Director of Public Prosecutions v Jones & Anor

The House of Lords considered whether a peaceful, non-obstructive assembly on the public highway exceeded the limits of the public's right of access for the purposes of sections 14A and 14B of the Public Order Act 1986. The court held that the existence of an order under section 14A does not itself define the common-law limits of the public's right of access and that section 14A presupposes those limits. A peaceful assembly which does not obstruct the highway or otherwise cause nuisance does not necessarily exceed the public's right of access and so will not, without more, constitute a "trespassory assembly" under section 14B(2). The interpretation of "limited" in section 14A(9) as referring to use restricted to a particular purpose (for example passage along a highway) does not mean that every form of assembly incidental to the use of the highway is excluded.

The appellants were arrested and convicted for participating in a "trespassory assembly" under section 14B(2) of the Public Order Act 1986 after assembling on a grass verge adjacent to Stonehenge. The convictions were quashed on appeal to the Crown Court but reinstated by a Divisional Court, which held that the public's right of access to the highway is limited to passing and repassing and that peaceful assembly exceeded those limits. The Director of Public Prosecutions and the appellants appealed to the House of Lords.

The principal legal issues were:

• whether at common law the limits of the public's right of access to the highway are confined to passing and repassing and incidental acts;
• the meaning of "limited" and "particular purpose" in section 14A(9) of the Public Order Act 1986; and
• whether a peaceful, non-obstructive assembly on the highway necessarily exceeds those limits so as to be a trespassory assembly under section 14B(2).

The House of Lords criticised the Divisional Court's reasoning as circular: the making of an order under section 14A does not itself create the limits of the public's right of access; rather the statutory provisions operate by reference to existing limits. The court examined authorities relied on by the Divisional Court and concluded they did not support a categorical rule that peaceful assemblies on the highway are unlawful. The court therefore held that a peaceful assembly which does not obstruct the highway or create a nuisance will not, by that fact alone, exceed the public's right of access within the meaning of section 14A(5). The court also considered the role of Article 11 of the European Convention on Human Rights insofar as it was raised in the earlier proceedings, noting the earlier judge's treatment of the Convention but addressing the domestic common-law question on its own terms.

Appeal allowed. The House of Lords concluded that section 14A does not itself define the limits of the public's right of access to highway land; a peaceful, non-obstructive assembly on the highway does not necessarily exceed the public's right of access and therefore does not automatically constitute a "trespassory assembly" under section 14B(2). The Divisional Court's reinstatement of the convictions was unsound because it treated the existence of an order under section 14A as determinative of the limits of public access.

Convictions at Salisbury Justices (3 October 1995); appeals to Salisbury Crown Court succeeded (convictions quashed); case stated to the Divisional Court which reinstated convictions: Director of Public Prosecutions v Jones [1997] 2 All E.R. 119; appeal to the House of Lords [1999] UKHL 5.