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Yates v. Procurator Fiscal [2003] ScotHC 50 (14 October 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lady Cosgrove

Lord Kingarth

Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.

Appeal No: XJ256/02

OPINION OF THE COURT

delivered by TEMPORARY JUDGE C.G.B. NICHOLSON, C.B.E., Q.C.

APPEAL

STATED CASE

in causa

DAVID STEWART YATES

Appellant;

against

PROCURATOR FISCAL, Ayr

Respondent:

_______

Appellant: Gilchrist; Balfour & Manson

Respondent: Turnbull, Q.C., A.D.; Crown Agent

14 October 2003

The background to the appeal
[1] On 16 August 2001 the appellant appeared for trial at Ayr Sheriff Court on a single charge in the following terms:

"on 26 August 2000 on a road or other public place, namely the road adjacent to the A70 near to Provost Cottage, Ochiltree, you did drive a motor vehicle, namely motor vehicle registered number S141 GNL, after consuming so much alcohol that the proportion of it in your breath was 106 microgrammes of alcohol in 100 millilitres of breath which exceeded the prescribed limit, namely 35 microgrammes of alcohol in 100 millilitres of breath; CONTRARY to the Road Traffic Act 1988, Section 5(1)(a)."

[2] At the conclusion of the Crown case the appellant's solicitor submitted that there was no case to answer on the basis that there was insufficient evidence to show that the locus of the incident was a road or other public place, but the sheriff repelled that submission. The trial thereafter proceeded and in due course the sheriff found the appellant guilty as libelled. He imposed a fine of £1,000 and disqualified the appellant from holding or obtaining a driving licence for a period of 21 months. The present appeal is concerned solely with conviction.

[3] The evidence given at the trial revealed that the appellant lived in one of two cottages which are situated a little more than three quarters of a mile along the road specified in the charge. That road, which runs off the A70 main road, also serves as an access to Lessnessock Farm, and there is in addition a third cottage on that road, known as Provost Cottage. It is quite close to the A70 road. On the afternoon of the date in question the appellant was driving his car on the road specified in the charge when he crashed into a ditch a short distance from Provost Cottage. After the accident he walked back to his own cottage, and shortly thereafter he returned to the scene of the accident at which point he was seen and interviewed by police officers who thereafter carried out the appropriate procedures under the Road Traffic Act.

[4] It appears that in the course of the trial there was a suggestion that another person had been driving the car at the time of the accident. It also seems to have been suggested that any alcohol consumed by the appellant had been consumed during the interval between the accident and his return to the scene shortly thereafter. However, the sole issue before us in this appeal was the one which was the subject of the no case to answer submission, namely whether there was evidence to entitle the sheriff to conclude that the locus of the offence was a road or other public place within the meaning of the statute. As has already been stated, the sheriff repelled that submission.

[5] In this connection it is to be noted that, in the particular circumstances of this case, the question whether the place where the accident occurred fell within the definition of "road or other public place" was not expressly focused in the course of the evidence given at the trial. As a consequence the evidence on this matter is sketchy. It may be that the absence of any detailed evidence is attributable to the fact that the procurator fiscal who conducted the trial appears to have proceeded, at least initially, on the basis that there is a legal presumption to the effect that a locus libelled in a charge is a road or other public place within the meaning of the statute, and that it is for an accused person to give notice of an intention to challenge that presumption. At the end of the day the procurator fiscal, rightly in our opinion, departed from that position, but by then, of course, it was too late for him to lead further evidence bearing on this matter.

[6] In the result, therefore, the relevant evidence amounts to no more than this. The road in question runs from the A70 trunk road for a distance of just over three quarters of a mile. In addition to providing access to Lessnessock Farm the road also provides access to Provost Cottage, which is close to the A70 road, and to two further cottages about three quarters of a mile further on. One of those further cottages is occupied by the appellant. At the time of the accident Mr John McGraw, who occupied Provost Cottage, was at the door of his garage along with three other persons. They were his nephew, Mark Gentleman, and two of Mr Gentleman's friends, who were all visiting Mr McGraw. It was accepted on both sides that there was no further evidence which might indicate the status of the road in question.

The statutory provisions
[7] While many of the offences under the Road Traffic Act are restricted to those taking place on a "road", offences under sections 1 to 6 of the 1988 Act are now committed if they take place "on a road or other public place" (see Wheatley, Road Traffic Law in Scotland, p. 19). By virtue of certain amendments contained in the Road Traffic Act 1991 the word "road" is now defined as follows:

"a 'road' means ... (a) 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" (see Wheatley, p. 20).

