The road to nowhere?
Second edition: January 1996
Peter Gray
This publication is anti-copyright and is published and distributed without profit as a public service. Please copy and re-distribute as required. The law in this book is that applicable in England and Wales as at 1st January 1996. Scottish law may be different.
I would like to thank all the people whose material I have used or who have helped in the preparation of this book, including Road Alert!, David Plumstead, Trevor Parsons, the Royal Society for the Protection of Birds, Gordon Selway and Paul Mobbs.
The contents of this book are entirely my own responsibility, and do not necessarily represent the views of the above-mentioned people and organisations, or of any organisation with which I may be affiliated.
PETER GRAY
"Basic law for road protestors" means exactly what it says. It is not a comprehensive statement of the law, and if in doubt about your legal rights you should consult a solicitor. However, it is an outline of the legal problems which a road protestor is most likely to come up against. The legal issues are set out in roughly the order in which you are likely to encounter them, from the public inquiry into a road proposal, right down to your likely sentence in court if you break the law. Copies of legal materials have been included as appendices, for reference.
This book is only about the law, but there is a lot more to protesting about roads than knowing the law. Getting public opinion and the media on your side, communications and bender-building are all important, but you won't find anything about them in this book, because I can't cover everything.
Many people today are opposed to roadbuilding, but people vary in the lengths to which they will go to try to stop a road scheme. Some people will make representations at a public inquiry, but will not break the law. Others will risk arrest, but will plead guilty and accept a caution. A small number of people will be prepared to go to prison. How far you go is largely a matter of your personal choice. Nothing in this book should be interpreted as an incitement to break the law, or to recommend one course of action rather than another. This book's purpose is to tell you what the law is, so that you can make your own informed choice.
All actions and demonstrations should be non-violent. Nobody should get hurt - and that includes police officers and site employees as well as protestors. I do not accept the excuse that people are "provoked by the police" into violence. Everyone should have sufficient self-control not to be provoked: if you haven't, you shouldn't be on an action in the first place.
Any references in this book to "he" mean "he or she". This is not sexist: I just want to save paper and ink.
Information is power. I hope that after reading this book, people will feel more empowered than they did before.
PETER GRAY
Our laws, even controversial and unpopular ones such as the Poll Tax law and the CJA, are an expression of the will of the people. The electorate elect their MPs on the basis of their manifesto commitments, and the MPs then pass Acts of Parliament and SIs to enable them to carry out their political programmes.
Similarly, a road scheme which has passed a public inquiry is an expression of the will of the people. The inquiry is held according to rules passed by democratically elected MPs, the public are allowed to make representations at the inquiry, the inspector's recommendation is accepted by a democratically elected Secretary of State for Transport, and the road scheme is paid for by democratically raised taxes as part of a roads programme which the electorate voted for.
Generally speaking, people should obey the law, because if they did not, we would have chaos and society would not function. On the face of it, therefore, it does not seem democratic or justifiable to take unlawful action to oppose a road scheme. And yet there are arguments on the other side.
If society has been misled as to the true costs and benefits of a road scheme - for example, if people have been told that a road will prevent congestion, create jobs and benefit the environment, when it will do none of those things - then the decision to build the road is flawed.
Also, if an individual road, or the roads programme in general, will cause permanent damage to the environment, one should take into account the needs and wishes of future generations, who do not have a vote in our electoral system. If we decide, collectively, to destroy areas of outstanding natural beauty, make species extinct, raise the temperature of the planet, destroy the ozone layer or use up the oil reserves, then even if we make those decisions lawfully and democratically, we may still not be morally justified in taking those actions.
Many of our fundamental civil rights have come about, at least in part, because people were prepared to defy the laws of their time. For example, within living memory suffragettes broke the law in order to highlight the injustice of denying women the vote.
In practice, in 95% of cases the inspector recommends that the road should be built, and the Secretary of State agrees.
Despite its name, a public inquiry is not very user-friendly to the public. The atmosphere is intimidating to people who are shy about speaking in public. There are large numbers of lengthy documents put before the inquiry, which most people do not have time to read, and might not understand even if they did. The lawyers and experts for the Highways Agency or County Council proposing the scheme are better trained and appear to be more knowledgeable than the average member of the public. The inquiry usually sits during the daytime, which means that people who have jobs will find it difficult to attend. And the inquiry can go on for months, which means that only those who are able to attend for the whole of the inquiry are able to build up a complete picture of the evidence which has been given. In practice, the only people who attend for the whole of the inquiry are the proposers of the road scheme and the inspector.
Despite these drawbacks, it is worth attending the inquiry and making representations, because it is an opportunity to make your views known.
The Department of Transport (DoT) publishes a blue booklet entitled "Public inquiries into road proposals - what you need to know." It is available free from the Highways Agency (see address list at Appendix 16). It is worth reading this, but please bear in mind that it is what the DoT wants you to know about public inquiries, which is not necessarily the same thing as what you need to know about them.
For reference, you will need a copy of the official rules of the inquiry. The most likely set of rules for a road inquiry is the Highways (Inquiries Procedure) Rules 1994 (SI 1994 No. 3263). This is available from libraries and HMSO, and a copy is reproduced at Appendix 1.
In certain circumstances, other sets of rules may apply. These are:
If you own land which is directly affected by the proposed road, you are a "statutory objector" and you have a right to be notified of the inquiry and to make representations at it. Any other person may only make representations at the discretion of the inspector: however, as long as you have something relevant to say, the inspector will usually allow you to say it.
There may be a pre-inquiry meeting, which is mainly to set a provisional timetable for the inquiry. You should attend, let the inspector know your dates of availability and how long you are likely to need to present your case, and ask for as many evening sessions as possible so that working people have the chance to make representations outside working hours. It will also boost your confidence if your own supporters can attend on the day you present your case.
You should have a reasonable opportunity to inspect and take copies of the documents to be put before the inquiry. A photocopier should be made available. There will probably be dozens of documents, including draft orders, witness proofs of evidence, statements of reasons, environmental statements, and supplementary statements prepared during the inquiry.
You may (at the inspector's discretion) call witnesses to give evidence on your behalf, or cross-examine the other side's witnesses. You may also (at the inspector's discretion) put in a written statement instead of making a speech at the inquiry.
The rules of the inquiry say that representatives of government departments shall not be required "to answer any question which in the opinion of the inspector is directed to the merits of government policy." This is usually interpreted to mean "no person shall make any statements which are directed to the merits of government policy." However, the interpretation of this rule is a grey area. A statement to the effect that we should divert money from roadbuilding to public transport is clearly directed towards government policy, and would be disallowed. A question asking for clarification of what Government policy is, should be allowed, because it is not questioning the merits.
Challenges to the accuracy or methodology of traffic forecast figures have sometimes been regarded as directed towards Government policy, on the ground that it is Government policy to use certain forecasting methods, but in my view this is an incorrect interpretation of the rule, and such questions should be allowed. If in doubt, ask the question, and be prepared to justify to the inspector why it does not breach the rules and should be allowed. There must be sensible limits as to what is considered to be government policy and what is not. For example, if one takes the view that it is government policy to build the road, then the whole inquiry is directed towards government policy and should be disallowed.
The order of speakers at the inquiry is at the inspector's discretion, but is likely to be as follows. The promoters (Highways Agency or County Council) will present their case first. Their lawyer will make an opening speech, after which they will call expert witnesses, who are likely to give evidence on:
When all the evidence has been heard, each statutory objector will be invited to make a closing speech, summing up the evidence favourable to his position. The promoting authority goes last.
If you want to propose an alternative route, you should think it out carefully and give rough details of your proposed route to the DoT at least 14 days before the inquiry, otherwise it will not be considered. You should also be prepared to back up your proposal with evidence at the inquiry, and be cross-examined on it.
Some practical points: stand up when speaking (unless the inspector invites you to sit down) and address the inspector as "Sir". Don't speak out of turn, or interrupt other people when they are speaking, because the inspector may ask you to leave. Conversely, of course, don't allow anyone other than the inspector to interrupt you. The inspector may stop you if he feels that you are being irrelevant, discussing Government policy or saying something which someone else has already said earlier in the inquiry. Try to stay cool, calm and polite (which may be difficult).
It is worth trying to cross-examine the other side's expert witnesses, but it is difficult to do this effectively. You will need to know both their case and your own inside-out, and preferably have had some practice in cross-examination technique at a workshop beforehand. Experts rarely say things which are obviously incorrect - they would be too easily found out - but they can manipulate a case in other ways. They can omit information which is inconvenient, or pass off opinion as fact, or use jargon to cover up muddled thinking, or make estimates without indicating what the margin of error is.
Remember that however "expert" the expert appears to be, if he is supporting the road, then he has come to the wrong conclusion, so there must be flaws in his reasoning somewhere.
