An application for a writ of HABEAS CORPUS AD SUBJICIENDUM R Lee v DONCASTER & South HUMBER Healthcare NHS
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MAURICE KAY |
| Judgment Date | 06 November 2002 |
| Neutral Citation | [2002] EWHC 1524 (Admin),[2002] EWHC 2482 (Admin) |
| Docket Number | CO/1872/2002,Case No CO1986/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2002 |
[2002] EWHC 1524 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Michael Supperstone, Q.C.
(Sitting as a Deputy High Court Judge)
Case No CO1986/2002
Mr Terry Munyard—Counsel for the Appellant
Miss J Okoye—Counsel for the Appellant
(Instructed by Bindman & Partners, London WC1X 8QF)
Mr Mark Bryant-Heron—Counsel for the Respondent
Mr A Gifford—Counsel for the Respondent for the judgment
(Instructed by Crown Prosecution Service, London EC4M 7EX)
This is an appeal by way of case stated from the Crown Court at Southwark (HH Judge Dodgson and Justices), in respect of its adjudication on 9 January 2002 sitting on appeal from Justices in the Inner London Area, acting in and for the South Westminster Petty Sessional Division, sitting on 2 November 2001 at Bow Street Magistrates Court. The Crown Court dismissed the Appellant's appeal against conviction by the Magistrates Court for using a vehicle on 13 September 2000 with no insurance, contrary to Section 143 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
The factual background to the present appeal can be stated shortly. It is set out in the judgment of the Crown Court. On 13 September 2000 the Appellant was riding her "City Bug" in Greek Street, W.1 when she was stopped by P.C. Wright. She freely accepted that she had no insurance for the City Bug as she maintained that it was a vehicle exempt from such requirement by the provisions of the Electrically Assisted Pedal Cycle Regulations 1983. The City Bug did not originally have pedals as it was thought that it fell into the category of "invalid carriage" and was under that heading exempt from certain requirements of the Road Traffic legislation. However after an earlier encounter with P.C. Wright the company importing the conveyance from Taiwan took the view that perhaps it was not an invalid carriage and therefore took steps, as they believed, to conform to the law that would allow it to be classified as an electrically assisted pedal cycle. To this end the front wheel was modified so as to allow pedals to be fitted. They are tiny in comparison with the general dimensions of the conveyance. They do not drive a chain but push the front wheel itself, rather in the manner of a child's tricycle. Mr Bishop, the Managing Director of the company, said in evidence that the pedals were so small because otherwise they might bang against the ground and in addition interfere with the ability to fold the conveyance. The Appellant said in evidence, and the Crown Court accepted, that she had used the pedals to achieve forward propulsion. She had propelled the conveyance a few metres at a time. She said that it was "very hard work" and that if the battery expired then rather than attempt to ride the conveyance she would fold it up and go home by taxi.
The Statutory Framework.
The relevant statutory provisions are contained in:
"143. Users of motor vehicles to be insured or secured against third-party risks.
(i) Subject to the provisions of this Part of this Act —
(a) a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act …
(ii) If a person acts in contravention of subsection (i) above he is guilty of an offence.
185. Meaning of "motor vehicle" and other expressions relating to vehicles.
"Motor cycle" means a mechanically propelled vehicle, not being an invalid carriage, with less than four wheels and the weight of which unladen does not exceed 410 kilograms.
"Motor vehicle" means … a mechanically propelled vehicle intended or adapted for use on roads.
189. Certain vehicles not to be treated as motor vehicles.
(1) For the purposes of the Road Traffic Acts —
(c) an electrically assisted pedal cycle of such a class as may be prescribed by regulations so made, is to be treated as not being a motor vehicle.
192. General interpretation of Act
(i) In this Act —
"Cycle" means a bicycle, a tricycle, or a cycle having four or more wheels, not being in any case a motor vehicle.
(2) The Electrically Assisted Pedal Cycles Regulations 1983.
"3. The class of electrically assisted pedal cycles prescribed for the purposes of (Section 189 of the Road Traffic Act 1988) consists of bicycles or tricycles which comply with the requirements specified in Regulation 4 below.
