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 
- - - - - - - - - - - - - - - - - - - - -
Between: 
DIRECTOR OF PUBLIC PROSECUTIONS 
Claimant
v 

PAUL MATTHEW KING 
Defendant 
- - - - - - - - - - - - - - - - - - - - -
Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
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 
- - - - - - - - - - - - - - - - - - - - -
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, 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."  
7.	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?"  
8.	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 insurance or a security in respect of third party risks, contrary to section 143 of the 1988 Act.
H7 On appeal by the prosecutor:
H8 Held, allowing the appeal, that the test of whether the Go‑ped was a 'motor vehicle' as defined by section 185(1) of the Road Traffic Act 1988 was whether a reasonable person looking at the vehicle would 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 (para. 19); 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 and the test was not whether a reasonable person would use a Go‑ped on a road (paras 15, 19); that, although there was no obvious place for use of a Go‑ped other than a road, since it could not negotiate rough ground, soft or uneven surfaces, it could not be said that because there was no place other than a hard, flat surface on which a Go‑ped could be used, it must be intended for use on a road (para. 17); but that the temptation to use a Go‑ped on roads was considerable, notwithstanding its limitations, as it provided a ready means of getting through traffic on short journeys on urban roads and surrender to the temptation to use it on roads would not be an isolated occurrence (paras 18, 20); and that, accordingly, general use on the roads was to be contemplated and the Go‑ped was a mechanically propelled vehicle intended for use on roads within the meaning of section 185(1) (paras 20, 21)." 
9.	The leading judgment was given by Pill LJ, with whom Bell J agreed.  In the course of his judgment, Pill LJ said this: 
"12.	 In Burns v Currell [1963] 2 All ER 297 the Divisional Court had to consider whether a mechanically propelled vehicle known as a Go‑Kart was a motor vehicle within the meaning of provisions of earlier legislation with the same effect as the relevant words in section 185 of the 1988 Act. Lord Parker CJ, with whom Ashworth J and Winn J agreed, stated, at p 300C:
    'Thus, in the ordinary case, it seems to me that there will be little difficulty in saying whether a particular vehicle is a motor vehicle or not. But to define exactly the meaning of the words 'intended or adapted' is by no means easy. For my part, I think that the expression 'intended', to take that word first, 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 that it means the intention of the manufacturer or the wholesaler or the retailer; and it may be, as Salmon J said in Daleys v Hargreaves [1961] 1 WLR 487, that it is not referring to the intention as such of any particular purpose. Salmon J suggested that the word 'intended' might be paraphrased as 'suitable or apt'. It may be merely a difference of wording, but 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? 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 uses would be use on the road? For my part, I have come to the conclusion that there really was no such evidence before them as to satisfy them on that point according to the ordinary standard of proof. The evidence was that the appellant had used this vehicle on this day alone and that he had never used it before. There was no evidence that other people used these vehicles on the road, nor is it suggested by the justices that they came to their conclusion, as they would be entitled to up to a point, on their own experience and knowledge. As I have said, all that they had before them was that a Go‑Kart had been used on a road to which the public had access on this one occasion. Looked at in that way, so far as this matter of 'intended' is concerned, I do not think that the justices had any material on which they could feel sure so as to be able to convict.'
13.	 That test has been applied in subsequent cases. In Chief Constable of Avon and Somerset Constabulary v F [1987] RTR 378 Glidewell LJ set out Lord Parker CJ's test and added, at page 382:
    '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 vehicles 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.'
It was held in that case that the Justices were entitled to hold that, the onus of proof being on the prosecution to prove that the vehicle was a motor vehicle, they could not be satisfied that it was within the definition of a motor vehicle. The comparison of the facts in F with those in the present case would not be helpful. The Burns test, which has been applied for approaching forty years, should not readily be departed from.
14.	 For the respondent, Mr Reed stresses the limitations of the Go‑ped. It has no efficient braking system, no pneumatic tyres, no clutch, lights or mirrors and has inadequate steering. It needs to be push started. It would not be accepted by the Department of Transport for registration, he submits, or for use on the roads under the Construction and Use Regulations. Mr Reed accepts that the intention of the manufacturer or seller is not conclusive but submits that general use on the roads cannot be contemplated as one of the uses of the Go‑ped.
15.	 Miss Kelly, whilst also submitting that the Go‑ped does not comply with the Construction and Use Regulations, was less inclined to belittle the attributes of the Go‑ped. It is ironic that it is the defendant who is seeking to show how unsuitable, and indeed dangerous, the Go‑ped is for use on the road in order to contest the charge that riding it on the road was unlawful. Miss Kelly submits that the scooter should be brought within the definition of motor vehicle so that its use can be regulated but has to accept that Lord Parker's test does not directly depend on the degree of danger presented by the vehicle. I do not accept the Justices' apparent view that the roadworthiness of a conveyance, which I understand to means its capability to be used safely on roads, is decisive on the question whether its use on the road must be contemplated.
