Barrett v Director of Public Prosecutions [2009] EWHC 423 (Admin)

[2009] EWHC 423 (Admin)

Case No CO/8903/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 10th February 2009

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE SCOTT BAKER

MR JUSTICE DAVID CLARKE

Between

BARRETTClaimant

Between

DIRECTOR OF PUBLIC PROSECUTIONSDefendant

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Miss K Hughes (instructed by Lowless & Lowless Solicitors) appeared for Claimant

Mr N Sefhon (instructed by the CPS) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE DAVID CLARKE: This is an appeal by case stated from a decision of the Magistrates' Court at Haverfordwest on 17th May 2007 convicting the appellant of an offence of driving whilst disqualified on 1st December 2006. The issue on which the Magistrates ruled against the appellant, and on which he appeals to this court, is whether the roadway within a caravan park at Tenby was a road within the meaning of the Road Traffic Act 1988 which provides that a road is "any highway and any other road to which the public has access".

[2]It was not disputed that the appellant was a disqualified driver, having been disqualified from driving for two years only three days previously. The information had alleged that he drove not only on a road within a caravan park, but also on the main A road outside the park and a petrol forecourt nearby. Rather than that issue being tried on the facts, which might have rendered this appeal unnecessary, the preliminary point was taken whether the roadway inside the park constituted a road. On the Justices' ruling that it did, the appellant pleaded guilty and the factual issue was never tried. He also pleaded guilty to a charge of using his vehicle without insurance, that on the basis that he accepted that his car was being used in a public place whilst not accepting that it was a road.

[3]The evidence showed that this was a large, privately owned caravan park situated between the main road and the beach at Tenby. There was a public footpath through the caravan park giving access to the beach, along which the general public had a right of way on foot. With the assistance of counsel appearing before us by video link, we have been able to look at a map of the relevant public footpath which is at page 19 in divider 2 of the bundle. It is a path which passes from the entrance gates on the main road, along a line which we have been able to trace on a separate map of the caravan park, which appears at page 11 of the same bundle and which illustrates the three points -- near the gateway, near the entrance lodge and then within the body of the caravan park itself -- at which the appellant was seen to be driving. It can be seen that the footpath follows the line of the roadway through part of the park but not to the last point at which the appellant was seen driving.

[4]The Justices found (and no issue is taken on this point) that the footpath was within the definition of a highway. They went on to find as follows, and we read from the case stated at paragraph 4.3:

"There is in existence a public footpath within Kiln Park to which members of the public have unrestricted access. The public footpath falls within the definition of 'highway'. 'Road' means any highway and any other road to which the public has access. But the tarmacadam road within Kiln Park has the physical character of a defined or definable route or way with ascertained or ascertainable edges leading from one point to another with the function of serving as a means of access enabling travellers to move conveniently from one point to another along a definable route to the beach and golf course. By driving within Kiln Park on the tarmacadam routes, the appellant was driving while disqualified on a road within the meaning of section 192 of the Road Traffic Act 1988."

[5]The Justices heard evidence from a security officer at the park that members of the public were not restricted from entering the park to reach the beach and the car park within the caravan site, whether by car or otherwise. Though the case stated does not say so, it appears to be common ground that there were gates at the entrance but they were left open. The Justices were shown a police video which illustrated the nature of the roadways in the park, which had defined edges, road signs and markings and speed humps.

[6]The argument for the appellant was, and is, that the caravan park was private; it was a destination in itself, not a through route; there was no public right of way through it for vehicular access; there was no beach car park, thus the caravan park could not be a public place. There was no through route to a beach car park and anyone using the caravan park to reach the beach by car would have to park within the caravan park itself and walk on to the beach.

[7]A number of authorities were relied on. I shall return to those in a moment.

[8]The Crown contended that the roadways were indeed roads. The public right of way through the park (that is the footpath) amounted in law to a highway and therefore that was a road within the meaning of the Road Traffic Act definition, in reliance on a case to which I shall return. Also, that there was unrestricted access to the beach used by members of the public as a route from one point to another.

[9]The Justices found in response to those arguments that the application of the statutory term "road" comes to be a matter of fact and circumstance to be determined by the tribunal of fact, properly directing itself in the law. The public had access to the site all year round; access was unrestricted. In being so unrestricted, it did not preclude the public from gaining access to the beach. The routes to the beach have road markings, speed ramps, speed signs, and were hence easily definable as routes leading from one point to another. Then they made reference to the public footpath falling within the definition of "highway". They pointed out that the word "road" means any highway and other road to which the public has access. In consequence of those rulings, the appellant pleaded guilty to the offence.

[10]The question framed for the opinion of this court is this:

"Whether the Justices, having heard the evidence, were entitled to conclude that as 'road' means any highway and other road to which the public has access, that the tarmacadam roads within Kiln Park constitute roads for the purpose of the Road Traffic Act."

[11]The definition has been considered by this court and by the Court of Appeal on a number of occasions, particularly in the context of car parks and caravan sites. So far as car parks are concerned, the decisions show that a private car park is, generally speaking, not a road. It is not a place which gives access from one point to another, nor does it have the normal characteristics of a road. This is the effect of the House of Lords decision in Cutter v Eagle Star, associated with Clark v Kato

[1988] 4 All ER 417

[12]This court considered a railway station car park in the case of Brewer v Director of Public Prosecutions

[2004] EWHC Admin 355

. That car park had two particular features relied on by the Crown: first, that pedestrians used it as a through route to a railway platform; and secondly, that railway staff used it as a through route by car to their staff car park beyond. In giving the leading judgment, Rose LJ reviewed the speech of Lord Clyde in Cutter in some detail, held that the car park was not a road in the ordinary sense of the word road, and concluded that the particular feature of through access to the staff car park beyond was insufficient to render the car park capable of being a road.

