England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		25th March 2004

Thursday, 25th March 2004

1. MR JUSTICE GOLDRING: On 21st June 2002 the Mid South Essex Justices, sitting at Basildon, dismissed two informations laid by the Appellant, who prosecuted this case privately. Those informations alleged that on six occasions between 12th June 2001 and 10th June 2002 Mr Keskin, the Interested Party, without lawful excuse or authority, wilfully obstructed the through passage along a highway called Bramston Way. The fundamental issue raised by this appeal is whether the justices were entitled to conclude that Mr Keskin had a lawful excuse for wilfully obstructing the highway.
2. The findings of fact are set out in some detail in the case. I shall restrict myself to those which seem to me to be material. They were as follows:

"(a) The Respondent, Osman Keskin, owned a burger and kebab trailer. He used the trailer to trade as the Cosmos Takeaway.

(b) Nightly since January 2000 the Respondent parked his trailer in Bramston Way, Laindon, close to the Buxton Link roundabout and sold to passing customers a variety of hot food and beverages.

(c) On 20th March 2000 the Respondent was approached by the Appellant ... and was informed that the presence of the Cosmos burger and kebab trailer was causing an obstruction to the highway and that by allowing the obstruction to continue he could be committing a criminal offence.

(d) The Respondent was told that if the obstruction continued, the matter would be reported to the police or local authority and that if they did not take action, private prosecution could ensue.

(e) The Respondent chose to ignore this advice and continue trading.

(f) During the week preceding Easter 2000 the Respondent placed a sign on the roundabout in Westmayne, Laindon. This sign advertised their service and an arrow gave directions to their location ...

(g)(ii) Daily between the hours of 6 pm and 2 am Mr Keskin was operating a fast food takeaway outlet from the public highway in Bramston Way, Laindon. In September 2000 he circulated a further 6,000 professionally printed takeaway menus to residential addresses in the Laindon area."

3. I turn now to (h):

"By virtue of the fact that the Cosmos burger and kebab trailer was transient, the trailer remained outside the strict planning and environmental constraints imposed on conventional takeaway establishments and was not required to obtain any permit or licence.

(i) Since its arrival in Bramston Way the original Cosmos burger and kebab trailer was replaced, virtually doubling in size. It advertised a 'web address, cosmostakeaway.com'. At night to attract patrons it was illuminated by flashing coloured lights.

(j) Variously, the Respondent parked the Cosmos burger and kebab trailer on both nearside and offside of Bramston Way in Laindon, close to the Buxton Link roundabout. On other occasions he parked the Cosmos burger and kebab trailer on the nearside verge or green sward when facing in the general direction of Basildon town centre. To accommodate patrons when weather permits, the defendant placed plastic garden furniture on the verge/green sward. He placed a plastic dustbin on the pavement in Bramston Way.

(k) In the late summer 2001 regularly the Respondent parked the Cosmos burger and kebab trailer ... in Bramston Way. The Cosmos burger and kebab trailer had [an] awning approximately 2.3 metres high ... The solid awning was supported by vertical stays ...

(m) Whether the Cosmos burger and kebab trailer was parked on the green sward or the road, the awning obstructed the free passage of the pavement ...

(o) On 12th June 2001 the Cosmos burger and kebab trailer was seen parked in Bramston Way, Laindon, approximately 14 metres from the commencement of the Bramston Way/Buxton Link roundabout, selling food to a succession of customers. Patrons parked their vehicles in Bramston Way.

(p) On 10th October 2001 a larger Cosmos burger and kebab trailer was seen parked ... approximately 10 metres from the Buxton Link roundabout, selling food to a lorry driver ...

"(q) On 11th October 2001 the same Cosmos burger and kebab trailer was seen parked on the green sward in Bramston Way, Laindon, approximately 11 metres from the roundabout ...

(r) We were of the opinion that the effect on the local area by the presence of this trailer was minimal as the area has very little traffic, either vehicular or pedestrian, after 7 pm."

There are then set out the contentions on either side. In paragraph 4 it states:

"It was contended by the prosecution, relying on the facts and legal authorities, that the Respondent wilfully obstructed the free passage along the highway and that he had no lawful authority or excuse.

5. It was contended by the Respondent that there was no obstruction and that there had been lawful authority to carry on their business in this way."

