England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		10th December 2004

1. MR JUSTICE DAVIS: This is an appeal by way of case stated from a decision of the Justices for the petty session of Hillingdon sitting as a Magistrates' Court at Uxbridge, whereby on 10th July 2003, the magistrates convicted the appellant, Mr Lewis, of driving a motor car when he had consumed alcohol in excess of the prescribed limit, contrary to the provisions of section 5 of the Road Traffic Act 1988 and Schedule 2 Road Traffic Offenders' Act 1988.
2. The background facts are of the simplest, and are as set out in the case stated, which in the relevant respects reads as follows:

"2. We heard the said information on 10th July 2003 and we have found the following facts:

"2.1 That on 2nd June 2003 at The Black Bull public house car park, Victoria Road, in the London Borough of Hillingdon, the appellant was driving a motor vehicle, namely a Daimler Double Six.

"2.2 That the Black Bull public house car park was a public place.

"2.3 That the proportion of alcohol in the appellant's breath exceeded the prescribed limit.

"3. The following is a short statement of the evidence. PC Clarke stated that he saw David Thomas Lewis driving the Jaguar towards the exit of the car park of the Black Bull public house on 2nd June 2003 at 18.35 hours.

"3.2 PC Mitchell gave evidence that he drove the police car into the car park and stopped in front of the car driven by Mr Lewis.

"3.3 PC Mitchell also stated that he saw Mr David Thomas Lewis get out of the vehicle and provide a positive breath test. He was arrested and cautioned with the offence of driving with excess alcohol.

"3.4 Mr Lewis was taken to Uxbridge police station and provided two specimens of breath on a Lion Intoximeter. The lower reading was 75 micrograms of alcohol in 100 millilitres of breath.

"4. It was contended by the appellant that:

"4.1 There was no positive evidence adduced by the respondent that showed the Black Bull public house car park, Victoria Road, is a public place.

"4.2 It is not sufficient for the magistrates to infer that the Black Bull public house car park was a public place.

"5. It was contended by the respondent that:

"5.1 A public house car park during licensing hours is a public place in provided and settled case law and it was sufficient for the officer to give evidence that it was a public house car park and that the offence took place within licensing hours."

Then the conclusion at 7:

"7.1 We were of the opinion that the Black Bull public house car park was a public place for the purposes of the offence charged pursuant to section 51A Road Traffic Act 1988 and Schedule 2 Road Traffic Offenders' Act 1988.

"7.2 And accordingly convicted the appellant."

3. The question posed for the High Court was put in this way:

"Were we correct to find that the Black Bull public house car park was a public place?"

4. I should add that, as I was told, after a subsequent special reasons hearing, the appellant was fined £200 and was disqualified from driving for three years.
5. There is no definition contained in the provisions of the Road Traffic Act 1988 of the term "public place", but section 192 of that Act defines "road" as:

"Any highway and any other road to which the public has access."

Section 5, of course, of the 1988 Act provides that it is an offence for a person to drive a motor vehicle on "a road or other public place" after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit.

6. The position adopted by Mr Corre, appearing on behalf of the appellant before me today, is effectively the same as the contention that he advanced on behalf of Mr Lewis before the magistrates: namely that, as he submitted, there was no positive evidence adduced by the respondent that showed that the car park of the public house in question was a public place, and that it could not be inferred. He said, therefore, that the magistrates were simply not entitled to conclude that the car park of the Black Bull public house was a public place for the purposes of section 5 of the 1988 Act.
7. In support of that proposition, Mr Corre referred me to the unreported decision of the Court of Appeal Criminal Division given on Tuesday 23rd March 1999 in the case of R v Colin Michael Spence. That was a case on quite different facts, and involved an appeal against a conviction for dangerous driving. The place in question in which the dangerous driving was alleged to have taken place was a small car park appended to a small office building large enough to contain some 12 cars. There was evidence before the court that employees, customers and other business visitors used the car park, but there was no evidence of any other user of the car park and no evidence of the general public as such using the car park. Those in short were the facts of that case. In the course of delivering the judgment of the court, Henry LJ, having referred to various cases, including amongst others Pugh v Knipe [1972] RTR 286, said this:

"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."

