exist to permit such actions. However, in the case of road signs, there is such a law, section 131(2) of the above-mentioned 1980 Highways Act.

By way of background, obliterating or covering over a sign is not necessarily "vandalism" in the usual sense of the word. If, for example, a council erects a sign indicating "caravan park" but fails to take it down after the caravan park has been converted to grazing grounds for animals, then a member of the public, duly inconvenienced, may desire to cover over or remove that sign. This is not "vandalism" since the interference with the sign is to prevent misinformation, not to cause damage, even though this may be the end result.

Section 131 (2) of the Highways Act is applicable to Mr Bennett's case because the signs he removed or covered over, referring to metres, were "not lawfully placed". It should be explained that if an Act, as does section 131(2), states it is a "defence" to show that the traffic sign was not lawfully placed, that is an equivalent to authorizing such an action.

In his written judgement, however, Judge Kelly says:

"Mr Bennett is not being prosecuted under the Highways Act. As a lawyer he must have been aware that the defence in Section 131 was only available to him if he was prosecuted under that Act".

It is not the defendant's role to ensure that he or she is prosecuted as Parliament intended. In the first instance, this is the role of the Crown Prosecution Service. In the event of the CPS failing to use the appropriate legislation, it is the responsibility of the Judge to correct or halt proceedings. By neglecting to do this, Judge Kelly blocked an Act of Parliament from applying in his courtroom.

Judge Kelly instead allowed the prosecution to proceed under the non-specific 1968 and 1971 Theft and Criminal Damage Acts. Mr Michael Shrimpton, Mr Bennett's solicitor, argued that a prosecution under these acts was impossible, since they had been both impliedly repealed by the 1980 Highways Act in so far as they applied to the pulling down and obliterating of traffic signs. Judge Kelly's judgement, however, says, "I can find no legal basis for this assertion and I have no hesitation in rejecting it".

In fact, Judge Kelly was provided with a legal basis. On the second day of the trial, Mr Shrimpton cited the 1783 "Davis" case in which an Englishman, Mr Davis, faced the death penalty for stealing deer under a theft act. His barrister identified a later Act of Parliament that specifically related to stealing deer and a maximum fine of £20. The Court in 1783 ruled that the later Act, carrying the fine, overrode the earlier, more general Act imposing the death penalty.

At no point during the two-day hearing was the prosecution counsel, Miss Scott-Lynch, able to produce a case which contradicted the 1783 case. Under the rules of case precedent, Judge Kelly was obliged to follow the Davis ruling unless there was authority for rejecting it. He cited no such authority in his written judgement.

Failure to concede to the 1994 Traffic Regulations

Judge Kelly says: "It has been a constant theme of the defence in this case that Mr Bennett was acting lawfully to remove "illegal" metric road signs". Throughout the trial, Judge Kelly displayed a reticence to admit the unlawful status of metric distance indications. In court, Judge Kelly said he did not regard the use of metric as illegal or unlawful and, throughout his written judgement, he places the words illegal and unlawful in inverted commas when referring to metric signs. How does Judge Kelly account for this? He says,

"It is not a criminal offence to display metric road signs and there are no statutory sanctions for displaying such signs. However, such signs are not approved by the Secretary of State for Transport, with the exception of some relating to height and width. Approved signs are set out in the Road Traffic Signs Regulations and Directions 1994".

Judge Kelly next says: "Metric road signs are "unlawful" only in the sense that they do not comply with these regulations".

BWMA asks: in what other situation would metric signs be considered unlawful? Obviously, they are unlawful because they do not comply with Traffic Regulations. The 1994 Traffic Regulations are derived from statute, and it is the non-compliance of metric signs that renders them unlawful. Judge Kelly's reasoning is quite bizarre. Whether one uses the term illegal, unlawful, not lawful, not permitted, unauthorized, not authorized or not allowed, the fact remains that signs marked in metric have no lawful place on British distance signs.

When referring to local authority letters produced in court, Judge Kelly says: "A large number of letters from various local authorities…appeared to accept that metric road signs should not be displayed". This is a misrepresentation; the letters did accept that metric should not be displayed. There is no "appeared" about it.

Whether metric indications on traffic signs are described as unlawful or unpermitted, the implications in law are the same. But by denying the law, or drawing attention away from it, Judge Kelly created a climate for his later allegation that Mr Bennett, "endangered other road users and contractors" by taking down distance signs.

In fact, Mr Bennett did not take down distance signs, at least, not technically. For a sign to be classed as a distance sign, it must be in yards and/or miles. The signs taken down by Mr Bennett did not have yards and miles; in law, they were not distance signs.

This is not a trite point. A sign that says "400 metres" is not providing a distance in law. It says merely "400", followed by some letters: m-e-t-r-e-s that have no legal meaning. By definition, Mr Bennett could not have deprived road users of distance information; only McAlpine and Transco did that by failing to use signs marked in yards and miles.

This is an important principle that applies elsewhere. For instance, local authorities reject planning permission if submissions are not in metric. This is because the 1994 Units of Measurement regulations stipulate the use of metric units. Similarly, trading standards officers do not recognize pounds and ounces; under 1994 Regulations, only metric is authorized for use in trade*. Government guidelines to public and private authorities in 1995, relating to the introduction of metric units in these areas, advised that the validity of transactions involving the use of unauthorized units, "…could be liable to legal challenge by a party that argued that the transaction should not be upheld or enforced". In other words, whether people prefer to think in other units is immaterial; in matters of law, only authorized units have validity and meaning.

* Subject to the 1985 Weights and Measures Act that permits lb/oz.

In the case of the 1994 Traffic Regulations, any local authority or contractor that uses terms on road signs that do not comply with regulations is acting outside the protection of the law. A practical illustration of this was reported in the press a few days before Mr Bennett's judgement. A prosecution of a speeding driver failed because the relevant authorities installed only one speed limit sign when regulations required that they install two. Since the signage was not compliant with the law, the prosecution collapsed.

Judge Kelly's accusation that Mr Bennett endangered road users thus relies on his conveying upon metric signs a bogus authority in defiance of the 1994 Traffic Regulations and Parliament.

Reversal of the burden of proof

Judge Kelly found Mr Bennett guilty of theft because he ruled that Mr Bennett intended to permanently deprive McAlpine of the signs. The relevant consideration in this matter is whether Mr Bennett intended to return the signs. Judge Kelly writes,

"He made it clear that he had no intention of returning the signs unless he had it in writing that they would not be used "illegally"".

Note that this sentence contains two negatives ("no intention" and "unless"). As the reader will be aware, two negatives make a positive. In other words, Judge Kelly's statement is a back-handed way of saying,

"Mr Bennett made it clear that he had an intention of returning the signs if he had it in writing that they would not be used illegally".

