THE QUEEN ON THE APPLICATION OF PLANTON v DIRECTOR OF PUBLIC PROSECUTIONS [2001] EWHC 450 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

[2001] EWHC 450 (Admin)

Case No NO: CO/1688/01

Venue Royal Courts of Justice, Strand, London WC2

Between

THE QUEEN ON THE APPLICATION OF PLANTON

DIRECTOR OF PUBLIC PROSECUTIONS

Before

Lord Justice Pill

Mr Justice Silber

MR JAMES HODIVALA (instructed by Bright & Sons Sols, 87-91 Newland Street, Witham, Essex CM8 1AD) appeared on behalf of the Claimant

MR NOEL CASEY (instructed by CPS Essex, County House, 100 New London Road, Chelmsford, Essex CM2 ORG) appeared on behalf of the Respondent

Date 6 June 2001

LORD JUSTICE PILL:

This

[1]is an appeal by way of case stated from a decision of the justices for the County of Essex sitting at Witham whereby on 14th July 2000 they convicted the appellant, Mr Jeremy Planton, of an offence as follows:

"On 15th April 2000 at Maldon in the County of Essex did drive a motor vehicle, namely a Volvo 760 index C552 OTW, on a public place namely the 'Causeway' between Osea Island and Decoy Point, Heybridge, after consuming so much alcohol that the proportion of it in his breath, namely 68 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit, Contrary to Section 5(1)(a) Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988."

[2]The court imposed a fine of £1,100 and disqualified the appellant from driving for a period of 18 months.

(a) provides that:

"If a person drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in the breath, blood or urine exceeds the prescribed limit he is guilty of an offence."

[3]The justices found the following facts:

"a) Osea Island is an island in the estuary of the Blackwater River in Essex. There is a man-made Causeway linking the island to the mainland. This Causeway is sometimes passable and sometimes submerged by tidal water. b) There is a Royal Mail collection box on the island, and mail is delivered to twelve addresses. Mail is collected and delivered by van crossing the Causeway at low tide. From time to time people have to be rescued from the Causeway, such as a resident of the island, a taxi driver and an oil tanker driver. P.Sgt Robinson had visited the island as a boy to visit a relative and on another occasion to pick samphire. c) Access to the Causeway from the mainland is not prevented by any physical obstruction. There is a barrier present at the entrance to the approach road some distance from the Causeway but this if used would only extend across part of the approach. Signs by the entrance to the approach road indicate that it is a private road."

[4]I interpose that photographs before the justices show a notice headed:

"Private Road Residents and Authorised Vehicles only"; another notice: "

Private Road No Parking"; and a further notice:

"Danger Tidal Causeway Authorised vehicles only." "d) Mr Planton owned the car in question. At the material time he was facing in the direction of his home on Osea Island. The car was seen by the police officers halfway across the Causeway. They first noticed its rear lights. The Causeway was passable as the tide was going out. Mr Planton was in the driver's seat of the car. His head was against the window. The engine was running. e) Any other finding of fact is not relevant for the purpose of this appeal."

[5]The justices set out a summary of the evidence given to them. The appellant did not give or call any evidence. It was contended on his behalf that the Causeway was not a "public place" within the meaning of the information preferred, or within the meaning of that term in section 5(1)(a) of the Road Traffic Act 1988. It was also contended that the justices were not entitled to conclude upon that evidence that the claimant was "driving" the vehicle on the Causeway.

[6]The justices expressed their opinion: a) Having heard all the evidence we reminded ourselves that in order to convict, the prosecution had to prove beyond reasonable doubt that the appellant was driving the vehicle and that the location in question was a public place. b) The only evidence before us was given by prosecution witnesses. This evidence was not discredited by cross examination on any material point. c) In respect of the question of Mr Planton driving the vehicle, he was in the driver's seat, the engine was running and he was facing in the direction of his home, halfway across the Causeway on Osea Island. We considered the evidence that the vehicle was not moving. We found movement to be only one factor to be considered. There was no explanation from the defendant other than that he was waiting for the tide. At that time the Causeway was passable as the tide was going out. We found the purpose of the stop to be connected to the driving. Mr Planton remained in the vehicle. We were satisfied that the evidence was sufficient to justify a finding that Mr Planton was driving. d) In respect of whether the Causeway was a public place, we were not helped by Mr Planton referring to a public road. The information referred to driving on a public place. We had to find that the public have access to the Causeway, that the use was expressly or implicitly allowed and not achieved by overcoming any physical obstruction or in defiance of any express or implied prohibition. The evidence before us, which was not contradicted by Mr Planton, was that the Causeway was open to all and was not restricted to access by a particular class of person. There was no physical obstruction to entry to the Causeway. The barrier at the entrance to the access road leading to the Causeway did not restrict access in any way. Notices at this entrance were not conclusive evidence that the Causeway was not a public place. We were therefore satisfied that the evidence was sufficient to justify a finding that the Causeway was a public place. e) In respect of the claim that the site in question was a foreshore, we did not consider that this was relevant to our deliberations on the question of whether it was a public place. The evidence of the prosecution witnesses was not discredited in any way, and Mr Planton did not give evidence or call witnesses. f) Our findings as detailed above, together with findings that are not relevant for the purpose of this appeal, were such that we were sure beyond reasonable doubt that the offence was made out and we accordingly found Jeremy Planton guilty."