16.	 Both parties have underlined the importance of the point at issue because of the large number of scooters of this kind in circulation. Many of them, we were told, are more sophisticated than this Go‑ped in terms of the control systems provided.
17.	 This is not a case where some place other than a road is the obvious place of use. The Go‑ped could not negotiate rough ground or soft or uneven surfaces. It is not a case where the vehicle is designed for use in a place other than a road, such as a dumper truck used for road construction work (MacDonald v Carmichael [1941] JC 27). Another example would be a motor cycle designed for use on a speedway track. Lord Parker's test cannot, however, in my view be applied merely by a process of elimination; it cannot be said that because there is no place other than a hard, flat surface on which a Go‑ped can be used, it must be intended for use on a road. It is in any event contended that the Go‑ped can be used as a toy on hard surfaces on private land and for Go‑ped competitions on such land.
18.	 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.
19.	 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 must 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 people's wish to get quickly through traffic and the pressure of time upon many people.
20.	 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." 
10.	Mr Stephen Mooney appears on behalf of the appellant.  In his skeleton argument, he observed that the test was objective.  However, he added that it was relevant that the respondent acknowledged that the scooter would probably be used on a road or pavement.  In oral submissions, Mr Mooney maintained that submission, while accepting that the view of the respondent would not of itself be determinative.  
11.	In relation to paragraph 6(ii) of the case stated, Mr Mooney accepted that the district judge had had before him no evidence of use on the roads of the City Mantis by persons other than the respondent.  As to that, however, this was not a case in which there had been agreement of the parties at the hearing before the district judge as to the extent of "user".  Mr Mooney informed this court that the position was that this was one of the first occasions on which a scooter of this kind had been sold for use in this part of Somerset.  
12.	On behalf of the respondent, Mr Lawrence Wilcox in his skeleton argument observed that reliance on the subjective position of the respondent was inconsistent with the objective nature of the test described in Saddington.  In oral submissions, Mr Wilcox invited the court to take a layman's view.  He accepted that a reasonable person might well say that the obvious use of the City Mantis for a child or teenager could well be on the road, but, he submitted, this would be an isolated use, not a use with any degree of regularity.  
13.	As to the legal test, two particular passages of the case stated call for mention.  The first is the way in which the district judge formulated the matter in paragraph 5.  This formulation made no mention of the important discussion of the objective test by Glidewell LJ in Chief Constable of Avon and Somerset Constabulary v F (a juvenile) [1987] RTR 378.  The relevant passage is set out at paragraph 13 of the judgment of Pill LJ in Saddington quoted above.  I draw attention in particular to the passage where Glidewell LJ said that 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.  Second, in paragraph 6 of the case stated, the district judge begins with two opening sentences.  Those sentences suggest that he identified his task as being to distinguish between toys and motor vehicles.  Such an approach would not be consistent with the legal principles found in Saddington and in the passage quoted from Glidewell LJ in the case of F.  A scooter might well be a toy, but that would not necessarily prevent a reasonable person from saying that one of its uses might well be on the roads.  In these circumstances, I take the view that the district judge has misdirected himself in law.  
14.	The question which then arises is whether, if this matter were to be remitted for further consideration, it would be open to the Magistrates' Court to reach any conclusion other than that the City Mantis is a motor vehicle as defined by section 185 of the Road Traffic Act 1988.  Here it seems to me desirable to examine the particular factors to which the district judge attached importance.  At paragraph 6(i) the district judge relied on his own experience and knowledge when concluding that others did not use similar scooters on the road.  He took the view that he was entitled to take judicial notice of the position in that regard.  He referred to paragraph 18 of the judgment in the case of Saddington (I interpose that his reference to Bell J is plainly a slip for Pill LJ).  What is plain from that passage is that counsel on both sides were agreed in that case that considerable numbers of scooters of that and similar design were in circulation.  There is no difficulty in the court taking account of an agreed fact of that kind.  It is quite another matter for the court of its own motion to conclude that the judge's own personal experience can be taken into account on a question of this nature.  The judge's personal experience may depend upon the precise location of the judge's home, the location of the judge's work and, most importantly, the wholesale and retail distribution pattern of the item in question.  We are aware from Mr Mooney's oral submissions today that if this matter had been raised with the parties, the prosecution would have been able to put forward a reason why the district judge had not come across a City Mantis scooter in his own experience.  For my part, I would simply proceed on the basis that this is a case where there was no evidence before the court as to the extent of actual user by others and it is not appropriate to draw any inference one way or the other in that regard.  