Good cross-examination technique involves asking "closed" or "leading" questions rather than "open" questions. An example of an "open" question is "Is this an accurate estimate of traffic flow" to which the expert will naturally answer "yes", which won't get you very far. It is better to put him on the spot by asking a "leading" question, such as "Taking induced traffic into account, traffic flows could be 50% higher than those you have predicted, couldn't they?" to which the expert will have to come up with a sensible answer or risk sounding evasive.
In a good cross-examination you should "put your own case" to the other side, rather than just ask them questions.
If you are calling a witness to give evidence on your behalf, the opposite rule applies, and you must not "lead" them, but ask them open-ended questions and allow them to give their evidence in their own words.
When the inquiry is over, it will probably take several months for the inspector to write his report and for the Secretary of State for Transport to consider it. The decision will then be notified to the promoting authority, the statutory objectors, and you if you specifically ask at the inquiry to be notified.
If new evidence arises between the close of the inquiry and the Secretary of State's decision, you should notify the Secretary of State by writing him a letter or sending him a post-inquiry proof of evidence. If the new evidence is sufficiently compelling, it may cause him to come to a different decision to the inspector, or ask for the inquiry to be reopened. You should make it clear to him what you want him to do.
The Secretary of State's decision is normally final, but if there has been any material irregularity in the conduct of the inquiry it may be possible to challenge it in the High Court by way of judicial review. This is very difficult and expensive and should not be attempted unless you are sure of your grounds.
This has implications for the environment. For example, if one country uses a manufacturing process which is cheap and environmentally damaging, and another country uses a process which is expensive and clean, then the first country would have an unfair economic advantage over the second, at the expense of the environment. EC law aims to prevent this, but how successful it is in doing this is open to debate.
An enormous amount of EC law flows out of Brussels each year. When collected together, a year's output is similar in size to the Encyclopaedia Britannica. There are four particularly important pieces of EC law as far as road protestors are concerned: the Birds Directive, Environmental Impact Assessment Directive, Access to Environmental Information Directive and Habitats Directive. These are all EC Council Directives, which do not have direct or immediate effect in UK law, but must be given effect by the UK Parliament passing a piece of legislation: either an Act of Parliament or a Statutory Instrument. An EC Directive usually specifies a time limit within which this must be done.
The UK government has been persistently slow and reluctant to implement EC environmental law. It is therefore possible that the UK legislation which purports to give effect to the EC law does not, in fact, do so in its entirety. If there is a conflict between EC and UK law, environmental campaigners should rely on the wording of the original EC Directives. I have therefore reproduced these as appendices to this book, but not the corresponding UK legislation.
If the letter or the spirit of any of the directives appears to have been breached, environmental campaigners should protest immediately to the Highways Agency or Council promoting the scheme, the inspector of the inquiry, and the European Commission.
Birds Directive
The full title of this Directive is "Council Directive of 2nd April 1979 on the conservation of wild birds (79/409/EEC)." It was notified to member states on 6th April 1979, and was published in the Official Journal of the European Communities on 25th April 1979, page L103/1. The time limit for giving effect to it was two years from the date of notification. It was brought into UK law by the Wildlife and Countryside Act 1981. The provisions of this Act relating to birds came into force in September 1982, over a year after the deadline set by the EC Council.
This Directive was made in response to concern about the declining numbers of many wild bird species throughout the EC. It sets out measures which should be taken to protect all wild birds, and in particular certain named species which are considered to be particularly vulnerable. Measures include a prohibition on killing birds, selling birds, destroying or removing nests and eggs, disturbing birds, particularly in the breeding season, and conserving their habitats.
The main parts of the Directive which concern road protestors are those relating to habitat conservation, which are contained in Articles 1 to 4 and Annex 1. I have therefore reproduced these as Appendix 2.
The original Birds Directive was amended in 1991 by the replacement of Annex 1 (the list of birds needing special conservation measures) and again in 1995, by adding another seven species. The original Annex 1 listed 74 species: the new Annex 1 (as amended) lists 182 species. All of the species which were in need of special conservation measures in 1979 are still in need of special conservation measures today. This suggests that environmental damage is not improving, and is probably worsening.
Environmental Impact Assessment Directive
The full title of this Directive is "Council Directive 85/337 of June 27th 1985, on the Assessment of the Effects of Certain Public and Private Projects on the Environment." It was notified to members states on 3rd July 1985, and published in the Official Journal of the European Communities on 5th July 1995, page L 175/40. The time limit for giving effect to it was three years from the date of publication. It was brought into UK law, as far as roads are concerned, by the Highways (Assessment of Environmental Effects) Regulations 1988 (SI 1988/1241). This came into force on 21st July 1988, over two weeks after the deadline set by the EC Council.
This is arguably the most important of the three Directives, and is reproduced in full at Appendix 3. It requires member states to conduct and publish an environmental impact assessment (EIA) on projects which are likely to have significant effects on the environment. The EIA must identify, describe and assess the direct and indirect effects of a project on the following factors:
Environmental campaigners should ensure that any EIA meets the requirements of the Directive. If the EIA appears to be inadequate in any respect, this should be brought to the attention of the Highways Agency or Council promoting the road, the inspector of the inquiry and the European Commission. An EIA would probably not be judged inadequate solely on account of minor errors or omissions - no assessment is ever perfect - but it would be inadequate if there was a major error or omission which was likely to materially affect the outcome of the inquiry.
Possible remedies for an inadequate EIA include:
At the end of the day, the protection afforded to the environment by an EIA is relatively limited. A scheme may be proposed which is very environmentally damaging, but provided its damaging effects have been properly set out in the EIA, and properly considered at the inquiry, it can still be implemented.
Access to Environmental Information Directive
The full title of this Directive is "Council Directive of 7th June 1990 on the freedom of access to information on the environment (90/313/EEC)." It was published in the Official Journal of the European Communities on 23rd June 1990, page L 158/56. The time limit for giving effect it was by 31st December 1992. I have been unable to find any single piece of UK legislation which brought it into effect: it seems to have come into effect piecemeal at various times under various provisions. However, it should be safe to assume that it is now all in force.
The entire Directive is reproduced at Appendix 4. It gives wide powers to individuals to obtain information on all aspects of the environment from public authorities at national, regional or local level. The individual does not have justify why he wants the information. Certain exceptions are provided for: for example, information does not have to be disclosed if the disclosure might harm the environment, such as disclosing the whereabouts of badger setts. But a refusal to disclose information must be justified by the authority concerned. A reasonable charge may be made for supplying the information.
Arguments can be won or lost on facts, so the more facts you have about the environment, the better. This Directive makes it easier to find out the facts.
Habitats Directive
The full title of this Directive is "Council Directive 92/43/EEC of 21st May 1992 on the conservation of natural habitats and of wild fauna and flora." It was published in the Official Journal of the European Communities on 22nd July 1992, page L 206/7. The time limit for giving effect to it was two years from its date of notification. It was brought into UK law by the Conservation (Natural Habitats etc.) Regulations 1994, which came into force on 30th October 1994. Assuming that the date of notification was no later than the date of publication, it came into force over three months after the deadline set by the EC Council.
This Directive is the longest and most complicated of the three, and for those reasons it is not practicable for me to reproduce it in full. I have, however, reproduced the preamble to it, which is the only part intelligible to the average lay person, at Appendix 5.
The Directive consists of 43 pages of highly technical descriptions of threatened Community species and habitats which should be conserved. The purpose of the Directive is to maintain biodiversity, promote sustainable development and prevent further deterioration of species and habitats. It sets up special conservation areas in a coherent European ecological network called Natura 2000, and a system for continuing surveillance.
This is clearly a very important Directive, and should be referred to at any public inquiry into a road scheme where endangered species or habitats are threatened. However, the technical nature of the Directive means that you will probably need an environmental or biological expert to interpret it and to give evidence about it on your behalf. Perhaps someone from a local university may be willing to help. Hopefully, if your expert is sufficiently familiar with the environmental issues, he or she should already have a copy of the Directive. Failing that, a copy can be obtained from good law libraries with an EC law section, or as a last resort, I can provide you with a copy.
In order to be a limited company, a company must be registered at Companies House and must comply with company law, of which there is a great deal, contained mainly in the Companies Act 1985 (CA). A company consists largely of three groups of people: the directors, who are the "brains" behind the company, make decisions and direct its operations; the employees, who are the "hands" of the company and carry out the orders of the directors; and the members, or shareholders, who put money into the company and receive shares, dividends or other benefits in return.
There is some overlap between the three groups: for example, directors and employees can also be shareholders. Also, a company can have members but no shareholders, profits or dividends. The BRF is one such company: membership is obtained by paying œ500 or more per year, and the benefits of membership are not financial but information and political lobbying.
A company is set up largely to protect the directors and members from financial losses. If the company fails, it can be wound up, and usually the personal assets of the directors and members are safe from creditors. This is in contrast to a partnership, where partners' assets are at risk if anything goes wrong.