Having conceded in his written judgement that Mr Bennett intended to return the signs, Judge Kelly rules, "Mr Bennett intended to permanently deprive McAlpine of their signs". His conclusion is therefore at odds with his own acceptance of the facts as to Mr Bennett's intention.

There is also the matter of Mr Bennett's state of mind; did he believe he was acting lawfully when taking down and covering over metric signs? Judge Kelly relies on Mr Bennett's providing of a false name and withholding his address as an indication of dishonesty. Judge Kelly says, "I do not believe Mr Bennett when he says that he thought that he was acting lawfully…I believe he lied to me when he said he thought he had a right in law to appropriate the signs".

In an English court, it is not sufficient for a judge to convict a defendant on the basis of whether or not he "believes" the defendant is lying. It has to be proven beyond reasonable doubt. While Mr Bennett admitted to the court that he gave a false name, he provided an explanation in that he panicked. More importantly, he also told the Court of his understanding of the law, in particular that:

  • metric signs are not permitted by the 1994 Traffic Regulations; and
  • the 1980 Highways Act provides a defence for the removal or covering of signs not lawfully placed.

Critically, Mr Bennett was able to prove that he was aware of the relevant legislation prior to the date of the alleged offences. He did this by producing in court a document that he had written for the UK Independence Party some 12 months previously explaining the above points, and including the words: "The legal advice we have is that if a metric sign is illegal, to paint it out or remove it would not be a crime".

Moreover, Mr Bennett presented a similar UKIP leaflet explaining the traffic regulations to McAlpine's representative, Mr Scott Lambert, on the day that Mr Bennett removed the signs. Judge Kelly refers to this in his judgement: "Mr Lambert asked the man what he was doing. He was handed a piece of headed note-paper with some sort of traffic regulation on it". Therefore, Mr Bennett must have been mindful of the regulations while removing the signs and, indeed, communicated them to Mr Lambert via the fore-mentioned leaflet.

Thus, Judge Kelly had to weigh two apparently contrary pieces of evidence relating to Mr Bennett's state of mind. On one hand, the court was told that Mr Bennett panicked on the day and give a false name. On the other, the court was shown a document published by Mr Bennett some 12 months previously showing his awareness of the 1994 and 1980 Traffic Regulations and Highways Act. A similar leaflet was given to Scott Lambert at the time of the signs' removal.

Evenly balanced? Slightly one way or the other? As noted above, for an English court to convict, the case needs to be proven beyond reasonable doubt. BWMA believes there is more than reasonable grounds to doubt that Mr Bennett was dishonest in his belief that he was acting lawfully.

How, then, does Judge Kelly achieve a guilty verdict? Under British law, the burden of proof lies upon the prosecution. Judge Kelly, however, reverses the burden of proof; instead of demanding that the prosecution proves that Mr Bennett did not intend to return the signs, Judge Kelly simply says in his judgement, "There is no evidence of any intention to return the signs".

False or misleading statements

Judge Kelly makes a series of false or misleading statements, in addition to those listed above:

1) Judge Kelly's written judgement appears to deliberate misrepresent what Mr Bennett said in court: "His contention [was] that he has a right to steal and damage property to prevent the display of metric road signs…". At no point did Mr Bennett say that his contention was that he had a right to steal. While Judge Kelly is entitled to rule that Mr Bennett's actions constitute stealing (subject to the burden of proof), he is not entitled to say that stealing was Mr Bennett's contention when Mr Bennett gave no such indication.

2) Judge Kelly states, "By removing or defacing the signs Mr Bennett removed any warning of a hazard..."

This is factually incorrect; Mr Bennett did not leave the roads in a state that deprived users of "any warning of a hazard". There were two types of signs in question, warning signs and unauthorized signs purporting to give distance signs. All warning signs were left in place by Mr Bennett. Only unauthorized signs were moved.

3) Judge Kelly wrote: "[Mr Bennett] could have approached the contractors about the signs. He gave evidence that he had done this many times and as a result metric signs were removed".

This is a further misrepresentation. The Court heard evidence from Mr Bennett that Transco only moved signs, not that they removed signs from use. The evidence before the Court was that Transco neglected to remove signs from use, despite three previous approaches in Sussex, Cheshire and Lancashire. This evidence was not disputed by the prosecution.

4) Judge Kelly says: "Mr Bennett does not suggest that he destroyed or damaged the signs in order to protect property belonging to himself or another".

Again, untrue. Towards the end of the trial, Judge Kelly asked Mr Bennett why he thought signs needed to be approved by regulations. Mr Bennett replied that it was important to have consistent road signs for reasons of safety. Mr Bennett explained that this was why the Regulations stipulated the size, colour and shape of signs, as well as the distance specifications. Mr Bennett did therefore offer the court protection of life and property as a reason for removing the unauthorized signs and this was in response to a question that Judge Kelly himself asked. It is baffling as to why Judge Kelly's written judgement should deny that this exchange took place.

BWMA's Verdict

The case of Anthony Bennett concerns what a member of the public can do in a situation where an authority or company fails to comply with the 1994 Traffic Regulations. As Judge Kelly pointed out, no criminal penalties exist for non-compliance with these regulations. What does exist, however, is the 1980 Highways Act that creates a specific offence for the pulling down and obliteration of unlawful signs, thereby protecting members of the public from conviction for theft or criminal damage.

As such, Mr Bennett's trial was a test case. Rather than ruling on the legal issues, however, Judge Kelly's written judgement seeks to create an atmosphere of prejudice. He says that Mr Bennett claimed he was defending against the "metric menace". In fact, this phrase was never used by Mr Bennett; it was Judge Kelly's own expression. Judge Kelly makes excessive use of exclamation marks and words such as "absurd". He describes Mr Bennett as a "vigilante". What Judge Kelly does not do is to deal with relevant statutes and case law.

There are a number of significant legal similarities between the case of Mr Bennett and the case of Messrs Thoburn, Hunt, Dove and Harman, traders convicted last year for using pounds and ounces.

  • In both cases, the actions of the defendants - using lb/oz and taking down (unauthorized) metric signs - were lawful under statute. The use of lb/oz for use in trade is legal under the 1985 Weights and Measures Act, and the removal or covering over of unauthorized signs is legal under the 1980 Highways Act.
  • In both cases, prosecutions were brought under earlier legislation, namely the 1972 European Communities Act and the 1968 and 1971 Theft and Criminal Damage Acts.
  • In both cases, there was a conflict between the earlier and later acts: the 1972 European Communities Act says traders must use metric while the 1985 Weights and Measures Act says traders can use lb/oz; in Mr Bennett's case, the 1980 Highways Act occupies ground held by the Theft and Criminal Damage acts. Under constitutional law, when acts conflict, the latter always takes precedence. This is the rule of implied repeal.
  • In both cases, Judges ignored the express will of Parliament as represented by the later acts; they ruled according to the earlier acts.

