What is a road anyway?
Drink driving law can be quite technical at times and rarely more so when you find yourself arguing over whether a place is a road or not. It’s actually quite difficult because you want to avoid using the word “road” if you’re saying it isn’t a road since calling the place a road rather prejudges the decision, but there’s not much choice since we don’t really have any other words for those long black stretches of tarmac that cars drive up and down… at least there’s none that helps much.
Whether something is a road or not is really important because if the place isn't a road then often it's impossible to commit a driving offence there. Thus, if somebody is accused of drink driving but the court is persuaded that the place is not a road then they are entitled to be found not guilty.
So, what do we mean by a road? The Road Traffic Act 1988 tells us that a road is, “any highway and any other road to which the public has access and includes bridges over which a road passes”. When I was a school child, I was taught that it is wrong to define a word by using the word itself; I think it’s fair to say that the MPs who gave us this description went to a different school! But there is an important point in there. We know what a highway is, the Oxford English Dictionary (OED) tells us it’s basically a main road, particularly a road connecting major towns or cities. But, then there’s that other thing in the definition, “any other road to which the public has access”, and that’s the really important bit because what it’s telling us is that there is a two-stage test. First, the place must meet the normal definition of a road but then it must be a road that the public has access to as well.
I’d suggest that we don’t need to worry about highways because if you think you’re going to convince a court that the A12, the M6 or the A52 are not roads then you’re kidding yourself. It’s the smaller, less obvious roads, such as private drives, university campuses or holiday parks, that provide meat for a motoring solicitor to get their teeth into. Let’s look at each of those elements in turn.
At this point, we’re trying to define what a road means in the ordinary sense of the word, not in the legal sense.
The OED tells us that a road is, “a wide way leading from one place to another, especially one with a specially prepared surface which vehicles can use.” The court in Austin v Oxford told us that a road is, “… a definable way between two points over which a vehicle could pass.” Then, the House of Lords got involved (not I should say because they gave a fig about motorists and their petty cases but because a very big insurance company didn’t want to pay some claims). In Clark v General Accident Fire and Life Assurance Corporation Plc, also known as Clarke v Kato, their Lordships told us that guidance can be found by “considering its physical character and the function which it exists to serve. One obvious feature of a road as commonly understood is that its physical limits are defined or at least definable. It should always be possible to ascertain the sides of a road or to have them ascertained. Its location should be identifiable as a route or way. It will often have a prepared surface and have been manufactured or constructed.”
Then Barrett v DPP chimed in with the suggestion that courts might like to consider whether the place is constructed with tarmac, has defined edges as well as road markings and signage.
In Alun Griffiths (Contractors) Ltd v Driver and Vehicle Licensing Agency, the court also considered whether the area in question was maintained at public expense and found in that case that part of the reason the area was a road was because the taxpayer paid to maintain it. That cannot be a definitive piece of evidence though because the Act also says that the road must be one “to which the public has access”. A road inside a military base may be maintained at public expense, have a tarmac surface with defined edges, road marking and signs but if the public do not have access to it then it is not a road for the purposes of drink driving law.
“To which the public has access”
Helpfully, Parliament chose not to bother defining this expression, so it has been largely left to the courts to work out.
First, we have to ask ourselves what we mean by “the public”? Do we mean that everyone must have unfettered access? Do we include places where people may only enter after paying a fee to do so? The Scottish High Court, headed by Lord Sands, took the view that any road may be regarded as a road to which the public have access if people do not have to overcome a barrier or ignore a prohibition not to enter that place.
The Divisional Court, presided over by Lord Widgery, heard the case of Deacon v AT (A Minor) and concluded that the land must be open to the public in general and not merely a special class of the public, such as residents or visitors. Lord Widgery stated that the owner of the land must “at least tolerate” the general public on the land meaning that if people are simply trespassing against the owners wishes then it will not be a road to which the public have access. Thus, if the land can be accessed
Finally, Mrs Justice Rafferty held in Hallett v DPP that the presence of a sign or barrier lends weight to a claim that the land is open only to a special class of the public and thus that it is not a road to which the public has access.
What needs to be proved?
The defence need to prove nothing… although it’s probably wise to get some evidence together if you are defending an allegation. It is for the prosecutor to prove, so that the court is sure, that the place on which the defendant was found is a road.
This means proving both the physical aspects that the place meets the ordinary definition of a road and that the public has access to that road. It is this second point where the Crown often fall down.
In the Deacon case, the prosecution failed to produce evidence that the road in question was actually used by the public rather than merely by residents to the estate it served. The same situation arose in R (ex parte Taussik) v DPP, where the Crown sought to rely on evidence of police officers who said they had seen people parking cars and walking on the street. The officers were not able to say whether those people were residents or simply members of the public using the road. As a result, the Divisional Court in both cases found that there was no evidence that the place the defendants had been found were roads and both were acquitted.
How should a court approach the verdict?
Having considered the past cases, we always recommend courts adopt this route to verdict.
They should first ask whether they are satisfied that the place the defendant was found is a road within the ordinary, everyday meaning of the word. If it is then the court must consider whether the public has access to the road or whether access is limited to a subset of the public? If it is proved that the public does have access, then the court must determine whether that access is at least tolerated by the landowner.
If the court is not sure on any of these points, then it must acquit the defendant.
If you are facing prosecution and need expert legal advice from a specialist motoring law solicitor then call us today on 020 8242 4440 or email us via our contact page.