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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Glidewell L.J. also cited the judgment of Lord Denning in Hubbard v. Pitt where a group of persons picketed the plaintiffs' offices by standing on the public footpath in front of the premises holding placards and distributing leaflets and Lord Denning, after quoting the passage from the judgment of Lord Parker in Nagy v. Weston which Glidewell L.J. quoted, continued:

     "In the present case the police evidently thought there was no breach of this law. The presence of these half a dozen people on Saturday morning for three hours was not an unreasonable use of the highway. They did not interfere with the free passage of people to and fro. Of course, if there had been any fear of a breach of the peace, the police could have interfered: see Duncan v. Jones [1936] 1 K.B. 218. But there was nothing of that kind." (My emphasis.)

Glidewell L.J. then stated at p. 150:

     "In Nagy v. Weston itself, the activity being carried on, that is to say the sale of hot dogs in the street, could not in my view be said to be incidental to the right to pass and re-pass along the street. Clearly, the Divisional Court took the view that it was open to the magistrates to consider, as a question of fact, whether the activity was or was not reasonable. On the facts the magistrates had concluded that it was unreasonable (an unreasonable obstruction) but if they had concluded that it was reasonable then it is equally clear that in the view of the Divisional Court the offence would not have been made out.

      "That is the way Tudor Evans J. approached the matter in the recent decision of Cooper v. M.P.C. (supra) and I respectfully agree with him.

      "As counsel pointed out to us in argument, if that is not right, there are a variety of activities which quite commonly go on in the street which may well be the subject of prosecution under section 137. For instance, what is now relatively commonplace, at least in London and large cities, distributing advertising material or free periodicals outside stations, when people are arriving in the morning. Clearly, that is an obstruction; clearly, it is not incidental to passage up and down the street because the distributors are virtually stationary. The question must be: is it a reasonable use of the highway or not? In my judgment that is a question that arises. It may be decided that if the activity grows to an extent that it is unreasonable by reason of the space occupied or the duration of time for which it goes on that an offence would be committed, but it is a matter on the facts for the magistrates, in my view . . .

      "Some activities which commonly go on in the street are covered by statute, for instance, the holding of markets or street trading, and thus they are lawful activities because they are lawfully permitted within the meaning of the section. That is lawful authority. But many are not and the question thus is (to follow Lord Parker's dictum): have the prosecution proved in such cases that the defendant was obstructing the highway without lawful excuse? That question is to be answered by deciding whether the activity in which the defendant was engaged was or was not a reasonable user of the highway."

In his judgment Otton J. referred to the balance between the right to demonstrate and the need for peace and good order and stated at p. 152:

     "On the analysis of the law given by Glidewell L.J. and his suggested approach with which I totally agree, I consider this balance would be properly struck and that the 'freedom of protest on issues of public concern' would be given the recognition it deserves."

     The importance of this decision (which in my opinion was correct) was that, in deciding whether there was a lawful excuse for a technical obstruction of the highway, the Divisional Court rejected the test applied by the Crown Court, which was that a use of the highway which was not incidental to passing along it could not give rise to a lawful excuse, and applied the test whether the use of the highway (even though not incidental to passage) was reasonable or not.

     In my opinion the law would be left in an unsatisfactory state if your Lordships' House held that in this case the peaceful assembly on the highway, which caused no actual obstruction to persons passing along the highway, constituted a criminal trespass under section 14B because the assembly was not incidental to passage along the highway, whilst the law recognised, as held in Hirst and Agu, that such an assembly may be a reasonable use of the highway and in consequence there is a lawful excuse under section 137 of the Highway Act 1980 to a charge of wilfully obstructing the free passage along a highway.

The extension of the public's right to use the highway

     In the judgments in Harrison v. Duke of Rutland the words of Crompton J. in Regina v. Pratt 4 E. & B. 860 were quoted:

     "I take it to be clear law that, if a man use the land over which there is a right of way for any purpose, lawful or unlawful, other than that of passing and repassing, he is a trespasser."

In Pratt's case Erle J. made a similar statement. But in Harrison v. Duke of Rutland Lord Esher M.R. stated the principle in less restrictive terms at p. 146:

     "Therefore, 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. But I must observe that I think that, if the language of Erle J., and of Crompton J., in Reg. v. Pratt (1), 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."

     In their judgments in Hickman v. Maisey A. L. Smith L.J. and Collins L.J. accepted that the right of the public to pass and repass on the highway was subject to some degree of extension. A. L. Smith L.J. stated at p. 755:

     "Many authorities, of which the well-known case of Dovaston v. Payne (1) is one, shew that prima facie the right of the public is merely to pass and repass along the highway; but I quite agree with what Lord Esher M.R. said in Harrison v. Duke of Rutland (2), though I think it is a slight extension of the rule as previously stated, namely, that, though highways are dedicated prima facie for the purpose of passage, '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'; and, 'if a person on a highway does not transgress such reasonable and usual mode of using it,' he will not be a trespasser; but, if he does 'acts other than the reasonable and ordinary user of a highway as such' he will be a trespasser. For instance, if a man, while using a highway for passage, sat down for a time to rest himself by the side of the road, to call that a trespass would be unreasonable. Similarly, to take a case suggested during the argument, if a man took a sketch from the highway, I should say that no reasonable person would treat that as an act of trespass. But 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 race-horses on the plaintiff's land, were within such an ordinary and reasonable user of the highway as I have mentioned."