|Judgment - Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division) continued|
In Hickman v. Maisey  1 Q.B. 752, 755 A.L.Smith L.J. said that he agreed with what Lord Esher M.R. said in Harrison v. Duke of Rutland, although he thought that it was a slight extension of the rule as previously stated which showed that the right of the public was merely to pass and repass along the highway. At p. 756 he gave, as examples of acts which no reasonable person would regard as trespassing, that of a man who sat down by the road for a time to rest himself or who took a sketch from the highway -of which the modern equivalent might be the tourist who pauses to take a photograph. But it is important to notice that the distinction which he drew was between acts which were an ordinary and reasonable use of the highway as such, which were permissible, and acts which were not within that description, which were not. Collins L.J. at p. 757-758 put the matter in this way:
While therefore Lord Esher M.R. may be said to have extended the previous statements of the law, the extension which he was willing to accept did not depart from the essential principle. The test of what was ordinary and reasonable is not to be applied in the abstract, as one might legitimately do in order to discover whether the activity was in itself lawful. It has to be applied in the context of the exercise of the right of passage, which is the only right which members of the public are entitled to exercise when "using the highway as a highway" (emphasis added): see his words at  1 Q.B. 142, 146. So the question remains whether what is being done is an ordinary and reasonable thing for a person to do while using the highway as such in the exercise of that right.
Some of the cases indicate a disinclination on the part of the judges to favour resort to the courts for a remedy in cases where the trespass was so trivial or technical that no reasonable person would have objected to it: Llandudno Urban District Council v. Woods  2 Ch. 705, where the objection was to a clergyman holding services and delivering addresses on the seashore; Fielden v. Cox (1906) 22 T.L.R. 411, where the defendants had set up appliances on the highway for the purpose of catching moths. But the fact that some activities on the highway are or ought to be tolerated does not mean that they are being done there in the exercise of the public's right of access to it. It is the extent of the right of access, not the question whether the activity in question ought to be tolerated, which is in issue in the present case. For the purposes of section 14A(5) the question is not whether the assembly is of a kind which a reasonable occupier of the land would tolerate, but whether it exceeds the limits of any permission of his or the limits of the public's right of access.
We were referred to a number of later authorities, but these seem to me to be illustrations of the application of the law as settled by these previous cases and not to indicate that the law is in need of any further extension or relaxation as to the test to be applied. For example, in Randall v. Tarrant  1 W.L.R. 255, 259 Lord Evershed M.R. said:
These observations are consistent with the opinion which the Lord President (Dunedin) expressed in M
He went on to say that, although the streets are for passage and that passage is paramount to everything else, this does not necessarily mean that anyone is doing an illegal act if he is not at the moment passing along--the whole question being one of degree. As for the right of free speech, he said that it undoubtedly exists but that:
I think therefore that the law as stated by Lord Esher M.R. in Harrison v. Duke of Rutland can be taken to be the law as it must be applied between members of the public who seek to exercise the public's right of way on a highway and the occupier of the land which has been dedicated to that right. The question is one of degree. But the principle which must be applied is that the highway is for passage, and such other uses as may be made of it as of right must be capable of being recognised as a reasonable and usual mode of using the highway as such.
This brings me to the wider questions which were raised in the course of the argument. Mr. Fitzgerald's submission was that the assembly in this case was a reasonable use of the highway because it was an entirely peaceful one and because it was not obstructing anybody. His argument was that this was a reasonable use of the highway, not because it was incidental or accessory to the activity of passing and repassing along it, but because as a purpose and end in itself it was reasonable. He said that the test which had been stated by Lord Esher M.R. was capable of development to bring it into line with what society in the late 20th century would consider to be reasonable. In order to strike a fair balance between the rights to freedom of expression and of assembly and the rights of those who wished to pass and repass on the highway, an assembly which was causing an obstruction could not be considered to be reasonable. But an assembly which was not obstructive and was otherwise lawful was a reasonable and usual use of the highway simply because the activity was in itself a reasonable one. So it should not be regarded as a trespassory assembly within the meaning of section 14A.
I do not think that this broad argument can be reconciled with Lord Esher M.R.'s statement of the law or with principle. In my opinion the distinction between the use of a highway for passage and its use as a place of assembly as an end in itself is a fundamental one, although the question is ultimately one of fact. The purpose of those who are said to have formed an assembly may be to remain in the place where they have gathered for a short time only before continuing to pass along the road, in which case it may be inferred that they are making reasonable use of the highway as a highway. Or it may be that their purpose to remain there indefinitely, in which case the only inference which can be drawn is that they are using the highway as a place of assembly. This point that the right is to pass or repass, not to remain, is perhaps best illustrated by using the language which Farwell J. adopted in Attorney-General v. Antrobus  2 Ch. 188 when he was asking himself whether the public could acquire by user the right to visit a public monument.
In that case also, as it happens, Stonehenge was the subject of the controversy--although in rather different circumstances, as the monument was then in private ownership. The owner of the land had enclosed the monument by fencing on the view that this was necessary for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it. The action failed, because there could be no public right of way to the monument acquired by mere user or by the fact that the public had been in the habit of visiting it. At p. 198 Farwell J. said that the jus spatiandi--the right to walk about or to promenade--was not known to our law as a possible subject-matter of prescription. At p. 206 he said that the public had no jus spatiandi or manendi--the right to stay or remain--within the circle. In In re Ellenborough Park  Ch. 131, in which it was held that the jus spatiandi, in regard to a right to use a pleasure park, could be acquired by grant as an easement, Lord Evershed M.R. observed at p. 163 that Farwell J.'s rejection of it may have been derived in part from its similar rejection by the law of Rome, and that there was no other judicial authority for adopting the Roman view in this respect into English law. But as to the matter of public right he went on at p. 184 to say this: