England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday 26 October 2000

PILL LJ:

1. This is a prosecutor's appeal by way of case stated against decisions of the Justices for the County of North Yorkshire sitting at Harrogate on 21 February 2000 whereby they dismissed informations against Michael Saddington ("the respondent") with respect to conduct at Harrogate on 23 March 1999.
2. The two informations the subject of this appeal allege that the respondent:

"i) Did drive a motor vehicle namely an unregistered motorised scooter on Crescent Road whilst disqualified for holding or obtaining a driving licence.

Contrary to section 103(1)(b) Road Traffic Act 1988 and schedule 2 to the Road Traffic Offenders Act 1988.

ii) Did use a motor vehicle namely an unregistered motorised scooter on a road namely Crescent Road, when there was not in force in relation to that use such a policy of insurance or such a security in respect of third party risks as complied with the requirements of Part VI of the Road Traffic Act 1988.

Contrary to section 143(2) Road Traffic Act 1988 and schedule 2 to the Road Traffic Offenders Act 1988."

3. For completeness I set out the other three informations with which the respondent had been charged:

"iii) Being a person driving a vehicle namely an unregistered motorised scooter, failed to comply with the indication given by a red light signal displayed by a light signal prescribed by regulation 30 or 32 of the Traffic Signs Regulations 1944 lawfully placed on or near a road namely Parliament Street.

Contrary to section 36(1) Road Traffic Act 1988, regulation 10 Traffic Signs Regulations 1994 and schedule 2 to the Road Traffic Offenders Act 1988.

iv) Did ride a motor cycle namely an unregistered motorised scooter on a road namely Crescent Road without wearing protective headgear.

Contrary to regulation 4 of the Motor Cycle (Protective Helmets) Regulations 1998, section 16(4) Road Traffic Act 1988 and schedule 2 to the Road Traffic Offenders Act 1988.

v) Being the driver of a mechanically propelled vehicle namely an unregistered motor scooter on a road namely Crescent Road, failed to stop the vehicle on being required to do so by a constable in uniform.

Contrary to section 163(3) Road Traffic Act 1988 and schedule 2 to the Road Traffic Offenders Act 1988."

In the course of the hearing, the respondent changed his plea to guilty to informations iii) and v). He was found guilty on information iv).

4. The issue in the appeal is whether what is described in the informations as an unregistered motor scooter is a motor vehicle within the meaning of that term in section 185(1) of the Road Traffic Act 1988 ("the 1988 Act"). Motor vehicle is defined in section 185 of the 1988 Act as "a mechanically propelled vehicle intended or adapted for use on roads". Under section 189, certain vehicles are not to be treated as motor vehicles but it is not suggested that the Go-ped comes within that section. Under section 87(1) of the Act, it is an offence for a person to drive on a road a motor vehicle of any class otherwise than in accordance with a licence authorising him to drive a motor vehicle of that class and under section 103(1)(b) a person is guilty of an offence if, whilst disqualified for holding or obtaining a licence, he drives a motor vehicle on a road. Under section 143(1), a person must not use a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person a policy of insurance in respect of third party risks and a person who acts in contravention of sub-section (1) is, by virtue of sub-section (2) and subject to sub-section (3), guilty of an offence.
5. It is accepted on behalf of the respondent and asserted by the prosecutor that the scooter is a "vehicle", a "motor cycle" and a "mechanically propelled vehicle" as those expressions are used in informations iii), iv) and v). A bicycle has been held to be a vehicle (Ellis v Notte-Bower (1896) 60 JP 760). Despite initial misgivings, I accept that concession for present purposes. The present issue is whether the Go-ped is intended for use on roads. The question of adaptation does not arise in this case.
6. In the afternoon of 23 March 1999 a police officer was on mobile patrol duty in Harrogate Town Centre. He observed the respondent ride past him in the left hand inside lane on a motorised scooter, pass through traffic lights which were showing red and turn left. The police officer followed him activating his vehicles blue flashing lights and two-tone horn. The respondent failed to stop and, so the Justices found, attempted to avoid apprehension by riding through a narrow gap between parked cars before picking up his machine and running with it into a nearby public house. He was found to be disqualified from holding or obtaining a driving license and was arrested. The respondent was not the owner of the scooter, known as a Go-ped, which had not been altered in any way from its original manufactured state. The Go-ped had been propelled under its own engine power and was equipped with an independent braking system.
7. The Justices have set out a detailed description of the Go-ped:

