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Common sense and the law: the C1 crash helmet saga

[Update: For anybody still interested in this case, Mr Parker did, in fact, lose his case when the prosecutor appealed to the Queen's Bench Division, as I predicted he would. So if there are any BMW C1s still in operation, it appears that riders are stuck with totally unnecessary crash helmets for the forseeable future.]

BMW's C1 motorcycle presents an interesting conundrum for criminal prosecutors: it's designed to be ridden (or driven, or whatever you call it) without protective clothing, and that includes the crash helmet. The C1 is constructed from a pair of steel hoops within which the rider sits, strapped in by a four-point harness. In most of Europe it's already accepted by law enforcement agencies that the C1 rider need not wear a helmet. In the UK, however, a number of prosecutions were brought against C1 riders in respect of helmet offences. Most riders so charged simply plead guilty and paid the £30 fine. But in March 2005, the first contested case was heard by a magistrates' court, and the magistrates declined to convict. The defendant was a Mr Parker, an architect from Bedford. It is not obvious what the grounds for the magistrates' decision were, nor whether a similar approach would be adopted by other courts. A magistrates' court decision is, of course, not binding on any other court. However, the decision did seem to represent at least a small triumph of common sense over strict adherence to the letter of the law, and many would argue that this is exactly what we have a judiciary for in the first place.

Ouch; that's gotta hurt! But the C1's safety features make serious head injury very unlikely, provided the rider is correctly strapped in

But this simple-seeming problem, of determining whether helmet laws apply to the C1, is in fact an instance of one of the most contentious and intractable problems in English law: whether in interpreting legislation a judge should give effect to the letter of the law, or to the spirit of the law.

The spirit of making it compulsory to wear a crash helmet is, of course, to protect riders from injury. It seems to be common ground among all concerned that wearing a crash helmet adds nothing to the safety of a C1 rider. There would appear to be little possibility that the rider's head could come into contact with the road in the event of a crash, and the C1 is fitted with crash bumpers and crumple zones, just like a car. Indeed, it has even been argued that the extra weight of the helmet may actually increase the likelihood of neck injury in the event of an accident. So why have the police been so keen to charge, and the Crown Prosecution Service so willing to prosecute? Well, the C1 is a motorcycle, and the law is - or was thought to be - very clear: if you ride a motorcycle you need a crash helmet and that's that (there is an exemption for adherents of the Sikh religion who wear turbans). Regulation 4 of the Motor Cycles (Protective Headgear) Regulations (1998) has this to say:

''(1)...every person driving or riding (otherwise than in a side-car) on a motor bicycle when on a road shall wear protective headgear.''

and this:

''(3) In this regulation "motor bicycle" means a two-wheeled motor cycle, whether or not having a side-car attached...''

which seems fairly conclusive.

Fundamentally, the problem can be summarised like this: making C1 riders wear a helmet is not in accordance with, and may even be in conflict with, the original purpose of the helmet laws. However, such a move is entirely in accord with the letter of the law. At the time the legislation was drafted, there was no notion that we would one day have a type of motorcycle whose safety was reduced, rather than enhanced, by a crash helmet. Thus, in this one specific case, the legislation as drafted achieves no purpose, or a contrary purpose.

To understand why this presents such a problem, it is necessary to know a bit about the history of statutory interpretation and, in particular, the tension between the proponents of the 'literal rule' and the so-called 'golden rule' in the late 19th century.

The existence of a large body of definitive statute law is a relatively recent innovation in English legal history. Although kings, with the assistance of the Council, and Parliament, did issue statutes in the period from the 13th to 17th century, we mostly see a relatively slow growth in the number and size of statutory enactments in that period. On the whole, law developed according to 'common law' principles, in which judges refined and extended the law on a case-by-case basis. Statutes were not accorded the same reverence by lawyers as they now hold. Thus, in a pronouncement that would be almost unthinkable in a modern court, Sir Edward Coke - giving judgement in Dr Bonham's Case - was able to say:

''...for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void.''

''Coke was claiming that statute was an inferior mechanism of law-making to the common law, a view that was widely held at the time and - if truth be told - continues to be held in private by some judges even now.''

In other words, Coke was claiming that statute was an inferior mechanism of law-making to the common law, a view that was widely held at the time and - if truth be told - continues to be held in private by some judges even now. There are a number of reasons for this. First, the judges had had centuries to develop the common law into a workable form, and would be reluctant to see their work overturned by the whim of the government of the day. Second, although Parliament was in some senses representative of the populace, it was not held to be the ultimate expression of the democratic mandate as it now is. The notion of 'Parliamentary supremacy' - that Parliament can enact any law it sees fit - really only developed full force in the 17th century, and required a civil war to establish permanently.

