Crank -v- Brooks - an appeal.

thirdcrank
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Crank -v- Brooks - an appeal.

Postby thirdcrank » 16 Dec 2011, 2:10pm

This is an appeal from me, rather than anything to keep our learned friends working over the Christmas Hols.

I have tried to find a link to the full judgement in the case cited as Crank versus Brooks. Googling has not helped partly because the names of the parties relate to cycle components, partly because the case itself has been bandied about on various cycle forums - the ratio apparently being that a driver of a motor vehicle at a pedestrian crossing owes a duty of care to a cyclist wheeling a bike across it.

If there is anybody with better googling skills than mine or with access to a law library, my gratitude would be huge. (It's most likely to be in a standard work on highway law.)

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NUKe
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Re: Crank -v- Brooks - an appeal.

Postby NUKe » 16 Dec 2011, 2:33pm

http://www.cyclecraft.co.uk/digest/pushing.html
http://en.wikipedia.org/wiki/United_Kin ... affic_laws
Are my first 2 hits

In Google type 'Crank versus Brooks'

With the quotation marks and you'll get other references to the law
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Re: Crank -v- Brooks - an appeal.

Postby Vorpal » 16 Dec 2011, 2:39pm

Carlton Reid's summary of cycling and the law quotes it, but doesn't have a link, so I would guess that the full text isn't generally available, and you'll have to hope for someone with access to a law library. :(
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Alex L
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Re: Crank -v- Brooks - an appeal.

Postby Alex L » 16 Dec 2011, 2:46pm

JUDGMENT
WALLER LJ
This is an appeal by way of case stated from a decision of Cheshire Justices sitting at Sandbach on 11 July 1978.
The defendant was summoned for a breach of regulation 8 of the Zebra Pedestrian Crossing Regulations 1971 and section 23 of the Road Traffic Regulation Act 1967 , for that he on 14 March 1978 at Elworth in Cheshire, being the driver of a motor vehicle, namely, a motor car in London Road, did fail to accord precedence to a foot passenger on the carriageway within the limits of an uncontrolled crossing, such foot passenger having been within those limits before the vehicle or any part thereof had come within those limits.
The justices found that a witness had cycled to a post office in London Road. Having visited the post office she walked to the pavement edge pushing a bicycle with the intention of crossing the road by means of the pedestrian crossing situated near the post office. The witness while pushing her bicycle on the pedestrian crossing was knocked down by a motor car being driven by the defendant. The intention of the witness was to remount the bicycle on the other side of the road to continue her journey home.
The justices accepted a submission that there was no case to answer and they ask this court's opinion whether they were right in law in dismissing the information on the submission that a person pushing a bicycle was not a ‘foot passenger’.
In my judgment a person who is walking across a pedestrian crossing *443 pushing a bicycle, having started on the pavement on one side on her feet and not on the bicycle, and going across pushing the bicycle with both feet on the ground so to speak is clearly a ‘foot passenger.’ If for example she had been using it as a scooter by having one foot on the pedal and pushing herself along, she would not have been a ‘foot passenger’. But the fact that she had the bicycle in her hand and was walking does not create any difference from a case where she is walking without a bicycle in her hand. I regard it as unarguable the finding that she was not a foot passenger.
I would allow this appeal and answer the question that the justices were not right in law in dismissing the information.

thirdcrank
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Re: Crank -v- Brooks - an appeal.

Postby thirdcrank » 16 Dec 2011, 3:01pm

Alex L

Thanks for that - can you post a link? One thing that emerges from this is that somewhere along the way, this had been described as a civil case. I now see it was apparently a criminal case where the defendant unsuccessfully argued that the person wheeling a bike across the crossing was not a "pedestrian."

To everybody else thanks for trying.

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Re: Crank -v- Brooks - an appeal.

Postby sirmy » 16 Dec 2011, 3:45pm

I thought this was a civil case too, mainly as it refereed to as Crank v Brooks instead of R v Brookes :?

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Alex L
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Re: Crank -v- Brooks - an appeal.

Postby Alex L » 16 Dec 2011, 8:28pm

Sorry, was on a Law database. That was the only document that came up in the search. Can give you more info if you need it though.

thirdcrank
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Re: Crank -v- Brooks - an appeal.

Postby thirdcrank » 16 Dec 2011, 11:23pm

Alex L - no need to apologise because you have come up with the goods. ie what the judge said verbatim, and although the full report of the case would have been the icing on the cake, what's there is good enough for me.

