Trespassory Assembly. House of Lords ruling establishing a right to demonstrate on the highway, so long as the assembly is peaceful, not obstructive and not a public or private nuisance, despite a “trespassory assembly” order (Public Order Act, s14A). Could be useful for other public order or obstruction charges too.
The reference to this case in the law journals (which you are supposed to quote in court) is [1999] 2 All ER 257, which you read out as, “year 1999, volume 2, All England Reports, page 257.”[note]
This arose from a demonstration at Stonehenge in June 1995. The police had obtained an order from the local council in advance of the demonstration, to ban ‘trespassory assemblies’ (under the Public Order Act 1986, s.14(A), as amended by the Criminal Justice and Public Order Act 1994). The police warned a group of demonstrators on the grass verge that they were taking part in a ‘trespassory assembly’ and had to leave. Margaret Jones and Richard Lloyd refused to leave and were arrested. Both sides accepted in court that the demonstration (‘assembly’) was over 20 people and that the grass verge was part of the highway; also that the demonstration was peaceful, did not create an obstruction and was not a public nuisance.
Jones and Lloyd were convicted by Salisbury Magistrates’ Court and appealed to the Crown Court.[note] They were acquitted by the Crown Court. The prosecution (Director of Public Prosecutions, or ‘DPP’) appealed by ‘case stated’ (i.e. on a matter of law) to the Divisional Court: there the prosecution won its appeal and the conviction was reinstated.[note] Jones and Lloyd appealed from the Divisional Court to the House of Lords (with the help of Liberty). The House of Lords upheld their appeal and quashed the convictions, by a majority of 3 to 2: this is the judgment of the House of Lords.
There are five judgments, one for each of the ‘Law Lords’.[note] The most useful judgment for quoting is the first, which happens to be that of the Lord Chancellor.
All the judgments spend some time looking at the law and at section 14(A) of the Public Order Act 1986. This can be summarised as follows:
•The police can apply to the local council for an order banning ‘trespassory assemblies’ for a specified period of time and within a specified area. (The procedures for applying for and granting such an order are laid down in the act, but are not relevant here.)
•Once an order has been granted, it becomes an offence to take part in a trespassory assembly (under s.14(B) of the act).
•An assembly (i.e. demonstration) is ‘trespassory’ if it is held on land to which the demonstrators have no right of access, or if they exceed a limited right of access to land.
The last bit was the crucial bit in this case. There are two cases where the public may have a limited right of access:
1)The owner has given permission for limited access: if the public exceed these limits, they will be guilty of trespass; OR
2)The public have a right of access in any case, as of common law or by statute. So long as they don’t exceed the limits of that right, the assembly is not ‘trespassory’.
Here, number (2) applied. The defence arguments were roughly as follows:
•the Stonehenge demo was peaceful and reasonable, therefore did not exceed the protestors’ right of access to the highway;
•the protest would meet the ‘lawful excuse’ criteria in an obstruction of the highway case.[note] The law should be consistent, and so what’s reasonable in an obstruction case should be reasonable under s.14(A).
•In cases of ambiguity, the principles of the European Convention on Human Rights should be applied. The convention includes a right to assembly, so that right should be recognised here.[note]
In the event, the last two grounds were not really decisive or crucial either way, and the substantial debate was all about the first ground. In the words of the Lord Chancellor at the very start of his judgment:
My Lords, this appeal raises an issue of fundamental constitutional importance: what are the limits of the public’s rights of access to the public highway? (Lord Irvine, at page 259 of the judgment)
Basically, the (majority) conclusion agrees with the defence—that we do have a right of peaceful assembly on the highway. Our rights of access to the highway do not include just the right to ‘pass and re-pass’ (and any reasonable activity that is strictly ‘incidental’ or ‘ancillary’ to passing and re-passing), but also any other reasonable activity.
But there are certain tests laid down. Most importantly, our activity must not interfere with the ‘primary’ right to pass and re-pass (i.e. it must not be obstructive), and it must not be such as to cause a ‘nuisance’. This is a matter that can only be decided by the particular facts or circumstances of a demonstration: in some circumstances, a peaceful assembly could be deemed a ‘nuisance’ and therefore ‘trespassory’.
All this is summed up in the following extracts.
I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided 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 user of the highway under consideration is both reasonable in the sense defined and not inconsistent with the primary right of ht epublic to pass and repass. In particular, there can be no principled basis for limiting the scope of the right by reference to the subjective intentions of the persons assembling.. . . Provided an assembly is reasonable and non-obstructive, taking into account its size, duration and the nature of the highway on which it takes place, it is irrelevant whether it is premeditated or spontaneous: what matters is its objective nature.. . .
Further, there can be no basis for distinguishing highways on publicly owned land and privately owned land.. . . (Lord Irvine, p.265, all 3 extracts)
The common law right of public assembly is unduly restricted unless it can be exercised in some circumstances on the public highway. (Lord Hutton, p.292)
The last quotation is the heading for a section of the judgment, which includes a good passage by Lord Denning on the rights to free speech (“Our history is full of warnings against suppression of these rights”),[note] and a passage from a judgment of the Supreme Court of Canada (“the freedom of expression cannot be exercised in a vacuum. . . ”).[note]
As well as being obviously useful for Public Order Act cases, specifically ‘trespassory assembly’ cases, this judgment could be useful in other cases, simply because it asserts a right to demonstrate on the highway. But the right is limited, and Lord Hutton suggests that in some circumstances, a non-trespassory (i.e. ‘reasonable’ and legal) assembly could become ‘trespassory’ (e.g. if members of the assembly went on to take part in other, illegal activities). He also suggests that the nature of the ‘highway’ matters, so that an assembly on a small country road or footpath might be more likely to be ‘trespassory’, if it “interfered with the landowner’s enjoyment of the land across twhich the highway ran or which it bordered.”
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
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I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 11/12/2001
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