Avery v Crown Prosecution Service [2011] EWHC 2388 (Admin)

Case No CO/12915/2010[2011] EWHC 2388 (Admin)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONTHE DIVISIONAL COURTVenue Leeds Combined Court Centre1 Oxford RowVenue LeedsWest YorkshireLS1 3BGDate Thursday, 28th July 2011B e f o r e:SIR ANTHONY MAY(PRESIDENT OF THE QUEEN'S BENCH DIVISION)MR JUSTICE LANGSTAFF- - - - - - - - - - - - - - - - - - - - -Between:AVERYAppellantvCROWN PROSECUTION SERVICERespondent- - - - - - - - - - - - - - - - - - - - -Tape Transcript of WordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Stanbury (instructed by Crayson Willis Bennett) appeared on behalf of the AppellantMr Doswell (instructed by The Crown Prosecution Service) appeared on behalf of the Respondent- - - - - - - - - - - - - - - - - - - - -Judgment
Between
AveryClaimantCrown Prosecution ServiceDefendant
[1]This appeal by way of case stated from a decision of the Sheffield Magistrates of 8th February 2010 raises the question when a motorist may be said to be driving "on the road" within the meaning of section 5 of the Road Traffic Act 1988.[2]It arises in this way. On 9th November 2009 the appellant took his Rover 618 motor vehicle to his brother's house in Sheffield. He parked it on the driveway, which led across the footpath from the carriageway of Industry Road to his brother's property. A neighbour, who had no driveway to her terraced house and was therefore required to park her car on the roadway, returned from work in the early afternoon and parked her vehicle, a Ford Focus, with the offside on the pavement and the nearside on the roadway outside number 60. The magistrates found that there was a gap between the Ford Focus and the perimeter of the relevant residential property which was sufficient for pedestrians to pass through.[3]The appellant, who had been to the pub and had had sufficient to ensure that the amount of alcohol in his breath exceeded the prescribed limit, decided to adjust the position of his Rover within the driveway and garden of his brother's house. It had been parked so that the rear end, with the tow bar, was nearer the road. He moved the car forward and back. In the course of doing so the rear of his vehicle struck the driver's side of the Ford Focus.[4]The appellant contended before the magistrates, when charged with an offence under section 5 of the Road Traffic Act 1988 in respect of his driving, that he had driven his vehicle purely for the purposes of manoeuvering it into a more favourable position within the curtilage of his brother's property - the case stated refers to “curtailment”, but this is a typographical error for "curtilage". He contended that the wheels of his Rover motor vehicle never left the curtilage of his brother's property. The magistrates observed that that was never directly challenged by the respondent, and accordingly if the position of the wheels were the critical factor as to whether the Rover which had been driven was on Industry Road at any relevant time, the prosecution could not have been found to establish that to the requisite standard.[5]The appellant accepted that his vehicle must have encroached onto the pavement area, which was accepted to be part of the road for present purposes. This must be obvious for part, at any rate, of the vehicle had to cross a part of the pavement sufficient for a pedestrian to walk along before striking the side of the Ford Focus as it did. The Magistrates' Court at one point in the case stated concluded it was "a few feet".[6]The appellant gave evidence that he believed that the part of his vehicle which struck the Ford was the overhang, namely the area of the vehicle behind the rear wheels.[7]Arising out of those facts an information was preferred by the respondent against the appellant that on 9th November 2009 he drove a motor vehicle, namely a Rover 618, on a road, namely Industry Road in Sheffield, after consuming so much alcohol that the reading of his breath, namely 56 micrograms of alcohol in one millilitres of breath, exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. The information was amended to allege “driving or attempting to drive”, but in the event the magistrates did not go on to consider the question whether the appellant attempted to drive since they were satisfied so that they were sure he had actually driven. They concluded that: i. "Irrespective of where the wheels of the Rover were or may have been, we found that the encroachment was sufficient so as to render the appellant's vehicle as being on the public highway at the time of the collision with the Ford Focus", 8. and referred to the findings having been that of driving on a public road, albeit by a matter of a few feet. 9. The question posed for the opinion of the High Court was:
"Whether if a vehicle encroaches onto an area which would constitute a road but the tyres of the said vehicle do not leave private land, can the driver be found to have driven on a road, thereby potentially making him guilty of a relevant offence?" 10. The Magistrates were referred to caselaw. In Randall v The Motor Insurers Bureau [1968] 1 WLR 1190, a school sergeant attempted to stop a vehicle which had been fly-tipping on private school land from leaving the land by standing in front of it. When the lorry moved toward him, the driver being determined to leave, he was forced to jump to one side. The front wing of the lorry caught him as he did so, causing no substantial injury, but he was then trapped between the moving lorry as it left the private premises and the escarpment of a raised bank to the side of the entrance. He was pulled forward as the lorry passed him, eventually falling to the ground with his head and shoulders inside the boundary of the school property and his legs outstretched, although he did not remember in which direction. A rear wheel of the lorry passed over his leg, fracturing it. At the time the rear wheel passed over his leg the front wheels of the lorry were already well out onto the public road beyond and the driver had started to turn the lorry into his direction of travel. The one and only question in dispute was whether the bodily injury was caused by or arose out of the use of the lorry on a road. That was relevant because the statutory question was whether the injuries were caused by or arose out of the use of a vehicle on a road within sections 203(3)(a) and 257 of the Road Traffic Act 1960. Megaw J said at page 1905: i. "
