Scott Richardson v Director of Public Prosecutions

For an offence of being in charge of a vehicle while unfit through drink, a place is a “public place” only where the public has actual and lawful access. The absence of physical barriers is insufficient. The prosecution must provide evidence that members of the public generally used the location and were permitted to do so, expressly, impliedly or by tolerated use. A place serving businesses may remain private where access is confined to employees, customers or business visitors. Whether a location is public is generally a question of fact and degree, but the sufficiency of the evidence is a question of law.

The appellant appealed by way of case stated against his conviction by Bedfordshire Justices for being in charge of a motor vehicle while unfit through drink, contrary to section 4(2) of the Road Traffic Act 1988. He had been found in a car park serving several businesses. The magistrates relied on the absence of barriers, various parking signs and the appellant’s status as a member of the public.

The central issue was whether those findings supplied sufficient evidence for a properly directed tribunal to conclude that the car park was a public place.

1. Appeal allowed. The conviction was quashed. The justices’ findings were insufficient to establish that the appellant was in charge of his vehicle in a public place.
2. “Public place” in section 4(2) of the Road Traffic Act 1988 is construed ejusdem generis with “road”. It refers to a place to which the public has access. Whether a place is public is ordinarily a question of fact and degree, while whether the evidence is legally sufficient to support the conclusion is a question of law.
3. The prosecution had to show actual use by members of the public generally. It was insufficient to show merely that the public could enter if they chose. Access also had to be lawful, through express or implied permission or tolerated use by the owner or occupier.
4. The photographs showed several areas within the car park, with signs indicating private ownership, staff parking and restrictions on unauthorised parking. The justices had not found where the appellant had parked. That omission was fatal because the character of the relevant area depended on the precise location.
5. The absence of barriers did not establish public access. Nor did the appellant’s presence as a person who was not working at the pub show lawful public use. The parked cars could have belonged to staff or other authorised users. The signs, apart from an invitation to patients of one business, pointed against general public access.

1. High Court (Administrative Court): Bedfordshire Justices convicted the appellant on 16 April 2018. The High Court allowed the appeal by case stated and quashed the conviction.