However, the downside of this financial security is that a limited company must comply with strict rules regarding its operation and disclosure of information to its members, the general public and the Registrar of Companies. This is so that everyone can ensure that there is nothing underhand going on in the company's affairs. Failure to comply with any aspect of Company law is punishable by a criminal prosecution of the company secretary.
Company law is particularly useful for road protestors in obtaining information, and I have divided this into two categories: information available to any member of the public, and information available to members/shareholders. Relevant sections of the CA are reproduced at Appendix 6.
Information available to the public
A great deal of information can be obtained by doing a company search via Companies House (see address list at Appendix 16). For a payment of œ5.50 you are sent, usually by return of post, a set of microfiches containing:
There is unlikely to be a list of company members/shareholders in the Companies House microfiches, because the list may be very long and may change from day to day. The Register of Members is normally kept at the company's registered office. Any company member can inspect it without charge, and any member of the public can inspect it on payment of œ3 to the Registrar of Companies (Section 356 CA).
It is worth asking to inspect the Register of Members of your favourite company if only to throw them into confusion, because most companies will never have heard of section 356 of the CA before. I tried this successfully with the BRF. I sent them an initial letter which they ignored. I then sent a second letter to the company secretary, threatening him with a private prosecution if he failed to allow me to go to his office and inspect the register. I received a gratifyingly swift response, and made an appointment to inspect the register. When I got there, I discovered that they had not previously had a proper Register of Members and that they had made one up, consisting of about 300 pages, specially for me to inspect. They didn't even charge me the œ3 statutory fee. Such is the power of the law.
Information available to members/shareholders
If the company is publicly quoted on the stockmarket, you can become a member/shareholder by buying a single share. Some companies will sell you shares direct: try ringing their registered office. If not, you will need a friendly bank or stockbroker to help you with this. If the company is a private one, such as the BRF, you would have to apply for membership and probably pay a large fee. Membership of companies like the BRF is strictly controlled, and you might have to give the impression that you are a road haulage company or similar.
Having become a member, you then have a great many rights in connection with the company. I can't list them all here - if you want to know what they are you should read the Companies Act 1985 - but the more important ones are:
Assuming that you have decided to hold a demonstration, you should hold it within the terms of sections 11 to 14 of the Public Order Act 1986 (POA). These sections are reproduced at Appendix 7. They are fairly self-explanatory, and the main points to note are that the organisers must give 6 clear days notice to the police, in writing, stating the date, time and proposed route of the procession and the name and address of the person proposing to organise it.
You do not need permission from the police to hold a demonstration. However, the police may impose conditions if they reasonably believe that the procession may result in serious public disorder, serious damage to property, serious disruption to the life of the community, or intimidation. "Serious disruption to the life of the community" may include traffic congestion or blocking shopping streets. The conditions imposed by the police must be reasonable: if they are not, they can be challenged in court by judicial review.
In extreme cases the police may ban a procession, but they cannot do this on their own initiative: they must first obtain an order from the local council.
There is no requirement to give advance notice of an assembly or meeting, but if you do give advance notice, or the police suspect that an assembly will take place in connection with the procession, they may impose conditions on the assembly, such as restricting the place, duration and number of participants. They can also impose conditions on a procession or assembly on the spot. For legal purposes a "public assembly" means an assembly of 20 or more persons in a public place which is wholly or partly open to the air: POA section 16.
If you deliberately fail to comply with any directions given by the police you are almost certainly committing an offence.
Sections 70 and 71 of the CJA deal with "trespassory assemblies." These sections are meant to be grafted on to section 14 of the POA, and I have therefore reproduced them there. A trespassory assembly is what it sounds like: an assembly of trespassing persons on private or semi-private land, as opposed to an assembly in a public place. This legislation is aimed mainly at preventing free festivals such as the one at Stonehenge. Under certain circumstances, a chief police officer can apply to the local council for an order prohibiting a specified assembly. Once an order is granted, anyone who organises, takes part in or goes in the general direction of the assembly may be arrested.
The native American Indians had no concept of ownership of land. To them, the people belonged to the land, not the land to the people. They did not therefore have any concept of "trespass."
However, this is unfortunately not the case with UK law, which takes the view that all land belongs to somebody. Usually, the owner of land is the person to whom the land is registered at the Land Registry. If the land is not registered, it belongs to whoever can prove title to the land, and if nobody can prove title to the land, it belongs to the Crown. Land may also be occupied by tenants or leaseholders who hold a tenancy or lease from the owner.
Therefore, if you go on to land without permission, you are trespassing. You may also be trespassing if you have permission to go on land for one purpose, but you use it for another purpose: for example, if you have a right to cross a piece of land, that does not necessarily mean you have right to camp on it.
Unauthorised camping, tree-dwelling, squatting and obstructing work on site are all forms of trespass. Before the Criminal Justice and Public Order Act 1994 (CJA) came into force, these were mainly civil matters between the trespasser and the landowner, which had to be dealt with in the civil courts. However, since the CJA came into force on 3rd November 1994, many more of them have become criminal offences. The most relevant sections of the CJA, namely sections 61 to 69, are reproduced at Appendix 7.
It has always been the case, even before the CJA, that an owner or occupier of land could remove trespassers from his land using reasonable force without the help of the police or a court order. That is still the case today. However, landowners (including the DoT) will nearly always involve the police, or go to court for an order, to remove trespassers, because it is easier and safer for the landowner. If a landowner removes people using excessive force, or removes people who he thinks are trespassers but who subsequently turn out to have a right to be there, he risks ending up in court himself.
A number of conditions must be satisfied, including damage to the land (which can be as minor as trampling on grass or lighting a fire), and there must be two or more persons trespassing.
Sections 77 to 80 of the CJA deal mainly with New Age Travellers and their vehicles, which is a form of unauthorised camping. However, this has limited relevance to road protesting, so I have not reproduced these sections in the Appendix.
Even before a rave starts, under certain conditions people who are preparing, waiting for or going to a rave may be directed to leave the land or not proceed to the land, as the case may be. Sound equipment may be seized, forfeited and destroyed.
The police can arrest and remove squatters if they are occupying someone's home and that person wants to come and live there. The owner of the property is then a "displaced residential occupier" or a "protected intending occupier" and has special protection under sections 72 to 76 of the CJA. However, it is unlikely that these provisions will apply in the context of a road protest, as most squatted properties will be empty, compulsorily purchased and/or due for demolition. Quite apart from that, it is not very nice to squat in someone's home. I have not therefore reproduced these sections of the CJA in the Appendix.
If a squatter causes damage to property, either to break in or after he has entered the property, this is not squatting: it is burglary and/or criminal damage which are both serious offences. A possible exception to this is a property which is due to be demolished, because it is unlikely that any prosecution for criminal damage would be brought in those circumstances. However, you should still not remove anything from the property, such as lead or slates, as this would be theft from the landowner or the demolition contractor.
The main protection for squatters is section 6 of the Criminal Law Act 1977 (CLA). This prohibits any person from using or threatening unlawful violence for the purpose of securing entry into any premises. There is a lot of misunderstanding and mythology about section 6 of the CLA, so I have reproduced it in full at Appendix 9 so that people can see for themselves exactly what it says.
It is common for squatters to put up notices reminding landowners about squatters' rights under section 6 of the CLA. These notices often say that entry into the property without the squatters' permission is a criminal offence, that a court order is needed to evict them, and all sorts of other things. Most of these statements are bluffs, which may scare off digger drivers or security guards, who don't know the law, but will not deter police or bailiffs, who do. The main right you can rely on is not to have unlawful violence used or threatened towards you or your property.
"Unlawful violence" means the same as "excessive force" which essentially means more force than is reasonably necessary in the circumstances. If you are resisting eviction by locking-on or barricading yourself in, a certain amount of force will be necessary to remove you, but it should not be unnecessary force or force which causes you to be injured.
As I have already said, trespassers, including squatters, can be evicted from land or property at any time without a court order by the landowner and/or his agents using reasonable force. Squatting as such is not normally a criminal offence, and at this stage the police should not be involved. However, the landowner may want the police and/or court officers to evict squatters on his behalf. He can do this in two ways.
If the property has been compulsorily purchased (which is often the case for road schemes), the landowner can issue a warrant to the Sheriff of the High Court requiring him to deliver possession of the land or property. Sheriff's officers are officers of the High Court, in the same way that bailiffs are officers of the County Court. As long as the landowner can prove that the property has been compulsorily purchased, and that some person or persons on the land is/are hindering him from taking possession of it, he does not have to notify the occupiers of the land about the warrant or have a Court hearing, even if they were bona fide tenants or owners of the land before the compulsory purchase.
Upon taking possession of the land, the sheriff's officers can seize the goods of the persons on the land, and sell them in order to offset the costs of issuing the warrant. These provisions are contained in section 13 of the Compulsory Purchase Act 1965 (CPA), which is reproduced at Appendix 10.
