The fact that 200 watts has been mentioned probably suggests a prosecution will be under the British EAPC regulations of 1983. In my view that would be an unlawful prosecution since those EAPC regulations appear to be invalid since the EU lawfully ordered the UK government to scrap national regulations on type approval of e-bikes by 9th November 2003.
Therefore a full defence can be mounted.
Here in a nutshell is the EU position on our UK law, I've highlighted bold the most important sections:
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The EU-Directive 2002/24/EC concerning the Type approval for two and three wheeled vehicles has been released by the European Parliament and the Council on March 18, 2002. Applicable November 9, 2003 in all EU Member States.
Until May 9, 2003 the current national regulations concerning the status of pedelecs will remain unchanged. After May 9, 2003, the EU Member States have the choice of either keeping their current regulations for another 6 months or changing over to the EU-directive.
By November 9, 2003 all Members of the EU are required to integrate this Directive into their national legislation and abolish their previous regulations.
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End of extract.
This concerns Type Approval, but since the EU regulation clearly specifies that e-bikes are exempted from type approval as motor vehicles, just as clearly they do not have to have third party motor vehicle insurance.
Therefore the legal argument is as follows:
The EU 2002/EC24 order made unlawful the British EAPC regulations since 10th November 2003.
This legal argument has two supporting statements:
1) The DfT (Department for Transport) has long been preparing new legislation but that is prevented from completion awaiting the latest EU measures. This indicates that the lawful EU regulations in this area have primacy over UK ones as made clear in order 2002/24EC.
2) The DfT have archived the consumer advice web pages on the 1983 EAPC regulations, clearly showing that they are no longer valid for consumer guidance. This is a de facto acknowledgement of their doubtful status in law.
Faced with these arguments I very much doubt any magistrates court would risk convicting, it is far more likely they'd take one of the following options in order of likelyhood.
1) Dismiss the prosecution on the grounds of it being invalid.
2) Acquit on the grounds that the legal position was uncertain.
3) Refer the case to a higher court. Here I still believe the defence would succeed.
Of course this means the legality of the e-bike in question does not matter, it could have any motor size, be any weight and have an independently acting throttle, since these are not in question. The only thing being challenged is the legality of the prosecution.
Of course if the bike was illegal, having the case thrown out would leave the police free to open a new and lawful prosecution on that. However, having lost first time there's a chance they would satisfy themselves with a standard cautionary letter, advising the defendant of his obligations in law, since these letters usually do not spell out the law in question.
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