Divisional Court
| Published date | 01 August 2000 |
| Date | 01 August 2000 |
| DOI | http://doi.org/10.1177/002201830006400403 |
| Subject Matter | Article |
Divisional
Court
When
Does
Condition
Of
Motor
Vehicle
Make
Its Use
An Offence?
DPP
v
Potts
[2000] RTR 1
An agricultural tractor was driven
on
a C Class road in a rural area.
It
was
on
its correct side of
the
road
and
no
exception was
taken
to
the
manner
in
which
it was driven. But its front linkarms
were
in
the
down
or lowered position
which
meant
that
they
protruded
some 11 inches
further
than
they
would
have
done
had
they
been
in
the
raised position.
Aprivate
motor
vehicle
was
said to
have
shot
across
the
road
into
the
path
of
the
tractor and, in
the
ensuing collision,
the
car's driver was
killed. An information
was
laid charging
the
tractor driver
with
an
offence contrary to s 40A of
the
Road Traffic Act 1988.
Section 8 of
the
Road Traffic Act 1991 inserted s 40A into
the
Road
Traffic Act 1988,
which
provides
that
a
person
is 'guilty of an offence
if
he
uses
...
a
motor
vehicle
...
on
aroad
when-(a)
the
condition of
the
motor
vehicle
...
, or of its accessories or its
equipment
...
is
such
that
the
use of
the
motor
vehicle
...
involves a
danger
of injury to
any
person'. Regulation 100 of
the
Road Vehicles (Construction
and
Use)
Regulations 1986 provides
that
a
'motor
vehicle
...
and
all parts
and
accessories
...
shall at all times be in
such
acondition
...
that
no
danger
is caused or is likely to be caused to
any
person
..
.',
The issue before
the
justices was
whether
the
driving of
the
tractor
with
the
moveable front link arms
down
was, in
the
circumstances, a
danger
to
any
person
on
the
road. As
no
exception was
taken
to
the
manner
of its being driven
and
as it was always
on
its correct side of
the
road, it was agreed
that
the
tractor driver was blameless. But
the
prosecution
argued
that
those
facts
were
irrelevant to
the
question
relating to
the
'condition'
of
the
tractor
and
whether
that
condition was
a
danger
to
any
person. Equally irrelevant was
the
fact
that
there
was
no
regulation or
statute
in force,
no
guidance from
the
manufacturers
of
the
link arms or from
the
Department
of Trade
and
Industry
and
no
police
order
which
required
the
moveable front link arms to be raised.
The justices concluded that, as a
matter
of fact,
the
driving
with
the
front
arms
down
was
not
an offence.
It
was
not
suggested
that
the
lowered
arms
meant
that
the
condition of
the
vehicle was potentially the cause of
the
car driver's
death.
But
it was
contended
that
to drive the tractor in
that
condition was to cause danger of injury. The justices
were
of
the
opinion that, having regard to all
the
circumstances,
the
driving of
the
tractor
with
the
front link
arms
down
did
not
constitute adanger to
any
person
and
dismissed
the
information. The
prosecutor
appealed by
way
of case stated. There being afinding of fact by
the
justices,
the
only
question
at issue before
the
Divisional Court was
whether
any
bench
properly directed
upon
the
facts could have reached
that
conclusion.
347
The Journal
of
Criminal Law
HELD,
DISMISSING
THE
APPEAL,
that
it could
not
be said
that
the
justices' decision was irrational or perverse.
COMMENTARY
There is
ample
authority
for saying
that
the
question
whether
avehicle
is in
such
acondition as to be
dangerous
to
any
person
is a
question
of
fact: see Stone's Justices Manual 1997, vol 1.
para
8,3653. The justices
having found as a fact
that
there
was
no
danger
and
the
court
having
concluded
that
this was
not
perverse,
that
was
the
end
of
the
matter.
But
the
court
was at pains to
point
out
that
there
may
be circumstances in
which
atractor driven in this condition
might
be
held
to be
dangerous.
Thus in Wood v Milne (1987) The Times, 27 March amechanical digger
with
a
protruding
spiked
bucket
in front was held to be
driven
in a
condition dangerous to
other
persons. The
court
on
the
present
occasion
pointed
out
that
its decision does
not
give a licence to
every
tractor
driver to proceed along
any
road at
any
time of
the
day
with
the
link
arms in
the
lowered position. But, equally, it is for
the
justices to
determine
in
each
particular" case
whether
that
danger
exists. Astill LJ
remarked
that
the
prosecutor's
argument
would
mean
that
atractor
could
never
be driven on
any
road
with
the
front link
arms
down.
Neither
the
Act
nor
the
Regulations state
that
this condition
automat-
ically creates
an
offence. The Act creates
an
absolute offence (so
that
the
driver's lack of blameworthiness is
not
adefence),
but
that
absolute
offence 'is a qualified
one'
to be
determined
by the justices (see
per
Otton
LJ, at 6).
Whether
there
is a risk of injury
would
depend
on
all
the
circumstances, This
means
that
the
offence
may
rest in
part
on
adriver's
judgment:
to drive
on
a C Class road in a
country
area
may
create
no
danger
of injury,
whereas
to drive
the
same
vehicle on an A Class road
in
an
urban
area
may
create
such
danger, in
the
case of
the
same
vehicle.
Failure to
Supply
a
Specimen
of Breath
May v DPP [2000] RTR 7
The police evidence in this case was
that
they
had
seen
the
defendant
sitting in
the
driver's seat of a stationary car
and
that
he was
about
to
start
the
engine. A
breath
test being positive, he was arrested
and
taken
to a police station
where
he was
required
to provide two specimens of
breath. He produced one, which
showed
that
his breath-alcohol
content
was beyond
the
prescribed limit.
Thereupon
he declined to provide a
second specimen,
on
the ground
that
the
reading was to be explained by
the
fact
that
it related
not
to an alcohol
content
but
to medication
which
he
had
taken
for a medical condition. He
then
offered to provide ablood
specimen, which offer was accepted
and
a blood specimen was in fact
taken,
although
no use was
made
of
the
result of its analysis, for he was
348
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