Coates v Crown Prosecution Service [2011] EWHC 2032 (Admin)

[2011] EWHC 2032 (Admin)Case No CO/1981/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue (SITTING AT LEEDS), Leeds Combined Court
1 Oxford Row
Venue Leeds LS1 3BGDate 29 July 2011
Before
LORD JUSTICE MUNBYMR JUSTICE LANGSTAFF
Between
PHILLIP COATESAppellantCROWN PROSECUTION SERVICERespondent
Mr Jeremy Barnett (instructed by Lumb and MacGill) for AppellantMr Ben Lloyd (instructed by the Crown Prosecution Service) for RespondentHearing Hearing date: 22 July 2011
Judgment
[1]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.[2]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.[3]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.[4]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?”
[5]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. It may be noted, although the District Judge does not say so, that this is a paraphrase of the key passage in the judgment of Glidewell LJ in Chief Constable of Avon and Somerset Constabulary v F (A Juvenile) [1987] RTR 378: see below. 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”.[6]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.[7]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.[8]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.[9]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.[10]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.[11]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 12½ 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.[12]I turn to the law.[13]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 …”
[14]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”).[15]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 …”
The expression “the Highway Acts” is not defined either in the 1888 Act or, so far as I am aware, anywhere else. It plainly embraces the 1835 Act. Despite what Hawkins J said in R v Parker (1895) 59 JP 793, I very much doubt that it extends to the 1861 Act.

(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 that: “In this Act … “motor vehicle” means, subject to section 20 of the Chronically Sick and Disabled Persons Act 1970 (which makes special provision about invalid carriages, within the meaning of that Act), a mechanically propelled vehicle intended or adapted for use on roads”.[16]It is clear that section 72 of the 1835 Act identifies three different ways in which an offence can be committed (I focus on the words which are material for present purposes): i) The first is if any person shall wilfully “ride upon any footpath”. ii) The second is if any person shall wilfully “lead or drive any … carriage of any description, or any truck or sledge, upon any such footpath”. iii) The third is if any person shall “shall tether any horse, ass, mule, swine, or cattle on any highway, so as to suffer or permit the tethered animal to be thereon”. Plainly, there can be no question of any offence having been committed by the appellant under the third of these. So the focus must be on the first and second limbs.[17]It is to be noted that the offence under the first limb is stated to be simply riding. The reference to “carriage” is part of the offence under the second limb. As both the structure and the punctuation of section 72 make clear, it is not, at least explicitly, part of the offence under the first. I emphasise this point because an ambiguity in the formulation of the charge against the appellant seems subsequently to have affected the way in which the parties framed the issue for determination by the District Judge. The information, as we have seen, alleged that the appellant “wilfully rode a motor vehicle, namely SEGWAY upon a footpath”. I read this as charging an offence under the first limb, with the consequence that the words “a motor vehicle, namely SEGWAY” were unnecessary surplusage. Moreover, the reference to “a motor vehicle” rather than to the statutory expression “carriage” was apt to divert attention away from the true question.[18]With all respect to those who may have chosen to formulate the issue in the present case in some other way, the ultimate question for the court in a case such as this, depending upon whether the offence is charged under the first or second limb, is whether, within the meaning of section 72, the defendant(i) was riding and/or(ii) was leading or driving a carriage, not whether he was riding or driving a motor vehicle. As the statutory provisions to which I have referred demonstrate, a motor vehicle is a carriage for this purpose, but it does not follow from this that the carriage must be a motor vehicle. Indeed, as the authorities that I must shortly come to demonstrate, something which is not a motor vehicle can nonetheless be a carriage for this purpose.[19]In the present case the appellant was charged with “riding.” There was, therefore, no need for the District Judge to consider whether what he was alleged to have been riding was a motor vehicle. As Mr Lloyd correctly submits, the only question the District Judge had to consider was whether, within the meaning of section 72, the appellant was “riding” his SEGWAY upon the pavement.[20]Before turning to the issue addressed by the District Judge I propose therefore to consider two logically prior questions: first, was the appellant “riding” and/or “driving” the SEGWAY when observed using it to move along the pavement; second, and quite apart from that question, is a SEGWAY a “carriage” within the meaning of section 72? In my judgment the answer to both questions is yes.[21]The meaning of “ride” in this context was considered in Selby (Justin) v Director of Public Prosecutions [1994] RTR 157. In that case the defendant was sitting astride a motor bike, propelling it on a pavement with his feet; although the engine was running the machine, according to the defendant, was not in gear. The Divisional Court held that the justices were correct to have found that the defendant, even on his version of the facts, was riding within the meaning of section 72. The justices had been referred to the definition of ‘ride’ taken from the Concise Oxford Dictionary as set out in Wilkinson’s Road Traffic Offences (ed 12) page 38 – see now, to the same effect, (ed 24) para 1.116 – namely “sit on and be carried by” including “sit or go or be on something as on a horse especially astride”.[22]Rejecting counsel’s argument that the defendant had not been riding, Henry J said:
“The difficulty that faces him in making such a submission is that it clearly would be riding a bicycle and it would be a curious state of affairs if something that amounted to riding in the case of a bicycle was not riding in the case of a motor cycle simply because the motor cycle is power-assisted in a way that a bicycle is not. It seems to me that this was riding and the justices were quite right to find that as such.”
