Passage and Repassage: Assembly on the Public Highway
| Author | Philip Plowden |
| DOI | http://doi.org/10.1177/002201839906300629 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Article |
The Journal
of
Criminal Law
Too lax an attitude to the control of journalists has led in at least
one
jurisdiction to a side-effect of making those prisoners frequently visited
by
the
press setting themselves up as
rather
superior to
the
other
prisoners
and
to
the
staff. The opinion of
the
European Court of Human
Rights is probably
more
likely to be of direct importance to
the
English
courts. It has already discussed prisoners' rights on several occasions. In
Silver v UK 5 EHRR 347, for example, ablanket ban, on a prisoner's
communications made to 'clear his
name',
was held to be inappropriate,
as the ban was
not
proved to be a
threat
to prison good order. It may
perhaps be
thought
that
where the degree of constraint over a prisoner's
actions is argued on
the
basis
that
the
constraint unduly restricts his
access to
the
courts,
the
courts may feel
somewhat
awkwardly placed to
decide this question, since it directly concerns
the
status
and
functioning
of
the
courts themselves, so that
the
question before
them
requires a
balancing of their claims
and
those of
the
prison service on
any
occasion
on which
one
of
them
will have to defer to
the
other. It might be better
if
these questions
were
decided clearly
and
specifically by Parliament on
any
occasion on which there may be counterclaims by the judicial
and
executive arms of government.
Professor
JA
Coutts
Passage and Repassage: Assembly on the Public Highway
Director
of
Public
Prosecutions
v
Jones
and
another
(1999) 163 JP 285
Jones
and
Lloyd
were
part of a peaceful assembly on a roadside
near
Stonehenge in 1995. An order had
been
made
under
s 14A, Public Order
Act 1986, which prohibited 'trespassory assemblies'.
In
order
for
the
assembly to be trespassory it
had
to be held
on
land to which either
the
public has no right of access or only alimited right. Additionally the
assembly
had
to be
either
without
the
landowner's consent, or so as to
exceed the limits of
any
permission or
the
limits of the public right of
access.
Convicted of trespassory assembly in
the
magistrates' court, Jones
and
Lloyd appealed to
the
Crown Court on
the
basis that they
had
not
acted outside their right of access to
the
highway. It was accepted that
the appellants
had
done nothing violent
or
disruptive,
nor
anything that
threatened abreach of the peace. It was also accepted that they did
not
create
an
obstruction,
nor
did they constitute or cause a public nuisance.
The convictions were quashed,
but
were subsequently reinstated
when
the
matter
was appealed to
the
Divisional Court by way of case stated.
HELD,
ALLOWING
THE
APPEAL,
the
appellants had
not
committed a
trespassory assembly.
Per
Lord Irvine:
the
law today should recognise
that
the highway is a
public space. Therefore the right to use
the
highway extends to such
reasonable
and
usual activities as are consistent with the right. Activities
should
not
constitute a trespass unless they unreasonably impede
the
rights of
the
public to pass
and
repass.
576
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