Under section 10(1) of the Criminal Law Act 1977 and section 8(2) of the Sheriffs Act 1887, any person who resists or intentionally obstructs an officer of the court who is enforcing a writ or order for possession commits an offence and may be arrested.
Although section 13 of the CPA does not specifically say so, it is arguable that a sheriff's warrant can only be issued once without a court order. If trespassers return to the property after that, a court order may be needed to get them out a second time. This interpretation has never been tested in court, so I wouldn't rely on it too heavily.
As an alternative to issuing a sheriff's warrant, a landowner can obtain a court order for possession of the land. This is a more complicated procedure, and requires the occupiers to be given at least two clear days' notice of the court hearing, and the right to attend the hearing and make representations. Notice may be served by handing the court documents to people, posting them through the letterbox or fixing them to doors, trees or stakes in the ground.
Proceedings may be brought in the High Court for large and expensive pieces of land, or in the County Court for smaller and less valuable pieces of land. A High Court hearing may take place in the Royal Courts of Justice, The Strand, London, or in the local District Registry of the High Court, which is basically the County Court wearing a different hat.
In the High Court, proceedings are governed by Order 113 of the Rules of the Supreme Court (the "White Book"). The County Court equivalent is Order 24 of the County Court Rules (the "Green Book"). These rules are reproduced at Appendices 11 and 12, respectively.
Normally proceedings against squatters will be commenced against "a person or persons unknown." If you are affected by the proceedings, you have a right to make representations in court, but you will first be required to give your name and be formally joined in the action. This means that when you lose the case (as you will eventually) an order for costs may be made against you. If you have no money, it is possible that a costs order may not be made, or if it is made, it may not be enforced, but it is worth bearing in mind.
Despite these drawbacks, it is worth attending court and making your views known. If there have been technical irregularities in the proceedings, and the relevant rules of court have not been complied with, you may be able to get the proceeding set aside. However, the judge will need to be persuaded that it would be fair to do so, so you will have to think through your arguments in a logical way. There is little point, for example, in arguing in court that you were not given proper notice of the proceedings, when the very fact that you are present in court proves that you knew about them.
One point which has been successfully raised on more than one occasion is the duty of the local authority to give proper consideration to rehousing the evicted people, particularly where children or gypsies are involved. You may also wish to challenge the title of the person or authority bringing the case to ownership of the land.
Appearing in court may delay (although not prevent) eviction. If you don't have enough time to prepare or present your case properly, ask for an adjournment. It is also an opportunity to involve the local media and present your case to a wider audience.
Once you have been joined as a defendant to the action, you have the right to inspect and/or be given copies of documents in the court file relating to your case. If you inspect the file regularly, this may give you advance warning of when the eviction is likely to be, and what tactics are likely to be employed. If the court officials refuse to allow you to inspect the file, you should point out to them Order 63 Rule 4 in the High Court, and Order 50 Rule 10 in the County Court. These are reproduced at Appendix 13.
If you really get the bit between your teeth, you could appeal against a possession order. Protestors against the M65 motorway in Lancashire went to the Court of Appeal, but this is expensive and not for the faint-hearted.
If a roadside verge is part of the site, then security guards are entitled to order you off it, and remove you using reasonable force if necessary. However, you have as much right as any other road user to walk on that part of the road which is dedicated as highway (apart from motorways, where special rules apply). Therefore, if walking on the road forces the traffic to slow down or stop, then so be it: both parties have exercised their legal rights.
If you are ordered by a police officer not to walk on the road, you should obey his instructions but ask him to make it clear what he is ordering you to do: is he ordering you to walk on the verge, or to turn back and not use the road at all? Make a careful note of what is said, and the circumstances, and if necessary seek legal advice.
If you are ordered to walk on a congested road, and you are hit by a vehicle, you will probably have a cause of legal action against the driver of the vehicle, but not against the owners or employees on the site.
Many road schemes are built out in the countryside, and it may be necessary to use a car to get there. If a police officer suspects that you are a road protestor, and that you are the driver of a car, he may ask you to produce your driving licence and other documents.
The law says that you are only required to produce your driving documents to a police officer if asked to do so while driving, or if you are suspected of committing a road traffic offence or being involved in an accident: sections 164 and 165 of the Road Traffic Act 1988, reproduced at Appendix 14. "Driving" for legal purposes means all activities associated with driving, such as stopping to buy petrol, sitting in the car with the engine running, temporarily stopped at traffic lights or in a traffic jam, or securing the car before you leave it.
If you have left and secured the car at the end of your journey, and the police officer's only purpose in asking for your driving documents is to find out who you are, you are entitled, politely but firmly, to refuse.
It is an offence to wilfully obstruct free passage along a highway: section 137, Highways Act 1980. A person driving or propelling a vehicle of any kind (including a bicycle) must obey the directions of a police officer directing the traffic: section 35 Highways Act 1988 and section 163 Road Traffic Act 1988. These provisions would apply to direct-action "Reclaim the Streets" type actions such as holding unauthorised street parties, mass cycle rides, erecting tripods and so forth.
During the Twyford Down protest, the Department of Transport obtained injunctions against a large number of protestors to stop them entering the construction site. That was before the CJA came into force. Nowadays, injunctions are less likely to be used, because the police have more extensive powers under the CJA to arrest and remove people from private land.
A temporary injunction can be obtained "ex parte" (without forewarning the defendant) but this will be strictly limited in time, usually 7 to 14 days. After that, the defendant must be given an opportunity to attend a court hearing and say why the injunction should not be made. After hearing all the evidence, if the court is satisfied that the injunction should be made for a longer period, it will make an injunction order and usually order the defendant to pay both sides' costs of the proceedings.
An alternative way of dealing with an application for an injunction is for the defendant to give an undertaking. This is a promise to the court to do, or not to do, the thing which is requested or complained of. An undertaking has the same force as an injunction, namely that if you break it, you can be imprisoned for contempt of court. However, it has the advantage from the defendant's point of view that no evidence is presented, no finding of guilt is made and usually no costs are ordered.
Surprisingly, "land in the open air" does not include roads, so you could in theory stand on the old road and attempt to deter or disrupt people working on the new road, for example by talking to them (but not by throwing things, as this is a form of trespass).
If a police officer reasonably believes that you are committing, have committed or intend to commit aggravated trespass, he can direct you to leave the land. If you fail to leave as soon as practicable, you commit an offence and can be arrested, even if you haven't done anything.
This is an old and rather archaic common-law matter. It is poorly defined, but police have the power to arrest for it. They therefore very often arrest people for "breach of the peace" if they think that someone ought to be arrested, but can't think exactly what else to arrest them for. They can then be brought before a magistrates' court. The purpose of arrest and binding over for breach of the peace is in theory to prevent crime, rather than to punish a crime which has been committed.
There is no penalty specified for breach of the peace, but a person may be bound over to keep the peace in a certain sum of money for a certain period of time. The person concerned must agree to the binding-over. The effect of it is that if he comes before the court again, that sum of money may be forfeited, but no additional penalty may be imposed. If the person does not agree to be bound over, or does not pay the money, he can be imprisoned: section 1 Justices of the Peace Act 1968.
A binding-over is not a conviction, and a person agreeing to be bound over does not get a criminal record. He can be bound over even if he has been acquitted of other offences at the same hearing. The sum in which a person is bound over must be proportionate to his financial means.
However, for an arrest to be lawful, it is essential that it be made clear to the person the fact of and reason for the arrest, even if it is obvious from the circumstances: section 28 Police and Criminal Evidence Act 1984 (PACE). Sections 28 and 30 of PACE are reproduced at Appendix 15. Facts and reasons must be given at the time of arrest or as soon as practicable thereafter.
The arresting officer should normally have a reasonable suspicion that an offence has been, is being or is about to be committed. This is not as high a standard as proving it in court, so it is quite reasonable and lawful for an arrest to be made on suspicion, and for there then to be insufficient evidence to proceed further, and the person is then released. That in itself would not constitute an unlawful arrest.
The fact of and grounds for the arrest may be given in colloquial language, for example "You're nicked for obstruction", provided the arrested person understands the fact of and reason for the arrest. It is not necessary to quote the exact wording and section number of the relevant Act of Parliament.
A person is entitled to resist an unlawful arrest by using reasonable force, but I would NOT advise anyone to try this. In the heat of the moment, you may think an arrest is unlawful when in fact it is lawful, or you may use more than reasonable force, and in either case you are likely to get into a whole heap of trouble. It's better to submit to the arrest at the time, and sue afterwards if the circumstances warrant it. Similarly, do not try to prevent anyone else being arrested.
You can be arrested:
An unlawful arrest constitutes false imprisonment for which you can sue for damages. It will probably also be a technical assault. Normally, if you have a good case for an unlawful arrest, the police will settle out of court.