"The Go-ped subject of the offences is fitted with a small foot platform attached to a two barred sub-frame upon which the passenger stands whilst the vehicle is in motion. It is fitted with solid rubber resilient tyres and is powered by a single speed direct drive 22.5 cc air cooled two stroke engine attached to the rear of the vehicle. There is no clutch and the drive cannot be disengaged. It has a vertical steering column and handlebars on which are attached a hand operated throttle lever and a brake grip. The Go-ped has one brake which is connected to the front wheel by means of a plastic encased metal cable and is operated by a standard pedal cycle hand grip which, when engaged, controls a metal side pull calliper that grips directly onto the front tyre. No brake blocks are fitted and there is no braking system fitted to the rear wheel. The maximum engine powered speed is between ten and twenty miles per hour on a flat surface but we found that the maximum speed of the Go-ped will be significantly affected by and ultimately be dependent upon the gradient of the surface upon which it is ridden. The braking system fitted to the Go-ped is not adequate to stop the vehicle safely from any great speed or when applied in an emergency situation because severe braking will cause the back wheel to lift making the vehicle unstable and unsafe. The Go-ped has no form of lighting fitted and neither does it have a seat, a mirror, a horn nor a speedometer."

8. The Justices went on to find:

"We found that considerable work would be required to bring this Go-ped up to Construction and Use Regulation and UK vehicle safety standards so as to satisfy road traffic legislation relating to motor vehicles. A Go-ped is not a vehicle capable of registration by the Department of Transport."

"We noted that both the manufacturer and distributor of the Go-ped supplied literature stating that it was not intended for road use. In addition a safety warning notice to the same effect is fixed to the handlebars of the Go-ped itself at manufacture. There is however no dispute that on the 23rd March 1999 the Go-ped was being used on a public road by the respondent."

The Justices, and the members of this Court, have viewed a video prepared by a consulting engineer on behalf of the respondent which shows the Go-ped being operated under controlled conditions. The engineer describes the Go-ped as a "motorised kiddies' scooter" and as "an executive toy". He states that "This type of machine does not have any basic services normally associated to a motor vehicle. For instance, lights, suspension, clutch or controls to enable a rider to control the machine properly".

9. The distributors' literature mentioned in the stated case includes the following information:

"This vehicle does not confirm to UK vehicle safety standards and in not intended for operation on public streets, roads or pathways,

Serious injuries can result from unsafe operation of this vehicle.

The operator can minimise these assured risks by wearing safety equipment.

Safety helmet, goggles, gloves, elbow and knee pads and appropriate shoes must be worn.

Do not operate this vehicle in traffic or on wet, frozen, oily or loose surfaces.

Avoid uneven surfaces, cracks and obstacles."

10. The opinion of the Justices was:

i) In determining whether a vehicle is intended for use on a road the judgment of the Divisional Court in Burns v Currell (1963) 2 All ER 297 is to be applied. This judgment states that the test is whether a reasonable person looking at the vehicle would say that one of its users is a road user. The question is not whether there was an isolated user or a user in an emergency but whether some general use on the road is contemplated.

ii) The test we applied is the view of the reasonable person, not what was the particular use to which the respondent put it.

iii) We are of the opinion that a reasonable person looking at the vehicle would not say that one of the users of a Go-ped would be a road user. A reasonable person would not take the view that it is a machine which provides a roadworthy means of transport or conveyance.

iv) The appellant did not discharge the burden of proof that the respondent's Go-ped fell within the definition of a motor vehicle as provided by section 185 of the Road Traffic Act 1988, namely a mechanically propelled vehicle intended or adapted for use on a road."

