Judgment - Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division)  continued

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     Its conclusion is that all peaceful assemblies on the highway are tortious, whilst seeking to justify that state of affairs by observing that peaceful assemblies are in practice usually tolerated. In my judgment it is none to the point that restrictions on the exercise of the right of freedom of assembly may under Article 11 be justified where necessary for the protection of the rights and freedoms of others. If the Divisional Court were correct, and an assembly on the public highway always trespassory, then there is not even a prima facie right to assembly on the public highway in our law. Unless the common law recognises that assembly on the public highway may be lawful, the right contained in Article 11(1) of the Convention is denied. Of course the right may be subject to restrictions (for example, the requirements that user of the highway for purposes of assembly must be reasonable and non-obstructive, and must not contravene the criminal law of wilful obstruction of the highway). But in my judgment our law will not comply with the Convention unless its starting-point is that assembly on the highway will not necessarily be unlawful. I reject an approach which entails that such an assembly will always be tortious and therefore unlawful. The fact that the letter of the law may not in practice always be invoked is irrelevant: mere toleration does not secure a fundamental right. Thus, if necessary, I would invoke Article 11 to clarify or develop the common law in the terms which I have held it to be; but for the reasons I have given I do not find it necessary to do so. I would therefore allow the appeal.

LORD SLYNN OF HADLEY

My Lords,

     In section 14A of the Public Order Act 1986 (inserted by section 70 of the Criminal Justice and Public Order Act 1994) Parliament gave a new power of control to local councils and to the police to deal with assemblies of twenty or more persons on land to which the public had a limited right of access or no right of access.

     A chief officer of police who reasonably believes that such an assembly is intended to be held and that it is likely to be held without the permission of the occupier of the land, or to conduct itself in such a way as to exceed the public's limited right of access, and to cause significant damage to land or buildings of historical or archaeological importance, may apply to the council of the district for an order "prohibiting for a specified period the holding of all trespassory assemblies in the district or a part of it as, specified." It is thus necessary to show that the land is such that the public has no or only a limited right of access, and "'limited,' in relation to a right of access by the public to land, means that their use of it is restricted to use for a particular purpose (as in the case of a highway or road)" (emphasis added).

     With the consent of the Secretary of State the council may then make an order prohibiting such assemblies for a period not exceeding four days and in respect of an area not exceeding five miles from a specified centre. When such an order is made: "A person who takes part in an assembly which he knows is prohibited by an order under section 14A is guilty of an offence": (section 14B(2)).

     This new offence is thus subject to important conditions being satisfied before prosecutions can be brought--the reasonable belief of the Chief Officer of Police as to the matters specified, the consent of the Secretary of State and the decision of the council to make such an order, but it is plain that Parliament in 1994 was intending to give additional powers to councils and to the police to disperse trespassory assemblies over and above any other remedies (often slower and less effective) which might be available where people trespassed, committed nuisance or were violent.

     On 22 May 1995 Salisbury District Council made an order prohibiting the holding of trespassory assemblies within a four mile radius of Stonehenge for a period from 29 May to 1 June 1995 inclusive.

     It is agreed that on 1 June 1995 a group of people were on the grass verge of the A344 road. The group was not fixed or static, people came and went. At about 6.45 p.m. the present appellants were on the verge in a group said by the police to have numbered 21 persons. A Police Inspector formed the view that this group constituted a prohibited trespassory assembly and they were told to move on. Some apparently did. The two appellants refused and were subsequently charged with the offence under section 14B(2) of the Act. They were convicted by the Salisbury justices but on appeal the Crown Court ruled that there was no case to answer and allowed the appeal.

     The Crown Court found that the group, including the appellants, were not "destructive, violent, disorderly, threatening a breach of the peace or, on the evidence, doing anything other than reasonably using the highway." The court further concluded that the group's use of the highway was a "reasonable user" and that the conduct of the appellants and the group as a whole did not exceed the public's right of access to the highway.

     The Divisional Court on appeal allowed the appeal and ruled that a peaceful assembly of twenty or more persons on the highway which does not obstruct the highway is still a trespassory assembly for the purposes of section 14B(2). The sole question on the appeal to your Lordships is thus whether the public has the right of access to the highway in order to assemble there when it does not at the time obstruct the highway and when those present are not violent and are not threatening a breach of the peace.

     It cannot, of course, be said that the public has no right of access to the highway; it is not suggested that the public's right of access is absolute. The question is what are the limits to the right (not, it should be noted, the practice) of the public to use or be on the highway. For this purpose it is not necessary to distinguish between "highway" and "road" since the definition of "limited" includes both, though no issue has been raised that the place where the appellants were was not a highway. I assume that it was and that as such the public had some right of access to it.

     It is necessary to remember when considering this case that both at common law and by the Highways Act 1980 the public have an analogous right of way over bridleways and footpaths. It is not, however, necessary in this case to consider the case of a private road or another place where the permission of the occupier is needed and where additional factors may need to be taken into account, but the arguments here have implications in principle for both.

     It is hardly surprising that the public's rights of access to and use of the highway have been considered on previous occasions by the courts though in different contexts. As I see it the essential feature of the public's right was explained in the judgment of Lopes L.J. with whom in substance Kay L.J. agreed, in Harrison v. Duke of Rutland [1893] 1 Q.B. 142. At p. 152 Lopes L.J. said:

     "The interest of the public in a highway consists solely in the right of passage."

At p. 153 he quotes Crompton J. in Reg. v. Pratt (1855) 4 E.& B. 860, 868-869 who said:

     "I take it to be clear law that, if a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser."

 
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