Section 4
Interference with highways
4.3: Abuse of rights
Christine Willmore, LL.B., Barrister, Lecturer in Law
Most disputes concerning the use of public rights of way are best resolved by
negotiation, but occasionally recourse to the law will be necessary. Sometimes there are
clear answers, but often the legal status of commonly occurring activities depends upon
obscure common law, or upon no authority at all. For example walking dogs on a highway is
taken for granted, yet its status is far from clear. Where Parliament has intervened, in
relation to activities such as motor-racing, the law is often complex. In the light of
these difficulties it is perhaps understandable that legal remedies are seldom sought by
local authorities. Nevertheless it is desirable that the rights and duties which do exist
in this area should be more widely understood.
Barry Hough, LL.M., Lecturer in Law, University of Wales
Street trading enjoys an ambivalent status in the modern commercial environment. It
sometimes seems to be surrounded by suspicion of ill-repute, of "fly-by-night"
characters, of frauds and tricksters. Yet it seems to be extremely popular. People enjoy
markets and fairs. They appreciate the variety that stalls and pitches offer, in contrast
to the modern shopping arcade. They enjoy a bargain. Street trading also plays an
important role in providing the less well off members of the community with access to
goods at lower prices than may be available elsewhere. But such trading enjoys a somewhat
perilous position in law: the trading often takes place on the highway. It competes with
the primary purpose that highways serve - the right of passage. The purpose of this
article is to ask to what extent street trading and other forms of commercial activity can
lawfully take place on the highway.
Edwin Simpson, Barrister, Tutor in Law, Christ Church, Oxford
What are highways for? The answer to this question may not be as simple as one would
expect. The starting point may certainly be the traditional view of 'passage and
repassage'; but the law is of considerable breadth and complexity in this area, and other,
perhaps better, interpretations of it are possible. In particular, 'other reasonable
uses', not necessarily connected with the right of 'passage and repassage' may be
discovered embedded in the complex mixture of statute and common law.
J.D.C. Harte, Barrister, Lecturer in Law, Univ. of Newcastle
Treasure hunting, particularly by means of metal detectors, has become a
popular pastime. It often involves the use of public access rights. It may sometimes cause
an abuse of public rights of way; it may interfere with private rights; and it may be an
offence by causing damage to an archeological site. If it were made an offence to dig or
to use a metal detector in any public place, particularly on or adjacent to any public
right of way, without the express permission of the landowner, this would not seem an
excessive restriction on the freedom of treasure hunters but could provide valuable
protection for a vulnerable part of the national heritage.
Jonatham Herring, B.C.L., Fellow, New Hall, Cambridge
The question is discussed as to whether a defendant who has driven on an area where
driving is prohibited by s.34(1) of the Road Traffic Act 1988, but who wrongly believed
that he was driving on a public carriageway, is guilty of an offence. This depends on the
mens rea (literally, a guilty mind) requirement of s.34.
Michael Doherty, M.A., Senior Lecturer in Law, School of Law, University of Glamorgan
An analysis of the recent decision of the House of Lords in Director of Public
Prosecutions v. Jones and Another suggests that the extent of the public's right of access
to the highway has been increased. The majority decided that the right of assembly, even
though it might not be ancillary to the exercise of the right of passage, was a reasonable
use of the highway provided it did not interfere with other users or was not a public or
private nuisance.
Mike Harwood, B.A., LL.B. (Cantab.), Solicitor, Senior Lecturer in Law, Leeds
Metropolitan University
It is argued that the House of Lords decision in Director of Public Prosecutions v.
Jones and Another does not enhance the public's right of access. On the contrary, the test
of 'reasonable use' adopted by the majority of the Law Lords may in practice restrict this
right. It may also prejudice the establishment of a human right of access to the
countryside.
Edwin Simpson, Barrister, Tutor in Law, Christ Church, Oxford
A case note.
In D.P.P. v. Jones a majority of the House of Lords accepted the right of the public to
use the highway, not just for passage and repassage, but for all manner of reasonable,
peaceable user not interfering with the right to pass and repass, nor constituting a
public or private nuisance. The principle has now been applied to allow peaceable protest
against government policy to take place in Parliament Square, even where the protest
continued day and night, for more than a year, and physically obstructed a section of the
highway. The author welcomes the decision, and doubts some of the concerns with the
reasoning of the majority in D.P.P. v. Jones expressed in earlier pages of RWLR.
Annexe: Practice and precedent
Assembling evidence for prosecution before Magistrates
John Parsons, Principal Rights of Way Officer,
Gloucestershire County Council
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