Taylor LJ said:
“the justices’ view as to what amounted to riding was correct. In my judgment, riding is being carried out if a person is being carried on a motor cycle as it moves on its wheels, whether propelled by the engine, by his feet or by gravity.”
[23]Mr Barnett submits that to ride within the meaning of section 72 is to ride a horse, remembering, as he puts it, that in 1835 transport was by horse (a questionable proposition given that the Liverpool and Manchester Railway had opened in 1829 using steam locomotives and that Trevithick’s steam road vehicle had taken to the road as early as 1801). Be that as it may, Mr Barnett’s submission plainly cannot stand with the decision in Selby, which demonstrates that riding for the purposes of section 72 is not confined to riding a horse. To be carried along on a wheeled contraption or machine, whether powered or not, can be, within the meaning of section 72, to ride.[24]To ride something carries the connotation of being on or in the thing being ridden. You ride a horse if you are on its back, just as you ride if you are on a motor cycle or in a motor car. You do not ride a horse if you are walking beside it guiding it by a leading rein. In that situation you are “leading” it, just as you are not riding a cow but “driving” it if you are prodding it with a stick from behind to persuade it to move forward (as in the drover driving his cow to market). On the other hand, you do not have to be seated to be riding. The jockey of the Derby winner is riding the horse as he crosses the winning line even if he is not sitting in the saddle but crouching with his whole weight on the stirrups. So too the cyclist who does not use the saddle but puts his weight on the pedals. And the driver of a steam locomotive, just like the driver of an ancient chariot, is riding on the footplate even if he stands throughout the entire journey.[25]So far so good, but some puzzling questions remain. The first is whether, even if only implicitly, the language of section 72 means that one can be said to ride something within the meaning of the first limb only if the ‘thing’ is within the class referred to in the second limb. In the present context, that would mean that to ride a SEGWAY on the pavement would be an offence only if a SEGWAY is a “carriage … truck or sledge” within the meaning of the second limb. On the one hand it can be said that the grammar and language of section 72 are clear. If Parliament had intended the first limb to be qualified by the words which appear in the second limb, section 72 would have been structured differently. As against that, can it really be said that it is enough that one is moving along on wheels, so that one is riding, and therefore committing an offence, if moving along, for example, on roller skates, a skateboard, a child’s non-motorised scooter, or in a manually operated wheelchair. Moreover, as Langstaff J pointed out during the course of argument, section 72 is, on one reading, dealing comprehensively with the four ways in which in principle the footpath can be obstructed or misused: if you are on something (the first limb), if you are in front of or behind something (the second limb) or if the thing is stationary (the third limb). And if that is how section 72 is to be read it is plausible to think that each limb applies only to those things referred to in the second limb (and, in slightly different terms, in the third limb).[26]This issue, it may be noted, is not determined by the decision in Selby, for the ‘thing’ in that case – a motor bike – was, on the authorities, a carriage within the meaning of the second limb. So the matter is res integra. There is, however, no need for us to resolve it, and I prefer not to, for the conclusion I have come to (see below) is that a SEGWAY is within the meaning of section 72 a carriage.[27]The other question is whether for this purpose one can be said to ride something if someone else is controlling or steering it. Or does the concept of riding something connote that the rider is in control? There are undoubtedly many instances where one can ride without being in control. The passenger on the pillion seat of a motor cycle is, in common parlance, riding it as it moves along. After all, one talks of “riding pillion” just as in the days of the Wild West, at least as portrayed by Hollywood, you “rode shotgun”. And the fireman of our steam locomotive is riding on the footplate even though it is the driver who is controlling it, just as Queen Boudicca was surely riding on her chariot even though her servant was driving it. On the other hand it does not follow that every passenger in a conveyance is necessarily riding it. Is the passenger in a bus or a railway carriage riding? Is the invalid being pushed along in a bath-chair or wheel-chair riding? Maybe; maybe not. But there is no need to explore these questions any further, for the appellant was controlling and steering the SEGWAY.[28]What is meant by the word “driving” in section 72? It has both the original meaning, as in “driving” cattle, and the more modern meaning, as in “driving” a carriage. So much is clear from section 72 itself. But what is also clear on authority is that a person riding a bicycle “drives” it within the meaning of section 72.[29]In Taylor v Goodwin (1879) 4 QBD 228 the question was whether a bicycle was a “carriage” within the meaning of section 78. The Divisional Court (Mellor and Lush JJ) held that it was and that the appellant had been properly convicted by the justices. The opposing arguments of counsel are interesting. For the appellant it was argued that:
“A bicycle is not a “carriage” within the meaning of the Act, nor can it be said to be “driven” in the ordinary sense of the term. Bicycles were unknown when the Act was passed. The Act refers to carriages drawn by horses or other animals … A person is never said to “drive” a bicycle. The fact that a bicycle has wheels does not make it a carriage. A bath-chair or a wheelbarrow would not be a carriage within the Act. It would be far too wide a construction to hold that every apparatus by which a man is carried is a “carriage.”
Wheeled skates would be a carriage under such a construction …” The respondent’s argument was simple:
“The person propelling the bicycle “drives” it. He guides the machine and regulates its pace. Such a machine is clearly within the mischief of the Act.”
