England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE McCOWAN: This is an appeal by way of Case Stated from a decision of the Salisbury Crown Court (Judge Webster Q.C. and Justices) on 4th January 1996 allowing appeals by Margaret Jones and Richard Lloyd against their convictions by the Salisbury Justices on 3rd October 1995 of offences of Trespassory 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.

2. By Section 14A as amended:

3. According to the Case Stated the Respondents called evidence before the Crown Court to prove the following.

4. An order under Section 14(2) prohibiting the holding of trespassory assemblies within a four mile radius of Stonehenge had been made on the 22nd May 1995, in force for the period covering the 29th May to the 1st June 1995 inclusive.

5. On the 1st June 1995 on a grass verge on the road side (A344) of the perimeter fence to the west of the Heelstone at Stonehenge some banners were draped over the perimeter fence and some people were playing music.

6. At 1845 hours the police judged that there were in excess of 20 persons in a group by the Heelstone, strung out along the fence for a distance of some 20-30 yards. Three officers each independently counted 21 persons in the group.

7. The police took the view that this was a trespassory assembly, and moved to disperse it. The Inspector in charge informed the group that the assembly was prohibited under the Order and invited it to disperse. Officers moved among the group handing out copies of the Order. The appellant Margaret Jones protested that there were only 19 persons in the group. They refused to disperse and the appellants and one other person were arrested.

8. It was submitted on the part of the appellants that there was no case to answer and for the purpose of that argument the following matters were agreed between the parties:

9. The Court took the view that the public's right of access to land forming part of the highway is limited as defined in Section 14A(9) and that the question of whether such limit had been exceeded in the circumstances of this case was at the heart of the dispute. For the prosecution it was contended that even if there was a right of assembly on the highway, "the particular purpose (as in the case of a highway or road)" mentioned in the definition of "limited" in Section 14A(9) did not include the right of peaceful assembly where an Order under Section 14(a)(2) was in force.

10. The Court found that there was no evidence that the group was exceeding the public's limited right of access to the highway and accordingly upheld the submission of no case to answer, allowed the appeals and quashed the convictions.

11. The Crown Court stated that the questions for the opinion of the High Court are:

12. This Court was referred to certain authorities. In Harrison v. Duke of Rutland [1893] 1 QB 142 the defendant was the owner of a grouse moor crossed by a highway, the soil of which was vested in him. On the occasion of a grouse drive upon this moor, the plaintiff went upon the highway, not for the purpose of using it as a highway, but solely for the purpose of using it to interfere with the defendant's enjoyment of his right of shooting, by preventing the grouse from flying towards the butts occupied by the shooters. The defendant's keepers having forcibly prevented the plaintiff from such interference, he brought an action for assault against the defendant. It was held that inasmuch as the plaintiff was upon a highway for purposes other than its use as a highway, he was a trespasser. Lord Esher M.R. said at page 146:

13. In the 17th Edition of Clerk and Lindsell on "The Law of Tort" at page 861 the matter is thus put: The right of the public in respect of a highway is limited to the use of it for the purpose of passing and repassing and for such other reasonable purposes as it is usual to use the highway".

14. Professor Goodhart wrote in the Cambridge Law Journal in 1937 on the subject of public meetings on the highway:

15. Counsel for the respondent sought to rely on the more recent case of Hirst and Agu v Chief Constable of West Yorkshire (1987) 85C A.R. 143 where animal rights supporters who made a demonstration outside a furrier's shop had been found guilty by Justices under Section 137(1) of the Highways Act 1980 of wilful obstructing free passage along a highway without lawful authority or excuse. The Divisional Court held that for there to be a lawful excuse the activity must be inherently lawful; if it is not, the question of reasonableness does not arise.

16. In the present case counsel for the respondent, Mr Starmer, argued as he did before the Crown Court that any assembly on the highway is lawful as long as it is peaceful and non-obstructive of the highway. This view appears to have been accepted by the Crown Court. In my judgment, however, it is mistaken. It leaves out of account the existence of the Order made under Section 14A and its operation to prohibit the holding of any assembly which occurs to restrict the limited right of access to the highway by the public. I would accordingly answer the first question posed by the Crown Court for this Court in the affirmative.

