R v Christopher McCann

For an apparently private or grey-area site, public access is not established merely because members of the public could enter. Evidence must show that the public in general actually used the place, with the owner’s express or implied permission. A voluntary bill following dismissal of a charge remains exceptional: clear legal error, qualifying new evidence unavailable at the dismissal hearing, or serious procedural irregularity may justify it, and the interests of justice must support the step.

The Crown charged McCann with causing death by careless driving after a fatal collision on Renaissance Walk, within a residential estate. The Central Criminal Court dismissed the charge under paragraph 2(2) of Schedule 3 to the Crime and Disorder Act 1998. The Crown then applied under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 for consent to prefer a voluntary bill, relying on alleged legal error and additional evidence. The central questions were whether the estate thoroughfare was a road or public place for the purposes of the Road Traffic Act 1988, and whether the case met the exceptional requirements for a voluntary bill.

1. The application was dismissed. Under paragraph 2(2) of Schedule 3 to the Crime and Disorder Act 1998, a judge considering dismissal assesses the whole evidence and its weight against the properly directed jury standard. The judge does not take the jury’s place. If the law was correctly stated, the sufficiency decision can be challenged only if no reasonable judge could have reached it.

2. The trial judge applied the correct test for whether the accident location was a road or public place under the Road Traffic Act 1988. Although the statutory language is access, evidence of actual use by the public in general is required for apparently private or grey-area sites. The use must be permitted, expressly or implicitly, by the proprietor. Harrison v Hill [1932] JC 13 and Deacon v AT [1976] RTR 244 contain different indications about whether actual use is essential. The binding decision in R v Spence [1999] RTR 353 establishes that evidence of actual use is part of the test. The provisional observations in R (Anastassova) v Northampton Magistrates’ Court [2023] EWHC 1586 (Admin) attracted sympathy, but did not alter that rule.

3. Serious Fraud Office v Evans [2014] EWHC 3803 (QB), reported at [2015] 1 WLR 3526, sets out non-exhaustive exceptional circumstances for a voluntary bill after dismissal. These include a clear, basic and substantive legal error; new evidence which the prosecution could not have put before the judge and which gives a sustainable basis for the charge; and serious procedural irregularity. The new evidence was sufficient for a jury to find public use, but the prosecution could and should have obtained it before the dismissal ruling. The new-evidence ground therefore failed.

4. The judge added, obiter, that the prosecution’s unexplained and culpable 17-month delay meant consent would not be in the interests of justice, notwithstanding the death of the victim. The reporting restriction imposed for the hearing was lifted on hand-down.

1. Central Criminal Court: On 25 September 2024, HHJ Mark Dennis KC dismissed the causing-death-by-careless-driving charge on the defendant’s application. The related summary charge of driving without insurance was later discontinued.
2. High Court (King’s Bench Division): On 21 July 2026, the Crown’s application for consent to prefer a voluntary bill of indictment was dismissed.