Divisional Court
| Published date | 01 February 1992 |
| Date | 01 February 1992 |
| DOI | http://doi.org/10.1177/002201839205600102 |
| publishedBy | Sage Publications, Inc. |
DIVISIONAL
COURT
REMAND IN CUSTODY IN ABSENCE
RVLiverpoolJJ, ex pGrogan
Section128 oftheMagistrates' CourtsAct1980 provides for a remandin
custody, for a remand onbail by acourt inquiring intoortrying acharge
against a defendant and a remand onbail by takinga recognisance.InRv
Liverpool JJ, ex p Grogan(1991) 155 JP490, themagistrates' court
proceeded under the third of those provisions, exercisingtheir powerto
remand the applicant on bail, provided he produced sureties. They did so
in his absence inthe following circumstances. Whencharged with a number
of offences, hehad beenremanded on bail, providedhe produced a surety
in the sum of £150.In theevent, he could not doso, andunder the terms
of his remand he was toappear in court again in a week's time. Before
that time had expired, therewas a disturbance at the remand centre in
which he wasin custody and he wastransferred to prison.Hedid not
appear at the adjourned hearing becausethe prison authorities were unable
to provide an escort.The magistrate was informedofthedisturbanceand
of the defendant's absencebecauseof it.In theabsenceof further
information, it was, not unnaturally, assumedby thecourtthatthe
defendant was still in theremand centre.He was remanded for a further
week on thesame terms as before.In theordinary way,a personso
remanded must bein court for the secondremand, but on this occasion,
the magistrate made an order onthebasis that the non-production of the
applicant from custody was due to an 'accident', as that term is employed
in s 129 of the 1980Act.Thatsection (which deals with the exceptions to
the ordinary rule that the person to be dealt withonthe second occasion
must be present, if he is toberemanded again) provides that,
if
the court
'is satisfied' that any person who hasbeenremanded 'is incapable by
reason of illness
or'
accident to appear or be brought before the court at
the expiration of the period for whichhe hasbeen remanded, the court
may in his absence,remand him for a further time
..
.'.In the present
case, the defendant applied tothe High Court fora declaration and
damages, on the ground that he had been wrongly remanded (in effect in
custody) inhis absence.
The Divisional Court acceptedhis submissionthat, beforea courtcould
proceed in his absence,therequirement that it must be 'satisfied'must
mean more than that 'it appears to the court' or 'the courtis ofopinion'.
Bingham Uput it in termsthat 'the courtcould only besatisfied
if
it were
given solid groundsuponwhich it could reasonablyfounda reliable
opinion'. The courtalso acceptedthe further submission that the require-
ment that a person 'isunable' to be present means 'something a good deal
more than mere inconvenience or minor impediment', even though the
requirement is notlimitedto physical impossibility.Moreover, since this
inability must be 'by reason of illnessor accident', it must beshown that
it was caused bysuch an event.Although theapplicant in this case accepted
3
Journal
of
Criminal
Law
that the word 'accident' maymean 'aneventthatiswithoutapparent cause
or unexpected' and that this could include thedisturbanceat theremand
centre, he submitted that the materialbeforethe magistratedid not suffice
to 'satisfy' the court that there had been an 'accident', 'by reasonof which'
the applicantwas 'unable' to be present in court.TheDivisional Court,
while declining to decide whether the term 'accident' in s 129 bearsthe
suggested meaning, held thatthemagistratedid not have thenecessary
'solid grounds'on which hecould'reasonably' concludeas hehaddone.
There was no evidence that theapplicantwas atthe remand centre (and
indeed hewas not);therewas no evidence ofa continuance of the
disturbance; therewas noevidence thatitwas impracticable ornot
reasonably practicablefor the applicantto be brought before the court.
The court therefore made a declaration thatthe magistrate's remand in
custody for a further seven dayswas unlawful andadjourned thecase to
allow theapplicanttoamendhis formofapplication,to quashthe order
and for an order for the proceedings to continue for damages as if begun
by a writ.
It
may be remarked thattheresultof this case seems tobe one
which arises directly outof lack of informationofferedtothemagistrate.