For anybody interested this an appeal by the prosecution. The defendant has been prosecuted for not giving precedence to a foot passenger AKA a pedestrian, who was crossing a pedestrian crossing. The person on the crossing had been walking and wheeling a pedal cycle. At the conclusion of the prosecution case, the defence had submitted that there was no case to answer as the person in question was not a pedestrian / foot passenger.

The prosecutor has appealed. This involves asking the court dealing with the matter to 'state a case' ie explain the reason for the decision. At the appeal hearing, both the prosecution and defence would have the opportunity to argue the point, including referring to any earlier reported cases. These submissions are not in the part of the law report quoted above. The judge dealing with the appeal, Lord Justice Waller ruled that the magistrates were wrong ie a person on foot pushing a pedal cycle is a pedestrian / foot passenger.

The amazing thing to me is how the magistrates ever decided that the bike pusher was not a pedestrian / foot passenger, which means somebody passing on foot.

On the subject of the citation of the case, it's normal for purely summary matters to have the name of the "informant" ie the person who signed the "information" which is the official application for a summons (it's not a grass. :roll: ) Pre-CPS, that would normally be a police officer and I've known several who have had their name on a case that made it into the books. "Regina" is only used for indictable offences.

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Re: Crank -v- Brooks - an appeal.

Postby squeaker » 17 Dec 2011, 12:16pm

thirdcrank wrote:The amazing thing to me is how the magistrates ever decided that the bike pusher was not a pedestrian / foot passenger, which means somebody passing on foot.
The magistrates were probably car drivers - explains everything :roll:
"42"

thirdcrank
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Re: Crank -v- Brooks - an appeal.

Postby thirdcrank » 17 Dec 2011, 2:13pm

In those days, one of the benefits of RAC / AA membership was free leag representation at magistrates' court, with the possibility ofd help with an appeal if the issues raised affected the rest of the membership. I think those oganisations retained suitable local solicitors to act on behalf of their members - a good local solicitor can often use a bit of local knowledge. The magistrates always have a legal advisor (who used to be called the cout clerk) to help them but they are not necessarily qualified lawyers afaik. The case was initially dismissed on a defence submission of 'no case to answer' which must involved the arguing that the cyclist was the driver of a carriage and as such could not be a pedestrian. That convinced the magistrates and their clerk but not the prosecutor or Lord Justice Waller.

I think it's worth pointing out that anybody seeking to use this case to justify wheeling a bike on a footway is using the same IMO flawed logic the other way round ie a cyclist pushing a bike is a pedestrian therefore they cannot be driving a carriage. Nobody ever knows for certain which was a judgment will go, or we could dispense with a lot of expensive judges, but I'd put a half crown on the wheeler losing (Make that an each way bet :wink: )

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Re: Crank -v- Brooks - an appeal.

Postby snibgo » 17 Dec 2011, 3:11pm

In those far-off days of the late 1970's, perhaps the defence's argument was something like:
(1) a bicycle is a vehicle and a carriage,
(2) therefore someone riding or wheeling a bike is driving it,
(3) therefore he is a driver not a pedestrian,
(4) therefore he doesn't take precedence over motorists at Zerba crossings.

I think we would now say that:
(1) is true,
(2) may or may not be true,
(3) is false (even though he may be a driver, he is certainly a pedestrian), and so
(4) is also false.

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Re: Crank -v- Brooks - an appeal.

Postby Mick F » 17 Dec 2011, 3:33pm

snibgo wrote:(3) is false (even though he may be a driver, he is certainly a pedestrian)
Take the argument to extreme:

I agree that a person pushing (and walking) a bicycle is both a "driver" and a "pedestrian". However, what about pushing a motormower or leading a horse and cart? .... and God forbid, pushing a car?
Mick F. Cornwall

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Re: Crank -v- Brooks - an appeal.

Postby snibgo » 17 Dec 2011, 3:47pm

I know even less about motoring law than cycling law, but I suspect a person pushing a car would be both a pedestrian and a driver.

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Re: Crank -v- Brooks - an appeal.

Postby TonyR » 17 Dec 2011, 4:04pm

Bailii is usually a good place to look as its free although it seems not to have it on a quick look.

