An interesting case. Acquitted driver was driving on a service road in Norwich which runs parallel to a busy main road and has access to the main road at either end. However appeal court deemed it not a road or public place as defined by the Road Traffic Act 1988 even though public had access to in and pedestrians needed to cross it. Conviction for drink driving was quashed.
www.stamfordmercury.co.uk/news/national_2_6436/driver_s_alcohol_conviction_quashed_1_2479887
|
|
I think that ruling is quite bizzare. Surely visitors, delivery men and the postman must have used the road.
|
|
It's normally the case for supermarket car parks and similar - they come under the relevant act for regular use by the general public.
|
I recall a similar case in which a drunk driver tried to argue a pub car park was private land.
He lost, partly because access was open - there was no gate.
In this case the judge said the CPS 'led no evidence' of regular public use.
This could be because there is none, or it could be the judge's way of criticising the CPS for a poorly prepared prosecution.
|
Here is a picture of the road in question - it is the access road running parallel to the main road (Dereham Road. There is nothing to stop the public accessing the road and indeed delivery vans etc. would use the road as would children riding bikes etc.
It does seem odd tinyurl.com/4ogdqts
Last edited by: VxFan on Sat 12 Mar 11 at 17:12
|
|
Give that man a (secret) handshake :)
|
|
I assume then that members of the public dont live in those homes along that unused road?
|
...Give that man a (secret) handshake :)...
Unlikely, given the judgment was handed down by Mrs Justice Rafferty.
|
|
All sounds a bit iffy though ;)
|
...All sounds a bit iffy though ;)...
Maybe, but there can be no serious suggestion a small man of no account in Norwich can unduly influence a High Court judge in London.
She seems to have been impressed by the arguments advanced by his lawyers, or as I mentioned earlier, possibly unimpressed with the way the CPS presented its case.
I think anyone would be unwise to take this judgment as a licence to drive drunk on private property to which the public have access.
|
|
There are no small men of no account in Norwich as Justice Rafferty evidently agrees.
|
the judgment was handed down by Mrs Justice Rafferty.
>>>>.
#>>>>>>>>> does she live on baker street then
|
...does she live on baker street then...
Bellboy,
Her first name is Justice - she lives in a higher place than the likes of you and me. :)
|
oh sorry she lives in a high rise flat then
would that be sarf of the river then?
|
...oh sorry she lives in a high rise flat then...
About as likely as her living in a cardboard box.
Last edited by: Iffy on Sun 13 Mar 11 at 13:45
|
>> the judgment was handed down by Mrs Justice Rafferty.
>> >>>>.
>> #>>>>>>>>> does she live on baker street then
Light in her head and dead on her feet
Well another crazy day
You'll drink the night away
And forget about everything
Yup - she sure does BB.
|
Agree with others that it's an odd decision on its own facts - very foolish of anyone to see it as a precedent for other places.
Full write up/reasons here:
tinyurl.com/4gx3jp9 (bailii legal database).
No further comment from me for now. It's far too nice to be sitting in reading judgements; off for a spin on the old Dawes Galaxy.
|
...It's far too nice to be sitting in reading judgements;...
Just had a plough through.
Seems that for drink driving purposes, use of the road by 'members of the public' doesn't include residents, their visitors, postmen, milkmen, tradesmen and the like.
On the face of it, many housing estate roads could fall into that category.
|
I think the fine difference would be in the phrase 'meant only for a special class of members of the public' A housing estate road is meant for all, i.e all those who choose to use it.
Presumably the same definition of a road would apply for insurance purposes and you would not need insurance to drive down the road in question?
|
|
Could it be because the 'road' is unadopted, and is only for access to the houses. There is no pavement so presumably no implied access for pedestrians other than residents. There is another similar 'road' approx 1/2 mile further into Norwich, again unadopted
|
It appears the adopted or unadopted nature of the road is not relevant.
The court was trying to decide what is meant by 'public use' in relation to drink drive cases.
The magistrates decided because anyone could use it, even if they had no business to, it was a public road.
The High Court decided otherwise:
Quoting from the judgment: "The key question is whether there were before the Bench evidence of public use of the unmade "service road".
"There was no or no adequate evidence before the Bench of the use by the public of the "service road" such as to bring it within the definition of a public road set out in the authorities."
|
The definition of a road in England and Wales is ‘any highway and any other road to which the public has access and includes bridges over which a road passes’ (RTA 1988 sect 192(1)). In Scotland, there is a similar definition which is extended to include any way over which the public have a right of passage (R(S)A 1984 sect 151(1)).
It is important to note that references to ‘road’ therefore generally include footpaths, bridleways and cycle tracks, and many roadways and driveways on private land (including many car parks). In most cases, the law will apply to them and there may be additional rules for particular paths or ways. Some serious driving offences, including drink-driving offences, also apply to all public places, for example public car parks.
The terms ‘public right of way’ and ‘highway’ are often used interchangeably. Both mean a way over which the public have a right to pass and repass. ’Highway’ is often used to refer to the physical feature and ‘public right of way’ to the legal right to, for example, walk, ride or drive over it.
Under the Vehicles Excise Act a 'Road' is defined as a road repairable at public expense.
