Avery v Crown Prosecution Service

For the purposes of the drunken-driving offence, a vehicle may be driven on a road without any wheel or other part being in contact with the road surface. The question is whether the vehicle materially occupies road space so that the protective purpose of the Road Traffic Act 1988 is engaged. The position of the wheels, or the proportion of the vehicle remaining on private land, is not decisive. Material intrusion into the road’s vertical air space may suffice. A minor intrusion will not necessarily do so. The issue is one of fact, assessed in the light of the statutory purpose and the risk posed to pedestrians and other road users.

The appellant appealed by way of case stated from the Sheffield Magistrates’ decision of 8 February 2010. He had consumed excess alcohol and manoeuvred his car within his brother’s driveway and garden. The car’s rear overhang crossed the pavement and struck a parked vehicle, although the wheels remained on private land. The magistrates convicted him of driving, or attempting to drive, on a road contrary to section 5(1)(a) of the Road Traffic Act 1988. The central question was whether a driver could be found to have driven on a road where the vehicle encroached onto the road but its tyres did not leave private land.

1. Appeal dismissed. The case stated question was answered yes, subject to the driver in fact driving and the encroachment being material.

2. Under section 5 of the Road Traffic Act 1988, the phrase on a road does not require physical contact between a vehicle and the road surface. The statutory purpose is to protect members of the public who may use the road or public place from the risks of drunken driving.

3. The relevant inquiry is whether there has been sufficient occupation of road space to engage that protective purpose. An accident or near miss is not essential, although substantial encroachment causing damage may demonstrate that the occupation is sufficient. The court need not assess where the whole or bulk of the vehicle is located, nor treat the position of its wheels as decisive.

4. Material occupation of the air space vertically above the road is sufficient in principle. The extent to which the remainder of the vehicle remains on private property is immaterial if the intrusion into the road cannot properly be described as minimal.

5. On the facts, the car’s rear overhang was on the road when it struck the parked vehicle. The magistrates were entitled, and were bound on those facts, to convict. The President agreed, adding that the answer was subject to material encroachment and proof that the appellant was driving.

• Sheffield Magistrates’ Court: convicted the appellant on 8 February 2010.
• High Court (Administrative Court): dismissed the appeal by way of case stated and answered the magistrates’ question yes, subject to material encroachment and driving in fact.