The case, which contradicts what many people have always viewed as a "right", arose out of the clearing of the first two people charged with "trespassory assembly" under the 1994 Criminal Justice and Public Order Act, and 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, the judges 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, a lecturer in literature studies at the University of the West of England, and Richard Lloyd, a housing assistant, 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 last year, but the convictions were overturned on appeal to the Crown Court, which said the assembly was lawful 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 Director of Public Prosecutions and invited the Crown to pursue the charges again before a differently constituted Crown Court.
Emphasising the impact of the 1994 Act, on which the Labour Party abstained, Lord Justice McCowan said the lower court's judgment "leaves out of account the existence of the order."
Mr Justice Collins said the holding of peaceable meetings, demonstrations or vigils on the highway might be "tolerated" if they did not cause obstructions, "but there is no legal right to pursue them." While this dispute concerned Stonehenge, people could be at risk of prosecution if - without obstructing other members of the public - 20 or more of them congregated outside a fur shop, a school where parents were protesting over discipline, or the offices of a council contemplating building on the green belt. All the police would need to do would be to seek an order under the Act from the local council.
Dr Jones said: "This ruling supports something which is illiberal, undemocratic and wrong. Peaceful protest, protests of all kinds, whether to prevent the closing of a hospital wing or in a trades-union context, are all affected."
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."
The case is likely to reach the European Court of Human Rights. Mr Justice Collins yesterday rejected an argument that the ruling would breach Article 11 of the European Convention on Human Rights, guaranteeing freedom of peaceful assembly.
He insisted that there was still an "ability" to hold a peaceful assembly. But the ruling means that this "ability" will always be in the gift of the police.Reuse content