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Cite as: [2005] HCJAC 86, [2005] ScotHC HCJAC_86

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Procurator Fiscal v. McHale [2005] ScotHC HCJAC_86 (29 June 2005)

Lord Nimmo Smith

Lord Bracadale

Lord Cameron of Lochbroom

[2005HCJAC86]

Appeal No: XJ814/05

OPINION OF THE COURT

delivered by

LORD NIMMO SMITH

APPEAL

STATED CASE

in the cause

PROCURATOR FISCAL, Dunfermline

Appellant;

against

KEVIN JAMES ANDREW McHALE

Respondent.

______

Act: Bell, QC, AD; Crown Agent

Alt: Brown; Martin Johnston & Socha

29 June 2005

[1] This is a Crown Appeal by way of stated case. The respondent went to trial on a complaint containing two charges, in these terms:

"(1) on 15 January 2005 on a road, namely Whitelaw Road, Dunfermline, Fife you KEVIN JAMES MICHAEL MCHALE being a person disqualified for holding or obtaining a licence to drive a motor vehicle did drive a motor vehicle, namely motor cycle registered number unregistered while so disqualified; CONTRARY to the Road Traffic Act 1988, Section 103(1)(b)

(2) on 15 January 2005 on a road or other public place, namely Whitelaw Road, Dunfermline, Fife you KEVIN JAMES MICHAEL MCHALE did use a motor vehicle, namely motor cycle registered number unregistered without there being in force in relation to the use of said motor vehicle by you 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 the Road Traffic Act 1988, Section 143(1) and (2) as amended."

At the conclusion of the Crown case the sheriff upheld a submission that the respondent had no case to answer on the ground that the evidence led by the Crown was insufficient to enable him to find in fact that what the respondent was driving was a motor vehicle in the meaning of the Road Traffic Act 1988.

[2] By section 185(1) of the 1988 Act the term "motor vehicle" is defined as "a mechanically propelled vehicle intended or adapted for use on roads". By section 192(1), as amended by the Road Traffic Act 1991, section 48 and Schedule 4, paragraph 78, the expression "road" is defined as meaning inter alia:

"(b), in relation to Scotland, ... any road within the meaning of the Roads (Scotland) Act 1984 and any other way to which the public has access, and includes bridges over which a road passes".

By section 151(3) of the Roads (Scotland) Act 1984 the expression "road" is defined as meaning inter alia:

"any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not) and includes the road's verge, and any bridge (whether permanent of temporary) over which, or tunnel through which, the road passes".

[3] As narrated by the sheriff in the stated case, at the outset of the trial a joint minute was lodged, agreeing the following facts:

"1 At 14.05 hours, on 15 January 2005, police constables Alison Burke and Gary Stein, both of Fife Constabulary, saw the [Respondent] Kevin James Michael McHale driving a small 'mini-moto' green and white coloured mini motor cycle (Crown label number 1) south on Abbeyview and thereafter on to Whitelaw Road, Dunfermline. Said mini-motor cycle is mechanically propelled.

2 Said Whitelaw Road, Dunfermline, is a road or public place in terms of the Road Traffic Act 1988 as amended.

3 On said date, said [Respondent] Kevin James Michael McHale was disqualified from holding or obtaining a licence to drive a motor vehicle.

4 On said date, said [Respondent] Kevin James Michael McHale was not insured to drive a motor vehicle on 15 January 2005 [sic] and did not hold a policy of insurance in respect of third party risks as required under part VI of the Road Traffic Act 1988."

