Phillip Coates v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Mr Justice Langstaff |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWHC 2032 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1981/2011 |
| Date | 29 July 2011 |
[2011] EWHC 2032 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(SITTING AT LEEDS)
Leeds Combined Court
1 Oxford Row
Leeds LS1 3BG
Lord Justice Munby
Mr Justice Langstaff
Case No: CO/1981/2011
Mr Jeremy Barnett (instructed by Lumb and MacGill) for the Appellant
Mr Ben Lloyd (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 22 July 2011
This is an appeal by Case Stated from a decision of District Judge (Magistrates' Court) Rosenberg sitting at Barnsley Magistrates' Court on 18 January 2011.
The appellant appeared before the District Judge on 14 January 2011 facing an information alleging that he:
"On 12/02/2010 at Barnsley wilfully rode a motor vehicle, namely SEGWAY upon a footpath or causeway by the side of a road, namely PONTEFRACT ROAD, made or set apart for the use or accommodation of foot passengers. Contrary to section 72 of the Highway Act 1835."
On 18 January 2011 the District Judge gave judgment. He convicted the appellant, fining him £75 and ordering him to pay £250 costs and £15 victim surcharge.
The facts were not in dispute and neither party called any evidence. It was common ground that the appellant had, as the prosecution witnesses put it, been seen riding a SEGWAY on the pavement on 12 February 2010. It was common ground that he had, in the statutory sense, been acting wilfully. It was common ground that the pavement in question was a "footpath or causeway by the side of [a] road made or set apart for the use or accommodation of foot passengers" within the meaning of section 72. It was agreed that the only issue for the District Judge to determine was whether a SEGWAY falls within the definition of a motor vehicle in section 185(1) of the Road Traffic Act 1988, that is, "a mechanically propelled vehicle intended or adapted for use on roads." It being further agreed that a SEGWAY is "a mechanically propelled vehicle," the determinative question was agreed to be whether a SEGWAY is "intended or adapted for use on roads." The District Judge found that it was, and on that basis convicted the appellant.
The District Judge recorded in his judgment that he had been referred to a number of authorities: Burns v Currell [1963] 2 QB 433; Chief Constable of Avon and Somerset Constabulary v F (A Juvenile) [1987] RTR 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 vehicle would say that one of its users would be a road user. In deciding that question, the reasonable man would not, as I conceive, have to envisage what some man losing his senses would do with a vehicle; nor an isolated user or a user in an emergency. The real question is: is some general use on the roads contemplated as one of the users?"
The District Judge directed himself as follows: "It is therefore a matter of fact and degree, looking at the case as a whole, and using the acid test mentioned above, for me to interpret whether or not the Segway is a mechanically propelled vehicle intended or adapted for use on a road." He expressed his conclusion as follows:
"If I am satisfied from all the evidence presented, that a reasonable person was to say 'yes, the Segway might well be used on a road', then, applying the test, the vehicle is intended or adapted for such use. 1
In my judgement, the conclusion must be that general use on the roads is to be contemplated."
He recorded that he had been referred to the position in various other countries in the European Union, but said "I am not swayed by what is lawful in a large number of other Countries. My only concern is to interpret the law of this Land in deciding whether or not a Segway can lawfully be ridden on a footpath".
On 25 February 2011 the District Judge stated a Case. He certified three questions for the High Court:
i) Whether I erred in declining to consider whether the Segway is approved for use on the pavement in other European jurisdictions?
ii) Whether I erred in failing to take into consideration the intention of the manufacturer when deciding whether or not the Segway is a mechanically propelled vehicle intended for or adapted for use on a road?
iii) Whether I erred in concluding that the Segway is a mechanically propelled vehicle intended or adapted for used (sic) on the road?
These, it may be noted, were the questions identified by the appellant in his Application to State a Case. In paragraph 11 of the Case the District Judge expressed the opinion that questions (i) and (ii) are irrelevant to the issue in the case.