Security guards can perform citizens' arrests on basically the same principles as for police officers. There is a suggestion that they don't have to state the fact of or reason for the arrest if those facts are obvious, but this point is not entirely clear from section 28 PACE. A security guard or other private citizen performing a citizen's arrest must hand the arrested person over to the police as soon as practicable: anything else would be kidnapping.
After you have been arrested by the police and removed from the site of a protest, you may feel that most of what you want to achieve has been achieved. Work has been temporarily stopped on site. You have made your point and drawn attention to the environmental problem. The media (if present) have got their story, their photographs and a figure for the number of arrests. Your dispute is with the Department of Transport and their contractors, not with the police, who are (in theory) neutral.
Therefore, is there any point in continuing to protest, or should you co-operate with the police? Many environmental and civil rights organisations advocate protesting until the bitter end, giving only the bare minimum of cooperation, saying nothing apart from giving your name and address, and pleading not guilty.
However, there is a lot to be said for giving in gracefully at this point. Some of the police may sympathise with what you are trying to do, and in arresting you they are only doing their job. If you confess and are pleasant and cooperative, you are more likely to be offered a caution or released without charge. Even if you are taken to court, a guilty plea will mean a lighter sentence, less prolonged proceedings and no bail conditions. You may prefer to do more useful things with your money than pay a court fine.
After weighing up the alternatives, the choice is up to you.
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."
This partially takes away the old "right to silence." If you have a valid defence to whatever you have been arrested for, you should say what your defence is and make sure that the police officer writes it down, or write a statement yourself. Alternatively, you can still say nothing, in which case if the case comes to court the prosecution are obliged to prove the case against you "beyond reasonable doubt" by presenting evidence: see below.
The law relating to detention in custody and questioning is complicated and I can do no more than outline it here. Most of the details are contained in PACE. You may be held without charge, for questioning if necessary, for up to 24 hours for minor offences, although usually the time period is much shorter. After that time you should be charged or released. If you are charged, you will probably be granted police bail. However, if you have offended before, or the police think you may offend again if released, you may be remanded in custody. If you are remanded in custody, you must be brought before a magistrates' court as soon as practicable, where the question of bail will again arise (see below).
Preconditions for a caution are that the evidence must be sufficient for a prosecution, and the offender must admit guilt and agree to be cautioned. Upon being cautioned, the offender must sign a form admitting the offence and agreeing to the caution. Cautions are often used for juveniles, and adults who would probably receive a light sentence (conditional or absolute discharge) on conviction.
Records of cautions are kept for three years. A caution is not a conviction. If a cautioned person is subsequently convicted of an offence, the caution may be cited at the sentencing stage, and may influence the magistrates to impose a slightly heavier sentence than they might otherwise have done.
A person who is released on bail is under a duty to attend court at a time and date notified to him. In its simplest form this is "unconditional bail." However, conditions may be attached, and in the case of road protestors, a common condition is that you do not go within a certain distance of a road construction site, say half a mile. Other conditions may be reporting to a police station at regular intervals, living at a certain address or putting up a sum of money as a surety, which is forfeited if you breach bail. Breach of any of these conditions is a separate offence for which you can be separately convicted and sentenced.
If you are refused bail, or you think your bail conditions are unreasonable - for example, if you live within an area from which you have been excluded - you can apply to the magistrates for bail to be granted, or bail conditions to be varied. If the magistrates do not agree, you can appeal to a Crown Court judge.
You should stand up whenever the magistrates come into or go out of the court. If a road protestor is in custody, it has been known for supporters in the public gallery to also stand up when the defendant is brought into the dock. This is an unconventional manoeuvre but as far as I know there's no law against it.
You will first be asked to confirm your name and address, the charge(s) will be read to you by the clerk of the court, and you will be asked whether you plead guilty or not guilty.
If you plead guilty, you will be asked to sit down. The prosecutor will then read a summary of the facts comprising the case against you. He will then hand up to the magistrates a sheet containing your previous cautions and convictions (if any).
You should be given an opportunity to check that these are correct. The prosecutor will conclude by asking for costs, usually in the region of œ40.
You will then be asked to stand, and to say whatever you wish to say. There are usually three magistrates: address the middle one as "sir" or "madam" or all three of them as "your worships." Always stand up straight when speaking to the magistrates, take your hands out of your pockets, and try to avoid scratching your head or your bottom or picking your nose, no matter how powerful the urge.
If you agree that you committed the offence, but you disagree with the exact facts alleged by the prosecution, you should state your version of the facts. The magistrates are obliged either to accept your version or to hear evidence of the prosecution version from witnesses, so normally they will accept your version.
You should then state any facts in your favour which ought to influence the magistrates to give you a light sentence: for example, you pleaded guilty and were cooperative with the police, it is your first offence, you are on income support and don't have much money. However, if you go too far and say something which amounts to a defence to the charge, for example that it was an accident or you were acting in self-defence, the magistrates may order a not guilty plea to be entered and adjourn the case for trial.
The magistrates won't be interested in hearing what you think about the Government's road-building programme, so don't bother. Tell it to the Press instead.
The magistrates will then either have a brief discussion among themselves, or go out for a while. They will then come back (if they have gone out) and announce the sentence (see below). If the sentence is a fine, they will ask you if you can pay immediately, or if not, how much a week or a fortnight you can pay, so you should think about this in advance. They will then tell you that you can go.
Half a day is a normal length of time for a reasonably straightforward trial. There may be adjournments for other reasons: for example the prosecution may want more time to prepare their case, or you may want more time to prepare your defence or obtain legal aid and advice.
Whenever a case is adjourned, the question of bail comes up. There is a presumption in favour of bail - in other words, bail should be granted unless there is a good reason not to - but there may be conditions attached: see above. You are likely to be granted bail on the same conditions as before, unless either you or the prosecution apply for something different.
At trial, the prosecution have to prove their case "beyond reasonable doubt", and that means proving every element which makes up the offence. You don't have to prove your innocence. If there is a reasonable doubt about whether you committed any element of an offence, you are entitled to be acquitted. Before the trial starts, you will asked to confirm your name and address and the fact that you are still pleading not guilty, and the order of trial will then be:
All witnesses are first examined (questioned) by the side which called them, then cross-examined by the other side. The normal rule is that when you examine your own witnesses, you prompt them to tell their story in their own words, without asking leading questions, but when you cross-examine the other side's witnesses, you ask them leading questions which demand a "yes or no" answer, such as "I wasn't sitting on the digger when you arrested me, was I?
The magistrates will retire to consider their verdict. They will then return to the court and announce their verdict.
If you are acquitted, ask for your costs of conducting the case. This includes legal and travel expenses but not lost earnings. If you are convicted, the prosecution will ask for their costs, which will be higher than for a not guilty plea: usually around œ100.
You should have the opportunity to address the magistrates on costs, and say anything in mitigation which you want to say, for example your financial circumstances, before the magistrates pass sentence.
If you lose a case, accept it with dignity and remember that you have a right of appeal to the Crown Court against both conviction and sentence. An appeal against a decision of the magistrates takes the form of a complete re-hearing of the case, with evidence, before a Crown Court judge and two lay magistrates. You must lodge your notice of appeal within 21 days of sentence.
The most likely sentences for peaceful protest are conditional discharges or fines of up to œ100. A conditional discharge means that no sentence is being imposed today, but if you commit another offence within a specified period (usually 12 months) you will be sentenced for both offences together.
If you have been violent, committed criminal damage, assaulted or obstructed a police officer or offended repeatedly, the magistrates are likely to take a dim view of it and may impose a much heavier sentence than they would have done just for a one-off peaceful protest. You have been warned.
To start a private prosecution you must "lay an information" with the
clerk at the nearest magistrates court to where the alleged offence took place.
In the case of a company law prosecution, this should be the nearest
magistrates' court to the company's registered office. An information is the
formal accusation that a certain individual (the accused) has committed an
offence. There is no specific form for this as far as I know, but it must
contain the following information:
(a) the name and address of the accused;
(b) the statement of the offence, including all the elements of the offence
and the statute (if any) relied on;
(c) the place of the offence;
(d)
the date of the offence; and
(e) the signature of the prosecutor or
informant.
An information must generally be laid within six months of the offence.
Statements of offences related to assault may take the following forms, in increasing order of seriousness:
Common assault: the accused intentionally or recklessly caused the victim to apprehend the immediate infliction of unlawful force, contrary to section 39 of the Criminal Justice Act 1988.
Battery: the accused intentionally or recklessly inflicted unlawful force on the victim, contrary to section 39 of the Criminal Justice Act 1988.
Actual bodily harm: the accused intentionally or recklessly assaulted the victim occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861.
Before laying an information, a person must be in a position to prove all elements of the offence "beyond reasonable doubt", which means putting together evidence in the form of witnesses, medical reports, photographs etc.
