Director of Public Prosecutions v Parker

Queen's Bench Division

7 May 2004

[2004] EWHC 1248 (Admin)

[2005] R.T.R. 16

( Maurice Kay L.J. and Rafferty J.):

May 7, 2004

Motorcycles; Passengers; Road traffic offences; Safety

H1 MOTOR VEHICLE

Roofed motorcycle

Two-wheeled vehicle with roof, seatbelts and side protection safety bars—Use on road by defendant without protective headgear—Whether defendant riding “on” motorcycle—Whether required to wear protective headgear— Road Traffic Act 1988, s.16— Motorcycles (Protective Helmets) Regulations 1998, reg.4.

H2 Section 16 of the Road Traffic Act 1988 provides:

H3 Section 185(1) provides:

H4 Regulation 4 of the Motorcycles (Protective Helmets) Regulations 1998 (SI 1998/1807) provides:

H5 The defendant was served with three summonses alleging, in one summons, that he “rode on” and, in two summonses, that he “rode” a motorcycle without wearing appropriate protective headgear, contrary to reg.4 of the Motorcycles (Protective Helmets) Regulations 1998 and s.16(4) of the Road Traffic Act 1988. The justices *195 found that the defendant's vehicle, a BMW C1, was not a conventional motorcycle or scooter, being of a non-traditional design; that it had passive safety features, with a rigid rider cell, front and side crash elements, roll over hoops and shoulder protection bars; and that it had a safety belt system which had to be engaged before the vehicle could be driven. The justices found that the vehicle was a “motor cycle” within s.185 of the Road Traffic Act 1988, but construed s.16 of the Act and reg.4 of the 1998 Regulations so that, whereas a person who was “on” a motorcycle was required to have his head protected, a person who was “in” a motorcycle need not, and they found that the defendant was “inside” the BMW C1 and dismissed the summonses.

H6 On appeal by the prosecutor:

H7 Held, allowing the appeal, that the relevant statutory provisions contemplated two categories of person: he who attracted the preposition “on”, namely a passenger, and he who was in control, namely the driver, who attracted no preposition ([14], [18]); that, accordingly, reg.4 of the Motorcycles (Protective Helmets) Regulations 1998 required every person driving “or riding on” a motorcycle, that was both the driver and a passenger, to wear protective headgear ([13]); and that the justices had reached a perverse decision and the matter would be remitted with a direction to convict ([16], [19]).

H8 Per Maurice Kay L.J. In view of what we find to be the plain meaning of the language of reg.4 and s.16, it would be advisable if those who drafted summonses were to charge drivers of motorcycles in wording which describes them as “driving” rather than “riding” so as to avoid a possible, albeit unattractive, technical argument in other cases ([22]).

H9 No cases are referred to in the judgments.

Case stated by Bedford Justices sitting as Bedford Magistrates' Court

CS1 Three separate informations were laid against the defendant, Peter Parker, that on March 28, 2002 on St Peters's Street, Bedford, on June 24, 2002 on the A603 at Willington, Bedford, and on August 18, 2002 on Bedford Road, Kempston he rode his BMW C1 motorcycle without protective headgear, contrary to reg.4 of the Motorcycles (Protective Helmets) Regulations 1998, s.16(4) of the Road Traffic Act 1988 and Sch.2 to the Road Traffic Offenders Act 1988.

CS2 The prosecution evidence was given under s.9 of the Criminal Justice Act 1967 and was not disputed by the defendant. The justices noted the evidence confirming the vehicle details namely that the body type was a motorcycle, the engine capacity was 125cc and the tax class was “bicycle”.

CS3 The defendant entered not guilty pleas but accepted that on each of the times, dates and places specified he rode in his vehicle and that he did not wear a protective helmet on any such occasion.

CS4 The justices heard oral evidence from the defendant. They considered the manufacturer's literature and viewed a safety video tape. They also examined the defendant's vehicle. *196

CS5 The justices found the following facts. The BMW C1 was not a conventional motorcycle or scooter. It had enhanced safety features and a design that set it apart from the traditional.

CS6 The vehicle had passive safety features developed from automobile technology. It had a unique torsionally rigid rider cell, crash elements at the front and sides, roll over hoops and shoulder protection bars.

CS7 In order to ensure that the rider remained inside the safety cell the vehicle was fitted with a safety belt system, which combined a 2-point and a 3-point belt and an ergonomically designed seat. The vehicle could not be driven without the rider wearing those seat belts.

CS8 The BMW Cl was a motorcycle within the strict definition of s.185 of the Road Traffic Act 1988.

