Vehicle and Operator Services Agency, R (on the application of) v Henderson [2004] EWHC 3118 (Admin)

Case No CO/4367/2004[2004] EWHC 3118 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15 December 2004
Strand
London WC2
B E F O R E:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF VEHICLE AND OPERATOR SERVICES AGENCYClaimant-v-
Between
PAUL ERNEST HENDERSONDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR T NESBITT (instructed by Hine & Co) appeared for CLAIMANTMR N AULLYBOCUS (instructed by Alison Fielden & Co) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MITTING: This is an appeal by way of case stated from the decision of the Justices for Avon and Somerset on 2nd July 2004 that the respondent, Mr Henderson, was not guilty of an offence contrary to section 40A of the Road Traffic Act 1988. The appellant and prosecutor, the Vehicle and Operator Services Agency, contends that the decision of the magistrates was one which, on their findings of fact, it was not open to them to reach; or put in other way, that no reasonable bench of magistrates could have acquitted Mr Henderson on the facts that they found.[2]Although there were questions of fact between prosecutor and Mr Henderson, the essential facts were not in dispute and are clearly found by the magistrates in the case which they have stated. They are as follows:
"(a) The Respondent was driving a 32-tonne DAF lorry, registration W837 PWS on 25th November 2003."
[3](I interpose that he was driving on the M5 northbound in Sedgemoor in Somerset.) "The vehicle was owned by his then employer Hills Haulage. It had been serviced on 21st November 2003 when work had been undertaken on the wheels of the rear 2 axles -- the brake linings had been replaced. On Saturday 22nd November 2003 Mr Henderson had torque tightened the wheel nuts as advised after 50 kilometres. (b) The company's policy was to require drivers to conduct a visual check of the wheels/wheel nuts/tyres each day before a vehicle was driven. This is an acceptable practice within the trade. The Respondent followed this requirement including on the morning of 25th November 2003 when he checked the wheel nuts with the aid of a light on his mobile phone because it was dark (5.30 am). At that point the wheel nuts were not visibly loose. (c) The Respondent drove 466 kilometres and then pulled over on the entry slip to motorway services when he became aware of vibration or wobble in the handling of the lorry. He examined the wheel nuts and discovered that on one wheel they were loose, just coming away from the wheel a couple of millimetres. (d) He drove into the lorry park and contacted his employer. In accordance with advice from his employer he removed the 10 wheel nuts to inspect each stud. He was able to remove them using only his fingers. He then lightly replaced the wheel nuts to avoid them becoming lost and waited for the arrival of ATS to undertake repair work or further assessment. (e) VOSPA inspector Mr Gary Ford arrived at the services to conduct general checks. The Respondent told Mr Ford that the wheel nuts were loose and that he was waiting for ATS. Mr Ford examined the wheel. He issued a prohibition notice."[4]On those findings of fact the justices were of the opinion that:
"The Respondent was a credible witness who had given honest evidence. We accepted that he had pulled over at the first sign of a problem. Once parked in a lorry bay he had removed the wheel nuts to examine the studs and then replaced the wheel nuts loosely to avoid misplacing them. He then waited for help to arrive. Mr Ford's evidence was based on the position of the wheel nuts as he found them, in the words of the information '10 of 10 wheel nuts were loose at nearside axle 4 with detachment imminent'. His opinion was that it would have taken 2-3 days for the wheel nuts to work loose to that position. He was not asked to give any evidence about whether the elongation of the studs and marks on the hub could have been caused by a shorter period of wear consistent with the Respondent's account."
[5]That is a reference to the fact that the gap between the outside of the hub of the wheel and the inner edge of the nut was elongated by up to three-quarters of an inch. The elongation was associated with the abrasion of the hub so as to leave the area around the edge of the wheel nut shiny. "He did not express a view on whether the elongation of the studs and marks on the hub involved a danger to people in or on the vehicle or road. The emphasis of the prosecution was on the looseness of the wheel nuts. We were not satisfied that the Respondent's use of the lorry involved a danger of injury to any person and accordingly dismissed the information."[6]The justices correctly referred to the drafting of the information, which referred to the condition of the vehicle in the following terms:
"... the road wheels were in such condition that danger was likely to be caused to persons in or on the said vehicle or road as 10 of 10 wheel nuts were loose at nearside axle 4 with detachment imminent."
[7]It is not clear from the facts found by the justices, or from the evidence which they record in the body of the case, whether that detachment was simply due to the fact, as the justices found, that the respondent had loosened the nuts himself and then reattached them loosely or was due to some mechanical cause produced by the movement of the wheel and the impact of the hub on the inner edge of the nuts.[8]Indeed, the wording of the information was unhelpful in that it appeared to focus attention upon the condition of the wheel and the wheel nuts when Mr Ford found them and not on the condition of the wheel and the nuts as the lorry was being driven along the road towards the service area. That may have been due to a misapprehension on the part of Mr Ford that the wheel nuts were in the condition in which he saw them as the lorry was being driven along the road; but, as the justices found, that was not in fact the case. Their finding on that is not challenged. Indeed, it is not open to challenge. The issue which arises on appeal is whether or not, on the facts found by the justices, the condition of the wheel was such as to involve a danger of injury to any person.[9]Section 40A of the Road Traffic Act 1988 provides relevantly:
"A person is guilty of an offence if he uses ... a motor vehicle ... on a road when -- (a) the condition of the motor vehicle ... is such that the use of the motor vehicle ... involves a danger of injury to any person."
[10]There is no doubt that the section creates an absolute offence in the sense that it is unnecessary for the prosecution to prove any state of mind on the part of the person using the motor vehicle in that condition. In Cornish v Ferry Masters Ltd [1975] RTR 292 Lord Widgery CJ stated the familiar principle in unqualified terms:
