|Judgment - Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division) continued|
For these reasons I would answer the certified question in the affirmative and dismiss the appeal.
The appellants were convicted of having taken part in an assembly which they knew was prohibited under section 14 of the Public Order Act 1986. The question is whether the assembly was a prohibited one. Section 14A(5) explains what is meant by a prohibited, or a "trespassory," assembly. The relevant words for the purposes of the present case are that the assembly "(a) is held on land to which the public has. . . only a limited right of access, and (b) takes place in the prohibited circumstances. . . ."
There is no doubt but that the assembly in the present case took place on a highway and that a highway is land to which the public had a limited right of access. So one has next to consider the prohibited circumstances. Those circumstances are defined in section 14A(5)(b). The critical qualification here claimed is that the assembly so took place "as to exceed . . . the limits of the public's right of access." So the question comes to be what is the extent of the public's right of access. That is a quite general question which will apply universally, whether an individual member of the public or a group of people is involved. It will also be applicable to any other kind of public road, subject to any particular limitations which may restrict the use of such a road, whenever or however imposed.
The Act gives a little further explanation. Section 14A(9) defines "limited" in relation to a right of access by the public to land as meaning that "their use of it is restricted to use for a particular purpose (as in the case of a highway or road) or is subject to other restrictions." So one has to consider what was the particular purpose for which Parliament considered the use of a highway was restricted.
The fundamental purpose for which roads have always been accepted to be used is the purpose of travel, that is to say, passing and re-passing along it. But it has also been recognised that the use comprises more than the mere movement of persons or vehicles along the highway. The right to use a highway includes the doing of certain other things subsidiary to the user for passage. It is within the scope of the right that the traveller may stop for a while at some point along the way. If he wishes to refresh himself, or if there is some particular object which he wishes to view from that point, or if there is some particular association with the place which he wishes to keep alive, his presence on the road for that purpose is within the scope of the acceptable user of the road. The view was expressed by A. L. Smith L.J., in Hickman v. Maisey  1 Q.B. 752, 756, that if a man took a sketch from the highway no reasonable person would treat that as an act of trespass. So as it seems to me the particular purpose for which a highway may be used within the scope of the public's right of access includes a variety of activities, whether or not involving movement, which are consistent with what people reasonably and customarily do on a highway. In Harrison v. Duke of Rutland  1 Q.B. 142, 146 Lord Esher M.R. defined trespass in terms of a person being on the highway "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." But what is reasonable or usual may develop and change from one period of history to another. That was recognised by Collins L.J. where in Hickman v. Maisey  1 Q.B. 752, 758 he said:
On the other hand the purpose for which the road is used must be for ordinary and lawful uses of a roadway and not for some ulterior purpose for which the road was not intended to be used. Thus in the case of Hickman v. Maisey to which I have already referred, it was held to be a trespass for someone to use the road as a vantage point for observing the performance of racehorses undergoing trial. To use the language of Collins L.J. (at p. 758) that was a use of the highway "in a manner which is altogether outside the purpose for which it was dedicated." So also in the earlier case of Harrison v. Duke of Rutland (1893) Q.B.D. 142 it was held to be a trespass for a person to use the road for the purpose of disrupting the adjoining landowner's enjoyment of his sporting rights.
But it must immediately be noticed that the public's right is fenced with limitations affecting both the extent and the nature of the user. So far as the extent is concerned the user may not extend beyond the physical limits of the highway. That may often include the verges. It may also include a lay-by. Moreover, the law does not recognise any jus spatiendi which would entitle a member of the public simply to wander about the road, far less beyond its limits, at will. Further, the public have no jus manendi on a highway, so that any stopping and standing must be reasonably limited in time. While the right may extend to a picnic on the verge, it would not extend to camping there.
So far as the manner of the exercise of the right is concerned, any use of the highway must not be so conducted as to interfere unreasonably with the lawful use by other members of the public for passage along it. The fundamental element in the right is the use of the highway for undisturbed travel. Certain forms of behaviour may of course constitute criminal actings in themselves, such as a breach of the peace. But the necessity also is that travel by the public should not be obstructed. The use of the highway for passage is reflected in all the limitations, whether on extent, purpose or manner. While the right to use the highway comprises activities within those limits, those activities are subsidiary to the use for passage, and they must be not only usual and reasonable but consistent with that use even if they are not strictly ancillary to it. As was pointed out in M
In the generality there is no doubt but that there is a public right of assembly. But there are restrictions on the exercise of that right in the public interest. There are limitations at common law and there are express limitations laid down in Article 11 of the Convention on Human Rights. I would not be prepared to affirm as a matter of generality that there is a right of assembly on any place on a highway at any time and in any event I am not persuaded that the present case has to be decided by reference to public rights of assembly. If a group of people stand in the street to sing hymns or Christmas carols they are in my view using the street within the legitimate scope of the public right of access to it, provided of course that they do so for a reasonable period and without any unreasonable obstruction to traffic. If there are shops in the street and people gather to stand and view a shop window, or form a queue to enter the shop, that is within the normal and reasonable use which is matter of public right. A road may properly be used for the purposes of a procession. It would still be a perfectly proper use of the road if the procession was intended to serve some particular purpose, such as commemorating some particular event or achievement. And if an individual may properly stop at a point on the road for any lawful purpose, so too should a group of people be entitled to do so. All such activities seem to me to be subsidiary to the use for passage. So I have no difficulty in holding that in principle a gathering of people at the side of a highway within the limits of the restraints which I have noted may be within the scope of the public's right of access to the highway.
In my view the argument for the appellants, and indeed the reasoning of the Crown Court, went further than it needed to go in suggesting that any reasonable use of the highway, provided that it was peaceful and not obstructive, was lawful, and so a matter of public right. Such an approach opens a door of uncertain dimensions into an ill-defined area of uses which might erode the basic predominance of the essential use of a highway as a highway. I do not consider that by using the language which it used Parliament intended to include some distinct right in addition to the right to use the road for the purpose of passage.
I am not persuaded that in any case where there is a peaceful non-obstructive assembly it will necessarily exceed the public's right of access to the highway. The question then is, as in this kind of case it may often turn out to be, whether on the facts here the limit was passed and the exceeding of it established. The test then is not one which can be defined in general terms but has to depend upon the circumstances as a matter of degree. It requires a careful assessment of the nature and extent of the activity in question. If the purpose of the activity becomes the predominant purpose of the occupation of the highway, or if the occupation becomes more than reasonably transitional in terms of either time or space, then it may come to exceed the right to use the highway.
The only point which has caused me some hesitation in the circumstances of the present case is the evident determination by the two appellants to remain where they were. That does seem to look as if they were intending to go beyond their right and to stay longer than would constitute a reasonable period. But I find it far from clear that there was an assembly of twenty or more persons who were so determined and in light of the fluidity in the composition of the grouping and in the consistency of its component individuals I consider that the Crown Court reached the correct conclusion.
I do not find it possible to return any general answer to the certified question. The matter is essentially one to be judged in light of the particular facts of the case. But I am prepared to hold that a peaceful assembly which does not obstruct the highway does not necessarily constitute a trespassory assembly so as to constitute the circumstances for an offence where an order under section 14A(2) is in force. I would allow the appeal.