"Other public place" is not given a statutory definition, but parties before us did not dispute the suggestion in Wheatley that it may be taken to mean "a place to which the public may resort by express or implied permission" (p. 22). In the present case it was not suggested that the road in question was one over which there was a public right of passage, and accordingly the question came to be whether there was evidence to support the conclusion that it was "any other way to which the public has access" or that it fell within the general description of "other public place".

The submissions for the parties
[8] In presenting the appeal Mr Gilchrist, for the appellant, began by drawing attention to the relevant evidence as set out in paragraph [6] above, and by submitting that it was insufficient to entitle the sheriff to conclude that the road in question was a road or other public place within the meaning of the statute. He submitted that public access means access by the public in general and not merely access by visitors to those occupying property adjacent to the road. In support of that proposition reference was made to a number of cases, beginning with Harrison v. Hill 1932 JC 13. That case, like the present one, concerned a road forming the access from a public highway to a farm. The road had no other houses upon it, and it was not maintained by any public authority but by the farm tenant in terms of his lease. There was no gate at the entrance to it and there was no intimation that it was not open to the public. However, it was also the case that the road was not only used by the public as an access to the farm but was also used by members of the public not having business there but who frequently walked on it. In holding that it had been established that the public generally did have access to the road in question the Lord Justice General (Clyde) said (at p. 16):

"I think that, when the statute speaks of 'the public' in this connexion, 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."

The Lord Justice General continued:

"I think also that, when the statute 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 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 implicitly, by the person or persons to whom the road belongs."

[9] By reference in particular to the foregoing passages in the opinion of the Lord Justice General Mr Gilchrist submitted, firstly, that for the purposes of the statutory definition "the public" means more than those who merely visit householders on the road for social or business purposes; and secondly, that there must be factual evidence relating to use of the road by members of the public in that wider sense. In the present case, accordingly, Mr McGraw's nephew and his two friends could not be regarded as "the public". Moreover, the present case was devoid of evidence of use by the public in the wider sense indicated by the Lord Justice General.

[10] As a further illustration of the need for factual evidence showing use by the public Mr Gilchrist referred to Hogg v. Nicholson 1968 SLT 265. That case concerned an estate road which ran from a public road. The road lay entirely within the estate. However, it was found that one of the houses adjacent to the estate road had attached to it a wooden shed which was used as a sub post office. It was found that the public were entitled to use that sub post office and had access to it. It was also found that the sub post office served not only the inhabitants of the estate but also those of a village located a mile away. On the foregoing facts it was held that the public had access to the road in question.

[11] Reference was also made to Alston v. O'Brien 1992 SCCR 238. In that case the sheriff held that a farmyard approached by a private driveway was "a public place". On appeal, however, it was held that there was no evidence to show that the yard was used by "the public" and, by reference to Harrison v. Hill, the appeal against conviction was allowed. By contrast, in Thomson v. MacPhail 1992 SCCR 466 a road leading to a reservoir and a farm was held to be a public place on the basis of evidence that it was used without challenge by members of a private fishing club and by hillwalkers.

[12] In McPhee v. Maguire 2001 SCCR 715 the relevant locus was a tarmac area, described as a driveway/car park area, which served as a car park for a block of four flats, and also for two houses, to one of which there was a driveway from the area. The area was marked off from the road by a line of kerbstones set in the tarmac but not projecting above it. There were no signs saying that the area was private, and no attempt was made to exclude the public. The sheriff held that the area was public and, on appeal, that decision was sustained. The Court considered that this was a marginal case, but that it was for the sheriff to assess the evidence, and he was entitled to hold that the area fell on the public side of the line.

[13] The case of Brown v. Braid 1984 SCCR 286 concerned a garage forecourt with the offence in question (a contravention of section 6 of the Act) having taken place there shortly after midnight. The sheriff held that in the circumstances the forecourt was not a public place since the likelihood of motorists driving onto the forecourt at the time in question was very small. On appeal it was held that, since the purpose of section 6 of the Act was to protect the safety of the public at large, the sheriff had erred in failing to take account, given the particular lay-out and the proximity of the forecourt to a pavement and a road, of the high probability of public pedestrian presence on the forecourt at any time of the day or night. Accordingly, the appeal against the sheriff's decision was allowed.