17. Counsel for the respondent also argued before us that a right to passage and repassage must include anything incidental thereto. I would accept that, but it leaves the question of what is incidental to passage or repassage. Passing the time of day with an acquaintance who one happens to meet on the highway might well qualify, but I would reject the suggestion that the holding of an assembly of 21 persons possibly could, any more than I would accept counsel's suggestion, by way of analogy, that a photographer on a public highway adjacent to the Queen's land taking photographs from the highway of members of the Royal Family on that land would only be doing something which was incidental to his right of passage or repassage on that highway.

18. As to the second question posed by the Crown Court for the opinion of this Court, I would answer it in the negative. In my judgment, the prosecution need prove no more than that the assembly consisted of 20 or more persons and that the particular person accused was taking part in that assembly knowing it to be prohibited by an order under Section 14A.

19. For my part, therefore, I would allow the appeal and restore the convictions of the appellants.

20. MR JUSTICE COLLINS: The Crown Court was persuaded to dismiss the charges against the Respondents because it decided that the right of access to a highway (in this case, a grass verge on the side of the A344 beside the perimeter fence to Stonehenge) was a ‘ right for reasonable user’. It accepted the submissions made by Mr Starmer that the right was to pass and repass and otherwise to do things that are reasonable and usual. It was reasonable to hold a peaceful assembly which did not obstruct anyone wishing to use the highway. In essence, the Crown Court approached the case on the basis that, to exceed the right of access, those assembling had to cause an obstruction to the highway. If they did not, their user was reasonable and was not therefore prohibited by the order made under s.14A of the Public Order Act, 1986.

21. In my judgment, that approach was wrong. Section 14A(5) provides that an order prohibiting the holding of trespassory assemblies operates to prohibit any assembly which takes place so as to exceed the limits of the public’s rights of access. In Section 14A(9) ‘limited’ in relation to rights of access is defined thus:-

22. It seems to me that a right must mean a right given by law. The purpose of making an order under the section is to prevent assemblies which otherwise would be permitted either because the person who might be able to take proceedings in trespass is unlikely to do so or because a court might, notwithstanding the trespass was established, be unwilling to act: cf: Llandudno UDC v Woods [1899] 2 Ch.705 where an injunction was refused against a clergyman who set up a pulpit on the foreshore on the ground that, although he had no right to do what he was doing, it was harming nobody.

23. The holding of a meeting, a demonstration or a vigil on the highway, however peaceable, has nothing to do with the right of passage. Such activities may, if they do not cause an obstruction, be tolerated, but there is no legal right to pursue them. A right to do something only exists if it cannot be stopped: the fact that it would not be stopped does not create a right to do it. This point was well made by Wills J in Ex p Lewis (1888) 21 QBD 191 at 197 where he said:-

24. Mr Starmer has sought to rely in particular on Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 C.A.R. 143 and observations of Lord Denning M.R. in Hubbard v Pitt [1976] 1 Q.B. 142. Hirst and Agu involved animal rights supporters who were demonstrating outside a furrier’s shop and who faced charges of obstructing the highway. The Divisional Court allowed an appeal against conviction by the Crown Court because the Crown Court had not considered whether the use of the highway was in all the circumstances reasonable. The court decided that, in order to establish the absence of lawful excuse, the prosecution must establish that the use was unreasonable. Glidewell LJ, giving the leading judgment, said at p 100:-

25. The existence of a lawful excuse for doing something does not necessarily establish a legal right to do it. In the context of the criminal offence of obstruction, lawful excuse is naturally seen in terms of offending and not in terms of civil trespass.

26. That last sentence may be said to suggest that there could be no claim in trespass. If it does, it is in my judgment not only unsupported by but contrary to authority. No doubt a local authority would not in fact sue since it would not consider that it was expedient or necessary to do so and, if it did, it might be met with a refusal by the court to exercise discretion to grant an injunction. I suspect that this was all that Lord Denning M.R. meant. But I have no doubt that the theoretical right to sue existed, just as a landowner could in theory sue someone who was harmlessly walking over his land.