[13]We have been referred helpfully to two cases involving caravan parks. The first is the decision of this court in Director of Public Prosecutions v Vivier

[1991] 4 All ER 18

. That concerned a very large privately owned caravan park with a thousand caravans and three or four miles of roadway. The respondent there was charged with driving with excess alcohol, an offence which covers not only driving on a road but driving on a road or other public place. The Justices acquitted him on the ground that the caravan park was not a public place, since those who were present on the site were all persons who had been admitted by a form of screening process operated by the site owners. This court held that such persons did not thereby become a special class of persons distinct from the general public, thus the caravan park was a public place. It is to be noted that the question whether the location of the driving was a road was not the issue in that case.

[14]Dunmill v Director of Public Prosecution

[2004] EWHC Admin 1700

also was an excess alcohol prosecution, the appellant there having driven his car within the Oven Camp Site at Hayling Island. Although he could have been charged with driving on a road or other public place, he was only charged with driving on a road and it was too late in this court to widen that wording. The site contained some 350 plots, on 180 of which caravans were sited, with a tarmac perimeter road and what were described as "grass roadways" between the caravan and tent pitch sites. The Justices there were advised by their clerk in the following terms:

"'Road' means any highway and any other road to which the public has access . . . In determining whether a place is a 'road' for the purposes of the 1988 Act, the question to be asked, if the place is not a highway, is whether it is a road to which the general public have actual and legal access. A road has the physical character of a defined or definable route or way, with ascertained or ascertainable edges, leading from one point to another with the function of serving as a means of access enabling travellers to move conveniently from one point to another along a definable route."

Having received that advice, the Justices convicted the appellant on the basis that the place where he was driving was one to which the public had access. McCombe J allowed the appeal on the ground that the Justices had concentrated on that question without first considering what he described as the logically anterior question whether this was a road at all. He went on in this way at paragraph 16:

"Looking at the evidence which the justices recite in their case, the only material that we find is that the collision, to which admittedly Mr Dunmill was a party, occurred on a grass area, and there was the evidence of Mr MacCullum who had seen skid marks, not necessarily near the collision site, but apparently near the tent where the appellant had been staying, which strayed onto a roadway. It does not seem to me, therefore, that that slender evidence was sufficient to take the site in this case out of what one might generically have thought a caravan site to be, namely not 'a road' as such. Moreover, it seems to me that those two features of evidence were not sufficient in any event to establish this as being a road within the meaning of the charge."

[15]It seems to me that that decision is of no assistance to the appellant on the facts of the present case. Not only was this undoubtedly a public place, as the appellant acknowledged, but in my judgment it was also a road in the normal sense of that term. He followed a route between points marked on the plan which was a tarmac roadway with defined edges, road markings and signs. There was unchallenged evidence that it was used by members of the public, including those who had no other business within the caravan park, as a route to the beach. The fact that there was no beach car park as such so that they would have to park their cars and continue their journey to the beach on foot, does not, in my view, alter that position. The case is different from Dunmill where the relevant driving appears to have been on the grass and there was no clear evidence of driving on a way which bore the normal characteristics of a road.

[16]A further point arises on which the Justices partly founded their conclusion, and that arises from the pedestrian public right of way through the caravan site to the beach, rendering this footpath a highway: see Suffolk County Council v Mason

[1979] 2 All ER 369

per Lord Diplock at page 371 at letter G. Incidentally, that case also concerned a footpath through a caravan site to the seashore, though in the planning context rather than the context of road traffic law. The footpath would therefore have fallen within the definition of road even if it had not had the other characteristics of a road, such as sufficient width and a suitable surface for vehicular traffic. Reliance is placed by the Crown on Lang v Hindhaugh [1986] 2 RTR 71, which concerned a public footpath four to five feet in width which had been tarmacked but had deteriorated with potholes and bushes to the extent that it would not naturally be called a road. The appellant rode a motorcycle along it with excess alcohol and when disqualified and was convicted by the Justices. This court dismissed his appeal on the simple basis that since the footpath was a highway, being a place where the public had a right to pass and repass either on foot or with animals or in vehicles, as the case may be (in that case on foot), it fell within the appropriate definition.

[17]It makes no difference, in our judgment, that the point at which the appellant in the present case finished up was no longer on that part of the roadway which was coterminous with the public footpath. It seems to me that counsel for the respondent is right in submitting that the status of the footpath as a highway was a proper factor for the Justices also to take into consideration. Not only was this a road within the normal meaning of the word, but it was a road within the meaning of the statutory definition. I would therefore answer the Justices' question "Yes" and will dismiss this appeal.

LORD JUSTICE SCOTT BAKER: I agree. In the circumstances, the question posed in paragraph 10.1 of the case is answered in the affirmative.

[19]MR SEFHON: There is the issue of costs which I apply for on behalf of the respondent.

LORD JUSTICE SCOTT BAKER: Yes. What do you say about that, Miss Hughes?

[21]MISS HUGHES: My Lord, costs ordinarily follow the event. I do not think there is anything I can say in relation to that application.

LORD JUSTICE SCOTT BAKER: There will be an order for costs.

[23]MR SEFHON: I do not have a figure to place before the court. Perhaps that can be lodged within the next seven days.

LORD JUSTICE SCOTT BAKER: Is there an agreed figure?

[25]MR SEFHON: Unfortunately, my Lord, no.

LORD JUSTICE SCOTT BAKER: It is much better if it can be agreed.

[27]MR SEFHON: Absolutely.

LORD JUSTICE SCOTT BAKER: Would you endeavour to agree it and if you cannot it will have to be lodged in the usual way.

[29]MR SEFHON: I am grateful.