[14] Finally, Mr Gilchrist referred us to the English case of Planton v. Director of Public Prosecutions [2002] RTR 107. That case concerned a causeway which linked an island to the mainland. At the relevant time the accused was in his car on the causeway facing in the direction of his home on the island. There was evidence that the causeway was sometimes passable and sometimes submerged by tidal water. There was a Royal Mail collection box on the island and mail was collected and delivered by a van crossing at low tide. People had been rescued from the causeway, such as a resident of the island, a taxi driver and an oil tanker driver. Although there were signs by the entrance to the causeway to indicate that it was a private road, access from the mainland was not prevented by any physical obstruction. On the basis of the foregoing evidence the justices held that the causeway was a public place. On appeal, however, the Divisional Court held that there was no evidence of any general public access to the island for any purpose and that, accordingly, the evidence was insufficient to entitle the justices to conclude that the causeway was a public place within the meaning of the statute. The decision of the Divisional Court was in large measure founded on what was said by the Lord Justice General in Harrison v. Hill, and in particular on what was said by him in the passages which have been quoted earlier in paragraph [8] above.

[15] Under reference to all of the foregoing cases Mr Gilchrist submitted that in the present case there was simply insufficient factual evidence to enable the conclusion to be drawn that the road where the appellant drove his car into the ditch was either a "way to which the public has access" or any "other public place". Given that the authorities referred to make it plain that social or business visits to an adjacent proprietor do not amount to public use or access as envisaged by the statute, there was nothing, it was submitted, in the evidence in this case to support the view that the road in question was one to which the 1988 Act applied.

[16] In response the advocate depute began by submitting that it is inconsistent with public policy to allow drunk driving to take place; and, as a consequence, even the overt classification of a road as private will not necessarily prevent it being regarded as one to which the public have access. He went on to submit that, if there was no evidence of a restriction of public access, an inference should be drawn that the road in question was one to which there was in fact public access. In relation to the present case the advocate depute posed the question: Why should anyone assume that this was a private road? And in answer to that question he suggested that this was just a road like any other, the consequence of that being that there was no basis for assuming that this was a private road.

[17] The advocate depute drew attention to the fact that there was no evidence that Mr McGraw's nephew and his two companions had been invited to visit him on the occasion in question, and in that situation he submitted that their visit could properly be regarded as involving access by members of the general public.

[18] The advocate depute next sought to find support for his position in the case of McPhee v. Maguire (cit. supra). He submitted that, as a general rule, one might be more likely to view a car park as private rather than a road of some three quarters of a mile in length. It was submitted that the present case was less marginal than McPhee, and for that reason the road in this case should be regarded as being one to which there was public access. As was said in McPhee the matter was one to be assessed by the sheriff on the basis of the evidence before him, and on that basis his decision on this matter should not be disturbed. The advocate depute accordingly moved that this appeal should be refused.

The decision
[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 which 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".

[20] We agree, of course, with the advocate depute that it is inconsistent with public policy that persons who commit drink-driving offences should escape conviction. However, the statutory framework which applies to such offences makes it clear than an offence will be committed only if it takes place on a road or other public place. In most instances, of course, it will be unnecessary to lead detailed evidence on such matters since it will be plain from the libel of the charge that the locus in question was indeed a public highway either of an urban or rural kind. In a few cases, however, (of which the present case is an example) the nature of the locus will not be immediately plain, and it will then be necessary for the Crown to lead evidence to establish the nature of the road or place in question.

[21] We do not accept the submission of the advocate depute to the effect that, if 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.

[22] In the present case there was no evidence of the sort which has in previous cases persuaded the court that a road can be regarded as one to which the public have access. There was no evidence of the absence of any attempt to exclude the public or of the existence of anything which might give occasion for visits by members of the public. Nor was there any evidence of walking or driving on the road by members of the public, other than those doing so for social or business reasons relative to the occupiers of property on the road. In this connection, while there was no evidence that Mr Gentleman and his companions had been invited to visit Mr McGraw on the occasion in question, there was equally no evidence to show that they had not been expressly invited. In any event, however, we are of the view that it matters not whether they were there by express invitation or on their own initiative. What is of importance is that they were, it seems clear, making a purely social visit to the occupier of a house on the road; and on the authority of the cases referred to it is clear that such use of the road, in the absence of any other evidence of more general use, does not amount to use by the public at large. In these circumstances we conclude that it has not been established that the road in the present case was one to which the Road Traffic Act 1988 applies.

[23] For the foregoing reasons we shall answer the question in the stated case in the negative and we shall allow this appeal. As a consequence the appellant's conviction and the sentence imposed on him will be quashed.