*441 Crank v Brooks

Queen's Bench Division

16 May 1980
[1980] R.T.R. 441

Waller LJ and Stephen Brown J

16 May 1980

Pedestrian crossing—Precedence—Pedal cyclist on foot, pushing bicycle and using crossing—Whether ‘foot passenger’— Road Traffic Regulation Act 1967 s 23(1)(5) — Zebra Pedestrian Crossings Regulations 1971 reg 8

Section 23 of the Road Traffic Regulation Act 1967 provides:

‘(1) The … Minister may make regulations with respect to … precedence of vehicles and foot passengers … at … crossings … (5) A person who contravenes any regulations made under this section shall be liable … to a fine…’

Regulation 8 of the Zebra Pedestrian Crossings Regulations 1971 provides:

‘Every foot passenger on the carriageway within the limits of an uncontrolled zebra crossing shall have precedence within those limits over any vehicle and the driver of the vehicle shall accord such precedence to the foot passenger, if the foot passenger is on the carriageway within those limits before the vehicle or any part thereof has come on to the carriageway within those limits…’

A cyclist, who was on foot pushing her bicycle on a ‘Zebra’ pedestrian crossing, intending to cross to the other side of the road, was knocked down by a motor car driven by the defendant. He was charged with failing to accord precedence to a foot passenger, contrary to regulation 8 of the Zebra Pedestrian Crossings Regulation 1971 and section 23(5) of the Road Traffic Regulation Act 1967 . On a submission of no case to answer on the ground that a cyclist pushing a bicycle was not a ‘foot passenger’, the justices were of opinion that a cyclist could not become a foot passenger at will, and they dismissed the information.

On appeal by the prosecutor:

Held, allowing the appeal, that a person on foot and pushing a bicycle throughout the time of using a ‘Zebra’ pedestrian crossing was a ‘foot passenger’ within regulation 8 (pp 442L–443A) and the fact that a bicycle was being pushed at the time was immaterial (p 443B); that, therefore, the justices had erred and the case would be remitted to them with a direction to continue the hearing.

No case is refered to in the judgment or was cited in argument .

Case stated by Cheshire Justices sitting at Sandbach

The defendant, Clive Brooks, was summoned to appear before the justices on information of the prosecutor, Brian Crank, a police inspector for the Cheshire Constabulary, for that he on 14 March 1978 at Elworth in Cheshire, being the driver of a motor vehicle, namely, a motor car in London Road, did fail to accord precedence to a foot passenger on the carriageway within the limits of an uncontrolled crossing, such foot passenger having been within those limits before the vehicle or any part thereof had come within those limits, contrary to regulation 8 of the Zebra Pedestrian Crossings Regulations 1971 and section 23(5) of the Road Traffic Regulation Act 1967 *442 .

[ The justices heard the information on 11 July 1978 and ] … found the following facts. A witness had cycled to a post office situated in London Road, Elworth, Cheshire from her home. The witness having visited the post office walked to the pavement edge pushing a bicycle with the intention of crossing the road by means of the pedestrian crossing situated near the post office. The witness while pushing her bicycle on the pedestrian crossing was knocked down by a motor car being driven by the defendant. The intention of the witness was to remount the bicycle on the other side of the road to continue her journey home.

On a submission of no case to answer it was contended on behalf of the defendant that a person pushing a bicycle was not a ‘foot passenger’. The following authorities were quoted:

McKerrell v Robertson, 1956 SLT 290

Wilkinson's Road Traffic Offences 9th ed (1977)p 450.

The justices, having heard the contentions from both the defendant's solicitor and the prosecutor, preferred the view that a cyclist could not become a ‘foot passenger’ at will. They, therefore, dismissed the information on the basis of that submission.

The prosecutor appealed.

The question for the opinion of the court was whether the justices were right in law in dismissing the information on the submission that a person pushing a bicycle was not a ‘foot passenger’.
Representation

Roger Bell for the prosecutor.
The defendant did not appear and was not represented.

JUDGMENT

WALLER LJ

This is an appeal by way of case stated from a decision of Cheshire Justices sitting at Sandbach on 11 July 1978.

The defendant was summoned for a breach of regulation 8 of the Zebra Pedestrian Crossing Regulations 1971 and section 23 of the Road Traffic Regulation Act 1967 , for that he on 14 March 1978 at Elworth in Cheshire, being the driver of a motor vehicle, namely, a motor car in London Road, did fail to accord precedence to a foot passenger on the carriageway within the limits of an uncontrolled crossing, such foot passenger having been within those limits before the vehicle or any part thereof had come within those limits.