The Justices go on to conclude that the Go-ped possesses all essential characteristics required for it to fall within the definition of a motor cycle within the meaning of section 185 of the 1988 Act. That required the rider to wear protective headgear pursuant to regulation 4 of the Motor Cycles (Protective Helmets) Regulations 1998.

11. The questions for the opinion of the High Court are:

1. Is a Go-ped a motor vehicle as defined by section 185 of the Road Traffic Act 1988?

2. Does a rider of a Go-ped require a driving licence and insurance to drive it and if so, which category of vehicle does it fall within?

12. In Burns v Currell [1963] 2 All ER 297 the Divisional Court had to consider whether a mechanically propelled vehicle known as a Go-Kart was a motor vehicle within the meaning of provisions of earlier legislation with the same effect as the relevant words in section 185 of the 1988 Act. Lord Parker CJ, with whom Ashworth J and Winn J agreed, stated, at p 300C:

"Thus, in the ordinary case, it seems to me that there will be little difficulty in saying whether a particular vehicle is a motor vehicle or not. But to define exactly the meaning of the words 'intended or adapted' is by no means easy. For my part, I think that the expression 'intended', to take that word first, does not mean 'intended by the user of the vehicle either at the moment of the alleged offence or for the future'. I do not think that it means the intention of the manufacturer or the wholesaler or the retailer; and it may be, as Salmon J said in Daley's case [1961] 1 WLR 487, that it is not referring to the intention as such of any particular purpose. Salmon J suggested that the word 'intended' might be paraphrased as 'suitable or apt'. It may be merely a difference of wording, but I prefer to make the test whether a reasonable person looking at the vehicle would say that one of its users would be a road user. In deciding that question, the reasonable man would not, as I conceive, have to envisage what some man losing his senses would do with a vehicle; nor an isolated user or a user in an emergency. The real question is: is some general use on the roads contemplated as one of the users? Approaching the matter in that way at the end of the case, the justices would have to ask themselves: has it been proved beyond a reasonable doubt that any reasonable person looking at the Go-Kart would say that one of its uses would be use on the road? For my part, I have come to the conclusion that there really was no such evidence before them as to satisfy them on that point according to the ordinary standard of proof. The evidence was that the appellant had used this vehicle on this day alone and that he had never used it before. There was no evidence that other people used these vehicles on the road, nor is it suggested by the justices that they came to their conclusion, as they would be entitled to up to a point, on their own experience and knowledge. As I have said, all that they had before them was that a Go-Kart had been used on a road to which the public had access on this one occasion. Looked at in that way, so far as this matter of 'intended' is concerned, I do not think that the justices had any material on which they could feel sure so as to be able to convict."

13. That test has been applied in subsequent cases. In Chief Constable of Avon and Somerset Constabulary v F [1987] RTR 378 Glidewell LJ set out Lord Parker CJ's test and added, at page 382:

"I emphasise that that test is what would be the view of the reasonable man as to the general user of this particular vehicle; not what was the particular user to which this particular defendant put it, either at the time in question, or indeed, generally. In other words, if a reasonable man were to say: 'Yes, this vehicle might well be used on the road', then, applying the test, the vehicles is intended or adapted for such use. If that be the case, it is nothing to the point if the individual defendant says: 'I normally use it for scrambling and I am only pushing it along the road on this occasion because I have no other means of getting it home', or something of that sort."

It was held in that case that the Justices were entitled to hold that, the onus of proof being on the prosecution to prove that the vehicle was a motor vehicle, they could not be satisfied that it was within the definition of a motor vehicle. The comparison of the facts in F with those in the present case would not be helpful. The Burns test, which has been applied for approaching forty years, should not readily be departed from.

