|Judgment - Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division) continued|
Lopes L.J. added:
At p. 154 he said:
Thus the core right is to pass and to repass although I do not think that Lopes L.J. would have said that uses incidental to passing and repassing - stopping to adjust a bridle or to repair a carriage wheel-would have constituted a trespass. Lord Esher M.R. was more specific. He said, at p. 146:
He added that if the language of Crompton J. inter-alios were construed too largely the effect might be to interfere "with the universal usage as regards highways in this country in a way which would be mischievous, and would derogate from the reasonable exercise of the rights of the public. Construed too strictly, it might imply that the public could do absolutely nothing but pass or repass on the highway, and that to do anything else whatever upon it would be a trespass. I do not think that is so. Highways are, no doubt, dedicated prima facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using a highway as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think that he will be a trespasser."
It does not seem to me that his words "any reasonable or usual mode of using the highway as a highway" or "a reasonable and usual mode of using a highway as such" (emphasis added) were intended to include acts done by people who were not in the ordinary sense of the term "passing and repassing along the highway." This is how A. L. Smith L.J. appears to have read Lord Esher in his judgment in Hickman v. Maisey  1 Q.B. 752, 755-756. He then said:
He accepted that for a man to stop to rest or to take a sketch in the highway would not be considered an act of trespass but he continued:
Collins L.J. at p. 757 said:
It seems to me that Collins L.J. is saying no more than that developments which were incidental to the right of passage might be accepted as falling within the public's right of limited access to the highway.
That ruling as to the law had already been reflected in two cases involving specifically the holding of public meetings in Trafalgar Square. Thus in Reg. v. Cunningham Graham and Burns (1888) 16 Cox 420, 429 Charles J., rejecting the claim that there was a right of public meeting in Trafalgar Square or any other thoroughfare, said:
Similarly, in Ex parte Lewis (1888) 21 Q.B.D. 191 Wills J. said that a public right of passage is a "right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance."
It was reflected subsequently in Randall v. Tarrant  1 W.L.R. 255 where Lord Evershed M.R. said, at p. 259:
and in Clerk & Lindsell, The Law of Torts, 17th ed. (1995), para. 17-41, p. 861, viz.:
The right of assembly, of demonstration, is of great importance but in English law it is not an absolute right which requires all limitations on other rights to be set aside or ignored.
These cases, in limiting or linking rights of user by the public of the highway to passage or repassage, in themselves exclude a right to stay on the highway other than for purposes connected with such passage, but they are to be read with cases of wider application which reject the possibility of a right of staying or wandering over land being acquired by user or prescription. See, for example, Attorney-General v. Antrobus  2 Ch. 188, where a claim of a right for the public to visit Stonehenge acquired by user was rejected, and in In re Ellenborough Park  Ch. 131 where a claim that the public had acquired a right to wander in a pleasure park was asserted. In the latter case, Lord Evershed M.R. said, at p. 184:
On existing authority, I consider that the law is clear. The right is restricted to passage and reasonable incidental uses associated with passage.
It seemed to be suggested or at least implicit in argument that demonstrations and assemblies are a new development of the late twentieth century and cannot have been in the mind of judges when they defined the law in the nineteenth century and even as late as Lord Evershed's judgment to which I have referred. This is plainly wrong as the two Trafalgar Square cases (and nineteenth century descriptions of contemporary conditions) show, even though the extent, nature, size and object of such demonstrations and assemblies have changed. I am willing to assume that more people are now more conscious of the importance of assembly and demonstration than they were in previous centuries, but I do not see that this in itself is enough to justify changing the nature and scope of the public's right to use the highway. That it cannot in itself justify as of right assemblies or demonstrations on private land is obvious. The appellants' argument in effect involves giving to members of the public the right to wander over or to stay on land for such a period and in such numbers as they choose so long as they are peaceable, not obstructive, and not committing a nuisance. It is a contention which goes far beyond anything which can be described as incidental or ancillary to the use of a highway as such for the purposes of passage; nor does such an extensive use in my view constitute a reasonable, normal or usual use of the highway as a highway. If the appellants' claim is right, it seems to me to follow that other uses of the highway than assembly would be permitted--squatting, putting up a tent, selling and buying food or drinks--so long as they did not amount to an obstruction or a nuisance. To get over the fence from adjoining land (as could have happened here) and to sit or stand on the highway, including the verge, in order to demonstrate does not seem to me to be a normal or usual use of the highway as such and has nothing to do with passing and re-passing.
The fact that the purpose of the demonstration or assembly is one which most or many people would approve does not change what is otherwise a trespass into a legal right. Nor does the fact that an assembly is peaceful or unlikely to result in violence, or that is not causing an obstruction at the particular time when the police intervene, in itself change what is otherwise a trespass into a legal right of access.
It is objected that very often people on the highway singly or in groups take part in activities which go beyond passage and repassage and are not stopped. That is no doubt so, but reasonable tolerance does not create a new right to use the highway and indeed may make it unnecessary to create such a right which in its wider definition goes far beyond what is justified or needed. It may well be that in the situation with which your Lordships are concerned that, but for Section 14, nothing would have been done to a peaceful non-obstructive group like the one in which the appellants took part. But Parliament in 1994 has enabled action over and above existing remedies to deal with trespass on the highway, or on land for entry on which the landowner's permission is required, to be taken to deal with what was seen as a growing problem. If Parliament wants to take away that form of control, it can obviously do so. I do not consider that disapproval of this power justifies a change in the law as to the public's rights over the highway, which is what at times seems to be one of the bases of the appellants' arguments.
Reference was made to cases such as Lowdens v. Keaveney  2 I.R. 82; Hirst and Agu v. Chief Constable of West Yorkshire (1987) 85 Cr.App.R. 143 (under section 137(1) of the Highways Act 1980); Nagy v. Weston  1 W.L.R. 280; and Hubbard v. Pitt  1 Q.B. 142, which concern wilful obstruction of the passage along a highway without reasonable excuse. That is a different question from the one raised in the present case and I do not consider that the passages relied on from those judgments directly assist in answering it.