The appeal, by notice of appeal issued on 3 March 2011, came on for hearing before us in Leeds on 22 July 2011, pursuant to directions given by Langstaff J on 29 March 2011. The appellant was represented by Mr Jeremy Barnett and the respondent by Mr Ben Lloyd. Neither had appeared before the District Judge.
In his skeleton argument dated 3 May 2011, amplified in a further skeleton argument dated 19 July 2011, Mr Barnett sought to ventilate three further matters:
i) First, that the CPS should have exercised its discretion not to prosecute on the facts of this case. The case did not, he says, fulfil the criteria set out in the Code for Crown Prosecutors, and the case should be stayed as an abuse of process.
ii) Second, that if the District Judge was right to conclude that a SEGWAY is a motor vehicle for the purposes of the 1988 Act, his decision was incompatible with EU law, as it is an unlawful restriction on their use and therefore an impediment to their importation into the UK.
iii) Finally, that the sentence was excessive. Two matters are prayed in aid: it is said that since purchasing it on 14 June 2008 the appellant had driven his SEGWEAY on the pavement for 21 months to the knowledge of the Police without complaint; furthermore he is unemployed.
As Mr Lloyd points out, neither of the first two arguments was raised before the District Judge and none of them forms any part of the Case as stated by the District Judge.
Mr Barnett submits that the District Judge erred in each of the three respects identified in the Case; Mr Lloyd submits that he did not.
Mr Lloyd says that the decision of the District Judge was correct and that the appellant was properly convicted of the offence pursuant to section 72 of the 1835 Act. The District Judge, he submits was correct in his conclusion that the SEGWAY was a motor vehicle within the meaning of the 1988 Act. But, he argues, it was ultimately unnecessary for this question to be determined, for it is not an essential ingredient of the offence for which the appellant was prosecuted. The simple fact, he says, is that the appellant rode his SEGWAY upon the pavement and was therefore, ipso facto, guilty of an offence pursuant to section 72. Given the terms of section 72 there was, says Mr Lloyd, no need for the District Judge to resolve the issue of whether the SEGWAY was a motor vehicle.
Before going any further I should briefly explain what a SEGWAY is. It is a technologically advanced form of personal transportation consisting of a small gyroscopically stabilised platform mounted on two wheels, on which the traveller stands, powered by a battery driven electric motor. A vertical joy-stick is used to steer. Speed is controlled by leaning forward (to go faster) or standing up straight (to slow down). Its maximum speed is 12 1/2 miles per hour. Mr Barnett points to its small footprint – smaller than a bicycle and little more than a walking individual. The SEGWAY is also, he stresses, low carbon and environmentally friendly.
I turn to the law.
Section 72 of the Highway Act 1835 survives in somewhat shrunken form. It is headed "Penalty on persons committing nuisances by riding on footpaths, etc." As amended it now provides as follows:
"… If any person shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or shall wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle, or carriage of any description, or any truck or sledge, upon any such footpath or causeway; or shall tether any horse, ass, mule, swine, or cattle on any highway, so as to suffer or permit the tethered animal to be thereon; … every person so offending in any of the cases aforesaid shall for each and every such offence forfeit and pay any sum not exceeding level 2 on the standard scale …"
Section 78 of the Act makes it a criminal offence (inter alia):
"if any person riding any horse or beast, or driving any sort of carriage, shall ride or drive the same furiously so as to endanger the life or limb of any passenger".
Similar offences are created by section 28 of the Town Police Clauses Act 1847 ("rides or drives furiously any horse or carriage, or drives furiously any cattle") and by section 35 of the Offences against the Person Act 1861 ("having the charge of any carriage or vehicle, shall by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever").
I need also to refer to various definition provisions. Section 85(1) of the Local Government Act 1888 provides that:
"… Bicycles, tricycles, velocipedes, and other similar machines are hereby declared to be carriages within the meaning of the Highway Acts …" 2
Section 191(a) of the Road Traffic Act 1988 provides that:
"A motor vehicle or trailer … is to be deemed to be a carriage within the meaning of any Act of Parliament …"
Section 185(1) of the 1988 Act provides...
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