England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		17th October 2013

1. MR JUSTICE HADDON-CAVE: This is an appeal by way of Case Stated from a decision of Blackpool Magistrates' Court. The appellant, Peter Brooks, a taxi-driver, appeals against the decision of the Blackpool Magistrates on 10th July 2013, convicting him of the following offence: "On 19th October 2012, being a driver of a private hire vehicle, the Appellant did cause the vehicle or part thereof to pass ahead of the foremost part of another vehicle proceeding in the same direction, contrary to regulation 24(1)(a) of the Zebra, Pelican and Puffin Pedestrian Crossing Regulations 1997 and section 25(5) of the Road Traffic Regulation Act 1984".
2. The conviction followed a trial before the magistrates on that day. The appellant was fined £210, £300 costs and a £21 victim surcharge. His driving licence was endorsed with three penalty points.
3. Background Facts
4. The background facts can be briefly stated. On 19th October 2012 at approximately 8.34 in the evening the appellant was driving a black Vauxhall Vivaro private hire vehicle on Talbot Road in Blackpool. Fare paying passengers were in the vehicle at the time. The standing traffic was waiting on Talbot Road to proceed west towards the Promenade. There was a pedestrian crossing ahead. A public protection officer of Blackpool Council, Mr Ian Taylor, was standing in close proximity to the pedestrian crossing with a clear view of Talbot Road. The location was surrounded by various licence premises and was busy with traffic and pedestrians. The appellant was in a line of stationary traffic waiting to proceed ahead in the direction of the Promenade.
5. The appellant was observed to pull out of the line of standing traffic from a position about four cars back from a car ahead of him that was most proximate to the pedestrian crossing. Having pulled out he then overtook the three or four stationary cars to his left, passed over the pedestrian crossing and then turned left into Market Street, which was the street just before the Promenade. Mr Taylor immediately approached the appellant and subsequently charges for an infringement of the Regulations were laid. At the trial before the magistrates on 10th October 2013, Mr Taylor was, however, unable to give evidence as to whether there were any pedestrians on the pedestrian crossing at the time, or whether any of the three or four vehicles ahead of the appellant were in fact moving when the appellant overtook them.
6. The appellant's counsel made an application of no case to answer at the conclusion of the prosecution case, on the basis that an essential element of the offence was missing, namely that as the other vehicles in the queue of traffic were stationary at the time that the appellant overtook them, there was no evidence that the appellant's vehicle had passed any other vehicle "proceeding in the same direction" in breach of regulation 24(1)(a) of the Zebra, Pelican and Puffin Pedestrian Crossing Regulations.
7. The magistrates have very helpfully set out in their Case Stated the basic facts and the question posed for the opinion of the High Court. I quote the salient parts of it:

i. "CASE

2. An information was laid against the appellant that on 19th October 2012, being the driver of a private hire vehicle, caused a vehicle or part thereof to pass ahead of the foremost part of another vehicle proceeding in the same direction contrary to regulation 24 of the Zebra, Pelican, Puffin Pedestrian Crossing Regulation 1997 and section 25(5) of the Road Traffic Regulation Act 1984.

3. We heard the trial of this information on the 10th July 2013 and found the following facts: -

(a) The appellant was driving his black Vauxhall Vivaro private hire vehicle on Talbot Road, Blackpool, on 19th October 2012 at approximately 20.34 hours. He had fare paying passengers in the vehicle at the time.

(b) At this time there was standing traffic awaiting to proceed west towards the promenade. At this point there was a pedestrian crossing. The witness for the respondent, Mr Ian Taylor (a public protection officer for Blackpool council,) was standing in close proximity to this crossing that was located at Talbot Square at the junction of the Strand and had a clear view of Talbot Road.

(c) The location was busy with westerly traffic flow at a standstill and easterly traffic moderate. Pedestrian traffic was heavy, there were many licenced premises in the vicinity.

(d) The appellant pulled out of a line of standing traffic and overtook the waiting vehicles passing over the controlled area of the zebra crossing turning left in Market Street. There was no evidence that vehicles being overtaken moved during this overtaking.