14. For the respondent, Mr Reed stresses the limitations of the Go-ped. It has no efficient braking system, no pneumatic tyres, no clutch, lights or mirrors and has inadequate steering. It needs to be push started. It would not be accepted by the Department of Transport for registration, he submits, or for use on the roads under the Construction and Use Regulations. Mr Reed accepts that the intention of the manufacturer or seller is not conclusive but submits that general use on the roads cannot be contemplated as one of the uses of the Go-ped.
15. Miss Kelly, whilst also submitting that the Go-ped does not comply with the Construction and Use Regulations, was less inclined to belittle the attributes of the Go-ped. It is ironic that it is the defendant who is seeking to show how unsuitable, and indeed dangerous, the Go-ped is for use on the road in order to contest the charge that riding it on the road was unlawful. Miss Kelly submits that the scooter should be brought within the definition of motor vehicle so that its use can be regulated but has to accept that Lord Parker's test does not directly depend on the degree of danger presented by the vehicle. I do not accept the Justices' apparent view that the roadworthiness of a conveyance, which I understand to means its capability to be used safely on roads, is decisive on the question whether its use on the road must be contemplated.
16. Both parties have underlined the importance of the point at issue because of the large number of scooters of this kind in circulation. Many of them, we were told, are more sophisticated than this Go-ped in terms of the control systems provided.
17. This is not a case where some place other than a road is the obvious place of use. The Go-ped could not negotiate rough ground or soft or uneven surfaces. It is not a case where the vehicle is designed for use in a place other than a road, such as a dumper truck used for road construction work (MacDonald v Carmichael [1941] JC 27). Another example would be a motor cycle designed for use on a speedway track. Lord Parker's test cannot, however, in my view be applied merely by a process of elimination; it cannot be said that because there is no place other than a hard, flat surface on which a Go-ped can be used, it must be intended for use on a road. It is in any event contended that the Go-ped can be used as a toy on hard surfaces on private land and for Go-ped competitions on such land.
18. We are told by Mr Reed and Miss Kelly that considerable numbers of scooters of this and similar design are in circulation. I would take judicial notice of that and would expect justices to do the same. The temptation to use Go-peds on the roads is considerable, notwithstanding their limitations. They provide a ready means of getting through traffic on short journeys on busy urban roads and, for that matter, on less busy suburban roads.
19. The test is not whether a reasonable person would use a Go-ped on a road, which in ordinary circumstances he probably would not because of the dangers involved. The test is whether a reasonable person would say that one of its uses would be use on the roads. That person must consider whether some general use on the roads must be contemplated and not merely isolated use or use by a man losing his senses. The design and capabilities of the Go-ped and the possibilities it offers will be considered and considered in the context of an assessment of peoples' wish to get quickly through traffic and the pressure of time upon many people.
20. In my judgment the conclusion must be that general use on the roads is to be contemplated. The distributors' advice not to use the Go-ped on the roads will in practice be ignored to a considerable extent. Surrender to the temptation to use it on the roads will not be an isolated occurrence even though the vehicle may not be roadworthy in the sense used by the Justices.
21. In my judgment, the first question posed by the justices should be answered "Yes". A Go-ped, which is considered to be a mechanically propelled vehicle, is one intended for use on the roads within the meaning of the Statute. A driving licence and third party insurance are required. Those were the questions to which submissions were primarily directed and answers required. I invite any further submissions which the parties may wish to make upon the effect of the Court's finding on the second part of the second question, namely which category of vehicle the Go-ped is, and any other necessary consequential matters.

BELL J:

22. I agree.

LORD JUSTICE PILL: For the reasons given in the draft judgment handed down, this appeal is allowed. Mr Reed, Miss Kelly, we did indicate in the last paragraph that we were inviting further submissions on the second part of the second question and any consequential matters.

We are grateful to you for the skeleton arguments - the judgment can be distributed - you have submitted. We have discussed this and our tentative view is that we ought not to embark upon further consideration of definitions, but we will hear either of you if you wish to persuade us otherwise.

MR JUSTICE POTTS: Once it is decided that it is a motor vehicle it is not difficult for the Department for Transport, or any other authority, to look at the various definitions in different Acts and different Regulations and then see whether it is a motor cycle or moped and so on. The definition of moped in the Road Traffic Act 1988 is different to the definition in one set of Regulations.

MR REED: I think, my Lord, the situation is that, as you are aware, there are a number of vehicles of this type but with different attributes and they will have to be considered individually.

LORD JUSTICE PILL: Well, how are they considered? It is not necessarily as a vehicle. So one point I will ask you is whether there is any practical importance in this case, supposing someone with a goped wants it registered what is going to happen in practice?

