Important. A similar distinction is drawn in us law between the

content of speech which probably cannot be restricted, and its mode of

expression which can be restricted where there is a ‘clear and present’

danger of serious injury (see Feldman, 1993, pp. 813–14; cf. Branden-

burg v. Ohio 395 US 444 (1969); Edwards v. South Carolina 372 US 279

(1963)). It is sometimes said that modern methods of communicating –

mass circulation newspapers, TV and radio – make it less important to

worry about public space than was the case 50 years ago when much of

the case law was generated by fascist and communist demonstrations.

Nevertheless, meetings, demonstrations or processions in the open air

remain the only means by which people without money or influence

can express their views.

It has been held that under Art. 11 states should take positive

measures to protect freedom of assembly by attempting to control

troublemakers before banning a meeting, although the state will be

given a margin of appreciation as to what measures are reasonable in

the circumstances (Plattform ‘Arzte fur das Leben’ v. Austria (1988)).

As we shall see, English law may not comply with this.

Dicey’s notion that everything is permitted unless forbidden is par-

ticularly ironic in the case of public meetings. All meetings and proces-

sions take place on land. All land, even a public highway, is owned by

someone, either a private body, a local authority or the Crown or

government department. Therefore holding a meeting without the con-

sent of the owner may be a trespass and can be prevented by an

injunction or compensated by an action for damages (see Harrison v.

Duke of Rutland (1893)). The offences of ‘aggravated trespass’ under

s. 68 (1) of the Criminal Justice and Public Order Act 1994 and ‘trespas-

sory assembly’ under s. 70 take advantage of this, putting a powerful

weapon into the hands of the police to remove trespassers from land.

In the case of both offences the essential question is what are the

public’s rights in relation to the highway (which includes roads and

their verges, footpaths, bridleways and waters over which there is a

public right of navigation)? The traditional view has been that the

public has a right only to ‘pass or repass’ on a highway (that is, to

476 General Principles of Constitutional and Administrative Law

travel) and also to stop on the highway for purposes which are reason-

ably incidental such as ‘reasonable rest and refreshment’ (Hickman v.

Maisy (1900)). In Hubbard v. Pitt (1976), for example, a majority of

the Court of Appeal held that peaceful picketing by a protest group

who distributed leaflets and questionnaires was not a lawful use of the

highway. Dicey thought that a procession, but not a static meeting,

would usually be lawful because processions comprise a large number

of individuals exercising their right to travel at the same time. How-

ever, the owner of the highway could sue for trespass if the procession

paused to allow a speech to be made. If this is right, then if highways

are obstructed, however minimally, the police could treat the matter as

one of aggravated trespass or even without an obstruction, if a group

of people are involved, as a trespassory assembly.

In DPP v. Jones (1999) a majority of the House of Lords upheld the

right of peaceful demonstration in a public place although the limits of

this are not clear. The defendant was part of a group of environ-

mentalists who were arrested during a demonstration at Stonehenge.

The demonstration was peaceful, and nobody was obstructed. Taking

into account Art. 11 of the ECHR Lord Irvine LC held that the law

should now recognise that the public should have a right to enjoy the

highway for any reasonable purpose whether the land was public or

private provided that the activities did not constitute a nuisance and

did not obstruct other people’s freedom of movement. Lord Hutton

and Lord Clyde agreed, but took a narrower approach emphasising

that not every non-obtrusive and peaceful use of the highway is

necessarily lawful. Lord Hutton said ‘the common law recognises that

there is a right for members of the public to assemble together to

express views on matters of public concern and I consider that that the

common law should now recognise that this right, which is one of the

fundamental rights of citizens in this country, is unduly restricted

unless it can be exercised in some circumstances on the public high-

way.’ Lord Hope and Lord Slynn dissented, Lord Hope because of

the effect of such a right on property owners who were not before the

court to defend their interests, Lord Slynn because of a reluctance to

unsettle established law. Jones therefore illustrates the range of con-

cerns generated by human rights jurisprudence.

Under the Highways Act 1980 s. 137, it is an offence to obstruct the

highway. It is not necessary that the highway be completely blocked

or even that people are inconvenienced. The accused’s intentions

are also irrelevant (Arrowsmith v. Jenkins (1963); Homer v. Cadman

(1886); Hirst v. West Yorkshire Chief Constable (1987)). However, as a

result of Jones, a reasonable peaceful demonstration would probably

477

Freedom of Political Expression

not be unlawful. There are also numerous local statutes and bylaws

regulating public meetings in particular places. Rights of public meet-

ng cannot apparently be acquired by custom.

19.4.1 Police powers

The police have wide powers to regulate public meetings and proces-

sions. These are supplemented by powers relating to particular places

(e.g. Seditious Meetings Act 1817 s. 3: meetings of 50 or more people

in the vicinity of Westminster when Parliament is sitting). There are

also common law powers to prevent a breach of the peace. The main

general police powers are as follows.

. The ‘organiser’ of a public procession intended (i) to demonstrate

support for or opposition to the views or actions of any person or

body of persons; (ii) to publicise a campaign or cause; and (iii) to

mark or commemorate an event must give advance notice to the

police. There are certain exceptions. These include (i) processions

commonly or customarily held in the area; (ii) funeral proces-

sions organised by a funeral director in the normal course of his

business; and (iii) cases where it is not reasonably practicable to give

advance notice (for example a spontaneous march) (s. 11).

. If a ’senior police officer’ reasonably believes (a) that any public

procession may result in serious public disorder, serious damage to

property, or serious disruption to the life of the community, or (b)

that the purpose of the organisers is to intimidate people into doing

something they have a right not to do, or not doing something they

have a right to do, he can impose such conditions as appear to him

to be necessary to prevent such disorder, damage, disruption or