DIRECTOR OF PUBLIC PROSECUTIONS v MIRIAM INSTONE & Anor

For presumed dedication of land as a highway, there must first be evidence that a way has been actually enjoyed by the public as of right and without interruption for 20 years. A mere physical opportunity for members of the public to cross privately owned land is insufficient. The absence of notices or other conduct by the landowner inconsistent with dedication becomes relevant only after that threshold is met. Where there is no evidence of qualifying public use, no presumption arises and the prosecution need not prove separately that the land was not dedicated as a highway in order to establish trespass for aggravated trespass purposes.

The Director of Public Prosecutions appealed by way of case stated from the decision of Liverpool, Knowsley and St Helens Magistrates’ Court that Miriam Instone and Peaceful Warrior had no case to answer on allegations of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994.

The respondents had taken part in a protest blocking entrances to Newsprinters’ premises. The issue was whether the privately owned paved area where they positioned themselves had become part of the highway by presumed dedication under section 31 of the Highways Act 1980. The central questions concerned the evidence required to raise that presumption and the prosecution’s burden in the aggravated-trespass proceedings.

1. Appeal allowed. The magistrates’ decision that there was no case to answer was set aside, and the case was remitted for the trial to continue.
2. Under section 31(1) of the Highways Act 1980, a presumption of dedication arises only where a way has actually been enjoyed by the public as of right and without interruption for a full period of 20 years. The expression “as of right” requires open use which is not by force, stealth or permission. Actual public use is required; a mere opportunity to use land does not suffice.
3. The court agreed with the reasoning in Easteye Limited v Malhotra Property Investments Limited [2020] EWHC 2606 (Ch). Evidence that members of the public could have deviated from a pavement onto privately owned land showed only a physical opportunity to cross, not actual use asserting a public right.
4. The absence of a notice or other overt conduct by the landowner inconsistent with dedication is relevant only once the 20-year actual-use requirement has been satisfied. Without that threshold, the section 31 presumption does not arise and the landowner’s silence is irrelevant.
5. Because there was no evidence of actual public use of the paved area for the requisite period, the magistrates were not entitled to conclude that it was a highway, or even that it might be one. The prosecution therefore had no additional burden to prove that the area had not been dedicated as a highway.
6. The court answered “no” to each question in the case stated.

• High Court (Queen’s Bench Division), Divisional Court: allowed the appeal from the decision of Liverpool, Knowsley and St Helens Magistrates’ Court, set aside the no-case-to-answer decision, and remitted the matter for the trial to continue.
• Liverpool, Knowsley and St Helens Magistrates’ Court: decided that the respondents had no case to answer because the relevant land had become part of the highway by presumed dedication.