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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Lopes L.J. added:

     "I do not think the language used by the learned judges in that case too large or that it in any way imperils the legitimate use of highways by the public."

At p. 154 he said:

      "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."

Thus the core right is to pass and to repass although I do not think that Lopes L.J. would have said that uses incidental to passing and repassing - stopping to adjust a bridle or to repair a carriage wheel-would have constituted a trespass. Lord Esher M.R. was more specific. He said, at p. 146:

     "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."

He added that if the language of Crompton J. inter-alios were construed too largely the effect might be to interfere "with the universal usage as regards highways in this country in a way which would be mischievous, and would derogate from the reasonable exercise of the rights of the public. Construed too strictly, it might imply that the public could do absolutely nothing but pass or repass on the highway, and that to do anything else whatever upon it would be a trespass. I do not think that is so. 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."

     It does not seem to me that his words "any reasonable or usual mode of using the highway as a highway" or "a reasonable and usual mode of using a highway as such" (emphasis added) were intended to include acts done by people who were not in the ordinary sense of the term "passing and repassing along the highway." This is how A. L. Smith L.J. appears to have read Lord Esher in his judgment in Hickman v. Maisey [1900] 1 Q.B. 752, 755-756. He then said:

     "I quite agree with what Lord Esher M.R. said in Harrison v. Duke of Rutland, though I think it is a slight extension of the rule as previously stated." (Emphasis added.)

He accepted that for a man to stop to rest or to take a sketch in the highway would not be considered an act of trespass but he continued:

     "I cannot agree with the contention of the defendant's counsel that the acts which this defendant did, not really for the purpose of using the highway as such, but for the purpose of carrying on his business as a racing tout to the detriment of the plaintiff by watching the trials of racehorses on the plaintiff's land, were within such an ordinary and reasonable user of the highway as I have mentioned."

Collins L.J. at p. 757 said:

     "The question must in the last resort be whether what the defendant did after he got upon the highway comes within the ordinary and reasonable use of the highway as a highway, that is, for the purpose for which it is dedicated to the public. Now primarily the purpose for which the highway is dedicated is that of passage, as is shown by the case of Dovaston v. Payne; and, although in modern times a reasonable extension has been given to the use of the highway as such, the authorities show 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." (Emphasis added.)

It seems to me that Collins L.J. is saying no more than that developments which were incidental to the right of passage might be accepted as falling within the public's right of limited access to the highway.

     That ruling as to the law had already been reflected in two cases involving specifically the holding of public meetings in Trafalgar Square. Thus in Reg. v. Cunningham Graham and Burns (1888) 16 Cox 420, 429 Charles J., rejecting the claim that there was a right of public meeting in Trafalgar Square or any other thoroughfare, said:

     "So far as I know the law of England, the use of public thoroughfares is for people to pass and repass along them. That is the purpose for which they are, as we say, dedicated by the owner of them for the use of the public, and they are not dedicated to the public use for any other purpose that I know of other than for the purpose of passing and repassing."

Similarly, in Ex parte Lewis (1888) 21 Q.B.D. 191 Wills J. said that a public right of passage is a "right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance."

     It was reflected subsequently in Randall v. Tarrant [1955] 1 W.L.R. 255 where Lord Evershed M.R. said, at p. 259:

     "The rights of members of the public to use the highway are, prima facie, rights of passage to and from places which the highway adjoins; but equally clearly it is not a user of the highway beyond what is legitimate if, for some purposes, a driver of a vehicle pauses from time to time on the highway. Nobody would suggest to the contrary. On the other hand, 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,"

and in Clerk & Lindsell, The Law of Torts, 17th ed. (1995), para. 17-41, p. 861, viz.:

     "The right of the public in respect of a highway is limited to the use of it for the purpose of passing and repassing and for such other reasonable purposes as it is usual to use the highway; if a member of the public uses it for any other purpose than that of passing and repassing he will be a trespasser."

     The right of assembly, of demonstration, is of great importance but in English law it is not an absolute right which requires all limitations on other rights to be set aside or ignored.

