Case No: CO/4884/2010
Neutral Citation Number: [2011] EWHC 488 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/03/2011

Before :

MRS JUSTICE RAFFERTY DBE
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Between :

	IAN ROBERT HALLETT	Appellant	
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	DIRECTOR OF PUBLIC PROSECUTIONS	Respondent	

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Philip Farr (instructed by ACT Solicitors) for the Appellant
Christopher Youell (instructed by Crown Prosecution Services Norfork) for the Respondent

Hearing date: 1st March 2011

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Judgment
Mrs Justice Rafferty : 
1.	This is an application by way of Case Stated from a decision on 10th December 2009 of the Norwich Magistrates who convicted the Appellant of driving with excess alcohol on a “service road” alongside the Dereham Road in Costessy.
2.	It was not in issue that when on 27th September 2009 the Appellant drove a car his breath alcohol reading was over twice the legal limit. His defence was that at the time of driving he was not on a “road or public place”
3.	The Bench found the following facts:
“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.”
4.	The evidence where relevant was that PC Precious, calling at a Dereham Road  house to make a welfare check saw the Appellant drive along the “service road”, and when he alit administered a breath test. She photographed the area and the Bench saw the results in six prints. 
5.	In cross-examination she said that a footpath ran alongside the unmade “service road” and that a tarmac area which had road markings led onto it. 
6.	The Appellant in evidence explained, as a resident of the road, that each property had a covenant to maintain it and that there was no need for any member of the public to use it as a short cut nor had he seen the public using it. Another resident gave evidence to like effect as to the covenant and added that it would be stupid for the public to use it as its potholed surface would damage their cars. He had never in sixteen years seen a member of the public use it.  A “Private Road” sign had by the time the case was heard been erected.
7.	The Respondent Crown contended that the public had access, not restricted to a specific class for example postmen milkmen and the like.
8.	The Bench considered that:
“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.”
9.	The Bench certifies three questions: 
“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?”
10.	It is agreed that there is no need to consider disjunctively the phrase “road or other public place” since if the surface travelled is a road (as is conceded) it must still be “public” to sustain a conviction. The key question is whether there were before the Bench evidence of public use of the unmade “service road”.
11.	The issue in this case being narrow, help to be derived from the relevant authorities can be summarised as follows. Any road may be regarded as one to which the public has access if the public is there without overcoming physical obstruction or in defiance of a prohibition: Harrison v Hill 1932 JC 13. Whether a place is public will generally be a question of fact and degree: Montgomery v Loney [1959] NI 186.. Help may also be derived from asking whether access is meant only for a special class of members of the public, including for example guests of residents, postmen, milkmen and so forth: Harrison; DPP v Planton [2001] EWHC Admin 450. A sign or barrier lends weight to restriction of the area to a special class and thus to its being private but the absence of such is not determinative: Edwards v DPP unreported 10 March 1994 QBD. 
12.	In Deacon v AT [1976] RTR 244 Lord Sands said:
“…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.”
13.	In both that case and in Planton convictions were overturned since the Crown failed to lead evidence of use by members of the public outside special classes, residents or visitors. In reliance upon exactly this point, the Appellant submits that the Respondent Crown failed to establish even de facto public use since it could not lead evidence of regular use. Additional support is he argues derived from Taussik v DPP unreported 7 June 2000 QBD in which Otton LJ rejected as inadequate “very thin and unsatisfactory” evidence from the police of some use by the public. Yates v Murray  2004 JC 16 distills the issue:
“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’……
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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.”
14.	What then was the evidence of use upon which the Bench felt confident that guilt had been proved? Photographs show that two swathes of green run parallel to each other and to the Dereham Road. Separating the swathes is a footpath, accepted as a public road. The public can walk along the footpath and continue its pedestrian progress without crossing the mouth of the “service road”. There was nothing before the Bench to establish that individuals other than householders and those in a special class used the latter. In short, the Respondent led no evidence of public use. 
15.	The issue for this court is thus not only narrow but simple to decide. There was no or no adequate evidence before the Bench of the use by the public of the “service road” such as to bring it within the definition of a public road set out in the authorities.
16.	I therefore answer each of the posed questions in the negative. This matter must be remitted with a direction to acquit.