[30]Mellor J said:
“The expressions used are as wide as possible. It may be that bicycles were unknown at the time when the Act passed, but the legislature clearly desired to prohibit the use of any sort of carriage in a manner dangerous to the life or limb of any passenger. The question is, whether a bicycle is a carriage within the meaning of the Act. I think the word “carriage” is large enough to include a machine such as a bicycle which carries the person who gets upon it, and I think that such person may be said to “drive” it. He guides as well as propels it, and may be said to drive it as an engine driver is said to drive an engine. The furious driving of a bicycle is clearly within the mischief of the section, and seems to me to be within the meaning of the words, giving them a reasonable construction.”
Lush J said much the same.[31]So “drive” for the purposes of section 72 has quite a wide meaning. The “driver” may be in or on the thing being driven but need not be, as the example of the drover shows. One drives a motor cycle by sitting on it, just as one drives a car by sitting in it, but the coachman of a stage coach, like the Victorian cabbie on his Hansom, is driving the horses although seated on the coach rather than the horses. (The postilion, in contrast, is riding the horse.) Again, as the examples of the drover and the engine driver show, one need not be seated to drive.[32]A final point. As these examples also show, the same activity may involve both riding and driving. The motor cyclist, like the ancient charioteer and the engine driver, is, within the meaning of section 72, both riding and driving his machine as it travels along.[33]I should add that I agree with the point made in Blackstone’s Criminal Practice (ed 2011) para C3.44 that:
“The definition of ‘driving’ in this context is generally thought to be the older definition, which would include bicycles and even box carts, although such ‘vehicles’ or ‘carriages’ would often be propelled manually or by means of pedals and could rarely be said to be ‘driven’ in the modern sense of that term.”
The context there is section 35 of the 1861 Act but the same applies, as we have seen, to sections 72 and 78 of the 1835 Act. As Mellor J held, the rider of a bicycle can be said to “drive” it within the meaning of section 78.[34]In the light of these principles, was the appellant “riding” his SEGWAY upon the pavement? Mr Lloyd says simply that if, as the authorities show, it is possible to “ride” a bicycle or a motor bicycle on the pavement then in the same way it is possible to ride a SEGWAY on the pavement, and that, he says, is plainly and obviously what the appellant was doing. I agree. The only material difference between a SEGWAY and a bicycle (whether motorised or not) is that the passenger stands on the one while sitting on the others. But this, for the reasons I have given, cannot be determinative.[35]The appellant, in my judgment, was on 12 February 2010 “riding” his SEGWAY upon the pavement in the sense in which that word is used in section 72. Subject only to the question of whether his SEGWAY was a carriage (assuming, without deciding, that this is a necessary ingredient of the offence under the first limb of section 72), he was, accordingly, guilty of the offence charged.[36]Was the appellant “driving” his SEGWAY?[37]Given that the appellant was charged with the offence of “riding”, this question does not in fact arise. But as the foregoing discussion would indicate, and as Taylor v Goodwin demonstrates, it is clear that the appellant was driving his SEGWAY as it moved along the pavement: he was, to use Mellor J’s phrase, guiding it. If the rider of a bicycle drives it, then so too does the person on a SEGWAY.[38]Is a SEGWAY a “carriage”?[39]I can start with Taylor v Goodwin (1879) 4 QBD 228 where, as we have seen, the Divisional Court held that a bicycle is a “carriage” within the meaning of section 78. So too, therefore, within the meaning of section 72.[40]Taylor v Goodwin was followed in R v Parker (1895) 59 JP 793, where Hawkins J held that a bicycle was a “carriage or vehicle” within the meaning of section 35 of the 1861 Act.[41]In Corkery v Carpenter [1951] 1 KB 102 the question was whether a bicycle is a “carriage” within the meaning of section 12 of the Licensing Act 1872, which makes it an offence to be “drunk while in charge on any highway … of any carriage, horse, cattle, or steam engine”. The Divisional Court held that it is. Lord Goddard CJ, with whom both Hilbery and Byrne JJ agreed, treated Taylor v Goodwin as determinative:
“for this purpose there cannot be any distinction between a section in a highway statute passed for the protection of the public and a section in a licensing statute passed for the same purpose, both of them concerning the conduct of a person on the highway and the preservation of public order.”
He put the point pithily:
“a bicycle is a carriage … It is a carriage in my opinion because it carries.”
He quoted with approval what Bigham J had said in Cannan v Earl of Abingdon [1900] 2 QB 66.[42]Cannan v Earl of Abingdon was one of a group of toll cases, the other three being Williams v Ellis (1880) 5 QBD 175, Simpson v Teignmouth and Shaldon Bridge Company [1903] 1 KB 405 and Smith v Kynnersley [1903] 1 KB 788. In each case the question was whether a bicycle (and in one case a tricycle) was a “carriage” within the meaning of a turnpike or bridge Act authorising the levying of a toll. In Cannan v Earl of Abingdon it was held on the language of the particular statute that a bicycle or tricycle was a “carriage”; in the other three cases it was held that it was not.[43]These cases all turned on the particular language of the relevant statute, so there is no purpose in detailed analysis. I should however refer to Cannan v Earl of Abingdon, a case involving the well-known toll-bridge over the River Thames at Swinford. Finding for the owner of the bridge, Bigham J said this:
“The framers of the Act no doubt did not contemplate anything in the nature of a bicycle or a tricycle, but the language of the Act does, I think, cover things such as bicycles and tricycles, which have come into existence since the Act was passed. The bicycle or tricycle is a thing which carries. It may carry a man, as a horse does, or a carriage does; it may carry luggage or goods as we know that tradesmen's tricycles do. It is, therefore, in my opinion, a carriage, and, being a carriage, it is made by the terms of the Act of Parliament liable to pay the toll.”
