England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		15 April 2005

Friday 15 April 2005

LORD JUSTICE LAWS:

1. This is an appeal by way of case stated against the decision of the Snaresbrook Crown Court (His Honour Judge O'Mahoney sitting with lay justices) of 9 September 2004 by which the court dismissed the appellant's appeal against her conviction of an offence of careless driving. She was so convicted at the Redbridge Magistrates' Court on 14 May 2004. The only question in the case was whether the car park where the driving took place was a "public place" within the meaning of section 3 of the Road Traffic Act 1988. If it was not, no offence can have been committed under the statute. The Crown carry the onus of proving to the criminal standard that the driving in question occurred in a public place.
2. The events which gave rise to the prosecution case were in fact undisputed. They are set out in the case stated as follows:

"4.1 On 5 June 2003 the appellant was driving a Renault Laguna index number R569 ICR when it was involved with a collision with five parked cars.

4.2 The Car Park and Garage

This is a Volvo franchise garage on a main road. Photographs are agreed. It is a commercial enterprise which invites business from the public in terms of sales, parts, servicing and works. There are clear blue signs advertising the trade. Outside the main showroom there is a car park area and beyond that, next to the works area, there is a further car park. It is here where the accident occurred.

4.3 Security

There is a double gate which closes off the inner car park from the outer premises. It is opened early in the morning and closed at 6 or 7pm depending on the time of year. this car park is an enclosed area; there are no footpaths/roads leading into or away from it and driving a car one would have to turn around and go back to leave it. There is a sign in the inner car park indicating 'Customers Parking'.

4.4 Access to Parking

The car park is used by customers whether for sales, services, parts or works. The only public use of it therefore is that of business customers or potential customers for these purposes."

It is agreed, and the photographs demonstrate, that there is access to this car park from the main road without any obstacle, gate or anything of the kind.

3. The question specified for the opinion of this court is formulated thus:

"Whether the judge and justices were entitled to conclude that the car park to the rear of the Volvo franchise garage at Barkingside Motor Co, Fencepiece Road, Barkingside was a 'public place' within the meaning of section 3 Road Traffic Act 1988?"

4. In his skeleton argument counsel for the appellant, Mr Hodivala, submits that the following five propositions can be gleaned from the authorities:

"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: R v Spence [1999] RTR 353;

iii. Premises will be private where they are entered for reasons beneficial to the occupier: DPP v Vivier [1991] 4 All ER 18, 24d, or where they are visited for business purposes: Harrison v Hill [1932] JC 13, 16;

iv. However, even business premises will be 'public' if the location is a public service, a railway station, a hospital or other public utility: R v DPP (ex parte Taussik (unreported, 7 June 2000), paragraph 20. This will include a pub car park during licensed hours: R v Waters (1963) 47 Cr App R 149,154;

v. It is submitted that the 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': Planton v DPP [2002] RTR 9, para 17 (explaining DPP v Vivier). It is submitted that this is because a potentially large number of individuals need to be caught or protected by the umbrella of the legislation."

5. The prosecutor agrees that these are correct as general propositions. The case stated sets out the court's reasoning in paragraph 7 as follows:

"Having considered all the cases referred to us we applied the following test, ie:

'when does a member of the public by his attendance at a certain place cease to be a member of the public as such and become a member of a special class in relation to those premises so that they should not be considered as a matter of law for these purposes a public place?'

We considered examples eg, a postman, a meter reader, a guest. Here the attendance of such people is wholly associated with their personal special relationship with the premises. We considered that some cases were not so clear.

We were concerned with the submission of the appellant that where a car park is concerned, if those with access are restricted to people attending for business purposes, they are a special class and thus, according to legal principle, it is not a public place.

In our judgment, having considered all the authorities, we do not consider that that can be the definitive test. We consider that there were many retail outlets where the car park thereof were public places. One had to consider eg, car parks in railway stations, supermarkets, drive-through food sellers and outlets such as Bluewater and Lakeside. Public house car parks have been held to be public places. In the case of Greenwood a hospital car park was held to be a public place.

In the case of Spence a small yard attached to a small office building which led nowhere was held not to be a public place.

We concluded that this case is distinguishable from that of Spence. Here we have photographs which show that all members of the public are invited by signs to enter the premises and park in the context of a retail commercial enterprise, quite different from the small office building in Spence. We considered the Panama case referred to in Vivier.

Members of the public using the second car park for commercial reasons and parking there, in our judgment, did not cease to be members of the public and become a special class in terms of the Vivier test. They remained members of the public with an interest in sales, repairs or parts of vehicles. The second car park was therefore a public place."

6. There are, as that reasoning and Mr Hodivala's propositions indicate, a number of cases. Mr Hodivala began his submissions by referring to Harrison v Hall [1932] JC 13, a decision of the High Court of Justiciary. It is convenient to cite this passage which is quoted in the later case of Vivier, to which I shall come in a moment. The Lord Justice General (Lord Clyde) said at page 16:

"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 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 statue 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."

