"We were only a Peaceful, Non-obstructive assembly"
Demonstration not trespassory assembly.
DPP v Jones and AnotherHouse of Lords
(1999) The Times, 5 March.
In Director of Public Prosecutions v Jones and Another (1997) The Times, January 27 the Queen's Bench Divisional Court held that Jones & Lloyd had no right to assemble on the highway. This decision was reported in Police Journal at Volume LXX, number 3 July/September 1997, page, 274. The House of Lords have allowed their Appeal.
The Queen's Bench Decision.
There was no right in law for members of the public to hold a peaceful, non-obstructive assembly on the public highway.
The Court so held when allowing an appeal brought by the prosecution by way of case stated from Salisbury Crown Court which had granted an appeal by Jones and Lloyd from their conviction by Salisbury Justices of trespassory assembly contrary to section 14B(2) of the Public Order Act 1986, as inserted by sections 70 and 71 of the Criminal Justice and Public Order Act 1994.
Dr Margaret Jones, and Richard Lloyd, were the first people charged with the offence after they were arrested during a peaceful demonstration at Stonehenge. They took part in the demonstration even though an order was in force banning assemblies of 20 people or more.
They were found guilty at Salisbury Magistrates' Court and Dr. Jones was given a conditional discharge and ordered to pay £100 costs. Mr Lloyd was ordered to pay £300 in fines and costs. The convictions were overturned on appeal to Salisbury Crown Court, where it was ruled that there was no case to answer.
This ruling gave Michael Howard, the Home Secretary, legal backing for the new criminal offence of "trespassory assembly", which was aimed at curbing protests on public roads.
Two views contrary to the Divisional Court's ruling given at the time were:-
1. Dr. Jones, who is reported to have said the ruling was bad for democracy. "The judgment denies any right to assemble freely in a public place if the police seek and obtain a banning order from a local authority under the new Act on the grounds that there is danger of disruption to the life of the community. Peaceful protest, protests of all kinds, whether to prevent the closing of a hospital wing or in a trade union context, are all affected."
2. John Wadham, Director of the civil rights pressure group Liberty, said: "A peaceful, non-obstructive gathering is a reasonable use of a public highway. To say that it is a form of trespass seems extraordinary. It must be one of the more bizarre consequences of the 1994 Criminal Justice and Public Order Act."
The House of Lords Decision.
Taken from the speech of the Lord Chancellor, with whom two Law Lords dissented.
An order had been made by the district council under section 14A(2) of the 1986 Act prohibiting trespassory assemblies in the Stonehenge area during the period in question.
On the evening of June 1, 1995 a police inspector had counted 21 people on the roadside verge adjacent to the perimeter fence of the monument. Some had borne banners with legends such as "Free Stonehenge". He had told them that they constituted a trespassory assembly and asked them to move off. Some, including Jones & Lloyd, had remained and been arrested.
The crown court had held that none of the group had been "destructive, violent, disorderly, threatening a breach of the peace or, on the evidence, doing anything other than reasonably using the highway".
It had been assumed for the purposes of the appeal to the Divisional Court that the group had not created an obstruction and not constituted or caused a public nuisance.
Section 14A(5) of the 1986 Act prohibited, as a trespassory assembly, an assembly that took place "so as to exceed ... the limits of the public's rights of access".
Section 14A(9) defined a "limited" right of access as meaning that the public's use of it was "restricted to use for a particular purpose (as in the case of a highway or road)..."
The central issue thus turned on the interrelated questions (i) what were the "limits" of the public's right of access to the public highway at common law; and (ii) what was the "particular purpose" for which the public had a right to use the highway.
In broad terms the basis of the Divisional Court's decision was the proposition that the public's right of access to the highway was limited to the right to pass and repass and to do anything incidental or ancillary to that right. Peaceful assembly was not so incidental.
That was founded on authorities including Harrison v Duke of Rutland [1893] 1 QB 142 and Hickman v Maisey [1900] 1 QB 752. The question was whether the law today should recognise that the public highway was a public place on which all manner of reasonable activities might go on.
