Drink Driving on Private Land: Is It Legal?

The offence of driving with excess alcohol can be committed on a road or other public place as outlined in Section 5 of the Road Traffic Act 1988. The precise wording of the Road Traffic Act creates a distinction whereby if someone is driving on private land whilst over the drink drive limit then no offence is committed.

The question then is what happens when someone is caught drink driving on private land?

What is a “public place”?

There is no statutory definition of “public place” in the Road Traffic Act 1988, however, the term “public place” has to be construed in the same way as “road”. This means the words “public place” are to be interpreted as representing a place to which the public has access. With that being said, simply having access is not enough to secure a conviction.

The question of whether a place is a public place is a matter of fact and degree, but whether the evidence suffices to support that conclusion is a question of law.

The Scottish case of Harrison v Hill 1932 JC 13 established a basis for what is public and what is not and there has been a long and detailed history of case law that has followed on this point.

In the case of Harrison v Hill the following was established:

“There must be, as a matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed – that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs” 

Therefore, when considering the position set out in Harrison v Hill, in order to prove that a place is public the prosecution must show that the place is used by the general public (not a special class of the public) and that the public actually and lawfully use the place.

Who has the burden of proof?

The burden of proving that a particular location is a public place rests on the Crown to prove beyond all reasonable doubt. There must be evidence that the public actually utilized the premises before a court can conclude they are a public place.

It is not sufficient to say that the public could have access if they were so inclined. Furthermore, it is important to make clear that the public’s use of the place in question must be lawful. In other words, the public must have express or implied permission to access it by the owner.

How do I know if a place is public or not?

When considering whether a place is public or private there are a number of factors which need to be considered. In the case of May v Director of Public Prosecutions [2005] EWHC 1280 (Admin) Laws LJ summarised the relevant legal principles as follows:

1. The burden of proving that a particular location is a ‘public place’ rests on the Crown to prove beyond reasonable doubt;
2. There must be evidence that the public actually utilised premises before a court can conclude that they are a ‘public place’. It is not sufficient to say that the public could have access if they were so inclined.
3. Premises will be private where they are entered for reasons beneficial to the occupier or where they are visited for business purposes.
4. However, even business premises will be ‘public’ if the location is a public service, a railway station, a hospital or other public utility. This will include a pub car park during licensed hours.
5. A distinction is to be made where premises are occupied by a large number of people – even if there has been a condition of entry for those people, the premises will be a ‘public place’. This is because a potentially large number of individuals need to be caught or protected by the umbrella of the legislation.

Given the technical nature of whether a place is public or not, there is no definitive answer that will cover every scenario. This is because in some circumstances a place may be public and in others the same place may be private depending on the evidence introduced by the prosecution and the local knowledge of the court.

Therefore, the only certain way to ensure a motorist is not charged with driving with excess alcohol is to not drive following the consumption of alcohol. Whilst a place may indicate it is private; this does not necessarily make it so and will be something that will have to be determined by the court.

Worried About a Drink Driving Allegation?

If you believe you have been charged whilst driving on private land, given the technical and varying nature of this defence it is imperative to obtain expert legal advice.

We understand how stressful and overwhelming this situation can be. At Olliers, our specialist motoring team is here to support you with expert advice and a calm, clear approach. Whether you’re facing a court appearance or simply need guidance, our expert motoring solicitors are here to help, offering confidential and professional legal support at every stage of your case. 

Contact our specialist motoring team by completing the enquiry form below, emailing info@olliers.com or by telephoning 01618341515 (Manchester) or 02038836790 (London).