1. MR
JUSTICE COLLINS: This is an appeal by way of Case Stated from a decision of the
Crown Court sitting at Southwark which dismissed an appeal by the Appellant
against his conviction at the Horseferry Road Magistrates' Court. The hearing
before the Southwark Crown Court was on 5th June 1998. The offence in question
was said to have been committed on 22nd March 1997 and the allegation was that
he had "contrary to Section 40A(c) of the Road Traffic Act 1988... [used] a
Mahindra Jeep Index No L103EKL when the manner in which passengers were carried
by it was such that the use of the motor vehicle involved a danger of injury to
any person".
2.
The section itself reads in very similar terms. It is side noted "Using
vehicle in dangerous condition etc" and it states:
"A person is guilty of an offence if he uses,... a motor vehicle or trailer on a road when-...(c)... the manner in which [the passengers]are carried......is such that the use of the motor vehicle... involves a danger of injury to any person."
3.
The matter was listed before us as an application to remit to amend the
case. What was required by the Appellant was that the evidence be recited in
rather more detail than had been done by the Crown Court Judge and that the
submissions of counsel, who then appeared, should be reflected by the case.
We have seen, because they have been served upon us, the statements of the
witnesses which Mr Salter, on behalf of the Appellant, wished the Court to
consider. We are aware from the draft case that was submitted to the Crown
Court of the submissions that were made. In those circumstances, it seemed to
us that it would be a complete waste of time and money to send the case back in
order that these matters be spelt out, and we have been prepared to approach
the case on the basis that we were entitled to have regard to the material
outside the case in the form of the statements, and a record of the submissions
that were made. Mr Wyatt, on behalf of the Respondent, did not object to that
course being taken.
4.
The circumstances in which this offence was allegedly committed involved
the carrying by the Appellant of his seven year old son, Rhys, in the back of
the vehicle in question. It was being driven for a relatively short distance
in Central London and was observed by police officers who followed it and who
formed the opinion that the offence had been committed, hence the prosecution.
5.
I must now set out the facts as found by the Crown Court, so far as
material. I should add that we have had the great advantage, as had the Court
below, of seeing photographs of the vehicle in question? The vehicle is what
is described as a Mahindra Jeep. It, at the material time, had no covering to
its back. It is a relatively small vehicle. The back of it does not have
seats as such, but the wheel arches are covered by flat pieces of metal which
can be sat on. The sides of the vehicle consist of solid metal on top of which
is a roll bar and at the front forming, as it were, a barrier between the back
and the front is another roll bar, slightly higher. The roll bars themselves
are three inches in diameter. They have rubber covering upon them, but that
covering, when gripped, yields only slightly under pressure. The distance
between the flat top of the wheel arch to the top of the solid metal is four
and a half inches and the roll bar extends a further 15 inches above that.
6.
On 22nd March 1997 in the evening the Appellant was seen driving the
vehicle along Victoria Street. His seven and a half year old son Rhys was in
the rear. The police officers observed Rhys sitting with his back to the front
passenger seat. Rhys was called to give evidence and so the Court was able to
see for themselves what sort of a child he was and it described him as:
"... rather small for his age and his grip was less than 3 inches in diameter. This meant that he would not be able to close his hand around the vehicle's roll bar."It continues:"He was under no physical or moral restraint."
7. I
am not quite sure what the Court meant by "moral restraint", but any way that
is the word that is used. The case continues:
"B)... As the vehicle slowed for the automatic traffic signals at the junction of Victoria Street with Artillery Row, Rhys stood up and sat down again on the nearside wheel arch facing across the vehicle. The vehicle stopped at the traffic lights which were at red. When the lights turned to green the vehicle pulled off and, just before it turned left into Artillery Row, Rhys stood up and went to resume his original seating position. As at all times when he was observed he was holding onto the roll bar. As the vehicle turned left Rhys was thrown towards the driver's side of the rear of the vehicle as he lost his footing due to the momentum of the vehicle but was saved from falling as he retained his grip on the roll bar. He then resumed his seat.C) The vehicle was followed by Police Officers along Horseferry Road and then across Lambeth Bridge into Lambeth Road where it was stopped. The vehicle attained a maximum speed of 30-40 mph. During the course of the journey, as the vehicle traversed an uneven road surface, Rhys was seen to be bounced about as he sat on the rear wheel arch.D) As Police Officers in a pursuing vehicle put on their vehicle's blue flashing lights, Rhys was seen to stand up with one hand on the nearside roll bar and one on the spare wheel whilst he stood facing to the rear for a distance of about 50 metres as the vehicle slowed from 30 to 40 mph to a halt.E) We heard evidence from the Appellant and Rhys that Rhys had travelled in this manner on many occasions without sustaining injury."