If at the time of the alleged assault you were acting in an aggressive manner, the accused may say that he acted in self-defence, so this is another good reason why you should act non-violently at all times.
On receipt of the information, provided it is in order, the clerk to the magistrates will then issue a summons to the accused, telling him that an allegation has been made and instructing him to attend court on a particular date to answer the allegation, with a copy to the informant.
If you think you have been assaulted by a security guard, finding out his name and address may be difficult. Photographs and detective work may be necessary. His employers aren't obliged to tell you who he is.
Once an information has been laid, however, getting information becomes easier, because the police or anyone else with relevant evidence can be compelled to produce it by means of a witness summons under the Criminal Procedure (Attendance of Witnesses) Act 1965.
In court, you then follow the procedure outlined above for Magistrates' Courts, except that you go first because you are the prosecutor.
There are a number of civil proceedings which you may want to start: for example an application for an injunction to protect archaeological remains, an action for damages against the police, or a judicial review of a public inquiry. The law and procedure for all of these is complicated, you may or may not be eligible for legal aid, and the outcome is uncertain. You will need professional advice on all of these aspects.
One thing which you should consider carefully before you start, or threaten to start, a civil action, is your chance of success. You will not get legal aid unless you have a "reasonable prospect of success", which the Legal Aid Board defines as 50% or more, and you should consider carefully whether you want to spend your own money on an action unless you have at least a 50-50 chance of succeeding. If you lose a civil action, and you are not legally aided, you will normally be ordered to pay the other side's costs, which will probably be considerably more than your own.
In order to assess the prospects of success realistically, the strengths and weaknesses of the case for both sides need to be carefully weighed up in the light of the facts, the relevant statute and case law and the normal approach adopted by the courts. The best person to do this is an independent legal advisor. Litigants in person often find it difficult to assess their prospects of success, because they are not familiar with the law and they are often emotionally bound up with their own cases.
If you decide to proceed with a civil action, the procedures are broadly similar whatever the type of action. You will issue proceedings in your local County Court or High Court by paying a fee and filing a statement of your case, usually called the Particulars or Statement of Claim. This document is then sent to the other side, who will respond by filing a Defence, setting out their side of the case. Relevant documents will be exchanged, so that neither party can spring a surprise on the other at court, and the case will be set down for hearing. At the hearing, both sides will call witnesses to give evidence. At the end of the hearing, the judge will make an order, giving his findings of fact and reasons, and (usually) order that the loser pays the winner's costs.
Special rules apply to judicial review. This is a challenge in the High Court to a decision of an inferior court or tribunal, such as a public inquiry, on the ground that the decision or procedure was irrational, unfair or improperly carried out. Judicial review looks at the decision-making process only, NOT the merits of the case. If you are successful, the decision or outcome of the inquiry will be quashed.
A person seeking judicial review must have "locus standi": in other words, he must have a sufficient interest in the matter, or be directly affected by it.
There are two stages to judicial review. First you have to apply for leave to seek judicial review. At this stage, a judge will filter out obviously hopeless cases and may impose conditions: for example that you give security for the other side's costs in case you lose. If you get past this first stage, you will then go on to the main hearing at which both parties will be represented.
Educating the public and making them aware of the issues, and of the effects of making certain choices, will in the longer term be far more important than the law, or the success or failure of any individual road proposal. But this book only deals with the law. To find out more about the practical side of road campaigning, I suggest you contact some of the organisations listed in Appendix 16 or read some of the publications listed in Appendix 17. Your investigations should include considering the arguments of both the pro-road and anti-road lobbying organisations, because you can only make rational choices when you have heard and thought about what both sides have to say. Both the Highways Agency and the British Road Federation offer a large amount of free literature, which is physically (if not intellectually) of a high quality, so even if you don't agree with what they say, you can still enjoy looking at the colour pictures.
You need the support of the public. When you are involved in an anti-road campaign, your activities will attract attention from the local and maybe the national media. You therefore need to think very carefully about what effect your activities are likely to have on public perception of the campaign. Violence, damage and intimidatory behaviour will lose the support of the public and be self-defeating in the long term - so don't do them if you can possibly avoid it.
Good luck.
Laid before Parliament 20th December 1994
Coming into force 10th January 1995
ARRANGEMENT OF RULES
PART I
GENERAL
1. Citation and Commencement.
2. Interpretation.
3. Application of Rules.
PART II
RULES APPLICABLE TO INQUIRIES IN CONNECTION WITH ORDERS OR SCHEMES PROPOSED TO BE MADE BY THE SECRETARY OF STATE
4. Preliminary action to be taken by the Secretary of State.
5. Procedure where Secretary of State causes pre-inquiry meeting to be held.
6. Service of statements of case, etc.
7. Further power of inspector to hold pre-inquiry meetings.
8. Inquiry timetable.
9. Notification of appointment of assessor.
10. Date and notification of inquiry.
11. Representation of Secretary of State at inquiry.
12. Representation of other government departments at inquiry.
13. Other appearances at inquiry.
PART III
RULES APPLICABLE TO INQUIRIES IN CONNECTION WITH ORDERS OR SCHEMES MADE BY LOCAL HIGHWAY AUTHORITIES
14. Preliminary action to be taken by the Secretary of State.
15. Procedure where Secretary of State causes pre-inquiry meeting to be held.
16. Service of statements of case, etc.
17. Further power of inspector to hold pre-inquiry meetings.
18. Inquiry timetable.
19. Notification of appointment of assessor.
20. Date and notification of inquiry.
21. Representatives of government departments at inquiry.
22. Other appearances at inquiry.
PART IV
RULES APPLICABLE TO ALL INQUIRIES
23. Proofs of evidence.
24. Procedure at inquiry.
25. Site inspections.
26. Procedure after inquiry.
27. Notification of decision.
28. Allowing further time.
29. Service of notices by post.
30. Revocation, savings and transitional.
The Lord Chancellor, in exercise of the powers conferred on him by section 9 of the Tribunals and Inquiries Act 1992 (c.53), and all other powers enabling him in that behalf, and after consultation with the Council on Tribunals, hereby makes the following Rules:-
PART I
GENERAL
Citation and Commencement
1. These Rules may be cited as the Highways (Inquiries Procedure) Rules 1994 and shall come into force on 10th January 1995.
Interpretation
2. In these Rules unless the context otherwise requires:
"the Act" means the Highways Act 1980 (c.66);
"assessor" means a person appointed by the Secretary of State to sit with an inspector at an inquiry or reopened inquiry to advise the inspector in such matters arising as the Secretary of State may specify;
"document" includes a photograph, map or plan;
"highway works" means any works for the construction, improvement or alteration of a highway, or for the provision of means of access to premises or the diversion of a navigable watercourse in connection with the construction, improvement or alteration of a highway, and "the highway works", in relation to an order or scheme, means the highway works authorised by that order or scheme;
"improvement" has the same meaning as in the Act;
"inquiry" means a local inquiry in relation to which these Rules apply;
"inspector" means a person appointed by the Secretary of State to hold an inquiry or a reopened inquiry;
"local authority" means a county council, the Council of a district or London Borough or the Common Council of the City of London;
"local highway authority" has the same meaning as in the Act;
"the order or scheme" means, in relation to an inquiry, the order or scheme in connection with which the inquiry is held or, where an inquiry is held in connection with more than one order or scheme, all the orders and schemes;
"outline statement" means in relation to a person a written statement of the principal submissions which that person proposes to put forward at an inquiry;
"pre-inquiry meeting" means a meeting held before an inquiry to consider what may be done with a view to securing that the inquiry is conducted efficiently and expeditiously, and where two or more such meetings are held references to the conclusion of a pre-inquiry meeting are references to the conclusion of the final meeting;
"the promoting authority"-
(a) in relation to an order or scheme proposed to be made by the Secretary of State, means the Secretary of State;
(b) in relation to an order or scheme made by a local highway authority and submitted to the Secretary of State for confirmation, means that local highway authority;
(c) in relation to a scheme under section 16(10) of the Act made by two or more local highway authorities and submitted to the Secretary of State for confirmation, means such one or more of those authorities as may, for the purpose of any particular provision of these Rules, be agreed between the authorities themselves or, in default of such agreement, be determined by the Secretary of State or the inspector;
"relevant date" means the date of the Secretary of State's written notice to the promoting authority (if applicable) and the statutory objectors of his intention to cause an inquiry to be held, and "relevant notice" means that notice;
"site" means the site of any of the highway works authorised by the order or scheme or the site of any highway to which the order or scheme relates;
"statement of case" means a written statement which contains full particulars of the case which a person proposes to put forward at an inquiry, and a list of any documents which that person intends to refer to or put in evidence;
"statutory objector" means any objector mentioned below whose objection has not been withdrawn or disregarded under paragraph 18 of Schedule 1 to the Act-
(a) any body or person mentioned in the Table to paragraph 3 or in paragraph 11 of Schedule 1 to the Act (as amended: see below);
(b) any owner (within the meaning of section 329(1) of the Act), lessee or occupier of land which is likely to be required for the execution of any of the highway works;
(c) any person who is likely to be entitled to claim compensation under Part I of the Land Compensation Act 1973 (c.26) in respect of the use of any of the highway works.