"I think that the general principle that these offences are absolute offences has to be applied here and I think that, in deciding whether the condition of the load is such that danger is or is likely to be caused, it must be determined according to the factual circumstances as they were, regardless of the knowledge of the defendant."
[11]Mr Aullybocus, who appeared for the respondent below and appears for him today, does not dispute that proposition. The question which the justices had to ask themselves therefore was simply: was the condition of the wheel as they found it to be, as it was being driven along the M5, such as to involve a danger of injury to any person? In their findings, they conflated that question in the final sentence to which I have referred:
"We were not satisfied that the Respondent's use of the lorry involved a danger of injury to any person."
[12]The question which they had to answer was whether the respondent used the lorry when its condition involved a danger of injury to any person.[13]Mr Nesbitt for the appellant, who did not appear in the court below, submits on instructions that unless wheel nuts are tightened with the torque recommended by the manufacturers, then that wheel, and so any vehicle to which it is attached, is in a condition which involves danger to any person. If that proposition is too extreme he submits that if the wheel nuts are so loose that they are capable of being turned and further loosened by the ordinary motion of the wheel, then the wheel, and so the vehicle to which it is attached, is in a condition in which it involves a danger to any person.[14]It is not necessary for me to decide whether either or both of those propositions is right. Whether or not the condition of a vehicle is such that it is a danger to any person is a question of fact: see DPP v Potts, a decision of Otton LJ and Astill LJ sitting in the Divisional Court 4th December 1988, page 4E.[15]It is an unfortunate feature of this case that the attention of the justices appears to have been distracted from the real question which they had to answer, to determine whether or not the evidence of Mr Ford or Mr Henderson was to be preferred as to how the wheel nuts had come to be in the condition in which Mr Ford saw them after the lorry had been stationary in the service area for some time. The justices, as I have indicated, resolved that question in favour of Mr Henderson. But it did not by itself answer the basic question which they had to determine.[16]For my part, on their findings of fact I can see no answer capable of being given by a rational body of justices other than that the wheel was, while being driven on the M5, in such a condition as to involve a danger to a person. On the evidence which the justices accepted, when the vehicle came to a halt very soon after Mr Henderson detected the wobble to which they referred, he was able to undo all 10 nuts with his fingers. The nuts were therefore not even finger-tight as the lorry was driven along the road.[17]Furthermore, the hub of the wheel had become sufficiently loose to vibrate and to cause Mr Henderson to realise that something was amiss. In his evidence he said he thought that his wheel had crossed a rumble strip. That indicates, on any view, a significant degree of vibration. For my part, I do not see how it could possibly be sensibly concluded that a wheel which caused that degree of vibration, of which all 10 nuts were not even finger-tight, could be described as anything other than a danger to a person.[18]The danger is twofold: first, to the handling of the lorry; and secondly, to other road users, should the wheel become detached. The statute does not require that the danger be imminent, merely that it exists. The wording is "involves a danger to any person". A wheel in the condition that I have described would at some stage become imminently dangerous to any person, be it the driver or any other road user. It was a danger before it became an imminent danger because its condition could deteriorate rapidly and unpredictably. The idea that drivers, whether of lorries or of motorcars, could happily drive their vehicles on public roads with one or more wheels loose in the condition that I have described, without that condition being described as a danger to any person, is unthinkable. On the findings of fact of the justices, the only rational conclusion which they could have reached was that the offence had been committed.[19]I therefore quash the decision of the justices by which they acquitted Mr Henderson. I have, however, a discretion whether or not to remit the case to them with a direction to proceed. I decline to exercise that discretion. On the facts found by the justices Mr Henderson was blameless in this matter. It would be unjust to him to impose upon him any financial penalty or to endorse his licence, let alone to disqualify him. No good purpose would therefore be served by my remitting the case to the justices with a direction to convict but the recommendation that they impose an absolute discharge. To do so would only incur unnecessary further expense. Consequently, although I quash their decision I take no further action upon it.[20]MR NESBITT: My Lord, thank you. There remains the matter of costs and, my Lord, I had not appreciated until shortly before coming into the courtroom that the respondent is legally aided in this case. I confess I ordinarily practise in civil matters. I am not clear as to what the usual order is. I would ask for a costs order out of the public funds.[21]MR JUSTICE MITTING: That is quite out of the question. You cannot as a prosecutor get costs out of another public pocket in circumstances where you have appealed. There is a representation order in favour of Mr Henderson. Unless you are able to put before me any authority which suggests I should do something else, I propose that there should be no order as to costs save a detailed assessment of Mr Henderson's publicly funded costs.[22]MR NESBITT: My Lord, would my Lord give me permission to come to my Lord if, after making a mobile telephone call outside, I am instructed, for some reason that is not apparent to me now, to ask for some other order?

MR JUSTICE MITTING: I fear there is no other order that I can sensibly make.

[24]MR NESBITT: I suspect my Lord is right, but I do not want my own ignorance ...[25]MR JUSTICE MITTING: There is no purpose in your being given permission by me to come back on the matter. There simply is not any other avenue. Thank you both.[26]MR AULLYBOCUS: Thank you, my Lord.