|Judgment - Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division) continued|
Reference was also made to the European Convention on Human Rights and Fundamental Freedoms, not, of course, as in itself governing the legal position in the United Kingdom, but as indicating what our law should now be. It is desirable to look at the Convention for guidance even at the present time, but this is not a case in my opinion where there is any statutory ambiguity to be resolved or any doubt as to what the common law is (see per Butler-Sloss L.J. in Derbyshire County Council v. Times Newspapers Ltd.  Q.B. 770, 830. In any event, I am not satisfied that the existing law on highways is necessarily in conflict with Article 11 of the Convention providing for a right of assembly, or of Article 10 relating to freedom of expression. Both provide for exceptions to the rights created. I accept that it is arguable that a restriction on assembly even on the highway may interfere with the right of assembly in some situations, as the decisions of the European Court of Human Rights, which have been referred to, show, but I am not satisfied that there was here such a violation either by the law relating to access to the highway as it stands, or in its application to the facts of this case which should compel us to change the law as I believe it to be.
It follows in my view that the Crown Court deciding essentially that what happened was a reasonable use of the highway erred in law and that the Divisional Court was right in the result to reverse their decision. The Justices who heard the case through were entitled to find that there had been a trespassory assembly.
The question certified in essence asks whether the lack of obstruction prevents an assembly of 20 or more persons on the highway from being a trespassory assembly. I would answer that in the negative. Put in the way in which the question is framed, i.e. whether such an assembly where there is no obstruction does exceed the public right of access to the highway so as to constitute a trespassory assembly contrary to section 14A of the Public Order Act 1986, I would answer in the affirmative.
I would accordingly dismiss the appeal.
LORD HOPE OF CRAIGHEAD
The point which is at issue in this appeal arises out of an incident which took place on I June 1995 on the grass verge of the A344 road beside the perimeter fence of the monument at Stonehenge. It relates to the extent of the use which members of the public are entitled to make of a highway in the exercise of the public's right of access to it. The question is whether members of the public who join together to form a peaceful, non-obstructive assembly upon the highway, their purpose being not to pass along it the road but to remain in the place where they have gathered for such time as they choose to remain there, are acting in such a way as to exceed their public right of access to the highway.
On 22 May 1995 Salisbury District Council made an order under Section 14A(2) of the Public Order Act 1986, as amended by the Criminal Justice and Public Order Act 1994, prohibiting the holding of all trespassory assemblies within a radius of four miles from the junction of the A303 and A344 roads adjoining Stonehenge from 2359 hours on Sunday 28 May 1995 until 2359 hours on Thursday 1 June 1995. At about 6.40 p.m. on 1 June 1995 the appellants had gathered with others on the grass verge of the perimeter fence to the west of the Heelstone. They were spread out along the verge, which was about five feet wide, over a distance of about ten to fifteen yards. The conduct of the group was entirely peaceful. No obstruction was being caused to anybody who wished to use the highway. No member of the group was on the roadway, and nobody was abusive, offensive or violent to the police or anybody else in any way. There had been some movement, as people joined the group and others left it during the afternoon and those who were on the verge moved around. But the group was in the nature of an assembly, not a procession. Its members were not pausing for conversation, rest or refreshment while passing along the highway. They had taken up a position upon it in a place where they proposed to stay for the time being. It can be assumed that they did so because they believed they had a right to be there.
A police officer who was at the scene formed the view, after counting its members, that this was an assembly of 20 or more persons and that it was a trespassory assembly which had been prohibited by the order made under section 14A. He informed those present of the terms of the order and at about 6.45 p.m. he instructed them to move on. Most of those who were present complied with this instruction. But the appellants refused to do so, and just after 7.00 p.m. they were arrested on the ground that they were committing an offence under section 14B of the Act by taking part in an assembly which they knew was prohibited by an order under section 14A. They were tried before the Salisbury magistrates and convicted of an offence under section 14B(2). They appealed against their convictions to the Salisbury Crown Court, which allowed their appeals on the ground that the group's user of the highway was a reasonable one which did not exceed the public's right of access. This decision was reversed when the case came before a Divisional Court of the Queen's Bench Division on the ground that the public's right of access to the highway was limited to a right of passage and that an assembly, although peaceful and non-obstructive, could not be said to be on the highway in the exercise of that right. McCowan L.J. rejected the suggestion that the holding of an assembly of 21 persons was incidental to the right of passage and repassage. Collins L.J. said that the holding of a meeting, demonstration or vigil on the highway, however peaceable, has nothing to do with the right of passage.
The case has obvious implications for the relationship between the criminal law and the right of peaceful assembly under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as it arises out of a prosecution brought under the Act of 1986. But the problem which it has raised seems to me to depend for its answer upon an application of the principles which are to be found in the law of real property and landownership. This is because of the words which section 70 of the Criminal Justice and Public Order Act 1994 has used to define what it describes as a trespassory assembly. Section 14A(5), which it has inserted into Part II of the Public Order Act 1986, states:
"Assembly" for this purpose means an assembly of 20 or more persons, and "land" means land in the open air: see subsection (9). The word "limited" is defined by subsection (9) in these terms:
This section may be contrasted with section 14 of the Public Order Act 1986 which deals with the imposition of conditions on public assemblies. Section 16 of the Act defines "public assembly" as "an assembly of 20 or more persons in a public place which is wholly or partly open to the air." It defines "public place" for this purpose as meaning any highway and any place to which the public or any section of it has access, on payment or otherwise, as of right or by virtue of express or implied permission. The technique which section 14 uses to enable the police to control assemblies of this kind is that of enabling the police to impose conditions on the place where it may be held, its numbers and its duration. A person who knowingly fails to comply with any of these conditions commits an offence. The assumption is that, so long as the conditions are complied with, a public assembly in a public place is lawful and that the police have no power to require its members to disperse.
The technique which section 14A uses is entirely different. It brings into the arena of the criminal law the rights, if any, which the public have as against the occupier of the land in private law. It does so by enabling the police to take action against those taking part in an assembly if the occupier of the land would be entitled to treat the assembly as trespassing on his land. But the police may exercise their powers independently of the occupier, whose knowledge of or consent to the action which they are taking is not required. It is sufficient that an order under section 14A is in force for the time being and that the assembly is within the area to which it applies.
In this situation it is necessary first to identify the extent of the public's right of access to a highway before looking more broadly at the human rights issues which this case has raised. Mr. Fitzgerald Q.C. for the appellants accepted that the public's right of access was a limited one, and he did not suggest that there was any relevant distinction in this regard between a "road" and a "highway." The definition of "limited" in section 14A(9) uses both expressions. At common law the expression "highway" includes all ways to which the public have access, from footpaths and bridleways to carriageways. It may therefore be said to include a "road", and in particular a road such as the A344 the solum of which is vested in the statutory highway authority.