4. The justices were referred to a number of authorities. In their conclusions they specifically refer to two, namely Nagy v Weston [1965] WLR 280 and DPP v Jones [1999] 2 WLR 625.
5. In their conclusions they state as follows:

"A. We were of the opinion, having considered the authorities put forward by the Appellants and the Respondent, that we were most assisted by the House of Lords case of DPP v Jones when considering the concept of reasonableness in the light of modern day circumstances. We noted in particular the passage in Lord Irvine's judgment."

6. They then refer to a passage at page 62 beginning with paragraph H in that case, to which I shall come shortly.

"B. We were also assisted by Nagy v Weston where it refers to reasonableness where it has to be considered in the light of the circumstances. Our attention was drawn to the passage in the judgment at page 284-paragraph E:

'Whether or not the user amounted to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done and, of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction.'

C. We were of the opinion that the Respondent parking his trailer on Bramston Way was wilful and that it was an obstruction of the highway as it took place on a nightly basis for two and a half years for not less than seven hours a night.

D. We were of the opinion that the Respondent normally positioned the trailer opposite the traffic island which was 9 metres from the kerb to the traffic island and that the trailer was 2.3 metres wide.

E. We were of the opinion that the Respondent did have a reasonable excuse to park his trailer on Bramston Way on the dates alleged in the informations. The area was an industrial estate where there is very little traffic and that traffic was specifically there to visit the burger and kebab trailer. Bramston Way is a wide road which was not obstructed as a result of the presence of the burger and kebab trailer. The police and the local authority visited the area and observed the burger and kebab trailer and took no action. Accordingly, we dismiss the informations against the Respondent."

7. The following question was then posed by the justices:

"The question for the opinion of the High Court is: can the parking of a trailer on the public highway for periods in excess of seven hours on a nightly basis for the purpose of selling food and refreshments to members of the public be a reasonable use of the highway within the context of a prosecution under section 137(1) of the Highways Act 1980?"

8. Section 137(1) of the Highways Act 1980 reads as follows:

"If a person without lawful authority or excuse in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale."

9. The issues

There is no dispute as to the way in which the justices should have approached this case. It was set out by Glidewell LJ in Hirst v Chief Constable of West Yorkshire (1987) 85 Cr. App. R. 143. The facts of that case do not, for present purposes, matter. At page 151 Glidewell LJ said this:

"I suggest that the correct approach for justices who are dealing with the issues which arise in the present case is as follows:

First, they should consider, is there an obstruction? Unless the obstruction is so small that one can consider it comes within the rubric de minimis, any stopping on the highway, whether it is on the carriageway or on the footway is prima facie an obstruction. To quote Lord Parker, 'Any occupation of part of a road thus interfering with people having the use of the whole of the road is an obstruction.'

The second question then will arise. Was it wilful, that is to say deliberate?..

Then there arises the third question: have the prosecution proved that the obstruction was without lawful authority or excuse? Lawful authority include permits and licences granted under statutory provision such as for market and street traders and no doubt for those collecting for charitable causes on Saturday mornings. Lawful excuse embraces activities otherwise lawful in themselves which may or may not be reasonable in all the circumstances mentioned by Lord Parker in Nagy v Weston."

10. It is not necessary further to refer to what Glidewell LJ said.
11. It is clear that here that approach was followed by the justices. First, as to whether there was an obstruction, they found as a fact that there was. They say so in terms. Second, as to whether it was wilful, again, they found that it was, in the sense that it was deliberate. Third, no question as to lawful authority arose.
12. Finally, they turn to lawful excuse and the topic of reasonableness. It is their conclusions in respect of that that forms the basis of this appeal.
13. I can dispose of one matter immediately. As Glidewell LJ said in Hirst, for an activity to be reasonable it had to be lawful. In other words, unlawful activity can never be reasonable. It was never submitted to the justices that what Mr Keskin was doing was unlawful. Mr Spencer to us, on behalf of the Appellant, posed the question as to whether street trading can per se be lawful, and therefore reasonable, if it amounts to trading from a site which causes an obstruction. That seems to me a circular argument and not helpful in deciding whether what Mr Keskin did could be reasonable.
14. Mr Spencer has also drawn our attention to the fact that Basildon Council has the power to limit street trading by the designation of streets in which such trading may take place and by the issuing of permits to traders in such designated streets. The Council has not chosen to do so here. That seems to me irrelevant for present purposes.
15. In short, it is clear, in my view, that it cannot be said that what Mr Keskin did was of itself unlawful and therefore unreasonable.