8.
Although that last sentence is contained under the general heading of
"Findings of Fact", Mr Salter was concerned that the Court might not have
indicated that it believed, and accepted, the evidence from the Appellant about
it. There is, as far as I can see, no reason to doubt that the Court did
accept that evidence. Mr Salter has told us that the Appellant gave evidence
that Rhys had travelled in this fashion in the back of this vehicle on a
considerable number of occasions and that he was a responsible child. He knew
perfectly well, and his father was clear that he obeyed his instructions, that
he should remain seated in the back. Unfortunately the findings of fact,
based upon the evidence of the police officers, show that Rhys was not, on this
occasion, entirely following the instructions that had been given to him
because there are the findings, which I have already read, that Rhys was seen
from time to time to stand up.
9.
For my part I would have thought that however good a seven and a half year
old child might be it must be foreseeable, and indeed perhaps inevitable, that
he might want to shift around from time to time. Quite apart from anything
else, there is no padding on the metal tops over the wheel arches upon which
someone travelling in the back of this vehicle can sit, and they would,
particularly if the road surface was at all uneven, be somewhat uncomfortable.
Therefore it seems to me that it would be virtually inevitable that a passenger
would want to shift around. A child would not necessarily be expected to
appreciate quite what manoeuvre the driver might be intending to make.
10.
The point that Mr Salter seeks to make, and to emphasise, is that the
Appellant was a responsible parent who was quite satisfied that what he was
doing was not creating a danger for Rhys and Rhys himself was a child who could
be trusted to behave himself in the back of such a vehicle.
11.
The test under the relevant subsection is not a subjective test. It is not
what the driver, or the user of the vehicle, may have believed, however genuine
that belief may have been. The test is an objective one and the Court has to
decide, looking at the evidence that is given before it, whether it is
satisfied that there was a danger of injury to any person having regard to the
way in which passengers were carried in the relevant vehicle.
12.
The Crown Court then recites its conclusions. It was referred to what I
think is the only reported authority on this particular subsection of the Road
Traffic Act, a Scottish case
Akelis
v Normand
(1997) SLT 136. The relevant circumstances in that case were that a van was
seen and that there was one passenger in the back of the van who was lying
across the floor, his head on one side, his feet on the other, there being no
seats or any other form of restraint. The finding of the Justices was that
there was a risk of injury to the passenger in the rear of the van if a head on
collision occurred.
13.
The Court decided that that was insufficient to constitute the offence
under this particular subsection because there would be a risk of injury to any
passenger in the back of the van, indeed more of a risk to one sitting facing
the front than to one lying across from the floor if there was an accident.
The point of this section was not to consider danger if there was an accident
because it must be recognised that there is, in such circumstances, inevitable
danger to passengers. The question is whether there is a danger in the
circumstances in which the vehicle was being driven at the material time.
There was a citation in that case of a passage from Butterworths Road Traffic
Service, at page 138D, which is perhaps worth reciting. It reads:
"Passengers are frequently seen being conveyed in trailers attached to farm tractors at the time of potato harvesting. In such circumstances, it will be the manner of their conveyance which must be considered. Adults on such a trailer may be safe if towed at low speeds whilst children, because of their weight and propensity to 'play', may not. If such a trailer is towed by a motorcar or dual purpose vehicle at higher speeds, the element of danger is increased and it would be increased further if the surface of the road is uneven."
14. Of
course that is directed at trailers, but it clearly is relevant to
circumstances such as these.
15.
Much may depend on the circumstances in which the vehicle in question was
being driven. Here it was, as described, in Central London in what might be
described as a normal way of London driving. Different considerations would
clearly apply if the only evidence was that the vehicle was being driven, and
was only going to be driven, at a very slow speed on a straight road. As I
say, the circumstances will dictate in any given case whether the offence under
section 40A is made out. But what is decided by that case, and this was the
approach adopted by the Crown Court, was that the section was directed at the
danger of injuries which might occur as a result of the ordinary problems of
driving such as sudden braking, or having to swerve, pull out, turn or stop in
the course of a vehicle's normal every day usage upon a road.
16.
There was called before the Crown Court expert evidence on both sides.
