QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| IAN ROBERT HALLETT
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
Christopher Youell (instructed by Crown Prosecution Services Norfork) for the Respondent
Hearing date: 1st March 2011
Crown Copyright ©
Mrs Justice Rafferty :
"a. The 'service road' was a long stretch of road running parallel to Dereham Road, Norwich.
b. There were twenty houses leading off the 'service road'
c. Forty or more people had access to the houses.
d. The 'service road' was open at both ends.
e. There were 'give way' road markings at the entrance/exit of the 'service road'
f. The 'service road' was not a cul-de-sac.
g. The residents were responsible, by covenant, to maintain (sic) the 'service road'. However it was not maintained by the residents.
h. There was no signage indicating that the 'service road' was private or that access was prohibited.
i. A sign has been erected since this offence took place.
j. Pedestrians have to access the 'service road' in order to reach the footpath.
k. Pedestrian members of the public must cross the 'service road' in order to continue their journey along the footpath on Dereham Road.
l. The defendant's friend, Andy Claxton had moved out of his house before the incident."
"a. The 'service road' which was a long crescent running parallel to the main road was a road which pedestrians, when using the footpath along Dereham Road, had to cross to get to the other side.
b. Pedestrians have to access the 'service road' to reach the footpath.
c. There were no indications that access was prohibited. It was open to all road users to use this road, if they so wished. We were of the opinion that the road was not limited to a small specialist section of the public, as forty or more people had access to the row of houses. For these reasons the facts of this case could be distinguished from the cases put forward.
d. The public had access to the 'service road' and therefore it was a road and a public place.
e. We also considered the conflicting evidence given by the Appellant and Andy Claxton who said that he did not live at 180 Dereham Road at the time of the incident. We noted this discrepancy in our deliberations and felt that this made the defendant's evidence that he had driven to his friend's house to make a telephone call less credible as there did not seem to be a good reason for him to have visited the house."
"a. whether there was any evidence upon which a reasonable tribunal might find that the area described as a service road opposite Dereham Rd was a road or public place within the meaning of the RTA 1988?
b. Upon such evidence if any were we correct in law in holding that the Defendant had been driving on a road or in a public place?
c. Were we correct to convict the Appellant?"
" I may add that of course the best way of showing that a member of the general public has access to a road with at least the tolerance of the owner of the property is to show that a member of the public does in fact so use it .There was not one witness called who said that one single member of the public in the wide sense, that is to say, a person who was not a resident or who was not a visitor to a resident on the estate, in fact used the road of this estate."
"19. It is clear from a consideration of the cases to which we were referred that, although individual cases will turn to some extent on their particular facts, the proper approach is the one that was enunciated by the Lord Justice-General in Harrison v Hill. That approach involves ignoring those members of the public who merely visit householders on the road for business or social purposes, and looking to see whether there is evidence that the road in question is actually used, without demur by the landowner or proprietor, by 'the public generally'
21. We do not accept the submission .that there is no evidence to suggest that the road is private, it can simply be assumed that the road is one to which the public have access. That, in our opinion, comes close to reversing the onus of proof by requiring an accused person to prove that a particular locus is not a road or other public place within the meaning of the statute. The onus of proof is on the Crown, and it is therefore necessary for the Crown in a case such as this to satisfy the onus by establishing the nature of the road in question."