MR REED: In practice it will have to attain type of approval first.

MR JUSTICE PILL: Yes. So your second skeleton appears to highlight the point which we had already thought was a reason for not embarking ourselves, even with your help, on this other area. Mr Saddington, or someone, goes along to the office and says, 'Well, I want to register', they are not going to say, 'Here you are, you are registered', are they? What will they do?

MR REED: First of all, type of approval will have to obtained for that particular vehicle, then an application made to the Secretary of State for classification and, thereafter, registration.

LORD JUSTICE PILL: Yes. I think someone wants to give you instructions, Mr Reed, I do not know who the gentleman is.

MR REED: I think the point is some mopeds are actually exempt and classified as bicycles in any event. I can see your Lordship's point that it is not perhaps a useful exercise to try to decide this particular matter at this stage.

LORD JUSTICE PILL: As my Lord has pointed out the definitions are not easy and the Department of Transport will plainly have an interest in this. But is Mr Saddington at all prejudiced if we do not answer the second part of the second question, which is whether this vehicle is a motor cycle?

MR REED: From his point of view it is not going to make a difference in disposal.

LORD JUSTICE PILL: Yes. We were only asked to consider the first two convictions, so strictly it does not arise. It only arises if we were persuaded that in some way Mr Saddington was prejudiced, or as a matter of public interest at this stage that we ought to embark on further consideration.

MR REED: I suppose the public interest point is the principal point.

MR JUSTICE POTTS: The one which is decided in the judgment.

LORD JUSTICE PILL: Certainly, yes, you were both concerned to have a ruling on that point and the court has given it. But we will need persuading to embark upon any further study, indeed your helpful skeletons rather have encouraged us in that view. Do you have any further submissions?

MISS KELLY: My Lord, I have no submissions to make.

LORD JUSTICE PILL: Yes. Well then we do not propose to embark on a consideration of the second part of the second question. Are there any other applications?

MISS KELLY: From me, my Lord, no.

MR REED: My Lord, I am in some difficulty this morning because Mr Saddington was expected here but has fallen foul of the train problem that we have at the moment. I do not know whether at this stage, I am not in a position to formally make an application, but whether you would be able to give an indication as to whether you thought this was a point of sufficient importance were he to wish to take it any further? I make it clear I am not making that application today.

LORD JUSTICE PILL: Well that is a matter for you, isn't it? We are not prepared to rule on applications we have not had.

MR REED: I am obliged, my Lord. I am in some difficulty because Mr Saddington is not here today.

LORD JUSTICE PILL: Yes. Well I am very reluctant to leave the matter open but you would have, subject to time limits, the opportunity to make an application in writing and that should be disclosed to those instructing Miss Kelly. Would you be content to have a ruling in writing?

MR REED: Yes.

LORD JUSTICE PILL: It would be first to certify, would it not, a point of general public importance, and then to consider whether we ought to give permission to appeal. That is what you have in mind?

MR REED: Yes.

LORD JUSTICE PILL: Yes, very well. We give no indication. If you want to make an application in writing then you are at liberty to do so. Thank you very much.

(The court rose and resumed upon Miss Kelly's request)

LORD JUSTICE PILL: Miss Kelly, I understand you have an application?

MISS KELLY: My Lord, it was raised by your Lordship's clerk upon the court rising that no order had been made with regard to the case of Mr Saddington in the magistrates' court.

LORD JUSTICE PILL: We were not invited to make one.

MISS KELLY: That is right. I would not in any case invite you to remit it back.

LORD JUSTICE PILL: That is what we had understood.

MISS KELLY: Yes, I thought that ought to be made clear because it was not clear before.

LORD JUSTICE PILL: So it should be part of the order that there is no order for remission. You want that on the record, yes.

MISS KELLY: I am grateful.

LORD JUSTICE PILL: No order as to costs. Mr Reed, do you have anything arising out of that?

MR REED: Perhaps the usual taxation.

LORD JUSTICE PILL: Mr Saddington has legal aid, does he? Yes, that direction is given.