England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE COLLINS: This is an appeal by way of Case Stated from a decision of the Crown Court sitting at Southwark which dismissed an appeal by the Appellant against his conviction at the Horseferry Road Magistrates' Court. The hearing before the Southwark Crown Court was on 5th June 1998. The offence in question was said to have been committed on 22nd March 1997 and the allegation was that he had "contrary to Section 40A(c) of the Road Traffic Act 1988... [used] a Mahindra Jeep Index No L103EKL when the manner in which passengers were carried by it was such that the use of the motor vehicle involved a danger of injury to any person".

2. The section itself reads in very similar terms. It is side noted "Using vehicle in dangerous condition etc" and it states:

3. The matter was listed before us as an application to remit to amend the case. What was required by the Appellant was that the evidence be recited in rather more detail than had been done by the Crown Court Judge and that the submissions of counsel, who then appeared, should be reflected by the case. We have seen, because they have been served upon us, the statements of the witnesses which Mr Salter, on behalf of the Appellant, wished the Court to consider. We are aware from the draft case that was submitted to the Crown Court of the submissions that were made. In those circumstances, it seemed to us that it would be a complete waste of time and money to send the case back in order that these matters be spelt out, and we have been prepared to approach the case on the basis that we were entitled to have regard to the material outside the case in the form of the statements, and a record of the submissions that were made. Mr Wyatt, on behalf of the Respondent, did not object to that course being taken.

4. The circumstances in which this offence was allegedly committed involved the carrying by the Appellant of his seven year old son, Rhys, in the back of the vehicle in question. It was being driven for a relatively short distance in Central London and was observed by police officers who followed it and who formed the opinion that the offence had been committed, hence the prosecution.

5. I must now set out the facts as found by the Crown Court, so far as material. I should add that we have had the great advantage, as had the Court below, of seeing photographs of the vehicle in question? The vehicle is what is described as a Mahindra Jeep. It, at the material time, had no covering to its back. It is a relatively small vehicle. The back of it does not have seats as such, but the wheel arches are covered by flat pieces of metal which can be sat on. The sides of the vehicle consist of solid metal on top of which is a roll bar and at the front forming, as it were, a barrier between the back and the front is another roll bar, slightly higher. The roll bars themselves are three inches in diameter. They have rubber covering upon them, but that covering, when gripped, yields only slightly under pressure. The distance between the flat top of the wheel arch to the top of the solid metal is four and a half inches and the roll bar extends a further 15 inches above that.

6. On 22nd March 1997 in the evening the Appellant was seen driving the vehicle along Victoria Street. His seven and a half year old son Rhys was in the rear. The police officers observed Rhys sitting with his back to the front passenger seat. Rhys was called to give evidence and so the Court was able to see for themselves what sort of a child he was and it described him as:

7. I am not quite sure what the Court meant by "moral restraint", but any way that is the word that is used. The case continues:

8. Although that last sentence is contained under the general heading of "Findings of Fact", Mr Salter was concerned that the Court might not have indicated that it believed, and accepted, the evidence from the Appellant about it. There is, as far as I can see, no reason to doubt that the Court did accept that evidence. Mr Salter has told us that the Appellant gave evidence that Rhys had travelled in this fashion in the back of this vehicle on a considerable number of occasions and that he was a responsible child. He knew perfectly well, and his father was clear that he obeyed his instructions, that he should remain seated in the back. Unfortunately the findings of fact, based upon the evidence of the police officers, show that Rhys was not, on this occasion, entirely following the instructions that had been given to him because there are the findings, which I have already read, that Rhys was seen from time to time to stand up.

9. For my part I would have thought that however good a seven and a half year old child might be it must be foreseeable, and indeed perhaps inevitable, that he might want to shift around from time to time. Quite apart from anything else, there is no padding on the metal tops over the wheel arches upon which someone travelling in the back of this vehicle can sit, and they would, particularly if the road surface was at all uneven, be somewhat uncomfortable. Therefore it seems to me that it would be virtually inevitable that a passenger would want to shift around. A child would not necessarily be expected to appreciate quite what manoeuvre the driver might be intending to make.

10. The point that Mr Salter seeks to make, and to emphasise, is that the Appellant was a responsible parent who was quite satisfied that what he was doing was not creating a danger for Rhys and Rhys himself was a child who could be trusted to behave himself in the back of such a vehicle.

11. The test under the relevant subsection is not a subjective test. It is not what the driver, or the user of the vehicle, may have believed, however genuine that belief may have been. The test is an objective one and the Court has to decide, looking at the evidence that is given before it, whether it is satisfied that there was a danger of injury to any person having regard to the way in which passengers were carried in the relevant vehicle.

12. The Crown Court then recites its conclusions. It was referred to what I think is the only reported authority on this particular subsection of the Road Traffic Act, a Scottish case Akelis v Normand (1997) SLT 136. The relevant circumstances in that case were that a van was seen and that there was one passenger in the back of the van who was lying across the floor, his head on one side, his feet on the other, there being no seats or any other form of restraint. The finding of the Justices was that there was a risk of injury to the passenger in the rear of the van if a head on collision occurred.

