Civil Fraud Quarterly Round-Up: Q1 2021
To the dismay of gadget lovers everywhere, the Crown Prosecution Service (CPS), in conjunction with the Department for Transport (DFT), has recently amended its road traffic offences guidance to reiterate that it is illegal to ride “self-balancing scooters” on the public highway or public footpaths. According to the guidance, such devices can only be ridden legally on private property (with, of course, the permission of the landowner). This updated guidance only applies to England and Wales.
A self-balancing scooter has been defined (in Coates v Crown Prosecution Service  EWHC 2032 (Admin)) as “a technologically advanced form of personal transportation consisting of a small gyroscopically stabilised platform mounted on two wheels, on which the traveller stands, powered by a battery driven electric motor”. Self-balancing scooters include modes of transportation such as Segways and hoverboards.
Hoverboards are an increasingly common sight in cities. They are relatively cheap, compared to Segways for example, and are fashionable (a number of celebrities are fans). More people have, in short, been using them to get about. Hence the surprise and, in some quarters, outcry over the fact that it is illegal to ride them on the highway or footpaths.
The law - hoverboards and the public highway
The law is clear in respect of driving a hoverboard on the public highway. In short, you can’t.
To be driven on a public highway, a hoverboard would have to be registered and licensed in accordance with the Vehicle Excise and Registration Act 1994 and its associated regulations. To be registered under this Act, a hoverboard would also have to meet various safety standards. According to the DFT, hoverboards do not meet these standards. Accordingly, hoverboards cannot legally be driven on the road. A hoverboard user would also have to be insured and licensed.
The law – hoverboards and the footpath
Unfortunately, it is also illegal to drive a hoverboard on a public footpath. To understand why, one needs to consider statute and case law.
The statute in question is the Highways Act 1835 (as amended). Section 72 of that Act is the relevant section, and it is worth quoting in full:
“[...] If any person shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or shall wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck or sledge, upon any such footpath or causeway; or shall tether any horse, ass, mule, swine, or cattle, on any highway, so as to suffer or permit the tethered animal to be thereon; [...]; every person so offending in any of the cases aforesaid shall for each and every such offence forfeit and pay any sum not exceeding [level 2 on the standard scale], over and above the damages occasioned thereby”.
The courts considered the meaning of “carriage” in the case mentioned above (i.e. Coates v Crown Prosecution Service). In this case, the court confirmed that a Segway was a carriage within the meaning of section 72 of the 1835 Act. By implication, other types of self-balancing scooters are also carriages within the meaning of the Act. Accordingly, it is an offence to ride a hoverboard (as a type of carriage) on the footpath.
The courts have confirmed (in McArthur v Jack 1950 S.C.(J.) 29) that the section 72 offence will be made out even if the driving on the footpath takes place for only a few seconds.
Incidentally, it should be noted that section 28 of the Town Police Clauses Act 1847 prohibits the “drawing” or “driving” of a carriage upon any footway of a street. This provision – though not regularly enforced – would appear to prohibit the use of self-balancing scooters on a footpath.
Are there any defences?
The section 72 offence is made out when a person “wilfully” rides on a footpath. In Fearnley v Ormsby (1879) 43 J.P. 384, the court determined that wilfully here means purposely. Wilkinson's Road Traffic Offences have noted that a “magistrates’ court has acquitted a defendant who drove on the footway in ignorance that it was part of the footway”. It might therefore be argued that a defendant who drove a hoverboard on a footpath accidentally should be acquitted.
Some have also argued that there might be a common law right to divert on to a footpath in cases of necessity when the highway is blocked. However, as discussed above, this will not be of much use to a hoverboard user as it is clearly illegal to drive the device on the highway.
The Highways Act 1835 was passed to deal with the enormous growth in carriage-related transport associated with the Industrial Revolution. Since then, the means of personal transportation have changed beyond recognition. Accordingly, some might well agree with Simon Benson, of the hoverboard distributor Ghetto Gadgets, who said that “millennials are not going to take kindly to the authorities using a law that predates the penny-farthing to tell them what they can or can't do on the streets of Britain.” For now, however, the law is relatively clear: hoverboards should not be used on either roads or footpaths.
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