[44]Phillimore J was of the same view:
“I think that a bicycle or a tricycle is a vehicle or is a carriage. Any mechanical contrivance, which carries people or weights over the ground, carrying the weights or taking the people off their own feet, so that the foot of man and the body and trunk of man do not support his own weight or the weight of the burden carried, is, I think, a carriage, and I do not think it matters that the man who is carried gives his own propulsion to the carriage. If he got the propulsion by the application of levers worked with his hands, as one sees men doing in the streets, the case would be tolerably clear, and I think it makes no difference that he gets his propulsion by pedalling with his feet – an operation which is perfectly different from the operations of walking, running, or skating, in all of which he bears his own weight at the same time that he moves himself. I therefore come to the conclusion that a bicycle or tricycle is a “carriage”.”
[45]Bigham J’s approach is unexceptionable, and indeed, as we have seen, was applied by Lord Goddard CJ in Corkery v Carpenter, but Phillimore J’s approach, which has not passed without criticism, is on any basis problematic. For on his view a vehicle such as a chariot, where of course the charioteer stands, would not be a carriage. Nor, it might be added, would a railway carriage where, as on the London Underground during the rush-hour, a majority of the passengers stand.[46]Simpson v Teignmouth and Shaldon Bridge Company [1903] 1 KB 405, where a bicycle was held not to be a carriage within the relevant statute, was a decision of a very strong Court of Appeal (The Earl of Halsbury LC, Lord Alverstone CJ and Sir Francis Jeune P). The Lord Chancellor was critical of Phillimore J’s judgment in Cannan v Earl of Abingdon:
“I confess I am not satisfied with the judgment of Phillimore J. in Cannan v Earl of Abingdon, because I think it proceeded upon a wrong principle of construction. I do not think you can analyze scientifically the different functions and objects of each part of the machinery of what is alleged to be a carriage, and say, “This carries somebody, and this does not carry somebody, and this is propelled by machinery and the other by human agency, and in this case the man’s feet reach the ground, and in another case the man’s feet are off the ground.”
I think that to do so is to proceed upon a wrong principle of construction in regard to such an Act as we have now to consider. The broad principle of construction put shortly must be this: What would, in an ordinary sense, be considered to be a carriage (by whatever specific name it might be called) in the contemplation of the Legislature at the time the Act was passed? If the thing so sought to be brought within the Act would substantially correspond to what the Legislature meant by a carriage (called by whatever name you please), I think that the tax would apply; but if not, it is not for the Court to make an effort by ingenious subtleties to bring within the grasp of the tax something which was not intended in substance by the Legislature at that time to be the subject of taxation.”[47]In my judgment there is no warrant for Phillimore J’s assumption that a carriage is, of its nature, something that takes the weight off a person’s feet. It may be of the essence of a carriage that it avoids the need for locomotion – the need to walk along on one’s own feet – but that is a different issue. A machine, a vehicle or conveyance, which carries you along in a way which obviates the need for walking, can be a carriage even if you have to stand in it because it has no seats.[48]But is any wheeled contrivance a “carriage” for the purpose of section 72? And what is meant by the words “truck or sledge” in section 72? These are difficult questions on which it would be unwise to express any concluded views. If a bicycle or tricycle (whether motorised or not) is a carriage, then so too, it might be thought, are such things as a quad bike, a golf buggy, a sit-on lawnmower, a motorised wheelchair or an invalid’s motorised mobility scooter. But what about such things as a non-motorised bath-chair or wheelchair, a child’s perambulator, pushchair or buggy, a child’s scooter or horse on wheels, a skateboard, roller skates, or a wheelbarrow or handcart? And would it make any difference if, for example, the buggy was big enough to carry three children? I pose the questions in terms of general principle. Section 20(1)(a) of the Chronically Sick and Disabled Persons Act 1970 has the effect of exempting from section 72 an invalid carriage as defined by section 20(2), that is, “a vehicle, whether mechanically propelled or not, constructed or adapted for use for the carriage of one person, being a person suffering from some physical defect or disability”, so long as it complies with and is being used in accordance with regulations made by the Minister of Transport.[49]As we have seen, questions such as this were raised by counsel during the course of argument in Taylor v Goodwin. Very similar questions had been canvassed previously in R v Mathias (1861) 2 F&F 570, a trial at Assizes on an indictment for an assault where the question was whether the use of a child’s perambulator on a footpath amounted to a public nuisance or, if it did not, something that the owner of the soil was nonetheless entitled to prevent. Relying on section 72 of the 1835 Act, counsel for the defendant argued that it did:
“If a perambulator be admitted on a footway, where is the line to be drawn, as to what carriages shall be excluded from it – could butchers’ and bakers’ handcarts be excluded? … The perambulator, in this case, was a small one adapted for one child. But supposing a large one capable of holding several, would that be excluded, if this were admitted? Is the time of the Courts to be occupied by discussions as to the precise limits of size and weight, at which these vehicles may, or may not, be used.”
