The Jeff Cumberbatch Column – Absurdity-at-Law
If the words of an Act admit two interpretations, and if one interpretation leads to an absurdity, and the other does not, the Court will conclude the legislature did not intend the absurdity and adopt the other interpretation”-per Lord Esher MR 
A driver does not have to exit the vehicle to use a hand held device. The driver is permitted to draw up the vehicle in a safe manner on a road or highway and make use of the cellular without infringing the Road Traffic Act. –Royal Barbados Police Force
I have often made the comment in this space that many of the happenings in Barbados remind so much of a comedic reprise from the theatre of the absurd. If there were ever any doubt as to the validity of this assessment, a number of recent incidents would have offered cogent evidence of its actuality.
First, there was the epiphany that every rider of a bicycle on the nation’s streets will henceforth be required to wear a helmet. I rate it as an epiphany because this mandate had not been thitherto bruited as one of the new traffic regulations. Perhaps it was lost in the hubbub surrounding the prohibition of distracted driving through cellphone use while driving or operating a motor vehicle. I shall return to this measure later.
Most will be familiar with the maxim that “ignorance of the law is no excuse”. However, as I reminded a student last week, this maxim does not possess the width of application that it is popularly thought to have. First, it applies only to ignorance of the criminal law, and not to the intricacies of the law of tort, contract or equity that no layman can reasonably be expected to know. And even then, it probably applies only to certain types of criminal conduct. As one legal scholar notes,
“…The rule that ignorance [of the law] is no excuse does not work as well for crimes that are not inherently wrong. Today, there are thousands of crimes that are crimes only because they are prohibited by statute. For these types of crimes—known as “wrongs by prohibition,” or malum prohibitum—the principle that ignorance of the law is no excuse works only when a person knows what the statute requires or, at a minimum, could have discovered what the statute requires with a reasonable amount of effort”.
In consequence, good governance would require that the target public be formally made aware of those legislative provisions that would criminalize conduct thitherto accepted as cultural. This immediately raises the further question as to the precise mischief sought to be remedied by this provision.
In all my years of existence, I have never known any bicycle rider to wear a helmet –indeed, I observed my father ride a bicycle every day for over forty years without the accompaniment of a helmet or, indeed, any other headgear except a cloth cap; with no adverse effects. Of course, this fact does not, per se, obviate the need for the current requirement, but one would have expected at least that the regulation would have been preceded by an alarming incidence of head injuries to cyclists caused by the failure to wear a helmet. We have not been apprised of any such. It is readily conceded that a head injury may be sustained in case of a fall from a bicycle, but common sense requires that one guard against reasonable probabilities only and not against fantastic possibilities.
In his essay on the effectiveness of law to which I referred two weeks ago, Anthony Allot makes the cogent point that in customary-law societies; “in many instances propositions for new laws only take effect after they have been put to and accepted by those who will be subject to them…the legislator generally works with the presuppositions, practices and limits of acceptance of [its] communities…” The rule of law should demand no less in our more sophisticated society.
The “snafubar” of the past week however was the mixed messages coming from the local constabulary that is charged with enforcing the recent regulation that prohibits the use of, inter alia, a hand held cellphone, while driving or operating a motor vehicle on a road or a highway. The text of the regulation may be found here.
On Thursday, the head of the police traffic division(as he then was), asserted at a press conference, “There have been a lot of queries about using cellphones after pulling off on the side of the road but the law is pretty strict about that; also because you are actually still driving. As long as you are in control of your vehicle and the levers which cause motion, then you are still driving so the only way you are going to be able to use your cellphone is if you are going to actually get out of your vehicle – if you are behind the steering wheel, technically you are still driving”.
To my best knowledge, familiarity with the rules of statutory interpretation form no part of a police officer’s training; thus, in effect, this was at least a lay interpretation and, at best, an indication of the proposed police methodology of enforcement.
One of the accepted rules of statutory interpretation is that enactments must be construed according to the plain literal and grammatical meaning of the words in which they are expressed unless that construction leads to…some palpable and evident absurdity” -per Alderson B in AG v Lockwood (1842). Plainly, to assert that one may be considered as driving or operating a vehicle pulled off to the side of the road merely because he or she is in control of it, leads to a patent absurdity and both the Royal Barbados Police Force [RBPF] and the Honourable Minister of Transport were quick to offer contrasting opinions publicly. Of course, in the case of the Minister, his opinion, despite his legal training, is no more authoritative than that of the former head of the Traffic Division, though it is perhaps better informed. In the case of the RBPF’s “opinion”, drivers will be much relieved to know that the official enforcement policy will not treat the pulling off the road to use the cellphone as criminal.
I sympathize somewhat with the officer though, who, according to today’s press, has seemingly been relieved of his duties for his pains. The law makes a not readily fathomable distinction among “driving”, “operating” and “being in charge or control of a vehicle”. While the first concept is relatively clear, the second, used mainly in the US and also in our Regulation 148B, and the third, of UK formulation, are less self-evidently so.
In one case from Wisconsin, the Supreme Court held that the defendant did not “operate” a vehicle where he was merely sitting in the driver’s seat of a parked car. In this case the engine was running. However, evidence was presented that showed the defendant was not the one who started the vehicle or left the engine running. There was no evidence that the defendant “physically manipulated or activated the controls necessary to put the vehicle in motion.”
In contrast, the Missouri Court of Appeals has recently confirmed that if the keys are in the ignition and the car is running, you are deemed to be “operating a motor vehicle.” Therefore, under current Missouri case law, a drunk driver who decides to sleep in his or her car while listing to the radio could still be charged for “driving while intoxicated” [DWI]. Another common scenario where a DWI charge could be given to a driver is where the driver takes a nap in the vehicle with the air conditioner or heater in use. Obviously, in most cars the keys must be in the ignition to use the car stereo, air conditioner, or heat in a vehicle.
Might it have been then that the officer was following similar reasoning to that of the holding of the Missouri Court of Appeals for his definition of “operating”? Even more intriguing is the notion of being “in charge or in control of a motor vehicle” that might have also influenced his assertion.
According to a recent decision, you could still be prosecuted for being in charge of a vehicle if you are found in the passenger seat or the back seats. You do not have to be sitting in the driver’s seat to be considered “in charge”. This is not in the text of our regulation, however.
To be continued…