Carter-Brown & Ors v Crown Prosecution Service

The road known as “The Mearings” is one of three means of access to the Atomic Weapons Establishment situated in Burghfield, near Reading in the county of Berkshire (hereinafter referred to as “the AWE”). Over much the greater part of its length it is a private road and subject to the Atomic Weapons Establishment Burghfield Byelaws 2010 (hereinafter referred to as “the Byelaws”).

At its western extremity The Mearings forms a junction with Reading Road which is a highway. The junction lay out is typical in that vehicular access from The Mearings on to Reading Road is controlled by double broken white lines.

Some short distance from the mouth of the junction with Reading Road there are a number of features on the land adjoining the road surface of The Mearings and/or the surface itself. On the offside of The Mearings (for those travelling from Reading Road), there is a board upon which is written “Burghfield Place The Mearings Private Road”. On the nearside there are two boards; one is coloured red and contains the words “MOD Property, Access subject to MOD Byelaws”; the second board (white in colour) is immediately below the red board and upon it the Byelaws are set out.

The next feature of note is a continuous green line over the width of The Mearings and the pavement which is on the northern side of the road. This line has been in existence since a point in time after May 2012. In very close proximity to the green line there exists a gate which, when closed, is more or less above the green line and which prevents access along The Mearings beyond the gate. A short distance further along The Mearings (to the east of the gate) there is a barrier which can also be used to prevent access along The Mearings.

Early in the morning of 27 June 2016 the Appellants chained and glued themselves together and then lay down upon The Mearings. Their position was such that their heads lay upon or just to the east of the painted green line and their feet were pointing towards the junction with Reading Road. Their object was to disrupt the business of the AWE in furtherance of a protest about nuclear weapons. When they were asked by the police to give up their positions they refused.

In due course the Appellants were arrested and jointly charged with the offence of wilfully obstructing free passage along a highway without lawful authority or excuse contrary to section 137(1) Highways Act 1980. On 26 January 2017 District Judge (Magistrates Court) Shomon Khan sitting at the Reading Magistrates’ Court convicted the Appellants of that offence. Some days later he handed down his reasons for convicting each Appellant.

In this appeal against conviction by way of Case Stated two questions are posed for the court’s consideration. First, was the District Judge entitled to conclude that the part of The Mearings upon which the Appellants laid down was a highway? Second, was he entitled to conclude that any obstruction by the Appellants was not de minimis? The Appellants argue that each of those questions should be answered in the negative. They argue that DJ Khan erred in law when he concluded that they had obstructed free passage along a highway since his findings of fact were such that he could not have been sure that the area in which they laid down constituted part of the highway. Alternatively, they argue that he was wrong to dismiss their contention that any obstruction of the highway, if proved, was or may have been de minimis.

It is now well established that this court must answer the questions posed for its opinion strictly by reference to the facts as found by the lower court and recorded in the Case Stated. If authority is necessary for that proposition it can be found in the recent decision of the Divisional Court (Gross LJ and Nichol J) in DPP v Jobling [2016]EWHC 2707 (Admin) – see paragraphs 7 and 16 in particular. However, it sometimes occurs that the challenge mounted against the decision of the lower court requires an analysis of the evidence upon which the lower court is said to have acted. As will become apparent this is such a case. Accordingly, I turn, first, to the evidence adduced before the District Judge and the conclusions which he reached upon it. I stress that this recital is taken from the Case Stated.

The Mearings is the main access road to the AWE. For most of its length it is a private road maintained at the expense of the Ministry of Defence. At or in close proximity to the junction with Reading Road there exist the features described above at paragraphs 2, 3 and 4. No evidence was provided as to how the various features came to be present. However, evidence was given by a police officer, PS Holt, to the effect that the green line painted on the surface of The Mearings was intended to mark the line of the boundary between the private road and the highway and that the police and the Ministry of Defence had proceeded on that basis. Footpaths were in existence which form part of Reading Road. The footpath to the north of Reading Road “bisects” The Mearings. According to PS Holt members of the public “have a right at all times to continue travelling by foot alongside Reading Road and this right in no way interferes with the boundary to the MOD land”.

