Mr Harrison was convicted by the Sheriff-substitute of an offence under section 7(4) of the 1930 Act on the ground that, while disqualified from holding a driving licence, he had driven a vehicle on a specific road. The Sheriff-substitute stated a case for appeal to the High Court. The facts admitted or proved included the following:
‘[O]n the road leading from Drygate Road to Auchenames Farm House, occupied by Robert Middlemas, in the Parish of Kilbarchan, appellant drove a motor vehicle, namely, a motor lorry. There was no evidence to show that appellant drove said motor vehicle on any other road, nor was he charged with driving on any other road . . The said Drygate Road is a public highway. Said road leading therefrom to said farmhouse is a road leading only to said farmhouse, and there are no houses other than said farmhouse on said road. Said road is part of the farm of Auchenames aforesaid, and goes no further than said farmhouse. It is not maintained by any public authority, but the said Robert Middlemas is bound under the lease of said farm to maintain said road. There is no gate on said road, nor, except as aftermentioned in the summer time, any obstacle to prevent members of the public going on to it from the said highway, nor was there any intimation that it was not open to the public. In the summer time, when the farmer’s cattle are at the grass in the fields adjoining said road, the farmer puts a pole across the entrance to said road to prevent his cattle straying on to the said Drygate Road. Any member of the public desiring to call at said farmhouse for any purpose uses said road to get to the farmhouse, and members of the public not having business at said farm frequently walk, on said road. . . The said farmer has on several occasions put members of the public off said road when he had reason to believe that they were likely to do damage to his crops in the field adjoining said road.’
The primary question of law stated for the opinion of the High Court was whether the Sheriff-substitute had been entitled to hold that the road was a ‘road’ to which the 1930 Act applied.
Lord Clyde said: ‘There must be, as 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.’
and ‘I think that, when the statute speaks of ‘the public’ in this connection, 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 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 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 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 impliedly, by the person or persons to whom the road belongs.’ Lord Sands: ‘Any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied.’
Lord Sands expressed his own reasoning as follows: ‘As may be clearly gathered from the terms of the Act here in question, the object of the special legislation in regard to certain prosecutions and offences was the protection of the public. This clearly explains why the prohibition here dealt with is not limited to public highways but extends to any road to which the public have access. It is the public who are to be protected, and the provisions of the Act are made to apply to all roads on which the motorist may encounter members of the public.
The learned Sheriff-substitute has found that the road here in question was a road answering that description. I think that, on the facts stated, he was entitled so to find. In my view, access means, not right of access, but ingress in fact without any physical hindrance and without any wilful intrusion. In one view, it is a technical trespass for any person to put a foot upon an owner’s land without the owner’s permission. But, as is matter of common knowledge, there are many roads upon which members of the public enter without any sense of wilful intrusion. In my view, any road may be regarded as a road to which the public have access upon which members of the public are to be found who have not obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied.’
Lord Blackburn gave a very short judgment: ‘I concur. I have no doubt that the definition of a ‘road’ in section 121 of the Road Traffic Act is wide enough to cover the road in question in this case, and that the conviction was justified. The definition applies to all roads, whether public or private, ‘to which the public has access,’ and it appears to me that any driver of a motor car whose licence had been withdrawn would contravene the Act if he entered upon a private avenue and drove a car thereon without the express permission of the owner of the avenue.’
Lord Justice-General (Clyde), Lord Sands
1932 JC 13
Cited – Clarke v Kato and Others; Cutter v Eagle Star Insurance Co Ltd HL 25-Nov-1998
Save exceptionally, a car park is not a road for the purposes of road traffic legislation on obligatory insurance. It is an unjustified strain on the language. A distinction made between the road ways and the parking bays was artificial and . .
Cited – May v Director of Public Prosecutions Admn 15-Apr-2005
Whether the car park where the driving took place was a ‘public place’ within the meaning of section 3.
Held: The appeal failed.
Laws LJ set out the following propositions as accurately summarising the relevant legal principles:
a. . .
Cited – Harriot v Director of Public Prosecutions Admn 4-May-2005
The defendant appealed by case stated against his conviction under the 1988 Act of possessing a bladed article in a public place. He had been found in the forecourt of a hostel by the police seeking to re-enter after being excluded. He said that it . .
Cited – Tichborne v Weir CA 1892
The 1833 Act provided that after 20 years of adverse possession ‘the Right and Title’ to the land ‘shall be extinguished’.
Held: By barring the remedy and extinguishing the title of the person out of possession, the Act did not create a new . .
Cited – Houghton v Scholfield QBD 1973
The Court was asked whether the cul-de-sac to which the TRO applied was a ‘road’ within the definition in section 104 of the 1967 Act. At 243-244 Lord Widgery CJ, with whom Melford Stevenson and Brabin JJ agreed, said:
‘On the question of what . .
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 . .
Cited – Spence, Regina v CACD 23-Mar-1999
There was an allegation of an offence of dangerous driving contrary to section 2 of the 1988 Act. The issue was whether the car park where the driving had taken place, not being a road, was an ‘other public place’. The case turned on the fact that . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 December 2021; Ref: scu.194254