[Footnote: Paragraph 3 of Schedule 1 was amended by the Local Government Act 1985 (c.51), section 102 and Schedule 17 and by the Water Act 1989 (c.15), section 190 and Schedule 25, paragraphs 1(8) and 62(14)(a); paragraph 11(b) of Schedule 1 was amended by the Water Act 1989, section 190 and Schedule 25, paragraph 62(14)(b).]
Application of rules
3.(1) Subject to paragraph (2) of this rule, these Rules shall apply-
(a) to local inquiries caused by the Secretary of State to be held under paragraph 7(1) of Schedule 1 to the Act in connection with-
(i) orders proposed to be made by him under sections 10,14,18, 106 or 108 of the Act, or
(ii) orders made by a local highway authority under sections 14, 18, 106 or 108 of the Act and submitted to the Secretary of State for confirmation; and
(b) to local inquiries caused by the Secretary of State to be held under paragraph 14(1) of Schedule 1 to the Act in connection with-
(i) schemes proposed to be made by him under section 16 of the Act, or
(ii) schemes made by a local highway authority under section 16 of the Act and submitted to the Secretary of State for confirmation.
(2) Part II of these Rules applies to local inquiries in connection with orders or schemes proposed to be made by the Secretary of State, Part III of these Rules applies to local inquiries in connection with orders or schemes made by a local highway authority and submitted to the Secretary of State for confirmation, and Parts I and IV of these Rules apply to all local inquiries referred to in paragraph (1) of this rule.
PART II
RULES APPLICABLE TO INQUIRIES IN CONNECTION WITH ORDERS OR SCHEMES PROPOSED TO BE MADE BY THE SECRETARY OF STATE
Preliminary action to be taken by the Secretary of State
4.(1) Where the Secretary of State intends to cause an inquiry to be held, he shall, not later than 4 weeks after the date specified in paragraph 2, give written notice of that intention to each statutory objector at the address furnished to the Secretary of State.
(2) The date referred to in paragraph (1) above is the date of expiry of the period within which an objection to the draft order or scheme may be made.
Procedure where Secretary of State causes pre-inquiry meeting to be held
5.(1) The Secretary of State may cause a pre-inquiry meeting ("a meeting") to be held if it appears to him desirable and where he does so this rule applies.
(2) The Secretary of State shall serve with the relevant notice a notification of his intention to cause a meeting to be held.
(3) The Secretary of State shall, not later than 3 weeks after the relevant date, publish in a local newspaper circulating in the locality in which the site or sites are situated or, if more than one locality, a local newspaper circulating in each such locality, a notice of the Secretary of State's intention to cause a meeting to be held.
(4) The Secretary of State shall, not later than 8 weeks after the relevant date, serve on each statutory objector his outline statement.
(5) When required by notice in writing from the Secretary of State to do so-
(a) any statutory objector, and
(b) any other person who has notified the Secretary of State of any intention or wish to appear at the inquiry,
shall, within 8 weeks of the date of such notice, serve upon the Secretary of State and on any other person specified in such notice, an outline statement.
(6) A meeting shall be held not later than 16 weeks after the relevant date.
(7) The Secretary of State shall give not less than 3 weeks' written notice of the date, time and location of the meeting to each statutory objector and any other person whose presence at the meeting seems to him to be desirable.
(8) The inspector shall preside at the meeting and shall determine the matters to be discussed and the procedure to be followed; and he may require any person present at the meeting who, in his opinion, is behaving in a disruptive manner to leave and may refuse to permit that person to return or to attend any further meeting, or may permit him to return or attend only on such conditions as he may specify.
(9) Where a meeting has been held pursuant to paragraph (1), the inspector may hold a further meeting. He shall arrange for such notice to be given of a further meeting as appears to him necessary and paragraph (8) shall apply to such a meeting.
Service of statements of case, etc
6.(1) The Secretary of State shall not later than-
(a) 6 weeks after the relevant date, or
(b) where a pre-inquiry meeting is held pursuant to rule 5, 4 weeks after the conclusion of that meeting,
serve his statement of case on each statutory objector.
(2) In addition to the statement of case served under paragraph (1) the Secretary of State shall serve upon each statutory objector a notice giving the names of all places, within each area in which the proposals contained in the order or scheme are to have effect (or as close as reasonably possible to any such area), where a copy of every document or the relevant part of any document which he intends to refer to or put in evidence may be inspected free of charge at all reasonable hours until the date of commencement of the inquiry.
(3) When required by notice in writing from the Secretary of State to do so-
(a) any statutory objector, or
(b) any other person who has notified him of an intention or wish to appear at the inquiry,
shall within 6 weeks from the date of such notice serve a statement of case on the Secretary of State.
(4) In addition to the statement of case served under paragraph (3) every person mentioned in paragraph 3(a) and (b) shall serve upon the Secretary of State a copy of every document or the relevant part of any document which such person intends to refer to or put in evidence.
(5) The Secretary of State shall supply a copy of his statement of case and of the notice mentioned in paragraph (2) to any person who is not a statutory objector but has been required to serve a statement of case under paragraph (3).
(6) When required by notice in writing from the Secretary of State or the inspector to do so, any person who has served a statement of case in accordance with this rule shall provide such further information about the matters contained in the statement as the Secretary of State or the inspector may specify.
(7) The Secretary of State shall afford to any person who so requests a reasonable opportunity to inspect and, where practicable and subject to payment by that person of a reasonable charge, take copies of any statement or document which, or a copy of which, has been served on or by him in accordance with any of the preceding paragraphs of this rule; and shall specify in his statement of case the time and place at which the opportunity will be afforded.
Further power of inspector to hold pre-inquiry meetings
7.(1) Where no pre-inquiry meeting is held pursuant to rule 5, the inspector may hold one if he thinks it desirable.
(2) The inspector shall arrange for not less than 3 weeks' written notice of a meeting pursuant to paragraph (1) to be given to the Secretary of State, each statutory objector, any other person known at the date of the notice to be entitled to appear at the inquiry, and any other person whose presence at the meeting appears to him to be desirable.
(3) Rule 5(8) shall apply to a meeting held under this rule.
Inquiry timetable
8.(1) Where a pre-inquiry meeting is held pursuant to rule 5 the inspector shall, and in any other case may, subject to the provisions of rule 10(1), arrange a timetable for the proceedings at, or at part of, the inquiry and may at any time vary the timetable.
(2) An inspector may specify in a timetable arranged pursuant to this rule a date by which any proof of evidence and summary required by rule 23(1) to be sent to him shall be so sent.
Notification of appointment of assessor
9. Where the Secretary of State appoints an assessor, he shall notify the statutory objectors of the assessor's name and of the matters on which he is to advise the inspector.
Date and notification of inquiry
10.(1) The date fixed by the Secretary of State for the commencement of an inquiry shall be determined by him but shall be:
(a) not later than 22 weeks after the relevant date; or
(b) in a case where a pre-inquiry meeting is held pursuant to rule 5, not later than 8 weeks after the conclusion of that meeting; or
(c) where the Secretary of State is satisfied that in all the circumstances of the case it is impracticable to hold the inquiry within the applicable period mentioned in (a) or (b), the earliest practicable date after the end of that period.
(2) Unless the Secretary of State agrees a lesser period of notice with each statutory objector, he shall give not less than 6 weeks' notice of the date, time and place fixed by him for the holding of an inquiry to every person specified in rule 13(1).
(3) The place at which the inquiry is to be held shall be determined by the Secretary of State and where he is satisfied, having regard to the nature of the draft order or scheme, that it is reasonable to do so he may direct that it shall be held in more than one place.
(4) The Secretary of State may vary the date fixed for the commencement of an inquiry whether or not the revised date is within the applicable period mentioned in paragraph (1); and paragraph (2) shall apply to a variation of a date as it applied to the date originally fixed.
(5) The Secretary of State may vary the time or place for the holding of an inquiry and shall give such notice of any such variation as appears to him to be reasonable.
(6) The Secretary of State shall, not later than 2 weeks before the date fixed for the holding of an inquiry:
(a) post a notice of the inquiry in a conspicuous place or (in the case of an order or scheme making provision for highway works more than 5 kilometres in length) at intervals of not more than 5 kilometres, on or as close as reasonably practicable to the site or, where more than one site is involved, to each site;
(b) post a notice of the inquiry in one or more places where public notices are usually posted in the locality or localities concerned; and
(c) publish a notice of the inquiry in one or more local newspapers circulating in the locality in which the site or sites are situated or, if more than one locality is concerned, in one or more newspapers circulating in each such locality.
