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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     ". . . on the ground that the plaintiff was on the highway, the soil of which belonged to the Duke of Rutland, not for the purpose of using it in order to pass and repass, or for any reasonable or usual mode of using the highway as a highway, I think he was a trespasser." (Emphasis added.)

Plainly Lord Esher M.R. contemplated that there may be "reasonable or usual" uses of the highway beyond passing and repassing. He continued, at pp. 146-147:

     "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."

Lopes L.J., by contrast, stated the law in more rigid terms, at p. 154:

     ". . . 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 . . . "

Similarly, Kay L.J. stated, at p. 158:

     ". . . 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."

     The rigid approach of Lopes L.J. and Kay L.J. would have some surprising consequences. It would entail that two friends who meet in the street and stop to talk are committing a trespass; so too a group of children playing on the pavement outside their homes; so too charity workers collecting donations; or political activists handing out leaflets; and so too a group of members of the Salvation Army singing hymns and addressing those who gather to listen.

     The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. For the reasons I set out below in my judgment it should. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass. Subject to these qualifications, therefore, there would be a public right of peaceful assembly on the public highway.

     The third authority relied upon by the Divisional Court is the decision of the Court of Appeal in Hickman v. Maisey [1900] 1 Q.B. 752. In that case, the defendant, a racing tout, had used a public highway crossing the plaintiff's property for the purpose of observing racehorses being trained on the plaintiff's land. A. L. Smith L.J. expressly followed the approach of Lord Esher M.R. in Harrison. Applying that reasoning, he accepted, at p. 756, that a man resting at the side of the road, or taking a sketch from the highway, would not be a trespasser. The defendant's activities, however, fell outside "an ordinary and reasonable user of the highway" and so amounted to a trespass. Collins L.J. similarly approved Lord Esher M.R.'s approach, noting, at pp. 757-758, that:

     " . . . in modern times a reasonable extension has been given to the use of the highway as such . . . 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."

     Romer L.J. was to similar effect, at p. 759.

     I do not, therefore, accept that, to be lawful, activities on the highway must fall within a rubric incidental or ancillary to the exercise of the right of passage. The meaning of Lord Esher's judgment in Harrison, at pp. 146-147 is clear: it is not that a person may use the highway only for passage and repassage and acts incidental or ancillary thereto; it is that any "reasonable and usual" mode of using the highway is lawful, provided it is not inconsistent with the general public's right of passage. I understand Collins L.J.'s acceptance in Hickman, at pp. 757-758, of Lord Esher's judgment in Harrison in that sense.

     To commence from a premise, that the right of passage is the only right which members of the public are entitled to exercise on a highway, is circular: the very question in this appeal is whether the public's right is confined to the right of passage. I conclude that the judgments of Lord Esher M.R. and Collins L.J. are authority for the proposition that the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public's primary right to use the highway for purposes of passage and repassage.

     Nor can I attribute any hard core of meaning to a test which would limit lawful use of the highway to what is incidental or ancillary to the right of passage. In truth very little activity could accurately be described as "ancillary" to passing along the highway; perhaps stopping to tie one's shoe lace, consulting a street-map, or pausing to catch one's breath. But I do not think that such ordinary and usual activities as making a sketch, taking a photograph, handing out leaflets, collecting money for charity, singing carols, playing in a Salvation Army band, children playing a game on the pavement, having a picnic, or reading a book, would qualify. These examples illustrate that to limit lawful use of the highway to that which is literally "incidental or ancillary" to the right of passage would be to place an unrealistic and unwarranted restriction on commonplace day-to-day activities. The law should not make unlawful what is commonplace and well accepted.

     Nor do I accept that the broader modern test which I favour materially realigns the interests of the general public and landowners. It is no more than an exposition of the test Lord Esher proposed in 1892. It would not permit unreasonable use of the highway, nor use which was obstructive. It would not, therefore, afford carte blanche to squatters or other uninvited visitors. Their activities would almost certainly be unreasonable or obstructive or both. Moreover the test of reasonableness would be strictly applied where narrow highways across private land are concerned, for example, narrow footpaths or bridle-paths, where even a small gathering would be likely to create an obstruction or a nuisance.

     Nor do I accept that the "reasonable user" test is tantamount to the assertion of a right to remain, which right can be acquired by express grant, but not by user or dedication. That recognition, however, is in no way inconsistent with the "reasonable user" test. If the right to use the highway extends to reasonable user not inconsistent with the public's right of passage, then the law does recognise, (and has at least since Lord Esher's judgment in Harrison recognised), that the right to use the highway goes beyond the minimal right to pass and repass. That user may in fact extend, to a limited extent, to roaming about on the highway, or remaining on the highway. But that is not of the essence of the right. That is no more than the scope which the right might in certain circumstances have, but always depending on the facts of the particular case. On a narrow footpath, for example, the right to use the highway would be highly unlikely to extend to a right to remain, since that would almost inevitably be inconsistent with the public's primary right to pass and repass.