In those circumstances, there is only one issue in this appeal. I do not take Mr Spencer to disagree. Were the magistrates entitled to conclude on the facts they found that Mr Keskin had a reasonable excuse for parking his trailer as he did, or, as Mr Spencer submits, was such a finding in conflict with the authorities and, in any event, irrational?

16. Mr Spencer has drawn the Court's attention to a number of authorities. All but one predate the decision of House of Lords in Jones. As I understand his submissions, they are that on proper analysis the decision in Jones means those earlier authorities are still effectively good law. The degree of obstruction in this case for this period must inevitably lead to the conclusion it was unreasonable, he submits. An example of that is provided, he submits, by the case of Hertfordshire County Council v Bolden (151) JP at page 252. In that case, without going into its detail, the intrusion into the highway of some nine feet over a period of 18 months was decided by this Court unarguably to amount to a wilful obstruction.
17. I turn now to Jones. It is necessary, before summarising Mr Spencer's submissions in relation to it, to refer to it in the some detail. The facts, very shortly, were these. The defendants took part in an assembly on the highway in which no-one was in fact obstructed. There were some 21 people on the roadside verge by Stonehenge. There was in force an order under section 14A of the Public Order Act 1986 prohibiting the holding of trespassory assemblies. The defendants were convicted. The issue was whether such an assembly was part of the public's right of access to the highway and therefore not a trespass and not an offence. Ultimately, the Crown Court, having allowed an appeal, the House of Lords had to decide whether the Divisional Court was right in allowing an appeal by the prosecutor. By a majority of three to two it overruled the Divisional Court.
18. The headnote encapsulates the majority's speeches in these terms:

"The public had the right to use the highway for ... reasonable and usual activities, including peaceful assembly as were consistent with the primary right to use it for passage and repassage, it being a matter of fact and degree for the court of trial in each case to decide whether the user was reasonable and not inconsistent with that primary right."

At page 688F Lord Irvine set out the central issue:

"The central issue in the case thus turns on two interrelated questions: (i) what are the 'limits' of the public's right of access to the public highway at common law? and (ii) what is the 'particular purpose' for which the public has a right to use the public highway?"

19. Lord Irvine then set out the law, as it was understood to be, in particular that the right of the public was limited to passing and repassing over the highway and to do acts incidental or ancillary to that right of passage. Having done that, he then said this at page 630E:

"The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place on which all manner of reasonable activities may go on. For the reasons I set out below in my judgment it should. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do 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."

20. Mr Spencer submitted here that it would not have been open to the prosecutor to allege nuisance. Speaking for myself, I am not at all sure that is right. If something is a nuisance, that surely must be relevant as to whether it is an activity which could be described as reasonable (or lawful). In any event, there was no evidence of nuisance before the magistrates.
21. At page 631D Lord Irvine said this:

"I do not, therefore, accept that, to be lawful, activities on the highway must fall within a rubric 'incidental or ancillary to' the exercise of the right of passage."

22. At page 632H, he said:

"I conclude therefore the law to be that the public highway is a public place which public may enjoy for any reasonable purpose, provided that the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass: within these qualifications there is a public right of peaceful assembly on the highway.

Since the law confers this public right, I deprecate any attempt artificially to restrict its scope. It must be for the magistrates in every case to decide whether the use of the highway under consideration is both reasonable in the sense defined and not inconsistent with the primary right of the public to pass and repass ...

These judgments are ever ones of fact and degree for the court of trial."

At page 634D, having considered the provisions of section 137 of the Highways Act 1980 and the relevant authorities, Lord Irvine said this:

"I find it satisfactory that there is a symmetry in the law between the activities on the public highway which may be trespassory and those which may amount to unlawful obstruction of the highway."

