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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     The most important point to note about these expressions is their generality. The certified question refers to "the public highway" (emphasis added). The use of the definite article and the addition of the adjective "public" suggest that a distinction can be drawn between those highways which are public and those which are not. But section 14A(9) refers simply to "a highway." In doing so it follows the wording used in other statutes to which I shall refer later. It also follows the common law, which uses the word "highway" to describe a place to which the public have access in order to exercise the public right. All highways are in that sense "public." The only distinction which might relevantly be drawn is that the land over which a highway passes is not always vested in a public authority. But it has not been suggested that the right of access is different according to the public or private character of the landowner. The conclusions which I would draw from this are that the addition of the word "public" is tautologous, and that anything which we may say about the limits of the public right of access to a highway must be taken, in law, to apply to each and every highway.

     The next point is that no question arises in this case as to the limits of any permission given by the occupier. But it is worth noting that section 14A(5), by treating an assembly which exceeds the limits of such permission as a trespassory assembly, is relying for its application on a matter which the law would normally be content to leave to the discretion of the occupier. The same may also be said of cases where the assembly is held on land to which the public have a right of access which is limited. The law would normally be content to leave it to the occupier to intervene if any members of the public were acting in a way which exceeded the limits of the public right. Although the right to complain that there is a trespass has been taken out of the hands of the occupier and placed at the disposal of the police by section 14A, the extent of these limits must nevertheless be found in the relationship in private law between the public and the occupier.

     It may be convenient to begin an examination of this subject with some general statements. A highway is a way over which there is a public right of way. A public right of way is similar to but not in all respects the same as an easement of way. The right is exercisable by anyone whether he owns land or not, whereas an easement is a right exercisable by the owner of land for the time being by virtue of his estate in the land of which he is the dominant proprietor. There are other differences. But a public right of way closely resembles an easement of way in regard to the nature of the user from which its creation may be inferred and the nature of the use which may be made of it. Halsbury's Laws of England, 4th ed, vol. 21, para. 110 states that it is a right to pass along a highway for the purpose of legitimate travel, not to be on it, except so far as the public's presence is attributable to a reasonable and proper use of it as such. In paragraph 1, p. 9 of the same volume it is stated that a highway is a way over which there exists a public right of passage, that is to say 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. In Megarry and Wade, The Law of Real Property, 5th ed. (1984), p. 844 it is stated:

     "The land over which a public right of way exists is known as a highway; and although most highways have been made up into roads, and most easements of way exist over footpaths, the presence or absence of a made road has nothing to do with the distinction. There may be a highway over a footpath, while a well-made road may be subject only to an easement of way, or may exist only for the landowner's benefit and be subject to no easement at all."

In Clerk & Lindsell, The Law of Torts, 17th ed. (1995), para. 17-41 the current state of the law as to the question of use is summarised in these terms:

     "The right of the public in respect of a highway is limited to the use of it for the purpose of passing and repassing and for such other reasonable purposes as it is usual to use the highway; if a member of the public uses it for any other purpose than that of passing and repassing he will be a trespasser."

     The law of Scotland, which is relevant to this case as section 14A applies also to Scotland, is the same on the question as to the use which may be made of the public right. In Rankine, The Law of Land, Ownership in Scotland, 4th ed. (1909), p. 325 it is stated that the definition of a highway in English law as "a right of passage in general to all the King's subjects" applies also to Scotland. At p. 327 it is observed that "the public right of passage, called a highway" is regarded as a limitation or restriction on the landowner's use of his property. In Wills' Trustees v. Cairngorm Canoeing and Sailing School Ltd., 1976 S.C. (H.L.) 30, 125 Lord Wilberforce said: "A public right of way on highways is established by use over the land of a proprietor."

     But it is worth nothing that there are some important differences between the law of Scotland and the law of England as to the constitution of the right. I think that it is right to mention this, because Scots law does not regard the assertion that actual intention is confined to the right to pass and repass and to activities incidental or ancillary to that right as a legal fiction. This is regarded in Scotland as a matter of fact which requires to be established by the evidence. The differences between the laws of the two countries on this matter were discussed in Mann v. Brodie (1885) 10 App.Cas. 378. Lord Blackburn observed at p. 385 that any reference to the law of England in that case, which was to be governed by the law of Scotland, was apt to mislead unless the difference of the law of the two countries was borne in mind. At p. 386 he pointed out that, although in both countries a right of public way may be acquired by prescription, it was in England never practically necessary to rely on prescription to establish a public way. It was enough that there was evidence on which those who had to find the fact may find that there was a dedication by the owner whoever he was. Lord Watson said at pp. 390-391 that the constitution of such a right according to the law of Scotland does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. There are many examples in the Scottish authorities of cases where the parties have joined issue on the question whether the evidence of user was sufficient to establish this fact: e.g. Duke of Athol v. Torrie (1849) 12 D. 328, aff'd 1 Macq. 65; Macpherson v. Scottish Rights of Way and Recreation Society Ltd. (1887) 13 App.Cas. 744. As Rankine, op. cit., pp. 329-330 puts it: "The books are rich in illustrations of this matter, for no actions have been more obstinately fought out than cases of right of way."