[7]The questions for the opinion of this court are stated to be:

"Were we entitled to be satisfied beyond a reasonable doubt having regard to the evidence before us that: a) Mr Planton was driving, and b) That the Causeway is a public place."

[8]The context of the questions is the statutory definition in section 5(1)(a) of the Act.

[9]I deal with the issues in the order which counsel did, and consider first the status of the Causeway for present purposes. It is common ground that the public place test is that stated by the Lord Justice General in the Scottish case of Harrison v Hill [1932] JC 13, a case which has been cited with approval in the English authorities. The Lord Justice General stated at page 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... There must be, as a 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."

[10]In seeking to uphold the conclusion of the justices on this point, Mr Casey, for the respondent, refers to the judgment of Jupp J in Adams v Commissioner of Police of the Metropolis [1980] RTR 289. Mr Casey acknowledges the difficulty posed by the prohibition notice (which the justices found to be in place) but relies on the fact that in Adams Jupp J stated that:

"The signs must, as I say, be considered only as part of the whole picture."

[11]Of course I accept that proposition, but having regard to the other findings in Adams the case does not, in my judgment, support the finding of the justices in this case. Jupp J went on to refer to the usage which enabled him to hold that the test, a public access test in that case, was satisfied. Jupp J referred to the uses from outside the estate:

"...the church, the football spectators, the parkers, those who park at other times for other reasons, the shoppers, the persons going to the Underground, the children going to school, taking all these uses, and without having any regard to questions of the hotel, the library or anything else, and without even embarking on considerations of the legal right to get to the church by parishioners who live outside Aberdeen park, the evidence presented to this court, in this particular case, is in my judgment overwhelmingly in favour of the plaintiffs' and the third party's contention that this is a road to which the public have access within the meaning of section 196(1) of the Road Traffic Act 1972 [the then current statute.]"

[12]The facts of that case, accordingly, were very different from those in the present case in which, as Mr Casey has to acknowledge, the evidence of use of the Causeway, apart from evidence of residents going to and from their houses, is extremely limited.

[13]Mr Casey also relies upon the decision of this court in DPP v Vivier [1991] RTR 205. Simon Brown LJ, giving the judgment of the court, analysed the meaning of the expression "special class of members of the public" used by the Lord Justice General in Harrison v Hill . Simon Brown LJ also referred to the judgment of Lord MacDermott in the Northern Ireland case of Montgomery v Loney [1959] NI 171, a judgment in which, with respect, I find a most helpful analysis of the present issue. Lord MacDermott stated at page 177:

"The invitees and licensees who use such carriageways are, it is true, members of the public. But permission to enter is not given to them as such, but because there is some reason personal to them for their admittance. They may come as guests or to deliver the mail or to read the meters: whatever their particular purpose, they form a class which is distinct from that composed of those who are invited or permitted to enter as members of the public."

[14]At page 187:

"...those who are allowed to enter private property, not as members of the public, but for reasons in some way personal to the individuals admitted, will not be regarded as the general public or a substantial section thereof, and their admission will not constitute the giving of access to the public for the purposes of the definition. Pass holders entering a dock area, or employees going to work along a factory road, for example, do not bring the definition into play because they obtain access, not as members of the public, but on the strength of a relationship between the individual and the owner or occupier concerned. So, too, with those who visited the farm in Harrison v Hill ... for social or business purposes. Apart from any question as to whether, as a class, they could be reckoned a significant section of the public, the invitation or permission under which they entered was in no sense addressed or given to the public."

[15]In Vivier this court was able to hold that those who entered the relevant caravan site concerned did so as members of the public. Simon Brown LJ at page 213 referred to the screening process which users of the caravan site had to undergo before being permitted to enter. Anyone staying on the site had to register and visitors had to have a car pass. The only material use of the caravan park was by persons who had complied with the various site requirements and had been properly admitted either as caravanners or campers or as their bona fide guests. Simon Brown LJ stated:

"Our approach would be as follows. By the same token that one asks in the earlier type of case whether permission is being granted for a reason personal to the user, in these screening cases one must ask: do those admitted pass through the screening process for a reason, or on account of some characteristic, personal to themselves? Or are they in truth merely members of the public who are being admitted as such and processed simply so as to make them subject to payment and whatever other conditions the landowner chooses to impose."

[16]The court concluded:

"...it is quite unreal to suggest that at the gate some transformation occurs whereby they [that is the road users] alter their legal character, shed their identity as members of the general public and take on instead a different status as caravanners and campers."