In my judgment the answer to that question on the facts of this case is ‘yes’. I have no doubt that in common sense and in the ordinary use of language the lorry was being used on a road ... at the time when the plaintiff sustained the serious injury of which he complains. If anything turns on the precise time of the incident, which again as a matter of common sense cannot be divided into a series of separate incidents, the determining factor is the time when the wheel of the lorry ran over the plaintiff's leg. At that time the greater part of the lorry was on the road and the lorry as a whole was using the road. The fact that the rear part of the lorry, including the wheel which ran over the plaintiff's leg, was still just on private property does not, in my view, affect the conclusion that the lorry was then using the road. It was the use of the lorry on the road, the fact that it was being driven further onto the road in order to drive away along the road, which caused the injury. Certainly the injury arose out of the use of the lorry on the road. The fact that the plaintiff when he was injured was still, though only just, on private property and that the wheel which caused the injury was still just on private property, does not, to my mind, affect the conclusion. The plaintiff therefore succeeds in his claim."[11]In Holliday v Henry [1974] RTR 101, the Divisional Court, Lord Widgery CJ, Ashworth and Melford Stevenson JJ, considered a prosecutor's appeal by way of case stated from a decision of the Maldon Justices. The offence of which the magistrates had acquitted the respondent was under section 8(1) of the Vehicles Excise Act 1971, which provides that a person is liable to a penalty if he keeps on a public road any mechanically propelled vehicle for which a licence is not in force. The respondent had an Austin motor vehicle. He did not have a current tax disk. When, absent its gearbox, the vehicle was left parked on a public highway in Walton with a roller skate under each of the four wheels of the vehicle so that it was totally supported by the skates, and its wheels were not in contact with the road surface, he argued that because the Austin was not in actual contact with the road but was supported on roller skates, its position was analogous to that of being on a trailer. It could not be said that the vehicle was on the road if the roller skates were interposed between the road and the vehicle so that the vehicle was on roller skates, not on the road. As Lord Widgery CJ observed, this argument, taken to its logical extent, would mean that if "one put a piece of newspaper under each wheel, the vehicle would no longer be on the road and no longer be liable to an excise licence". He observed: i. "Unfortunately for the defendant, that would not do. It is perfectly clear that it was on the road for present purposes at the time of the alleged offence and I would allow the appeal and send the case back to the justices with a direction to convict."12. The other members of the court agreed.13. From those cases can be derived the following propositions. First, "on the road" does not necessarily involve physical contact between any part of the vehicle and the roadway. This must be so unless some object within the purpose of the relevant statute would be served by such a requirement. Neither Randall nor Holliday concerned the Road Traffic Act 1988 under which the information in the present case was laid. Section 5 of that Act provides that a person who drives or attempts to drive a motor vehicle on a road or other public place is in effect guilty of an offence if he drives after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit. That section comes in Part 1 of the Act, the heading to which is "Principal Road Safety Provisions". The purpose is thus made clear: to secure the safety of the public who might be expected to use a road or other public place by ensuring that they are free from the risks posed by the drunken use of a car or other motor vehicle in that same place. This purpose, so understood, does not require that any particular part of the vehicle should be in contact with the road so as to be in that sense on it.14. Secondly, the case of Randall, insofar as it is useful at all, shows that it is not necessary for the entirety of the vehicle to be on the road in the sense of wholly located there. The references in that case to the position of the wheels of the lorry are made when describing the position of the vehicle at the time when the injury was suffered by the plaintiff. Any focus on the particular position of the wheels might be explained by a submission in that case to the effect that because the injury to the plaintiff occurred when both he and the part of the lorry causing injury, the wheel, were on private property, there