Hallett v Director of Public Prosecutions

For a place to be a public road for the purposes of the Road Traffic Act 1988, the Crown must establish that the public has access to it. Access may be shown where the public uses the place without overcoming physical obstruction or defying a prohibition. Whether a place is public is generally a question of fact and degree. The court should consider whether access is confined to a special class, such as residents, visitors, postmen or milkmen. The absence of a sign or barrier does not itself establish public access. Evidence that only householders and persons in special classes use the road is insufficient. A conviction cannot stand where the Crown provides no adequate evidence of actual public use.

The appellant was convicted by Norwich Magistrates of driving with excess alcohol on an unmade service road alongside Dereham Road, Costessey. The breath reading was more than twice the legal limit. His defence was that he had not been driving on a road or in a public place.

The service road ran parallel to the main road, served approximately twenty houses, was open at both ends, had no sign restricting access at the relevant time, and was crossed by pedestrians using a footpath. The magistrates found that the public had access and that the service road was therefore a road and public place. On a case stated, the High Court considered whether there was evidence capable of supporting that conclusion and whether the conviction was legally correct.

1. The application by way of case stated was allowed. Each question posed by the magistrates was answered in the negative, and the matter was remitted with a direction to acquit.
2. The phrase “road or other public place” did not require separate consideration because the surface was conceded to be a road. The decisive issue was whether it was public.
3. The relevant authorities establish that a road may be public where members of the public are present without overcoming physical obstruction or defying a prohibition. Whether a place is public is a question of fact and degree. The court must consider whether access is intended only for a special class, including residents, visitors and service providers.
4. A sign or barrier may support an inference that access is restricted, but its absence is not determinative. Nor does the existence of houses, residents or an open entrance establish public access by itself.
5. The evidence showed that pedestrians could use the adjoining public footpath without crossing the service road. There was no evidence that anyone other than householders or persons in a special class used the service road. The Crown therefore failed to establish actual public use sufficient to make it a public road.
6. The magistrates’ conclusion that the road was open to all road users was unsupported by adequate evidence. The conviction could not stand.

• High Court (Administrative Court): On a case stated from the magistrates’ conviction, the questions were answered in the negative and the matter was remitted with a direction to acquit.
• Norwich Magistrates: Convicted the appellant of driving with excess alcohol on a road or in a public place.