England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		11 February 2016

1. MR JUSTICE HOLROYDE: This is an appeal by way of case stated against the decision of the Crown Court at Stoke on Trent on 13 March 2015 dismissing Mr Croitoru's appeal against conviction of an offence of driving with excess alcohol. There were initially a number of defects in the drafting of the case and the preparation of the appeal. These have, however, been resolved by compliance with directions helpfully given by Ouseley J. The facts were not in dispute and can be very briefly summarised. On the night of 7 August 2014, Mr Croitoru drove a vehicle described as a Motability scooter on a dual carriageway section of the A34 trunk road. He was seen to be weaving from side to side. A concerned bystander called the police. The officer who attended found that Mr Croitoru showed all the signs of intoxication. A subsequent breath test showed that the level of alcohol in his system was nearly three times the permitted limit. Mr Croitoru told the police that he had bought the scooter for his elderly father. He said: "It came without a battery. I fitted one and took it for a test drive to see how far it would go."
2. Mr Croitoru was charged with an offence contrary to section 5 of the Road Traffic Act 1988 ("the 1988 Act") which provides:

(1) If a person—

(a) drives or attempts to drive a motor vehicle on a road or other public place, or

(b) is in charge of a motor vehicle on a road or other public place,

(c) after consuming so much alcohol that the

(d) proportion of it in his breath, blood or urine

(e) exceeds the prescribed limit he is guilty of an

(f) offence."

3. Section of 185 of the Road Traffic Act 1988 includes the following definition:

(a) "(1) In this Act-

(b) ... 'motor vehicle' means, subject to section 20 of the Chronically Sick and Disabled Persons Act 1970 (which makes special provision about invalid carriages, within the meaning of that Act), a mechanically propelled vehicle intended or adapted for use on roads..."

4. Section 185 also gives a definition of the phrase "invalid carriage" for the purposes of the 1988 Act, but that definition is not relevant to this appeal and I need not recite it.
5. The Magistrates' Court convicted Mr Croitoru. He appealed to the Crown Court. At the hearing of the appeal in the Crown Court, the respondent adduced evidence to the effect which I have summarised. It appears that the advocate then representing Mr Croitoru made a submission of no case to answer, apparently on the basis that there was no or no sufficient evidence that the Motability scooter was intended for use on a road. That submission was rightly rejected.
6. Mr Croitoru neither gave nor called evidence. It was submitted on his behalf that he could not be convicted as he was taking the scooter from or to a place of maintenance and was therefore excluded from the ambit of the section 5 offence by section 20 of the Chronically Sick and Disabled Persons Act 1970 ("the 1970 Act"). That section, which is headed "Use of Invalid Carriages on highways" provides as follows:

(a) "(1) In the case of a vehicle which is an invalid carriage complying with the prescribed requirements and which is being used in accordance with the prescribed conditions—

(a) no statutory provision prohibiting or restricting the use of footways shall prohibit or restrict the use of that vehicle on a footway;

(b) if the vehicle is mechanically propelled, it shall be treated for the purposes of the Road Traffic Regulation Act and the Road Traffic Act 1988, except section 22A of that Act (causing danger to road users by interfering with motor vehicles etc),and the Road Traffic Offenders Act 1988 as not being a motor vehicle; and sections 1 to 4, 21, 34, 163, 170 and 181 of the Road Traffic Act 1988 shall not apply to it; and

(c) whether or not the vehicle is mechanically propelled, it shall be exempted from the requirements of section 83 of the said Act of 1988.

(2) In this section-

1. ... 'Invalid carriage' means a vehicle, whether mechanically propelled or not, constructed or adapted for use for the carriage of one person, being a person suffering from some physical defect or disability;

2. 'prescribed' means prescribed by regulations made by the Secretary of State for Transport..."