So the principles of statutory interpretation in the 16th century were very different to the ones we find followed today. In one of the earliest, and most famous, cases in which the issue was considered in depth - Heydon's Case (1584) - the barons of the Exchequer laid down the following guidance:

"[F]our things are to be discerned and considered: 1st. What was the common law before the making of the Act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth. 4th. The true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."

In other words, statute law was to be treated as remedial - that is, enacted to satisfy some deficiency in the existing law - and in interpretation the judge should have regard to what the defect was, and how best to apply the statute to its rectification. The judge could 'add force and life' to the enactment, so long as it was in accord with the intentions of the legislature, and for the public good. These guidelines became known as the 'mischief rule', as any law student will know. However, it is interesting that textbooks for law students typically present the 'mischief rule' after a sustained discussion of the other so-called 'rules' of interpretation, and neglect to make clear that the mischief rule is, in fact, the earliest rule of interpretation that we know of.

Be that as it may, in the period from the 18th to the 20th century, there were a number of notable changes in the legislative process. First, as we have seen, Parliament became more representative of the populace as a whole (unless you had the poor fortune to be a woman of course; women in the UK have had a right to vote for less than a hundred years). Second, statutes became longer and more detailed; it was no longer as necessary for the judiciary to exercise creativity when reading them. Third, as we've said, there was the dramatic rise in the doctrine of Parliamentary Sovereignty. The modern expression of this doctrine is contained in Lord Reid's speech in Pickin v British Railways Board (1974):

''In earlier times many learned lawyers seemed to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete.''

So, since the 17th century there has been an increase in the prestige of Parliament, and a corresponding willingness of the courts to uphold the exact letter of its enactments, in stark contrast to the rough-and-ready methods of interpretation of the 16th century and before. By the early 19th century, 'literalist' judges like Lord Tenterden had established a dominant 'literal rule' of interpretation: the exact words are to be followed, no more and no less, regardless of the consequences. This rule had a number of advantages. First, it promotes 'certainty' in the law. When all other factors are removed from consideration, a

literal interpretation will give the best chance that the views of the judge and the litigant will coincide. If judges were allowed to interpret statutes freely, litigation would increase because it would be harder for the public to determine their exact legal rights. Second, it encourages precision in legislative draughtsmanship. If the draughtsman knows that his or her every word could be the subject of a literal interpretation, is more likely that the right words will be chosen. Third, it is open to the legislature to remedy defective rnactments; it ought not to be left to the judges.

''Since a dead man wasn't entitled to vote, impersonating him couldn't be an offence.''

There are, unsurprisingly, a number of problems with over-reliance on the literal rule. In the 19th century the one that most troubled the courts appeared to be that it could so easily lead to an absurd result. There are any number of instances of this. In his book The Law Making Process, Michael Zander provides a list of such cases about six pages long; for now, two examples will suffice. In Chappell and Whitley (1868) the defendant was charged with impersonating a dead man to obtain an additional vote in an election. The relevant legislation made it an offence to impersonate 'any person entitled to vote'. Since a dead man wasn't entitled to vote, impersonating him couldn't be an offence. Thus a villain was acquitted. In R v Harris (1836) the defendant bit his victim's nose off. It was held that the legislative terms 'stab, cut, or wound' could not be extended to cover injuries inflicted with the teeth, since all required blades (in 19th century legislation, the term 'wound' implied the use of an edged weapon). The defendant was therefore acquitted.

So in the mid-19th century a parallel doctrine of interpretation started to develop. This asserted that the 'literal rule' should be used unless it would lead to an absurdity. The most famous expression of this principle is probably the judgement of Baron Parke in Grey v Pearson (1870):

''...the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further.''

This principle became knows as the 'golden rule'. By invoking the golden rule, courts were able to avoid some manifest absurdities. For example, in R v Allen (1872) it was suggested that the legislation concerning bigamy was incapable of being enforced, because it defined bigamy as being married twice. Since the second marriage will be void, it was simply impossible to be married twice and therefore, it was contended, bigamy was impossible to commit. However, the court were prepared to read 'married' as 'having gone through a ceremony of marriage', and thereby convict the defendant.

