Avery v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 28 July 2011 |
| Neutral Citation | [2011] EWHC 2388 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2011 |
| Docket Number | CO/12915/2010 |
[2011] EWHC 2388 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT
Leeds Combined Court Centre
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Sir Anthony May
(President of the Queen's Bench Division)
Mr Justice Langstaff
CO/12915/2010
Mr Stanbury (instructed by Crayson Willis Bennett) appeared on behalf of the Appellant
Mr Doswell (instructed by The Crown Prosecution Service) appeared on behalf of the Respondent
This appeal by way of case stated from a decision of the Sheffield Magistrates of 8th February 2010 raises the question when a motorist may be said to be driving "on the road" within the meaning of section 5 of the Road Traffic Act 1988.
It arises in this way. On 9th November 2009 the appellant took his Rover 618 motor vehicle to his brother's house in Sheffield. He parked it on the driveway, which led across the footpath from the carriageway of Industry Road to his brother's property. A neighbour, who had no driveway to her terraced house and was therefore required to park her car on the roadway, returned from work in the early afternoon and parked her vehicle, a Ford Focus, with the offside on the pavement and the nearside on the roadway outside number 60. The magistrates found that there was a gap between the Ford Focus and the perimeter of the relevant residential property which was sufficient for pedestrians to pass through.
The appellant, who had been to the pub and had had sufficient to ensure that the amount of alcohol in his breath exceeded the prescribed limit, decided to adjust the position of his Rover within the driveway and garden of his brother's house. It had been parked so that the rear end, with the tow bar, was nearer the road. He moved the car forward and back. In the course of doing so the rear of his vehicle struck the driver's side of the Ford Focus.
The appellant contended before the magistrates, when charged with an offence under section 5 of the Road Traffic Act 1988 in respect of his driving, that he had driven his vehicle purely for the purposes of manoeuvering it into a more favourable position within the curtilage of his brother's property - the case stated refers to "curtailment", but this is a typographical error for "curtilage". He contended that the wheels of his Rover motor vehicle never left the curtilage of his brother's property. The magistrates observed that that was never directly challenged by the respondent, and accordingly if the position of the wheels were the critical factor as to whether the Rover which had been driven was on Industry Road at any relevant time, the prosecution could not have been found to establish that to the requisite standard.
The appellant accepted that his vehicle must have encroached onto the pavement area, which was accepted to be part of the road for present purposes. This must be obvious for part, at any rate, of the vehicle had to cross a part of the pavement sufficient for a pedestrian to walk along before striking the side of the Ford Focus as it did. The Magistrates' Court at one point in the case stated concluded it was "a few feet".
The appellant gave evidence that he believed that the part of his vehicle which struck the Ford was the overhang, namely the area of the vehicle behind the rear wheels.
Arising out of those facts an information was preferred by the respondent against the appellant that on 9th November 2009 he drove a motor vehicle, namely a Rover 618, on a road, namely Industry Road in Sheffield, after consuming so much alcohol that the reading of his breath, namely 56 micrograms of alcohol in one millilitres of breath, exceeded the prescribed limit contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988. The information was amended to allege "driving or attempting to drive", but in the event the magistrates did not go on to consider the question whether the appellant attempted to drive since they were satisfied so that they were sure he had actually driven. They concluded that:
i. "Irrespective of where the wheels of the Rover were or may have been, we found that the encroachment was sufficient so as to render the appellant's vehicle as being on the public highway at the time of the collision with the Ford Focus",
and referred to the findings having been that of driving on a public road, albeit by a matter of a few feet.
The question posed for the opinion of the High Court was: "Whether if a vehicle encroaches onto an area which would constitute a road but the tyres of the said vehicle do not leave private land, can the driver be found to have driven on a road, thereby potentially making him guilty of a relevant offence?"
The Magistrates were referred to caselaw. In Randall v The Motor Insurers Bureau [1968] 1 WLR 1190, a school sergeant attempted to stop a vehicle which had been fly-tipping on private school land from leaving the land by standing in front of it. When the lorry moved toward him, the driver being determined to leave, he was forced to jump to one side. The front wing of the lorry caught him as he did so, causing no substantial injury, but he was then trapped between the moving lorry as it left the private premises and the escarpment of a raised bank to the side of the entrance. He was pulled forward as the lorry passed him, eventually falling to the ground with his head and shoulders inside the boundary of the school property and his legs outstretched, although he did not remember in which direction. A rear wheel of the lorry passed over his leg, fracturing it. At the time the rear wheel passed over his leg the front wheels of the lorry were already well out onto the public road beyond and the driver had started to turn the lorry into his direction of travel. The one and only question in dispute was whether the bodily injury was caused by or arose out of the use of the lorry on a road. That was relevant because the statutory question was whether the injuries were caused by or arose out of the use of a vehicle on a road within sections 203(3)(a) and 257 of the Road Traffic Act 1960. Megaw J said at page 1905:
i. "In my judgment the answer to that question on the facts of this case is 'yes'. I have no doubt that in common sense and in the ordinary...
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Table of Cases
...Attard, R v, (1958) 43 Crim App 90, CCC! 80 ............................ Avery v DPP [2011] EWHC 2388 (Admin), [2012] RTR 8, DC! 449 ............... Aylesbury Crown Court, R v, ex p Lait, unreported, CO/2348/97, DC! 584 ................................................... Badkin v DPP [1988]......
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Definitions
...authorities.” The answer to the question was “no”; case remitted to the magistrates’ court with a direction to acquit. Avery v DPP [2011] EWHC 2388 (Admin), [2012] RTR 8, 28 July 2011, QBD (DC) Where part only of a vehicle encroached onto a public place, even though the wheels remained on p......