Based on Opinion by Counsel presented to a Public Inquiry in Milton Keynes, July 1997
Section 72 of the Highways Act 1835 provides that a person shall be guilty of an offence if he :
"shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot-passengers … or shall wilfully lead or drive any … carriage of any description … upon any such footpath or causeway ".
Section 85 of the Local Government Act 1888 extends the definition of "carriage" to include "bicycles, tricycles, velocipedes and other similar machines".
"Leading or driving" clearly does not apply to a bicycle. It would apply only to other types of carriage drawn by animals, or to a horse, ass, sheep, mule, swine, cattle, truck or sledge (which are also referred to specifically in Section 72). The only basis of the offence would therefore be if someone pushing a bicycle were deemed to be "riding" it.
More significantly there is clear authority for the proposition that section 72 of the Highways Act 1835 only applies to footpaths which run along the side of a road (R v Pratt [1867] 3 QBD 64, followed in Selby v DPP [1994] RTR 157). In his judgment in Pratt, Mellor J states:
"It is clear what the object of this enactment [i.e. Section 72 Highways Act 1835] was: it was intended not to protect footpaths simpliciter, but only footpaths or causeways by the side of a road"
This interpretation was accepted by the Court of Appeal in Selby, a case which concerned a motorcyclist sitting astride a motorcycle and 'freewheeling' down an alleyway which linked two roads but did not itself run alongside a road. In delivering judgment in the Court of Appeal, Henry J said:
"It is clear from R v Pratt that they [i.e. the Magistrates in this case] were bound to find that the alleyway in question did not constitute a footpath … and their finding on that point was quite right"
Finally, there is clear judicial authority for the proposition that anyone pushing a bicycle is a "foot-passenger" (Crank v Brooks [1980] RTR 441) and is not "riding" it (Selby). In his judgment in the Court of Appeal in Crank v Brooks, Waller LJ stated:
"In my judgment a person who is walking across a pedestrian crossing 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 passenzer "
Furthermore, in his judgment in the Court of Appeal in Selby Taylor LJ noted that when the case was heard by the Magistrates:
"… there was no evidence before them at that stage as to how that travel had been accomplished, namely, whether the appellant had been riding the motorcycle or wheeling it"
It is therefore apparent that there is a clear difference between riding a motorcycle and wheeling it. Henry J had commented earlier in his judgment that what applies to a motorcycle must also apply to a bicycle.