CS9 It was contended by the prosecutor as follows. It was an affront to common sense to say that a person would be “in” a motorcycle. To circumvent the legislation, anybody could put a wire cage around them and fix it to their motorcycle so it looked like a structure. A person could argue that he was inside the shape but that did not mean he was inside the vehicle.

CS10 Although the Cl provided improved levels of safety over a conventional motorcycle the justices did not know what would happen if the vehicle crashed at 70mph or how safe it would make a rider. Crash tests had not been carried out at high speeds.

CS11 Within the United Kingdom there was no exemption in the manufacturer's literature from the need to wear a helmet.

CS12 As a matter of law, the word “in” did not apply to the specific circumstances of the facts.

CS13 It was contended by the defendant as follows. It was clearly in the minds of the legislators and draftsmen at the time of the 1988 Act and the 1998 Regulations that a person “on” a motorcycle should wear a protective helmet, but that one “in” a motorcycle need not. Support for that contention was found in the wording of the Act and the Regulations themselves. Section 16(1) and (4) of the Act and reg.4(1) and (2) all referred to the word “on”.

CS14 The inclusion of references to a side-car in the legislation gave a further indication that that was what was intended. The only difference between a pillion passenger on a motorcycle and a passenger in a side-car attached to a motorcycle was that one was “on” the vehicle and the other was “in” the vehicle. The draftsman used the words “on” and “in” to differentiate.

CS15 In relation to both cases the motorcyclist was required to wear a helmet. Of the two types of passenger, i.e. the pillion passenger and the one in the side-car, only the former was obliged by law to wear protective headgear. The only conceivable difference between the two was that one was at risk of falling off the motorcycle and sustaining head injury, the other due to the fact that he was encapsulated, would not fall off and presumably therefore be at less risk.

CS16 If there was any doubt that Parliament did not intend the section to apply to vehicles of that type, because the word “on” was expressly used, then a comparison could be made with s.14(1) and (3) of the Road Traffic Act 1988 which dealt with seat belts. The Act provided that “persons who are driving or riding in motor vehicles” were required to wear a seat belt. *197

CS17 The Chambers English Dictionary defined the words “on” and “in” as followed. On: “in contact with the upper, supporting, outer or presented surface of; to a position in contact with such a surface of.” In: “expressing the relation of a thing to that which surrounds, encloses, includes or conditions it, with respect to time, place or circumstances, or to that which is assumed, held, maintained, or the relation of a right of possession to the person who holds or enjoys it.”

CS18 The BMW Cl encapsulated the rider within a safety cell and he was strapped in place with two seat belts. In a literal approach to interpretation and application of the legislation the rider of that vehicle was “in” and not “on” the vehicle and in that case was outside the legislation and not required to wear protective headgear.

CS19 As regarded a purposive approach in interpreting the legislation, the defendant made the following submissions. When enacting the legislation, and later at the point of making the Regulations, the draftsmen would not have contemplated the technology that produced a safety concept vehicle such as the BMW Cl. In a purposive approach to the legislation, one had to accept that the requirement to wear a helmet was in order to provide protection to the motorcyclist. In terms of safety the BMW Cl vehicle far exceeded the limited measure of protection afforded to the rider of a conventional motorcycle with nothing more than a helmet.

CS20 It was doubtful that the legislators would have intended to make a regulatory requirement to wear a helmet in a situation where the motorcyclist was already as safe as he could be. Where he was safer than a passenger in a side-car or the rider of another vehicle that did not require the wearing of protective headwear it was even less likely that they would have wished that.

CS21 In a motor car a driver or passenger were at risk of whiplash injury to the neck if involved in a collision. Injury was caused because the force of impact propelled a person in a crash forward who was then pulled back by the counter force of the restraining seatbelt. The weight of the head caused a whiplash action, which put pressure on the neck and upper spine.

CS22 If the driver of a motor car were to wear a helmet the additional weight on the head would undoubtedly render that person subject to a greater risk of injury by reason of that additional weight than if he did not wear one. The rider of a BMW Cl vehicle was protected by a safety cell, which arguably provided greater safety than a helmet did for a traditional motorcyclist; in addition, he wore two seat belts. Clearly because of the seat belts there was a risk of whiplash injury to the rider of a BMW Cl vehicle that was not foreseen by the draftsmen of the Regulations if he was obliged to wear a helmet. Instead of enhancing safety, the wearing of a helmet might actually reduce the overall safety from injury. That could not have been intended.

CS23 Although safety lay behind the Regulations, it was not the only consideration. A follower of the Sikh religion was exempt. There was also provision in s.16(3) of the Act which acknowledged that there might be other issues that affected the wearing of a protective helmet. Driving a motorcycle that had been expressly designed and tested to be safe without the use of a protective helmet was such an issue.

