DPP v Jones (1999) 2 AC 240
There was 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'. 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.
The House of Lords upheld their appeal and quashed the convictions. Although it was true that once an order has been granted, it becomes an offence to take part in a trespassory assembly there are two cases where the public may have a limited right of access:
a) The owner has given permission for limited access: if the public exceed these limits, they will be guilty of trespass; or that b) 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 the second applied. The Stonehenge demo was peaceful and reasonable, therefore did not exceed the protestors’ right of access to the highway.
The majority agreed with the defence that there was a right of peaceful assembly on the highway. 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. 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' however. 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'.
Lord Irvine stated (p.265) "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 the public 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."
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