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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brewer v Director of Public Prosecutions [2004] EWHC 355 (Admin) (11 February 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/355.html Cite as: [2004] EWHC 355 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		11 February 2004

1. LORD JUSTICE ROSE: This is an appeal by way of case stated by a defendant convicted by the Peterborough Magistrates' Court in relation to the driving of his Mercedes Benz motor car. There were two charges preferred against him in relation to 22nd October 2002. First that "on a road, namely the railway station car park, Mayors Walk", he had excess alcohol in his blood contrary to section 5(1)(a) of the Road Traffic Act 1988 and schedule 2 of the Road Traffic Offender's Act 1988 and, secondly, that on the same occasion and at the same place he was driving while disqualified, contrary to section 103(1)(b) of the Road Traffic Act 1988 and schedule 2 of the Road Traffic Offender's Act 1988.
2. The justices heard the matter at Peterborough on 21st July 2003 and, as appears from the case stated, they found, among other facts, that at 9.30 in the evening the defendant was seen driving his car slowly but erratically in the railway station car park. Transport police officers signalled him to stop. He was unsteady on his feet. He admitted having consumed alcohol on a train arriving at Peterborough Railway Station. He was arrested on suspicion of being drunk in charge. Appropriate procedures were properly followed, and on blood analysis it was ascertained that he had no less than 255mg of alcohol in 100ml of blood. It was conceded that he was a disqualified driver.
3. In paragraph 2(f) there appears the following:

"The car park in Mayors Walk is one of the station car parks and is bordered partly by a fence. There is a gate at the entrance to the car park. There are arrows painted on the tarmac underneath the entrance and exit gates to indicate the direction of travel around the car park for vehicles. Vehicular access is gained by pressing a button which causes a ticket to be produced. Removal of the ticket in turn causes the barrier to lift. Access to one of the railway staff car parks is obtained via this railway car park. Pedestrian access to the north end of platform two of the station can be gained from the car park by users of the car park and members of the public generally."

The justices were referred to Cutter v Eagle Star Insurance [1998] 4 All ER 417 to which I shall later return.

4. The case stated rehearses the rival contentions that, on behalf of the defendant, the car park was not a road; and, on behalf of the prosecution, there is nothing to prevent a car park from being a road and the carriageway around the parking spaces was a road. The justices were of the opinion, stated in paragraph 6 of the case:

"a. The car park was not prevented from being a road by virtue of its commonly used name or the fact that it has a fence along part of its boundary.

b. The gate at the entrance to the car park denotes the area beyond which it is necessary to pay in order to park.

c. The prime function of the car park is the parking of cars, but not the sole function as both pedestrians and motorists use the car park as a through route.

d. The appellant drove his motor vehicle on parts of the railway station car park, Mayors Walk, Peterborough, which constituted a road as defined by the Road Traffic Act 1988, and consequently we found him guilty of the two offences as charged."

5. The question posed by the case for the opinion of the High Court is whether, on the facts found, the justices were correct in law to find that the appellant was driving on a road as defined by the Road Traffic Act 1988.
6. It is to be noted in passing that the prosecution before the justices did not seek to amend the charge in relation to excess alcohol so that it alleged driving on a road "or other place".
7. On behalf of the appellant Mr Wormald, in an admirably succinct and pointed submission, submits that this car park was not a road and the justices were wrong so to find. In particular, having regard to the speech of Lord Clyde in Cutter v Eagle Star the characteristics of a road are that it is defined or definable as a way, that it has ascertained or ascertainable edges, that it leads from one point to another and that it has the function of serving as a means of access. He concedes that, in exceptional circumstances, there can be a road within a car park, but there are in this case stated, he submits, no findings in relation to any of those four defining characteristics. The justices' findings are limited to those which I have already rehearsed.
8. Mr Wormald submits that it is irrelevant that there was vehicular access, so far as railway staff were concerned, across to the car park for staff vehicles. He sought sustenance for that perhaps somewhat bold submission from what Lord Clyde said in Cutter 431C namely:

"The character and the function of the car park does not in my view change even although one can drive a motor cycle, or push a perambulator through the passage in order to enter or leave the park. Even if the passage was a road that does not mean that the park becomes a road."

It may be that Lord Clyde's observation at that point does not support the full breadth of Mr Wormald's submission.

9. On behalf of the Director of Public Prosecutions, Miss Hickling, in a careful submission for which we are indebted, stresses the finding in paragraph 6a of the case stated which I have already rehearsed namely that this was a road. She too sought sustenance from Cutter v Eagle. She drew attention to the passage at 423D in Lord Clyde's speech where he said:

"Whether or not a particular area is or is not a road eventually comes to be a matter of fact."