Counsel for the prosecutor argued that it did not:
“A perambulator is not a carriage in the ordinary sense of the word. It is used by a pedestrian, and may be taken up and carried, as it was here on the occasion of the assault. Such a vehicle may be reasonably used on a footway. As well might the defendant object to a child wheeling its toy cart along the footway It is admitted that vehicle of this description are in common use throughout the country. There is no sufficient reason for excluding their use on a footway dedicated to the public.”
[50]Directing the jury, Byles J said:
“There are what are called go-carts, consisting of three sticks, with very small wheels, the child’s feet touching the ground, and propelling itself, or being propelled. Would this be a proper use of a footway? Or take the cases already put, of a toy-carriage, or horse on wheels. A man might probably carry another along a footway, but a woman might certainly carry a child. And, if so, may she not put it in a go-cart or perambulator? My direction to you is, that the owner of the soil may remove anything that encumbers his close, except such things as are usual accompaniments of a large class of foot passengers, being so small and light, as neither to be a nuisance to other passengers or injurious to the soil.”
[51]Now section 72 was not directly in issue in that case, but two observations are perhaps in order. In the first place, section 72 had been referred to by counsel, and it is hardly to be imagined that the judge would have directed the jury as he did if the acts in question were, or might be, criminal by virtue of that provision. More generally, what was in issue in that case was the law of nuisance and, as Langstaff J pointed out during the course of argument, the heading to section 72 itself indicates that what the section is concerned with is certain forms of nuisance. So it may be that Byles J’s direction throws some, albeit indirect, light on the meaning of the word “carriage” in section 72, just as it may be that it suggests a plausible basis for excluding some wheeled contraptions from its ambit. Mr Barnett in fact suggested that it shows that a perambulator is not a carriage within the meaning of section 72.[52]There is no need to take these speculations any further, for the answers to these questions, which have been agitating the courts now for some 150 years, are best left for determination when the need arises.[53]For present purposes I am prepared to assume, though I emphasise without deciding, that some, indeed possibly even many, of the wheeled devices which I have referred to are not carriages within the meaning of section 72. But that, in my judgment, does not assist the appellant. If a bicycle or tricycle is a carriage for the purposes of section 72 – and it is – then so too in my judgment, and by parity of reasoning, is a SEGWAY. There are two separate routes to that conclusion. The first is by a simple application of the decision and reasoning in Taylor v Goodwin. The other is by the application of section 85(1) of the 1888 Act. In my judgment a SEGWAY is a “similar machine” within the meaning of the phrase “Bicycles, tricycles, velocipedes, and other similar machines”, and is therefore a carriage within the meaning of section 72.[54]The fact that Parliament in 1835 could not have had the SEGWAY in mind is true but irrelevant. Mellor J rejected a similar argument in Taylor v Goodwin, as did Bigham J in Cannan v Earl of Abingdon. They were right to do so, for the 1835 Act is an ‘always speaking’ statute: see Lord Steyn in R v Ireland [1998] AC 147, 158-159, and Lord Hoffmann in Birmingham City Council v Oakley [2001] 1 AC 617, 631. As Lord Hoffmann said in the latter case, “the concept of a vehicle has the same meaning today as it did in 1800, even though it includes methods of conveyance which would not have been imagined by a legislator of those days.”[55]Accordingly, in my judgment, the appellant’s SEGWAY was a “carriage” within the meaning of section 72 of the 1835 Act.[56]Our attention has been drawn to certain guidance published by the Department of Transport to the effect that to ride a self-balancing scooter on the public footway (pavement) is an offence under section 72. Mr Lloyd also referred us to what the Minster of State, Department for Transport, Lord Adonis, had said on the subject during a debate in the House of Lords on 14 May 2009. Hansard, House of Lords, 14 May 2009, GC Cols 491-494. This material although interesting, and in fact correct, does not assist us. A ministerial assertion as to the meaning of a statute passed 174 years earlier is not authority on the meaning of the statutory language, any more than is Departmental guidance unless, as sometimes happens, it is given some particular statutory status. Ministerial statements on public platforms or even in Parliament do not have the force of law. The law is made by Parliament. Ministers can make law only if authorised by Parliament to do so. The law is declared by the judges. Statements by ministers as to what the law is are no more determinative of the citizen's rights than similar statements by anyone else. With the greatest of respect to Lord Adonis, his statement of what he believes the law to be does not assist us. It is either correct or incorrect. If it is correct it adds nothing; if it is incorrect it is for present purposes irrelevant.[57]It follows that the appellant was, as charged, guilty of riding his SEGWAY on the pavement in breach of section 72 and was therefore properly convicted.