One of the important witnesses for the prosecution was Mr Robin Mann who was employed at the material time as a senior technician within the Highways Department of West Berkshire County Council. During the course of his evidence-in-chief he produced a map upon which the boundaries of the highway, Reading Road, were depicted as red lines. The map so produced showed the red line passing across the junction with The Mearings at a point some distance to the east of the mouth of the junction. Mr Mann’s evidence-in-chief was to the effect that the green line painted on the surface of The Mearings was approximately, at least, in the same location as the red line depicting the eastern boundary of the highway, Reading Road, as shown on the map which he produced. His unchallenged evidence (accepted by the District Judge) was that he had measured the distance between the green line on The Mearings and the mouth of the junction with Reading Road and found that there was 6.8 metres between the two points.

Under cross-examination Mr Mann was asked to measure the distance between the red line on the map (on the east side of the junction) and the mouth of the junction. That was an exercise which it was possible to perform because the map was to scale and it was not suggested before the District Judge that Mr Mann should not do as he had been asked. Having carried out the exercise Mr Mann gave evidence to the effect that the distance between the red line and the junction was between 5.5metres and 6metres.

Faced with the evidence given by Mr Mann as to the measurement he had taken on site between the green line and the mouth of the junction and the evidence which he gave about the distance between the red line on the map and the mouth of the junction as measured by him on the map DJ Khan expressed himself thus at paragraph 19(e) of the Case Stated:-

“Having considered the pictures and the plans very carefully, there must be a possibility that the green line is in the wrong place. However, it is unlikely that the discrepancy is going to be any more than the 1.3 metres conceded by Mr Mann.”

It seems to me to be clear that in the passage just quoted the District Judge was making a finding to the effect that the green line painted on the road surface of The Mearings may have been in the wrong place if it was intended to depict the boundary between the highway and the private road. In my judgment, he was allowing of the possibility that the boundary was located nearer the junction with Reading Road by as much as 1.3 metres. Indeed, his phraseology is consistent with his accepting the possibility that the true boundary line was even closer than that to the mouth of the junction.

In evidence Mr Mann could not say who painted the green line on the surface of The Mearings. His assumption was that it was done by or at the behest of the Ministry of Defence. It was common ground that a photograph of the The Mearings taken in May 2012 did not show the green line so that the line had been in existence for no more than about 4 years by the time of the Appellants’ protest.

The District Judge reached a number of conclusions about the significance of the green line which are to be found at paragraph 19 of the Case Stated. It is necessary to set out that paragraph in full.

“I have carefully considered the written and oral arguments on this issue. I find so that I am sure, that The Mearings is a highway up to the green line. This is based on the following factual findings:

a.

Photographic evidence taken around the time of the offence shows the road very clearly. Whilst there is a white private road sign in front of the green line, there is a more comprehensive red sign at the green line. If one were to take in the view of the The Mearings as a whole, it would be clear that the green line delineated where MOD bylaws began.

b.

The police force when policing The Mearings, use the line green line as the point at which the public are no longer permitted; the public have free passage of The Mearings up until that green line.

c.

The evidence from Nicholas Holt is that the MOD police act on the basis that beyond the green line in the direction of Reading Road, the byelaws do not apply.

d.

The green line must have been drawn after May 2012.

e.

Having considered the pictures and the plans exhibited very carefully; there must be a possibility that the green line is in the wrong place. However, it is unlikely that the discrepancy is going to be any more than the 1.3 metres conceded by Mr Mann.

f.

The Defendants lined up on or about the green line when forming the lock-in. That cannot be a coincidence. Consciously or unconsciously, I am sure that each of them was aware of the line and was aware of what it signified.

g.

I am sure that any member of the public would have the right to use The Mearings, right up until the green line, whether by foot, or in a vehicle. I am sure that The Mearings is a highway for the purposes of section 137 of the Highways Act 1980.”

It is as well to record at this stage that the Appellants and Respondent were at one about what the Respondent needed to prove before the Appellants could be convicted of the offence with which they were charged. Four ingredients of the offence were identified which are set out at paragraph 5 of the Reasons provided by the District Judge for his decision – the Reasons are incorporated into the Case Stated by virtue of paragraph 18 of the Case. The first ingredient identified was that the Respondent had to prove that “the part of the road where the Defendants were lying is a public highway”.

Ms Buckley and Mr Payter, in their written submissions, and Ms Buckley orally contend that the finding of the District Judge at paragraph 19 e. should have led him to conclude that he could not be sure that the Appellants laid down on any part of the highway. They submit that although the evidence established that the green line was intended to mark the boundary between the private road and the highway as a matter of logic and common sense the fact that the District Judge made a finding that the line may have been in the wrong location by 1.3 metres and possibly more created a reasonable doubt about whether the Appellants had laid down in the highway.

