Director of Public Prosecutions v Jones (Margaret)

The public’s right to use a highway is not invariably confined to passage and activities strictly incidental to passage. A peaceful assembly may fall within the right where it constitutes a reasonable use of the highway and remains consistent with the public’s primary right to pass and repass.

Reasonableness is an objective question of fact and degree. Relevant matters include the assembly’s nature, size, duration and spatial extent, the character of the highway, and its effect on passage, neighbouring land and other users. A peaceful and non-obstructive assembly therefore does not necessarily constitute a trespassory assembly under the Public Order Act 1986.

The appellants participated in a peaceful gathering of about 21 people on the grass verge of the A344 beside Stonehenge. They caused no obstruction, nuisance, violence or breach of the peace. They were convicted of knowingly taking part in an assembly prohibited by an order made under section 14A of the Public Order Act 1986.

The Salisbury Crown Court allowed their appeals, finding that the gathering was a reasonable use of the highway. On an appeal by case stated, the Divisional Court reversed that decision: Director of Public Prosecutions v Jones [1997] 2 All E.R. 119. The central question before the House was whether a peaceful, non-obstructive assembly of 20 or more people necessarily exceeded the public’s right of access to a highway and was therefore trespassory.

1. Disposition. The House allowed the appeal by a majority of three to two. Lord Irvine of Lairg L.C., Lord Clyde and Lord Hutton constituted the majority. The Divisional Court’s decision was reversed, and the Crown Court’s conclusion that the assembly was a reasonable use of the highway was restored.
2. Statutory framework. Per Lord Irvine L.C., the making of an order under section 14A of the Public Order Act 1986 does not itself define or restrict the public’s right of access. Section 14A(5) presupposes the limits already imposed by the law of trespass. An assembly is prohibited only where it is held without permission or exceeds the existing limits of the public’s right.
3. Scope of highway use. The narrow common basis of the majority was that a peaceful assembly does not necessarily exceed the public’s right of access merely because its purpose is not passage. Lord Irvine L.C. held that a highway may be used for reasonable and usual activities consistent with the public’s primary right to pass and repass. Lord Hutton similarly held that a public assembly may constitute reasonable use. Lord Clyde adopted a narrower approach, requiring activities to remain subsidiary to passage, but accepted that a gathering beside a highway could fall within that right. The majority’s approach drew principally upon Harrison v Duke of Rutland [1893] 1 QB 142 and Hickman v Maisey [1900] 1 QB 752.
4. Reasonableness. Per the majority, the question is one of fact and degree for the tribunal of fact. The objective nature and extent of the activity must be assessed, including its size, duration, spatial occupation, the nature of the highway and any interference with passage or neighbouring land. The public has no general licence to camp, squat or remain indefinitely. On the Crown Court’s findings, the fluid gathering on the verge was peaceful, non-obstructive and reasonable. It therefore did not constitute a trespassory assembly, and the section 14B(2) offence was not established.
5. Other reasoning. Lord Irvine L.C. considered that conformity between trespass and highway-obstruction law supported the result. He added that, if the common law had been uncertain, article 11 of the European Convention on Human Rights would have supported its development from a starting point which recognised that peaceful assembly on a highway was not necessarily unlawful. Lord Hutton left open whether an apparently lawful assembly might become unreasonable if its members appeared about to commit unlawful acts.
6. Dissent. Lord Slynn of Hadley and Lord Hope of Craighead would have dismissed the appeal. They regarded the public right as confined to passage and reasonable uses incidental to passage. On that view, using a highway as a place of assembly in itself exceeded the right, irrespective of peacefulness or the absence of obstruction.

1. House of Lords: In Director of Public Prosecutions v Jones (Margaret) [1999] 2 AC 240, the appeal was allowed by a majority of three to two. The Divisional Court’s ruling was reversed.
2. Divisional Court of the Queen’s Bench Division: In Director of Public Prosecutions v Jones [1997] 2 All E.R. 119, the Director’s appeal by case stated was allowed. The court held that a peaceful, non-obstructive assembly exceeded the public’s highway right and ordered the case to be reheard.
3. Salisbury Crown Court: The appellants’ appeals were allowed. The court found no case to answer because the gathering was a reasonable use of the highway and did not exceed the public’s right of access.
4. Salisbury Justices: The appellants were convicted under section 14B(2) of the Public Order Act 1986.