{"id":631771,"date":"2026-04-21T05:32:21","date_gmt":"2026-04-21T03:32:21","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/mariela-anastassova-r-on-the-application-of-v-northampton-magistrates-court\/"},"modified":"2026-04-21T05:32:21","modified_gmt":"2026-04-21T03:32:21","slug":"mariela-anastassova-r-on-the-application-of-v-northampton-magistrates-court","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/ru\/jurisprudences\/mariela-anastassova-r-on-the-application-of-v-northampton-magistrates-court\/","title":{"rendered":"Mariela Anastassova, R (on the application of) v Northampton Magistrates Court"},"content":{"rendered":"
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MR JUSTICE FORDHAM: Introduction 1. Having convicted the Claimant on 6 November 2022 of driving a car with an alcohol concentration above the prescribed limit, in contravention of section 5 of the Road Traffic 1988, the Defendant Magistrates declined on 27 November 2022 to state a case pursuant to section 111 of the Magistrates Courts Act 1980, issuing a s.111(5) certificate of non-viability (I avoid the statutory language of frivolity). It is accepted that the Claimant did drive her car with an alcohol concentration above the prescribed limit. The question was and is whether Vancouver Close, Corby where that took place falls within a s.5(1)(a) \u201croad or other public place\u201d, where \u201croad\u201d is itself defined as any highway other road \u201cto which the public has access\u201d (s.192). 2. Many cases have grappled with this topic. I have been made aware of Harrison v Hill (1932) JC 13 (High Court of Justiciary, 22.10.1931); Deacon v AT (A Minor) [1976] RTR 244 (DC 5.12.75); DPP v Vivier [1991] RTR 205 (DC 11.3.91); R v Spence [1999] RTR 353 (CA 23.3.99); R v DPP, ex p Taussik [2001] ACD 10 (DC 7.6.00); R (Planton) v DPP [2001] EWHC 450 (Admin) (DC 6.6.01); May v DPP [2005] EWHC 1280 (Admin) (DC 15.4.05); Hallett v DPP [2011] EWHC 488 (Admin) (Rafferty J 8.3.11); and Brown v Fisk [2021] EWHC 2769 (QB) (Master Dagnall 29.9.32). Although the question is one of fact and degree, the sufficiency of the evidence and sufficiency of the findings of fact can engage a question of law: see Vivier 209K-L. 3. In this case, the Magistrates heard live evidence from the taxi driver (Mr Panesar) into whom the Claimant\u2019s car had collided in Vancouver Close on 15 July 2022. He described it as an open road with no gates, with lamp-posts and roadside parking, where a couple of people were walking around. He said he had been there, as a taxi driver, around a hundred times. There was a Google Maps photograph showing the road markings, pavements and houses on either side. The police officer who had attended the scene (PC Gostage) also gave live evidence and described this as a single lane road with off-road parking spaces and residential properties on either side, street lighting, no parking permits required, \u2018give way\u2019 markings at the end of the road, and no gates or buzzers. The Magistrates refused a submission of no case to answer. The Claimant then gave evidence. She said she said she had lived there for 2\u00bd years and residents used Vancouver Close and others if there were deliveries. 4. In their non-viability certificate, the Magistrates explained that, by reference to photographic evidence and the evidence of PC Gostage, they had concluded as follows: Vancouver Close had all the hallmarks of a public road with unrestricted access; there was no evidence of any signage stating \u2018residents only\u2019 or similar. They said the Claimant\u2019s evidence that the road was for residents\u2019 access only was merely her opinion and was unsubstantiated. The Magistrates said they were satisfied beyond reasonable doubt from the evidence of PC Gostage that this was a public road with no gate or buzzers, no signage to restrict access, being a single lane carriageway, with off-road and residential parking on either side. The Claim 5. As I see it, the essence of the claim for judicial review \u2013 developed in helpful written and oral submissions by Mr Sonn \u2013 is that this conviction is unsafe in the same way as was the conviction in Hallett (and the conviction in Deacon). In Hallett there was a service road (which residents covenanted to maintain) with 20 houses leading off it, open at both ends, with \u2018give way\u2019 road markings, and with no signage indicating that it was private or that access was prohibited. There was a conviction. But the conviction was overturned on the basis of an insufficiency of evidence to convict. The Prosecution had failed to lead evidence of use by members of the public, beyond use by residents or visitors. It was not to be assumed, simply because there was no evidence to suggest that the road was private, that it was a road to which the public had access. There needed to be evidence led. In the present case, it is accepted for the Claimant that there were \u201call the hallmarks of a public road\u201d, and the absence of any signage indicating otherwise. But it is said that no evidence was led of actual use by members of the public, outside the category of a visitor (and so special class). The people who were observed by Mr Panesar in Vancouver Close could have been residents or visitors. The Magistrates relied on PC Gostage rather than Mr Panesar, whose evidence was about attending as a taxi driver to pick up or drop off a fare (not, as now suggested by the Prosecution, as a member of the public). So, the appearance of a normally constructed road is insufficient in law and, where the only evidence of access is by people who use the road as residents or visitors to residents, that cannot and will not suffice. All of this can be seen from Deacon, as well as Hallett. Discussion 6. I am going to grant permission for judicial review. I do so because the claim, whose essence I have sought to summarise, is arguable. But I am not doing so with enthusiasm. On the papers, Lavender J thought it clear that there was evidence on which the Magistrates could find that this was a public place. That may prove correct. I am myself provisionally attracted to the following points. First, the statutory test is public \u201caccess\u201d (not any particular level of public \u201cuse\u201d). Secondly, many of the cases which speak of a need of \u2018evidence of use\u2019 by the public (and not by residents or visitors) are about grey-area land: car-parks, yards, driveways etc. Thirdly, many roads which are not through-routes or rat-runs may be used by residents and visitors, and I find it odd that they can satisfy the statutory test only if evidence can be called about people, say, \u2018going for a drive\u2019 or \u2018having a driving lesson\u2019 there. Fourthly, the key may lie in Sedley LJ\u2019s observation in the knife-possession case of Harriot v DPP [2005] EWHC 965 (Admin) (DC 4.5.05) at \u00a710 that: the principle which runs through all of the[] cases is that land may either be on the face of it public or on the face of it private: a street would be an example of the former \u2026 In the latter case \u2026 the ostensibly private character of the land may be negatived by evidence that the general public \u2013 that is to say \u2013 anyone who wants to \u2013 does in fact have access to it. This passage also featured in the dangerous dogs case of R v Bogdal [2008] EWCA Crim 1 (CA 16.1.08). The present case can be characterised as a \u201cstreet\u201d case. Those cases which (correctly) emphasise a need for leading evidence of actual public use may be those which can be characterised as ostensibly private character (or ambiguity) cases. Fifthly, what was said in Deacon (see Hallett at \u00a712) is revealing. It was that the \u201cbest\u201d way \u2013 but not the \u2018essential\u2019 and \u2018only\u2019 way \u2013 for showing that a member of the general public has \u201caccess\u201d to a road is to \u201cshow\u201d that a member of that public \u201cdoes in fact\u201d so use it. Sixthly, there are clear virtues in a common sense and non-technical evaluation. I identify these points recognising that they or other points may prevail. Whatever the outcome, it will be good to have the clarity of an authoritative resolution. Finally, I record that the Prosecution\u2019s Summary Grounds, after having cited Harriot, appear \u2013 at this permission stage \u2013 to have accepted that there must be \u201cevidence that the public actually utilises\u201d any location before a court can conclude that it is a public place, referring to Spence. Sunworld 7. The parties (Claimant and Interested Party) should prepare for the substantive hearing on the basis that the Court (a) may wish to deal with the substance on the rolled-up Sunworld basis (as if a case had been stated and this were the appeal) or (b) may prefer to apply a conventional judicial review approach. These alternative routes are illustrated by R (McCombie) v Liverpool City Magistrates Court [2009] EWHC 2881 (Admin) \u00a73. That choice should be for the Court in dealing with the substantive hearing. Venue 8. The Claim Form confirmed that this claim had been filed in \u201cthe region with which the claim is most closely connected\u201d. Mr Sonn has this morning accepted that that was an error. The Administrative Court in London is the regional venue for the south-east region of England. The venue with which this claim is most closely connected is the Midlands region where the venue would be the Administrative Court in Birmingham. No reasons were identified in the claim form, nor when I raised venue during the hearing today, as to why this case should continue in London. I have decided to make a \u2018minded to transfer order\u2019 transferring this case to the Administrative Court in Birmingham, but allowing the Interested Party \u2013 who are not present today \u2013 7 days to file any objections which can be considered by the Liaison Judge for the Midlands. That mechanism does not affect the running of time for other purposes. Absent the filing of such objections, the claim will be transferred to the Birmingham where, in my judgment, it should have been started. I will make appropriate directions in my Order. 27.6.23<\/p>\n<\/div>\n