27. Mr Starmer rightly recognises that the purpose of s.14A of the 1986 Act is to prohibit an assembly which otherwise would be likely to be permitted. It thus inevitably, but to a limited extent, restricts freedom of assembly. The right of assembly is recognised as a fundamental freedom by Article 11.1 of the European Convention on Human Rights. Mr Starmer does not complain of the restrictions imposed by s.14A since, provided the requirements of s.14A(1) exist, such a restriction is permitted by Article 11.2. But he submits that unless there is a right of assembly as opposed merely to a toleration, Article 11.1 will be breached.

28. Resort to the Convention can only be made if the law is unclear and for the reasons given by my Lord and in this judgment, I am satisfied that it is clear. However, in my judgment the law does in any event comply with the Convention. The reality is that peaceful and non-obstructive assemblies on the highway are normally permitted. That is as it should be since, in the absence of any obstruction or threat of disorder, there is no reason why anyone having the legal right to do so should take any action. A meeting held on the highway is not for that reason alone necessarily to be regarded as an unlawful meeting: see Burden v Rigler [1911] 1 KB 337. Furthermore, it is to be noted that in the only case Mr Starmer has found on the points at issue, Rassemblement Jurassien and another v Switzerland (Application 8191/78, 17 D.R. 93), the European Commission of Human Rights stated at p.119 that the subjection of meetings in public thoroughfares to an authorisation procedure did not normally encroach upon the essence of the right. The concern is that there should be an ability to hold a peaceful assembly and that exists.

29. Accordingly, I would answer the first question posed by the Crown Court in the affirmative. It is common ground that the second should be answered in the negative, since by s.14A(5) it is the assembly which must exceed the limits of the public’s right of access and so anyone taking part in such an assembly knowing it to be prohibited is guilty of the offence under s.14B(2) of the 1986 Act. It follows that I agree with the order proposed by my Lord.

30. LORD JUSTICE McCOWAN: For the reasons given in the judgments which have been handed down, the appeals are allowed and the convictions restored.

31. MR KELLY: My Lord, there is one matter and it concerns the restoration of the convictions. My Lord will recall that this matter originally came before the Justices on 3rd October 1995 when they were convicted. The matter was then heard at the Crown Court on appeal on 4th January 1996, where, after the conclusion of the prosecution case, a submission of no case to answer was successful. In those circumstances, what has happened is that the Crown Court has not yet had the opportunity of hearing the defendant's case in this matter and, in my respectful submission, my Lord, in this particular case, it would be appropriate for this matter to be remitted for a rehearing because the Crown Court has made these findings of facts, but only on the basis of seeing the prosecution witnesses give their evidence without have the opportunity of assessing the credibility of the defendants' witnesses.

32. LORD JUSTICE McCOWAN: Look at the matters that were agreed before them and those that were admitted before them. As I understand it, the appellants, as they then were, were perfectly happy that the matter should go before the Justices in that form, not that there was some other evidence that was before them.

33. MR KELLY: My Lord, my understanding was that when the hearing was heard before the judge and the two Justices----

34. LORD JUSTICE McCOWAN: That is what I am talking about.

35. MR KELLY: The cross-examination of the police witnesses was on the basis that there were only 19 people present rather than 21 and those facts were agreed for the purposes of the appeal before this Court.

36. LORD JUSTICE McCOWAN: They cannot blow hot and cold. They chose to rely on the matters which have been put before the Bench by the prosecution. You see at the top of page four "the following matters were agreed between the parties".

37. MR KELLY: My Lord, in my respectful submission that may well be on the basis of the Galbraith test, taking the prosecution case at its highest and then arguing the point of law. If that be right then, in my submission, it may be an acceptable way of proceeding before the Crown Court so they can take the case at its highest and then decide matters of law. Those now having been decided in my submission, the correct course of conduct would be to remit it for a rehearing so that the defendants have the opportunity of presenting their case.

38. My Lord, I appear for the prosecution in this matter.

39. LORD JUSTICE McCOWAN: There was a hearing before the Justices, was there not? The Justices convicted.

40. MR KELLY: Then there is a complete rehearing before the Crown Court and so----

41. LORD JUSTICE McCOWAN: They chose to proceed on the basis of the following matters that were agreed between the parties.