7. It was accepted by the Crown Court that the Motability scooter ridden by Mr Croitoru was an invalid carriage which complied with the prescribed requirements. No issue arises in that regard. As to whether the scooter was at the material time being used in accordance with the prescribed conditions, it is necessary to have regard to regulation 4 of The Use of Invalid Carriages Regulations 1988 which is in these terms:

(a) "The conditions in accordance with which an invalid carriage must be used, in order that the modifications of the statutory provisions mentioned in subsection (1) of section 20 of the 1970 Act shall have effect in the case of the invalid carriage (being modifications of certain statutory provisions which relate to the use of vehicles on footways and roads) shall be—

(a) in the case of Class 1, Class 2 and Class 3 invalid carriages that the invalid carriage must be used—

(i) by a person falling within a class of persons for whose use it was constructed or adapted, being a person suffering from some physical defect or physical disability;

(b) (ii)by some other person for the purposes only of taking the invalid carriage to or bringing it away from any place where work of maintenance or repair is to be or has been carried out to the invalid carriage;

(c) (iii)by a manufacturer for the purposes only of testing or demonstrating the invalid carriage;

(d) (iv)by a person offering to sell the invalid carriage for the purpose only of demonstrating it; or

(e) (v) by a person giving practical training in the use of the invalid carriage for that purpose only."

8. It is common ground that the first, third, fourth and fifth of those conditions could not apply to Mr Croitoru. It was however argued on his behalf before the Crown Court that he came within the second condition. The findings and conclusions of the Crown Court are set out in the case stated, the material part of which reads as follows:

(a) "10... We decided that even if the vehicle which he was travelling in complied with the prescribed requirements and was being used in accordance with the prescribed conditions, section 5 of the Road Traffic Act 1988 would still apply to it.

(b) 11. On that analysis of the law, we were satisfied so we were sure that the appellant was guilty of the offence, contrary to Section 5.

(c) 12. We did not decide whether in fact the invalid carriage was being used in accordance with Regulation 4(a)(ii) of the Use of Invalid Carriages on the Highways Regulations 1988.

(d) 13. We decided that the specific omission of section 5 of the Road traffic Act 1988 from section 20(1)(b) of the Chronically Sick and Disabled Persons Act 1970, meant that section 5 did apply to this invalid carriage notwithstanding the more general wording in section 20(1)(b) that such a vehicle used in accordance with the Regulations was not a motor vehicle."

9. The case stated as amended pursuant to Ouseley J's directions identifies the question for this court as follows:

(a) "Whether, if a person is driving on a road an invalid carriage, which is also a mechanically propelled vehicle intended or adapted for use on a road, and has alcohol in his breath, blood or urine which exceeds the prescribed limit, he is guilty of an offence under section 5 of the Road Traffic Act 1998, if he is using it in accordance with section 20 of the Chronically Sick and Disabled Persons Act 1970 and regulation 4(a)(ii) of the Use of Invalid carriages on Highway Regulations 1988."

