Planton v Director of Public Prosecutions [2002]
- Reported: [2002] RTR 9
- Year: 2002
- Court: Queen's Bench Division
FACTS:-
The Defendant, Mr Jeremy Planton, lived on Osea Island, an island in the estuary of the Blackwater River in Essex. The island is linked to the mainline by a man made Causeway. This causeway is sometimes passable and sometimes submerged by tidal water.
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. Notices include: “Private Road Residents and Authorised Vehicles only; another notice: “private Road No Parking”; and a further notice: “Danger Tidal Causeway Authorised vehicles only”
The Defendant owned the car in question. At the material time he was found 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. The car was not moving, there was no explanation from the Defendant other than he was waiting for the tide. At the time the Causeway was passable as the tide was going out.
The police breathalysed the Defendant, finding 68 microgrammes of alcohol in 100 millilitres of breath which exceeded the prescribed limit. He was subsequently charged under section 5 (1) (a) of the Road Traffic Act 1988. Section 5 (1) (a) provided;
“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”
The court imposed a fine of £1,100 and disqualified the Defendant from driving for a period of 18 months.
The Defendant submitted that for the purposes of the offence he had neither been “driving” his vehicle nor in a “public place”.
The appeal was heard in the Queen’s Bench Division before Lord Justice Pill and Justice Silber.
HELD:-
Lord Justice Pill addressed the issues in which counsel did, and first considered the status of the Causeway. He accepted that it was common ground that the public place test is that stated in Harrison v Hill [1932] JC 13. The Lord Justice General stated at page 16 of the former report;
“When the statute speaks of “the public” in this connection, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social…, 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”
Counsel for the Claimant relied heavily upon the decision of the Queen’s Bench Division in Director of Public Prosecutions v Vivier c. Simon Brown LJ, giving the judgment of the court, analysed the meaning of the expression “special class of members of the public” in Harrison v Hill. Simon Brown LJ also referred to the judgement of Lord Macdermott in Montgomery v Loney [1959] NI 171, he 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 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”
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 purposes of the definition… 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”
In Vivier 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”
Lord Justice Pill distinguished the case of Vivier stating it was very different from the present case both in nature and extent. In Vivier the road was considerably used. The caravan site 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 presen ton site. Though caravanners, they were still members of the general public. In the present case there was no evidence of any general public access to Osea island for any purpose.
The evidence in the case was 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 residence on the island and for purposes connected with those residences on the basis analysed by Lord Macdermott in Montgomery v Loney. 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 the appeal was. Despite, allowing the appeal he did continued to discuss the other points raised.
Particular attention was drawn to the issue as to whether the Defendant was driving the car.
In seeking to challenge the finding of the justices, counsel on behalf of the Defendant relied upon the decision of the Court of Appeal in R v MacDonagh [1974] 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 the 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 moor vehicle in any ordinary use of the word”
Reliance was placed upon the fact that there was no movement of the vehicle at the material time. Lord Justice Pill could not accept that Lord Widgery was seeking his definition to limit the situations in which a person can be driving to those when the vehicle is actually moving. It determined that it was 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.
Lord Pill concurred with the justices that the evidence before them, namely the Defendant in the driving seat, with the engine running, lights on and in the middle of the road was sufficient to determine that he was driving.
He went on to conclude that had the appeal been solely on the issue of whether the Defendant was “driving” he would have dismissed the appeal, however, the justices were wrong in determining that the “Causeway” was a road so subsequently the appeal must be allowed.
Justice Silber agreed with Lord Justice Pill in that the magistrates were incorrect in coming to the conclusion that the Causeway was a public place, however, were correct in deciding that the Defendant was driving.
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