An important contrast between the two cases is how the judges sought ways of ensuring guilty verdicts in face of Acts of Parliament. In the case of the Metric Martyrs, Lord Justice Laws invented a whole new and hitherto unknown category of law called "constitutional acts". He argued that the European Communities Act was just such an Act, and was so important and far reaching that it could protect itself from implied repeal and repeal acts yet to come, such as the 1985 Weights and Measures Act.

In the case of Tony Bennett, Judge Kelly had to address the argument that the 1980 Highways Act impliedly repealed the earlier Theft and Criminal Damage Acts. What did he do? He told the Court that he could find "no legal basis" for this assertion and had "no hesitation in rejecting it". Judge Kelly appeared to have forgotten that Mr Shrimpton had provided him with just such a legal basis in the case of Davis which showed that a later, specific Act impliedly repealed an earlier, general Act. In view of the prosecuting counsel's inability to produce any alternative precedents, Judge Kelly had no alternative but to acquit. Instead, he convicted Mr Bennett on charges of theft and criminal damage and denied that he had been provided with a legal basis to the contrary.

Day One of the Trial, April 4th, 2002

Mr Anthony Bennett was defended by barrister Michael Shrimpton and the London firm of solicitors Ronald Prior and Co. At the time of the signs' removal, Mr Bennett was manager of the UK Independence Party's "Guard the Yard" campaign, set up to defend imperial measurements, and is currently a Council member of Active Resistance to Metrication (ARM).

 
Mr Bennett: standing next to Transco van outside Court
Direct action against illegal signage: Mr Tony Bennett  

The trial commenced on at 10.20am and was presided over by District Judge Michael Kelly. District Judges, previously known as Stipendiary Magistrates, are often appointed to hear unusual or complex cases. The Defendant, Mr Tony Bennett, who could have been tried in a Crown Court with a jury, elected to be tried in the Magistrates Court. The charges as read out at the beginning of the trial were: (1) theft of a quantity of road traffic signs from Transco/McAlpine Construction; and (2) criminal damage to one road traffic sign belonging to Transco/McAlpine Construction.

The case opened with a submission by Mr Bennett's counsel, Mr Michael Shrimpton, that the trial amounted to an abuse of process by the Police and the Crown Prosecution Service since it was clear that Mr Bennett's removal of the metric signs was not for personal gain; it was only for the purpose of ending Transco's own unlawful practices. The judge rejected the submission of abuse of process, saying that it was only in very limited circumstances that a Court could accept such a submission.

The Prosecution

Miss Andrea Scott-Lynch, prosecuting, told the court that McAlpine had put up a number of signs showing the distance in metres to a pipeline being laid by Transco in mid-Kent, but noticed in late June and early July 2001 that some had gone missing and others had been "defaced". The prosecution called two witnesses. Alasdair Paterson, Agricultural Liaison Officer for McAlpine PPS Join Venture, told the court that workers estimated there were 50 signs taken and others defaced. "To make the signs and replace them cost about £40 each. We had a letter from the UKIP signed by Mr Bennett to say he had taken these signs," he said.

Cross-examined, Mr Paterson said that he received a fax from Mr Bennett the day after the signs were removed that offered to return the signs so long as Transco/McAlpine would not use them again illegally on British roads.

The prosecution's second witness, Mr Scott Lambert, a crew foreman for McAlpine PPS, told the Court that he had seen Mr Bennett removing a sign on July 1st and placing it in the boot of his car where there were other road signs. Mr Lambert said that, when challenged, Mr Bennett had been very pleasant and polite and had explained that the signs were illegal under the relevant Traffic Regulations. Later in the day, he had seen him attempting to remove another sign. This time he asked Mr Bennett for his name and address. Mr Bennett had given a false name and driven off.

Mr Paterson was asked by Mr Shrimpton to read out a letter from Transco to Mr Bennett in July 2001 which fully conceded that their metric signs were illegal and indeed thanked Mr Bennett for bringing the matter to their attention. McAlpine PPS had also admitted in writing that they had been using illegal signs but could offer no rational explanation as to why they had been doing so. Mr Paterson and Mr Lambert both admitted to the Court that the signs they had erected were illegal.

Mr Lambert had been on a training course on road signs but the trainers had made no reference to metric signs being illegal. Mr Shrimpton told Mr Lambert it would be a good idea to tell the trainers about their omission next time he went on one of their training courses.

Cross-examined about Mr Bennett having painted over the illegal metric distance on a sign reading "Site Entrance Ahead 600 Metres", Mr Paterson conceded the following:

  1. the only part that had been painted over were the two words "600 metres";
  2. the wording "600 metres" was illegal;
  3. the painting over had been done neatly;
  4. Transco had covered over the painted part with a neat sign saying "600 yds"; and
  5. Transco should have ensured the sign read "600 yds" in the first place.

The judge then asked Mr Paterson and Mr Shrimpton whether the signs could have been used for other purposes. Mr Paterson claimed they could have been used in France or Germany. Mr Shrimpton responded by stating that there was no evidence before the Court of what were the legal requirements of traffic signs in those countries. Asked by the judge if Transco/McAlpine could have used them on private property, Mr Shrimpton pointed out the extreme unlikelihood of either company needing to erect those signs on private property. If indeed they were erected on private property to which the public had access, they would still have to be in yards. Mr Shrimpton said they were road traffic signs which should have complied with the Road Traffic Signs Regulations and General Directions and could be used for no other purpose save possibly for scrap.

[BWMA note: During Mr Paterson's evidence, a significant piece of information arose in that the metric signs were all replaced within 48 hours by new signs in lawful yards. McAlpine/Transco had not replaced their illegal signs on previous occasions when Mr Bennett and others has merely written letters to them about their metric illegalities].

Mr Paterson and Mr Lambert both admitted that along the pipeline there had been a mixture of road signs in metres and yards. Mr Paterson said that when erecting the road signs they had asked other sites for a supply of distance signs and that some of them had come in in metres and others in yards. Both witnesses denied that there could have been a situation in which metres and yards could have been used on the same stretch of road and agreed that if that had occurred it would be quite unacceptable. Mr Paterson added that as yards and metres were much the same, it didn't really matter very much. Mr Shrimpton asked him if the signs had been moved from, for example, the 600-metre mark to the 600-yard mark when they had been amended by McAlpine, to which Mr Paterson replied: "I would have thought so".