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Sources officielles :<\/strong> consulter la page source<\/a><\/p>\n

Open Justice Licence (The National Archives).<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

MR JUSTICE FORDHAM: Introduction 1. Having convicted the Claimant on 6 November 2022 of driving a car with an alcohol concentration above the prescribed limit, in contravention of section 5 of the Road Traffic 1988, the Defendant Magistrates declined on 27 November 2022 to state a case pursuant to section 111 of the Magistrates Courts Act 1980, issuing a s.111(5)…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_crdt_document":""},"kji_country":[7608],"kji_court":[7649],"kji_chamber":[],"kji_year":[24566],"kji_subject":[7650],"kji_keyword":[9609,7622,14449,7617,20683],"kji_language":[7611],"class_list":["post-631771","kji_decision","type-kji_decision","status-publish","hentry","kji_country-royaume-uni","kji_court-high-court-administrative-court","kji_year-24566","kji_subject-administratif","kji_keyword-access","kji_keyword-evidence","kji_keyword-magistrates","kji_keyword-public","kji_keyword-residents","kji_language-anglais"],"yoast_head":"\nMariela Anastassova, R (on the application of) v Northampton Magistrates Court - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/ru\/jurisprudences\/mariela-anastassova-r-on-the-application-of-v-northampton-magistrates-court\/\" \/>\n<meta property=\"og:locale\" content=\"ru_RU\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mariela Anastassova, R (on the application of) v Northampton Magistrates Court\" \/>\n<meta property=\"og:description\" content=\"MR JUSTICE FORDHAM: Introduction 1. 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