15.	Turning to paragraph 6(ii), the district judge there discussed the question of speed.  He seems to have attached importance to the provisions in the Electrically Assisted Pedal Cycle Regulations 1983 allowing for an electric motor to propel an electric bicycle at speeds of up to 15 miles an hour.  Those regulations of course had no application to the present case, for the City Mantis scooter has no pedals.  The judge distinguished the Go‑ped that had featured in the Saddington case as being a more powerful vehicle capable of speeds of up to 20 miles an hour.  He seems, on the face of it, to have thought that the reference in the Electrically Assisted Pedal Cycle Regulations 1983 to a permitted speed of up 15 miles an hour in some way assisted him in deciding whether the City Mantis scooter was a motor vehicle.  For my, part, I cannot see that this pointed in any way to a conclusion that the City Mantis was not a motor vehicle.  It is not a necessary prerequisite of being a motor vehicle that the vehicle in question can travel at a particularly fast speed.  Indeed, as it seems to me, the regulations point the other way.  Their purpose is to ensure that in certain circumstances riding what would otherwise be a motor vehicle will not be an offence.  Those who made the regulations must have contemplated that a vehicle which travelled only at speeds of up to 15 miles an hour might well be a motor vehicle.  
16.	It is convenient next to take paragraph 6(iv), where the district judge dealt with the actual user by the respondent.  I accept that the mere fact that the respondent rode the City Mantis scooter on a public highway does not of itself demonstrate that the City Mantis is a motor vehicle.  However, I see considerable force in the circumstances of the present case in Mr Mooney's observation that it is relevant that the respondent acknowledged that the scooter would probably be used on a road or pavement.  Of course, any such statement will not be determinative.  It will be one factor among many that may, depending on the circumstances, properly be taken into account when deciding whether the objective test is met.  
17.	I turn then to the remainder of sub‑paragraph (iv) where the district judge expressed a view as to how the City Mantis scooter might "at best" be used, and his commentary on the particular features of the City Mantis which he describes in sub‑paragraph (iii).  This analysis by the district judge appears to me to take no account of the factors described by Pill LJ in paragraphs 19 and 20 of his judgment in the case of Saddington.  It can be said of the City Mantis, just as it could be said of the Go‑ped, that in ordinary circumstances a reasonable person would not use this scooter on the road because of the dangers involved.  However, the question which the ordinary person is being postulated as considering is the question whether some general use on the road is something which might well occur.  In using the words "might well", I echo the terminology of Glidewell LJ in the case of F.  
18.	In the present case, we are concerned with a scooter which has the features described in paragraph 4 of the case stated.  It is obvious that it will be readily capable of use by teenagers.  It can only be used on smooth and even surfaces.  If one asks: "where is a teenager going to find space to use a scooter of this kind?", it seems to me to be inescapable that a reasonable person would answer: "This might well be used on the road".  Mr Wilcox contended that such use would be isolated and not with any degree of regularity.  This submission, in my view, misconceives the nature of the qualification described in Saddington.  That qualification arises where the reasonable person would say that the use would be an isolated use or a use only by a person losing their senses.  It is a narrow qualification.  In seeking to apply it to this particular scooter, I consider that Mr Wilcox seeks to give the qualification much greater breadth than is properly attributable to it.  
19.	For those reasons, I for my part would conclude that if this matter were to be remitted, the court would be impelled to find that the City Mantis scooter was a motor vehicle within section 185 of the Road Traffic Act 1988.  It follows that in my view the question in the case stated must be answered, "Yes".  Accordingly, I would allow this appeal and quash the acquittal of the respondent.  In its place I would order that the matter be remitted to the Magistrates' Court with a direction that the respondent be convicted of the two offences with which he was charged.  
20.	LORD JUSTICE MAURICE KAY:  I agree that, for the reason given by my Lord, the district judge misdirected himself as to the law.  I also agree that, if he had applied the correct test and approach, as identified by my Lord, he would inevitably have concluded that the City Mantis electric scooter is a motor vehicle within the meaning of section 185 of the Road Traffic Act 1988.  Accordingly, I would answer the question posed in the affirmative, and I agree with my Lord as to the appropriate disposal.  The order will therefore allow the appeal and remit the case to the North Somerset Magistrates' Court with a direction to convict.  
21.	Thank you both very much.  
22.	MR WILCOX:  My Lord, can I raise one point ‑‑ a representation order ‑‑ would your Lordship grant that?  I have been in correspondence with the court office about this and it was indicated to me that that would be confirmed, but I was advised to raise it at the hearing. 
23.	LORD JUSTICE MAURICE KAY:  You do not have one at the moment? 
24.	MR WILCOX:  I have had mixed messages (inaudible).  I do have one, but I was advised to seek that the court confirm the position.
25.	LORD JUSTICE MAURICE KAY:  Yes, certainly, you may have your order and there will be an assessment of your costs.  (pause)
26.	It seems that on 8 February my Lord granted you an order.
27.	MR WILCOX:  I am very grateful.