In my judgment that is a very powerful submission. How does Mr Boyd respond?

He submits, first, that the answer lies in the photographs which were exhibited at the trial before the District Judge and which are part of the Case Stated. In particular, Mr Boyd refers to the photographs which show the Appellants lying in the road (pages 32 and 33 of the Trial Bundle). Those photographs show the Appellants with their heads upon or very close to the green line and at least some of them laid out flat on the surface of the road. Mr Boyd submits that it is proper to infer that each of the Appellants were more than 1.3 metres in height so that, inevitably, even if the green line was wrongly located the irresistible inference is that some part of their bodies was upon the highway. Although, at first blush, this submission appears to have some force I do not accept it for the reason advanced by Mr Payter in his reply. He points out that in Paragraph 19 e. the District Judge concludes that it is “unlikely” that “the discrepancy is going to be more than the 1.3 meters conceded by Mr Mann”. This language, necessarily, allows of the possibility that the discrepancy is greater than 1.3 metres. I am not prepared to conclude that the photographs demonstrate beyond reasonable doubt that the Appellants must, to an extent, have been lying upon the highway.

It is to be observed, in any event, that Mr Boyd’s submission as to the evidential significance of the photographs was not advanced to the District Judge, or, if it was, there is no reference to it in the Case Stated. It is clear that the District Judge proceeded upon the basis that the green line marked the boundary between the private road and the highway, notwithstanding his finding at paragraph 19 e. – see in particular paragraph 19 a, b, c and g (paragraph 15 above).

In his written submissions and orally Mr Boyd also resisted the appeal on the basis of points which the Appellants’ counsel complain were never taken before the District Judge and form no part of the Case Stated. Let me first identify the points relied upon. Mr Boyd submits that the Byelaws were before the District Judge as evidence. The Byelaws include a number of maps which purport to show the boundary line of the private road near the junction between The Mearing and Reading Road. Mr Boyd submits that a careful comparison between the boundary line on the maps attached to the Byelaws and the green line demonstrates that they are “approximately” the same – see paragraph 35 of his skeleton. He also submits that the line on the maps attached to the Byelaws forms a continuous line with hedge/fence along Reading Road. That, submits Mr Boyd, means that the presumption which arises that the line of the boundary is aligned to the line of the hedge should be applied and that an inference should be drawn that the boundary between the private road and the highway is as shown on the map attached to the Byelaws.

Section 32 of the Highways Act 1980 provides as follows:-

“A court or other tribunal, before determining whether a way has or has not been dedicated as a highway, or the date on which such dedication, if any, took place, shall taken into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or complied, and the custody in which it has been kept and from which it is produced.”

It is clear from this section that the weight to be attached to a plan or map is a matter for the court. Ms Buckley and Mr Payter submit that little, if any, weight can be given to the maps attached to the Byelaws because the scale of each of the maps is 1:4000. I accept their submissions. I am not prepared to conclude that the maps can provide a useful tool in establishing the precise location of the boundary between private road and highway given their scale. The reality of this case is that the precise location of the boundary is all important. The District Judge was clearly entitled to attach some weight to the map produced by Mr Mann given its provenance and no doubt, too, the fact that it has a scale of 1:500. Inevitably, on account of their respective scales, the map produced by Mr Mann had much greater significance evidentially than the maps attached to the Byelaws.

Accordingly, it is no surprise to me that the District Judge made no mention of the maps attached to the Byelaws in his Reasons justifying the convictions. Equally, I am not surprised that they are not referred to expressly in the Case Stated. I have considerable doubt about whether the points taken by Mr Boyd as described in paragraph 20 above are properly open to him to advance in this court but, regardless, I do not accept that they provide a basis for rejecting the appeal.

I have reached the conclusion that the finding of fact made by District Judge Khan at paragraph 19 e. of the Case Stated cannot be reconciled with a finding that he was sure that the Appellants laid down upon the highway.

I should say that in reaching that conclusion I have taken account of the District Judge’s finding at Paragraph 19 g. to the effect that he could be sure that “any member of the public would have the right to use The Mearings, right up until the green line, whether by foot, or in a vehicle.” I find it very difficult to understand how this conclusion is reached. I am inclined to think that this is no more than a restatement of what the District Judge was told in evidence by the police officers and Mr Mann. If that is the explanation, this paragraph cannot be taken as meaning, definitively, that the boundary between the private road and the highway was marked by the green line given the reservation expressed at paragraph 19 e.

