Dunmill, R (on the application of) v Director of Public Prosecutions

MR JUSTICE MCCOMBE: I have before me an appeal by way of case stated by the justices of the county of Hampshire, acting in and for the petty sessional division of South East Hampshire, in respect of their adjudication as a Magistrates' Court sitting at Portsmouth on 23rd October 2003. On that date, the justices heard a charge brought against the appellant, Mr Andrew Dunmill, that he had driven a motor car on a road, namely Oven Camp Site, Manor Road, Hayling Island, Hants, after consuming so much alcohol that the proportion of it in his breath, namely 63 milligrams of alcohol in 100 millilitres of blood, exceeded the prescribed limit; the charge being an infraction of section 5(1)(a) of the Road Traffic Act 1988.

The facts as found by the justices were that in the early hours of Sunday 27th July 2003 a motor car collided with a caravan. The collision happened within the Oven Camp Site, Hayling Island, on a grass area. The driver at the time of the collision was the appellant, Mr Dunmill. A breath test procedure was carried out and resulted in the readings which I have set out from the justices' findings.

The evidence before the justices was brief. They heard, essentially, from two witnesses in the form of statements, namely a Mr MacCullum and a lady police constable, Caroline Bennett. From Mr MacCullum's evidence the following facts were established. The Oven caravan site comprised 350 plots. 180 of the plots were privately owned, the caravans left by their owners at the site. The site admitted access to the owners of permanently situated caravans, guests staying or guests inspecting the facilities on the site. Within the site there was approximately one mile of tarmac road running around the perimeter and there were also grass roadways between the caravan and tent pitch sites. There was no security at the entrance site. Guests to the site were expected to register on entrance. On the night of 26th July 2003, there were about 40 pitches occupied by paying guests and about half of the permanent caravans were occupied by their owners, and between 300 and 350 people were staying on the site. Mr MacCullum saw skid marks on the grass by a tent where the appellant was staying onto a tarmac roadway on the site. That was Mr MacCullum's evidence.

From Miss Bennett's statement the justices found the following: that Miss Bennett had arrived at the scene at about 1.30 am, a roadside breath test was requested from the appellant who complied with the procedure, the resulting reading was as I have stated, and the appellant later admitted that he had been the driver of the vehicle in question when it crashed into the caravan. The appellant accepted the results of the breath test procedures. He did not give evidence at trial and, as I have been told and as appears from the case stated when one reads it closely, the issues at the trial were whether the appellant had been proved to be driving on a road within the meaning of section 5 of the Act and whether, if it was properly a road, was it of a sufficiently public nature to fall within the definition of that term in the Act.

The justices informed this court in their case (in paragraph 13) that they were referred to the definition of a road by their legal adviser, who read to them the relevant paragraph from Stones Justices manual in its then current edition, which was to the following effect:

The justices also informed the court that they were referred to the test arising from the case of Vivier, that is a reference to the case of The Director of Public Prosecutions v Vivier [1991] 4 All ER at page 18, and they quote as follows:

Thereupon, the justices retired to consider the cases which had been cited to them and they say in the case stated, at paragraph 15:

Thereafter the justices set out the decisions that they had considered; and they consider extensively the issues that go to the question of whether a particular area is a public place, as examined in the Vivier case. Those matters are set out in subparagraphs 2 to 6 of paragraph 15 of the stated case. In subparagraph 7, they say:

On behalf of the appellant, Mr Walker submits that it appears from the justices' case that they did not fully and properly address the question of whether or not the area with which they were concerned, or any relevant part thereof, was "a road" within the meaning of the Act, and that had they done so, the evidence that was before them was not sufficient to establish, either on the authorities or on the facts of this case, that this was truly a road for these purposes.

It is important to recall, as I have already set out, that the charge faced by Mr Dunmill was a charge of driving on a road within the meaning of the Act. The charge did not include the other aspect of this offence, comprised in the words "or other public place", which is the form in which such charges are normally preferred. There was no application made before the justices to amend the charge to add those words, notwithstanding, as is accepted, that it was apparent from the outset of the case that one of the issues would be whether the relevant driving had occurred on what was properly to be termed "a road" within the meaning of the Act.

Mr Walker submits, as seems to me to be right, that the case of Vivier, to which I have already referred, was dealing with the issue of whether the caravan site considered in that case was a public place. In that case, the defendant before the court had been charged in the more common form of driving while unfit through drink "on a road or other public place". The decision that followed related to the question of whether the caravan site there considered was a public place. Not surprisingly, the Divisional Court, consisting of Mann LJ and Simon Brown J, found that the park was a public place for the purposes of section 5 (1) of the Act. No question arose as to whether the area with which they were concerned was in fact a road.