10. We have been assisted by written and oral submissions from Miss Greenhalgh on behalf of Mr Croitoru and Mr Bisgrove on behalf of the respondent Crown Prosecution Service. In the written submissions, it was submitted on behalf of Mr Croitoru that the decision of the Crown Court that section 20 of the 1970 Act did not operate to exclude section 5 of the 1988 Act was wrong in law. The effect of that error, it was said, was to deprive Mr Croitoru of a possible defence to the charge.
11. The written submission on behalf the respondent was that the Crown Court erred in law in its decision as to the ambit of section 20 of the 1970 Act but that Mr Croitoru was rightly convicted because there was no basis on which he could bring himself within the provisions of section 20.
12. As has been confirmed in the oral submissions before us this afternoon, both parties accordingly submit that the Crown Court was wrong to decide that the section 5 offence of driving with excess alcohol is committed by someone who drives an invalid carriage when he has more than the permitted level of alcohol in his system. Both parties submit that the wording of section 20 is clear, and that its effect is that an invalid carriage, when used in compliance with the regulations, is not a "motor vehicle" within the meaning of section 5 of the 1988 Act. They submit accordingly that a person who uses such an invalid carriage when he has more than the permitted level of alcohol in his system, does not commit an offence under section 5 of the 1988 Act.
13. It might be thought that such a construction of the statutory provisions produces a somewhat surprising result. A mechanically propelled invalid carriage with an intoxicated driver is a danger to other road users. That is, no doubt, why the bystander called the police when he saw Mr Croitoru on the Motability scooter weaving erratically along the A34 during the hours of darkness. The arguments in favour of such a construction are, however, compelling.
14. First, the definition of "motor vehicle" in section 185 of the 1988 Act is expressly made subject to the provisions of section 20 of the 1970 Act.
15. Secondly, section 20(1)(b) begins by stating in very clear terms that a mechanically propelled invalid carriage, if it complies with the prescribed requirements and is used in accordance with the prescribed conditions, is to be treated for the purposes of the Road Traffic Act 1988 as not being a motor vehicle. Those clear words are of general application to the whole of the 1988 Act and the other Acts mentioned. The sole exception to the generality of this provision is that such an invalid carriage is to be treated as a motor vehicle for the purposes of the section 22A offence, which involves the creation of danger to other road users by causing damage to a motor vehicle. The interpretation of the section which the Crown Court adopted would have the result that, despite those clear and general words, an invalid carriage is to be treated as a motor vehicle for the purposes of all the provisions of all of the three Acts referred to, except sections 1 to 4, 21, 22A, 34, 163, 170 and 181 of the Road Traffic Act 1988.
16. Thirdly, section 20(1)(b) goes on to provide that certain specified provisions of the 1988 Act shall not apply to such an invalid carriage. Those are provisions which refer to "mechanically propelled vehicles" rather than to "motor vehicles". It is therefore readily understandable why they are given separate mention. Counsel rightly point out that the use of the phrase "if the vehicle is mechanically propelled" in section 20 of the 1970 Act would make no sense if it was intended, as the Crown Court thought, only to exclude the application of the specified sections of the 1988 Act.
17. Fourthly, the offence in section 4 of the 1988 Act involves driving or being in charge of a mechanically propelled vehicle when unfit through drink or drugs. Counsel point out that as construed by the Crown Court, section 20 of the 1970 Act has the curious result that the drunken driver of an invalid carriage cannot commit that offence but can commit the similar offence under section 5 of the 1988 Act of driving with excess alcohol.
18. Those considerations drive me to the conclusion that section 20(1)(b) should be interpreted as meaning that a mechanically propelled invalid carriage - provided, of course, that it complies with the prescribed requirements and is being used in accordance with the prescribed conditions - is excluded from the definition of "motor vehicle" for all the purposes of the Road Traffic Act 1988 save for the sole and specific exception of section 22A, and is also excluded from the ambit of the nine specified sections of the 1988 Act which apply to mechanically propelled vehicles.
19. It follows that, in my judgment, the Crown Court was wrong to interpret section 20 of the 1970 Act as it did, and that the answer to the certified question is No.
20. That, however, does not conclude the outcome of this case. We have heard helpful focused submissions from counsel as to the consequences of answering the certified question in the negative and as to how matters should proceed from here. The answer to the certified question is only in the negative if the invalid carriage is being used in accordance with the conditions specified in regulation 4 of the 1998 Regulations. In Mr Croitoru's case, the evidence on that issue was all one way. He did not himself give and did not call any evidence at the hearing of the appeal. There was no evidence to contradict his assertion to the police that he had fitted a new battery and taken the scooter out to see how far it would go. But the use of the scooter in such circumstances, in my view, cannot possibly be regarded as taking it to or bringing it away from a place where maintenance or repair had been or was to be carried out. Thus, far from raising any issue of using the scooter in accordance with the regulations, Mr Croitoru expressly excluded himself from such use.
21. In those circumstances there was no burden on the prosecution to prove that the 1970 Act did not apply to Mr Croitoru's use of the scooter. The effect of section 20 of the 1970 Act, as it seems to me, is to create an exception in favour of the person accused of driving with excess alcohol, and there was therefore, at the very least, an evidential burden on Mr Croitoru to show that he was capable of coming within that exception. In my view, he did not begin to do so.
22. Although, as I have indicated, the Crown Court did not make any finding in this regard, there was, in my judgment, only one finding which it could properly have made. Thus the Crown Court's mistaken interpretation of the 1970 Act did not in fact cause any prejudice to Mr Croitoru because he was, in any event, unable to gain any assistance from the correct interpretation of the 1970 Act. Even if correctly interpreted, section 20 of the 1970 Act did not apply to the facts of this case because, on his own account, Mr Croitoru was not using the scooter in accordance with the regulations made pursuant to that Act.
23. In summary, the Crown Court did, in my judgment, err in its interpretation of section 20 of the 1970 Act and, for that reason, the certified question must, as I have said, be answered in the negative. However, no purpose would be served by quashing the conviction on that ground because such an order would inevitably be followed by this court remitting the case to the Crown Court with a direction to convict.
24. Accordingly, having identified the error of law but concluded that Mr Croitoru was nonetheless rightly convicted, I would dismiss this appeal.
25. LORD JUSTICE LLOYD JONES: I agree.