4. The requirements referred to in Regulation 3 above are that the vehicle shall:—
(a) have a kerbside weight not exceeding —
(i) in the case of a bicycle, other than a tandem bicycle, 40 kilograms …
(b) be fitted with pedals by means of which it is capable of being propelled;
and
(c) be fitted with no motor other than an electric motor which —
(i) has a continuous rated output which, when installed in the vehicle with the nominal voltage supplied, does not exceed —
(A) in the case of a bicycle, other than a tandem bicycle, 0.2 kilowatts …
and
(ii) cannot propel the vehicle when it is travelling at more than 15 miles per hour."
The Crown Court made the following findings of fact:
(i) The original City Bug vehicle was modified to add two pedals to the front wheel.
(ii) The dimensions of the pedals were one inch wide, three quarters of an inch deep and mounted on cranks which measure one and a quarter inches.
(iii) The pedals do not drive a chain but push the front wheel itself.
(iv) The vehicle was intended primarily to be powered by an electric motor.
(v) The vehicle was capable of being propelled by the use of the pedals alone but it was a difficult and precarious exercise that would require much practice.
(vi) It would be impossible for anyone to use this machine safely on the roads if reliance was placed on the pedals alone.
The City Bug satisfied all the requirements set out in Regulation 4 with the exception of condition (b) which was in issue.
The Case states the following question for the opinion of the High Court:
"Given those findings, were we right to find that the conveyance ridden by the appellant was not "fitted with pedals by means of which it is capable of being propelled" within the meaning of Regulation 4(b) of the Electrically Assisted Pedal Cycle Regulations 1983, and that the appellant was therefore guilty of the offence of using the vehicle with no insurance, contrary to Section 143 of the Road Traffic Act 1988?"
Mr Munyard, appearing on behalf of the Appellant, made the following submissions:
(i) The fact that the City Bug's pedals are fitted to the front wheel, rather than a chain mechanism, and are small, does not render them incapable in fact of propelling the vehicle.
(ii) The purpose for which Parliament enacted the exemption is presumably to treat a means of transport powered by a low speed, lightweight electric engine as a pedal cycle rather than as a motor cycle which, by virtue of its construction it would otherwise be within the meaning of the Road Traffic Act 1988, Section 185.
(iii) By virtue of its low speed levels, its lightweight and its non-use of polluting fossil fuel combustion propulsion the electrically assisted pedal cycle is much more akin to an ordinary pedal cycle and to be distinguished from a motor cycle. The point of the electrically powered engine is not to make it faster than a pedal cycle but to make it easier to use for those who do not have (or wish to use) the strength to push the pedals for any length of time.
(iv) The very nature of any cycle with an electric engine means that it is inherently difficult to power by pedals alone because of the resistance created by the engine mechanism and its weight. Such cycles are intended to be used on the road by means of engine power as the primary means of propulsion, not merely to add to the use of the pedals. The existence of the pedals in all current electrically assisted pedal cycles is to a degree cosmetic and for use as a last resort in practice.
(v) There is no reason to conclude that the City Bug is any more difficult to propel by pedals alone than other forms of such transport. The fact that it takes time to learn or master the method of riding it by pedals alone is no different from ordinary pedal cycles. The fact that it is awkward and tiring to do so in practice is no different from other electrically assisted pedal cycles.
Mr Bryant-Heron, appearing on behalf of the Respondent, invites me to have regard to the policy behind Section 143 of the Road Traffic Act 1988, namely to safeguard road users and pedestrians from uninsured injury from a mechanically powered vehicle, by providing for compulsory insurance. In my judgment Mr Bryant-Heron is correct in his submission that a purposive construction should be adopted to Regulation 4(b) to give effect to the intention of Parliament, which must be to require the pedals on an electrically assisted pedal cycle to be capable of propelling the vehicle in a safe manner in its normal day-to-day use. On this construction it is not necessary to read any additional words into Regulation 4(b). However in the alternative I would read (as Mr Bryant-Heron submitted and the Crown Court accepted) the words "fitted with pedals by means of which it is capable of being propelled" as meaning that the vehicle is "reasonably capable of being propelled" by the pedals. (See Burns v Currell (1963) 2 QB 433 and Chief Constable of the North Yorkshire Police v Saddington, 26 October 2000 (Unreported) CO/2184/2000)....
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