There is a possibility, however, that paragraph 19 g. is intended to convey a conclusion to the effect that an area of the road between the green line and what had been the true boundary between the private road and the highway prior to the painting of the green line had become part of the highway. That would mean, in reality, that the true boundary had been changed and was by June 2016 definitively marked by the green line. If that is the proper interpretation of this paragraph, the District Judge has fallen into error. An area of land can be categorised as a highway or part of a highway only if established characteristics are proved. A convenient summary of the essential characteristics of a highway are set out at para. 16 Kotegaonakar v Secretary of State for Environment, Food and Rural Affairs [2012] EWHC 1976 (Admin)- Hickinbottom J’s (as he then was) summary of the law on highways is contained at paras. 14-22 of his judgement in Kotegaonakar. Further, as the learned judge points out (see paragraph 11 to 22 of his judgment) a highway or part of a highway can come into existence only if statutory provisions within the Highways Act 1980 or common law principles are satisfied. In my judgment there was simply no evidence before the District Judge which would begin to justify the conclusion that an area of the road to the west of the green line, which had been part of the private road until the green line had been painted on the road, ceased to be part of the private road and became part of the highway. There was no evidence before him that this area of road had all the characteristics of a highway and certainly no evidence to establish that an additional area of the road had been dedicated as such.

It follows that I would answer the first question posed for our consideration in the negative as submitted by Ms Buckley and Mr Payter. That means that if my lord agrees these appeals would be allowed and the Appellants’ convictions quashed.

In that event the second question does not require an answer. However, for completeness and because the point was argued, I deal briefly with it. Obviously, I do so on the basis that contrary to the views expressed above the Respondent had proved that the Appellants had laid down in the highway.

The District Judge’s reasoning for concluding that the Appellants’ obstruction of free passage along the highway was more than de minimis was succinct and to the point. It is to be found at paragraph 20 of the Case Stated.

“The Defendants lay across the width of the road in such a way as to block vehicles entering and exiting the highway; the CCTV evidence showed that whilst pedestrians were able to proceed along the highway, they had to navigate their way around the Defendants. This was an obvious and significant obstruction. I am sure that the obstruction was not de minimis.”

Assuming, as I have said, that it was proved that the Appellants were lying upon the highway at the material time I accept that the length of highway which they were covering must have been very short in distance – to be measured in centimetres. However, the District Judge is surely correct in his assessment of the effect of what the Appellants did. I accept and agree with the reasoning of the District Judge. I cannot improve upon it in my own words. It follows that I would answer the second question posed in the affirmative.

To repeat, however, I have reached the conclusion that the first question posed must be answered in the negative and, accordingly, I would allow the appeal and quash the Appellants’ convictions.

I agree for the reasons given by Sir Wyn Williams that this appeal should be allowed. I also agree that had the prosecution proved that the Appellants were obstructing the highway, such obstruction would not have been de minimis.

On the facts of this case it was necessary for the prosecution to prove that the Appellants were lying on the highway. That was the only basis upon which it was said that the obstruction was achieved. The factual finding that the boundary of the highway may not have been marked by the green line painted in the road, despite its being the obvious intention of those who placed it there that it should, was open to the Judge on the evidence he heard, in particular from Mr Mann. That factual finding coupled with the distances involved inexorably dictated the conclusion that the prosecution had failed to prove that aspect of the case. There was no basis for concluding that land which had not formed part of the highway before the line was painted at some time after 2012, had become part of the highway in the intervening years. On the judge’s factual findings, the proper inference was no more than that the Ministry of Defence were content for the public to approach the green line even if it meant crossing what was technically private properly over which no highway ran.

It is for first instance courts to make factual findings and, as is well known, an appeal by way of case stated proceeds within the four corners of the case provided by the lower court. A different fact finding tribunal might have come to the contrary conclusion.

As Sir Wyn has indicated, Mr Boyd sought to deploy material before us which had played little part in the proceedings below. He also developed arguments by reference to the well-known presumption that the boundary of a highway is usually identified by the fence or hedge at the margin of any verge. The plan produced by Mr Mann appears to have been drawn with that in mind, because the red line marking the boundary which runs across the mouth of The Mearings follows the hedge line. However, this aspect of highways law was not explored before the District Judge either in the course of evidence or argument. It should not be supposed that there is a no-man’s land between the highway and the land governed by the Bylaws. That is inherently improbable. This case does no more than show that the prosecution failed to establish by evidence before the District Judge in the course of that single hearing where the boundary lay.