23. Lords Clyde and Hutton formed with Lord Irvine the majority. Mr Spencer drew our attention to parts of their speeches. At page 653C, Lord Clyde said this:

"The fundamental purpose for which roads have always been accepted to be used is the purpose of travel, that is to say, passing and repassing along it. But it has also been recognised that the use comprises more than the mere movement of persons or vehicles along the highway. The right to use a highway includes the doing of certain other things subsidiary to the user for passage. It is within the scope of the right that the traveller may stop for a while at some point along the way ...

So, as it seems to me, the particular purpose for which a highway may be used within the scope of the public's right of access includes a variety of activities, whether or not involving movement, which are consistent with what people reasonably and customarily do on a highway."

24. At page 655C, he said this:

"I am not persuaded that in any case where there is a peaceful non-obstructive assembly it will necessarily exceed the public's right of access to the highway. The question then is, as in this kind of case it may often turn out to be, whether on the facts here the limit was passed and the exceeding of it established. The test then is not one which can be defined in general terms but has to depend upon the circumstances as a matter of degree. It requires a careful assessment of the nature and extent of the activity in question. If the purpose of the activity becomes the predominant purpose of the occupation of the highway, or if the occupation becomes more than reasonably transitional in terms of either time or space, then it may come to exceed the right to use the highway."

25. At page 660C Lord Hutton said this:

"... the issue which arises in the present appeal is whether the right of the public to use the highway ... should be extended and should include the right to hold a peaceful public assembly on a highway, such as the A344, which causes no obstruction to persons passing along the highway and which the Crown Court found to be a reasonable user of the highway.

In my opinion your Lordships' House should so hold for three main reasons which are as follows."

26. Lord Hutton first refers to the right of members of the public to assemble and express their views. As to the second reason, he says this:

"The law as to trespass on the highway should be in conformity with the law relating to proceedings for wilful obstruction of the highway under section 137 of the Highways Act 1980 that a peaceful assembly on the highway may be a reasonable use of the highway. Thirdly, there is a recognition in the authorities that it may be appropriate that the public's right to use the highway should be extended, in the words of Collins LJ in Hickman v Maisey:

'in accordance with the enlarged notions of people in a country becoming more populous and highly civilised, but they must be such as are not inconsistent with the maintenance of the paramount idea that the right of the public is that of passage.'"

27. There are two passages in the dissenting speeches of Lords Slynn and Hope which, in my view, tend to suggest that the ambit of the majority's decision, at least in the minds of their Lordships, was wider than that which Mr Spencer has submitted to us. Lord Slynn, at page 639E, said this:

"The defendants' argument in effect involves giving to members of the public the right to wander over or to stay on land for such a period or in such numbers as they choose so long as they are peaceable, not obstructive, and not committing a nuisance. It is a contention which goes far beyond anything which can be described as incidental or ancillary to the use of a highway as such for the purposes of passage; nor does such an extensive use in my view constitute a reasonable, normal or usual use of the highway as a highway. If the defendants' claim is right, it seems to me to follow that other uses of the highway than assembly would be permitted - squatting, putting up a tent, selling and buying food or drinks - so long as they did not amount to an obstruction or a nuisance. To get over the fence from adjoining land (as could have happened here) and to sit or stand on the highway, including the verge, in order to demonstrate does not seem to me to be a normal or usual use of the highway as such and has nothing to do with passing and repassing."

28. Lord Hope said this:

"It is not difficult to see that to admit a right in the public in whatever numbers to remain indefinitely in one place on a highway for the purpose of exercising the freedom of the right to assemble could give rise to substantial problems for landowners in their attempts to deal with the activities of demonstrators, squatters and other uninvited visitors. It would amount to a considerable extension of the rights of the public as against those of both public and private landowners which would be difficult for the courts to control by reference to any relevant principle. The margin between what is and what is not a nuisance is an imprecise one, as to which he who wishes to put a stop to it may be in difficulty in obtaining an immediate remedy. The test of reasonable use of the highway as such is consistent with the rule that the public's right of way is essentially a right of passage."