The golden rule has only ever had a limited scope; it will only be applied where the legislation is so worded that it cannot be applied without absurdity; in any case, 'absurdity' is not easy to define. Cases from the mid-to-late 19th century reveal the 'literal rule' and the 'golden rule' to wax and wane in popularity but, by the end of the 19th century, the literal rule had clearly triumphed. Giving judgement in

R v Judge of the City of London Court (1891), Lord Esher said:

''Jessel MR says that the words of s.2 [of the statute in question] are quite clear, and that, if the words of an Act of Parliament are clear, you must take them in their ordinary and natural meaning, unless that meaning produces a manifest absurdity. Now, I say that no such rule of construction was ever laid down before. If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity.''

In other words, even if the the statute leads to an absurdity, the judge must apply it anyway.

Although the literal rule had largely seen off the golden rule, by the first half of the 20th century there was an increasing body of judicial opinion that favoured a more 'purposive' approach to interpretation, somewhat more along the lines of the ancient mischief rule. Probably the most famous exponent of this approach was Lord Denning, who fought a heroic - and largely unsuccessful - battle against the traditionalists in the House of Lords in the 1950's and 1960's. The most famous of these cases is probably Magor and St Mellons RDC v Newport Corp (1950) which concerned the way in which compensation was to be payed by a local authority that had been enriched by a boundary relocation. Newport was extended to take in the wealthier parts of Magor and St Mellons, and should therefore have compensated those authorities. However, at the same time the original Magor and St Mellons districts were amalgamated into one authority. Thus, on a strict reading of the statute, no compensation was payable: there was no administrative entity in existence to pay it to. In the Court of Appeal, Denning claimed that the intention of Parliament was quite plain: the enriched authority should compensate the loser, even though the loser was administratively a different body:

''We sit here to find out the intention of Parliament and carry it out by filling in the gaps rather than by destructive analysis.''

But the House of Lords wasn't ready for this innovation. Lord Simonds said that Denning's judgement was

''...a naked usurpation of the legislative function under the thin guise of interpretation.''

Denning lost this particular battle; the literal rule was often applied mindlessly and without regard to the consequences throughout the 1970s and 1980s. Just one example: in Metropolitan Police Commissioner v Curran (1975) the defendant was convicted under s.9(3) of the Road Traffic Act (1972) of failing to provide a breath specimen for alcohol analysis. Although he was sitting in a car very drunk, there was no evidence that he had driven it, or intended to drive it. The charge of drunk driving was therefore dismissed. However, he was convicted of failing to produce a breath specimen and disqualified from driving for a year. All five Judges in the House of Lords held that the purpose of s.9 was to give powers to the police to deal with drunken drivers, not to give them an arbitrary power to breathalyse people. All five judges believed that s.9(3) had been drafted wrongly, had unjust consequences, led to a great deal of expensive litigation, and could not possibly have been what the legislature intended. Nevertheless, all five judges upheld the conviction. The speech of Lord Salmon is particularly compelling. It says that effect of the legislation is to

''...produce unique, bizarre, inappropriate, absurd and unjust results which I am sure that Parliament can never have intended.''

Despite these views he, like his learned brethren, was prepared to let the conviction stand.

''Despite losing the battle for Magor and St Mellons, Lord Denning was ahead of his time, and he can probably be regarded as having won the war.''
Despite losing the battle for Magor and St Mellons, Lord Denning was ahead of his time, and he can probably be regarded as having won the war. In 1994, responding to increasing pressure on the judiciary, the House of Lords in Pepper v Hart ruled that it was OK for judges to refer to Hansard - the official record of parliamentary debates - as a guide to interpretation. Why is this such a concession? Well, if the intention of the legislature really could be gleaned by a strict reading of the statute - as the literal rule suggests - then there is never any need to seek the intentions of Parliament in other sources. Saying that judges may consult Hansard is tantamount to saying that the literal rule is no longer always to be trusted.

Despite these changes, it is still widely held that if a statute is perfectly clear, and admits of no ambiguity, then there is little scope to apply a purposive reading or to consult other sources. The innovation of Pepper v Hart is unlikely to be of benefit to a person adversely affected by such a statute. This has led courts to adopt some fairly strained meanings for common words, such as taking the word 'carriage' to include bicycles, and a cave to be a 'premises' for the purposes of fire prevention. In Richard Thomas v Cummings (1955) the phrase 'in motion' used in the Factories Act meant 'driven by a motor', not turned by hand. Thus a machine that was being turned by hand did not need to have a protective fence. This seems an eminently sensible result in the circumstances, but was only achieved by the use of a strained construction of 'in motion'.

