Planton v DPP

This is an appeal by way of case stated from a decision of the justices for the County of Essex sitting at Witham whereby on 14th July 2000 they convicted the appellant, Mr Jeremy Planton, of an offence as follows:

"On 15th April 2000 at Maldon in the County of Essex did drive a motor vehicle, namely a Volvo 760 index C552 OTW, on a public place namely the 'Causeway' between Osea Island and Decoy Point, Heybridge, after consuming so much alcohol that the proportion of it in his breath, namely 68 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit, Contrary to Section 5(1)(a) Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988."

The court imposed a fine of £1,100 and disqualified the appellant from driving for a period of 18 months. Section 5(1)(a) provides that:

"If a person drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in the breath, blood or urine exceeds the prescribed limit he is guilty of an offence."

The justices found the following facts:

"a) Osea Island is an island in the estuary of the Blackwater River in Essex. There is a man-made Causeway linking the island to the mainland. This Causeway is sometimes passable and sometimes submerged by tidal water.

b) There is a Royal Mail collection box on the island, and mail is delivered to twelve addresses. Mail is collected and delivered by van crossing the Causeway at low tide. From time to time people have to be rescued from the Causeway, such as a resident of the island, a taxi driver and an oil tanker driver. P.Sgt Robinson had visited the island as a boy to visit a relative and on another occasion to pick samphire.

c) Access to the Causeway from the mainland is not prevented by any physical obstruction. There is a barrier present at the entrance to the approach road some distance from the Causeway but this if used would only extend across part of the approach. Signs by the entrance to the approach road indicate that it is a private road."

I interpose that photographs before the justices show a notice headed: "Private Road Residents and Authorised Vehicles only"; another notice: "Private Road No Parking"; and a further notice: "Danger Tidal Causeway Authorised vehicles only."

"d) Mr Planton owned the car in question. At the material time he was facing in the direction of his home on Osea Island. The car was seen by the police officers halfway across the Causeway. They first noticed its rear lights. The Causeway was passable as the tide was going out. Mr Planton was in the driver's seat of the car. His head was against the window. The engine was running.

e) Any other finding of fact is not relevant for the purpose of this appeal."

The justices set out a summary of the evidence given to them. The appellant did not give or call any evidence. It was contended on his behalf that the Causeway was not a "public place" within the meaning of the information preferred, or within the meaning of that term in section 5(1)(a) of the Road Traffic Act 1988. It was also contended that the justices were not entitled to conclude upon that evidence that the claimant was "driving" the vehicle on the Causeway.

The justices expressed their opinion:

a) Having heard all the evidence we reminded ourselves that in order to convict, the prosecution had to prove beyond reasonable doubt that the appellant was driving the vehicle and that the location in question was a public place.

b) The only evidence before us was given by prosecution witnesses. This evidence was not discredited by cross examination on any material point.

c) In respect of the question of Mr Planton driving the vehicle, he was in the driver's seat, the engine was running and he was facing in the direction of his home, halfway across the Causeway on Osea Island. We considered the evidence that the vehicle was not moving. We found movement to be only one factor to be considered. There was no explanation from the defendant other than that he was waiting for the tide. At that time the Causeway was passable as the tide was going out. We found the purpose of the stop to be connected to the driving. Mr Planton remained in the vehicle. We were satisfied that the evidence was sufficient to justify a finding that Mr Planton was driving.

d) In respect of whether the Causeway was a public place, we were not helped by Mr Planton referring to a public road. The information referred to driving on a public place. We had to find that the public have access to the Causeway, that the use was expressly or implicitly allowed and not achieved by overcoming any physical obstruction or in defiance of any express or implied prohibition. The evidence before us, which was not contradicted by Mr Planton, was that the Causeway was open to all and was not restricted to access by a particular class of person. There was no physical obstruction to entry to the Causeway. The barrier at the entrance to the access road leading to the Causeway did not restrict access in any way. Notices at this entrance were not conclusive evidence that the Causeway was not a public place. We were therefore satisfied that the evidence was sufficient to justify a finding that the Causeway was a public place.

e) In respect of the claim that the site in question was a foreshore, we did not consider that this was relevant to our deliberations on the question of whether it was a public place. The evidence of the prosecution witnesses was not discredited in any way, and Mr Planton did not give evidence or call witnesses.

f) Our findings as detailed above, together with findings that are not relevant for the purpose of this appeal, were such that we were sure beyond reasonable doubt that the offence was made out and we accordingly found Jeremy Planton guilty."

The questions for the opinion of this court are stated to be:

"Were we entitled to be satisfied beyond a reasonable doubt having regard to the evidence before us that:

a) Mr Planton was driving, and

b) That the Causeway is a public place."

The context of the questions is the statutory definition in section 5(1)(a) of the Act.

I deal with the issues in the order which counsel did, and consider first the status of the Causeway for present purposes. It is common ground that the public place test is that stated by the Lord Justice General in the Scottish case of Harrison v Hill [1932] JC 13, a case which has been cited with approval in the English authorities. The Lord Justice General stated at page 16:

"I think that, when the statute speaks of 'the public' in this connexion, what is meant is the public generally, and not the special class of members of the public who have occasion for business or social purposes to go to the farmhouse or to any part of the farm itself; were it otherwise, the definition might just as well have included all private roads as well as all public highways…

There must be, as a matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed —that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs."

In seeking to uphold the conclusion of the justices on this point, Mr Casey, for the respondent, refers to the judgment of Jupp J in Adams v Commissioner of Police of the Metropolis [1980] RTR 289. Mr Casey acknowledges the difficulty posed by the prohibition notice (which the justices found to be in place) but relies on the fact that in Adams Jupp J stated that:

"The signs must, as I say, be considered only as part of the whole picture."

Of course I accept that proposition, but having regard to the other findings in Adams the case does not, in my judgment, support the finding of the justices in this case. Jupp J went on to refer to the usage which enabled him to hold that the test, a public access test in that case, was satisfied. Jupp J referred to the uses from outside the estate:

"…the church, the football spectators, the parkers, those who park at other times for other reasons, the shoppers, the persons going to the Underground, the children going to school, taking all these uses, and without having any regard to questions of the hotel, the library or anything else, and without even embarking on considerations of the legal right to get to the church by parishioners who live outside Aberdeen park, the evidence presented to this court, in this particular case, is in my judgment overwhelmingly in favour of the plaintiffs' and the third party's contention that this is a road to which the public have access within the meaning of section 196(1) of the Road Traffic Act 1972 [the then current statute.]"

The facts of that case, accordingly, were very different...