The justices found that a witness had cycled to a post office in London Road. Having visited the post office she walked to the pavement edge pushing a bicycle with the intention of crossing the road by means of the pedestrian crossing situated near the post office. The witness while pushing her bicycle on the pedestrian crossing was knocked down by a motor car being driven by the defendant. The intention of the witness was to remount the bicycle on the other side of the road to continue her journey home.

The justices accepted a submission that there was no case to answer and they ask this court's opinion whether they were right in law in dismissing the information on the submission that a person pushing a bicycle was not a ‘foot passenger’.

In my judgment a person who is walking across a pedestrian crossing *443 pushing a bicycle, having started on the pavement on one side on her feet and not on the bicycle, and going across pushing the bicycle with both feet on the ground so to speak is clearly a ‘foot passenger.’ If for example she had been using it as a scooter by having one foot on the pedal and pushing herself along, she would not have been a ‘foot passenger’. But the fact that she had the bicycle in her hand and was walking does not create any difference from a case where she is walking without a bicycle in her hand. I regard it as unarguable the finding that she was not a foot passenger.

I would allow this appeal and answer the question that the justices were not right in law in dismissing the information.

STEPHEN BROWN J

I agree
Reported by Mrs Rachel Davies Barrister-at-Law

*444
Representation

Solicitors for the prosecutor: Sharpe , Pritchard & Co for E C Woodcock , Chester

Appeal allowed. Case remitted to the justices with a direction to continue the hearing. Order for payment of prosecutor's costs out of central funds

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Re: Crank -v- Brooks - an appeal.

Postby thirdcrank » 17 Dec 2011, 4:35pm

I think it's useful to know how a court would reach a decision, which might be in either direction. It's important to understand that once a point has been decided by the higher courts, it can only be changed by a decision of an even higher one. Otherwise, it can only be reconsidered if the court "distinguishes" it by effectively saying that although the earlier decision seemed to be about this very point, we are talking about something sufficently different for the decision not to apply, so it's not really being changed at all, even if it looks like it.

To get the legal ball rolling, a defendant would receive a summons to appear at court and as well as saying when and where to turn up, it would set out in detail the alleged offence including the legislation prescribing the offence. When I was a lad there was a box of postcards behind the station counter with all the common offences on their own cards.

I haven't got a set of summons headings but I've made on up, and it won't be far from the real thing.

That you did, on (date)/ at (place)/ wilfully / drive /a carriage / upon a footpath, made or set apart for the use or accomodation of foot passengers, by the side of a road called (name of road.)

Contrary to section 72 of the Highways Act 1835.
I've divided that into chunks which reperesent the points which the prosecution must prove if the offence is denied. Once the formalities have been completed, such as the defendant agreeing they are the person named in the summons, if it's Not Guilty plea, the prosecutor may outline the evidence they intend to introduce and the prosecution witnesses are called in turn. Assuming the facts are agreed eg that the defendant was on a footway wheeling a pedal cycle, the evidence in chief would probably be short and unchallenged. Then, at the conclusion of the prosecution case, the defendant or their advocate would make an application that the case should be dismissed "No case to answer." The word I've coloured red would be the one they would try to demolish. They'd have the textbooks out with every decision made on the subject since the act was passed, and even before, if they thought it would help. (Im assuming that there isn't already a case which settled this.) The prosecutor would have the opportunity to reply and they would either accept the submission (which I have never seen happen) or try to demolish what the defence had said. Performance at this stage can depend a bit on how much notice they had of what was coming or if they anticipated it. The magistrates would have a think, possibly withdrawing for a private discussion if they were not immediately unanimous, and make a ruling. Depending on which way it went, the defendant would be acquitted or the case would proceed and the defence would probably change the plea to Guilty.

At that stage, nothing would have happened to affect the legal landscape, but if either side decided they wanted a second opinion, it would be off to the QBD for a ruling on the word "drive" in the Highways Act 1835 as it might apply to wheeling a pedal cycle. ie a decision on one very narrow point. Both sides would present their arguments, possibly in more detail, especially as the prosecution would have instructed counsel. The judge would decide against the background of legislation that had been in force almost two centuries and which the govt had only recently decided to add to the limited repertoire of PCSOs' powers.
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And while I've been scribing, TonyR has posted the full monty, for us to savour. :D