7. I do not propose to enter into the reasoning set out in the other authorities, save that of Vivier [1991] 4 All ER 18 which is much referred to in the later cases. That case concerned a traffic accident in a caravan park. Giving the first judgment in this court Simon Brown J (as he then was) referred to the decision of the High Court of Justiciary in Harrison v Hill and continued as follows at page 22a:

"What Lord Sands, and indeed Lord Clyde, say in Harrison v Hill can really be summarised thus. A road is one to which the public have access if (a) it is in fact used by members of the public and (b) such use is expressly or implicitly allowed -- or, putting it the other way round, not achieved by overcoming physical obstruction or defying express or implied prohibition.

Factor (b) presents no problem. But factor (a) does. In particular, as it seems to us, (a) essentially begs rather than answers the other crucial question whether those who use the road are members of the public. Take our case. We have not the least hesitation in accepting that the only material use of this caravan park was by those who had complied with the various site requirements and been properly admitted, in short those who had been expressly or implicitly allowed into the caravan park, either as caravaners or campers or as their bona fide guests. We think it right to ignore both the few trespassers who escaped the security controls and also the users of the bridleway (which in any event could not affect the character of the park as a whole). And, indeed we do not understand Mr Glen for the prosecutor to contend otherwise.

What that leaves outstanding, however, is the critical question: are the caravaners, campers and guests to be regarded, within the park, still as members of the general public, or are they instead, as the justices found, at that stage a special class of members of the public?

Upon that question, Harrison v Hill helps but little: there is simply Lord Clyde's reference to 'the special class of members of the public who have occasion for business or social purposes' to use the farm road."

Simon Brown J proceeded to consider further authority and then he said at page 24c:

"How then, in some particular road or place is used by an identifiable category of people, should justices decide whether that category is 'special' or 'restricted' or 'particular' such as to distinguish it from the public at large? What, in short, is the touchstone by which to recognise a special class of people from members of the general public?

Some light is thrown upon the problem by the passage already cited from Lord MacDermott CJ's judgment in Montgomery v Loney [1959] NI 171 at 177: one asks whether there is about those who obtain permission to enter 'some reason personal to them for their admittance'. If people come to a private house as guests, postmen or meter readers, they come for reasons personal to themselves, to serve the purposes of the occupier.

But what of the rather different type of case such as the present where those seeking entry are doing so for their own (rather than the occupier's) purposes and yet are screened in the sense of having to satisfy certain conditions for admission. Does the screening process operate to endow those passing through with some special characteristic whereby they lose their identity as members of the general public and become instead a special class?

Our approach would be as follows. By the same token as one asks in the earlier type of case whether permission is being granted for a reason personal to the user, in these screening cases one must ask: do those admitted pass through the screening process for a reason, or on account of characteristic personal to themselves? Or are they in truth merely members of the public who are being admitted as such and processed simply so as to make them subject to payment and whatever other conditions the landowner chooses to impose?

In approaching the matter in this way we have, we confess, been influenced by the decided cases on closely analogous language in the law of public entertainment: Panama (Piccadilly Ltd v Newbury [1962] 1 All ER 769, [1962] 1 WLR 610 raised the question whether club membership as a precondition to admission to a strip show would preclude its being held a public entertainment. No, said Lord Parker CJ --

'there being no evidence whatsoever of any selective process and indeed a rule which enables [election of] members without knowing anything about them .... no sufficient segregation has occurred which would prevent the members from continuing to be members of the public.'"

8. In the present case there are no restrictions whatever upon the access of members of the public generally to the inner park during its opening hours. There is no selective process. A member of the public need not demonstrate or even harbour any particular reason for going there, albeit that the car park is intended for the use of customers of the premises. The car park adjoins a public road. In my judgment those factors are in this case sufficient to justify the lower court's conclusion that this was a public place.
9. There are dangers in treating cases of this kind as if they raised hard-edged issues of law. A number of considerations are likely to be in play when a court has to decide whether a particular area is a public place. Much guidance is to be found in the authorities, and I do not suggest that they can be ignored. But the court has to look at the particular facts against the guidance thus given. Here it seems to me, as I have said, that the court's conclusion is justified. The facts were very different from those in Spence on which particular reliance is placed by Mr Hodivala. There the premises were a foundry on an industrial estate. There was no evidence of any reason why any member of the general public should go there as opposed to those having pre-ordained specific business.
10. In my judgment for all these reasons the Crown Court was quite right. I would answer the question put in the case in the affirmative and dismiss the appeal.
11. MR JUSTICE DAVID STEEL: I agree.
12. LORD JUSTICE LAWS: Thank you for your assistance, Mr Hodivala.