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|Judgments - Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division)
Lord Clyde Lord Hutton
OF THE QUEEN'S BENCH DIVISION)
LORD IRVINE OF LAIRG L.C.
My Lords, this appeal raises an issue of fundamental constitutional importance: what are the limits of the public's rights of access to the public highway? Are these rights so restricted that they preclude in all circumstances any right of peaceful assembly on the public highway?
On 1 June, 1995, at about 6.40 p.m. Police Inspector Mackie counted 21 people on the roadside verge of the southern side of the A344, adjacent to the perimeter fence of the Monument at Stonehenge. Some were bearing banners with the legends, "Never Again," "Stonehenge Campaign 10 years of Criminal Injustice" and "Free Stonehenge." He concluded that they constituted a "trespassory assembly" and told them so. When asked to move off, many did, but some, including the Appellants, Mr. Lloyd and Dr. Jones, were determined to remain and put their rights to the test. They were arrested for taking part in a "trespassory assembly" and convicted by the Salisbury Justices on 3 October, 1995. Their appeals to the Salisbury Crown Court, however, succeeded. The court held that neither of the Appellants, nor any member of their group, was "being destructive, violent, disorderly, threatening a breach of the peace or, on the evidence, doing anything other than reasonably using the highway."
About an hour before, a different group of people had scaled the fence of the Monument and entered it. They had been successfully escorted away by police officers without any violence or arrests; but there were no grounds for apprehension that any of the group of which Mr. Lloyd and Dr. Jones were members proposed an incursion into the area of the Monument.
An appeal by way of case stated to the Divisional Court followed: Director of Public Prosecutions v. Jones  2 All E.R. 119. It was assumed for the purposes of that appeal (per McCowan L.J. at p. 122D) that:
(a) the grass verge constituted part of the public highway; and
(b) the group was peaceful, did not create an obstruction and did not constitute or cause a public nuisance.
The defendants had been charged with "trespassory assembly" under section 14B(2) of the Public Order Act 1986 ("the Act of 1986"). Section 14A(1) of the Act of 1986 permits a chief officer of police to apply, in certain circumstances, to the local council for an order prohibiting for a specified period "trespassory assemblies" within a specified area. An order of that kind may be obtained only in respect of land "to which the public has no right of access or only a limited right of access"; had been obtained in this case; and covered the area in which the defendants, with others, had assembled.
Section 14A(5) of the Act of 1986 provides:
Section 14A(5) thus indicates that a "trespassory assembly" must be "trespassory" in the sense that it must involve the commission of the tort of trespass by those taking part, either by entering land to which they have no right of access, or by exceeding a limited right of access to land.
Section 14A(9) of the Act of 1986 provides, inter alia:
The offence with which the defendants were charged is set out in section 14B(2) of the Act of 1986:
The Divisional Court reinstated the defendants' convictions. It held that a peaceful assembly on the public highway exceeds the limits of the public's right of access (within the meaning of section 14A(5)). The "particular purpose" mentioned in the definition of "limited" in section 14A(9) was held not to include the use of the highway for peaceful assembly.
The central issue in the case thus turns on two interrelated questions: (i) what are the "limits" of the public's right of access to the public highway at common law? and (ii) what is the "particular purpose" for which the public has a right to use the public highway?
The basis of the Divisional Court's decision
The reasoning underlying the Divisional Court's judgments is not altogether clear:  2 A11 E.R. 199. McCowan L.J. states at page 124C-D:
In my judgment that reasoning is circular. There is no suggestion in the Act of 1986 that the making of any order under section 14A(1) in itself defines the limits on the public's right of access to the highway. Rather, the conditions under which it is appropriate to make an order, and the conditions for the breach of such an order, are defined by reference to the existing limits upon the public's right of access. In other words, section 14A presupposes limited rights of access; it does not purport to impose such limits.
Collins J., at p. 125F-G concludes that, at common law, an assembly on the highway, however peaceable, exceeds the limits of the public's right of access. This is the conclusion which lies at the heart of the Divisional Court's decision.
In addition, Collins J. rejected the respondents' argument that Article 11(1) of the European Convention on Human Rights requires that there is a right of assembly on the public highway (albeit a right which may be subject to restrictions under Article 11(2)), as opposed merely to a toleration of assemblies. Collins J. concluded, at p. 127H, that the common law conforms with the Convention right of assembly because "The reality is that peaceful and non-obstructive assemblies on the highway are normally permitted."
Thus in broad terms the basis of the Divisional Court's decision is the proposition that the public's right of access to the public highway is limited to the right to pass and repass, and to do anything incidental or ancillary to that right. Peaceful assembly is not incidental to the right to pass and repass. Thus peaceful assembly exceeds the limits of the public's right of access and so is conduct which fulfils the actus reus of the offence of "trespassory assembly."
The position at common law
The Divisional Court's decision is founded principally on three authorities. In Ex parte Lewis (1888) 21 Q.B.D. 191 the Divisional Court held obiter that there was no public right to occupy Trafalgar Square for the purpose of holding public meetings. However, Wills J, giving the judgment of the court, had in mind, at p. 197, an assembly " . . . to the detriment of others having equal rights . . . in its nature irreconcilable with the right of free passage." Such an assembly would probably also amount to a public nuisance, and, today, involve the commission of the offence of obstruction of the public highway contrary to section 137(1) of the Highways Act 1980 ("the 1980 Act"). Such an assembly would probably also amount to unreasonable user of the highway. It by no means follows that this same reasoning should apply to a peaceful assembly which causes no obstruction nor any public nuisance.
In Harrison v. Duke of Rutland  1 Q.B. 142 the plaintiff had used the public highway, which crossed the defendant's land, for the sole and deliberate purpose of disrupting grouse-shooting upon the defendant's land, and was forcibly restrained by the defendant's servants from doing so. The plaintiff sued the defendant for assault; and the defendant pleaded justification on the basis that the plaintiff had been trespassing upon the highway. Lord Esher M.R. held, at p. 146: