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Royal Courts of Justice

The Strand

London WC2

Tuesday 23rd March 1999

B E F O R E :

LORD JUSTICE HENRY

MR JUSTICE ASTILL

and

HIS HONOUR JUDGE GRIGSON

(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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COLIN MICHAEL SPENCE

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HG

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MS ROSEMARY BURNS appeared on behalf of the APPELLANT

MR ALISDAIR WILLIAMSON appeared on behalf of the CROWN

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Tuesday 23rd March 1999

LORD JUSTICE HENRY: On 24th June 1998 in the Crown Court at Knightsbridge before Mr Recorder Kennett-Brown, the appellant was convicted of dangerous driving and fined £500 with 14 days' imprisonment in default, disqualified for two years and ordered to pay £240 prosecution costs. He now appeals against conviction with the leave of the single judge.

No issue arises as to the quality of the driving - mercifully no one was hurt by it - but a defence was raised as to whether the driving had been in a public place.

Section 2 of the Road Traffic Act 1988, which sets out the offence of dangerous driving, says it has to be "on a road or other public place".

The definition section of that Act, section 192(1) defines road as "any highway and any other road to which the public has access". There is no statutory definition of "public place", but, as the Court did in the case of DPP v Vivier [1991] 4 All ER 18 at 28, we are content to proceed on the basis that the public place should in context be construed ejusdem generis with road as representing a place to which the public has access.

The place in question was a small car park, large enough for some twelve cars or thereabouts, that was in what can be best described as a yard outside a small office building connected to a foundry on an urban industrial estate. The flank wall of the yard was the outside of this small office building. The other two sides, apart from the roadside, were enclosed by a hedge and a fence. The roadside of the yard was open to the road but with bollards preventing access from the road, and had a swing gate to permit entrance which was open by day and closed by night. The car park led to nowhere other than the door of the office building.

There was evidence before the court that employees, customers and other business visitors used the car park. There was no evidence of any other user of the car park; no evidence of the general public as such using the car park; nor, it should be said, was there any reason from what we have seen of the photographs of this car park on this industrial estate why any member of the general public should go there. The generally received truth that where there is a car parking space, there are cars seeking to fill it would not, in our judgment, apply.

In considering the law in this matter, it is convenient to start with the case of Harrison v Hill, decided in the Court of Justiciary in Scotland in 1932, (1932) JC at 13, 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 this:

"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."

The evidence in this case that it was employees, customers and business visitors who used the car park led us to the conclusion that those categories of people were a special class (those with business there) as distinct from the members of the general public. (We cite the formulation of the test which we have applied from DPP v Vivier (below).) There was here no use by members of the public generally. True, there was no physical obstruction to keep the public out, but no evidence of any use - unsurprisingly in our view - other than that special class of those with business there.

In the absence of evidence of any such user, there was no case to go to the jury (see the citation from Harrison v Hill above; see Pugh v Knipe [1972] RTR 286 and Deacon v AT (A Minor) [1976] RTR 244). Those cases emphasise that the fact that there is neither physical obstruction nor any sign forbidding entry to those with no business there does not itself mean the public have access. There must be evidence that the public utilises that access. In each of those cases, and in this case too, there was no such evidence.

That would mean that this appeal inevitably succeeds.

We should add this. Had there been any such evidence then it would have been an issue to go to the jury, but the summing-up in this matter was itself flawed in any event, in that the Recorder in his direction to the jury omitted the legal necessity for actual user by the public of the access in question, when he said at 6D:

"There was no bar visible, or physical, to prevent people going in there. But it is a matter for you to decide whether that car park, with this alleged incident took place, was indeed a place to which the public could have access."

That would not accurately set out the test for the reasons given: Namely have they (the general public) could have such access, but they did not utilise it.

Therefore for those reasons this appeal must be allowed and the conviction quashed.