Law report: Public have no right of assembly on highway

LAW REPORT v 30 January 1997
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Director of Public Prosecutions v Jones and another; Queen's Bench Divisional Court (Lord Justice McCowan, Mr Justice Collins) 23 January 1997

The holding of a peaceful, non-obstructive assembly on the public highway was not an activity incidental to the public's right of passage along the highway, and it became an offence if done where such an assembly was prohibited by statutory order.

The Queen's Bench Divisional Court allowed the prosecution's appeal by case stated from the decision of Salisbury Crown Court, on 4 January 1996, allowing appeals by Margaret Jones and Richard Lloyd against their conviction by the Salisbury Justices on 3 October 1995 for offences of trespassery assembly under section 14B(2) of the Public Order Act 1986 (as amended by sections 70 and 71 of the Criminal Justice and Public Order Act 1994).

Under section 14A(1) of the Act, where a chief police officer believed an assembly was to be held on land to which the public had no right or only a limited right of access, and without the occupier's permission or in excess of that limited right of access, and where the assembly might result in significant damage to land, or a building or monument on it, of historical, architectural, archeological or scientific importance, he might apply to the local authority for an order prohibiting for a specified period the holding of trespassory assemblies in the area. By section 14A(9) "assembly" was defined as "an assembly of 20 or more persons".

Under section 14B(2) a person who took part in an assembly which he knew was prohibited by an order under section 14A was guilty of an offence.

On 22 May 1995 an order was made under section 14A, prohibiting the holding of trespassory assemblies within a four-mile radius of Stonehenge from 29 May to 1 June 1995. On 1 June, the defendants were among a group of people gathered on a grass verge on the road side of the perimeter fence to the west of Heelstone at Stonehenge. Three police officers independently counted 21 persons in the group. The police took the view this was a trespassory assembly and moved to disperse it.

The defendant Margaret Jones protested there were only 19 in the group. They refused to disperse and the defendants and one other were arrested. The defendants argued they had no case to answer because (a) the land they had been on was part of the public highway, and (b) the group was peaceful, did not create an obstruction and was not a public nuisance.

The Crown Court held that there was no evidence the group was exceeding the public's limited right of access to the highway. The prosecution appealed.

Michael Butt (CPS) for the prosecution; Keir Starmer (Douglas & Partners, Bristol) for the defendants.

Lord Justice McCowan said the view, accepted by the Crown Court, that any assembly on the highway was lawful as long as it was peaceful and non- obstructive of the highway, was mistaken. It left out of account the the order made under section 14A and its operation to prohibit the holding of any assembly which occurred to restrict the limited right of access to the highway by the public.

Accordingly, where an order under section 14A was in force, a peaceful assembly of 20 or more persons which did not obstruct the highway nevertheless exceeded the public's limited right of access to the highway so as to constitute a trespassory assembly.

It was argued that the public's right of passage along the highway must include anything incidental thereto. But that left the question of what was incidental to passage. Passing the time of day with an acquintance might qualify, but his Lordship would reject the suggestion that the holding of an assembly of 21 persons could possibly do so.

In order to prove an offence under section 14B(2), the prosecution need prove no more than that the assembly consisted of 20 or more persons and that the person accused was taking part in that assembly knowing it to be prohibited by an order under section 14A.