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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My Lords,

     On 1 June 1995 a number of people were present in the vicinity of Stonehenge. There were tourists and sightseers, and there were also a number of people who were present because it was the tenth anniversary of a disturbance known as "the Battle of the Beanfield" when the police had had to eject persons who had tried to enter the site of Stonehenge.

     About 6.45 p.m. on 1 June the two appellants together with about 19 other persons, constituting a group of more than 20 persons, were on the grass verge between the perimeter fence of Stonehenge and the metal surface of the roadway of the A344. Some of the group were carrying banners with the words "Never Again", "Stonehenge Campaign 10 years of Criminal Injustice" and "Free Stonehenge". The grass verge was about 4 feet 6 inches to 5 feet wide and the group, which was not static but fluid, was moving around on the verge and was spread out over 10 to 15 yards. It is not in dispute that the grass verge is to be considered as part of the public highway.

     In 1994 Parliament amended the Public Order Act 1986 by section 70 of the Criminal Justice and Public Order Act 1994 which inserted sections 14A and section 14B after section 14 in the Act of 1986. The effect of section 14A in relation to the circumstances of the present case can be broadly stated as follows: where a chief officer of police reasonably believes that an assembly of 20 or more persons is intended to be held in any district at a place on land to which the public has only a limited right of access, and that the assembly is likely to conduct itself in such a way as to exceed the limits of the public's right of access and may result in serious disruption to the life of the community or in significant damage to a monument of historical, architectural, archaeological or scientific importance on the land, he may apply to the council of the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or in part of it. On receiving such an application a council in England, with the consent of the Secretary of State, may make such an order.

     On 22 May 1995 Salisbury District Council made an order pursuant to section 14A that the holding of all trespassory assemblies within a radius of four miles from the junction of the A303 and A344 roads adjoining the monument at Stonehenge were prohibited for four days commencing at 2359 hours on 28 May 1995 and terminating at 2359 hours on 1 June 1995.

     Section 14A(5) provides:

     "An order prohibiting the holding of trespassory assemblies operates to prohibit any assembly which--

      (a) is held on land to which the public has no right of access or only a limited right of access, and   (b) takes place in the prohibited circumstances, that is to say, without the permission of the occupier of the land or so as to exceed the limits of any permission of his or the limits of the public's right of access."

     Section 14A(9) provides:

     "'limited', in relation to a right of access by the public to land, means 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;"

     Section 14B(2) provides:

     "A person who takes part in an assembly which he knows is prohibited by an order under section 14A is guilty of an offence."

     The two appellants were charged with an offence under section 14B(2). They were tried before the Salisbury Justices and on 3 October 1995 they were each convicted of that offence. They appealed against their convictions to the Salisbury Crown Court and their appeals were heard by His Honour Judge Maclaren Webster Q.C. and two Justices on 3 and 4 January 1996. At the close of the prosecution case the appellants submitted that there was no case to answer and the Crown Court accepted this submission and allowed the appeals in a fully reasoned judgment setting out its findings and conclusions. The Director of Public Prosecutions appealed by case stated to a Divisional Court of the Queen's Bench Division, constituted by McCowan L. J. and Collins J., which allowed the Director's appeal and ordered that the case be remitted to the Salisbury Crown Court to be reheard by a differently constituted bench.

     In its judgment the Crown Court set out its findings of fact. These included the following at p. 9 of its judgement:

     "At no time was either Appellant or, for that matter any other person in the group of people in the area extending 10-15 yards westward from the Heelstone abusive, obstructive or in any way offensive or violent to the Police or anyone else. None of those to whom Inspector Mackie addressed himself was in the roadway--the A344 itself, they were not obstructing the freedom of movement of others on the verge nor were they causing a public nuisance."

And at p. 15:

     "I pause to remind us that we have found that the assembly of 20 or more people was merely that. It was a presence. It was not, let alone any member of it, let alone either of the appellants, other than present. Neither as a group nor as individuals were any of those twenty, and in particular, of course, the Appellants (whom it must always be remembered we have to consider individually as distinct both from the group and each other) being destructive, violent, disorderly, threatening a breach of the peace or, on the evidence, doing anything other than reasonably using the highway."

     Therefore the issue which arose for determination before the Crown Court and the Divisional Court was whether the entirely peaceful assembly which did not obstruct passage along the highway constituted a trespassory assembly because it was taking place "so as to exceed the limits of . . . the public's right of access" to the highway, the A344.

     The conclusion of the Crown Court was stated as follows at p. 26:

     ". . . we find that everything that was done by the Appellants was done peaceably and in good order. Although Lord Denning in Hubbard was dealing with an interlocutory injunction and Otton J. in Hirst and Agu with obstruction (which, let it be recalled, did not occur in the instant case), we too are of the view that the passage cited from Lord Denning is, to adopt and adapt the words of Otton J., of importance when considering whether Appellants (behaving as we find, on the evidence thus far, these Appellants to have been behaving), have committed a criminal offence of knowingly taking part in a prohibited assembly.