DPP v King
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WALKER,LORD JUSTICE MAURICE KAY |
| Judgment Date | 13 February 2008 |
| Neutral Citation | [2008] EWHC 447 (Admin) |
| Docket Number | CO/11121/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 February 2008 |
[2008] EWHC 447 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Maurice Kay
Mr Justice Walker
CO/11121/2007
Mr S Mooney (instructed by CPS) appeared on behalf of the Claimant
Mr L Wilcox (instructed by Gareth Webb & Co) appeared on behalf of the Defendant
On 24 September 2007 District Judge David Parsons sitting in the South Somerset Magistrates' Court acquitted the respondent, Mr King, of two offences of driving whilst disqualified and using a motor vehicle without insurance. The Director of Public Prosecutions appeals by way of case stated against that decision.
In April 2007, the respondent, at a time when he was disqualified from driving, rode a City Mantis electric scooter on Sherborne Road, Yeovil. He had no relevant insurance. The only issue at trial was whether the City Mantis was a motor vehicle as defined by section 185 of the Road Traffic Act 1988.
Paragraph 2 of the case stated described a speed-meter check carried out by two police officers establishing that the scooter was capable of nine miles per hour when ascending a very slight incline. It also recorded a consequential finding by the district judge that the scooter was capable of ten miles an hour. The remainder of the paragraph included the following:
“Allowing for the incline, I found the scooter capable of ten miles per hour.
Apart from not having pedals, or other means of manual propulsion, the scooter has the general appearance of a bicycle. The frame is in three parts, and designed to be collapsed for carriage and storage. Aside from the seat height, the scooter is similar in dimension to a ten year old child's bicycle. The seat is suspended on a swing arm from the frame, and forms part of the suspension. It sits on solid rubber tyres, with a crude suspension to the front wheel. The rear wheel has no suspension. It is steered by a conventional handlebar, to which is attached an on/off button, engaging the electric motor, and a pedal cycle hand grip for the one brake, which applies to the rear wheel. It is driven by a battery powered electric motor, via a belt transmission, driving the rear wheel. It has no gears or accelerator. It moves forward by engaging the power switch. The motor is either on, and fully engaged, or off, it is not possible to vary the power delivery. Consequently, to control the speed, the rider has to combine switching the motor on and off, with the application of the brake. The design limits its use to smooth and even surfaces.
Whilst capable of up to ten miles per hour, its speed is dependent upon the condition of the battery, the rider's weight, road surface and gradient. There is no forward light, horn or speedometer, the manufacturer has fitted a rear reflective lens and the respondent added an LCD light. It has no frame number or CE markings; CE markings would indicate that it is intended for use as a child's toy. It is not adapted for road use.
The respondent bought the scooter for £60 the day before he was stopped. He considered it would be a bit of fun for him and his young nephew, accepting he would probably use it on a road or pavement.
Paragraph 5 of the case stated identified the governing legal principles in this way:
“I directed myself that, 'motor vehicle' is defined by s185 of the 1988 Road Traffic Act as 'a mechanically propelled vehicle intended or adapted for use on roads'. I considered DPP v Saddington [2001] RTR 15. The test, as to whether a vehicle is intended, or adapted for use on the road is an objective one; —would a reasonable person looking at the vehicle say that one of its uses would be use on the roads, and, in deciding that question, the reasonable person had to consider whether some general use on the roads might be contemplated, and not merely isolated use, or use by a man losing his senses; that the roadworthiness of a conveyance, namely its capability to be used safely on roads, was not decisive of the question of whether its use on the road was contemplated.”
The contention of the prosecution before the district judge was that the City Mantis had features consistent with a motorcycle, including its height, size, controls and power, and accordingly a reasonable person would say that one of its uses would be on the roads. The rival contention for the respondent was that the scooter was an executive toy, and a reasonable person would not contemplate general use on a road, as opposed to isolated use by a man losing his senses.
The district judge's reasons for concluding that the City Mantis was not a motor vehicle were set out in paragraph 6 of the case stated:
“It is common ground that electric scooters are a popular toy, it is not suggested that all electric scooters are motor vehicles. In this case I was asked to measure when an electric scooter is no longer a toy, and passes the threshold of being a motor vehicle.
I accept that 'mechanically propelled' might include electrically powered scooters. I asked myself, have the prosecution proved, to the criminal standard, that some general use on the road is contemplated as one of its uses; and, is it proved beyond a reasonable doubt, that any reasonable person looking at the scooter would say that one of its uses, would be use on the road? I determined, that the prosecution had not proved these matters.
