Director of Public Prosecutions v Instone and another

Highway – Right of way – Dedication – Respondents charged with aggravated trespass – Magistrates’ court accepting no case to answer since obstructed land was part of highway and essential element of offence not made out – Appellant prosecutor appealing – Whether presumption of dedication as highway arising where public able to cross land without evidence of doing so – Whether land dedicated as highway in absence of evidence indicating intention not to dedicate – Appeal allowed The respondents carried out a protest at a print works at Kitling Road, Prescot, Knowsley, by positioning a boat with a trailer to block the main entrance to the site, and tethering themselves to the underside of the vehicle and to each other, with the intent of protesting by obstructing and disrupting the lawful business of printing and distributing newspapers. The obstruction was on a paved area just outside the main entrance gate which separated it from the tarmacked carriageway of the highway. The respondents were subsequently charged with aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994, but the magistrates’ court accepted that there was no case to answer because there was sufficient evidence to conclude that the paved land had become part of the highway pursuant to section 31 of the Highways Act 1980, and the appellant was unable to prove an essential element of their case. In reaching that conclusion, the judge took into account that the land was not fenced off, so that the public were able to enjoy free passage over it, and that there were no notices displayed by the landowner or other conduct to negate the effect of section 31. The appellant appealed by way of case stated. The questions were: (i) whether it was open to the judge to conclude that, as the public were able to enjoy free passage over land which in all other respects belonged to the landowner, that land had by virtue of section 31 of the 1980 Act become part of the highway; and (ii) whether the appellant had failed to prove that the respondents were trespassers. Held: The appeal was allowed. (1) The judge had failed to appreciate that the presumption regarding the dedication of a highway, whether under section 31(1) of the 1980 Act or at common law, could only arise if a way over land had actually been enjoyed by the public as of right and without interruption for a full period of 20 years. Unless that test was satisfied there was no presumption to be rebutted. Parliament enacted the words “actually enjoyed by the public as of right and without interruption for a full period of 20 years” to assimilate the law on public rights of way to that of private rights of way. The words “as of right” had the same meaning in both contexts, that was the user must not be by force, or by stealth, or with the permission of the owner. The principle was that there had to be actual, open public user. A landowner could not be said to have acquiesced in a user of which he did not know or could not reasonably have known, and so could not reasonably have been expected to resist: R (Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs [2007] 3 EGLR 11 considered. (2) User by the public could evidence an intention to dedicate. It had never been the law that the fact that a way was open to the public if they chose to use it, but as to which there was no evidence of use, was, without more, evidence of an intention to dedicate. The rationale for the use having to be open and as of right was that it brought home to the owner of the way that a public right was being claimed: Easteye Ltd v Malhotra Property Investments Ltd [2020] EWHC 2606 (Ch) considered. In the present case, there was no evidence before the court of actual user or enjoyment by the public of the paved area belonging to the landowner over any period of time, let alone the 20-year period as of right required for presumed dedication. The evidence went no further than to say that there was nothing to stop members of the public walking over the paved area. They were able to enjoy free, unobstructed passage over that land. That was simply evidence of a mere physical opportunity to cross the paved area, and not actual use asserting a right which the landowner needed to resist if it did not intend to dedicate the land as a highway. Accordingly, there was no evidence from which it would have been permissible for the court to infer that any part of the paved area had been, or even might have been, dedicated by the owner as a highway. (3) The judge did not draw any inferences about actual use or enjoyment in his findings. Instead, he went straight to the point that the landowner had not displayed a notice or done anything else which would have been inconsistent with dedication under section 31(1) of the 1980 Act. That was wrong as a matter of law. Unless a court could and did properly conclude on the evidence that there had been actual enjoyment as of right of a way capable of being dedicated as a highway without interruption for at least 20 years, the presumption in section 31(1) did not arise. In such circumstances, the absence of any notice or other conduct by the landowner sufficient to indicate his intention not to dedicate the land as a highway was irrelevant. The land could not have become a highway by presumed dedication. It followed that where, as here, there was no evidence of actual use or enjoyment of a way as of right for 20 years, the prosecution bore no burden of proving in a prosecution under section 68 of the 1994 Act that the area on which a trespass occurred was not dedicated by the owner as a highway.  Therefore, the judge was not entitled to conclude at the close of the appellant’s case that the area of land occupied by the respondents was a highway.  He was not entitled to conclude that the appellant had failed to prove that the respondents had trespassed on that land. The case would be remitted to the magistrates’ court for the trial to continue.  James Boyd (instructed by the Crown Prosecution Service) appeared for the appellant; Owen Greenhall (instructed by Hodge Jones & Allen of Liverpool) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Director of Public Prosecutions v Instone and another