[BWMA note: we understand that Mr Bennett's evidence will show that metric and imperial signs were often mixed up along the same approach roads and that when corrected the signs were not moved as they should have been].

The Defence

For the defence, Michael Shrimpton said the case should not have been brought. He pointed out that Mr Bennett had immediately offered to return the signs to Transco. Mr Shrimpton said, "What should have happened was an apology from Transco and that should have been the end of the matter". He also said that Mr Bennett had acted only after the police, Kent County Council and the Department for Local Government, Transport and the Regions had failed to take any action to have the signs replaced by ones in Imperial measures, despite them breaking regulations. Kent County Council had in fact approved a Road Traffic Management plan that referred to signage being placed at metric instead of Imperial distances from the pipeline.

In exchanges which brought laughter to the press and public gallery, Mr Shrimpton pointed out that the last World War had been won by the two main countries using Imperial measurements, which had aided defence co-operation between the United States and Britain, whilst it had been lost by metric-only countries. Moreover, two-thirds by value of the world's weaponry were still made in Imperial measurements.

Another fact to emerge was that neither prosecution witness knew who actually owned the signs. The prosecution, on charging Mr Bennett with stealing signs from "Transco/McAlpine Construction", were told by their own witnesses that no such company existed. The prosecution hastily applied to amend the charge to "theft from McAlpine" which Judge Kelly accepted. However, it transpired that this company did not exist either. The signs were apparently under the possession of McAlpine PPS Joint Venture Systems.

The Judge read a transcript of the police interview with Mr Bennett, in which he admitted on arrest taking the signs and gave an explanation as to why he had done so, that he had previous experience in the UK Independence Party of writing to Transco about their illegal signs but without success. As his subsequent letters showed, all he was trying to do was remove an illegality from British roads and he had offered to return the signs. McAlpine had only asked for the signs back nearly three months after their removal.

At the conclusion of the prosecution case, Mr Shrimpton made a further submission of "No Case to Answer" on three grounds: (1) that even after successfully applying at the 59th minute of the 12th hour to change the identity of the company that owned the signs, the prosecution had still merely referred to "McAlpine" as the company legally owning the property and there was no such legal entity; (2) the prosecution had failed to advance any evidence of dishonesty, a key requirement to secure any conviction for theft; and (3) the prosecution had failed to advance any evidence that Mr Bennett intended to permanently deprive the company of the road signs. The evidence was that he initially offered to return the signs forthwith and then later, after new signs in yards had been erected by McAlpine, offered to return the signs on condition they were no longer used for an illegal purpose - a perfectly proper condition in law.

After retiring, the judge came back to announce that he had also rejected that submission. The judge is not obliged to give reasons for rejecting a "no case to answer" submission and did not do so. As time had run out, the case was adjourned for a further day in May. Mr Bennett has yet to give evidence.

The defence team asked the prosecution to accept a statement from BWMA member, Paul R, in which he referred to a letter he had written to Transco as far back as October 1997 drawing their attention to their improper use of illegal metric signs. The prosecution refused to accept the letter, meaning that Mr R may have to attend Court to give evidence. The prosecution team may change their mind before 1 May.

Interviewed by Meridan Television

Day Two of the Trial, May 1st, 2002

Mr Bennett approaches Court
Mr Bennett and friends approaches Sevenoaks Magistrate's Court.
"Metric signs are illegal"

District Judge Michael Kelly convened the Court at 10.03am, May 1st 2002, and gave his decision that, following the evidence given on April 4th at Maidstone Magistrates Court, there was a case for Mr Tony Bennett to answer in relation to charges of theft and criminal damage of metric road signs in Kent during July 2001.

Mr Paul R's evidence

Michael Shrimpton told the Court that Mr Paul R was present to give evidence, and Judge Kelly indicated that he could do so. Mr R was sworn in, giving his name, address and profession, a surveyor. Mr R was handed a copy of a letter. Shrimpton asked whether he recognised the letter. Mr R said he did; it was a letter that he sent to Transco in 1997, informing them that their metric signs were unlawful. Mr Shrimpton asked whether he recalled the reply from Transco. Mr R said he could. The reply was to the effect that they acknowledged that metric signs were illegal on the highway, and that they would be taken down and scrapped.

Miss Andrea Scott-Lynch, acting for the prosecution, asked Mr R that, when he noticed the signs in 1997, whether he saw any of the names of the contractors. Mr R could not recall.

Mr Shrimpton said that Mr R should not have been put to the inconvenience of being called to the Court, since there was no dispute as to his evidence. The CPS could have confirmed his information with a simple telephone call. Judge Kelly said he had sympathy with this view.

Mr Tony Bennett's evidence

At 10.17, Mr Bennett was sworn in, and invited to sit down by the judge. Mr Bennett gave his name, address and qualifications: trained at the College of Law as a solicitor, two degrees in geography and social work, and two diplomas.

Mr Shrimpton asked Mr Bennett whether he had contact with the British Weights and Measures Association. Mr Bennett confirmed that he had. "In what way were you involved?" Mr Bennett said that in early 2000, he was an employee of UKIP and worked with BWMA to assist traders threatened by trading standards officers for using pounds and ounces. With regards to metric road signs, BWMA had by summer 2000 established that metric road signs were unlawful.

"Did you familiarise yourself with the legislation?", asked Mr Shrimpton. Mr Bennett replied that he had, and possessed a copy of the 1994 Traffic Regulations and General Directions. Mr Shrimpton held up Mr Bennett's copy of the Regulations and described them as "much thumbed". Mr Shrimpton asked whether Mr Bennett was in possession of the Regulations before July 2001, the month of the alleged offences. "Yes, most certainly". "Was it put away in a draw and never read?" No, replied Mr Bennett, he read the regulations "thoroughly".

Referring to the metric signs in Kent, Mr Shrimpton asked whether these were the only examples of metric signs that Mr Bennett was aware of. Mr Bennett said certainly not, there were 101 local authorities and other organisations that erected illegal signs. Mr Shrimpton produced a copy of the 1980 Highway Act and asked Mr Bennett when he became aware of it. Mr Bennett said he became aware of it in the summer of 2000. He had been in contact with a number of barristers regarding the Steve Thoburn case and, with reference to the illegality of metric signs, one of the barristers drew Mr Bennett's attention to certain provisions of the act. Mr Shrimpton asked Mr Bennett to read out those provisions:

"If a person without lawful authority or excuse pulls down or obliterates a traffic sign placed on or over a highway, or a milestone or direction post (not being a traffic sign), he is guilty of an offence; but it is a defence in any proceedings under this section to show that the traffic sign, milestone or post was not lawfully so placed".

Mr Shrimpton asked, "What was your state of mind as to the effect of the act?" Mr Bennett replied that he believed the act permitted the covering over or removal of unlawful signs. Mr Bennett said that, as part of UKIP's "Guard the Yard" campaign, he had published a leaflet that gave advice that it was "probably" lawful to cover over an illegal distance.

Mr Shrimpton asked when Mr Bennett became aware of Mr R's letter to Transco. Mr Bennett replied that it had been reported in the February 1998 edition of the Yardstick, the journal of BWMA. Mr Shrimpton asked Mr Bennett to explain about the BWMA. Mr Bennett said that it was an Association set up to promote the use of traditional measurements. Its journals were the Yardstick and the Footrule. "Not the Inch Informer, then?" joked the judge. The judge said to Mr Shrimpton, "You're not going to turn the case into a party political broadcast?" "Perish the thought!", Mr Shrimpton replied. The judge said he would accept the evidence as it was relevant to Mr Bennett's state of mind when he committed the alleged offence.

Mr Bennett produced a copy of the UKIP legal advice leaflet and read out paragraph ten: [text to follow] Mr Bennett said that UKIP's metric road sign campaign was launched as a successor to the pounds and ounces campaign. UKIP wrote to local authorities and asked that metric road signs be removed. Mr Shrimpton read out various letters by local authorities acknowledging that error in using metric signs. After Mr Shrimpton had read out five or six such letters, the judge asked whether any more were needed; the point would not be made better by repetition. Mr Shrimpton indicated that the letters did not merely give an indication of their intention to change the signs, but acknowledged that the signs were wrong, they were illegal and should not have been there in the first place.

Judge Kelly said he did not see the word "illegal" in any of the letters, and that he was "not persuaded that the signs are illegal", since no criminal sanctions existed. The judge said that he accepted only that the signs were "not in accordance with the regulations". "Therefore", Mr Shrimpton replied, "they are illegal". The judge was not convinced by this.

Mr Bennett said from the witness box that he was "troubled" by the judge's reluctance to recognise the signs as "illegal". Mr Bennett said that when compiling the UKIP leaflet, he consulted the dictionary as to the meaning of the words "illegal", "unlawful", etc. The definition given was an act "…not permitted by law or not allowed by law". Mr Shrimpton said that the Court had to be concerned with Mr Bennett's state of mind. The judge reiterated that the word "illegal" was not in any of the letters from the local authorities, and that he was "not persuaded, yet".

Mr Shrimpton produced several letters which used the word "illegal" but the judge pointed out that the word appeared in the title bar, in which case the word could have used by the original letter-writer, and the local authority would have simply copied it in their reply. Mr Shrimpton argued that people are entitled to assume that official letters are written with care. The use of the word illegal indicated that that is what they accepted. Mr Shrimpton pointed out that one of the letters used the word in inverted commas, but most did not. The judge said he did not dispute that there had been a breach of the regulations. Mr Shrimpton said that non-compliance was a matter of law.

Mr Shrimpton produced a letter from the Department of Transport, dated April 29th, 1999 to a Mr Carroll that used the expression "not lawful". The prosecution objected to the letter, saying it was akin to "hearsay", but the judge said it was relevant to Mr Bennett's state of mind when he committed the offence. Mr Shrimpton said that unless the prosecution were saying the letter was a forgery, they should accept it. He said that they had six months to challenge the submission and they should stop "nit-picking" at this late stage.

The judge said he would accept the letter as evidence on state of mind, and read out to the Court the relevant paragraph:

"…It is not lawful to use direction signs which show distances in metres and kilometres rather than miles and yards".

The gallery laughed when the judge read out a hand-written note at the bottom of the letter, "They are obviously waiting for us to all die off". Mr Shrimpton asked Mr Bennett whether he had any reason to doubt whether the letter was genuine. Mr Bennett said, "Certainly not"; he had several letters from the same official at the Department of Transport, with consistent signatures.

Mr Shrimpton asked Mr Bennett his understanding of the government's view on metric signs. The judge began to intercede but Mr Shrimpton said that it was relevant to state of mind. The judge relented, "Yes, he can tell us what we thought". Mr Bennett said he was in possession of eight to ten DETR letters, all of which said metric signs were unlawful save those in limited circumstances, for example, relating to bridges. Mr Shrimpton asked, "Subject to the forgery point, did you see these letters prior to July 2000?" Mr Bennett replied that he had. "Did you have any reason to presume Mr Carroll was a forger or making his letter up?" Mr Bennett replied that he thought Mr Carroll had seemed an honest man.

Mr Shrimpton asked as to the volume or letters. Mr Bennett said that he had 36 letters prior to July 2001 and up to 20 since, plus various others, a total of around 75 from all over the country. Judge Kelly said he was happy to accept that Mr Bennett thought the signs were illegal.

Mr Shrimpton asked how Mr Bennett became aware of metric signs in Kent. Mr Bennett said that the signs in Kent were the fourth occasion of Transco using metric signs, the previous examples being in Sussex, Lancashire and Cheshire. He said that he became aware when he received an email from a UKIP member, a Mr Waller, on June 29th, 2001 relating to metric road signs being used on a road where gas pipes were being laid near Tenterden, Kent. On July 1st, he went to the site to inspect the signs and established that there were more signs than had been reported. "Within the first hour of being on the site it was clear that the metric signs were numerous and this was the fourth incident where Transco had been guilty of using illegal signs in four years". Mr Bennett said, "After about an hour I considered what approach I should take and by this time I had formed the view that the only effective way of getting something done about this ongoing problem was to forcibly remove the illegal signs. My purpose was to remove any illegality and to bring it a bit more forcibly to Transco that they couldn't get away with constantly breaking the law."

Mr Shrimpton noted that there was no dispute that Mr Bennett took the signs, and asked Mr Bennett how many signs were removed. Mr Bennett replied twenty-nine. "All returned?" "Yes, on October 31st". Mr Shrimpton asked what types of sign were removed. Mr Bennett replied those showing metres. Mr Shrimpton asked whether he removed any "Danger Men at Work" signs. Mr Bennett said he did not. Mr Shrimpton asked whether any others were involved. Mr Bennett said one other was involved.

Mr Bennett said there was a mixture of signs: metric to the east of the site, yards to the west, and a mixture in the middle. Yards and metres were mixed on one road eg "400 metres" followed by "300 yards" and then "200 metres".

Mr Shrimpton asked why he gave the name Ray Stevens. Mr Bennett said that, when approached by a Transco worker, he panicked as he knew Transco would not be "too thrilled" at the removal of signs. Mr Bennett was asked by Mr Shrimpton when he gave his real name. He replied the following day.

