Richardson v Director of Public Prosecutions [2018] EWHC 428 (Admin); [2019] 4 W.L.R. 46, QBD.
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Richardson v Director of Public Prosecutions [2018] EWHC 428 (Admin) was an appeal by way of case stated to the Queen’s Bench Division (Julian Knowles J) which quashed the appellant’s conviction for being in charge of a motor vehicle whilst unfit through drink.
Mr Scott Richardson had been convicted by Bedfordshire justices sitting at Luton Magistrates’ Court on 16 April 2018 of an offence contrary to section 4(2) of the Road Traffic Act 1988. It was alleged that on 24 October 2017 at Dunstable he had been in charge of a white LDV Maxus van in a public place, namely Bell Car Park, Leighton Buzzard, whilst unfit to drive through drink. Mr Richardson pleaded not guilty, identifying two issues: whether the car park was a public place and whether he had intended to drive. The second issue fell away and the appeal concerned only the first.
At the conclusion of the prosecution case the defence submitted that there was no case to answer on the basis that insufficient evidence had been adduced for any reasonable tribunal properly directed to conclude that the relevant location was a road or other public place within the meaning of section 4(2). The justices rejected the submission. They had viewed photographs showing that the car park had two entrances or exits, neither of which had any barrier. They noted several different parking signs within the same car park. At one entrance there was a sign for Enhance Aesthetics directing patient parking to the rear. At the other entrance was a sign reading ‘PRIVATE PROPERTY – Strictly No Unauthorised Parking’ placed under a sign for ECL Howard Watson Smith. Other signs were visible in the photographs, some stating ‘Staff Parking’, others ‘Private Car Park’, and one sign above two spaces explicitly warning that they were private car park spaces only for employees, that parking there risked a fine for trespass or being blocked in, and that parking there was not permitted at any time.
The justices heard evidence from Ms Rebecca Davies, who worked as bar staff at The Lancer pub. Mr Richardson worked as security at the pub on Fridays and Saturdays, but the day in question was not a weekend and he had not worked. Ms Davies said that Mr Richardson had been in the car park for about an hour and a half before she called the police. During that time she went to him three times. He had said two or three times that he wanted to end it all and crash into his girlfriend’s house, and she had unsuccessfully tried to take his car keys. The stated case recorded that he was parked in the car park. Mr Richardson said at interview that he intended to sleep in his vehicle.
The justices found a case to answer on the basis that Mr Richardson was parked in the car park as a member of the public and there was no barrier to entry at either end, so no restriction to access by the public. They noted numerous different signs in relation to parking in the car park. Mr Richardson gave evidence that he worked as security at the pub but had not worked on the day in question. He said he had parked in the car park as an employee of the pub. He lived in his van. His statement about crashing his car had not been genuine but had been emotional. He was not going to drive over the alcohol limit and was going to work the following day at 8 am. He disagreed with the expert evidence that he would not have been fit to drive until 11 am.
The justices convicted Mr Richardson. They found that the car park in question was a public place, that the car park had no physical restriction to access, that there were a number of different signs for different parking spaces, and that Mr Richardson was parked as a member of the public as he was not working at the time. They were not satisfied on the balance of probabilities that Mr Richardson had no intention to drive whilst over the alcohol limit, noting that he intended to go to work at 8 am the following morning whereas the expert report concluded he would not be fit to drive until 11 am. The question stated for the opinion of the High Court was whether the prosecution had brought sufficient evidence for a reasonable tribunal properly directed to conclude that the relevant location was a public place.
Ms Pasteris for Mr Richardson submitted that there was insufficient evidence on which the justices could properly have convicted. The absence of barriers was not of itself enough to demonstrate that the car park was a public place. No evidence had been adduced showing that the car park was in fact used by members of the public. Mr Richardson’s parking there whilst not at work did not suffice to show that the car park was used by members of the public or that any such use was tolerated and hence lawful. She relied on Spence [1999] RTR 353 and R v Director of Public Prosecutions ex parte Taussik (unreported, 7 June 2000). Mr Weaver for the Director of Public Prosecutions submitted that the justices were entitled to reach the conclusion they did and that there was sufficient evidence. He said that the car park, although it purported to be private, was one to which the general public had access at the material time and was used by a number of different premises. Entry was not confined to any distinct class of the public. The Court was entitled from the photographs to infer that the public did use the car park, and Mr Richardson’s own use as a member of the public proved its nature as a public place.