29. In Westminster City Council v Hall 2002 EWHC 2073, the defendant placed placards on the highway. They obstructed it. They were present for some 15 months. There was an application for an injunction. Gray J, in applying Jones, held that the obstruction was reasonable. No pedestrian was ever actually obstructed. He observed also the police never considered it necessary to take any action. It does not seem to me necessary in the circumstances to refer to more detail than that, so far as that authority is concerned.
30. Mr Spencer submits that the ambit of Jones is narrow. He submits that the facts of Jones were different to the present. That case involved peaceful non-obstructive assembly on the highway. He submits that that assembly was a moving one, although one observes that the summary of the facts do not appear to bear that out. The facts of Hall were different too, and also involved, he submits, a political purpose. What the defendants did, did not interfere with the public's use of the highway.
31. This case, he submits, is different. It involves long-lasting and obstructive use of the highway. As to Jones itself, he submits that the passages to which I have referred, in particular those in the speeches of Lord Clyde and Lord Hutton, suggest that the ambit of Jones is narrow. He submits it should be effectively confined to assemblies on the highway.
32. In short, Mr Spencer submits that on the basis of the authorities an obstruction of the highway for political or recreational purposes, where such an obstruction does not constitute an actual obstruction may be reasonable use of the highway, but the purpose for which the highway is used must be consistent with what people reasonably, customarily do on the highway.
33. His second point is this. If the effect of Jones is wide, on the facts of this case no reasonable bench of magistrates could find such an obstruction as the present amounted to reasonable use of the highway. It lasted too long. It took place every night.
34. Mr Litton, as counsel to the Court, in helpful and succinct submissions, argues to the contrary. Historically, he submits, it was understood that the public's rights in respect of the highway were to pass and repass and for such other purposes as it was usual to use the highway for. However, Jones changed that. The majority in Jones decided that the public had the right to use the highway for reasonable and usual activities as were consistent with and did not obstruct the general public's primary right of passage. That he is right, he submits, is shown by the observations of Lords Slynn and Hope. They contemplated a wider result than that argued for by Mr Spencer. He fortifies that submission by referring us to the Director of Public Prosecution's submissions which were made in Jones during the course of argument and which, of course, did not succeed.
35. The application of Jones, submits Mr Litton, can be seen Gray J's judgment in Westminster City Council v Hall. On that basis, Mr Litton makes the following broad submissions.
36. First, it was a question of fact and degree for the magistrates as to whether the trailer was an obstruction of the highway and, if so, whether it was reasonable. Unless the Court concludes that the parking of a trailer for more than seven hours a night in order to sell food can never be reasonable, the Court ought to be slow to interfere with the decision.
37. Second, the question is, were the magistrates entitled to conclude that Mr Keskin's use was reasonable, or was it inconsistent with the public's right to pass and repass over Bramston Way? Mr Litton submits that it was open to the justices on the basis of the facts they found to conclude that stationing of the trailer on Bramston Way and its use for the sale of food and drinks was, in the circumstances, a reasonable use of the highway.
38. Third, he adds this: another bench might reasonably on the same facts have concluded differently. Also, if the facts changed, for example, by using a trailer similarly during the day, the conclusion might be different; or if the local authority prohibited the sale from the trailer, which would mean that Mr Keskin was acting unlawfully, again it would be different.
39. Finally, I turn to my conclusions.
40. It seems to me that Mr Litton is right. The decision of the majority in the House of Lords in Jones effectively did amount to a change in the law. What might have amounted to an offence under section 137 before Jones might not now. Whether in any given case a particular user of the highway may be reasonable is essentially a matter of fact and degree for the Court. It is only if the Court's decision in that regard is perverse that this Court will intervene. Here, it comes to this. It is only if the magistrates must inevitably have been sure on the basis of the facts they found that the user was not reasonable that this appeal can succeed. I put it in that way, of course, because this is a criminal prosecution in which all the components of the offence must be proved by the prosecution.
41. It is clear the magistrates considered the facts here with some care. They were no doubt heavily influenced by the absence of traffic in this industrial estate at the time of the obstruction; the absence of any obstruction in fact; the ease with which the public could pass and repass along this highway, in fact.
42. After a considerable degree of hesitation, I have come to the view that the magistrates were entitled to find that the user may have been reasonable and to acquit as they did. I should emphasise this. I might have come to a different conclusion. So might another bench of magistrates. However, this decision was within the limits of those permissible. It was open to a bench acting reasonably to come to the conclusion which this bench did.
43. In the circumstances, therefore, I would answer the question posed by the justices in the affirmative and dismiss the appeal.
44. LORD JUSTICE KENNEDY: I agree.