When does a private property become a road or other public place?

The death of a nonagenarian in the case of R v Christopher McCann [2026] EWHC 1795 (KB) who was tragically killed following a collision with a tipper truck, raised not only the question as to the definition of a road but further served to highlight an evidential inadequacy that had been overlooked in the prosecution case.

In brief, on 15 May 2023, the defendant Christopher McCann (CM) was reversing a large tipper truck at the Greenwich Millennium Village residential estate in Greenwich when he struck and ran over Greta Zoob, aged 95. Ms Zoob died a week later from her injuries.

Following his charge for the offence of causing death by careless driving under section 2B of the Road Traffic Act 1988 , CM’s case found its way to the Central Criminal Court where his lawyers requested that the case be listed for an application to dismiss ostensibly on the basis that the evidence did not establish the necessary legal elements of the case. The prosecution alleged that CM drove carelessly. However, causing death by careless driving only applies if the driving occurred on a “road or other public place” and consequently, CM’s counsel argued that the location of the collision was not within that definition.

In considering the application in September 2024, HHJ Dennis KC on reviewing the evidence for the Crown accepted that the CCTV evidence could allow a jury to conclude that Mr McCann’s driving was careless but found insufficient evidence that the location of the collision, Renaissance Walk within the Greenwich Millennium Village estate, was a “road or other public place” for Road Traffic Act purposes.

He reasoned that the estate was private land with signage stating, “Private Property” and “Private Land”; that vehicular access was controlled through a barrier; and that whilst there was unrestricted pedestrian access at three entrances; roads and walkways were primarily designed for residents and visitors.

In acceding to the defence application to dismiss, he concluded there was not enough evidence showing that the general public actually used the estate, rather than merely residents, visitors, or people with business there.

The prosecution sought to prefer a voluntary bill of indictment in accordance with Paragraph 2(6)(a) of Schedule 3 to the Crime and Disorder Act 1998 which provides that following dismissal of a charge in the Crown Court, no further proceedings may be brought on the dismissed charge except by means of the preferment of a voluntary bill of indictment. An important aspect of that procedure is that a bill of indictment may only be preferred by the direction or with the consent of a judge of the High Court.

The issue of consent to the voluntary bill was therefore a matter for the High Court. In examining the law Mr Justice Murray indicated that it is settled law that the preferment of a voluntary bill is an exceptional procedure, and that consent should only be granted where there is good reason to depart from the normal procedure and only where the interests of justice, rather than considerations of administrative convenience, require it.

The Prosecution request for a voluntary bill of indictment was based upon two grounds:

That the trial judge applied the wrong legal test, erroneously requiring proof that members of the general public actually used the road when determining the definition of “a road or other public place”.
That new evidence had since been obtained showing public use of the estate, providing a sustainable factual basis for the prosecution case,

and that it was in the interests of justice for the High Court to take the exceptional course of directing or consenting to the preferment of a voluntary bill.

In considering the issues, Mr Justice Murray reviewed the authorities including the cases of Harrison v Hill [1932] JC 13 and Deacon v AT [1976] RTR 244 holding that the law did require evidence of actual use by members of the general public and not merely a theoretical ability to access the location. He thereby concluded that HHJ Dennis had made no clear and obvious error in law and that he had correctly applied the legal test and had been entitled to find that there was an insufficiency of evidence in that regard.

When considering the second Prosecution ground Mr Justice Murray accepted that additional evidence which when combined with the original evidence, might have enabled a jury to conclude that the location of the allegation was a road or other public place, however he came to the firm conclusion,

“that the prosecution could, and should, have been able to put evidence of actual use by members of the public in the general sense before the judge before he made his ruling” and that the prosecution had not demonstrated any good reason as to why they did not do so.

He further commented, “it appears that the prosecution, rather than the judge, were proceeding on a mistaken understanding that the relevant law did not require proof of actual usage by the general public.”

Accordingly, he dismissed that ground too, without needing to consider the wider public interest, although Mr Justice Murray appeared to deliver a further rebuke, when indicating that had he done so that the 17 months delay in the prosecution bringing the application for a voluntary bill was culpable delay for which CM bore no responsibility, and that notwithstanding the tragic death of Ms Zoob, it was not in the public interest to prefer a voluntary bill.

Comment

In an ever-changing urban landscape, where areas are private but with public access, this decision reinforces that, where the Road Traffic Act offences requiring a location to be a “road or other public place,” it is generally necessary to show actual use by the public in the general sense, not merely that members of the public could have entered the area.

It also confirms that voluntary bills of indictment remain an exceptional remedy, unavailable where the prosecution is effectively seeking a second opportunity to present evidence that could have been obtained earlier.

Nevertheless, the writer believes that one of the most startling aspects of the case is the misjudgement by those prosecting the matter. Applications to dismiss are supported by skeleton arguments, often detailing the issues taken with the evidence served. The subsequent failure of the Prosecution to appreciate that evidence from users of the Greenwich Millenium Village was required leaves an uncomfortable conclusion that it was simply overlooked due to an over reliance on the seriousness of the tragic consequences.