Mariela Anastassova, R (on the application of) v Northampton Magistrates Court

For the purposes of the drink-driving offence, the statutory question is whether the location was a road or other public place, meaning a highway or other road to which the public has access. Public access does not necessarily require proof of a particular level of actual public use. A normally constructed street may, on its face, be public, whereas ostensibly private or ambiguous land may require evidence that members of the general public in fact use it. The assessment remains one of fact and degree. The sufficiency of the evidence and findings may nevertheless raise a question of law. The claim was arguable because the magistrates may have applied too demanding a test by requiring evidence of actual public use.

The claimant was convicted by Northampton Magistrates’ Court on 6 November 2022 of driving with an alcohol concentration above the prescribed limit, contrary to section 5 of the Road Traffic Act 1988. The magistrates declined to state a case and issued a certificate under section 111 of the Magistrates’ Courts Act 1980.

The alleged offence occurred in Vancouver Close, Corby. The evidence described an open, lit, single-lane residential road with pavements, parking, road markings, no gates or buzzers, and no signage restricting access. The central issue was whether the evidence established that Vancouver Close was a road or other public place to which the public had access.

1. Permission. Permission to apply for judicial review was granted because the challenge to the conviction was arguable. The court did not finally determine whether Vancouver Close was a public road.
2. The statutory test is public access, rather than any particular level of public use. The question is one of fact and degree. The sufficiency of evidence and findings can engage a question of law.
3. The authorities concerning evidence of actual public use principally involved grey-area locations such as car parks, yards and driveways, or land with an ostensibly private or ambiguous character. A street may instead be public on its face. In such a case, the absence of evidence of people using it for purposes unrelated to residence or visiting does not necessarily determine the issue.
4. The observation in Harriot v DPP that apparently public land, such as a street, may be public on its face, while ostensibly private land may require evidence of general public access, provided a potentially relevant framework. The court also noted the distinction in Deacon v AT (A Minor), as discussed in Hallett v DPP, between the best method of proving public access and an essential method.
5. The parties were directed to prepare for a substantive hearing which might proceed on a rolled-up basis or by conventional judicial review. A minded-to-transfer order was made for transfer from London to the Administrative Court in Birmingham, subject to objections by the Interested Party within seven days.

The judgment describes the underlying proceedings before Northampton Magistrates’ Court.

• Northampton Magistrates’ Court: convicted the claimant on 6 November 2022 and, on 27 November 2022, declined to state a case under section 111 of the Magistrates’ Courts Act 1980.
• High Court (Administrative Court): granted permission for judicial review and made a minded-to-transfer order.