Drink driving – Public Nuisance or a Private Matter?

Chris Proctor 

The law surrounding drink driving appears quite straightforward; if you are caught driving a motor vehicle on a road or other public place whilst the proportion of alcohol in your body exceeds the legal limit, you are guilty of an offence. If you drive on a road that is considered ‘private’ whilst intoxicated, technically speaking no offence has been committed.

However, as with all things in life, nothing is as simple as it seems.  The question is; how do you decide whether or not a person has driven on a road or public place?

The first place to start would be to establish what constitutes a road. An appropriate response to this would be Huh? With approximately 36 million registered licence holders in the UK and over 3 million vehicles on the road[i] you would expect most if not all motorists to know what a ‘road’ is!

TO all intent and purposes, the legal definition of a road is what one would expect. The law[ii]  defines a road as being ‘any highway and any other road that is accessible to the public’.

Generally speaking it is a matter of fact and degree as to what constitutes a ‘road’. Surprisingly, very few people that face a prosecution for drink driving know that the onus is on the prosecution to prove that they were on a road[iii] or public place[iv]. Essentially the question that must be asked when considering whether a person has driven on a ‘road’ is; do the public have access to it?

Roads with restricted access are usually considered ‘private’. Restrictions can be put in place by erecting barriers such as a gate or fence or exhibiting a sign which prohibits the general public from accessing the road.

So, a road that prohibits the general public from using it can be considered private. How do those residents who live on a private road eat their cornflakes in the morning or receive their mail you may or may not ask? Surely if their road is private, the milkman and the postman are trespassing when making their respective deliveries? The majority of the country’s canine population would probably show their teeth and bark once for yes, whereas the law is slightly more forgiving and states a firm no.

Milkmen, Postmen and Police officers are examples of a ‘special class’ of members of the public who are deemed to have the owner’s consent, whether impliedly or expressly, to enter a private road.

If a supposedly ‘private road’ has no physical obstruction or restrictions preventing access to the general public, then access to that road will be deemed to be at the tolerance of the owner, which could in turn result in the road being classed as ‘public’. However, the fact that there are no restrictions in place would not suffice on its own. There would also have to be some evidence of ‘public use’ of the road. 

Quite rightly, a defendant has no obligation to prove that a road has no public access. The heavy burden of proving that the public has access to a ‘road’ rests solely on the shoulders of the prosecution.

Not much, if anything, has changed since the court established this principle in the early 1930’s. A raft of cases followed in the mid – late 70’s which approved and applied this principle.  A recent example of this principle being applied is the case involving Mr Hallett[v], who was initially convicted of drink driving following a trial at Norwich Magistrates’ Court. He had argued, without success that the road upon which he was driving was a ‘service road’ which was only used by him and other residents of the adjoining properties. It was also argued that there was no evidence of ‘public use’ of the road. Luckily for Mr Hallett, on appeal the High Court agreed with his assertions and his conviction was quashed.

It would seem that in more recent times this type of challenge is sparse, which is unusual as it is a perfectly legitimate defence.  This may be due in part to the reluctance of defence solicitors relying on what many deem a ‘weak argument’ and in part, due to the birth of other ‘technical defences’.

There is evidence however that the focus might be changing. Take for example the recent case of Peter McGuire, a Parish Priest at St John the Baptist Church in Yorkshire. He was alleged to have been twice the legal drink drive limit and was arrested following a collision with another car in the church car park –

http://www.yorkshirepost.co.uk/news/at-a-glance/main section/priest_73_in_car_crash_cleared_of_drink_driving_1_4175230

He was found not guilty, following a trial at Wakefield Magistrates’ Court on the basis that only a ‘special class’ of people, namely those attending the ‘puppy club’ at the church social club had permission to use the church car park at that specific time. This is despite the fact that it would appear that at all other times the car park was available for use by those attending the church for weddings, funerals and as guests at the Parish club.

Surely then all those disqualified drivers who were arrested for drink driving after they drove their car in the car park of a public house have been wrongly convicted? Not necessarily! A pub car park is usually considered ‘public’ during general licensing hours as patrons of the pub are general members of the public who have been invited to enter the pub premises. A pub car park may not be considered a ‘public place’ outside these hours as use of the car park is usually restricted, therefore making the car park private.

Confused? No surprise there. The same road or place could be considered ‘private’ or ‘public’ depending on the class of people using it or the time of day it is in use.

What you will often find is that in order to avoid any doubt as to whether a person suspected of drink driving has driven on a ‘public road’ the police will wait on the highway or road outside the pub until the suspected drink driver has driven out of the pub car park before stopping them.

So what has the cases of Mr Hallett and Mr McGuire taught us? Hopefully a very important lesson! Remember there are two elements to the offence of drink driving. Firstly that a person was driving on a road or public place. Secondly, that they were over the legal limit. Most defence solicitors lose sight of the potential defences available to their client by merely concentrating on the second element of the offence; namely, was their client over the legal limit?  Of course this should be a major consideration and sometimes the situation dictates that this is the only viable approach worth considering. However, a good motoring lawyer worth their salt should leave no stone unturned.

The prosecution should be made to prove each and every aspect of their case. The recent case of Mr McGuire is cast iron evidence that the ‘private road defence’ is alive and kicking and is still very much effective.

Chris Proctor is motoring law specialist at JMW Solicitors. For further information relating to this article or for expert advice regarding any criminal motoring matter, please feel free to contact Chris or any other member of the team on 0800 804 8159