42. MR KELLY: For the purposes of that argument alone. That is my understanding. If I am wrong in that then I am sure I will be corrected by my learned friend. If it is for the basis of that argument alone, then surely it is open to the defendant, in a case before the Crown Court on a submission of no case to answer, to say for the basis of this argument, "We will take the prosecution case at its highest. We will not go into the plums and the duff argument about strength or not of the evidence", and if that be right, then, in my submission, it could be construed as the defendants being deprived of the right of putting their case and being convicted without having that opportunity.

43. LORD JUSTICE McCOWAN: Of course, that would be nonsense, they did have the opportunity to call evidence there and then if they wanted to.

44. MR KELLY: They did not, because their submission of no case to answer succeeded.

45. MR JUSTICE COLLINS: If you look at the bottom of page ten of the judgment of the judge, which is annexed to the case, he deals with the numbers point. He says, three lines from the bottom, "It is sufficient for the purpose of this stage of the case to indicate that we are satisfied on the specific evidence of head counts that there is a prima facie case of at least 20 people". You say that, as a matter of fact, the defendants, as they then were, would have wanted to have submitted or at least to have called evidence, that it was not 20 or 21, it was 19?

46. MR KELLY: That is my understanding.

47. MR JUSTICE COLLINS: That factual issue has not been decided because the matter was dealt with on the submission and they thought they had a good point of law, as the judge found, and, therefore, it should go back for a hearing on the facts, if they wished to pursue the factual issue as to whether it was under 20?

48. MISS BROWN: I endorse the comments that my friend has made, my Lord. That is exactly the position, as also summerised business his Lordship, in relation to the factual issues that were left to be decided.

49. LORD JUSTICE McCOWAN: What were they, please?

50. MISS BROWN: The numbers of people, which obviously is vital, but that was the primary issue.

51. LORD JUSTICE McCOWAN: Is there any other? That is what I keep saying. Is that the only issue or are there others? If so, please, tell us what they are.

52. MISS BROWN: My Lord, my understanding is that the only issue concerns the numbers of people that were present and out of that number which of those numbers, if you like, were associated with these appellants?

53. LORD JUSTICE McCOWAN: The second point posed by the Justices has been dealt with. The second question posed by the Justices -- do you have a copy of the judgment?

54. LORD JUSTICE McCOWAN: Are you following me?

55. MISS BROWN: Yes, I am following you.

56. LORD JUSTICE McCOWAN: That is not an issue. That has been dealt with.

57. MISS BROWN: It has not been dealt with by evidence.

58. LORD JUSTICE McCOWAN: I understand your point on the numbers. The same point was made by the Crown. All I am saying is the other point you have mentioned is dealt with in the judgment.

59. MISS BROWN: My Lord, while that point may have been dealt with in your judgment, there was no finding of fact in relation to that made by the Crown Court.

60. LORD JUSTICE McCOWAN: It is not a factual matter. I am not sure you are following my point.

61. LORD JUSTICE McCOWAN: There were two questions posed by the Justices. Look at the second of them. That is not a factual question and it is dealt with in the judgments of this Court.

62. MR JUSTICE COLLINS: Are you saying that, even assuming there is an assembly of 20 or more, it is your clients' case that they were not party to that assembly?

63. MISS BROWN: Yes, my Lord. It is that not all of those people present would have been a part----

64. MR JUSTICE COLLINS: That is not the same point. There is a factual issue as to whether there was an assembly of over 20 people, and that is dealt with by the point you have raised, because if everyone there was not party to it, then it may be that the assembly was not as many as 20, that is that point.

65. The second point, I am trying to understand, are you saying that your clients, even assuming there was a 20-plus assembly, were not party to that, because I do not think that that has ever been their case, has it?

66. MISS BROWN: May I take instructions? To explain the situation: the case is that (a) there were not 20 people there and (b) even if there were, there may have been at one point more than 20 people there, but that those other people may not have been a party to the group that these defendants were.

67. MR JUSTICE COLLINS: I follow that. That is all the same point approached in the other way, that there was never an assembly of 20 people. All I am saying is that, if the Court were satisfied that there was an assembly of more than 20, it has never, as I understand it, been your clients' case that they were not party to that. They were party, but it was always less than 20.