CS24 The defendant contended that the justices could apply a literal approach in interpreting the legislation. The defendant was “in” and not “on” a motorcycle. *198

CS25 The justices were of the opinion that they could apply a literal approach in applying the legislation. They found no ambiguity in the legislation. If a person was found to be “on” a motorcycle he had to wear a protective helmet but if found to be “in” a motorcycle he need not. Having considered the construction of the BMW Cl vehicle they found that the vehicle was essentially an enclosed vehicle in which the driver/rider was encapsulated. They found that a driver/rider was “inside” the vehicle.

CS26 The justices accordingly upheld the submission that the defendant was not guilty of all three offences and they dismissed the summonses.

CS27 The prosecutor appealed.

CS28 The question for the opinion of the court was whether any bench of justices properly directed on the facts and on the law could have acquitted the defendant, in other words, whether the justices' decision was perverse and in excess of their jurisdiction.

H10 Representation

• Amjad Malik for the prosecutor.
• The defendant in person.

H11

• Solicitors for the prosecutor: Crown Prosecution Service, Bedford.

JUDGMENT

RAFFERTY J.

1 This is an appeal by way of case stated from a decision of the Bedford Justices who dealt with three summonses alleging that Mr Parker, who appears before us in person, rode a motorcycle without wearing appropriate protective headgear. Of the three, one pleaded that he “rode on”, two that he “rode” a motorcycle.

2 The facts are not in issue. The three informations related to March 28, 2002, June 24, 2002 and August 18, 2002 and Mr Parker's BMW C1 motorcycle. The alleged contravention was of reg.4 of the Motorcycles (Protective Helmets) Regulations 1998, s.16(4) of the Road Traffic Act 1988 and Sch.2 to the Road Traffic Offenders Act 1988.

3 Mr Parker gave oral evidence. The justices were supplied with literature from the manufacturer. They viewed, as did this court, a video composed by the manufacturer. They also examined (as this court has not) the vehicle itself.

4 They found these facts. The C1 is not a conventional motorcycle or scooter and is of non-traditional design. It has passive safety features developed from automobile technology, with a rigid rider cell, front and side crash elements, roll over hoops, and shoulder protection bars. So as to keep the rider within the cell, it has a safety belt system of two-points and three-points, and an ergonomically designed seat. Unless the seat belts are engaged it cannot be driven. The justices found that it is, within the definition of s.185 of the Road Traffic Act 1988, a motorcycle.

5 The prosecutor submitted to them that it was an affront to common sense to claim that a person would be “in” a motorcycle; he might be “within” the shape or the frame of this particular model, but that did not put him inside the vehicle.

6 Those then representing Mr Parker argued that the legislator, at the time of drafting, must have contemplated that someone “on” a motorcycle should wear *199 headgear, but one “in” need not. Reference to a side-car was suggested as supporting that stance. Help was offered to the justices by recourse to the dictionary, and a literal approach to construction urged upon them. Even a purposive approach was said also to sustain the case for the defendant. Safety was also adumbrated. Crash tests had not been carried out at high speed. There was in the United Kingdom no exemption from the need to wear a helmet and, as a matter of law, the preposition “in” did not bite on the specific circumstances disclosed by these facts.

7 The justices concluded that they could apply a literal approach to the legislation, finding no ambiguity. They concluded that were a person “on” a motorcycle his head must be protected but if he were “in” it need not be. They found the C1 essentially an enclosed vehicle in which the driver/rider is encapsulated, and that the driver/rider is inside the vehicle.

8 For the attention of this court they posed the question: “Could any bench of justices, properly directed upon the facts and upon the law have acquitted the defendant, in other words, was our decision perverse and in excess of our jurisdiction?”

9 For the prosecutor, Mr Malik advances this simple proposition. A reading of s.17 makes plain that the legislation contemplates two categories: he who drives and is in control, and he who is a passenger. Only that latter is governed by the preposition “on”.

10 Where relevant, s.16(1) reads:

Regulation 4 of the 1998 Regulations, under the heading “Protective headgear”, essentially echoes the syntax, reading in its para.(1): “Save as provided in para.(2), every person driving or riding (otherwise than in a side-car) on a motor bicycle when on a road shall wear protective headgear.”