     These cases, in limiting or linking rights of user by the public of the highway to passage or repassage, in themselves exclude a right to stay on the highway other than for purposes connected with such passage, but they are to be read with cases of wider application which reject the possibility of a right of staying or wandering over land being acquired by user or prescription. See, for example, Attorney-General v. Antrobus [1905] 2 Ch. 188, where a claim of a right for the public to visit Stonehenge acquired by user was rejected, and in In re Ellenborough Park [1956] Ch. 131 where a claim that the public had acquired a right to wander in a pleasure park was asserted. In the latter case, Lord Evershed M.R. said, at p. 184:

     "There is no doubt, in our judgment, but that Attorney-General v. Antrobus was rightly decided; for no such right can be granted (otherwise than by Statute) to the public at large to wander at will over an undefined open space, nor can the public acquire such a right by prescription."

     On existing authority, I consider that the law is clear. The right is restricted to passage and reasonable incidental uses associated with passage.

     It seemed to be suggested or at least implicit in argument that demonstrations and assemblies are a new development of the late twentieth century and cannot have been in the mind of judges when they defined the law in the nineteenth century and even as late as Lord Evershed's judgment to which I have referred. This is plainly wrong as the two Trafalgar Square cases (and nineteenth century descriptions of contemporary conditions) show, even though the extent, nature, size and object of such demonstrations and assemblies have changed. I am willing to assume that more people are now more conscious of the importance of assembly and demonstration than they were in previous centuries, but I do not see that this in itself is enough to justify changing the nature and scope of the public's right to use the highway. That it cannot in itself justify as of right assemblies or demonstrations on private land is obvious. The appellants' argument in effect involves giving to members of the public the right to wander over or to stay on land for such a period and in such numbers as they choose so long as they are peaceable, not obstructive, and not committing a nuisance. It is a contention which goes far beyond anything which can be described as incidental or ancillary to the use of a highway as such for the purposes of passage; nor does such an extensive use in my view constitute a reasonable, normal or usual use of the highway as a highway. If the appellants' claim is right, it seems to me to follow that other uses of the highway than assembly would be permitted--squatting, putting up a tent, selling and buying food or drinks--so long as they did not amount to an obstruction or a nuisance. To get over the fence from adjoining land (as could have happened here) and to sit or stand on the highway, including the verge, in order to demonstrate does not seem to me to be a normal or usual use of the highway as such and has nothing to do with passing and re-passing.

     The fact that the purpose of the demonstration or assembly is one which most or many people would approve does not change what is otherwise a trespass into a legal right. Nor does the fact that an assembly is peaceful or unlikely to result in violence, or that is not causing an obstruction at the particular time when the police intervene, in itself change what is otherwise a trespass into a legal right of access.

     It is objected that very often people on the highway singly or in groups take part in activities which go beyond passage and repassage and are not stopped. That is no doubt so, but reasonable tolerance does not create a new right to use the highway and indeed may make it unnecessary to create such a right which in its wider definition goes far beyond what is justified or needed. It may well be that in the situation with which your Lordships are concerned that, but for Section 14, nothing would have been done to a peaceful non-obstructive group like the one in which the appellants took part. But Parliament in 1994 has enabled action over and above existing remedies to deal with trespass on the highway, or on land for entry on which the landowner's permission is required, to be taken to deal with what was seen as a growing problem. If Parliament wants to take away that form of control, it can obviously do so. I do not consider that disapproval of this power justifies a change in the law as to the public's rights over the highway, which is what at times seems to be one of the bases of the appellants' arguments.

     Reference was made to cases such as Lowdens v. Keaveney [1903] 2 I.R. 82; Hirst and Agu v. Chief Constable of West Yorkshire (1987) 85 Cr.App.R. 143 (under section 137(1) of the Highways Act 1980); Nagy v. Weston [1965] 1 W.L.R. 280; and Hubbard v. Pitt [1976] 1 Q.B. 142, which concern wilful obstruction of the passage along a highway without reasonable excuse. That is a different question from the one raised in the present case and I do not consider that the passages relied on from those judgments directly assist in answering it.