68. LORD JUSTICE McCOWAN: We will retire for a few minutes. It is definite that your clients want this matter remitted? They should appreciate that they will be at risk as to costs if this matter goes back to the Crown Court yet again.

69. MR KELLY: My Lord, there is one further point as to how your Lordships exercise the discretion on this point, whether or not it is remitted to the same Bench, as it was constituted on 4th January 1996, that is the Crown Court Bench, or whether or not it is remitted back to a differently constituted Bench.

70. The reason why is that, of course, the prosecution has closed its case and that if it were the same Bench the same Bench would obviously be trying to remember facts and matters which were put before that Bench over a year ago. In my submission, I would ask that this matter, if your Lordships are minded to remit it, be remitted to a differently constituted Bench.

71. LORD JUSTICE McCOWAN: You start from the beginning again, as far as evidence and argument is concerned? but, of course, bound by our decision as to the law?

72. MR JUSTICE COLLINS: No doubt consideration will be given to whether it should go ahead having regard to the lapse of time and the point that has been decided.

73. MR KELLY: My Lord has put his finger exactly on the point; a decision whether or not it is appropriate to proceed with this.

74. MISS BROWN: Taking on board the comment that my friend has made, I would also make an application that it would not be appropriate to make an order for costs against these respondents.

75. LORD JUSTICE McCOWAN: I am not talking about the costs of today. We have not heard that yet. I was simply pointing out that if the matter is going back to the Crown Court to be re-heard, your clients should appreciate the possibility, I put it no higher, that they might have to pay the costs. If having considered that, they nonetheless want the matter to go back, we will consider the point. Can you tell us the answer, please?

76. MISS BROWN: My clients would wish the matters to be remitted back, my Lord.

77. MR JUSTICE COLLINS: Do you agree that it should be a fresh hearing from the beginning?

78. MISS BROWN: A fresh hearing would be appropriate.

79. LORD JUSTICE McCOWAN: With a different Bench.

80. LORD JUSTICE McCOWAN: Very well, in view of the request made to us, we will remit the matter for a rehearing before a differently constituted Bench at Salisbury Crown Court. It will be a complete rehearing. Of course, not as to the points of law, because we have dealt with those.

81. MISS BROWN: My Lords, I would wish to make an application for leave to appeal this matter to the House of Lords and if your Lordships are not minded I would make an application for, at least, a certificate----

82. MR JUSTICE COLLINS: You have it the wrong way.

83. MISS BROWN: That is right. I would like a certificate.

84. LORD JUSTICE McCOWAN: Have you reduced to writing the point of law you say exists of general public importance?

85. MISS BROWN: I have not, my Lord.

86. LORD JUSTICE McCOWAN: Well, we cannot deal with that then. We have to see, in writing, what the point is before we can certify it.

87. MISS BROWN: I have 14 days in which to make that?

88. LORD JUSTICE McCOWAN: More like 14 minutes. You want more costs expended by coming back on some later occasion?

89. MISS BROWN: I had not realised that it was necessary for me to reduce it in writing to have it before you to make it. I do apologise.

90. LORD JUSTICE McCOWAN: We would like to deal with it today.

91. MISS BROWN: I will take the 14 minutes. I do have it reduced in writing in terms of my notes, but not in the form----

92. LORD JUSTICE McCOWAN: Just write it out so we can read it.

93. MR JUSTICE COLLINS: Have you discussed it with your learned friend, because it would be sensible to see whether you have any form of agreement?

94. MR KELLY: My Lord, it has not been raised as yet.

95. MR JUSTICE COLLINS: I think it would be sensible to at least show it to him now and take on board any suggested amendments, if any, that he may have, assuming he agrees that there is a point.

96. LORD JUSTICE McCOWAN: Very well. Let us know as soon as it is ready.

97. MISS BROWN: I am very grateful to you for the time. Having reflected on it, it seems that the best course is to formulate the two questions in the form that they appear in the judgment and formulated, in fact, by the judge below.