[58]Mr Barnett complains that the appellant was not charged with riding a carriage but with riding a motor vehicle, and that it is too late for the Crown to be seeking to amend the information. He referred us in this connection to Allan v Wiseman [1975] RTR 217. Mr Lloyd does not in fact seek to amend and submits that there is no need to; following the language of the statute the offence is “riding” and the unnecessary words “a motor vehicle, namely SEGWAY” are mere surplusage which can, if need be, he says, simply be red-pencilled. I agree with Mr Lloyd.[59]But in case I am wrong on this, and in deference to the way in which the case was presented and argued before the District Judge, I turn to consider the final question. Was the SEGWAY also a “motor vehicle” within the meaning of section 185(1) of the 1988 Act? In my judgment it was, and the District Judge was right so to hold, correctly applying, as he did, the principles to be found, in particular, in Burns v Currell [1963] 2 QB 433.[60]Mr Barnett sought to persuade us that the decision in Burns v Currell was both obiter and wrong, so that it was not binding on us: see R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2000] EWCA Civ 344, [2001] QB 955. The point, he said, had not been argued and the decision had been reached, he asserted, without consideration of what he called the line of construction and use regulation cases, of which he took us to Taylor v Mead [1961] 1 WLR 435 and Flower Freight Co Ltd v Hammond [1963] 1 QB 275. He referred us also to MacDonald v Carmichael 1941 JC 27 (a decision of the High Court of Justiciary in Scotland) and to Daley v Hargreaves [1961] 1 WLR 487. He said that the test laid down by Lord Parker CJ in Burns v Currell was a new test that had no foundation in law and bore no relationship to the words of the statute. Even though it was approved in Chief Constable of Avon and Somerset Constabulary v F (A Juvenile) [1987] RTR 378, it had not in fact, he said, been followed or applied in that case.[61]In my judgment it is far too late in the day for points of this kind to be taken. Whatever Mr Barnett may say, Burns v Currell, a case which involved a Go-Kart, has been consistently followed and applied by the Divisional Court: see O’Brien v Anderton [1979] RTR 388, a case involving an Italjet, For a description of this machine see Lord Widgery’s judgment at page 392. Chief Constable of Avon and Somerset Constabulary v F (A Juvenile) [1987] RTR 378, a case involving a stripped down scrambling motor bicycle, Director of Public Prosecutions v Saddington [2000] EWHC Admin 409, [2001] RTR 227, a case involving a Go-ped, For a description of this machine see paras [7]-[9] of Pill LJ’s judgment. It seems to have been somewhat similar to, if less sophisticated than, a SEGWAY. and Director of Public Prosecutions v King [2008] EWHC 447 (Admin), a case involving a City Mantis. For a description of this machine see para [3]of Walker J’s judgment. Moreover, and quite apart from the compelling demands of precedent, Mr Barnett has wholly failed to persuade me that there is any basis for his challenge to the correctness of the law as laid down in Burns v Currell and the subsequent cases.[62]I should add that one of the authorities relied upon by Mr Barnett in support of his attack on Burns v Currell – Flower Freight Co Ltd v Hammond – had in fact, as the report shows, been cited during the course of argument in Burns v Currell. And, as the report also shows, the crucial question of what is meant by the word “intended” in section 185(1) of the 1988 Act, and the related question of whose intent is relevant, had, as one might expect, also been the subject of submissions by counsel. So this is simply not, in my judgment, the type of case to which the principle in Kadhim applies.[63]I have already set out the key passage from the judgment of Lord Parker CJ, with whom both Ashworth and Winn JJ agreed, in Burns v Currell. There is a further passage which in the light of some of Mr Barnett’s submissions I need to refer to. Earlier in his judgment Lord Parker CJ had said:
“I think that the expression “intended” … does not mean “intended by the user of the vehicle either at the moment of the “alleged offence or for the future.”
I do not think it means the intention of the manufacturer or the wholesaler or the retailer”. Following the key passage he continued:
“Approaching the matter in that way, at the end of the case the justices would have to ask themselves: has it been proved beyond a reasonable doubt that any reasonable person looking at the Go-Kart would say that one of its users would be a use on the road?”
[64]In O’Brien v Anderton [1979] RTR 388, Lord Widgery CJ, with whom Bridge LJ and Caulfield J agreed, quoted what Lord Parker CJ had said in Burns v Currell as being the most suitable authority to decide the point.[65]In Chief Constable of Avon and Somerset Constabulary v F (A Juvenile) [1987] RTR 378, Glidewell LJ, with whom Otton J agreed, quoted what Lord Parker CJ had said. He continued:
“I emphasise that that test is what would be the view of the reasonable man as to the general user of this particular vehicle; not what was the particular user to which this particular defendant put it, either at the time in question, or indeed, generally. In other words, if a reasonable man were to say: “Yes, this vehicle might well be used on the road”, then applying the test, the vehicle is intended or adapted for such use. If that be the case, it is nothing to the point if the individual defendant says: “I normally use it for scrambling and I am only pushing it along the road on this occasion because I have no other means of getting it home”, or something of that sort.”
[66]In Director of Public Prosecutions v Saddington [2000] EWHC Admin 409, [2001] RTR 227, Pill LJ set out the passages from Lord Parker CJ’s judgment in Burns v Currell and Glidewell LJ’s judgment in F which I have already quoted. He observed:
“The Burns test, which has been applied for approaching 40 years, should not readily be departed from.”