[4] The remaining evidence, so far as relevant, was summarised by the sheriff as follows:

"[3] The only witness for the Crown was PC Gary Stein. He spoke to the matters contained in paragraph 1 of the Joint Minute. He described the mini-moto motor cycle (hereinafter, the 'mini-moto') as a mechanically propelled motor vehicle which was petrol driven. He confirmed that Crown label number 1 was the mini-moto which the Respondent had driven on the occasion in question. He pointed out that it had two wheels, 'motor cycle' tyres, which were pneumatic, an exhaust and an engine. He had seen mini-motos before although he had never carried out an examination of one. His state of knowledge of mini-motos was such that he could make no comment on the engine. He confirmed that there was nothing marked on the mini-moto to indicate the size of the engine. The mini-moto had normal handlebar brakes. He could not state whether these were disc brakes or cylinder brakes, but conceded in cross-examination that they were similar to the brakes found on a mountain bike. He stated that the mini-moto was a miniature version of a motor cycle. However, he accepted that it lacked certain features which were found on a motor cycle, such as lights and a registration mark.

...

[5] With regard to the dimensions of the mini-moto, PC Stein gave no evidence of size or weight. I noted from my observation of it that the seat appeared to be no more than a foot or so from the ground. In the course of his evidence, PC Stein was asked to sit on the mini-moto, which he did with some difficulty. He was forced to adopt an extremely ungainly position such that he would have had difficulty riding it without falling off. He conceded that he had difficulty placing his feet upon the pedals while seated. As regards weight, PC Stein was able to hold and handle the mini-moto without any apparent difficulty, whilst giving his evidence.

[6] PC Stein also spoke to a warning label on the mini-moto to the effect that it was not intended by the manufacturers for use on public roads and should not be used thus. It did not conform to safety standards and was not intended for use on the highway. The label also contained a warning to the effect that any user of the mini-moto should wear safety equipment.

[7] PC Stein then confirmed that the mini-moto was not intended for use on the road. Rather, he said, it was meant for fun recreational use by adults or children. Mini-moto rallies took place on tracks and were attended by adults and children as participants. He was unaware of how they were marketed although he was aware that the Respondent had acquired his mini-moto via the Internet. The cost of a mini-moto ranged from £250 to £1250."

[5] In the course of their submissions before the sheriff the solicitor for the respondent and the procurator fiscal depute referred to a number of authorities bearing on the interpretation and application of the expression "motor vehicle" as defined in the 1988 Act and earlier legislation: Burns v Currell [1963] 2 Q.B. 433, O'Brien v Anderton [1979] R.T.R. 388, Chief Constable, Avon and Somerset Constabulary v F (A Juvenile) [1987] R.T.R. 378, DPP v Saddington [2001] R.T.R. 227 and Clark v HM Advocate 2004 J.C. 66. In the last of these cases, which was a recent decision of this court, the legislative history and the relevant authorities were discussed in detail and it would serve no useful purpose to repeat that discussion here. In brief, the court accepted that the test in deciding whether a particular vehicle was intended for use on roads, for the purposes of the statutory definition, was as enunciated by Lord Parker CJ in Burns v Currell at p. 440:

"I prefer to make the test whether a reasonable person looking at the vehicle would say that one of its users [uses] 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?"

The court held that the primary use of the vehicle was not the point and the test was whether a reasonable person looking at it would say that one of its uses had been use on the roads, in the sense that some general use on the roads must be contemplated. In that case the description given of a motor cycle described as an "off road" trail bike was sufficient to meet the test.

[6] The sheriff stated that he required to apply the test in Burns v Currell in the light of the evidence before him. He stated:

"On that basis, in my view the reasonable man looking at the mini-moto could not say that one of its road users would be a road user [sic]. Rather it would be the man losing his senses who would use it on the road."

The sheriff described the evidence led on behalf of the Crown as vague and unsatisfactory. He said that the evidence given about the vehicle was of limited scope and contained none of the detail which he would have expected either in relation to technical matters such as engine size and speed, or in relation to the extent to which such vehicles might be used on the roads. The police officer was unable to give evidence about the size of the engine and either could not, or at any rate did not, give any evidence about the speed at which the vehicle was travelling or was capable of travelling. There was no evidence before the sheriff as to the use of such vehicles on the highway on any occasion apart from the incident itself, and indeed the police officer stated that the vehicle was not intended for use on the road, being intended for recreational use, which was supported by the manufacturers' label on it stating that it was not intended to be used on the road. It did not comply with the legislation relating to the construction and use of vehicles which were so intended. Although the vehicle had been lodged as a production, it did not, in the sheriff's view, advance the Crown's position. Whilst it undoubtedly had certain features in common with a motor cycle, such as tyres, handlebars, a seat, an engine and an exhaust, its dimensions and apparent weight were such as to give rise to an impression that it was no more than a toy. One could not envisage the reasonable man, on being presented with the vehicle in the context of the other Crown evidence, reaching the conclusion that one of its uses would be a road use, rather it would be the man losing his senses who would use it on the road.

