Appellants taking part in peaceful non-obstructive assembly on highway – Highway subject to order made under section 14A of the Public Order Act 1986 – Appellants charged with trespassory assembly contrary to section 14A(5) – Whether appellants’ actions exceeding limits of public’s rights of access to highway – Divisional Court reinstating conviction – Appeal allowed
On 1 June 1995 a police inspector counted 21 people on a roadside verge, adjacent to the perimeter fence of the Monument at Stonehenge. The area was subject to an order prohibiting “trespasser assemblies”, granted by the local council under section 14A of the Public Order Act 1986. Section 14(A)5 of the Act provided that “An order prohibiting the holding of trespasser assemblies operates to prohibit any assembly which… takes place… so as to exceed… the limits of the public’s rights of access.” Section 14A(9) provided inter alia, “In this section… ‘limited’, in relation to a right of access by the public land, means that their use of it is restricted to use for a particular purpose (as in the case of a highway or road)…”.
The police inspector concluded that the people constituted a “trespassory assembly” and told them to vacate the land. However, the appellants remained. They were duly arrested and charged with taking part in a “trespassory assembly” under section 14(B)(2) of the Act. They were subsequently convicted by the justices. The Crown Court allowed the appellants’ appeal, finding that neither appellants nor any member of their group were doing anything other than reasonably using the highway. The Divisional Court reinstated the appellants’ convictions, holding that the “particular purpose” mentioned in the definition of “limited” in section 14A(9) was the right to pass and repass and to do anything incidental or ancillary to that right, which did not include the use of the highway for peaceful assembly. Accordingly, it concluded that a peaceful assembly on the public highway exceeded the limits of the public’s rights of access within the meaning of section 14A(5), and was therefore trespassory assembly (see [1997] 2 All ER 119). The Court of Appeal considered what were the “limits” of the public’s right of access to the highway at common law and what was the “particular purpose” for which the public had a right to use the public highway.
Held: The appeal was allowed by a majority.
Per The Lord Chancellor
1. The law recognised that a public highway was a public place on which all manner of reasonable activities might go on. Those activities were to be reasonable, were not to involve the commission of a public or private nuisance and were not to amount to an obstruction of the highway, unreasonably impeding the primary right of the general public to pass and repass. However, subject to those qualifications, there was a right of peaceful assembly on the highway.
2. To limit lawful use of the highway to that which was literally “incidental or ancillary” to the right of passage would be to place an unrealistic and unwarranted restriction on commonplace day-to-day activities. The public highway was a public place that might be enjoyed for any reasonable purpose. The magistrates had to decide as a matter of fact and degree whether the use had been reasonable and not inconsistent with the right to pass and repass.
3. There was no basis for distinguishing highways on publicly owned and privately owned land. Any fears that the rights of private landowners might be prejudiced by the public’s right of use of the highway were unfounded. The law of trespass would continue to protect private landowners against unreasonably large, unreasonably prolonged or unreasonably obstructive assemblies upon those highways.
Edward Fitzgerald QC, Keir Starmer and Anthony Hudson (instructed by Liberty and Douglas & Co, of Bristol) appeared for the appellants; Victor Temple QC and Michael Butt (instructed by the solicitorCrown Prosecution Service) appeared for the respondent.
Thomas Elliott, barrister
