Testing Times

Testing Times

My nephew asked me to check out the wheel bearings he had replaced on his little 125. Because I don’t have a motorcycle at present I had no bike Insurance, but in order to give it a ‘road test’ I rode it in a very large shopping centre car park at about 9pm on a Sunday night when there was nobody around, probably getting the bike up to about 50mph.

I was on private land so I was not wearing a helmet. However, two police officers turned up with their blue lights on… Once they were satisfied I wasn’t a teenager trying to leg it, they told me that I needed to produce documents. They weren’t worried about the lack of helmet (once I had explained what I was doing) and I kept my helmet off so I could listen to any noises coming out of the bearings. The police seemed quite relaxed. I was given a producer document, because nothing was coming up on the police national computer.

I then went down to my local station to show my driving licence, my nephew’s MOT and my nephew’s MOT certificate, but I had no insurance documents. My nephew also produced his insurance documents. The person on the desk said that the case would be referred on – and l have now been summonsed to court for riding without insurance. My nephew has also been summonsed for allowing his bike to be used without insurance. Surely as we were on private land, we do not need insurance? I am on three points for speeding and my job does mean I need to drive.

Name withheld

Sorry, but I am afraid you are probably committing an offence – but you may have some arguments. A sympathetic court might let you off the hook, especially if you present yourself well. Section 143 of the Road Traffic Act 1988 says a vehicle must be insured as well as the person riding it. The law was amended to include ‘other public places’ as well as being-insured on the road. Both you and your nephew are potentially in breach of Section 143 and as such the minimum sentence you and your nephew will receive is six points.

You are likely to be heard with some sympathy from the Magistrates as you clearly did not understand that you were committing an offence and it was a ‘one off’ and the bike was actually insured. Whilst you may have committed the offence your nephew’s insurers will have paid out (as they have to by law) on any proper claim brought by a third party.

Unfortunately, for you, the Magistrates have no choice but to convict unless your car or van policy covers any other vehicle you are licensed to drive and the vehicle does not belong to you or you can prove the use of the motorcycle did not take place ‘on the road or in a public place’. If you have any vehicle cover on another car or van, you are insured and no offence is committed by either of you (apart from the helmet which no one seems worried about) but those policies are very rare.

The test for a public place is whether or not a car park is ‘a public place’ and if you wanted to go not guilty you could argue that a car park for a closed shopping centre is not a public place. There is a case called Sandy v Martin 1974] where the Magistrates were entitled to acquit after the prosecution had failed to prove that the invitation to use a pub car park extended after closing time. Bearing in mind that your test took place at about 9pm on a Sunday, five hours after the shopping centre had closed, and in an entirely empty shopping centre car park, you do have an argument the test is a public place, and if the public had access to the car park without any kind of hindrance, barriers or anything along those lines then it will probably be found, as a matter of fact, to be a public place, if, for example, your nephew had to squeeze the bike through a dropped barrier you could make a factual argument. I would also make the point that no members of the public were present or at ail likely to be using the carpark.

The general run of cases is overwhelmingly that if the area is open and the public can get onto it then it is a public place. I do not think the Magistrates would punish you any harder for going not guilty on the ‘public place’ argument and the Magistrates Clerk would have to advise the bench on the law. You have a potentially arguable case, so I do not think you have much to lose by going not guilty and taking your chances. You may be lucky. Your thinking was to keep yourself legal and do your nephew a favour, so the magistrates may exercise the prerogative of mercy and let you off. Do yourself a favour and be respectful, state your case clearly and turn up smartly dressed and tidy, it really helps in front of Magistrates.

The only other word I would have is if the summons says ‘that you used on a road’ but does not use the phrase ‘or other public place’ then you have a much stronger technical argument that you had come to defend yourself against the charge of using an uninsured vehicle on the road, and the prosecution cannot change the summons at trial to include ‘a public place’. But I still think you are going to end up, despite ail of these potential arguments with six points on your licence, as will your nephew. If the summons says road, but not public place there is a 2004 case which supports you. However, since 2004 pretty well every summons includes ‘public place’.

In short, I think you have little to lose and much to gain by running the ‘not a public place’ defence and if you do not mind representing yourself in Court I would go for it. Counter intuitively, I think you would be better off without a lawyer because as lawyers we are obliged to refer the court to all the cases against the point we are raising and the law on public places is not especially clear. I would take the chance but more in hope than expectation.

Andrew Dalton

Fast Bikes November 2016

Posted by Andrew Dalton. Posted on: December 15, 2016 at 12:00 am

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.