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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      "What the Order prohibited was a trespassory assembly. We accept Mr. Butt's contention [for the prosecution] that a trespassory assembly is one where the public's right of access to land has been exceeded. We do not in the light of our conclusion on that aspect have to consider whether the Appellants knew they were taking part in a prohibited assembly. Their user of the highway was a reasonable user.

      "Accordingly, for the reasons we have sought to explain we have unanimously reached the conclusion that the evidence is not such that properly directed we could properly convict of that offence. Accordingly there is no case for the Appellants to answer and their appeals must be allowed."

     In the case stated to the Divisional Court two questions were stated for its opinion:

     "(i) Where there is in force an Order under Section 14A(2), and on the public highway within the area and time covered by the Order there is a peaceful assembly of 20 or more persons which does not obstruct the highway, does such assembly exceed the public's rights of access to the highway so as to constitute a trespassory assembly within the terms of Section 14A?

     (ii) In order to prove an offence under Section 14B(2) of the Public Order Act 1986, is it necessary for the prosecution to prove that each of the 20 or more persons present is exceeding the limits of the public's right of access or merely that 20 or more persons were present and that some of them were exceeding the limits of the public's right of access?"

     The Divisional Court answered the first question in the affirmative. In his judgment in the Divisional Court McCowan L.J. stated at p. 6:

      "In the present case counsel for the respondents, Mr. Starmer, argued as he did before the Crown Court that any assembly on the highway is lawful as long as it is peaceful and non-obstructive of the highway. This view appears to have been accepted by the Crown Court. In my judgment, however, it is mistaken. It leaves out of account the existence of the Order made under Section 14A and its operation to prohibit the holding of any assembly which occurs to restrict the limited right of access to the highway by the public. I would accordingly answer the first question posed by the Crown Court for this Court in the affirmative.

      "Counsel for the respondents also argued before us that a right to passage and repassage must include anything incidental thereto. I would accept that, but it leaves the question of what is incidental to passage or repassage. Passing the time of day with an acquaintance whom one happens to meet on the highway might well qualify, but I would reject the suggestion that the holding of an assembly of 21 persons possibly could, any more than I would accept counsel's suggestion, by way of analogy, that a photographer on a public highway adjacent to the Queen's land taking photographs from the highway of members of the Royal Family on that land would only be doing something which was incidental to his right of passage or repassage on that highway."

Collins L.J. stated at p. 9:

     "The holding of a meeting, a demonstration or a vigil on the highway, however peaceable, has nothing to do with the right of passage. Such activities may, if they do not cause an obstruction, be tolerated, but there is no legal right to pursue them. A right to do something only exists if it cannot be stopped: the fact that it would not be stopped does not create a right to do it."

And at p. 11 he said:

     "The existence of a lawful excuse for doing something does not necessarily establish a legal right to do it. In the context of the criminal offence of obstruction, lawful excuse is naturally seen in terms of offending and not in terms of civil trespass."

It was agreed before the Divisional Court that the second question should be answered in the negative, in the sense that the prosecution need prove no more than that the assembly consisted of 20 or more persons and that the particular person accused was taking part in that assembly knowing it to be prohibited by an order under section 14A.

     The point of law of general public importance stated for the opinion of this House is the same as that contained in the first question stated for the opinion of the Divisional Court and is as follows:

     "Where there is in force an Order made under Section 14A(2), and on the public highway within the area and time covered by the Order there is a peaceful assembly of 20 or more persons which does not obstruct the highway, does such an assembly exceed the public's rights of access to the highway so as to constitute a trespassory assembly within the terms of Section 14A?"

     My Lords, I consider that in the light of the well known authorities cited to the House the present state of the law is correctly stated in the following passage in Halsbury's Laws of England 4th ed. Vol. 21 para. 110:

     "The right of the public 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 user of the highway as such. A person who is found using the highway for other purposes must be presumed to have gone there for those purposes and not with a legitimate object, and as against the owner of the soil he is to be treated as a trespasser."

However I consider that there are indications in the authorities that the public's right to use the highway may be extended and I consider that the important issue before your Lordships' House is whether that right should be extended so that the public has a right in some circumstances to hold a peaceful assembly on the public highway provided that it does not obstruct the use of the highway.

     To consider this issue I must first turn to the principal authorities which establish the principle stated in Halsbury. In Harrison v. Duke of Rutland [1893] 1 Q.B. 142 it was held that the plaintiff was a trespasser when, on the occasion of a grouse drive upon a moor owned by the Duke of Rutland, the plaintiff went upon a highway which crossed it, not for the purpose of using it as a highway, but solely for the purpose of using it to interfere with the defendant's enjoyment of his right of shooting, by preventing the grouse from flying towards the butts occupied by the guns. Lopes L.J. stated at p. 154:

      "The conclusion which I draw from the authorities is that, if a person uses the soil of the 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."

     In his judgment, having considered the authorities, Kay L.J. stated at p. 158:

      "According to these authorities, the right of the public upon a highway is that of passing and repassing over land the soil of which may be owned by a private person. Using that soil for any other purpose lawful or unlawful is a trespass. I understand those words to mean that the purpose need not be unlawful in itself; as for example, to commit an assault or a felony upon the high road. It is enough that it should be a user of the soil of the high road for a purpose other than that which is the proper use of a highway, namely that of passing and repassing along it."

     In Hickman v. Maisey [1900] 1 Q.B. 752 the defendant, who published information as to the performances of racehorses in training, walked backwards and forwards on a portion of the highway over the plaintiff's land about 15 yards in length for a period of about an hour-and-a-half, watching and taking notes of the trials of racehorses on the plaintiff's land. The Court of Appeal following the decision in Harrison v. Duke of Rutland upheld a verdict that the defendant was a trespasser.

     In Liddle v. Yorkshire (North Riding) County Council [1934] 2 K.B. 101, 126, 127 Slesser L.J. stated the right of the public to use the highway in the terms employed by Lopes L.J. in Harrison v. Duke of Rutland, and in Randall v. Tarrant [1955] 1 W.L.R. 255, 259 Evershed M.R. stated:

     ". . . it is well established that a highway must not be used in quite a different manner from passage along it and the pretext of walking up and down along it will not legitimise such a use."

     Therefore, as I have stated, the issue which arises in the present appeal is whether the right of the public to use the highway, as stated by Lopes L.J. in Harrison v. Duke of Rutland, should be extended and should include the right to hold a peaceful public assembly on a highway, such as the A344, which causes no obstruction to persons passing along the highway and which the Crown Court found to be a reasonable user of the highway.

 
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