[7] At the hearing of the appeal we did not have the advantage which the sheriff had of seeing the mini-moto which had been lodged as a production, but we were provided with a newspaper clipping with a photograph of it. (The photograph bears to show the respondent on the mini-moto, but since this was not before the sheriff we disregard this aspect of the photograph, and proceed on the sheriff's description of the passage in the police officer's evidence when he was asked to sit on the mini-moto.) It may indeed be described, as it was in the joint minute, as a mechanically propelled "mini motor cycle", i.e. a motor cycle smaller than the standard size but nevertheless capable of being driven by an adult. Indeed, without a human figure for scale, it would not obviously be dissimilar in appearance to that of an ordinary motor cycle.

[8] The advocate depute submitted that the sheriff had erred. He misdirected himself by desiderating evidence about the speed, size of engine and capabilities of the mini-moto, when it was a matter of agreement that it was mechanically propelled. That was all that was required in terms of the statutory definition. It looked like a small motor cycle which could be driven, and clearly fell within the statutory definition, applying the test in Burns v Currell which was followed in Clark v HM Advocate. Counsel for the respondent submitted that there was no dispute that the sheriff applied the correct test. It was not conclusive that the mini-moto was in fact being driven on a road. There was no evidence on the question whether it could be meaningfully driven on the road. The sheriff had seen the mini-moto and was best placed to form a judgment about it. Each case turned on its own facts and circumstances. If the mini-moto had no realistic capability of being used on roads, a reasonable person looking at it would not say that one of its uses would be use on the roads.

[9] In our opinion the sheriff has misdirected himself in a number of respects. There is no dispute that the mini-moto is mechanically propelled, that is to say that there is an engine which provides the propulsion for the mini-moto and a person driving it. It is also clear that it is capable of carrying an adult driver such as the respondent. No more is required to satisfy the statutory definition. The driver may be forced to adopt an ungainly posture, but the statute does not require comfort while driving. The sheriff appears to have thought that the engine size, speed and capabilities of the mini-moto were additional factors to take into account. He may have had in mind the question whether the mini-moto was capable of a speed which would allow it to be driven in traffic. This may be related to his use of the expression "highway". But having regard to the definition of the expression "road" set out above, which includes but is more extensive than a highway, it is not necessary for the purposes of the statutory definition that the vehicle be capable of being driven in traffic in the way that a full-size motor cycle would. Indeed, although the point was only touched on in counsel's submissions, a track may fall within the definition of "road" quoted above. The sheriff has also misdirected himself in describing the mini-moto as a "toy", as if that meant that it did not fall within the statutory definition. A toy is no more than an object designed to be played with, and the fact that the mini-moto may be more suited to recreational than to other purposes does not distinguish it from many other types of motor cycle, such as trail bikes. It is not irrelevant that on the evidence the respondent was driving the mini-moto on a road, and it was not suggested that he was a "man losing his senses". In our view, on the evidence placed before the court by the Crown, and applying the test in Burns v Currell, a reasonable person looking at the mini-moto would say that one of its uses would be a road use. The evidence was more than sufficient to satisfy the statutory definition of "motor vehicle".

[10] The questions stated by the sheriff for the opinion of the court are:

"(1) Was there sufficient evidence to enable me to find in fact that the mini-moto was a motor vehicle as defined in the Road Traffic Act?

(2) On the evidence, was I entitled to uphold the submission of no case to answer?"

For the foregoing reasons we answer the first question in the affirmative and the second question in the negative and remit to the sheriff to proceed as accords.