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27.12.24

The importance of scrutinising the wording of charges in motoring offences

As 2024 draws to an end, prosecutors and defence lawyers alike remind themselves of the seminal case Brewer v DPP [2004] EWHC 355 (Admin), where the judgment handed down exactly 20 years ago remains a stark warning as to the importance of scrutinising the wording of charges carefully.

In this case, the defendant was charged with driving with excess alcohol and driving while disqualified.  The wording of the two charges is significant. In the case of driving with excess alcohol, section 5(1) of the Road Traffic Act 1988 provides:

If a person—

(a) drives or attempts to drive a motor vehicle on a road or other public place, or

(b) is in charge of a motor vehicle on a road or other public place,

after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.

 The offence of driving while disqualified is provided in section 103(1)(b) of the Road Traffic Act 1988:

A person is guilty of an offence if, while disqualified for holding or obtaining a licence, he … drives a motor vehicle on a road.

The wording of the two offences is similar, but significantly driving with excess alcohol can be committed both on a “road” or “other public place”. By contrast, a defendant can be considered guilty of driving while disqualified only if he drives on a “road”.

In the case of Brewer v DPP, the defendant was charged with both driving with excess alcohol and driving while disqualified. The facts were that the defendant drove a motor vehicle while intoxicated beyond the legal limit in a railway station car park. This was also at a time when he was disqualified from driving.

Perhaps due to the similar wording of both charges, the prosecutor pleaded the offence of driving with excess alcohol as “on a road, namely the railway station car park, Mayors Walk” and omitted to include the alternative of “or in a public place”.  Counsel for the defendant clearly identified the gap in the prosecution’s drafting and contested the issue that the railway station car park was not a road.  The Magistrates at first instance considered that the car park a road and found the defendant guilty of both offences, but on appeal by way of case stated, the Administrative Court concluded that it was not a road and quashed both convictions.

The law

The definition of a “road” is a complicated topic and it is submitted hinges on the facts and degree of each case. However, section 142(1) of the Road Traffic Act provides the starting point in the context of these two offences by describing a road as

“in England and Wales, means any length of highway or of any other road to which the public has access, and includes bridges over which a road passes”

The definition of a road hinges to a certain extent on the facts of an individual case.  Following the decision in Elkins v Cartlidge [1947] 1 All ER 829, a railway station car park would have been considered a public place on the basis that it is clearly a place  to which the public have access.  The correlation between a car park and a road was grappled with in the case of Oxford v Austin [1981] RTR 46 when it was held that a road is where “there is obviously a definable way over which vehicles may pass”.  The case of Cutter v Eagle Star Insurance [1998] 4 All ER 417¸ provides:

“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” 

It was this principle that was applied in the case of Brewer and resulted in the Administrative Court allowing the appeal.

The Lesson

The case of Brewer provides two important lessons for lawyers involved in litigating motoring offences. First, the law surrounding motoring offences is often highly nuanced. Second, the wording of charges should always be analysed in detail. It can frequently lead to very different outcomes. It seems likely that had the charge relating to excess alcohol included the wording “or public place”, the ground of appeal would not have arisen and the outcome of the case may well have been very different for the defendant.

 

Send us an emailcomplete our online enquiry form or call us on 020 7183 8950  to find out how our specialist drink driving solicitors can help if you are being investigated or prosecuted for an alleged motoring offence. 


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Articles are intended as an introduction to the topic and do not constitute legal advice.