8. In essence, Mr Corre's point before me is that, in this present case, there should have been evidence that the public utilised the access, that is to say in this case the car park of the Black Bull pub; but no such evidence was adduced and the magistrates had no basis for reaching the conclusion that they did.
9. Mr Corre agreed that the magistrates, just as much as juries (and indeed the magistrates exercise a jury function in part, of course, in these regards) are entitled to, and indeed expected to, use their common sense. He also accepted that magistrates are entitled to draw inferences from the proved primary facts, provided always, and as he rightly stressed, that they are satisfied that it is safe to do so.
10. An initial view, irrespective of legal authority, might well be that a car park of a public house, at all events during licensing hours (and in this case it was conceded that Mr Lewis was found in the car during licensing hours) is indeed a place to which the public have access. As Mr Lodge, counsel for the respondent in this case, pointed out in his skeleton argument, public houses are deliberately so-called. The publicans want members of the public to enter them to buy drink and food: and it is very common for car parks to be provided for the use of the public for that purpose.
11. As it happens, the position which appears in this case, acknowledging always that each case must be taken on its own facts, is broadly represented in a number of other authorities. I was referred to the decision of the Divisional Court in Elkins v Cartlidge [1947] 1 All ER 829. That was a case where the justices had dismissed an information preferred against the respondent which had charged him, when in charge of a motor vehicle in a public place called the Fox and Hounds Inn car park, with being under the influence of drink in excess of the legal limit. As Lord Goddard CJ, delivering the judgment said, the enclosure in question was part of a car park and the licensee invited people to go there and people did go and park there. Goddard LJ then went on to refer to the authority of R v Colinson and, having referred to that case, he concluded that, on the facts of the case before him, the justices had no option but to find that the car park there was a public place.
12. In the case of Pugh v Knipe, to which I have already made reference, a similar point was before the Divisional Court, comprising Lord Widgery CJ and Melford Stevenson J and Forbes J. In the course of delivering his judgment, Lord Widgery, having referred to Elkins v Cartlidge, said this at page 291 of the report:

"In Elkins v Cartlidge the justices' case found expressly that on the area to the rear of the inn cars actually did park, cars as I read the report, principally of those customers that came to the inn. It is to be observed that a public house offers its services to the public. Members of the public come to the house in order to secure refreshment. The car park attached to a public house is on the face of it one would think a place to which the public are invited, and which the public use as part of the facilities offered."

He then went on to distinguish that general position from the facts of the particular case, which related in fact to a private club park.

13. I was referred also by Mr Lodge to the decision of the Divisional Court in the case of Sandy v Martin [1974] RTR 236, the court there comprising Lord Widgery CJ, MacKenna J and May J. That was a case where the defendant had parked his van in an inn car park which displayed the notice that it was reserved for patrons of the inn only. He entered the inn and remained there until after closing time at 10.30 pm. An hour later, a police officer found him in the car park leaning against the van in a drunken condition. In the course of delivering the first judgment, MacKenna J, having referred to the facts as found by the justices said this:

"I take the justices' findings to mean that the car park was not proved to have been open to any members of the public except those using the inn.

There are two questions to be considered: whether the car park was at any time of the day or night a public place; and, if so, whether the car park was at the relevant time, namely, 11.35 pm, a public place.

In my opinion the car park, open as it was to the public without discrimination, provided only that they were customers of the inn, was during drinking hours a public place within the meaning of section 6 of the Road Traffic Act 1972, and none the less so because of that proviso."

14. He then went on to refer to a number of authorities. He therefore confirms that a car park of a public house is capable of being a public place notwithstanding that its use is restricted to those who are patrons of the inn. The position can only be a fortiori when its use is not so restricted.
15. A little later on in his judgment, MacKenna J, having referred to Elkins v Cartlidge, said this:

"I am happy to be able to reach the conclusion that the car park here was a public place during the time it was open to members of the public using the public house. It would not be a very sensible conclusion that, unless the general public without any limitation had access to a place, the place was not a public one. The danger to the public from driving offences is certainly no less in the car parks of public houses than in other places to which the public resort."

