Divisional Court
| Published date | 01 February 1992 |
| Date | 01 February 1992 |
| DOI | http://doi.org/10.1177/002201839205600102 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
REMAND IN CUSTODY IN ABSENCE
RVLiverpoolJJ, ex p Grogan
Section 128 of the Magistrates' Courts Act 1980 provides for a remand in
custody, for a remand on bail by a court inquiring into or trying a charge
against a defendant and a remand on bail by taking a recognisance. In Rv
Liverpool JJ, ex p Grogan (1991) 155 JP 490, the magistrates' court
proceeded under the third of those provisions, exercising their power to
remand the applicant on bail, provided he produced sureties. They did so
in his absence in the following circumstances. When charged with a number
of offences, he had been remanded on bail, provided he produced a surety
in the sum of £150. In the event, he could not do so, and under the terms
of his remand he was to appear in court again in a week's time. Before
that time had expired, there was a disturbance at the remand centre in
which he was in custody and he was transferred to prison. He did not
appear at the adjourned hearing because the prison authorities were unable
to provide an escort. The magistrate was informed of the disturbance and
of the defendant's absence because of it. In the absence of further
information, it was, not unnaturally, assumed by the court that the
defendant was still in the remand centre. He was remanded for a further
week on the same terms as before. In the ordinary way, a person so
remanded must be in court for the second remand, but on this occasion,
the magistrate made an order on the basis that the non-production of the
applicant from custody was due to an 'accident', as that term is employed
in s 129 of the 1980 Act. That section (which deals with the exceptions to
the ordinary rule that the person to be dealt with on the second occasion
must be present, if he is to be remanded again) provides that,
if
the court
'is satisfied' that any person who has been remanded 'is incapable by
reason of illness
or'
accident to appear or be brought before the court at
the expiration of the period for which he has been remanded, the court
may in his absence, remand him for a further time
..
.'. In the present
case, the defendant applied to the High Court for a declaration and
damages, on the ground that he had been wrongly remanded (in effect in
custody) in his absence.
The Divisional Court accepted his submission that, before a court could
proceed in his absence, the requirement that it must be 'satisfied' must
mean more than that 'it appears to the court' or 'the court is of opinion'.
Bingham U put it in terms that 'the court could only be satisfied
if
it were
given solid grounds upon which it could reasonably found a reliable
opinion'. The court also accepted the further submission that the require-
ment that a person 'is unable' to be present means 'something a good deal
more than mere inconvenience or minor impediment', even though the
requirement is not limited to physical impossibility. Moreover, since this
inability must be 'by reason of illness or accident', it must be shown that
it was caused by such an event. Although the applicant in this case accepted
3
Journal
of
Criminal
Law
that the word 'accident' may mean 'an event that iswithout apparent cause
or unexpected' and that this could include the disturbance at the remand
centre, he submitted that the material before the magistrate did not suffice
to 'satisfy' the court that there had been an 'accident', 'by reason of which'
the applicant was 'unable' to be present in court. The Divisional Court,
while declining to decide whether the term 'accident' in s 129 bears the
suggested meaning, held that the magistrate did not have the necessary
'solid grounds' on which he could 'reasonably' conclude as he had done.
There was no evidence that the applicant was at the remand centre (and
indeed he was not); there was no evidence of a continuance of the
disturbance; there was no evidence that it was impracticable or not
reasonably practicable for the applicant to be brought before the court.
The court therefore made a declaration that the magistrate's remand in
custody for a further seven days was unlawful and adjourned the case to
allow the applicant to amend his form of application, to quash the order
and for an order for the proceedings to continue for damages as if begun
by a writ.
It
may be remarked that the result of this case seems to be one
which arises directly out of lack of information offered to the magistrate.
