ANGUS MICHAEL McPHEE v. PROCURATOR FISCAL, OBAN
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Coulsfield Lord Osborne Lord Caplan | Appeal No: 1610/00 OPINION OF THE COURT delivered by LORD COULSFIELD in NOTE OF APPEAL by ANGUS MICHAEL McPHEE Appellant; against PROCURATOR FISCAL, Oban Respondent: _______ |
Appellant: L. Kennedy; Balfour & Manson
Respondent: Turnbull, Q.C., A.D.; Crown Agent
5 July 2001
[1]The appellant was convicted on 10 April 2000 of a charge of failing to provide specimens of breath, contrary to section 7 of the Road Traffic Act 1988. The incident occurred on 24 July 1999. The appellant was required to give specimens of breath by police officers who were investigating a complaint of, inter alia, a contravention of section 5 of the 1988 Act. There was no doubt that there had been a complaint that the appellant had driven a motor vehicle, albeit for a short distance, and no doubt that he failed to give the necessary specimens when required. The ground of appeal is that the sheriff was not entitled to find that the appellant drove on a road or public place within the meaning of the legislation. The sheriff found on the evidence that he did so drive and it was maintained on behalf of the Crown that he was entitled to make that finding. The Crown, however, also submitted that if it were established, as the sheriff had found in this case, that the police officers were bona fide investigating a complaint that the appellant had driven on a road or public place, it was not essential to the proof of the charge to establish that the place in question was in fact a road or public place. That argument did not figure before the sheriff, but counsel for the appellant did not object to it being raised in the appeal.
[2]The incident which gave rise to the charge took place in Oban, near the road which leads to McCaig's Tower. A road called Duncraggan Road leads off the road to McCaig's Tower and curves past a building comprising four flats. Between the road and the block of flats there is an area of tarmac which is part driveway and part parking area. That stretch of tarmac is marked off from Duncraggan Road by a line of kerbstones set in the tarmac but not projecting above it, so that there is no obstruction to the passage of a vehicle over the line. The tarmac area extends round one end of the block of flats and continues along the far side of it. At the further side of the tarmac area, the ground falls quite steeply. From the tarmac area, a driveway leads down to a separate house called Avoriaz. The division between the tarmac area and the drive to Avoriaz is again marked by a line of setts or kerbstones, but in this instance the stones appear to be an inch or two above the level of the surrounding area. It is clear that the driveway which leads to Avoriaz is private to that house. In addition to the access to Avoriaz, there is access to another separate residence which is taken from the tarmac area adjacent to the block of flats.
[3]The sheriff finds that on 24 July 1999 at or around midnight the appellant drove a motor car M638 DLH within the confines of the driveway of the house Avoriaz. That house belonged to and was occupied by a Mr. John Orr. In the course of moving the car within the driveway, the appellant struck and knocked over Mr. Orr. The appellant and Mr. Orr had been drinking earlier in the evening and before the appellant got into his car a taxi had been called to take the appellant home. The taxi driver arrived and parked his taxi near the top of the driveway, on the tarmac area beside the Dungraggan flats. The taxi driver saw the accident involving the appellant and Mr. Orr and summoned the police and the ambulance. When the police arrived he told them that the appellant had driven his car on the tarmac area (referred to by the sheriff as the driveway/car park area) and that he had moved his taxi out of the way. The police were, therefore, given information to the effect that the appellant had not merely driven the car on the driveway of Avoriaz, which as we have noted was clearly private, but also travelled a short distance on the tarmac or driveway/car park area. The question debated before the sheriff was whether that area fell within the definition of a road or other public place. The sheriff accepted that in order to constitute the offence it was necessary for the Crown to show that the area was public.