Owing to what appears to be the industry of the office of this court, I have had before me the case of Brewer v Director of Public Prosecutions [2004] EWHC 355 (Admin), a further decision of the Divisional Court, consisting of Rose LJ and David Clarke J, given on 11th February 2004. In that case the court was concerned with a similar offence and, similarly to this case, the charge that had been brought was a charge of driving on a road, without the addition of the extra words "or other public place". The area concerned was a railway station car park at Peterborough, and there was some evidence to show that the car park, as is common in many such cases, consisted of parking places and means of access to it, and, perhaps peculiarly to that case, a facility for persons to pass through the car park to obtain access to a private staff car park beyond those confines.

Rose LJ referred, at paragraph 6 of his judgment in that case, to the fact that, equally, before the justices there had been no application to amend to add the additional words "or other public place" to the charge. The justices had convicted in that case. Having referred to the decision in the case of Cutter v Eagle Star [1998] 1 WLR page 1647, a case which has also been before me, Rose LJ said this:

Accordingly, in that case, the appeal was allowed and the conviction was quashed.

In the present case it seems to me that Mr Walker is right in his argument that the justices did not adequately consider the logically anterior question in the case facing them of whether the area on which Mr Dunmill had been driving was "a road" for the purposes of the Act. What they seem to have done, when one looks at paragraph 15, is to decide simply that a road was a place to which the public had access. As is clear from the cases, that is not the only question to be resolved in deciding what is a road. The rest of their findings in paragraph 15 are all related to the question of public access, without consideration as to whether this was a road at all. That, of course, gives me concern as to the safety of the conclusion which they reached, summarised in paragraph 15(vii) of the case.

Looking at the evidence which the justices recite in their case, the only material that we find is that the collision, to which admittedly Mr Dunmill was a party, occurred on a grass area, and there was the evidence of Mr MacCullum who had seen skid marks, not necessarily near the collision site, but apparently near the tent where the appellant had been staying, which strayed onto a roadway. It does not seem to me, therefore, that that slender evidence was sufficient to take the site in this case out of what one might generically have thought a caravan site to be, namely not "a road" as such. Moreover, it seems to me that those two features of evidence were not sufficient in any event to establish this as being a road within the meaning of the charge.

Mr Fortune persuasively sought me to take the contrary view, and I mean no discourtesy to his submissions by not setting them out in detail. He argued the case with great care and precision. He did add one further point, namely that this was a case where the court ought to find that the defect of charging that occurred in this case, and certainly a defect it was, should be overruled and the conviction upheld on the basis of the provisions of section 123 of the Magistrate Courts Act 1980, which in substance provides that no objection to a procedure should be allowed for any defect of substance or form.

To my mind, that does not meet the objection. It seems to me that the charge was formulated as a charge for driving on the road and it is of importance to any defendant that he should be aware of precisely the charge he faces, and if the intention is to prove that he was driving on a road, that should be made clear at the outset. I am not satisfied, certainly at this stage, that I should allow section 123 to contradict the impression and view that I have formed on the case as argued and the evidence as presented before the justices.

Accordingly, in answer to the justices' questions, which are as follows: whether on the evidence the justices were entitled in law to find on the facts that that grass area on the camp site was a road for the purposes of the Road Traffic Act, I would answer no. Secondly, whether on the evidence the justices were entitled in law to find on the facts that Andrew Dunmill had on 27th July 2003 driven a motor vehicle on a road after consuming so much alcohol, namely 63 micrograms of alcohol in 100 millilitres of breath, exceeding the prescribed limit, I would answer that question, equally no. I would allow the appeal and quash the conviction.

MR WALKER: My Lord, thank you very much. I am not entirely sure whether Mr Dunmill was the subject of a driving ban, but I am assuming that that would automatically be lifted with the result of the quashing of his conviction?

MR JUSTICE MCCOMBE: It is important that we resolve that, because it can have consequences. I would assume that that is so; that my quashing of the conviction would mean that any penalty that followed would fall away.

MR FORTUNE: Absolutely right, my Lord, yes. Once the conviction is quashed then it all falls away.

MR JUSTICE MCCOMBE: Well, for the avoidance of doubt, I will quash the conviction and any penalty imposed as a result.

MR WALKER: Thank you very much, my Lord. There is one last issue I would like to --

MR JUSTICE MCCOMBE: Costs, Mr Walker?

MR WALKER: My Lord, yes. I do not have a schedule of costs with me, may I submit one within 7 days?

MR JUSTICE MCCOMBE: Costs of this appeal and below, would that be the point?

MR WALKER: Yes, that would be the point.

MR JUSTICE MCCOMBE: Would that be assessed here or in the -- would the Magistrates' costs be assessed --

MR WALKER: I think, in fact, it would not so much be the Magistrates' costs below as the costs of this appeal, which would be taxed here, I would imagine.

MR JUSTICE MCCOMBE: Yes. I will allow the appeal with costs to be assessed and invite you to submit the relevant schedule within 7 days.

MR WALKER: My Lord, I am grateful.