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

(back to preceding text)

And Collins L.J. stated at p. 757:

     "Now primarily the purpose for which a highway is dedicated is that of passage, as is shewn by the case of Dovaston v. Payne (1); and, although in modern times a reasonable extension has been given to the use of the highway as such, the authorities shew that the primary purpose of the dedication must always be kept in view. The right of the public to pass and repass on a highway is subject to all those reasonable extensions which may from time to time be recognised as necessary to its exercise in accordance with the enlarged notions of people in a country becoming more populous and highly civilised, but they must be such as are not inconsistent with the maintenance of the paramount idea that the right of the public is that of passage."

     It can be contended that these passages in the judgments of Lord Esher M.R. and A. L. Smith and Collins L.JJ. only contemplate an extension of the rights of the public provided that the highway is used "as such," and that the extended use must be connected with using the highway for passing and repassing. But I consider that the passages are open to a broader construction and that they do not exclude a reasonable use of the highway beyond passing and repassing, provided always that the use is not inconsistent with the paramount purpose of a highway, which is for the use of the public to pass and repass. Therefore for your Lordships' House to uphold the appellants' argument would not constitute a reversal of a well established principle but rather would be an extension of the law in a way foreshadowed by earlier judgments. In C. v. Director of Public Prosecutions [1995] 2 All E.R. 43 this House was considering whether a long established rule of the criminal law should be set aside and I consider that the approach stated by Lord Lowry at page 52G-J is not applicable to the present case.

     Therefore, for the reasons which I have given, I am of opinion that the holding of a public assembly on a highway can constitute a reasonable user of the highway and accordingly will not constitute a trespass and I would allow the appeal. But I desire to emphasise that my opinion that this appeal should be allowed is based on the finding of the Crown Court that the assembly in which the appellants took place on this particular highway, the A344, at this particular time, constituted a reasonable use of the highway. I would not hold that a peaceful and non-obstructive public assembly on a highway is always a reasonable user and is therefore not a trespass.

     It is for the tribunal of fact to decide whether the user was reasonable. In Hirst and Agu at p. 150 Glidewell L.J. makes it clear that a reasonable activity in the street may become unreasonable by reason of the space occupied or the duration of time for which it goes on, "but it is a matter on the facts for the magistrates, in my view."

     If members of the public took part in an assembly on a highway but the highway was, for example, a small, quiet country road or was a bridleway or a footpath, and the assembly interfered with the landowner's enjoyment of the land across which the highway ran or which it bordered, I think it would be open to the Justices to hold that, notwithstanding the importance of the democratic right to hold a public assembly, nevertheless in the particular circumstances of the case the assembly was an unreasonable user of the highway and therefore constituted a trespass.

     In conclusion I refer to one further matter. In setting out the facts the judgment of the Crown Court states at p. 5:

     "At 5.45(p.m.) (Inspector Mackie) and other officers saw a sizeable group (he said by that he meant one he estimated at about 20 people) scale the fence of the monument and enter it. The officers also saw that group escorted out again either by Police or Security Officers without any arrests or violence."

And at p. 16:

     "Of course the basis of Inspector Mackie's undisputedly reasonable and sensibly intended intervention was to prevent any such thing as an incursion into the Monument such as had occurred an hour earlier in which there was no evidence that the Appellants were involved."

     I thought for a time in the course of the argument that the decision of the Crown Court might be erroneous because it appears that Inspector Mackie thought that the assembly of which the appellants were a part was about to commit an act of trespass by entering the monument, as had happened an hour earlier. I consider that there is an argument of some force that a reasonable user of the highway by an assembly may become an unreasonable user so that the non-trespassory assembly becomes a trespassory assembly if it appears that members of the assembly are about to commit unlawful acts. However, this point did not arise in the questions stated for the opinion of the Divisional Court and was not argued before the Divisional Court, and the point does not arise on the question stated for the opinion of your Lordships' House. Therefore it would not be right to decide the appeal on this point. Accordingly I express no concluded opinion on the point or on the circumstances in which a non-trespassory assembly may become a trespassory assembly.

     For the reasons which I have given I would allow the appeal and would answer the certified question before your Lordships' House as follows. "No, if the tribunal of fact finds that the assembly was a reasonable user of the highway."


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