(e) Shortly thereafter the appellant was spoken by Mr Taylor and the appellant replied: 'I am sorry for that'.

(f) Mr Taylor was unable to give any evidence that there were pedestrians on the zebra crossing nor that any car was according precedence to the same at the same at that time.

ii. 3(a) It was contended by the appellant (in an unsuccessful submission of 'no case to answer') that an essential element of the offence was missing, namely that there was no evidence the appellant's motor vehicle had passed ahead of any other motor vehicle preceding in the same direction because those other vehicles were stationary and had not therefore "proceeding" (regulation 24(1)(a)) and the respondent could see regulation 24(1)(b) had not been breached on the evidence, but stated the regulation 21(4)(a) had been breached as the vehicle was overtaken work was proceeding."

iii. 3(b) We had submissions from both parties as to the meaning of "proceeding" within regulation 24(1)(a). It is contended by the appellant that the vehicle overtaken was stationary and not "proceeding". "Proceeding" required the vehicle to be overtaken to actually to be moving at the time they were overtaken. Our attention was drawn to the Highway Code and Wilkinson Road Traffic Law commentary on the regulation that "moving motor vehicle" was used to describe a breach of regulation 24(1)(a). It is contended by the respondents that the vehicles overtaken were "proceeding in the same direction" as they were clearly not parked, were not standing at the time or were on a journey. The vehicles it is contended were waiting to feed into the promenade and could not have moved any other moment.

iv. "4(a) We were advised by the legal adviser the correct legal test applied to 'no case to answer' stage. We rejected the submission made by the appellant, albeit thereafter the appellant gave evidence.

4. At the conclusion of the evidence we heard further submissions of meaning of proceeding within regulation 24(1)(a).

i. 6. We were of the opinion that : -

(a) Regulation 24(1)(b) did not apply, as this related to a situation where stationary vehicles had stopped for the purposes of allowing the pedestrians to cross the zebra crossing. There is no evidence of this.

(b) Regulation 24(1)(a) did apply. We preferred the argument advanced by the respondents that stationary traffic overtaken was still "proceeding", as those vehicles were on a journey. They were heading towards the promenade, they were waiting to proceed in that direction. Presumably the intention of proceeding to a predetermined destination and could have moved towards that destination at any point when the appellant overtook them whilst passing over the pedestrian crossing.

8. Accordingly to convict the appellant...
9. The question to the opinion of the High Court is: were we correct in law to interpret the words 'proceeding in the same direction' as used in regulation 24(1)(a) of the Zebra, Pelican and Puffin Pedestrian Crossing Regulation 1997 to include a vehicle which was stationary whilst waiting in a queue of standing traffic."
10. Submissions
11. In his able, written and oral submissions to me today Mr Barnes, counsel for the appellant, has made one simple and powerful constructional point regarding regulation 24. Regulation 24 provides as follows:

i. "Prohibition against vehicles overtaking at crossings

ii. 24(1) whilst any motor vehicle (in this regulation called 'the approaching vehicle') or any part of it is within the limits of a controlled area and is proceeding towards the crossing, the driver of the vehicle shall not cause it or any part of it -

(a) to pass ahead of foremost part of any other vehicle, motor vehicle proceeding in the same direction; or

(b) to pass ahead of the foremost part of a vehicle which is stationary for the purposes of complying with regulation 23, 25 or 26.

iii. (2) Paragraph 1(a) the reference to motor vehicle in subparagraph (a) is in a case where more than one vehicle is proceeding in the same direction as the approaching vehicle in a controlled area a reference to motor vehicle nearest to the crossing; and

iv. (b) the reference to a stationary vehicle is in a case where more than one vehicle is stationary in a controlled area for the purposes of complying with regulation 23, 25 or 26, a reference to the stationery vehicle nearest the crossing."

