Chief Constable of Avon and Somerset Constabulary v Fleming: QBD 1987

The defendant was stopped pushing a motor-cycle along the road. It had been adapted for scrambling, and the registration plates lights and speedometer had been removed. He argued that it was no longer a motor vehicle ‘adapted or intended for use on a public road’. The prosecutor appealed against the magistrates finding that they had not proved that it was indeed such a vehicle.
Held: The appeal failed. The test was as set out in Burns v Currell.
Glidewell LJ added: ”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.
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.
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.
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.
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.
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.
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.
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.’


Glidewell LJ


[1987] 1 All ER 318, [1987] RTR 378


Road Traffic Act 1972


England and Wales


AppliedBurns v Currell 1963
The defendant was accused of offences related to the driving on a public road a mechanically propelled vehicle, a Go-Kart.
Held: In fact it was not a motor vehicle within the statutory definition. The Court set out the test to be applied in . .

Cited by:

CitedDirector of Public Prosecutions v Saddington; Chief Constable of the North Yorkshire Police v Michael Saddington Admn 1-Nov-2000
A motorised scooter of the type known as a ‘Go-Ped’ was a motor vehicle within the Act. Accordingly a driving licence and third party insurance were both required for its use on a public highway. The scooter required the passenger to stand on a . .
CitedDirector of Public Prosecutions v King Admn 13-Feb-2008
The defendant was charged after driving a ‘City Mantis Electric Scooter’. He was disqualified from driving. The prosecutor appealed against dismissal of the charges on the basis that the scooter was not of such a description as to require a licence . .
CitedCoates, Regina v Misc 18-Jan-2011
(Barnsley Magistrates Court) The defendant owned a Segway, a two wheeled vehicle. He was charged with having driven it on a public footpath despite its being a motor vehicle. He denied that it was a motor vehicle ‘adapted or intended for use on the . .
CitedCoates v Crown Prosecution Service Admn 29-Jul-2011
The defendant appealed by case stated against his conviction for driving a Segway scooter on a footpath. He denied that it was ‘a mechanically propelled vehicle intended or adapted for use on roads.’
Held: The appeal failed. The district judge . .
Lists of cited by and citing cases may be incomplete.

Road Traffic

Updated: 05 June 2022; Ref: scu.431822