Roberts v Director of Public Prosecutions

A breach of a disclosure or evidence-retention duty does not automatically make a prosecution an abuse of process. The question is whether the loss of evidence caused prejudice sufficient to justify staying the proceedings. Where other evidence permits the tribunal of fact to decide whether the required procedure was followed, continuing the prosecution may remain lawful.

A challenge concerning whether land is a road to which the public has access under the Road Traffic Act 1988 is not frivolous merely because the land is privately maintained or chiefly used by residents and their visitors. Where the authorities disclose an unresolved issue about public access, the matter should be stated for appellate guidance.

The claimant appealed by way of case stated against convictions by Chester, Ellesmere Port and Neston Justices for failing to provide a specimen of breath for analysis, contrary to section 7(6) of the Road Traffic Act 1988. He had been fined, disqualified from driving and ordered to pay costs.

The claimant argued that the prosecution was an abuse of process because police custody-area CCTV, requested by the defence, had been destroyed. He also challenged the Justices’ refusal to state a case on whether Field Hey Lane was a road or other public place within section 192 of the Act.

1. The court answered the abuse-of-process question in the negative. Although the destruction of the CCTV breached the applicable code and occurred after the prosecution had been notified that the material was required, the loss did not necessarily establish unfairness or conclusively determine whether the breathalyser procedure had been followed. The MG DD/A form recorded the questions and sequence of the procedure, and the Justices were entitled to accept the sergeant’s evidence. The prosecution could therefore proceed.
2. The court treated the issue concerning Field Hey Lane as properly arguable. Section 192 of the Road Traffic Act 1988 includes any highway and any other road to which the public has access. The evidence indicated that the lane was unadopted, maintained by residents and used mainly by residents or persons having business with them, but the authorities disclosed uncertainty about the legal significance of those circumstances.
3. Deacon v AT showed the importance of evidence that members of the public, in the wider sense, used the road. Clarke v Kato indicated that unrestricted pedestrian use, with a sufficiently definable route, could establish public access. The apparent lack of clarity between those decisions required further consideration.
4. The case was remitted to the Justices with an order that they state a case on whether Field Hey Lane was a road within the statutory definition. The parties were directed to provide full skeleton arguments, and the issue was to be listed before a Divisional Court for definitive guidance.

• High Court (Administrative Court): The claimant appealed by way of case stated from convictions and decisions of Chester, Ellesmere Port and Neston Justices made on 4 January and 3 April 2007. The court rejected the abuse-of-process challenge but ordered the Justices to state a further case on whether Field Hey Lane was a road under the Road Traffic Act 1988.