The appellant had been convicted by justices of an offence of being in charge of a mechanically propelled vehicle on a public place while unfit through drink, contrary to section 4 of the 1988 Act. The issue was whether the vehicle was on a public place. The place in question was a private car park that provided parking spaces for the employees and customers of a number of businesses. The material facts on the basis of which the justices found that the place was a public place were (a) that there were no physical restrictions on access to the car park, (b) that there were a number of different signs for different parking spaces at the car park, and (c) that the appellant, who was an employee of a public house that had parking spaces in the car park, had parked in the car park on the night in question as a member of the public rather than as an employee.
Held: Applying DPP v Vivier and R v Spence, Julian Knowles J allowed the appeal and quashed the conviction, on the grounds that the car park was not a public place within the meaning of the Act. There was no evidence of any use of the car park by the public in general, as opposed to those members of the public who had business at the premises served by the car park.
Julian Knowles J: ‘In connection with (b) [that is, the need for proof that the public have actually enjoyed access to the place], it is important to make clear that the public’s use of the place in question must be lawful. In other words, the public must have express or implied permission to access it. This was said expressly in the Scottish case of Harrison v Hill, p 16, where the Lord Justice General, in considering whether an ordinary farm road between a public highway and a farmhouse was a road to which the public has access said:
‘I think that, when the statute speaks of ‘the public’ in this connexion, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways.
‘I think also that, when the statute speaks of the public having ‘access’ to the road, what is meant is neither (at one extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical obstruction, of greater or less impenetrability, against physical access by the public; but that the public actually and legally enjoys access to it. It is, I think, a certain state of use or possession that is pointed to. There must be, as [a] matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed-that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs.”
Lord Justice Beatson,
Mr Justice Simon
[2014] EWHC 4572 (Admin), [2019] 4 WLR 46
Bailii
England and Wales
Cited by:
Cited – Bowen and Others v Isle of Wight Council ChD 3-Dec-2021
What makes a road a Road?
The Court was asked whether a Road was a ‘road’ for the purposes of the 1984 Act’
Held: It has often been said that the public access mentioned in the definition of ‘road’ must be both actual access and legal or lawful access. However, simple . .
Lists of cited by and citing cases may be incomplete.
Road Traffic, Land
Updated: 10 December 2021; Ref: scu.542547