Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division), (1999)

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Director of Public Prosecutions v. Jones and Another (On Appeal from a Divisional Court of the Queen's Bench Division), (1999)

HOUSE OF LORDS

The Lord Chancellor

Lord Slynn of Hadley

Lord Hope of Craighead

Lord Clyde

Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

DIRECTOR OF PUBLIC PROSECUTIONS

(RESPONDENT)

JONES AND ANOTHER

(APPELLANTS)

(ON APPEAL FROM A DIVISIONAL COURT

OF THE QUEEN'S BENCH DIVISION)

ON 4 MARCH 1999

LORD IRVINE OF LAIRG L.C.

My Lords,

&nbspMy Lords, this appeal raises an issue of fundamental constitutional importance: what are the limits of the public's rights of access to the public highway? Are these rights so restricted that they preclude in all circumstances any right of peaceful assembly on the public highway?

&nbspOn 1 June, 1995, at about 6.40 p.m. Police Inspector Mackie counted 21 people on the roadside verge of the southern side of the A344, adjacent to the perimeter fence of the Monument at Stonehenge. Some were bearing banners with the legends, "Never Again," "Stonehenge Campaign 10 years of Criminal Injustice" and "Free Stonehenge." He concluded that they constituted a "trespassory assembly" and told them so. When asked to move off, many did, but some, including the Appellants, Mr. Lloyd and Dr. Jones, were determined to remain and put their rights to the test. They were arrested for taking part in a "trespassory assembly" and convicted by the Salisbury Justices on 3 October, 1995. Their appeals to the Salisbury Crown Court, however, succeeded. The court held that neither of the Appellants, nor any member of their group, was "being destructive, violent, disorderly, threatening a breach of the peace or, on the evidence, doing anything other than reasonably using the highway."

&nbspAbout an hour before, a different group of people had scaled the fence of the Monument and entered it. They had been successfully escorted away by police officers without any violence or arrests; but there were no grounds for apprehension that any of the group of which Mr. Lloyd and Dr. Jones were members proposed an incursion into the area of the Monument.

&nbspAn appeal by way of case stated to the Divisional Court followed: Director of Public Prosecutions v. Jones [1997] 2 All E.R. 119. It was assumed for the purposes of that appeal (per McCowan L.J. at p. 122D) that:

(a) the grass verge constituted part of the public highway; and

(b) the group was peaceful, did not create an obstruction and did not constitute or cause a public nuisance.

&nbspThe defendants had been charged with "trespassory assembly" under section 14B(2) of the Public Order Act 1986 ("the Act of 1986"). Section 14A(1) of the Act of 1986 permits a chief officer of police to apply, in certain circumstances, to the local council for an order prohibiting for a specified period "trespassory assemblies" within a specified area. An order of that kind may be obtained only in respect of land "to which the public has no right of access or only a limited right of access"; had been obtained in this case; and covered the area in which the defendants, with others, had assembled.

Section 14A(5) of the Act of 1986 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 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." (Emphasis added.)

Section 14A(5) thus indicates that a "trespassory assembly" must be "trespassory" in the sense that it must involve the commission of the tort of trespass by those taking part, either by entering land to which they have no right of access, or by exceeding a limited right of access to land.

Section 14A(9) of the Act of 1986 provides, inter alia:

"In this section . . . '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) . . ."

&nbspThe offence with which the defendants were charged is set out in section 14B(2) of the Act of 1986:

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

&nbspThe Divisional Court reinstated the defendants' convictions. It held that a peaceful assembly on the public highway exceeds the limits of the public's right of access (within the meaning of section 14A(5)). The "particular purpose" mentioned in the definition of "limited" in section 14A(9) was held not to include the use of the highway for peaceful assembly.

&nbspThe central issue in the case thus turns on two interrelated questions: (i) what are the "limits" of the public's right of access to the public highway at common law? and (ii) what is the "particular purpose" for which the public has a right to use the public highway?

The basis of ...

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