In reaching this conclusion, my analysis was influenced, by the following factors:
(i) Whilst the prosecution had not mentioned public protection, it was a matter to consider. I was entitled to a point, from my own experience and knowledge, and indeed from the lack of evidence to the contrary at trial, to conclude that there was no evidence of other people using similar scooters on the road. I took account of Mr Justice Bell's direction at paragraph 18 of DPP v Saddington:
'We are told by Mr Reed and Miss Kelly that considerable numbers of scooters of this and similar design are in circulation. I would take judicial notice of that and would expect justices to do the same. The temptation to use Go-peds on the roads is considerable, notwithstanding their limitations. They provide a ready means of getting through traffic on short journeys on busy, urban roads, and for that matter, on less busy suburban roads.'
Having taken judicial notice, I was satisfied on the evidence that there were no public protection issues arising from the scooter.
(ii) Whilst speed is not a single decisive factor, it is relevant, this scooter with a maximum speed of ten miles per hour, is slower than a bicycle ridden by a reasonably fit adult. Although it is not an electrically assisted pedal cycle, it was appropriate to note that the Electrically Assisted Pedal Cycle Regulations 1983, allow for an electric motor to propel the electric bicycle at speeds of up to fifteen miles per hour. Whilst I remain unaware of any direct authority on electric scooters, I was asked, by the appellant, to make comparisons with the Go-ped in DPP V Saddington. I did not find such comparisons helpful; the Go-ped being a far more powerful vehicle, capable of speeds of up to 20mph, better designed and equipped to keep up with and negotiate traffic in a busy urban environment. The design, and capabilities of this scooter, make it wholly unsuitable for road use.
(iii) I did not accept the applicant's submission, that this scooter had features consistent with a motorcycle; its dimensions are similar to a child's bicycle, with crude and ineffective controls, there is no reliable and safe means of regulating speed.
(iv) Whilst not critical to my analysis, it may be helpful for me to deal with the respondent's intentions. I carefully weighed my findings against his use of the scooter on a road. His road use did not persuade me, to the criminal standard, that a reasonable person, would envisage this scooter having some general use on a road. It might, at least, have some limited use in a traffic free environment, such as a factory, pedestrian areas of a campus etc. I concluded, that it had limited usage, and would inevitably be discarded, a forgotten folly in a shed or garage.”
The question for the opinion of this court is:
“Whether a City Mantis electric scooter is a motor vehicle as defined by section 185 of the Road Traffic Act 1988?“
That section was discussed by this court in DPP v Saddington [2001] RTR 15. It is convenient to set out the summary of the case found in the headnote of that report:
“ H6 The defendant, who was disqualified for holding or obtaining a licence, passed through a red traffic light while riding an unregistered motorised scooter known as a 'Go-ped' on a road. It had a small foot platform on which the rider stood and it was powered by a 22.5cc engine with a maximum speed of 20 mph. The braking system could not stop the Go-ped safely from any great speed or when applied in an emergency situation. It had inadequate steering and no basic services normally associated with a motor vehicle such as lights, suspension, clutch or controls to enable a rider to control the machine properly. The justices found that the Go-ped was not a 'motor vehicle' within the meaning of section 185(1) of the Road Traffic Act 1988 and dismissed informations laid against the defendant alleging offences of driving a motor vehicle on a road while disqualified for holding or obtaining a driving licence, contrary to section 103(1)(b) of the Road Traffic Act 1988, and using that motor vehicle on a road when there was not in force in relation to that use a policy of...
To continue reading
Request your trial
-
Charli Lewington (Claimant v The Motor Insurance Bureau
...of a judge interpreting an Act in the light of the purpose for which it was enacted. 28 The tests set out above were followed in DPP v King [2008] EWHC 447 (Admin) and were again had regard to in the case of Conolly v Lancaster in the Manchester County Court in March 2011 where His Honour ......
-
Phillip Coates v Crown Prosecution Service
...378; Director of Public Prosecutions v Saddington [2000] EWHC Admin 409, [2001] RTR 227; and Director of Public Prosecutions v King [2008] EWHC 447 (Admin). He applied the test stated by Lord Parker CJ in Burns v Currell: "I prefer to make the test whether a reasonable person looking at the......
-
The Jockey Club Kau Sai Chau Public Golf Course Ltd v Hksar
...[1994] 1 V.R. 632 at p.636 (also concerning a forklift truck, held not to be a motor vehicle) [22] DPP v Saddington at §18; DPP v King [2008] EWHC 447 at §15 (concerning a “City Mantis” brand electric scooter, capable of up to 10 mph, and described in argument as an executive toy – held to ......