The defendants could not base their assertion of vehicular rights across an area of common land on conduct the commission of which was a criminal offence under s.193(4) Law of Property Act 1925. Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14 was binding authority to that effect.Defendant's appeal from the decision of Park J that they and their visitors did not have vehicular rights of access to the defendants' homes over certain common land ('the common'). Park J considered himself bound by Hanning v Top Deck Travel Group Ltd (1993) 1994 P&CR 14 to hold that the defendants could not base their assertion of vehicular rights across the common on conduct the commission of which was a criminal offence under s.193(4) Law of Property Act 1925. The defendants relied at first instance and on appeal on the fact that they had driven on the common openly and continuously for over 20 years and therefore they had the benefit of an easement acquired by prescription, either under the Prescription Act 1832 or under the common law doctrine of lost modern grant. The appellants again sought to attack Hanning (supra) on the basis that it was made per incuriam, as being inconsistent with The Lord Advocate v Lord Lovat (1880) 5 App Cas 273 and ignoring part of George Legge & Sons Ltd v Wenlock Corporation (1938) AC 204; or that it involved a manifest slip or error in that the court misunderstood the judgment in Neaverson v Peterborough RDC (1902) 1 Ch 557.HELD: (1) The decision in Lovat (supra) was not binding on the court, as it was a decision on Scots law and the possession in that case was not unlawful or founded upon illegality. (2) Dillon LJ in Hanning (supra) properly applied George Legge & Sons (supra). (3) The court would not recognise an easement established by illegal activity (Cargill v Gotts (1981) WLR 441). That statement of principle was binding on the court in Hanning (supra) and in the present case. The court in Hanning had not misunderstood the judgment in Neaverson (supra). (4) Hanning (supra) was on all fours with the present case. The appeal should be dismissed. (5) Ward LJ noted that, had the case come before him de novo, he would have decided that the principles of illegality in Tinsley v Milligan (1993) 3 WLR 126, Clunis v Camden & Islington Health Authority (1998) 2 WLR 902 and Beresford v Royal Insurance Co Ltd (1938) AC 586 would apply here as in other areas. The appellants could not succeed without proving that they drove without lawful authority of the owner and their claim was therefore founded upon their criminal activity. Further, the lost modern grant brought them benefit, but the benefit was gained by their illegal activity. Public policy did not permit this. (5) Any disproportion between their conduct and the seriousness of the loss each would incur if his or her claim was disallowed was mitigated by the enactment of s.68 Countryside and Rights of Way Act 2000 and Vehicular Access across Common and other Land (England) Regulations 2002 SI 2002/1711.Appeal dismissed.
 EWCA Civ 23