It is now, of course, the best part of 50 years. Moreover, as Mr Lloyd points out, during that period the Road Traffic Act has been re-enacted more than once, but Parliament has never thought it necessary to alter the relevant statutory wording.[67]Pill LJ continued:
“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. The test is not whether a reasonable person would use a Go-ped on a road, which in ordinary circumstances he probably would not because of the dangers involved. The test is whether a reasonable person would say that one of its uses would be use on the roads. That person must consider whether some general use on the roads would be contemplated and not merely isolated use or use by a man losing his senses. The design and capabilities of the Go-ped and the possibilities it offers will be considered and considered in the context of an assessment of peoples’ wish to get quickly through traffic and the pressure of time upon many people. In my judgment the conclusion must be that general use on the roads is to be contemplated. The distributors’ advice not to use the Go-ped on the roads will in practice be ignored to a considerable extent. Surrender to the temptation to use it on the roads will not be an isolated occurrence even though the vehicle may not be roadworthy in the sense used by the justices.”
Bell J agreed.[68]In Director of Public Prosecutions v King [2008] EWHC 447 (Admin), Walker J, with whom Maurice Kay LJ agreed, went through the passages in the authorities which I have quoted and drew particular attention to the objective test set out by Glidewell LJ in F.[69]I do not propose to add to the jurisprudence or to try and set out in my own words what has been said so clearly by others. In my judgment, the law which the District Judge had to apply on this aspect of the case was to be found in these five authorities. He correctly understood the law and applied it properly. And he arrived at a conclusion – namely that the SEGWAY was, within the meaning of section 185(1) of the 1988 Act, “intended or adapted for use on roads” – which was plainly open to him on the totality of the evidence. Indeed, I go further. Had the District Judge found for the appellant on this issue an appeal by the prosecutor would almost certainly have succeeded (as, it may be noted, happened in both Saddington and King). In my judgment, a SEGWAY falls within the definition of a motor vehicle in section 185(1). As such it is, by virtue of section 191(a) of the 1988 Act, a carriage for the purposes of section 72 of the 1835 Act. So the answer to the third question posed for our consideration by the District Judge is No.[70]It follows that in my judgment the appellant was properly convicted. He was riding his SEGWAY on the pavement in the sense in which that word is used in section 72. If it was necessary for the prosecution also to prove that what he was riding was a carriage within the meaning of section 72, then they discharged that burden: a SEGWAY is in my judgment a carriage for the reasons explained in Taylor v Goodwin in 1879; it is, moreover, within the deeming provision in section 85(1) of the 1888 Act; and, being a motor vehicle within the meaning of section 185(1) of the 1988 Act, it is also within the deeming provision in section 191(a) of the latter Act.[71]I add two final points. Mr Barnett sought to rely upon the manufacturer’s literature in support his contention that the SEGWAY is not intended for use on roads. For the reasons explained by Lord Parker CJ in Burns v Currell, by Glidewell LJ in F and by Pill LJ in Saddington, this material cannot be determinative. The test, as Mr Lloyd correctly emphasises, is objective; the expectations, advice and intentions of the manufacturer do not provide the answer. The District Judge, in my judgment, approached this aspect of the case correctly, properly applying the relevant statutory provisions and case-law. So the answer to the second question posed for our consideration by the District Judge is No.[72]The final matter relates to the complaint that the District Judge wrongly declined to consider whether the SEGWAY is approved for use on the pavement in other European jurisdictions. This, with all respect to the appellant, is a hopeless contention. The District Judge was not engaged upon some exercise in comparative jurisprudence. He was concerned and concerned only with the correct construction and application of English statute law As Mr Lloyd correctly put it, the question of whether the SEGWAY is approved for use on the pavement in other European jurisdictions does not affect the application of section 72 of the 1835 Act. And there is, as he pointed out, no provision of either European or domestic law requiring the regulation of SEGWAY use to have been harmonised throughout the EU. So the answer to the first question posed for our consideration by the District Judge is also No.[73]I turn to deal briefly with the additional points sought to be raised by Mr Barnett. It is not open to him to take these points, for they were neither argued before the District Judge nor included in the Case; indeed, the appellant did not even seek to include them in the Case.[74]The first is the contention that the CPS should have exercised its discretion not to prosecute and that the case should be stayed as an abuse of process. Unsurprisingly and appropriately Mr Lloyd referred us to the pointed and highly relevant observations of Lord Bingham of Cornhill CJ in Environment Agency v Stanford [1998] Env LR 297 (“that is not an issue for the court. The question whether or not to prosecute is for the prosecutor … The circumstances in which [the court] can intervene to stop the prosecution … are very limited indeed”) See more recently to the same effect Lord Bingham of Cornhill in R (Corner House Research and another) v Director of the Serious Fraud Office (JUSTICE intervening) [2008] UKHL 60, [2009] 1 AC 756, para [30]. and of Lord Steyn in R v Director of Public Prosecutions ex p Kebiline [2000] 2 AC 326, 371 (absent “dishonesty or mala fides or an exceptional circumstance” a decision to prosecute is not amenable to judicial review).[75]Mr Lloyd submits that Mr Barnett’s complaint is misconceived. I agree. The matters relied upon by Mr Barnett fall far short of anything that could possibly justify intervention, whether by the Magistrates’ Court or by the Administrative Court.[76]The second matter Mr Barnett wishes to raise is the contention 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. Again it is simply not open to Mr Barnet to take this point, which was neither canvassed before the District Judge nor included in the Case.