In His Lordship's opinion it should. Provided those activities were reasonable, did not involve the commission of a public or private nuisance and did not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass. Subject to those qualifications, there would be a right of peaceful assembly on the highway.
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 the public might enjoy for any reasonable purpose. It was for the magistrates in every case to decide as a matter of fact and degree whether the user had been reasonable and not inconsistent with the right to pass and repass.
Two Dissenting Judgments.
LORD SLYNN, dissenting, said that on existing authority the law was clear: the right of the public on the highway was restricted to passage and reasonable incidental uses associated with passage.
Jones' & Lloyd's argument in effect involved giving the public the right to wander over or stay on land for such a period and in such numbers as they chose so long as they were peaceable, not obstructive and not committing a nuisance.
That went far beyond anything that could be described as incidental or ancillary to the use of a highway as such for the purposes of passage, nor did such an extensive use constitute a reasonable, normal or usual use of the highway as a highway.
LORD HOPE, dissenting, said that the consequences of accepting that anyone who was behaving peacefully and non-obstructively and doing no harm to anyone was exercising the public's right of access to the highway, as a matter of right and not by mere tolerance, would have implications far beyond the facts of the present case.
It would affect the position of every private owner of land throughout the country over which there was a public right of way, whether a made-up road or a footpath or a bridleway.
It seemed to his Lordship to be contrary to elementary concepts of justice that the rights of landowners as against the public in relation to access to their land should be diminished by a decision of the House of Lords when nobody who was in a position to defend their interest had yet been heard.
His Lordship was not persuaded that the balance that was struck in private law between the rights of the public and those of landowners was in need of adjustment to enable members of the public to exercise their freedom of assembly.
In practice, they were allowed to assemble in public places as they wished without objection or hindrance so long as they did not obstruct others and were peaceful.
The Decision
A peaceful, non-obstructive assembly of 21 persons on the verge of the A344 at Stonehenge, found by the trial court to have been a reasonable use of the highway, had not been a trespassory assembly within sections 14A and 14B(2) of the Public Order Act 1986, as inserted by section 70 of the Criminal Justice and Public Order Act 1994.
The House of Lords (Lord Slynn and Lord Hope dissenting) allowed an appeal by Jones and Lloyd from the Queen's Bench Divisional Court, The Times January 27, 1997; [1998] QB 563, which had allowed an appeal by the DPP by case stated from Crown Court. The crown court had allowed the defendants' appeal against their conviction by Justices of trespassory assembly contrary to section 14B(2) of the 1986 Act.
Comment
It should be noted that like many important decisions this is a 3 to 2 majority finding, it would seem that the views expressed by some have prevailed.
At the time of the Divisional Court's decision Newspapers ran such headlines as, "Judges end the right to a peaceful rally". If that were the case then the Lords have restored it.
It seemed that according to that decision there is no legal right to hold peaceful, non-obstructive demonstrations on the highway, and the police were entitled to use new public-order powers to stop them.
This contradicted what many people had always viewed as a "right", and arose out of the clearing of the first two people charged with "trespassory assembly" under the 1994 Criminal Justice and Public Order Act, which was the first test of whether the police could use their new powers to clamp down on peaceful protests.
Giving backing to the new offence at the time, the Divisional Court ruled that "any" assembly of at least 20 people would fall foul of it, however peaceable and non- obstructive and whether or not it threatened public order.
Margaret Jones, and Richard Lloyd, had taken part in a peaceful roadside demonstration alongside the Stonehenge perimeter fence while an order under the Act, banning an assembly of 20 or more people, was in force.
They were found guilty by Salisbury magistrates, but the convictions were overturned fully because it was peaceful and did not obstruct the highway.
That view was decisively rejected by Lord Justice McCowan and Mr Justice Collins, who upheld an appeal by the DPP.
At that time, Liberty, the civil-rights pressure group, called for a Bill of Rights to defend the freedom to demonstrate. John Wadham, the director, said: "A peaceful, non-obstructive gathering is a reasonable use of a public highway. To say that it is a form of trespass seems extraordinary."