     The statutes which make provision as regards highways in England and Wales and as regards roads in Scotland follow the approach of the common law as to the nature of the public right of access. Section 328(1) of the Highways Act 1980 provides that in that Act, except where the context otherwise requires, "highway" means the whole or part of a highway other than a ferry or waterway. Section 329(1) defines "bridleway," "carriageway," "footpath" and "footway" respectively as meaning a way over which the public have a right of way on horseback, for the passage of vehicles or on foot only, as the case may be. As the term "highway" is not itself defined, it is necessary to apply the common law meaning of the word as a way over which members of the public have a right to pass and repass. Section 151(1) of the Roads (Scotland) Act 1984 is more explicit on this point. It defines "road" as meaning any way over which there is a public right of passage by whatever means. From this it follows that it is not possible to draw any relevant distinction as regards the nature of the public right of access between a highway which passes over land which is in private ownership and a highway which is vested in the statutory highway or roads authority.

     It seems that at one time the extent of the right of passage was stated more narrowly than appears from the current textbooks. In Ex Parte Lewis, (1888) 21 Q.B.D. 191 it was held that there was no right in the public to occupy Trafalgar Square for the purpose of holding public meetings there. Wills J. said, at p. 197:

     "The only 'dedication' in the legal sense that we are aware of is that of a public right of passage, of which the legal description 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.' A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we have been able to ascertain, no authority whatever in favour of it."

     In Reg. v. Cunningham Graham and Burns [1886] 16 Cox C.C. 420, 429-430 Charles J. addressed the jury in these terms:

     "I have anxiously considered the observations of Mr. Asquith, and I can find no warrant for telling you that there is a right of public meeting either in Trafalgar Square or any other public thoroughfare. So far as I know the law of England, the use of public thoroughfares is for people to pass and repass along them. That is the purpose for which they are, as we say, dedicated by the owner of them to the use of the public, and they are not dedicated to the public use for any other purpose that I know of other than for the purpose of passing and repassing; and, if you come to regard Trafalgar Square as a place of public resort simply, it seems to me it would be very analogous to the case of public thoroughfares."

     In Harrison v. Duke of Rutland [1893] 1 Q.B. 142, 152 Lopes L.J. said that the interest of the public in a highway consisted solely in the right of passage. At p. 154 he went on to say this:

      "The conclusion which I draw from the authorities is that, if a person uses the soil of a highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate travel, and the use of the soil for any other purpose, whether lawful or unlawful, is an infringement of the rights of the owner of the soil, who has, subject to this easement, precisely the same estate in the soil as he had previously to any easement being acquired by the public."

Kay L.J. at p. 158 was to the same effect. He said that the right of the public upon a highway is that of passing and repassing over the land the soil of which may be owned by a private person, and that using the land for any other purpose lawful or unlawful was a trespass.

     I note in passing that he also made the point that, for trespass, the purpose need not be unlawful in itself, it being enough that it should be a user of the soil for a purpose other than that which is the proper use of a highway, namely that of passing and repassing along it. These observations seem to me to be directly in point in the present case. On this approach it would not matter in the least whether the assembly was or was not a peaceful one or whether or not it was causing an obstruction to anyone. The motives or behaviour of those who constitute the assembly are irrelevant to the question whether there is a trespass. The mere fact that it was a use of the soil for a purpose other than that of passing or repassing along the highway would be enough to make it a trespassory assembly.

     But the strict approach indicated by the earlier authorities was departed from by Lord Esher M.R. in the same case. At p. 146 he observed that, if the proposition that the use of the highway for any purpose, lawful or unlawful, other than that of passing or repassing was a trespass were to be construed too largely, the effect might be to interfere with the universal usage as regards highways in a way which would derogate from the reasonable exercise of the rights of the public. He went on to give this explanation:

     "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." (Emphasis added.)