11 Mr Parker, who has helped the court today with a well-ordered and succinct argument, challenges that interpretation. He distinguishes his approach from that which seeks, albeit legitimately, to exploit a loophole, and he relies upon a literal construction of the statute. He reminds us that in the parlance adopted by those skilled in the use of motorcycles, one would simply say one is “riding” a motorbike, one would not say one is “driving” a motorbike. He reminds us that no passenger, contrary, it would appear, to the thoughts of the prosecutor, can be carried within the frame of the C1 but, by the addition of optional extras, could be carried outwith it. He has driven for two years and ten months on this vehicle without challenge. He objects to what he sees as the incorrect insertion, albeit inferentially, of syntax so as to suit the agenda of the prosecutor. The legislation, he reminds us, does not read, “persons driving, or riding on, motorcycles”. One might equally read the notionally punctuated subsection, “persons driving, or riding, on motorcycles”. His position is that one needs only to differentiate driver from rider. *200

12 At first blush it appeared that Mr Parker might have a point in respect of s.17 of the Road Traffic Act 1988, which reads, where relevant:

However, that seems to me at least to predicate a possible thinking ahead to the imposition of regulations in respect of what, in simple terms, I call a tricycle, a three-wheeled vehicle, where currently those travelling are not caught by regulation. To that extent, I find it impossible to deploy s.17 to the fortification of Mr Parker's submission.

13 Although attractively argued, I, for my part, struggle to see how the contentions made by Mr Parker align with the legislation and the position for which he contends. No matter the approach, I reach the same conclusion, one shared by the editor of Wilkinson’s Road Traffic Offences, who writes: “Regulation 4 requires every person driving ‘or riding on’ a motor bicycle to wear protective headgear. Thus both the driver and a pillion passenger are required to wear helmets.”

14 Mr Malik, in my view, is correct. This argument is distilled into the simple point that there are contemplated, on the face of the legislation, two categories of person: he who attracts a preposition (a passenger), and he who is in control (a driver) who attracts none.

15 Mr Parker's principled position, that it is not appropriate to seek an exemption from the Secretary of State, as has been done, as we understand, in the Republic of Germany, is nevertheless one which, for my part, might be an obvious area for reflection.

16 Because of the clear wording of the statutes and the regulations to which I have referred, I would answer the question posed by the justices in the affirmative as to its second part, in other words I consider their decision perverse, and would remit with a direction to convict.

MAURICE KAY L.J.

17 I agree and have reached the same clear conclusion on the plain words of the Road Traffic Act 1988 and the 1998 Regulations.

18 In my judgment, it is further supported by comparing the provisions in relation to protective headgear with the provisions in the same Act relating to the wearing of seat belts in cars. So far as that is concerned, s.14 of the Act empowers the Secretary of State to make regulations relating to seat belts in respect of persons, “who are driving or riding in motor vehicles”. When the Secretary of State acted upon that power, in the Motor Vehicles (Wearing of Seat Belts) Regulations 1982, in reg.5 there was a provision in the following terms:

That makes plain that there is a distinction between driving (without a preposition) a motor vehicle, and riding in the passenger seat of a motor vehicle, whether it be in *201 the front or the rear. Plainly, it was in contemplation both in that part of the legislation and in the part relating to protective headgear, which is the subject of this case, that the preposition “on” governed only passengers and not the person actually in control and doing the driving.

19 Accordingly, I would answer the question posed in the same manner as suggested by Rafferty J. I would order the remittal on the same terms.

20 I add one point. Mr Parker began his submissions by drawing attention to the words of the summonses against him, and the fact that they were in terms of “riding on”, or “riding” the motorcycle in question. It is plain from the case stated that this technical point about the way in which the summonses were expressed was not canvassed before the justices, or if it was it was not something that they were asked to place before us for our consideration.

21 There is no doubt, as Mr Parker concedes, that everybody understood in the magistrates' court, and here, that the allegation against him was that he was the person in control: the driver in accordance with reg.4. One can understand why, that being the case, no argument took place, or, if it did, no argument of such a technical nature prevailed.

22 I raise the matter here simply for this purpose. The language of reg.4, and for that matter s.16, does not coincide with common parlance, as people do not generally speak of “driving” a motorcycle. However, in view of what we find to be the plain meaning of the language of reg.4and s.16, it would be advisable if those who drafted summonses were to charge drivers of motorcycles in wording which describes them as “driving” rather than “riding” so as to avoid a possible, albeit unattractive, technical argument in other cases.

23 As I say, it does not arise here because the point did not prevail in the magistrates' court, and nobody has ever been in any doubt about what it was that Mr Parker was charged with doing.

24 That disposes of the case, save that I too would add my gratitude to Mr Malik and Mr Parker, and comment, I hope to his satisfaction, on the attractive and humorous way in which he presented his submissions.

Appeal allowed.

Case remitted with direction to convict.