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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     "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."

     Although the use of these Latin words may seem out of date in present circumstances, they serve nevertheless as a valuable reminder of the place which the right to assemble must occupy in the context of the law relating to real property. Easements and public rights to land which are acquired by user or by dedication are limited rights, as against the occupier or owner of the land which is affected by them. They are granted or acquired for a particular purpose only, and they are not to be confused with the use of the land for other purposes. Thus a right of way or passage is entirely different from a right to walk about or a right to remain in one place. The law recognises that a right of way or passage may be acquired by user or by dedication. But it takes a different view of the right to walk about or to remain in one place. These are not rights which the public can acquire by user or by dedication. If rights of this kind can be acquired at all they can be acquired only by express grant. So they cannot be included among the rights of access which the public can enjoy as of right without the consent of the landowner.

     The assembly which was said by the police to have formed on this occasion was undoubtedly a peaceful and non-obstructive one and, as it was on the grass verge of a road which was vested in the statutory highway authority, it may reasonably be said to have been doing no harm to anyone. But the consequences of accepting that anyone who was behaving in this way was exercising the public's right of access to the highway --was doing so as of right and not by mere tolerance--would have implications far beyond the facts of this case. It would affect the position of every private owner of land throughout the country over which there is a public right of way, irrespective of whether this is a made up road or a footpath or bridleway. The right of assembly which Mr. Fitzgerald was seeking to establish was what would be described in the terms of property law as a right to remain. I wish to stress that the purpose for which the appellants were seeking to remain where they had gathered is not material in this context. Any member of the public may use a highway for passage in the exercise of the public right whatever his reason may be for doing so. In the same way, if such a thing as a public right to assemble and remain in one place on the highway were to be recognised, the purpose of those who wished to exercise it would be immaterial. If it was an unlawful purpose it could be stopped on that ground. But if it was lawful there would be nothing to prevent those who wished to exercise it from remaining where they were for however long they wished, whatever their number and whatever their purpose might be in doing so.

     It is not difficult to see that to admit a right in the public in whatever numbers to remain indefinitely in one place on a highway for the purpose of exercising the freedom of the right to assemble could give rise to substantial problems for landowners in their attempts to deal with the activities of demonstrators, squatters and other uninvited visitors. It would amount to a considerable extension of the rights of the public as against those of both public and private landowners which would be difficult for the courts to control by reference to any relevant principle. The margin between what is and what is not a nuisance is an imprecise one, as to which he who wishes to put a stop to it may be in difficulty in obtaining an immediate remedy. The test of reasonable use of the highway as such is consistent with the rule that the public's right of way is essentially a right of passage. It is also consistent with the law as to the kind of user which must be shown in order to show that a public right of way has been constituted over the land of the proprietor. The proposition that the public are entitled to do anything on the highway which amounts in itself to a reasonable user may seem at first sight to be an attractive one. But it seems to me to be tantamount to saying that members of the public are entitled to assemble, occupy and remain anywhere upon a highway in whatever numbers as long as they wish for any reasonable purpose so long as they do not obstruct it. I do not think that there is any basis in the authorities for such a fundamental rearrangement of the respective rights of the public and of those of public and private landowners.

     Mr. Fitzgerald said that, whatever the difficulties might be in regard to the holding of assemblies on footpaths and bridleways over the property of private landowners, there was no good reason why the same view should be applied to highways which were vested in the statutory highway authority. He said that, as highways which are used as roads by the public are now almost all in public ownership and as section 14A had brought the whole issue of trespass into the realm of public law, there should now be a coherent system of public law to deal with assembly cases. His argument was that the approach which the criminal law had taken in obstruction cases showed that the concept of reasonable user was capable of providing the required symmetry.

     I do not need to go into a detailed analysis of the obstruction cases. We were referred to Hirst and Agu v. Chief Constable of West Yorkshire (1987) 85 Cr.App.R. 143, in which the question was considered in the context of the offence which is created by section 137(1) of the Highways Act 1980 where a person without lawful authority or reasonable excuse in any way wilfully obstructs the free passage along a highway. In that context it is necessary to consider whether what was done was in itself reasonable, striking a balance between the right to free speech and to demonstrate on the one hand and the need for peace and good order on the other: per Otton L.J. at p. 151.