That on behalf of the prosecution was of a Police Constable Tulip, an
Authorised Vehicle Examiner, and that on behalf of the Appellant was of a Mr
Sharkey who was an ex-police officer, known to the Police Constable Tulip who
had, whilst in the police force, been doing the same sort of job as Police
Constable Tulip had been doing, and no doubt giving the same sort of evidence.
17.
Mr Sharkey's evidence was directed to consideration of the forces which
would be created by various manouevres and reference to public transport and
passengers in public transport vehicles. His conclusion, which is at paragraph
4.8 of his report, reads as follows:
"Consequently whilst a passenger remains seated and holding on to one of the roll bars I see little to no prospect of them being ejected from this vehicle, or receiving injury as a consequence of a normal driving environment, including evasive manouevres."
18. That
may very well be so but that, of course, ignores the circumstances of this
case, namely a small boy in the back of a vehicle observed by police officers
not to be sitting at all times holding on to the bar. There was the further
point which was made by Police Constable Tulip that this was a bar of three
inch diameter and that the child's grip was such that it would be impossible
for him to reach his hand fully around the bar. As one knows from one's own
experience, the rails provided, for example, in buses are very much narrower
than that so that even a child can reach his hand around them.
19.
The way the Crown Court dealt with this aspect (that is to say the expert
evidence) was as follows, and I read now from paragraph 2 of the case:
"In these circumstances we considered that we are not assisted by expert evidence as to the likelihood of injury during the course of an accident nor by the evidence of Mr Sharkey the Defence expert as to the amount of force needed to throw Rhys around in the back. We rejected this evidence and preferred and accepted the evidence of PC Tulip, the Prosecution Expert, who told us that if a vehicle stopped or swerved suddenly and unexpectedly a passenger's hand can be wrenched from its grip depending on how hard the passenger was holding on. This accorded with common sense."
"In these circumstances, having regard to the facts which we found as to what Police Officers observed and which we set out above, and to the fact that a child's span of attention may be limited and to the fact that Rhys appeared free to stand up and move about as he wished, his size, his age and the diameter of his grip we concluded that the Appellant had committed an offence under section 40A(c)... in that the manner in which Rhys was carried was such that the use of the vehicle involved a danger of injury to him."
21.
It correctly, in my judgment, there concentrate on the individual
circumstances which existed in this case and the facts as found from the police
officers' observations of what Rhys was doing and the manner in which he was
being carried. That finding of the Crown Court can only be overturned before
us if it is established that it was a finding which was irrational, that is to
say a finding which could not reasonably have been made upon the material
before the Crown Court.
22.
In my judgment it is quite impossible to contend that the conclusions
reached, on the basis of the material before the Crown Court, were conclusions
which no reasonable Court could have reached. The Court was entitled to apply
common sense and indeed it is, in my judgment, not at all surprising that it
took the view that it was not assisted by the expert evidence that was before
it given by Mr Sharkey. The theoretical position is all very well, it is the
actual position which the Court has to consider in such a case.
23.
I am bound to say that for my part not only do I think that the Court was
entitled to reach the conclusion that it did, but I myself, having seen the
evidence, the facts found and, in particular, having seen the photographs of
the vehicle in question, would, without any question, have reached the same
conclusion. In those circumstances I would dismiss this appeal.
24. LORD
JUSTICE BUXTON: I agree with my Lord that it is impossible in this case to say
that the Crown Court was in error for the reasons that he has indicated. I
also, for my own part, had I been deciding the case myself, which I am not,
would, like my Lord, unhesitatingly have decided it in the same way as the
Crown Court did. This appeal is therefore dismissed.
25. MR
WYATT: In those circumstances I am instructed to make application with regard
to costs. I understand from my friend that there is no opposition to that
application.
27. MR
WYATT: Just before the next case is drawn on might I mention this: it has been
drawn to my attention, quite properly, by Mr Salter that in the light of the
fact that there is no English authority on this area of law, should this case
be reported it might be worth inserting into the judgment that Police Constable
Tulip was what was described as an Authorised Motor Vehicle Examiner pursuant
to section 67 and 69 of the Road Traffic Act. That is his status.
28. LORD
JUSTICE BUXTON: I am sure that if whether it would be thought appropriate for
the circumstances of this case, despite my Lord's judgment, to add to the
footnotes in Butterworth is another question, but I am sure my Lord will have
that well in mind when he receives the judgment back.
29. MR
JUSTICE COLLINS: I will put the correct description in when I correct the
transcript. Thank you.