12. Mr Barnes submited that the drafters of this legislation clearly intended to draw a distinction between moving and stationary vehicles. In regulation 24(a) the phrase used is "proceeding in the same direction", whereas in subparagraph (b) the word "stationary" is used. Mr Barnes' simple point is that "proceeding" must mean something other than "stationery", because of the clearly contrasting language used in the two limbs of regulation 24.
13. Analysis
14. On close analysis, it is clear that the rational behind, the operation of 24(1)(b) is clear. It is an offence to pass ahead of a vehicle (or vehicles) which is stationary for one of three reasons, either (a) because the vehicle has stopped due to red lights at a Pelican or Puffin crossing (see regulation 23); or (b) because the vehicle has stopped to give precedence to a pedestrian at a zebra crossing (see regulation 25) or (c) because the vehicle has stopped to give precedence to a pedestrian at a Pelican crossing (see regulation 26).
15. Regulation 24(1)(a) is, however, expressed more general terms, namely:

i. "It is an offence to pass ahead of any vehicle. It is an offence when proceeding with the limits of a controlled area towards a crossing for a vehicle to pass ahead of any other vehicle, proceeding in the same direction."

16. The magistrates appear to have taken a somewhat generous meaning of "proceeding" on the basis that it includes stationary vehicles, which are "on a journey" (see paragraph 6(b) of the Case Stated). The etymology to "proceed" is relevant. Proceed has its roots in Latin "pro-cedo", i.e to go ahead. The Oxford Dictionary includes meaning such as "go forward" or "continue". The word has ancient English origins. The shorter Oxford English Dictionary on Historical Principles records in 1526 the following wording: "before we procede on our journey"; and includes a reference in the Book of Common Prayer: "then shall the Bishop procede to the communion".
17. It is therefore, possible, to envisage a meaning to "proceeding" along the lines envisaged by the magistrates, i.e that "stationary" traffic is in fact "proceeding" because it is "on a journey". However, in my judgment in the context of regulation 24, it is quite clear that that an existential meaning to proceeding is not what was envisaged by the drafters of the legislation. Mr Barnes makes a good point on construction that the word "proceeding" in subparagraph (a) must be seen in contra-distinction to the word "stationary" in sub-paragraph (b). If proceeding included stationary vehicles, which were on a journey in the same direction, then subparagraph (a) would be differently worded.
18. In my judgment, vehicles which are waiting, i.e. which are stationary and waiting to proceed, are by definition not proceeding. They are waiting. They are "stationary". Accordingly, the only relevant section of regulation 24, which might have applied to this case is subsection (b). However, the magistrates expressly found the appellant was not in breach of subsection (b) because there was no evidence that the three or four stationary vehicles which had stopped prior to the pedestrian crossing had stopped "for the purposes of complying" with regulation 23, 25 or 26, e.g. to allow pedestrians precedence or to give way at traffic lights.
19. The vehicles in question were stopped and stationary and waiting to proceed on their journey because traffic was backed up from the Promenade. They could not "proceed" any further until the traffic ahead moved. Accordingly, as a matter of language and common sense, they were not proceeding. They were not proceeding because they were stationary.
20. I am fortified in my conclusion by helpful references which Mr Barnes has taken me to in the government's Highway Code. The section on the pedestrian crossing, paragraphs 191 to 199. Paragraph 191 states as follows:

i. "You MUST NOT overtake the moving vehicle nearest the crossing or the vehicle nearest the crossing which has stopped to give way to pedestrians."

21. Paragraph 193 provides:

i. "You should take extra care when the view of either side of the crossing is blocked by queueing traffic or incorrectly parked vehicles."

22. It is quite clear that the Highway Code is making distinction between moving vehicles on the one hand (i.e. vehicles "proceeding" under regulation 24(1) (a)) and vehicles which have "stopped" to give way to pedestrians (i.e. under regulation 24(1)(b)). The traffic in question was queuing traffic. It had stopped.
23. Mr Barnes also took me to Wilkinson's and the chapter on pedestrian crossings, which makes equally instructive reading. Paragraph 6.173 provides as follows:

i. "Overtaking in the zebra controlled area it is an offence when approaching a zebra crossing to overtake a moving motor vehicle (regulation 24(1) (a)) or a stationary vehicle (regulation 24(1)(b)) in the area controlled by the crossing."