Mr Bennett said that he had been arrested and charged on a previous occasion, at Stansted Airport for painting over a metric sign. However, on June 27th 2001, he received a letter from BAA saying the charges were being dropped. Mr Bennett later asked the Crown Prosecution Service (CPS) in open court why the charges were being withdrawn and was told that BAA had taken legal advice and decided to offer no evidence. Mr Bennett said that as a result of this, he "was satisfied that, if proceedings were brought, they would fail". He added, "Covering over an illegality can scarcely be treated as a criminal act".

Mr Shrimpton asked whether Mr Bennett had any previous convictions, part from motoring offences. Mr Bennett said he had not.

Mr Bennett said that he had made offers to return the signs. After writing on July 12th to say the signs were being held as evidence against Transco, he wrote again on July 18th to give a clear, unconditional offer to return the signs. However, he received no reply.

Mr Shrimpton asked Mr Bennett when he was first asked for the return of the signs. He replied that he received a telephone call from the police, asking for them back. Mr Bennett asked the police, "What do they want them back for?" The police replied that they did not know, "they may want them for scrap". Mr Bennett said he told the police that, if Transco confirmed in writing that they would not use the signs for illegal purposes, he would return them. Mr Bennett later received a letter stating that if the signs were not returned, proceedings would commence. Mr Bennett said that he telephoned Transco to explain that, with no letter, he believed the signs would re-appear on another British road. A letter from Transco still did not arrive, and the next Mr Bennett knew was when three police officers appeared on this doorstep.

Questions by the Prosecution

Andrea Scott Lynch asked: "You accept you took signs?" Mr Bennett said yes. Miss Scott Lynch asked, "You accept that you painted over the word 'metre'". Mr Bennett said yes. "The signs did not belong to you?" Mr Bennett replied correct. Miss Scott Lynch asked Mr Bennett whether he had the owner's authority to affect the signs, or anyone who he assumed to be the owner. Mr Bennett said, "The authority I was working on was the law of the land which states you cannot erect metric signs".

Miss Scott Lynch asked, "You accept you are not part of an authority with a statutory right?" Mr Bennett accepted this, but said he had a right as a citizen. "As a citizen I have the right to arrest somebody who has committed an offence and I have a right to prevent something illegal happening on our roads." Miss Scott Lynch asked, "You had not drawn it to Transco's attention?" Mr Bennett said he had done so previously in the case of Sussex and Cheshire. He said it was Transco's responsibility to ensure sub-contractors acted within the law. Miss Scott Lynch asked, "But not on this occasion?" Mr Bennett replied no.

Miss Scott Lynch said that Mr Bennett had sent Mr Waller a pro-forma letter for making complaints about metric signs, "…but you didn't use one on this occasion?" Mr Bennett replied no.

Miss Scott Lynch suggested that Mr Bennett had been emboldened by the failure by BAA to prosecute after painting over a sign near Stansted. Mr Bennett said yes. Miss Scott Lynch asked Mr Bennett whether he was told of the nature of the legal advice given to BAA. Mr Bennett said he was not, but that he was convinced that BAA dropped the case because of the legal advice that it had been given. Mr Bennett said it could not have dropped the case for any other reason. Miss Scott Lynch said, "But you cannot know exactly the thought processes?" Mr Bennett conceded he could not.

Referring to correspondence with local authorities, Miss Scott Lynch said that some of Mr Bennett's letters disputed his interpretation of the law. Mr Bennett said there were some grey areas, such as pedestrian signs. Miss Scott Lynch referred to a letter from Mole Valley council (Surrey) that disputed Mr Bennett's view of the law. However, Mr Shrimpton rose at this point to say that the Mole Valley letter was dated after July 2001, and therefore could not have affected Mr Bennett's state of mind. The judge nodded and Miss Scott Lynch moved on.

Miss Scott Lynch asked Mr Bennett whether he wrote the "Guard the Yard" leaflet. Mr Bennett acknowledged he did. Miss Scott Lynch drew the court's attention to one sentence, "We are not urging you to take direct action". Mr Bennett said they were 99.9% sure of the law, but could not be totally sure. Mr Bennett said a letter had been sent to all County Councils, including Kent, informing them of the illegality of metric signs. He said he believed that, had he used only telephone calls and letters when dealing with Transco, the signs would still be there. With direct action, however, the signs had been changed to yards in 48 hours. Miss Scott Lynch said that, "You did not even try" to contact Transco regarding the signs specifically in question. Mr Bennett replied, "Not on this occasion".

Miss Scott Lynch asked Mr Bennett whether he had heard of the Criminal Damage Act. Mr Bennett said he had, but did not believe the Criminal damage Act applied. Miss Scott Lynch asked how many runs Mr Bennett did to remove all the signs. Mr Bennett said five. Miss Scott Lynch asked what Mr Bennett had intended to do with the signs. Mr Bennett said he intended to keep them until he had received written assurances about their future use. Miss Scott Lynch said that the signs were not his property and that he did not have the right. Mr Bennett said, "Yes, I do".

Miss Scott Lynch said he did not draw the matter to those persons directly responsible. Mr Bennett said he did not because of Transco's previous record. If the firm had been a different one such as Amex, the signs would not have been removed. Miss Scott Lynch said that Mr Bennett had said that he saw no reference to any other companies other than Transco; how, therefore, did he know to write to McAlpine the following day? Mr Bennett said he telephoned the free emergency number given on the Transco signs that evening and the operator told him who the signs' owners were.

Miss Scott Lynch said, "It is not for you to tell the company how to change their signs. You knew you were doing something illegal?" Mr Bennett said "Certainly not". Miss Scott Lynch asked why Mr Bennett had given a false name. Mr Bennett said he had been nervous and panicked. Miss Scott Lynch said that the letter he sent to McAlpine did not indicate that it was he who took the signs. Mr Bennett accepted that the letter was "not straightforward". Mr Bennett said he gave false details initially because he felt uncomfortable. "Because you knew you were doing something illegal", asked Miss Scott Lynch. "Definitely not", said Mr Bennett.

Miss Scott Lynch pointed out that he had imposed conditions on the return of the signs. "Not in the first letter", said Mr Bennett, and the condition in the second letter was only that the signs not be used illegally. Miss Scott Lynch said that he had no authority because they were not his property. Mr Bennett asked whose authority was it? He said: "There has been a systematic failure by police, county councils and the Department of Transport to deal with this matter. They have had hundreds of letters on this matter and failed to deal with it…if they had carried out their powers I would not have done what I did on July 1st".