     Mr. Fitzgerald said that the common law was capable of development within the concept of reasonable user in order to rationalise what he accepted were two conflicting lines of authority. But I do not think that section 14A requires us to attempt such an exercise. On the contrary, the intention of Parliament as disclosed by the language of that section was to rely upon the existing state of the law relating to trespass as between members of the public and the occupiers of land to which members of the public have no right of access or only a limited right of access. Like it or not, this approach makes the lack of symmetry of which Mr. Fitzgerald complains inevitable. The private law upon which section 14A depends for its application is concerned to regulate the rights of the owners and occupiers of land in regard to the use of their land by the public. Public law, which is concerned with the relationship between the state and its citizens, depends upon entirely different concepts. Furthermore it is a striking feature of the present case that the question whether the law relating to the public's right of access should be rationalised in order to give the public greater freedom in the exercise of that right is being discussed in a case to which no landowner is a party. It seems to me to be contrary to elementary concepts of justice that the rights of landowners as against the public in relation to access to their land should be diminished by a decision of your Lordships' House when nobody who is in a position to defend their interest has yet been heard.

     We were invited to have regard to the European Convention on Human Rights and Fundamental Freedoms both as an aid to statutory interpretation and as a yardstick against which to resolve any uncertainty in the common law or to guide its development. I do not think that there is any need to have resort to the Convention as an aid to statutory interpretation, as there is no ambiguity in the statutory provisions which are relevant to this case. Nor do I think that there is any uncertainty as to the test which must be applied under the common law relating to the use which the public may make of a highway in the exercise of the public's right of access. In Attorney-General v. Guardian Newspapers Ltd (No.2) [1990] 1 A.C. 109, 283G Lord Goff of Chieveley said that he conceived it to be his duty, when he was free to do so, to interpret the law in accordance with the obligations of the Crown under the treaty. Adopting this approach, in Derbyshire County Council v. Times Newspapers Ltd [1992] Q.B. 770, 830B-C Butler-Sloss L.J. said that, where there was an ambiguity in the law or the law was otherwise unclear or so far undeclared by an appellate court, the English court was not only entitled but obliged to consider the implications of the Convention. For the appellants it was contended that the law is unclear because the inconsistency between the private law relating to trespass and the criminal law relating to obstruction in public places had still to be reconciled. For the reasons which I have already given I do not accept that there is such an inconsistency.

     In any event it seems to me that there are clear indications in the Convention that restrictions on the exercise of fundamental rights and freedoms such as the freedom of assembly under Article 11(1) may be justified where this is necessary for the protection of the rights and freedoms of others. This is stated in terms in Article 11(2). Article 1 of the First Protocol states that every natural or legal person is entitled to the peaceful enjoyment of his possessions and that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law. The precise effect of these provisions in regard to the right of a landowner to exclude trespassers from his property was not explored in the course of the hearing before us. But I do not think that it would be right to regard the Convention as providing unqualified support to the argument that the public's right of access should be enlarged so as to enable the public to exercise what Article 11(1) of the Convention describes as "the right to freedom of peaceful assembly" wherever there is a public right of access to a highway. Such an enlargement would be bound to result in loss of the protection of the owners of land which the existing state of the law gives to them. In that sense and to that extent it could be said that they were being deprived of their right to the quiet enjoyment of their possessions contrary to Article 1 of the First Protocol.

     It seems to me therefore that what I can best describe as the horizontal effect of the appellants' argument as to the Convention in regard to the private rights of landowners gives rise to questions of considerable difficulty. I am not persuaded that the balance which is struck in private law between the rights of the public and those of landowners is in need of adjustment in order to enable members of the public to exercise their freedom of assembly. In practice members of the public are allowed to assemble in public places as they wish without objection or hindrance so long as they do not obstruct others and are peaceful. As Lord Goff of Chieveley said in Attorney-General v. Guardian Newspapers Ltd (No. 2) at p. 283, everybody is free to do anything in this country, subject only to the provisions of the law. The law of trespass exists to protect the interests of landowners where such assemblies exceed the limits which they are willing to tolerate. Such provisions as exist in public law, as in the case of section 14A, may be justified on the ground that they have been carefully drafted having regard to the need to protect the public from arbitrary action on the part of the police while at the same time enabling the police to intervene to prevent disorder or crime. I do not think that the Convention requires us to attempt to reform the private law relating to trespass on which section 14A relies in order to mitigate the effects of its application to trespassory assemblies which are held in breach of an order obtained under that section.