Police removal of coach was unjustified

LAW REPORT: 20 April 1995

Carey v Chief Constable of Avon and Somerset.

Court of Appeal (Lady Justice Butler-Sloss, Lord Justice Morritt and Lord Justice Hutchison).

6 April 1995.

Before a vehicle can be removed under regulation 3(1)(a) of the Removal and Disposal of Vehicles Regulations 1986 for causing an obstruction to persons using the road, it must not merely obstruct the highway but obstruct persons who were using, or could be expected to, use the road.

The Court of Appeal unanimously allowed an appeal by the plaintiff, Gary Peter Carey, from Judge Wigmore's dismissal of his claim against the Chief Constable of Avon and Somerset.

The plaintiff, a New Age traveller, lived with his three children in a converted coach. The coach was parked for some time in a public highway in a residential area in Bristol. There was sufficient room for single- line traffic.

The coach was towed away by the police relying on powers in regulation 3(1)(a) of the Removal and Disposal of Vehicles Regulations 1986 (SI no 183), namely that the vehicle was "on a road in such a position or in such condition or in such circumstances as to cause obstruction to persons using the road". The plaintiff claimed the removal was unlawful.

Ian Glen (Bobbetts Mackan, Bristol) for the plaintiff; Peter Wadsley (Avon and Somerset Constabulary) for the Chief Constable.

LORD JUSTICE HUTCHISON said that the regulations did not create an offence in relation to the leaving of a vehicle on a road but empowered a constable to require the removal of vehicles to which regulation 3 applied.

Section 137 of the Highways Act 1980 and Regulation 103 of the Road Vehicles (Construction and Use) Regulations 1986 created offences in connection with the obstruction of highways.

An obstruction for the purposes of section 137 and regulation 103 was established by proof that any part of the highway had been obstructed so as to deny access to the public to that part, and the obstruction must be wilful, without lawful excuse and constitute an unreasonable use of the highway.

The obvious intent of the Removal Regulations was to permit the removal, in cases of urgency (ie actual obstruction), of vehicles which might well be an obstruction not involving unreasonable use of the highway.

The absence of any qualification as to reasonableness of the use of the highway was a strong pointer that "obstruction" in the Removal Regulations did not bear the same meaning as in the other provisions.

It meant an obstruction to the use of the road by persons who were using or might be expected to use it.

The words "obstruction to persons using the road" meant "obstruction to persons who were or might be expected to be using the road". Thus, the regulations permitted the removal not only of a vehicle which was actually obstructing a road user but also of a vehicle which was so positioned as to obstruct a road user whose arrival at the place where the vehicle was could be anticipated.

The essential requirement for the exercise of the power of removal was that the vehicle should not merely be occupying part of a highway and thus impeding the free access of members of the public to every part of the highway but that it should be considered to be obstructing the passage of road users along the highway - hindering or preventing them from getting past.

That involved a judgement on the part of the police officer concerned, who must make an assessment of the extent to which that vehicle in that road constituted an obstruction to the passage of users of that road.

Before the judge, the police gave evidence that they were concerned mainly with the length of time that the coach had been parked and did not justify the removal on the basis of actual obstruction.

On the evidence the plaintiff's vehicle was not a vehicle which had been permitted to remain at rest on a road in such a position or in such condition or in such circumstances as to cause obstruction to person using the road.

Ying Hui Tan, Barrister