Miss Scott Lynch said that perhaps McAlpine wanted the signs back because they were theirs. "But not in a case where they use the property illegally", Mr Bennett replied. He said that he would bet that Transco and its sub-contractors are obeying the law now, which they would not have done otherwise. He drew the court's attention to a letter where it said signs should be in yards "in theory". Mr Bennett also produced four letters from Transco or McAlpine, none of which asked for the return of the signs. Mr Bennett said that, because of his actions, "The authorities have finally woken up and stopped erecting them".

Mr Shrimpton rose asked Mr Bennett whether he knew of any Men at Work signs being removed. Mr Bennett said he was not aware of such signs being removed and, if taken, it had nothing to do with him.

Miss Scott Lynch noted that Mr Bennett used the work "illegal" when referring to metric signs. Mr Bennett said he used various words: illegal, unlawful, unauthorised. Miss Scott Lynch pointed out that metric signage was not a crime; therefore, "You were not abating a crime". Mr Bennett said that he was working to ensure the law was upheld. Miss Scott Lynch said that, earlier, Mr Bennett had compared his action to a citizen's arrest. She put it to him that this comparison was invalid, since a citizen's arrest involves preventing a crime, whereas Mr Bennett's actions did not. Mr Bennett said that those companies and local authorities that installed metric signs went "beyond the law"; they were acting "without the authority of Parliament or the people, and that is a serious matter".

Miss Scott Lynch said that he did not draw the signs in question to the people responsible. Mr Bennett said he did not, as it was the fourth occasion in which a Transco site was found using metric signs. Miss Scott Lynch said he acted against the company in order to deliberately to teach them a lesson. Mr Bennett said that he was ensuring that the signs were corrected into yards. Mr Bennett agreed that his actions did them a lesson. Miss Scott Lynch put it to him that he knew that he was doing wrong. Mr Bennett said, "You know why I took them…I didn't steal".

Miss Scott Lynch asked, "You took the signs?" Mr Bennett replied yes. "You gave a false name?" Mr Bennett replied yes. "You did not give them back?" Mr Bennett said he wrote a letter offering to return the signs. "You imposed conditions?" No, Mr Bennett replied, he imposed one condition, that they would not be used unlawfully. "You thought you would be prosecuted?" Mr Bennett replied he thought it was a possibility.

Miss Scott Lynch asked how Mr Bennett could be sure that the signs would still be in the locations that he left them. Mr Bennett said he hid the signs in undergrowth. Miss Scott Lynch indicated to the Judge that she had no further questions.

The Judge asked Mr Shrimpton whether he had any further questions. Mr Shrimpton said he had not.

The Judge said he had his own questions for Mr Bennett. First, he asked Mr Bennett why he thought signs needed to be approved. Mr Bennett said that it was important to have road signs consistent for reasons of safety. It was for this reason that the Regulations were volumous, laying down the size, colour and shape of signs, as well as distance specifications. The Judge asked whether a prosecution would fail if a sign was wrong. Mr Bennett said it would. Prosecutions based on information contained within signs, say for insurance purposes, would be bound to fail if the signs did not comply with the Traffic Regulations. The Judge referred to a letter to Mr Bennett where it said that a metric sign is "better than no sign at all". Mr Bennett said he did not agree, since the distance signs were supplementary and not mandatory. His actions did not affect the "Danger Men at Work" signs.

At 12.15 pm the Judge closed the Court for lunch.

Mr Bennett and supporters enjoy a drink during lunch

Summing Up

At 1.15 pm, the Court reconvened. Mr Shrimpton summed up with the following points.

1) No owner asked for the return of the metric signs (as opposed to a police officer).

2) No owner known as "McAlpine" had been shown to exist. Since April 4th, no attempt had been made by the prosecution to show that McAlpine exists.

3) Section 1.3.1 of the 1980 Highways Act had a "dramatic effect" on the case. While Parliament in 1971 provided for the general offence of criminal damage, in 1980, it created a specific offence relating to signs. The 1980 Highways Act impliedly repealed the 1971 Criminal Damage Act in so far as it applied to traffic signs.

Mr Shrimpton referred to the 1783 case of Davis as precedent for implied repeal. Davis had killed a deer, the previous penalty for which was death by hanging. However, later legislation provided for a fine of £20. In the case of Davis, the Court accepted that the later penalty applied, since it impliedly repealed the earlier penalty. Mr Shrimpton said Mr Bennett's case had to proceed under the later legislation or not at all, since the prosecution could not rely on legislation that had been repealed. By bringing the prosecution under the 1971 Criminal Damage Act, the CPS had deprived Mr Bennett of a defence provided by Parliament.

4) Mr Bennett had lawful excuse. He had acted as a witness of truth, and his words in Court were characterised by frankness. He had admitted readily facts that might go against him, such as using a false name. He was a man of good character.

5) State of Mind. Mr Bennett had shown that he believed that metric signs were illegal, and that he was aware of the 1980 Highways Act. This was relevant to his state of mind when committing the acts. Mr Bennett had been trained as a solicitor and had looked at the Regulations in question. He had made "no mere glance at the regulations" but had made a careful enquiry. The letter by the Department of Transport set out the view of the government, and confirmed that the metric signs were unlawful. Mr Bennett was therefore acting with the benefit of the view of the government, local authorities and the Highways Agency that road signs had to be in imperial.

6) Transco did not take a serious view of its responsibilities. Neither did Kent County Council nor Kent Constabulary which did anything to stop the illegality. The judge asked whether the police had the power to remove signs. Mr Shrimpton said certainly, if the signs were unlawful. If a police officer had removed an unauthorised sign, said Mr Shrimpton, who would have complained, and of what? Mr Shrimpton said the metric signs went beyond using a confusing and unwanted system of measurement, it affected the prosecution of insurance firms. Mr Bennett's state of mind while taking the signs was, "If no-one takes action, nothing will happen". Mr R's evidence was that in 1997 Transco was informed that it did not observe its statutory obligations. Over a period of 3½ years, however, they did little or nothing to correct matters. This, Mr Shrimpton said, was "outrageous conduct" by Transco.

Mr Shrimpton noted that while metric signs could be authorised by the Secretary of State, no authorisation existed for the signs in question. Nor were the signs protected by "grandfather rights", whereby signs installed under previous legislation were permitted even after the enabling legislation was repealed. Mr Shrimpton said the signs were contrary to the regulations and therefore contrary to statute; they were illegal. Erecting metric signs was not a criminal offence, Mr Shrimpton said, perhaps because, when the regulations were drafted, it was not thought necessary since those that would be installing the signs would be people in authority.

