|Judgment - Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division) continued|
A highway may be created either by way of the common law doctrine of dedication and acceptance, or by some statutory provision. Dedication presupposes an intention by the owner of the soil to dedicate the right of passage to the public. Whilst the intention may be expressed, it is more often to be inferred; but the requirement of an inference of an intention to dedicate does not, in my judgment, advance the question of the extent of the public's right of user of the highway. The dedication is for the public's use of the land as a highway and the question remains: what is the proper extent of the public's use of the highway? Given that intention to dedicate is usually inferred, it would be a legal fiction to assert that actual intention was confined to the right to pass and repass and activities incidental or ancillary to that right. There is no room in the judgment of Collins L.J. in Hickman, at pp. 757-758 for the fiction of an immutable, subjective original intention. Neither highway users nor the courts are in any position to ascertain what the landowner's original intentions may have been, years or even centuries after the event. In many cases, where the intention to dedicate is merely inferred from the fact of user as of right, there will not even have been a subjective intention. Nor would it be sensible to hold that the extent of the public's right of user should differ from highway to highway, as necessarily it would if actual subjective intention were the test. It is time to recognise that the so-called intention of the landowner is no more than a legal fiction imputed to the landowner by the court.
It would have been possible for the common law to have imposed tight constraints on the public's right of user of the highway in one of two ways. First, it could have held that the right was no wider than the bare minimum required for the use of the highway as such: a test of necessity. Or, secondly, it could have been held that the right was static, so that a user which could not have been in contemplation as reasonable and usual at the time of dedication could never become a lawful user in changing social circumstances. I have already demonstrated that the former has been rejected. Nor could the latter be sustained. I doubt whether, when a highway was first dedicated in, say, the early nineteenth century, a landowner would have contemplated the traversal at very high speed of the land dedicated by vehicles powered by internal combustion engines. The fact is that the common law permits vehicles to be driven at high speed on the highway because that is a reasonable user in modern conditions: it would be a fiction to attribute that to an actual intention at the time of dedication.
I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass: within these qualifications there is a public right of peaceful assembly on the highway.
Since the law confers this public right, I deprecate any attempt artificially to restrict its scope. It must be for the magistrates in every case to decide whether the user of the highway under consideration is both reasonable in the sense defined and not inconsistent with the primary right of the public to pass and repass. In particular, there can be no principled basis for limiting the scope of the right by reference to the subjective intentions of the persons assembling. Once the right to assemble within the limitations I have defined is accepted, it is self-evident that it cannot be excluded by an intention to exercise it. Provided an assembly is reasonable and non- obstructive, taking into account its size, duration and the nature of the highway on which it takes place, it is irrelevant whether it is premeditated or spontaneous: what matters is its objective nature. To draw a distinction on the basis of anterior intention is in substance to reintroduce an incidentality requirement. For the reasons I have given, that requirement, properly applied, would make unlawful commonplace activities which are well accepted. Equally, to stipulate in the abstract any maximum size or duration for a lawful assembly would be an unwarranted restriction on the right defined. These judgments are ever ones of fact and degree for the court of trial.
Further, there can be no basis for distinguishing highways on publicly owned land and privately owned land. The nature of the public's right of use of the highway cannot depend upon whether the owner of the sub-soil is a private landowner or a public authority. Any fear, however, that the rights of private landowners might be prejudiced by the right as defined are unfounded. The law of trespass will continue to protect private landowners against unreasonably large, unreasonably prolonged or unreasonably obstructive assemblies upon these highways.
Finally, I regard the conclusion at which I have arrived as desirable, because it promotes the harmonious development of two separate but related chapters in the common law. It is neither desirable in theory nor acceptable in practice for commonplace activities on the public highway not to count as breaches of the criminal law of wilful obstruction of the highway, yet to count as trespasses (even if intrinsically unlikely to be acted against in the civil law), and therefore form the basis for a finding of trespassory assembly for the purposes of the Public Order Act. A system of law sanctioning these discordant outcomes would not command respect.
Wilful Obstruction of the Highway
By section 137 of the Highways Act 1980: "(1) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence . . . " The relevant case law was extensively considered by the Divisional Court in Hirst and Agu v. Chief Constable of West Yorkshire (1987) 85 Cr.App.R. 143.
The appeal was by animal rights supporters, who had been demonstrating against the use of animal fur both outside and in the doorway of a furrier's shop. They handed out leaflets, held banners and attracted groups of passers-by who blocked the street. The issue whether they were guilty of the statutory offence was held to turn on three questions:
(i) was there an obstruction (with "any stopping on the highway", unless de minimis, counting as an obstruction)?
(ii) was the obstruction deliberate? and
(iii) was the obstruction without lawful excuse?
The latter question, if the obstruction was not unlawful in itself (as in the case of unlawful picketing), was "to be answered by deciding whether the activity in which the defendant was engaged was or was not a reasonable user of the highway" per Glidewell L.J., pp. 150-151. Glidewell L.J. instanced
In so holding Glidewell L.J. applied the reasoning of the Divisional Court in Nagy v. Weston  1 All E.R. 78, where the activity in question, the sale of hot dogs in the street, "could not . . . be said to be incidental to the right to pass and repass along the street." The question was one of fact: "whether the activity was or was not reasonable." (at p. 150).
I find it satisfactory that there is a symmetry in the law between the activities on the public highway which may be trespassory and those which may amount to unlawful obstruction of the highway
Article 11 of the European Convention on Human Rights
If, contrary to my judgment, the common law of trespass is not as clear as I have held it to be, then at least it is uncertain and developing, so that regard should be had to the Convention in resolving the uncertainty and in determining how it should develop: Derbyshire County Council v. Times Newspapers Ltd.  1 Q.B. 770 (C.A.), per Balcombe L.J. at p. 812B-C; and Butler-Sloss L.J. at p. 830A-B; and see Attorney-General v. Guardian Newspapers Ltd. (No. 2)  1 A.C. 109, at p. 283, per Lord Goff of Chieveley. Article 11 confers a "right to freedom of peaceful assembly" and then entitles the state to impose restrictions on that right. The effect of the Divisional Court's decision in this case would be that any peaceful assembly on the public highway, no matter how minor or harmless, would involve the commission of the tort of trespass.