The House of Lords (Lord Slynn and Lord Hope dissenting) allowed the appellants' appeals against their convictions of taking part in a trespassory assembly.
The appellants were among 21 people on the roadside verge of the A344, adjacent to the perimeter fence of the monument at Stonehenge, some of whom had banners bearing such legends as "Free Stonehenge". They were arrested for taking part in a trespassory assembly contrary to section 14B(2) of the Public Order Act 1986, in breach of an order made under section 14A(5) of the 1986 Act. Section 14A(5) provided:
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.
The appellants were convicted in the magistrates' court, but successfully appealed against conviction in the Crown Court. The prosecution appealed to the Divisional Court by way of case stated, and the convictions were reinstated. The court held that a peaceful assembly on the public highway exceeded the limits of the public's right of access within the meaning of section 14A(5) of the 1986 Act.
Edward Fitzgerald QC and Kier Starmer (Liberty, and Douglas & Partners) for the appellants; Victor Temple QC and Michael Butt (Crown Prosecution Service) for the respondent.
Lord Irvine LC said that it had been assumed for the purposes of the hearing in the Divisional Court that the grass verge constituted part of the public highway, and that the group was peaceful and did not constitute an obstruction or a public nuisance.
The central issue in the case turned on two interrelated questions: what were the "limits" of the public's right of access to the public highway at common law; and what was the particular purpose for which the public had a right to use the public highway.
The basis of the Divisional Court's decision, in broad terms, was the proposition that the public's right of access to the public highway was limited to the right to pass and repass, and to do anything incidental or ancillary to that right. Peaceful assembly was not incidental to the right to pass and repass.
However, the law today should recognise that the public highway was a public place, on which all manner of reasonable activities might go on. 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, therefore, there would be a public right of peaceful assembly on the public highway.
Lord Clyde said that a peaceful assembly which did not obstruct the highway did not necessarily constitute a trespassory assembly so as to constitute an offence where an order under section 14A(5) of the 1986 Act was in force.
If the purpose of the activity in question became the predominant purpose of the occupation of the highway, or if the occupation became more than reasonably transitional in terms of either time or space, then it might come to exceed the right to use the highway.
Lord Hutton said that a peaceful and non-obstructive public assembly on a highway could, but would not always, constitute a reasonable user of the highway, and thus not be a trespass.