[17]Mr Casey submits that the evidence in this case of use should be treated as use by members of the public. In my judgment Vivier is a very different case from the present one. It posed the particular problem of the screening process. There was very considerable use of the road indeed. It was a site for 450 static owner-occupied caravans and a further 600 touring caravans. At any time during the summer there were between 800 and 3,500 people present on site. Though caravanners, they were still members of the general public. That is a very different situation, in nature and extent, from that which existed on Osea Island or on the access to it.

[18]There is no evidence of any general public access to the island for any purpose. If, for example, there had been evidence of a viewpoint on the island from which there was a beautiful view of the sunrise, and evidence of use by the public of the Causeway to obtain access to the island to enjoy the view, that would be evidence material for present purposes.

[19]In my judgment, the evidence in this case is wholly insufficient to entitle a court to conclude that the Causeway was a public place within the meaning of section 5(1)(a). The use found to exist is compatible with access to the residences on the island and for purposes connected with those residences on the basis analysed by Lord MacDermott in Montgomery v Loney . Mr Casey relies upon the fact that the police officer who gave evidence recalled visiting the island on one occasion as a boy to pick samphire. In my judgment that is a wholly inadequate thread on which to reach a general conclusion that the Causeway was a public place.

[20]I understand the wish of the justices to reach a finding that someone driving in a place such as this should be subject to the provisions of section 5(1)(a) but upon the law enacted by Parliament as applied by the courts, the justices were not entitled to conclude that the public place test in this case was satisfied. On that ground this appeal must be allowed, but I deal briefly with the other points raised.

[21]I agree with Mr Casey that the status of the Causeway as a part of the foreshore has no bearing upon the issue which had to be decided. We have been referred to Lord Fitzhardinge v Purcell

[1908] 2CH 139

where rights over the foreshore of a tidal navigable river were in issue. There are some parts of the foreshore to which the public enjoy access (most of the bathing beaches in England and Wales will come within that category.) The fact that the Causeway is a part of the foreshore has no bearing upon the issue of public access which has to be decided in the circumstances of this case.

[22]Mr Casey submits that the justices were entitled to conclude that on the facts found by them, and for the reasons they gave, the claimant was driving the vehicle at the material time. Mr Casey accepts, as he has to by reason of the wording of the information, which limits the alleged "driving" to "the Causeway", that the prosecution must fail on the ground already considered.

[23]In seeking to challenge the finding of the justices that the claimant was driving, Mr Hodivala submits that the law draws a distinction between the driving of a vehicle and being in charge of that vehicle. On the facts found the justices could hold no more than that the claimant was in charge of the vehicle. Mr Hodivala relies upon the decision of the Court of Appeal in R v MacDonagh

[1974] 1 QB 448

. In that case Lord Widgery, CJ, stated at page 451D:

"The essence of driving is the use of the driver's controls in order to direct the movement, however that movement is produced... Although the word 'drive' must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary use of that word in the English language."

[24]Reliance is placed upon the fact that there was no movement of the vehicle at the material time. I do not consider that Lord Widgery was seeking in his definition to limit the situations in which a person can be driving to those when the vehicle is actually moving. A driver who stops his vehicle at traffic lights is clearly, in my judgment, still driving that vehicle. It is a question of fact and degree as to whether the cessation of movement has been for so long and in such circumstances that it cannot reasonably be said that the person in the driving seat is driving.

[25]As the justices found, the engine of the vehicle was running; the lights were on; the claimant was in the driving seat. Plainly he was waiting, as they found, for the tide to recede sufficiently for him to get across the Causeway. In waiting he may have dozed or was otherwise distracted so that he was awoken by the approach of the police officers. In my judgment, in circumstances such as these, the justices were entitled to hold that the claimant was driving the vehicle.

[26]The reasoning at paragraph (c) of the reasons is, in my judgment, entirely sound and justified upon the evidence given. Had this been the sole ground of appeal, I would have dismissed the appeal. However, for the reasons I have given, I have come to the conclusion that this appeal must be allowed.

[27]MR JUSTICE SILBER: For the reasons stated by my Lord, I believe that the magistrates were not entitled to come to the conclusion upon the evidence before them that the Causeway was a public place. I also agree that the magistrates were entitled to take the view that Mr Planton was driving.

LORD JUSTICE PILL: What follows from that, Mr Hodivala?

[29]MR HODIVALA: My Lord, in that case I have an application for a defendant's cost order. Unfortunately, I do not have

LORD JUSTICE PILL: We had better quash the conviction first, had we not? We answer the questions posed for the court: (a) yes and (b) no. The conviction is quashed and you have a further application?

[31]MR HODIVALA: My Lord, yes. I do not have a figure but I would certainly apply for the defendant's costs of this appearance and in the court below. As I understand it, Mr Planton was privately paying there as well.

LORD JUSTICE PILL: Mr Casey?

[33]MR CASEY: My Lord, I do not oppose my learned friend's application. I ask for the costs to be taxed.

LORD JUSTICE PILL: Out of central funds you are seeking costs?

[35]MR HODIVALA: Yes.