APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD KIRKWOOD
PROCURATOR FISCAL, KIRKCALDY
Appellant, Scott, Martin Johnston & Socha
Respondent, Cathcart, A.D.
13 May 1999
The appellant in this appeal against conviction by stated case is John Horn who was convicted at Kirkcaldy Sheriff Court of driving while disqualified and driving without insurance. The offences were alleged to have taken place on 7 November 1997 in the car park of the Rio Bingo, St Clair Street, Kirkcaldy. The Crown case was that the appellant had driven his car from one part of the car park to the other end and it was common ground that, for the offences to have been committed by the appellant, it would have to be established that the car park was a "road" within the meaning of the 1988 Act. The only issue before us was whether that had in fact been established by the Crown.
The definition of "road" contained in section 192(1) of the Road Traffic Act 1988 has been the subject of certain amendments in terms of paragraph 78 of Schedule 4 to the Road Traffic Act 1991. The definition of "road" is now in the following terms:
"Road (a) means any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof; and (b) means any other way to which the public has access, and includes bridges over which a road passes".
As was observed in Aird v Vannet 1999 S.C.C.R.322 certain road traffic offences such as dangerous driving, driving without due care and attention and drink driving offences can take place on a road "or other public place". But the offences with which we are concerned can only be committed on a road. The question before us today is whether on the facts found by the sheriff the car park in question came within the definition of "road". It was common ground that the car park could not properly be described as a way over which there was a public right of passage in terms of part (a) of the statutory definition and the question is whether it has been shown to be a "way to which the public has access".
The sheriff has set out in the stated case her findings in relation to the car park in question. It is leased by Rio Bingo and access can be gained to it from Millie Street. There is no other vehicular entrance or exit. It is partly waste ground and partly tarmacadamed and it is enclosed on three sides. At the far end of the car park opposite to the entrance is the wall of a building on which are painted signs designated "Staff Parking" and "Members Parking". There is a video camera on that back wall. The appellant had been employed by Langtoun Coachworks and the rear yard of the coachworks abuts on to the car park. There is a door from the yard opening on to the car park. The appellant's employer, Mr Macher, parked his car in the car park during the day but he had received permission from Rio Bingo to do so. On the basis of these findings the sheriff concluded that it was a reasonable inference that members of the public can obtain vehicular access to the car park from Millie Street, and she found that the car park was a way to which the public had access and therefore came within the statutory definition of "road".
Counsel for the appellant accepted that the car park was a "way" but submitted that there was no evidence that the public had access to it. Whether the public have access is a question of fact but that had not been established by the Crown. It was not sufficient to say that because it was leased by a bingo club the public had access. We were also referred to the case of Renwick v Scott, 10 October 1995, unreported, where the Lord Justice General (Hope), in dealing with whether that particular locus was a way to which the public had access, observed: "This matter does not depend upon the terms of any bye-law or upon the terms of any notice. It depends upon what in fact happens from day to day on the road. As its happens the justice has not told us very much about the facts". It was submitted that these observations applied in the present case. In reply, the advocate depute submitted that the sheriff had been entitled to hold that the public had access to the car park and he referred to a finding that at 12.15pm on the day in question, when the appellant was there, there were various cars in the car park. He pointed out that there was no barrier at the car park entrance and no security officers preventing the public from gaining access. There was nothing to show that members of the public were not tolerated in the car park. In these circumstances the sheriff was entitled to infer that the public had access and was therefore entitled to convict.
In Aird v Vannet the court observed that a "way" is an area in which some form of travel takes place and that whether a particular area is or is not a way is essentially a question of fact (Clark v Kato 1998 1 W.L.R.1647 per Lord Clyde at page 1653B). In the present case counsel for the appellant conceded that the car park could properly be regarded as a way and in these circumstances the only question for our determination is whether the Crown has established that the public had access to it. On that matter there are very few findings in the stated case as to the actual use which was made of the car park. There were signs designating "Staff Parking" and "Members Parking" and the appellant's employer had permission from Rio Bingo to park his car there during the day. But there are no findings as to what other vehicles were permitted to park there or did in practice park there. There is no finding as to what use was made of the car park by Rio Bingo, or by members of the public. There is no finding that members of the public in general had access to the car park in the sense that they normally resorted to it and might be expected to be there. In our opinion on the basis of the findings made by the sheriff in this case, she was not entitled to infer that the car park was a way to which the public had access. That being so it follows that it was not established that the car park fell within the statutory definition of "road". We shall therefore answer questions 1, 2 and 4 in the affirmative, find it unnecessary to answer question 3 and quash the conviction.