was no accident arising out of a vehicle being driven on the road, but instead it arose out of the vehicle being driven on private land. It is no part of the court's reasoning in that case to conclude that because the front wheels of the lorry were on the roadway the vehicle could be said to be on the roadway when, if those wheels had not been, neither had the vehicle. Such an analysis was not necessary to determine the issue in that case. That issue was not the same as the issue here. The issue was whether the injury concerned had been caused by the use of a vehicle on the road and the judgment is concerned specifically with use rather than location.15. Mr Stanbury, for the appellant, argues that the factors determinative in Randall were indeed not limited to the extent of the infringement of the vehicle on the highway. He mentions specifically Megaw J's reference to the fact that it was the use of the lorry on the road and the fact that it was being driven further onto the road in order to drive away it which caused the injury. He submits that, by contrast, the greater part of the appellant's vehicle here remained on the driveway. The collision here could rightly be said to be incidental to his turning his vehicle on the driveway. It could hardly be said that the infringement on the road of a small proportion of the appellant's vehicle amounted to his having attempted to drive on the road, let alone having actually driven on it. He submits that the court should have regard to a number of matters, which may include the extent of the infringement of the road, but should also include whether an individual drives further on the road, and if he does not do so whether it is his intention to do so. Such an approach, he submits, is to be preferred to the over-simplistic one adopted by the Magistrates here, which was to resolve the dispute solely by reference to the proportion of the appellant's vehicle which had infringed upon the road. Conclusions[16]In the rare case in which the emphasis is on the word "on" in the phrase "on the road", rather than on the word "road", and in which it is accepted that the appellant is driving, it is not necessary that there should be any contact between vehicle and road surface. The question is not to be determined by the exact position of a few centimetres of rubber tread on which the load of the vehicle rests. Once this is accepted, the only issue is whether there has been sufficient occupation of road space for the protective purposes of the statute to be engaged. This is demonstrably the case where, as here, the encroachment on the road is sufficiently substantial to cause damage and to show a potential for causing injury to pedestrian and vehicular user alike, although the happening of an accident or a near miss is, I accept, not essential to show the necessary occupation of road space.[17]It is not necessary, in my view, for any assessment to be made as to where the whole or bulk of a vehicle is. In his argument, Mr Dodswell posits a case of a long lorry of the sort which frequently carries heavy container goods backing out from a loading bay or goods yard across a public highway. One can well see that many feet of the lorry might obtrude onto the carriageway, whilst the bulk of the lorry would remain within the yard or loading bay and, without a wheel ever having so much as touched the roadway, cause such a significant obstruction to the passage of pedestrians or vehicles as to engage the public safety provisions of the 1988 Act to the effect that a the driver who is drunk when performing the manoeuvre poses a real risk.[18]Any material encroachment on the air space vertically above the road is, in my view, sufficient to justify a conclusion that the vehicle concerned was on the road.[19]Since the rear overhang of the car in the present case hit the Ford Focus, it can simply be asked in this case: was the boot of the car on the driveway when it hit the parked car? If the answer to that question is to be that the question is irrelevant, because the correct question is where the car as a whole is, that would ignore the fact that the legislation seeks to protect the public from the effects of drunken driving in a place where they might be expected to pass and re-pass in safety. It plainly would not have been safe in the present case. If the answer is that the boot is not on the driveway, as the answer must be here, then where was it? In the present case that would admit of only one answer: on the road. The extent to which the rest of the vehicle was still on private property does not matter, provided only that the intrusion into the road could not properly be described as minimal. That could not be the case here.[20]The conclusion ultimately was a matter of fact for the Justices. The Justices were entitled, and in my view on the facts here were bound, to convict. Accordingly, the question that the Magistrates posed must, in my view, be answered "yes" and this appeal dismissed. THE PRESIDENT:[21]I agree. This appeal should be dismissed for the reasons which Langstaff J has given. I would answer the Justices' question "yes”, with the proviso implicit in my Lord's judgment that the encroachment is material and that the driver is, as a matter of fact, driving. I would add that proviso to make it clear that those two matters should be considered and only because the exact form of the question posed for the court does not in terms raise them.[22]The answer to the question is, as we have just said:
"Yes, provided that the encroachment is material given that the driver is, as a matter of fact, driving"
. The appeal will be dismissed.