PROSECUTIONS IN
RESPECf
OF HEAVY GOODS VEHICLES
DPP
v Ryan
Section124 oftheRoadTrafficAct1972 enacted that aheavy goods
vehicle is onewhich isconstructed or adapted forcarrying goods or burden
of any description.Such avehicle,unless excepted, entails the need for
the observanceof thetachograph requirements of s 97,astatutory plate
and test certificate, and the driver is required to have an
HGV
licence
under s112 of the 1972Act.When chargedwith a failure toobserve these
provisions, the respondents in
DPP
vRyan (1991) 155 JP456 were
acquitted. The tachograph requirements were held not to apply, as the
vehicle was excluded by reasonofthefact that itwas used for'water
services'-an
exception which thejusticesheldtoapply notonly tothe
old Water Boards andtheir successors butalsotoanyprivatecontractor
providing water services. Thejustices further held thatthe other statutory
requirements did not apply becausethe vehicle hadbeenso altered that it
had ceased to be an
HGV
under the Act.The Divisional Court allowed
the DPP's appealinrespect ofthe necessity tohave thestatutory plate
and certificate and, although noappeal hadbeen taken fromthe justices'
decision that thedriver did not requirean
HGV
licence, the court stated
its opinionthatthejustices ought tohaveconvicted on that charge also.
In Burns v Carrell
[1963]
2 QB433, wherethequestionwas whether a
go-kart was 'intended or adapted' foruse ona road,the courtappliedthe
test of whethera reasonable person would say that 'some general useon
theroadwas contemplated as oneof its uses'.This testwas acceptedby
Glidewell Uin ChiefConstable
of
Avon
v Fleming
[1987]
RTR
318: 'what
would betheview of thereasonable man of thegeneral use of this
particular vehicle?' In both these cases, the question arose inconnection
with the interpretation of theterm'intended or adapted' for use, whereas
4
Divisional Court
in the instant caseit arosein connection with a vehicle 'constructed or
adapted for carrying goods'and 'plant especially designedandconstructed
for thespecial purpose of engineering operations'. The vehicle inquestion
had begunlife as an HGV, but hadbeen adapted tobeusedsolely for
winch and lifting workindrilling waterwells.
It
carriedtwo winches and,
although oneof thesecouldbe used only with anexternal source of power,
each couldbeused only withthelorry as modified.Was thedegree of
alteration so greatas totakethevehicle outofits original category of
HGV
and cause it to becomeengineering plant, thus losing itsinitial
identity?
One might perhaps beexcusedif onethoughtthat thiswas aquestion
purely offact which,once decidedby thejustices,was finally decided; but
the Divisional Court followed the path of reasoning in Fleming's case: the
reasonable man wouldfirst consider the vehicle's original form,then
consider whether the alteration was so greatthat it no longer came within
its original definition.In that case,the court emphasised the importance
of the differencebetween avehicle inits originalstateandonewhich has
been adapted. Thus,if a vehicle in its originalstatedoesnothavemany
of the characteristics of a vehicle normallyused on a road, it will not be
difficult forthecourttofind that itwas not'intended' for such use; but
wherea vehiclewas originally sointended and has been adapted, 'that is
different', for in sucha case 'itwould requirea very substantial, indeed
dramatic, alteration' before it could be said that it nolonger came within
the Act.In thepresent case,theDivisional Court adopted that test in
deciding whether the adaptation had turned the vehicle(which hadbeen
an HGV) into an 'engineering plant'.
It
concluded that the alterations in
this case hadnot beensufficient to change theinitial identity of thevehicle,
for 'if thevehicle has beenconstructed for carrying goods, itwould require
very substantial and dramatic alterations for it tolose its originalidentity
as a
HGV'
(per Otton J, at p
467E).
As questions of alteration arequestionsof fact anddegreeand,as such,
questions primarily for the magistrates, the court's intervention in such a
case must presumably be based on the court's opinion that the magistrates
failed to apply theproper test or either ignoredrelevantfacts or took into
account irrelevant facts orcametoa conclusion which noreasonable
magistrates could have reached. The court does not appear to have stated
expressly onwhich of thesegroundsit proceeded.
NO REASONABLE EXCUSE FOR NOISE NUISANCE
Wellingborough
BC
vGordon
By s 58(1) of theControl of PollutionAct1974 a local authority which is
'satisfied thatnoise amountingtoa nuisance exists'may serve a notice
prohibiting its recurrence. Such a noticewas served onthe defendant in
Wellingborough
BC
vGordon (1991) 155JP 494, but thereafter he held a
party to celebrate his birthday, to which all hisneighbourswere invited
(and most came) and at which loud reggae was played. The police, having
heard that music andtheblowing ofwhistles andairhorns,askedhim to
5
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