England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		12 February 1997

THE LORD CHIEF JUSTICE: Mr Justice Moses will give the first judgment.

MR JUSTICE MOSES: This is an appeal by way of case stated from a decision of the Shrewsbury Crown Court on 17 October 1996. The issue is whether a car park attached to the Princess Royal Hospital was a public place. The issue arises from the following facts stated by the Crown Court.

The respondent was alleged to have driven a car without due care and attention on 23 August 1995 in the Princess Royal car park. She was convicted by the magistrates. She appealed. The point was taken on appeal that the hospital car park was not a public place. There was evidence as to the description of the hospital car park, of which we have seen photographs, from an police officer. He said that there was no time limit as to how long cars could remain in the car park; members of the public attending the hospital were free to use the car park any time of the day or night. It was also used for car boot sales on Sundays. There was also evidence that no one would park there unless they intended to go to the hospital.

The court concluded on this preliminary point that this was not a public place, that it was private land and therefore the hospital authority could expel anybody for trespass if they were making a nuisance of themselves.

The statute with which we are concerned is the Road Traffic Act 1988, of which section 3 reads:

"If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention he is guilty of an offence."

'Road' is defined in section 192, the general interpretation section, under subsection (1) as meaning any highway and any other road to which the public has access, including bridges over which a road passes.

The issue in this case is whether the hospital car park is a public place for the purposes of section 3. It is clear that the words "a public place" to which it refers are words of extension, extending the area where an offence of driving without due care and attention may be committed beyond that of a road. I am fortified in that view because it was only in 1991 that the section was extended to cover a public place other than a road.

The question therefore must be resolved as to what a public place is for the purposes of section 3. It clearly is not confined to land that is privately owned. For that there is ample authority and we have been shown two examples: Elkins v Cartlidge [1947] 1 All ER 829, which concerned the car park of a public house, and R v Collinson (1931) 23 Cr App R 49, which concerned a field where there were some 2,000 people all who came to watch a point to point. The principle must therefore be that a public place is a place to which the public have access.

The next question that arises is to identify what is meant by the public. The public are those who require no special qualification or membership in order to gain that access. If they have access by virtue of some special qualification rather than as a member of the public, they will not gain access as members of the public and the place to which they gain access will not be a public place for the purposes of section 3. Examples can be found in the authorities. One example is a car park of a members' private club to which access can only be gained by virtue of that membership (see e.g. Pugh v Knipe [1972] RTR 286).

What is the proper approach for distinguishing members of the public from those who have some special characteristic by means of which they gain access? The distinction which has been adopted by this court in the past is to consider whether those gaining access to the area in question have some special characteristic or reason personal to themselves which is not possessed by the public at large. But even if the reason is personal, it may be so common and ordinary that it is not capable of removing those persons who have that personal reason for visiting the area from the category of members of the public. Authority for that proposition can be found in Director of Public Prosecutions v Vivier [1991] RTR 205 which was followed by Director of Public Prosecutions v Coulman [1993] RTR 230. Vivier concerned caravaners visiting a caravan park in order to enjoy the delights of caravanning. It was held that they had a personal reason, but that it was not so distinct and different as to remove them from the category of members of the public. Coulman concerned those who were disembarking at Dover into disembarkation lanes who, it was argued, had a personal reason of disembarking into the United Kingdom. But that reason was not sufficient to remove them from the category of members of the public.

In the judgment of Mann LJ in Coulman at page 233H he explained the approach as follows:

"It would appear from the analysis in that decision [Vivier] that the inquiry is as to whether those who were permitted to use the lanes in this case are so permitted because of some special characteristic or reason personal to themselves which is not possessed by the public at large. If they are not, then it is a place to which the public have access. If they are, then it is not."

At page 234 he went on to ask this question:

".... is [the reason] so common a reason capable of removing those who enter the lanes from seaward from their ordinary position as being ordinary member of the public? In my judgment the question answers itself and the answer must be no."

It has been argued on behalf of the respondent that those visiting the hospital will only go to the hospital in order to visit the sick or for some other purpose connected with the hospital. There is on the evidence (so it is argued) no other reason why anyone would want to park in that car park. Therefore, there are only personal reasons why those visiting the car park should do so, and those personal reasons clothed those visiting the car park with a sufficiently special characteristic that they can be distinguished from ordinary members of the public.

In my judgment there is no special or particular reason which would have caused people to visit that car park so as to distinguish them from ordinary members of the public. That hospital car park, it is plain, would have been visited for a large number of reasons (albeit they may be personal), but none of them, in my judgment, would be sufficiently special to distinguish the users of that car park from ordinary members of the public. In those circumstances in my judgment the Crown Court was wrong to reach the conclusion that this hospital car park was not a public place for the purpose of section 3. In my judgment it was a place to which the public in fact had access. For those reasons I would allow this appeal.

THE LORD CHIEF JUSTICE: I agree. It appears from the case stated by the Crown Court that the test which the court applied was one which it itself proposed, namely: if anyone drove onto the car park was there authority to tell them to leave? The court took the view that there was authority to tell them to leave and accordingly found that the car park was neither a road nor a public place. Elkins v Cartlidge, to which my Lord has already made reference, shows that the test which commended itself to the Crown Court is inconsistent with that authority. With reference to the earlier case of R v Collinson (1931) 23 Cr App R 49, Lord Goddard CJ in Elkins said:

"It was a private field and no doubt it could have been closed in at any time and I have no doubt that the proprietor of the field could have objected to any particular person going into it."

That is a clear indication that authority to tell someone to leave does not prevent a place being a public place for the purpose of the section. Accordingly I agree with the view of my Lord that the Crown Court erred and that the appeal should succeed.

MR ATTWOOD: My Lords, it is the appellant's respectful submission therefore that this matter should be remitted back to the Crown Court, along with the opinion of this court, so that the appeal itself may be re-heard.

THE LORD CHIEF JUSTICE: There is no decision on the careless driving?

MR ATTWOOD: The facts were not considered, as I understand it.

THE LORD CHIEF JUSTICE: That must certainly follow. We shall so order.

MR ATTWOOD: I am obliged. The other matter, my Lord, is the question of costs today. It is, in my submission, within the court's power to order that the respondent pays the appellant's costs and I make the application.

THE LORD CHIEF JUSTICE: What do you say?

MISS FORSYTH: My Lords, having been unsuccessful today I find myself in some difficulty opposing that. The respondent herself is not legally aided. She acts today by virtue of her insurance company.

THE LORD CHIEF JUSTICE: We shall allow the appeal, make an order for remission of the case to the Crown Court to continue the hearing and we shall make an order that the successful prosecutor have his costs against the respondent.

MISS FORSYTH: So be it.

___________________________________