98. MR JUSTICE COLLINS: The second question is by no stretch of any imagination a general point of public importance, since it was conceded that the answer had to be as we said. It is only the first question, I would have thought----

99. LORD JUSTICE McCOWAN: I entirely agree. There is no question of certifying the second question.

100. MISS BROWN: May I address you very briefly on that, my Lord?

101. LORD JUSTICE McCOWAN: It was conceded by Mr Starmer that there was nothing in that.

102. MISS BROWN: My Lord, my understanding of the question is this: if you have, for example, 19 people who are tourists, who do not know anything about the order, and there is one person who is aware of the order, but that those people are not acting in concert, and are not there for the same purpose, would that then form an assembly for the purpose of the section?

103. LORD JUSTICE McCOWAN: It is a matter of simply counting numbers. As I say, since that point was, in my recollection, and in my Lord's, not argued in this appeal, how can you expect to have that point certified? Mr Kelly?

104. MR KELLY: I do not think there are any points of general public importance arising out of your Lordships' decisions, because, in my submission, it has all been answered and answered very clearly on settled case law.

105. MR JUSTICE COLLINS: None of those cases is House of Lords authority, is it?

106. MR KELLY: My Lord, in my submission, the fact that they are not House of Lords authority does not really matter. These are established cases going back some considerable time and, in my submission, cover the point quite clearly, particularly the reference to the two cases of Harrison and Hickmen.

107. LORD JUSTICE McCOWAN: You certainly will not support any application. Miss Brown, do you have the first one in writing?

108. MISS BROWN: I had a word with your associate and the proposal is that they should appear in the form that they appear in your judgment on pages four and five.

109. LORD JUSTICE McCOWAN: I have indicated, as far as two is concerned, we will not certify. As far as one is concerned, you want it in these terms, the terms set out by the Crown Court for our opinion?

110. LORD JUSTICE McCOWAN: And do you want further time to consider that or to consult with Mr Starmer or anything of that nature?

111. MISS BROWN: I would be very grateful.

112. LORD JUSTICE McCOWAN: You have to do it in writing. It will have to come before us in writing, so there is no more argument in other words. We will hear anything further that Mr Kelly has to say.

113. MR KELLY: My Lord, I do not have anything further to say on this matter.

114. LORD JUSTICE McCOWAN: Very well, then we will have it in writing. May I just make this comment, it is not a personal criticism: if we are going to hand down judgments in the Crown Office, I assume it has been desired by the Bar and obviously by the Bench, but surely it must mean this, if there is any thought of the Bar of asking the Bench to certify a question, they must put it in writing overnight because they have the opportunity to do so, having had the opportunity to read the judgments.

115. It is not a question of not knowing what is going to happen until the morning so you cannot formulate the question. It is not a personal criticism, Miss Brown, because I have appreciated that you have not realised about putting it in writing, but I do hope the point can be made to your colleagues at the Bar that if judgments are handed down questions must be formulated overnight so that they are ready in writing on the day. Very well.

116. If you can put before us in writing the suggested question in seven days and then the answer will come in writing. Is there anything more you want to say on leave to appeal, because that would be required, as well, assuming that you get us to certify? I am not suggesting there is anything more. We are not coming back into court so this is the end of the line.

117. MISS BROWN: Can I then make an application that if you are minded to grant the certificate that you would also be minded to grant leave at the same time?

118. LORD JUSTICE McCOWAN: You can apply. What I am asking is whether you want to say anything more on that question?

119. MISS BROWN: No, my Lord, any submissions can be made in writing on that point.

120. LORD JUSTICE McCOWAN: All that is going into writing is the point of appeal of public importance. What I have asked is, assuming you get a certificate, is there anything more you want to say on leave to appeal?

121. MISS BROWN: My Lord, only if I were to address you on the reasons why we believe it raises a matter of public importance.

122. MR JUSTICE COLLINS: The fact that it is a matter of public importance is achieved by the certificate. We will not certify unless. It is not usual for this Court to grant leave. It is normally left to their Lordships' House to decide. What I think my Lord is asking is whether you are suggesting there are any exceptional circumstances in this case which should persuade us to grant leave rather than leave it to their Lordships' House. I do not think there are.

123. MISS BROWN: I do not think there are no, my Lord.

124. LORD JUSTICE McCOWAN: Very well. In seven days we will see your question in writing.

125. MISS KELLY: We do not seek to pursue the costs of this hearing.