‘Is pushing a motorcycle in a pedestrian area an offence?’
Q
I HAVE BEEN ticketed for getting off my motorcycle and pushing it through a pedestrianised area. I have appealed the ticket to the Traffic Commissioner but it has not been upheld. Surely pushing a motorcycle cannot be an offence? Riding it in a pedestrianised area I accept would be wrong, but pushing it, engine off?
A
THE ANSWER IS not simple and needs some research. Pedestrianisation needs a Traffic Regulation Order (TRO) and the TRO needs to specify what is restricted. Each TRO is individually drafted to deal with the precise practice the local authority wishes to make unlawful. If the TRO says vehicles may not drive, then in my view you have arguable grounds to revisit the decision but at very great costs risk to you. And arguable is not the same as winnable.
There is a string of cases that define driving, which means having control of the vehicle and propelling it even if that comes from gravity, your muscle power or someone pushing your vehicle. There is very old case law which says pushing a vehicle is not driving but while not being specifically overruled, it does not sit well with the leading case on this point, which I discuss in a moment.
However, if the TRO says “using” then the act of pushing would be in breach of it. I have looked at the Commissioner’s scheme and there is no appeal procedure so it seems you will need a High Court judicial review (and deep pockets) to press on. The Court would consider judicial decisions on using and driving such as R v Roberts [1965] 1 QB 85 which found being in the front seat of a car while being pushed by friends amounted to driving. You pushing your motorcycle and having control of its steering would probably be held to be driving by English judicial interpretation of the cases which define driving.
The leading English case on driving is R v Mcdonagh [1974] RTR 373 and the passage of the-then Lord Chief Justice is binding law. He says; “There are an infinite number of ways in which a person may control the movement of a motor vehicle, apart from the orthodox one of sitting in the driving seat and using the engine for propulsion. He may be coasting down a hill with the gears in neutral and the engine switched off; he may be steering a vehicle which is being towed by another. As has already been pointed out, he may be sitting in the driving seat while others push, or half sitting in the driving seat but keeping one foot on the road in order to induce the car to move. Finally, as in the present case, he may be standing in the road and himself pushing the car with or without using the steering wheel to direct it. Although the word ‘drive’ must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language.” So there is an arguable case that pushing a motorcycle falls outside the common understanding of the word “driving” but not out of the common understanding of the word “using”.
The preponderance of the case law is against you. However, following the ECJ decision in Vnuk, the USE of a vehicle has been greatly widened in so far as insurance is concerned but it has not greatly widened the English judicial interpretation of what constitutes use. In 1960, an unfortunate chap who had his vehicle jacked up and the battery in his shed, was held to be “using” his car. Use is wider than drive. If the TRO says “use”, then you have no arguable case.
Whilst the decided cases are against you, you do have an arguable case based on the degree of control and the fact that all the cases relate to cars, but it is thin stuff. In short, if the traffic commissioner is upholding the fine, short of the very expensive and likely unsuccessful method of a judicial review of the decision (and you’d have to show the commissioner got the law so wrong that no other reasonable tribunal would have made that error) I think you will have to pay the fine.