Last edited by: Fullchat on Sun 13 Mar 11 at 20:13
|
Looks like a prosecution balls up, did not think they needed to offer evidence that it is a road.
I used to live on Keddleston Road in Derby, our access was off a service road that was limited to access to the properties - would seem to fit the description here as the public were breaking the law if they used it for any other purpose.
I would have been very annoyed if a drunk driver had escaped conviction for those reasons.
Didn't the crown think to consider that he must have come from somewhere else and hence must have also been on a road . . . .
Thinking back to when my father took redundancey from the police - as an inspector he was acting as a prosecutor in magistrates court and was replaced by CPS solicitors who in his view didn't properly prepare the cases (i.e. opened the file as they walked into court). That was 25 years ago and I doubt it has changed.
|
"Didn't the crown think to consider that he must have come from somewhere else and hence must have also been on a road . . . ."
You can't be prosecuted for what you might have done elsewhere based on supposition.
Actually the reasoning as to why the the access road was not a road in the meaning of the act looks very logical although initially suprising
The defendant was actually found guilty in the magistrates court and the decision overturned on appeal
|
...was replaced by CPS solicitors who in his view didn't properly prepare the cases...
The CPS was formed partly because it was felt the police had too much of an interest in securing a conviction.
But there's no doubt the civil service mentality of the CPS is not well suited to the adversarial nature of the court process.
I hear many stories of detectives frustrated by CPS lawyers who will not run cases which the police think are winnable.
A few years ago, CPS advocates began replacing barristers as prosecutors in the crown court.
The CPS people were almost all hopeless, partly because they had no experience of prosecuting cases, and partly because they were up against some wily old campaigners from the criminal bar.
It was a cost-cutting measure, but recently we are seeing more proper barristers prosecute cases again.
I'm told the bar, in the north east at least, is getting the message across that a fixed fee barrister can be cheaper than using an in-house CPS lawyer.
Last edited by: Iffy on Mon 14 Mar 11 at 09:00
|
|
Could the prosecution appeal?
|
Power to administer preliminary tests
(3)This subsection applies if a constable reasonably suspects that the person—
(a)HAS BEEN driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having alcohol or a drug in his body or while unfit to drive because of a drug, and
(b)still has alcohol or a drug in his body or is still under the influence of a drug.
(4)This subsection applies if a constable reasonably suspects that the person—
(a)is or HAS BEEN driving, attempting to drive or in charge of a motor vehicle on a road or other public place, and
(b)has committed a traffic offence while the vehicle was in motion.
You will notice that the power to require and administer a test extends to someone who HAS BEEN driving. However the offence of OPL only applies to 'driving' or 'incharge' on a road or public place.
It could be argued that as the road was private the Police could not make the requirement for the breathtest however a good knowledge of powers is very useful
Section 4 RTA 1988 which covers - Driving, or being in charge, when under influence of drink or drugs
(6)A constable may arrest a person without warrant if he has reasonable cause to suspect that that person is or HAS BEEN committing an offence under this section.
(7)For the purpose of arresting a person under the power conferred by subsection (6) above, a constable may enter (if need be by force) any place where that person is or where the constable, with reasonable cause, suspects him to be.
So there is the power to be in a 'private' place BUT a breathtest cannot be requested. Its a straight arrest but the station procedure / end result can be the same.
Seems to me that someone has not joined the two together and provided evidence that the driver had recently driven on a road either by way of witness evidence or even an admission under interview.
Can an appeal be appealed? Yes the next step is the High Court. But as the offence was not nailed it would be difficult. Remember the argument was not about the excess alchohol but about whether or not the car was on a 'road' . As so often happens the main offence is diminished by legal argument over technicalities.
Last edited by: Fullchat on Wed 16 Mar 11 at 00:51
|
...Can an appeal be appealed? Yes the next step is the High Court...
It's already there.
This one has taken a slightly unusual legal journey by going straight from magistrates' court to the High Court.
It's called 'by way of case stated' and happens when the magistrates have legal questions.
The usual appeal route from magistrates would be to the crown court.
The judgment in this case is from 'Mrs Justice' Rafferty - the courtesy title tells us she is a High Court judge.
An appeal from the High Court used to go to the House of Lords, but it now goes to the recently-created Supreme Court.
www.supremecourt.gov.uk/about/role-of-the-supreme-court.html
Definition of 'by way of case stated' here:
forum.lawbore.net/index.php?action=vthread&forum=2&topic=420
Rules for 'by way of case stated' here:
www.justice.gov.uk/criminal/procrules_fin/part_64.htm
Last edited by: Iffy on Wed 16 Mar 11 at 02:28
|
>> An appeal from the High Court used to go to the House of Lords, but
>> it now goes to the recently-created Supreme Court.
Most would go first to the Court of Appeal though in limited instances there is direct access from the High Court to the SC.
|
>> the judgment was handed down by Mrs Justice Rafferty.
>> >>>>.
>> #>>>>>>>>> does she live on baker street then
>>
Use to.
Last edited by: Martin Devon on Wed 16 Mar 11 at 06:01
|
What is a road under the Road Traffic Act? - Bill Payer
