Scottish High Court of Justiciary Decisons

KIRSTY AIRD v. PROCURATOR FISCAL, GLASGOW [1999] ScotHC 72 (17th March, 1999)

The appellant was convicted by the stipendiary magistrate in Glasgow of contraventions of sections 87(1) and 143(1) and (2) of the Road Traffic Act 1988, as amended, that is to say, of driving a motor vehicle without a driving licence and without there being in force a policy of insurance covering third party risks.

The place where these alleged offences were committed was "the forecourt of Strathclyde Regional Council, Holland Street, Glasgow". It was common ground between the appellant and the Crown - and this was the only issue at the appeal - that for the offences to have been committed it would have to be established that the forecourt was a "road" within the meaning of the Act.

The definition of "road" is to be found in section 151(1) of the Roads (Scotland) Act 1984 and repeated in the Road Traffic Act 1988 by section 192(2). The definition has undergone further amendment in terms of Schedule 4, paragraph 78 of the Road Traffic Act 1991. These provisions, read short, are in the following terms:

It is pertinent to contrast the offences which we are considering and other offences under the Act of 1988 such as section 2 (dangerous driving), section 3 (driving without due care and attention) and section 5 (driving or being in charge of a motor vehicle with alcohol concentration above the prescribed limit). Such offences can take place on a road "or other public place". This wider definition does not apply to offences under sections 87(1) and section 143 and therefore no question arises as to whether the forecourt at Holland Street was a public place. Furthermore, it was common ground that the locus could not be said to be a way over which there was a public right of passage, that is to say under the first part of the definition of "road". The question is whether, on the facts found, the place came within the definition of "any other way to which the public has access".

We were informed that the area in question was at one time the playground for pupils at the High School of Glasgow in the days when it was situated in the centre of the city. Since that time the playground was used by Strathclyde Regional Council and subsequently, and at the material time, by Glasgow City Council as a car park for local authority employees. Access to the car park by vehicles was by means of a single entrance at Holland Street. The magistrate found that the car park was intended for use during office hours by employees who held permits to park their vehicles there. To restrict use there was a lifting barrier which was operated by security officials when on duty but at other times, in particular outside office hours and during evenings and weekends, the barriers were normally left open. So the position was that there was access at certain times to the forecourt by drivers of cars generally while at other times access was confined to permit holders. In addition the magistrate found that there were a number of entrances and exits to and from the car park area which were capable of being, and were, used by pedestrians as shortcuts between Holland Street and a neighbouring street, Elmbank Street, and as an access to Charing Cross Railway Station.

Counsel for the appellant submitted that the locus was not a road within the meaning of the Act under reference to Beattie v. Scott 1990 S.C.C.R. 435 and Young v. Carmichael 1991 S.C.C.R. 332. She contended that it had to be established that the area was a "way" to which the public had unrestricted and legitimate access. A car park which was intended as a place where cars were left from time to time by drivers having express permission to do so could in no sense be regarded as falling within the definition.

We agree that a "way" is an area in which some form of travel takes place. This is plain from study of the definitions of the word in the Shorter Oxford Dictionary. Whether such an area is or is not a way is essentially a question of fact. (Clarke v. Kato 1998 1 WLR 1647 per Lord Clyde at 1653). So understood, a private car park which is strictly confined to use by persons authorised to bring their cars there in order to leave them would not be regarded as a way. If that had been found to be the situation in this case we would have had no difficulty in holding that the forecourt was not a road within the statutory meaning. But the facts are otherwise. The definition refers in sub-paragraph (b) to "any other way to which the public has access". These words emphasise a contrast with the provisions of sub-paragraph (a) where the reference is to a "public right of passage". We are concerned here with circumstances which leave out of account any question of rights of passage which the public may or may not have. The question is whether as a matter of fact the public had access by the way, whether permitted or not. Moreover, there is nothing in the definition which confines the user of the way to vehicular traffic.

We therefore come back to the facts of the case to see whether the forecourt can be described as a way to which the public has access. As we have noted the forecourt was used by local authority employees for restricted car parking during certain periods. There was also unrestricted use of the area at other times and for extended periods for drivers to come in and leave their cars and proceed elsewhere. Finally pedestrians used the locus, apparently at all times, as a means of progressing from one part of the town to another.

The fact that the pedestrian traffic and some of the parking may not be authorised is, as we have already indicated, irrelevant. We are not concerned with the situation which used to arise under early road traffic legislation where access has taken place in defiance of some form of prohibition, whether physical or otherwise, (see Harrison v. Hill 1932 J.C. 13). In any event it has been found as a fact that substantial access to the car park resulted from tolerance and acquiescence. Where tolerance and acquiescence to the use of the access exists no question of the legality of doing so (even if relevant) arises (Cheyne v. MacNeill 1973 S.L.T. 27).

In our judgment the magistrate found sufficient facts and circumstances for him to conclude (in finding of fact 7) that the car park was "a way" over which the public had in fact access and accordingly he was entitled to hold the charges proved. We answer question 1 in the negative and questions 2 and 3 in the affirmative.