Such contortions may achieve justice in the individual case, but it could be argued that they are harmful in the long term. This was the crux of the Lords' arguments against the Court of Appeal in the 1950's: if judges take on the process of law reform themselves, they can only ever do it on a case-by-case basis. This leads to a body of law which is piecemeal and unstable. A good example is the famous case of Fisher v Bell(1960), in which a shopkeeper was charged with 'offering for sale' a flick-knife he had displayed in the shop window, contrary to the Restriction of Offensive Weapons Act (1959). There was no question that the intention of Parliament was to restrict the sale of such weapons, and that Mr Bell was unquestionably in breach of the spirit of the legislation. Nevertheless, the Divisional Court refused to convict. Why? Because the term 'offer for sale' is used in countless other statutes, and has a technical, legal meaning. You don't offer something for sale by putting it in a shop window, because in a retail transaction it is the customer that offers to buy, and the shopkeeper that accepts the offer. To convict Mr Bell would have been to say that 'offer for sale' has a completely different meaning from the established one, and a whole swathe of contract law would have been thrown into disarray.

As a result of this case, the House of Commons moved to amend the defective clause within a few months (it now says 'expose for sale', which is what it should have said originally), and the problem was corrected. Allowing ad-hoc law reform by judges can be likened to try to correct sloppy wallpapering by pushing out the air bubbles. Every time you push one bubble down, others pop up elsewhere. Before long, rather than one bubble you have lots of smaller ones. In the same way, judicial discretion can fix one injustice, but very often at the expense of causing wider problems elsewhere that may be difficult to fix. Parliament has in the past been reasonably efficient at amending legislation where its strict application causes significant hardship, or defeats the original purpose.

So how does a judge decide, in an individual case, whether to apply a literal or a purposive approach to interpretation? Well, sadly, I think that the answer in many cases is that judges don't even think about it: they are too busy trying to deal with the case to worry about the niceties of jurisprudence. Terms like 'literal rule', 'mischief rule', and 'golden rule' were not invented by judges as they went about their day-to-day work; they were devised by legal analysts by examining how decisions had been reached after the event. With a very few exceptions, you don't read expressions like 'this case calls for application of the literal rule' in the decisions of judges. In fact, it's rare to see statutory interpretation mentioned at all. There are certain judges who are known to favour a strict literal approach, and those that tend to be more purposive. But even the most purposive judges have been known to fall back on literality when it suits them. For example, in Royal College of Nursing v DHSS (1981) Lord Denning said:

''... I feel that we as judges must go by the very words of the statute - without stretching it one way or the other - and writing nothing in which is not there.''

In that particular case, a strict reading of the statute gave his point of view more weight than a liberal one. Cases where 'literalists' have favoured a purposive reading are also not thin on the ground.

''English law does not, on the whole, recognise as a defence to a criminal charge a plea that the law is an ass.''

So we come back to the original problem: does riding the BMW C1 without a helmet contravene Reg. 4 of the the Motor Bicycles (Protective Headgear) Regulations? Holding that it does makes the law an ass, but we have seem that English law does not, on the whole, recognise as a defence to a criminal charge a plea that the law is an ass. We have seen that the courts uphold asinine legislation with great vigour when the mood takes them.

Is there sufficient ambiguity in the wording that a court might be able to apply a purposive reading? The words are clear, but they are not completely free from ambiguity. First, the term 'motorcycle' is not defined. Could it be argued that the C1 is not a motorcycle? I suggest that this is unlikely; there are numerous definitions of 'motorcycle' in other statutes. Mostly the term applies to any powered vehicle with fewer than four wheels. There is no question that the C1 has other than two wheels. Another semantic nicety is the meaning of the words driving or riding on in Regulation 4. It can be argued, and was argued at Mr Parker's hearing, that a C1 rider does not 'drive or ride on', he drives or rides in. Even if this were true, it would still be necessary to show that the phrase 'drive or ride on' should be read '(drive or ride) on' and not '(drive) or (ride on)'. If this were not the case - if the word 'on' was not attached to 'drive or ride' - then the fact that the C1 rider was 'in' the C1 would make no difference, because he would still be 'driving'. In practice, if we are prepared to accept that the C1 rider is 'in' and not 'on' his vehicle then the problem of whether 'on' applies to 'riding' or 'driving' can be resolved by reference to the intention of the legislature which is, of course, to promote road safety, not to be an ass.

At the hearing, Mr Parker produced evidence of the high degree of safety of the C1, including video clips of crash tests. This all makes a very convincing case but is, of course, only relevant to a court that is already prepared to follow the spirit of the law, rather than the letter.

Copyright © 1994-2013 Kevin Boone. Updated May 14 2010