Julian Knowles J held that there was no statutory definition of public place in the Road Traffic Act 1988, but that the term had to be construed ejusdem generis with road, which was defined in section 192(1) as any highway or other road to which the public has access. Hence, public place meant a place to which the public has access: Spence and Vivier. The question whether a place is public or private is largely a matter of fact and degree, and on appeal the question is whether on the facts found the justices were entitled to come to their conclusion, which is properly a question of law: Montgomery v Loney [1959] NI 171, approved in Vivier. The judge adopted the propositions set out by Laws LJ in May v Director of Public Prosecutions [2005] EWHC 1280 (Admin), including that the burden rests on the Crown to prove beyond reasonable doubt, that there must be evidence that the public actually utilised premises before a court can conclude they are a public place, that it is not sufficient to say the public could have access if they were so inclined, that premises will be private where entered for reasons beneficial to the occupier or for business purposes, but that even business premises will be public if the location is a public service or utility, including a pub car park during licensed hours, and that a distinction is to be made where premises are occupied by a large number of people.
The judge emphasised that the public’s use must be lawful, meaning the public must have express or implied permission to access it. He cited Harrison v Hill 1932 JC 13, which said that when the statute speaks of the public having access to a road, what is meant is that the public actually and legally enjoys access to it, and that there must be walking or driving by the public on the road which is lawfully performed, that is to say permitted or allowed either expressly or implicitly by the person or persons to whom the road belongs. This passage was cited with approval in Spence, in which Henry LJ stated that the fact there is neither physical obstruction nor any sign forbidding entry to those with no business there does not itself mean the public have access; there must be evidence that the public utilises that access. In Spence there was no evidence of any use other than by a special class of those with business there.
Julian Knowles J held that in light of these principles there was insufficient evidence before the justices to enable them to convict Mr Richardson. The submission that there was no case to answer should have succeeded, and their findings of fact were plainly insufficient to support the conviction. The first difficulty was made clear by the photographs. They showed that the car park served a number of businesses and that there were a number of different forms of sign in different areas, all strongly indicating that parking by the public was not permitted. Some areas had signs reading ‘Private Property Strictly No Unauthorised Parking’, others ‘Staff Parking’ or ‘Private Car Park’. One sign was particularly striking, being above two spaces and stating that they were private car park spaces only for employees, that parking there ran the risk of being fined for trespass or being blocked in, and that parking there was not permitted at any time. It therefore appeared from the photographs that although the car park as referred to in the stated case was one area with two entrances, it in fact appeared to comprise several different car parking areas for use by different groups of persons, at least some of which were unquestionably and explicitly private. There was no finding by the justices as to exactly where Mr Richardson parked. If he had parked under the sign just mentioned, there could be little question but that he had parked in a private area. This deficiency alone meant the conviction could not stand. Mr Richardson had to be in charge of his vehicle in a public place and given that in the judge’s view that question depended on exactly where in the car park he had parked, the absence of any evidence or finding about where he parked was fatal to the conviction.
A second problem for the prosecution was the absence of evidence of any use by the public, as opposed to members of the public who happened to have business at the premises served by the car park, including for example patients visiting Enhance Aesthetics. In the absence of such evidence, there was no case to answer. The case was wholly different from May, which also concerned a car park at commercial premises, namely a Volvo franchise, where there were signs inviting members of the general public to enter and to park. In May, Laws LJ said that in Spence there was no evidence of any reason why any member of the general public should go there as opposed to those having pre-ordained specific business. In the judge’s judgment, that aptly described the position on the present appeal.
The third problem faced by the prosecution was the absence of any evidence that even if, contrary to the evidence and the signs in the photographs, the public did in fact use the car park, they had lawful permission to do so either explicitly, implicitly or as the result of tolerance by the owners of the land in question. Again, this absence of evidence and factual finding was fatal to the conviction.
Turning to the findings of fact in the reasons given by the justices, neither separately nor together did they constitute a case to answer nor were they capable of supporting the conviction. The fact that there were no physical barriers was not of itself sufficient to establish that a car park was a public place, as Spence made clear. Also, the fact that Mr Richardson parked as a member of the public in the sense that he was not at work at the pub at the time was true, but there was no evidence that he was entitled to do so lawfully because there was no evidence of general tolerated use by the public. The mere fact that the photographs showed cars parked in the car park was not sufficient because they could have belonged to staff of the businesses served by the car park, who were entitled to park there. The second reason given by the justices, namely the presence of signs, weighed against the prosecution because, with the exception of the Enhance Aesthetics sign inviting patients to park, all of the other signs made clear in different ways that public parking was not allowed and that the car park was private.
In short, the appeal succeeded and Mr Richardson’s conviction was quashed on the ground that there was insufficient evidence that the car park was a public place within section 4(2) of the Road Traffic Act 1988.
Public Prosecutions v Vivier [1991] 4 All ER 18
May v Director of Public Prosecutions [2005] EWHC 1280 (Admin)
Lewis v Director of Public Prosecutions [2004] EWHC 3081 (Admin)
Filmer v Director of Public Prosecutions [2007] RTR 28
Montgomery v Loney [1959] N.I. 171
Planton v D irector of Public Prosecutions [2002] RTR 9
Director of Public Prosecutions v Vivier [1991] RTR 205
Pugh v Knipe [1972] RTR 286
Deacon v AT (A Minor) [1976] RTR 244