13. The Court decided that that was insufficient to constitute the offence under this particular subsection because there would be a risk of injury to any passenger in the back of the van, indeed more of a risk to one sitting facing the front than to one lying across from the floor if there was an accident. The point of this section was not to consider danger if there was an accident because it must be recognised that there is, in such circumstances, inevitable danger to passengers. The question is whether there is a danger in the circumstances in which the vehicle was being driven at the material time. There was a citation in that case of a passage from Butterworths Road Traffic Service, at page 138D, which is perhaps worth reciting. It reads:

14. Of course that is directed at trailers, but it clearly is relevant to circumstances such as these.

15. Much may depend on the circumstances in which the vehicle in question was being driven. Here it was, as described, in Central London in what might be described as a normal way of London driving. Different considerations would clearly apply if the only evidence was that the vehicle was being driven, and was only going to be driven, at a very slow speed on a straight road. As I say, the circumstances will dictate in any given case whether the offence under section 40A is made out. But what is decided by that case, and this was the approach adopted by the Crown Court, was that the section was directed at the danger of injuries which might occur as a result of the ordinary problems of driving such as sudden braking, or having to swerve, pull out, turn or stop in the course of a vehicle's normal every day usage upon a road.

16. There was called before the Crown Court expert evidence on both sides. That on behalf of the prosecution was of a Police Constable Tulip, an Authorised Vehicle Examiner, and that on behalf of the Appellant was of a Mr Sharkey who was an ex-police officer, known to the Police Constable Tulip who had, whilst in the police force, been doing the same sort of job as Police Constable Tulip had been doing, and no doubt giving the same sort of evidence.

17. Mr Sharkey's evidence was directed to consideration of the forces which would be created by various manouevres and reference to public transport and passengers in public transport vehicles. His conclusion, which is at paragraph 4.8 of his report, reads as follows:

18. That may very well be so but that, of course, ignores the circumstances of this case, namely a small boy in the back of a vehicle observed by police officers not to be sitting at all times holding on to the bar. There was the further point which was made by Police Constable Tulip that this was a bar of three inch diameter and that the child's grip was such that it would be impossible for him to reach his hand fully around the bar. As one knows from one's own experience, the rails provided, for example, in buses are very much narrower than that so that even a child can reach his hand around them.

19. The way the Crown Court dealt with this aspect (that is to say the expert evidence) was as follows, and I read now from paragraph 2 of the case:

20. Then in paragraph 4:

21. It correctly, in my judgment, there concentrate on the individual circumstances which existed in this case and the facts as found from the police officers' observations of what Rhys was doing and the manner in which he was being carried. That finding of the Crown Court can only be overturned before us if it is established that it was a finding which was irrational, that is to say a finding which could not reasonably have been made upon the material before the Crown Court.

22. In my judgment it is quite impossible to contend that the conclusions reached, on the basis of the material before the Crown Court, were conclusions which no reasonable Court could have reached. The Court was entitled to apply common sense and indeed it is, in my judgment, not at all surprising that it took the view that it was not assisted by the expert evidence that was before it given by Mr Sharkey. The theoretical position is all very well, it is the actual position which the Court has to consider in such a case.

23. I am bound to say that for my part not only do I think that the Court was entitled to reach the conclusion that it did, but I myself, having seen the evidence, the facts found and, in particular, having seen the photographs of the vehicle in question, would, without any question, have reached the same conclusion. In those circumstances I would dismiss this appeal.

24. LORD JUSTICE BUXTON: I agree with my Lord that it is impossible in this case to say that the Crown Court was in error for the reasons that he has indicated. I also, for my own part, had I been deciding the case myself, which I am not, would, like my Lord, unhesitatingly have decided it in the same way as the Crown Court did. This appeal is therefore dismissed.

25. MR WYATT: In those circumstances I am instructed to make application with regard to costs. I understand from my friend that there is no opposition to that application.

26. LORD JUSTICE BUXTON: That is very sensible, Mr Salter, so the appeal is dismissed with costs.

27. MR WYATT: Just before the next case is drawn on might I mention this: it has been drawn to my attention, quite properly, by Mr Salter that in the light of the fact that there is no English authority on this area of law, should this case be reported it might be worth inserting into the judgment that Police Constable Tulip was what was described as an Authorised Motor Vehicle Examiner pursuant to section 67 and 69 of the Road Traffic Act. That is his status.

28. LORD JUSTICE BUXTON: I am sure that if whether it would be thought appropriate for the circumstances of this case, despite my Lord's judgment, to add to the footnotes in Butterworth is another question, but I am sure my Lord will have that well in mind when he receives the judgment back.

29. MR JUSTICE COLLINS: I will put the correct description in when I correct the transcript. Thank you.