16. In the course of giving his judgment in Sandy v Martin, Lord Widgery said this at page 268 of the report:

"At the risk of repetition, I would refer again to the passage from my judgment in Pugh v Knipe [1972] RTR 286,0291 which MacKenna J has already read.

A public house conducted in the normal way invites the public to come in and take refreshment. If an innkeeper who keeps a public house provides a car park, he invites those members of the public who find it convenient to come by car to leave their cars in that car park. Accordingly, those who use the car park are as much members of the public as those who use the public house itself. I mention this again by way of emphasis, because I have some fear that the justices in this instance were influenced by the fact that there was no evidence of user of the car park by what one might call non-patrons. If they were influenced in their decision by that consideration, then they took the wrong route to what I nevertheless think was the right answers."

17. The statements in those authorities tell strongly against Mr Corre's present submissions. It seems to me, with all respect to Mr Corre, that it simply was not necessary for the prosecution to adduce actual evidence of the users of this car park. This was a car park attached to a public house to which members of the public would be invited by the publican. That, in my view, clearly shows that it was a public place.
18. Insofar as Mr Corre placed reliance on Henry LJ's observation to the effect that there must be evidence that the public utilises the access -- and it is in any case to be borne in mind that Henry LJ was not dealing with a case involving a public house -- in my view, in an appropriate case, that can just as well and appropriately be taken as meaning there must be evidence from which it may properly be inferred that the public utilises the access. It is absolutely plain that such an inference can properly be drawn in this case, having regard to the primary evidence that this was a public house car park. There was also primary evidence that Mr Lewis was in his car during licensing hours. In my view, having regard to the findings made, not only were the magistrates entitled to reach the ultimate conclusion that they reached: they were positively bound to do so.
19. In my view, it would really be nonsensical if any other conclusion had been reached. It is not always the case that common sense and legal precedent coincide, but as it happens, and as the authorities to which I have referred make clear, common sense and legal authority do in this context coincide. It follows that the justices reached the right conclusion in this case and it also follows, notwithstanding Mr Corre's able arguments, that the answer to the question posed is yes. The appeal is dismissed.
20. MR LODGE: My Lord, I ask for costs in this matter. The Director of Public Prosecutions has been put to expense to deal with this matter. In the Magistrates' Court the appellant was ordered to pay £100 for costs. I ask for £750.
21. MR JUSTICE DAVIS: What do you say about that, Mr Corre?
22. MR CORRE: I cannot argue with that, I am afraid. I cannot argue with the costs being awarded against my client in principle. As to the amount, it is a matter for your Lordship. I believe he is now unemployed. May I just check? I think that is right.
23. MR JUSTICE DAVIS: Of course. As far as quantum is concerned, I have in similar cases found ordered sums in the amount of £800, so £750 seems reasonable, but what I do need to know is obviously Mr Lewis's means and ability and the time he needs. Do you want to take some instructions?
24. MR CORRE: Yes, please. May I turn my back?
25. MR JUSTICE DAVIS: Please do.
26. MR CORRE: (Pause). My Lord, the position is that he is receiving a pension of £140 a week. Until this conviction, he was working for a charity, driving, I think it was, mentally handicapped people from centres and parks to their homes. He says he is now looking for another job. So on the basis of £140 a week --
27. MR JUSTICE DAVIS: Does he have any other --
28. MR LODGE: No, he does not. So I would suggest that he has rather more assets than £140 a week would indicate.
29. MR CORRE: Well, his income is £140 a week.
30. MR JUSTICE DAVIS: What about savings? What savings does he have in building societies or banks?
31. MR CORRE: (Pause). He tells me £1,000 in savings.
32. MR JUSTICE DAVIS: All right. Is there anything else you wish to say, Mr Lodge?
33. MR LODGE: No.
34. MR JUSTICE DAVIS: I will order costs in favour of the respondent in this case in the sum of £750 to be paid within three months from today. Is that all?
35. MR CORRE: My Lord, yes.
36. MR JUSTICE DAVIS: Thank you very much, Mr Corre. Thank you very much, Mr Lodge.