Dunmill, R (on the application of) v Director of Public Prosecutions

For an offence requiring driving on a road, it is insufficient to establish merely that the public had access to the place. The court must first determine whether the place has the physical character of a road and then consider public access. A caravan site or grass area does not become a road without sufficient evidence of a defined or definable route used as a means of passage. The charge must identify the precise basis of the alleged offence. A procedural provision concerning defects in an information or charge will not necessarily cure a defective charge where the defect affects the defendant’s understanding of the case.

The claimant was convicted by Hampshire justices of driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. The charge alleged driving on a road, but did not include the alternative words or other public place. The driving occurred within a caravan site, including a grass area and nearby roadways. The justices treated the issue principally as whether the public had access to the site and convicted. On a case stated, the High Court considered whether the evidence established that the relevant area was a road and whether the defective charge could be cured under section 123 of the Magistrates’ Courts Act 1980.

1. The appeal was allowed and the conviction, together with any penalty imposed as a result, was quashed.

2. The justices had failed to address the logically anterior question whether the area was a road within the meaning of the Road Traffic Act 1988. Public access is not the only issue. Where the place is not a highway, it must possess the physical character of a defined or definable route or way leading from one point to another, as well as being a road to which the public has access.

3. The decision in The Director of Public Prosecutions v Vivier [1991] 4 All ER 18 concerned whether a caravan site was a public place. It did not decide whether the relevant area was a road.

4. The evidence that the collision occurred on grass, together with evidence of skid marks extending towards a tarmac roadway, was insufficient to establish that the relevant area was a road. The justices’ findings therefore could not sustain the conviction.

5. The charge had been framed specifically as driving on a road. It was important that the defendant should know precisely the charge faced. Section 123 of the Magistrates’ Courts Act 1980 did not, in the circumstances, cure the defect or justify upholding the conviction.

1. High Court (Administrative Court) — appeal by way of case stated allowed; conviction and resulting penalty quashed.

2. Hampshire justices — convicted the claimant of driving on a road with excess alcohol on 23 October 2003.