[77]Mr Barnett founds his complaint on Article 28 (now Article 34) of the Treaty (“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”). He relies upon the decision of the ECJ in Åklagaren v Percy Mickelsson and Joakim Roos (2009) ECR 1-04273 and invites our attention to the later decision of the ECJ in Re Motorcycle Trailers: Commission of the European Communities v Italy [2009] 2 CMLR 876. The latter case in particular is instructive. So far as material for present purposes it related to trailers specially designed to be towed by motorcycles. Their use together on the roads was prohibited by the Italian Highway Code. In circumstances where any other use would be very limited and indeed insignificant if not hypothetical (judgment paras [54]-[55]), the ECJ held (paras [56]-[58]) that the Italian ban constituted a restriction within the meaning of Article 28, unless it could be justified objectively. The ECJ went on to hold (paras [59]-[69]) that, having regard to the margin of appreciation allowed to Member States, the ban could be justified by the need to ensure road safety.[78]As Mr Lloyd points out, nothing in English law prevents the use of SEGWAYS on private land. And as Langstaff J pointed out during the course of argument, at most all that section 72 of the 1835 Act does is to prevent the use of SEGWAYS on the pavement; the prohibition of their use on public roads arises under other statutory provisions with which we are not concerned. So, Mr Lloyd submitted, a proper application of the principles in Re Motorcycle Trailers, leads to the conclusion that, in contrast to the Italian ban, the prohibition in section 72 does not fall within Article 34. He took us to Chalmers, Davies and Monti, European Union Law: Cases and Materials (ed 2, 2010), pages 750-751, where the distinction is drawn between mere restrictions on use, which do not fall within Article 34, and provisions which in practice amount to an effective ban, even if not in form an outright prohibition, which do. Here, he says, we are concerned with a restriction not an effective ban. In any event, he says, even if Article 34 is engaged the prohibition can plainly be justified just as it was in Re Motorcycle Trailers.[79]Since, as I have said, it is not open to Mr Barnett to take this point, there is no need for us to come to any concluded view, and it is probably better that we do not. All I need say is that I am find his arguments entirely unpersuasive. The authorities we were referred to do not seem to me to provide him with any support; on the contrary they would seem to provide powerful support for Mr Lloyd.[80]Finally, Mr Barnett seeks to argue that the appellant’s sentence was excessive. This complaint is hopelessly misconceived. Not merely is it not included in the Case. It is not said that the District Judge made any error of law and it is elementary that, absent some error of law, any challenge to a sentence imposed by a Magistrates’ Court lies not to the High Court but to the Crown Court. I propose to say no more about it.[81]I return finally to the questions raised for our determination: i) Did the District Judge err in declining to consider whether the Segway is approved for use on the pavement in other European jurisdictions? In my judgment the answer to this question is No. ii) Did the District Judge err in failing to take into consideration the intention of the manufacturer when deciding whether or not the Segway is a mechanically propelled vehicle intended or adapted for use on a road? Again, in my judgment, the answer is No. iii) Did the District Judge err in concluding that the Segway is a mechanically propelled vehicle intended or adapted for use on the road? Again, in my judgment, the answer is No.[82]The appeal, in my judgment, ought to be dismissed.[83]I agree.[84]I would add only these further observations. It may not be easy to give a definitive meaning to “riding” and “carriage”. Though whether the appellant had “ridden”, or “ridden a carriage”, was central to this case, the argument ranged as widely as it did only to explore whether the definition might be such as to exclude a SEGWAY from being something on which a person might “ride” on the footpath, or was not “a carriage” or (combining the two) using a SEGWAY on the footpath was not “riding a carriage” on it. As my Lord has said, the answer on authority and in fact is clear here. It will be for other cases, in which the answers may be determinative, to examine the width of the expression “riding” and the margins of the class of those things which are “carriages”. But it is trite that regard must be had in determining these matters to the context of the Act as a whole, in which section 72 is directed towards eliminating nuisances from the footpath (and, included in that, ensuring pedestrian safety on it), though the word “nuisance” though contained in the heading to the section does not appear in the words of the section itself, and proof of nuisance – or lack of it – is plainly not critical in itself to a conviction. Byles J in R v Mathias appeared to treat the issue as one of nuisance, as to which the size, speed, weight and nature of a conveyance used on the footpath might well be relevant: and it may be that this gives a clue to rationalising in principle the otherwise difficult dividing line between those which are obviously carriages, and which can be ridden, lead or driven, such as bicycles or SEGWAYS and (but for a statutory exemption) a wheelchair for the disabled, on the one hand, and such as roller-skates, and child’s pushchairs on the other, which may (it will be for others to determine “will”) fall into another category.[85]Like my Lord, I would hold that the conviction was correct in law, and that the questions (posed by the appellant for adoption by the Court) were misplaced given the wording of the statute. Insofar as they need answers, however, I agree entirely with the answers my Lord proposes and with the reasoning supporting them. ______________________________________________________________________ ORDER ______________________________________________________________________ FOLLOWING CONSIDERATION OF THE DOCUMENTS LODGED BY THE PARTIES AND UPON HEARING COUNSEL IT IS ORDERED THAT: (1). The Appellant’s appeal by way of case stated is dismissed. (2). The conviction of the Appellant, by District Judge Rosenberg on 18 January 2011, is affirmed. (3). The Crown Prosecution Service is to submit in writing any application for costs within 14 days. Any such application will be determined on paper on the basis of written submissions. 29 JULY 2011