Mr Shrimpton said that installing metric signs was not just a technical issue. Imperial units were part of the country's culture, history and "the way we do things". The European Commission had not required metric road signs, and the UK provided for imperial signs. For firms to use metric, Mr Shrimpton said, was not only illegal but likely to give rise to offence.

Mr Bennett had not acted for personal gain, there was no suggestion that he had tried to sell the signs. He had acted out of concern. Mr Bennett had every right to be concerned and angry, and to act in the public interest. Mr Shrimpton said that what had shown through in Mr Bennett's evidence was not contempt for the law but respect.

Mr Shrimpton said if, at some point, Parliament changes the law, so be it but, until then, the law said signs must be in imperial. To accuse Mr Bennett of theft was "irrational". The signs were illegal, an offer had been made to return them, the offer had not been taken up, and the signs were eventually returned. Moreover, it had still not been established whose the signs were. That the CPS had brought the prosecution was "unreal", and a guilty verdict would bring the Theft Act into disrepute. There was no credible evidence of dishonesty, or of an intention to permanently deprive. If an accident were to occur on a stretch of road with metric signs, a prosecution case would be unworkable. Mr Shrimpton asked that Mr Bennett be acquitted.

Miss Scott Lynch raised only a point of law in summary, that implied repealed applied when two statutes contradicted each other. She said no contradiction existed in the current case.

Judge Michael Kelly said that he was "coming to a point of view" and adjourned the Court, saying he would try to reach a written decision in an hour. However, when the Court reconvened an hour later, he said that he could not do justice by rushing the decision. He regretted that people would have to attend a third day for the verdict. He apologised for the inconvenience, but said it was an "important case".

Agreement was made with all parties to reconvene at Maidstone on May 22nd for the verdict.

History of the Case

In July 2001, Mr Bennett received a report from residents in mid-Kent relating to dozens of illegal metric signs around a Transco pipeline. Aware from previous correspondence that Transco's contractors had a persistent record of using unlawful metric signs (see below), Mr Bennett was of the view that further polite letter writing was no longer an adequate response and that direct action was needed to remove or amend the signs in order to remedy the unlawful situation.

  Illegal signs erected by McAlpine: 29 signs unlawfully giving distances variously as 100m, 200m, 400m or 800m. Mr Bennett removed the lower portion of the signs, leaving the triangular signs in place.
400 mtrs
SITE ENTRANCE
AHEAD
600 METRES
More illegal signage: Mr Bennett covered over references to "metres" while leaving "Site Entrance Ahead" unaffected.

The following day, Mr Bennett informed Transco that the signs had been removed or covered over because they did not comply with the law. Mr Bennett offered to return the 29 signs on the condition that they were not used illegally again. However, Transco did not give that undertaking and demanded an unconditional return of the metric signs.

At 7am on October 27th, 2001, three police officers arrived at Mr Bennett's home to arrest him on allegations of theft and criminal damage, and to search his house, attic, shed and garage for the 29 signs (unsuccessfully). Mr Bennett appeared at Maidstone Magistrates Court on October 30th where he pleaded "Not Guilty". The same day, he returned the 29 signs (with the word "mtrs" painted over) to the Transco site at Staplehurst where they were counted in and signed for.

The Issues

The District Judge will have to decide whether it is a crime to remove or paint over a metric sign in order to prevent it from being used unlawfully. Mr Bennett's defences are:

  • Only illegal elements of the signs were affected. No legal information was interfered with, and no lawful signs were removed.
  • The moving of signs was not "theft" since Mr Bennett had no intention of permanently depriving their owners of them. On July 18th, Mr Bennett made an offer to return them.
  • None of the signs were in fact damaged. Illegal references to metres were covered with paint that could be removed.

Significantly, McAlpine's replacements for the white signs removed by Mr Bennett were in lawful yards. BWMA interprets this as tacit recognition by McAlpine that its metric signs were illegal. In the first instance, therefore, Mr Bennett's solicitors are seeking an admission from McAlpine that their signs were unlawful.

BWMA's position

BWMA is taking a keen interest in the case as Transco's contractors have a long history of using illegal signage, at least since 1997 when BWMA member Paul R wrote to them concerning signs that appeared in Sussex (letter below). Transco acknowledged that they should have not have been using metric signs, saying:

"The signs placed along the Steyning Bypass marked with 'm' were indeed incorrect and I can only thank you for pointing out the error of our ways" (Transco, December 1997).

But in early 2001, Transco sites were seen using hundreds of illegal signs in Lancashire. Later in 2001, Transco was witnessed using more unlawful metric signs in Cambridgeshire, and then again in Cheshire. BWMA has provided Mr Bennett's solicitors with copies of letters from the Department of Transport clearly stating that metric distance signs are against the law in Britain.

Flashback: BWMA member Paul R's 1997 letter to Transco:

Sunday 30th November 1997.

To: The Operations Manager,
BRITISH GAS 'TRANSCO'.
c/o: Charter Court,
50 Windsor Road,
SLOUGH , Berkshire.

Dear Sir,

Road works signs, A283 Steyning, West Sussex.

I write to ask for an explanation of a rather strange aspect of some temporary triangular road works warning signs which have appeared alongside the A283 bypass at Steyning in connection with works recently carried out to the highway margin there!

Apart from the fact that these signs and associated temporary traffic lights were used to guard an apparently unaffected patch of road and so unnecessarily obstruct a busy main road during two peak periods, I also noted that the signs are curiously marked in 'm' ("800m").

Either your road works are extraordinarily long, or else your company is rather foolishly trying to be trendy and force the 'European' pace and means 'metres'. Either way, these signs are misleading and should be withdrawn and correctly remarked in 'yds', as all other British road signs are and will continue to be under present legislation. You must realise that road distances in metric units mean nothing to most drivers in this country and furthermore the abbreviation 'm' is only a recognised one for miles, not for metres.

I can find no basis whatever for marking any type of road sign in this country in metric units. Even if one accepts the (debatable) authority/legal validity of unwanted enforced, metricising legislation in this country, there is certainly no specific legal authority for the use of metric units in highways distance, speed or time measurement. In fact, the (undebated) 1995 UK Regulations (Statutory Instruments) implemented only the EEC Units of Measurement Directive 80/181/EEC (House of Commons Library Research Paper 95/78: 'Metrication and the Sale of Goods' dated 22nd June 1995). Various matters, including those to do with highway distance measurement, were specifically derogated from those regulations and to use them is therefore incorrect and illegal. Neither other road contractors, nor the highways units of the County Council, are using public signs marked in such units. So why are you?

I look forward to and thank you in anticipation of your kind response in the near future.

Yours faithfully,
P.A. R

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