PROSECUTIONS IN
RESPECf
OF HEAVY GOODS VEHICLES
DPP
v Ryan
Section 124 of the Road Traffic Act 1972 enacted that a heavy goods
vehicle is one which isconstructed or adapted for carrying goods or burden
of any description. Such a vehicle, unless excepted, entails the need for
the observance of the tachograph requirements of s 97, a statutory plate
and test certificate, and the driver is required to have an
HGV
licence
under s 112 of the 1972Act. When charged with a failure to observe these
provisions, the respondents in
DPP
vRyan (1991) 155 JP 456 were
acquitted. The tachograph requirements were held not to apply, as the
vehicle was excluded by reason of the fact that it was used for 'water
services'-an
exception which the justices held to apply not only to the
old Water Boards and their successors but also to any private contractor
providing water services. The justices further held that the other statutory
requirements did not apply because the vehicle had been so altered that it
had ceased to be an
HGV
under the Act. The Divisional Court allowed
the DPP's appeal in respect of the necessity to have the statutory plate
and certificate and, although no appeal had been taken from the justices'
decision that the driver did not require an
HGV
licence, the court stated
its opinion that the justices ought to have convicted on that charge also.
In Burns v Carrell
[1963]
2 QB 433, where the question was whether a
go-kart was 'intended or adapted' for use on a road, the court applied the
test of whether a reasonable person would say that 'some general use on
the road was contemplated as one of its uses'. This test was accepted by
Glidewell U in Chief Constable
of
Avon
v Fleming
[1987]
RTR
318: 'what
would be the view of the reasonable man of the general use of this
particular vehicle?' In both these cases, the question arose in connection
with the interpretation of the term 'intended or adapted' for use, whereas
4
Divisional Court
in the instant case it arose in connection with a vehicle 'constructed or
adapted for carrying goods' and 'plant especially designed and constructed
for the special purpose of engineering operations'. The vehicle in question
had begun life as an HGV, but had been adapted to be used solely for
winch and lifting work in drilling water wells.
It
carried two winches and,
although one of these could be used only with an external source of power,
each could be used only with the lorry as modified. Was the degree of
alteration so great as to take the vehicle out of its original category of
HGV
and cause it to become engineering plant, thus losing its initial
identity?
One might perhaps be excused if one thought that this was a question
purely of fact which, once decided by the justices, was finally decided; but
the Divisional Court followed the path of reasoning in Fleming's case: the
reasonable man would first consider the vehicle's original form, then
consider whether the alteration was so great that it no longer came within
its original definition. In that case, the court emphasised the importance
of the difference between a vehicle in its original state and one which has
been adapted. Thus, if a vehicle in its original state does not have many
of the characteristics of a vehicle normally used on a road, it will not be
difficult for the court to find that it was not 'intended' for such use; but
where a vehicle was originally so intended and has been adapted, 'that is
different', for in such a case 'it would require a very substantial, indeed
dramatic, alteration' before it could be said that it no longer came within
the Act. In the present case, the Divisional Court adopted that test in
deciding whether the adaptation had turned the vehicle (which had been
an HGV) into an 'engineering plant'.
It
concluded that the alterations in
this case had not been sufficient to change the initial identity of the vehicle,
for 'if the vehicle has been constructed for carrying goods, it would require
very substantial and dramatic alterations for it to lose its original identity
as a
HGV'
(per Otton J, at p
467E).
As questions of alteration are questions of fact and degree and, 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 the proper test or either ignored relevant facts or took into
account irrelevant facts or came to a conclusion which no reasonable
magistrates could have reached. The court does not appear to have stated
expressly on which of these grounds it proceeded.
NO REASONABLE EXCUSE FOR NOISE NUISANCE
Wellingborough
BC
vGordon
By s 58(1) of the Control of Pollution Act 1974 a local authority which is
'satisfied that noise amounting to a nuisance exists' may serve a notice
prohibiting its recurrence. Such a notice was served on the defendant in
Wellingborough
BC
vGordon (1991) 155JP 494, but thereafter he held a
party to celebrate his birthday, to which all his neighbours were invited
(and most came) and at which loud reggae was played. The police, having
heard that music and the blowing of whistles and air horns, asked him to
5
To continue reading
Request your trial