Every charge of drink driving, drug driving or being in charge of a vehicle whilst over the prescribed limit contains a reference to the location of the alleged offence and to it being a “road or public place.”
However, it does not necessarily follow that the location is a public road or place just because the charge says so. It is an issue which arises in a surprisingly high number of cases in the Magistrates’ Court.
So, what is a public place or road? It may seem like an easy question to answer – but the amount of High Court case law where the issue has arisen on appeal demonstrates that it is far more nuanced than simply whether it is privately or publicly owned.
The case of May v DPP (2005) EWHC 1280 Admin referred to the following five principles which a Court has to consider relation to whether a location is a public place:-
- “i. The burden of proving that a particular location is a ‘public place’ rests on the Crown to prove beyond reasonable doubt’
- ii. There must be evidence that the public actually utilised premises before a Court can conclude that they are a ‘public place’. It is not sufficient to say that the public could have access if they were so inclined:;
- iii. Premises will be private where they are entered for reasons beneficial to the occupier or where they are visited for business purposes:
- iv. However, even business premises will be ‘public’ if the location is a public service, a railway station, a hospital or other public utility: This will include a pub car park during licensed hours;
- v. There is distinction is to be made where premises are occupied by a large number of people — even if there has been a condition of entry for those people, the premises will be a ‘public place’. This is because a potentially large number of individuals need to be caught or protected by the umbrella of the legislation.”
In the case of Deacon v AT 1976 RTR 244 it was held that a road in a housing estate, used only by those who resided in the estate or the visitors, and not by the public generally was held not to be a road.
The fact there was neither physical obstruction nor any sign forbidding entry to those with no business there did not itself mean the public had access. There must be evidence that the public utilises that access.
Therefore a car park within a residential premises such as apartments will not be a public place even if there are no signs and no barrier prohibiting use if it is used by residents and visitors. A member of the public would have no reason to be there unless he lived there or was visiting.
A holiday or caravan park used by a large number of people is a public place even if access is controlled by a barrier DPP v Vivier [1991] 4 All ER 18. Those who entered the car park did not become a special class of people when entering. Those seeking entry were simply members of the general public and it was unreal to suggest that some transformation occurred at the gate whereby they shed their identity as members of the general public and took on instead a different status as caravanners and campers.
Conversely, in Cowan v Director of Public Prosecutions [2013] EWHC 192 (Admin) a drink driving offence conviction where the offence was alleged to have occurred within a University campus was overturned, because of a lack of evidence that the public as a whole had access to the roadway.
A pub car park during licensed hours will be a public place if there Is unimpeded access to the public and it is used by them (Sandy v Martin [1974] Crim LR 258). However, the position may be different outside licensing hours where the car park is not permitted for use by the public.
Are residential roads always public under Road Traffic legislation?
Not necessarily. The same principles as referred to above will apply. A cul-de-sac that is used only by residents and visitors will not be public where there is no evidence of use by the general public.
In Robinson v DPP 1995 EWHC 310, it was held that a cul-de-sac was a public road. However, this was because there was evidence before the Court that the general public used it as opposed to only residents and visitors. A police officer gave evidence before the Court that he had seen it being used by the general public and the Defendant in his own evidence stated that it was used by the public.
Without actual evidence that the public use the road, it must be considered by the Court to be private.
This was recently confirmed in Anastassova v DPP EWHC 1586 (Admin) in which Mr Justice Fordham stated in his Judgment “the appearance of a normally constructed road is insufficient in law and, where the only evidence of access is by people who use the road as residents or visitors to residents, that cannot and will not suffice.”
In charge of a vehicle
We have successfully defended cases of being “in charge of a vehicle whilst above the prescribed limit” where our clients have been arrested after having been found inside their vehicles with in a car park.
In such cases the issue of whether the location was a public place can be distilled within to two key questions. Does the general public have access (i.e. can they enter the location lawfully at the time) and secondly, do people other than residents and visitors actually use the car park. This is an important issue as unless both questions can be answered in the affirmative, the charge should be dismissed.
If you have been arrested or charged and wish to discuss the issues raised in this article contact us to discuss how we will be able to help.