10. And she further drew attention to the passage at 423H:

"While I would accept that circumstances can occur where an area of land which can be reasonably described as a car park could qualify as a road for the purposes of the legislation I consider that such circumstances would be somewhat exceptional."

She also referred to Griffin v Squires [1958] 1 WLR 1106 where the Divisional Court declined to interfere with findings of fact made by the justices.

11. The findings of fact in this case on which Miss Hickling placed reliance were, first, that pedestrians had access through the car park to one of the platforms in the railway station; secondly, the parking of cars was not the sole function of this car park because of the driving of cars through it by staff to their car park; she emphasised that there can be a carriageway between bays in a car park.
12. It is pertinent at that point to refer to certain other passages in the speech of Lord Clyde. At page 422J he said:

"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."

And it is clearly that passage which Mr Wormald had in mind in formulating his submissions.

13. Lord Clyde went on at 423B:

"I do not find it helpful to use the language of a 'through route' beyond recognising that a road should lead from one point to another."

14. It is to be noted, as is apparent, that paragraph 6c of the case stated referred to the use of the car park "as a through route".
15. At 423E Lord Clyde said:

"...the question is raised whether one or other or both of the car parks qualifies as a road. In the generality of the matter it seems to me that in the ordinary use of language a car park does not so qualify. In character and more especially in function they are distinct. It is of course possible to park on a road, but that does not mean that the road is a car park. Correspondingly one can drive from one point to another over a car park, but that does not mean that the route which has been taken is a road. It is here that the distinction in function between road and car park is of importance. The proper function of a road is to enable movement along it to a destination. Incidentally a vehicle on it may be stationary. One can use a road for parking. The proper function of a car park is to enable vehicles to stand and wait. A car may be driven across it; but that is only incidental to the principal function of parking."

16. At 424F he said this:

"A more formidable argument for the appellants in my view lies in the fact that the legislation is in certain sections expressly made to apply not simply to 'a road' but to 'a road or other public place'. These added words appeared in s 15(1) of the Road Traffic Act 1930 in relation to the offence of driving a motor vehicle when under the influence of drink or drugs. Following on the report of the North Committee in April 1988 (the Road Traffic Law Review Report) these added words were introduced by ss 1 and 2 of the Road Traffic Act 1991 into the first three sections of the 1988 Act, which prescribe certain serious driving offences. While there was some discussion in argument before us whether the North Committee had correctly stated the law on the meaning of the word 'road', the express addition of the words seems to me to be a clear indication that a conscious extension of the scope of the provisions in question was being made, reinforcing the conclusion that where the word 'road' stands alone it bears its ordinary meaning and is not to be extended to public places such as car parks."

17. Then at 424J:

"The word 'road' is plainly intended to cover all kinds of roads. It embraces not only highways but 'any other' roads. So a considerable breadth of meaning is available, provided that the place still qualifies as a 'road'. But it is argued that a greater breadth should be allowed by way of a purposive construction."

18. And then at 425E:

"It may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must particularly be so where the language has no evident ambiguity or uncertainty about it. While I have recognised that there could be some exceptional cases where what can reasonably be described as a car park may also qualify as a road, it is the unusual character of such cases which would justify such a result in the application of the statutory language rather than any distortion of the language itself."

19. By reference to the facts of the two cases before the House of Lords on that occasion Lord Clyde at 430J said this:

"If one has recourse to the ordinary use of language I do not consider that either of these car parks would be regarded as a road or as a part of a road. They seem on the contrary to be places to which a road may lead. They are not places designed or dedicated for the passage of vehicles. Neither in character nor function do either of the car parks in the present appeals readily qualify as roads ... While a route useable by pedestrians or even bicycles may be identified across the [car] park and through the passage it seems to me that cannot suffice to make the car park a road."

20. As it seems to me the only feature of the present case, on the findings of the justices, which is capable of rendering this car park a road, whereas the car parks considered in Cutter v Eagle Star were held not to be roads, is that staff drove cars through this car park on their way to the staff car park. In my judgment that is insufficient, having regard to the other considerations to which Lord Clyde draws attention, to render this car park capable of being a road. It follows that there are no findings made by the justices which are in my judgment capable of sustaining the conclusion that this car park was a road.
21. Accordingly, I would answer the question posed in the case in the negative. I would allow the appeal and quash the convictions.
22. MR JUSTICE DAVID CLARKE: I agree.
23. MR WORMALD: One more application please, for costs from central funds.
24. LORD JUSTICE ROSE: Yes.
25. MR WORMALD: Thank you very much indeed.