Using the Highway

The law provides a specific right to use a public highway: the right to pass and re-pass along the highway (including the pavement), and the right to make ordinary and ‘reasonable use’ of the highway. To hold peaceful assemblies that do not prevent other people from also using the highway is likely to be seen as a ‘reasonable use’ of the highway. In addition, the Article 11 of the Convention guarantees the right to assembly, so you have a positive right, both from the common law and from the European Convention on Human Rights, to use the highway to hold peaceful, non-obstructive assemblies.

However, unreasonable obstruction of the highway is a criminal offence. This is a widely drawn offence, so the police have often seen it in practice as a licensing power over public gatherings. The police use it to remove sit-down demonstrators, to keep marchers from leaving the agreed police route, to control pickets and in every conceivable public order context on the highway. Often the police will give a warning to move before making an arrest, although there is no legal requirement to do so. However, if you were not given a warning that you were causing an obstruction, it will be easier to show that you were not making unreasonable use of the highway.

The offence is obstructing the highway, not other highway users. So it is not necessary to prove that any other person was actually obstructed - the 'obstruction' can be made out if you simply occupy a section of highway. In practice the offence turns on whether a particular obstruction was reasonable rather than whether there was, in fact, an obstruction. The test of reasonableness is always objective. Was there an actual obstruction? If there was, how long did it last? Where was it? What was its purpose?

As stated above, there is a right to use the highway for reasonable purposes, so the test of reasonableness can very often be argued successfully in demonstration cases, particularly where the police have taken no action in the past, or where the actual obstruction was trivial. In practice, it is often very helpful to have photographs to show just how extensive - or limited - a particular obstruction was.

Since the incorporation of the Convention any court considering the question of reasonableness would also have to consider the impact of their decision on the exercise of your Convention rights. So, for example, a demonstrator who is prosecuted for obstruction of the highway may be able to invoke the right to peaceful assembly in Article 11 as a defence in the Magistrates' Court.

The offence can be tried in the Magistrates' Court only. The maximum penalty is a fine up to level 3 (currently £1,000). There is no power to send a person convicted of highway obstruction to prison.

By-laws

Many activities on the highway and in other public places such as parks and gardens and on common land are restricted by local by-laws. By-laws for parks may, for example, prohibit public meetings, bill-posting, the erection of notices, stalls and booths, and the sale or distribution of pamphlets and leaflets. They will usually give the police and local authority officials the power to remove anybody who breaches the bye-laws.

Ministry of Defence by-laws are used, for example, to keep trespassers out of US Air Force bases. The RAF Greenham Common by-laws listed twelve prohibited activities, beginning with entering the protected area except by way of an authorised entrance, and including affixing posters to perimeter fences.

A copy of local by-laws should be on sale at the local town hall and also available for inspection. By-laws for land owned by an authority such as the British Airport Authority or the Port Authority or by a government department will be available directly from that authority. Often, by-laws have to be prominently displayed near entrances to private land, and they should show the address from which to obtain copies.

It is an offence to breach a by-law and the penalty is usually set out in the particular by-law. However, it is possible to challenge the legality of by-laws on the grounds that the authority that made the by-laws exceed the powers given to them by Parliament, or that the by-laws breach a person’s Convention rights.


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