[4]The sheriff says that he took the view that there was evidence from the taxi driver, from one of the police constables and from photographs produced sufficient to enable him to conclude that the area was a public place. He says:
"It provided access and car parking for the four flats within the Duncraggan flats building and for two houses, Avoriaz itself and the house shown with an entry to the left of the driveway/car park area in photograph E. Photograph D showed an unrestricted entry from the public road to the car parking area. There were no signs prohibiting entry. On the face of the photographs there was no restriction on access. It is said that I have failed to apply the decision in Young v. Carmichael correctly. In that case the distinguishing features applying to the private property in question, Dalziel House, are set out by the Lord Justice Clerk at page 337C-F. As I understand that decision, where a block of flats - such as Duncraggan flats in the instant case - obtain access from the public road by way of a private road leading to an equally private car park for the use of residents of the flats in question, then the mere fact that it will perforce require to be used by persons such as postmen, delivery men, the occupiers of the flat, their visitors or family will not be sufficient to turn the private car park into a public place. In the instant case there are at least two other houses gaining access across this driveway/car park area, Mr. Orr's house Avoriaz and the house shown with gates to the left hand side in photograph E. Another distinguishing feature from Young v. Carmichael is that there is no restriction, whether by sign or otherwise, on access from the public road, Duncraggan Road, to the driveway/car park area. I took the view that those such as Mr. Orr, the owner and occupier of Avoriaz and the occupiers of the house with the entrance shown to the left in photograph E would be regarded as members of the public having access over this driveway/car park area which belonged to the block of flats. It seemed to me that that was the correct approach as a matter of principle. I say this because, unless it is a question of degree, a situation could be conceived where there 20 houses, access to each of which might be gained across this private car park. If a visitor to one of those houses - whether postmen, friend or stranger - was knocked down by a drunk driver, there would be no offence in terms of the 1988 Act. That did not seem to me to be an appropriate conclusion or one intended by Parliament or by your Lordships' court. For these reasons I distinguished Young v. Carmichael. That case was concerned solely with a private area of ground for the owners/occupiers of the flats to which it related and not allowing access elsewhere."
Counsel for the appellant referred to Young v. Carmichael 1991 S.C.C.R. 332 and to Alston v. O'Brien 1992 S.L.T. 856 and submitted that in the present case the appellant had only driven six to ten feet into the driveway/car park area. The sheriff had been wrong to distinguish Young v. Carmichael. Only six households had access to the area, four of which were in the block of flats, the other two being Avoriaz and the other house mentioned by the sheriff. There was no reason for anyone to use the driveway/car park except to visit the six households. It was true that there was no restriction on entry and no sign at the entry from Duncraggan Road but, given the extent of the use of the area, it could not be said to be public. The advocate depute submitted, so far as this point was concerned, that the sheriff had been correct. He drew attention to the terms of the Road Traffic Act 1988 and mentioned the cases of Thomson v. MacPhail 1992 S.C.C.R. 466, Vannett v. Burn 1998 S.C.C.R. 414 and Brown v. Braid 1984 S.C.C.R. 286. In this case there might be a number of members of the public on the area as visitors to any of a number of houses and the area was open with no obvious restriction on access. It was true there was no invitation to the public, as in the case of a public house or shop car park or filling station forecourt, but there were people who came there and this was not an enclosed private space.
[5]In our view, the sheriff's conclusion was one which he was entitled to reach. For the purposes of the 1988 Act, a road is defined as "any road within the meaning of the Roads (Scotland) Act and any other way to which the public has access". The decision in Young v. Carmichael, the facts of which are, in our view, correctly summarised by the sheriff, shows that a car park or driveway may be private even though it is used by a number of proprietors and their visitors, tradesmen and other callers. On the other hand, the fact that a number of different proprietors may have access to and use a driveway or car park tends to bring the area within the mischief at which the Act aims, that is, as was emphasised in Brown v. Braid supra, the protection of the public. If all the persons having an interest, as joint proprietors or co-occupants or beneficiaries of a right of access, choose to make it clear that a car park or common access relating to a number of properties is being kept private, then that may be an important factor, as it was in Young v. Carmichael. In the present case, there was no physical obstacle or division between the car park/driveway area and the public road, no sign saying "private" and no attempt to exclude any of the public. In view of the small number of houses to which access is obtained over the driveway/car park, this is a marginal case. It was, however, for the sheriff to assess the evidence and he was entitled to hold that the driveway/car park area in this case falls on the public side of the line. In these circumstances the appeal falls to be dismissed.
[6]As we have mentioned, we also heard argument from the advocate depute on the question whether it was necessary for the purposes of a charge under section 7 to establish that the accused had in fact driven on a road or public place. That submission was based upon Commissioner of Police of the Metropolis v. Curran 1976 R.T.R. 61 (H.L.) and Hawes v. Director of Public Prosecutions 1993 R.T.R. 116. With regard to that argument we would only say that ex facie the decisions do appear to support the proposition put forward by the advocate depute. However, the argument now advanced would have been open to the Crown in Young v. Carmichael supra but was not advanced and indeed it seems to have been accepted by the Crown in that case that ,for the purposes of a similar charge to that in the present case, it was necessary to prove that the driving investigated had taken place on a public place. That being so, there is at least a possibility that this argument could not be given effect without reconsidering Young v. Carmichael, at least in part, and we think that it would be better to do that in a case in which it was necessary and, preferably, one in which the point had been raised in the court below.