Director of Public Prosecutions v King, Court of Appeal - Administrative Court, February 13, 2008, [2008] EWHC 447 (Admin)

Resolution Date:February 13, 2008
Issuing Organization:Administrative Court
Actores:Director of Public Prosecutions v King
 
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SMITH BERNAL WORDWAVE

Neutral Citation Number: [2008] EWHC 447 (Admin)

CO/11121/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday, 13 February 2008

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE WALKER

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Between:

DIRECTOR OF PUBLIC PROSECUTIONS

Claimant

v

PAUL MATTHEW KING

Defendant

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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

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J U D G M E N T

1. MR JUSTICE WALKER: 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.

2. 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.

3. 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.

4. 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."

5. 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.

6. 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,...

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