24. Paragraph 6.174 provides:

i. "The vehicle being overtaken may be either moving or stationary, but if it is stationary the overtaking is only an offence if the vehicle overtaken is stationary for the purpose of complying with regulation 25" (see reg 24(1) (b))... Further it seems to have been an offence under regulation 24(1)(a) of overtaking a moving vehicle and regulation 24(1)(b) and overtaking a stationary vehicle is an offence only committed in overtaking a moving vehicle if the vehicle which is overtaking is a motor vehicle."

25. Wilkinson draws the same distinction drawn in regulation 24(1)(b) between moving/proceeding vehicles and stationary/stopped vehicles.
26. Appeal allowed
27. Accordingly, for the reasons set out above, this appeal is allowed. The question given for the opinion of the High Court is:

i. "Were we correct in law to interpret the words 'proceeding in the same direction' as used in regulation 24(1) of the Zebra, Pelican and Puffin Pedestrian Crossing Regulation 1997 to include a vehicle which was stationary whilst waiting in a queue of standing traffic?"

28. This question should be answered "no". The magistrates were not correct in law to interpret the words of regulation 24(1)(a) in that manner. A stationary vehicle is not a vehicle "proceeding" in the same direction.
29. In those circumstances the conviction of the appellant on the 10th July 2012 by the Blackpool Magistrates is quashed.
30. MR BARNES: The application follows from that decision is for the defendant's costs and seeking defendant's cost order. The schedule should be before your Lordship.
31. MR JUSTICE HADDON-CAVE: I do not think I do. Do you have a spare copy?
32. MR BARNES: I do not but certainly your Lordship can have mine. It includes not only these proceeding but those of the lower court. The attachments I think are a fee note from my clerk and an earlier bill from a firm of solicitors that the appellant initially instructed in this matter, but felt fit to un-instruct when they neglected to go to the first appearance of the case and the magistrates, as they would have, convicted the defendant in his absence.
33. MR JUSTICE HADDON-CAVE: This other bill of £300.
34. MR BARNES: Yes.
35. MR JUSTICE HADDON-CAVE: That is the one you are talking about?
36. MR BARNES: Yes. In fairness to them I should say they did make an application to the court to have the case re-opened but at that stage I think the appellant moved on.
37. MR JUSTICE HADDON-CAVE: That is not claimed for.
38. MR BARNES: That is included in the schedule, yes, because --
39. MR JUSTICE HADDON-CAVE: I see. "Fee paid to previous solicitor £150 plus VAT". I do not understand. Were they instructed during the Magistrates' proceedings?
40. MR BARNES: Initially yes, but when the first appearance came along they had neither written to the court nor attended the court and so as would be the norm with summons cases the magistrates simply proceeded there and then and convicted the defendant.
41. MR JUSTICE HADDON-CAVE: There were two hearings, were there?
42. MR BARNES: There would have been a number of hearings. That was the first hearing and that led to the defendant's conviction. The case was then reopened on application by that old firm of solicitors. But after that point, the defendant switched his instructions to those currently instructed. I think they attended on two occasions but I will check if I can turn my back please. A total of four hearings. That would be the hearing that they did not attend, the application to re-open, then the next solicitors would have been to a case management hearing which is the norm and then there will have been the trial.
43. MR JUSTICE HADDON-CAVE: I allow the bill of costs save for the sum of £250 for the aborted hearing by Roman Robinsons and Fenton.
44. MR BARNES: Presumably plus the VAT on that as well?
45. MR JUSTICE HADDON-CAVE: Plus the VAT, so it will be £300. Now the sum of £5,130.72 pence.
46. MR BARNES: May I trouble the court staff to provide me with a copy of the schedule that I have provided. I do not know if you will need it but the court will need a copy.
47. MR JUSTICE HADDON-CAVE: What I would like to do Mr Barnes, if you e-mail my clerk whose detail will be given to you, saying: appeal allowed, conviction quashed, answer to the question and summary assessment of the bill. Appellant's cost £5,130. I will sign it formally. All right?
48. Thank you very much for your able assistance. I suggest your client buys you a cup of tea and a piece of cake. Very well done. Thank you very much.