Vehicle and Operator Services Agency, R (on the application of) v Henderson

Under section 40A of the Road Traffic Act 1988, the offence is absolute: the prosecution need not prove the user’s state of mind. Whether a vehicle’s condition involves a danger of injury is a question of fact. The danger need not be imminent. A vehicle driven with a wheel sufficiently loose to vibrate and with wheel nuts that are not even finger-tight involves a danger to the driver and other road users. Where the facts admit only the conclusion that the statutory danger existed, an appellate court may quash an acquittal. It may decline to remit the case for conviction where the defendant was blameless and further proceedings would serve no useful purpose.

The Vehicle and Operator Services Agency appealed by way of case stated from the decision of the Avon and Somerset justices on 2 July 2004 acquitting Paul Ernest Henderson of an offence under section 40A of the Road Traffic Act 1988. The justices found that Henderson had driven a heavy lorry with a wheel that later proved to have ten loose wheel nuts. He had detected vibration, stopped at motorway services and then removed and loosely replaced the nuts while awaiting assistance.

The central issue was whether, on the facts found, the vehicle’s condition while being driven involved a danger of injury to any person.

1. The appeal was allowed in the sense that the justices’ acquittal was quashed. Section 40A of the Road Traffic Act 1988 creates an absolute offence. It was therefore unnecessary to establish any state of mind on Henderson’s part: the issue depended on the factual condition of the vehicle and the danger it involved.

2. Whether a vehicle’s condition involves a danger of injury is a question of fact, as recognised in DPP v Potts. It was unnecessary to determine the broader submissions that failure to apply the manufacturer’s recommended torque, or wheel nuts capable of further loosening through ordinary motion, necessarily constituted the statutory danger.

3. The justices had asked the wrong question by focusing on whether Henderson’s use of the lorry involved a danger, rather than whether he used it when its condition involved a danger. Their findings established that, while the lorry was being driven, all ten nuts were capable of being undone by hand and the wheel had vibrated sufficiently to alert Henderson. Those facts admitted no rational conclusion other than that the wheel involved a danger to the driver and other road users.

4. The statutory danger did not need to be imminent. A loose wheel was dangerous before immediate detachment became likely because its condition could deteriorate rapidly and unpredictably. The principle that the relevant danger is assessed without regard to the defendant’s knowledge was stated in Cornish v Ferry Masters Ltd.

5. The court declined to remit the case with a direction to convict. Henderson was blameless on the facts found, and further proceedings leading to an absolute discharge or other penalty would serve no useful purpose. The acquittal was quashed, but no further action was taken. There was no order as to costs, subject to detailed assessment of Henderson’s publicly funded costs.

The matter came before the Administrative Court by way of case stated from the Avon and Somerset justices’ decision dated 2 July 2004. The justices had acquitted Henderson under section 40A of the Road Traffic Act 1988. The Administrative Court quashed the acquittal but declined to remit the case for conviction.