(7) Any notice of inquiry posted or published pursuant to paragraph (6) shall contain a statement of the date, time and place (or where a direction has been given under paragraph (3) above, the places) of the inquiry, and of the relevant section under which the scheme or order has been made, together with a sufficient description of the scheme or order to identify the location of the land to which they relate with or without reference to a specified map.
(8) Where an inquiry is to be held in more than one place paragraphs (2) to (7) shall apply to the second and any subsequent inquiry location.
Representation of Secretary of State at inquiry
11.(1) The Secretary of State may be represented at the inquiry by counsel or solicitor or by an officer of his department or other person authorised by the Secretary of State to represent him.
(2) The Secretary of State shall make a representative available at the inquiry to give evidence in elucidation of the statement of case, and such representative shall be subject to cross-examination to the same extent as any other witness.
(3) Nothing in paragraph (2) shall require a representative of the Secretary of State to answer any question which in the opinion of the inspector is directed to the merits of government policy.
Representation of other government departments at inquiry
12.(1) Where another government department has expressed in writing to the Secretary of State a view in support of the draft order or scheme and the Secretary of State has included that view in his statement of case, a representative of the department concerned shall be made available to attend the inquiry.
(2) Such representative shall at the inquiry state the reasons for the view expressed by his department and shall give evidence and be subject to cross-examination to the same extent as any other witness.
(3) Nothing in paragraph (2) shall require such a representative of a government department to answer any question which in the opinion of the inspector is directed to the merits of government policy.
Other appearances at inquiry
13.(1) Every statutory objector shall be entitled to appear at the inquiry.
(2) Nothing in paragraph (1) shall prevent the inspector from permitting any other person to appear at the inquiry, and such permission shall not be unreasonably withheld.
(3) Any person entitled or permitted to appear may do so on his own behalf or be represented by counsel, solicitor or any other person.
(4) The inspector may allow one or more persons to appear on behalf of some or all of any persons having a similar interest in the matter under inquiry.
PART III
RULES APPLICABLE TO INQUIRIES IN CONNECTION WITH ORDERS OR SCHEMES MADE BY LOCAL HIGHWAY AUTHORITIES
Preliminary action to be taken by the Secretary of State
14.(1) Where the Secretary of State intends to cause an inquiry to be held, he shall, not later than 4 weeks after the date specified in paragraph (2), give written notice of that intention to the promoting authority and to each statutory objector at the address furnished to the Secretary of State.
(2) The date referred to in paragraph (1) is the date of expiry of the period within which an objection to the order or scheme may be made.
Procedure where Secretary of State causes pre-inquiry meeting to be held
15.(1) The Secretary of State may cause a pre-inquiry meeting ("a meeting") to be held if it appears to him desirable and where he does so this rule applies.
(2) The Secretary of State shall serve with the relevant notice a notification of his intention to cause a meeting to be held.
(3) The promoting authority shall, not later than 3 weeks after the relevant date, publish in a local newspaper circulating in the locality in which the site or sites are situated or, if more than one, a local newspaper circulating in each such locality a notice of the Secretary of State's intention to cause a meeting to be held.
(4) The promoting authority shall, not later than 8 weeks after the relevant date, serve on the Secretary of State and on each statutory objector an outline statement.
(5) When required by notice in writing from the Secretary of State to do so-
(a) any statutory objector, and
(b) any other person who has notified him of any intention or wish to appear at the inquiry,
shall, within 8 weeks from the date of such notice, serve upon the Secretary of State, on the promoting authority and on any other person specified in such notice, an outline statement.
(6) A meeting shall be held not later than 16 weeks after the relevant date.
(7) The Secretary of State shall give not less than 3 weeks' written notice of the date, time and location of the meeting to the promoting authority, each statutory objector and any other person whose presence at the meeting seems to him to be desirable.
(8) The inspector shall preside at the meeting and shall determine the matters to be discussed and the procedure to be followed; and he may require any person present at the meeting who, in his opinion, is behaving in a disruptive manner to leave and may refuse to permit that person to return or to attend any further meeting, or may permit him to return or attend only on such conditions as he may specify.
(9) Where a meeting has been held pursuant to paragraph (1), the inspector may hold a further meeting. He shall arrange for such notice to be given of a further meeting as appears to him necessary and paragraph (8) shall apply to such a meeting.
Service of statements of case, etc
16.(1) The promoting authority shall not later than-
(a) 6 weeks after the relevant date, or
(b) where a pre-inquiry meeting is held pursuant to rule 15, 4 weeks after the conclusion of that meeting,
serve a statement of case on the Secretary of State and on each statutory objector.
(2) In addition to the statement of case served under paragraph (1) the promoting authority shall serve-
(a) upon the Secretary of State a copy of every document or the relevant part of any document which he intends to refer to or put in evidence and of the notice mentioned in sub-paragraph (b) below, and
(b) upon each statutory objector a notice giving the names of all places, within each area in which the proposals contained in the order or scheme are to have effect (or as close as reasonably possible to any such area), where a copy of every document or the relevant part of any document which the promoting authority intends to refer to or put in evidence may be inspected free of charge at all reasonable hours until the date of commencement of the inquiry.
(3) When required by notice in writing from the Secretary of State to do so-
(a) any statutory objector, or
(b) any other person who has notified him of any intention or wish to appear at the inquiry,
shall, within 6 weeks from the date of such notice, serve a statement of case on the Secretary of State and on the promoting authority.
(4) In addition to the statement of case served under paragraph (3) every person mentioned in paragraph 3(a) and (b) shall serve upon the Secretary of State and the promoting authority, if required by the Secretary of State to do so, a copy of every document or the relevant part of any document which such person intends to refer to or put in evidence.
(5) The promoting authority shall supply a copy of the promoting authority's statement of case and of the notice mentioned in paragraph (2)(b) to any person who is not a statutory objector but who has been required to serve a statement of case under paragraph (3).
(6) When required by notice in writing from the Secretary of State or the inspector to do so, any person who has served a statement of case in accordance with this rule shall provide such further information about the matters contained in the statement as the Secretary of State or the Inspector may specify.
(7) The promoting authority shall afford to any person who requests a reasonable opportunity to inspect and, where practicable and subject to payment by that person of a reasonable charge, take copies of any statement or document which, or a copy of which, has been served on or by him in accordance with any of the preceding paragraphs of this rule; and shall specify in his (NB grammatical error: should read "its") statement of case the time and place at which the opportunity will be afforded.
Further power of inspector to hold pre-inquiry meetings
17.(1) Where no pre-inquiry meeting is held pursuant to rule 15, the inspector may hold one if he thinks it desirable.
(2) The inspector shall arrange for not less than 3 weeks' written notice of a meeting pursuant to paragraph (1) to be given to the promoting authority, each statutory objector, any other person known at the date of the notice to be entitled to appear at the inquiry, and any other person whose presence at the meeting appears to him to be desirable.
(3) Rule 15(8) shall apply to a meeting held under this rule.
Inquiry timetable
18.(1) Where a pre-inquiry meeting is held pursuant to rule 15 the inspector shall, and in any other case may, subject to the provisions of rule 20(1), arrange a timetable for the proceedings at, or at part of, the inquiry and may at any time vary the timetable.
(2) An inspector may specify in a timetable arranged pursuant to this rule a date by which any proof of evidence and summary required by rule 23(1) to be sent to him shall be so sent.
Notification of appointment of assessor
19. Where the Secretary of State appoints an assessor, he shall notify the promoting authority and the statutory objectors of the assessor's name and of the matters on which he is to advise the inspector.
Date and notification of inquiry
20.(1) The date fixed by the Secretary of State for the commencement of an inquiry shall be determined in consultation with the promoting authority but shall be:
(a) not later than 22 weeks after the relevant date; or
(b) in a case where a pre-inquiry meeting is held pursuant to rule 15, not later than 8 weeks after the conclusion of that meeting; or
(c) where the Secretary of State is satisfied that in all the circumstances of the case it is impracticable to hold the inquiry within the applicable period mentioned in (a) or (b), the earliest practicable date after the end of that period.
(2) Unless the Secretary of State agrees a lesser period of notice with the promoting authority and each statutory objector, he shall give not less than 6 weeks' notice of the date, time and place fixed by him for the holding of an inquiry to every person specified in rule 22(1).
(3) The place at which the inquiry is to be held shall be determined by the Secretary of State in consultation with the promoting authority and where the Secretary of State is satisfied, having regard to the nature of the order or scheme, that it is reasonable to do so he may direct that it shall be held in more than one place.
(4) The Secretary of State may vary the date fixed for the commencement of an inquiry whether or not the revised date is within the applicable period mentioned in paragraph (1); and paragraph (2) shall apply to a variation of a date as it applied to the date originally fixed.
(5) The Secretary of State may vary the time or place for the holding of an inquiry and shall give such notice of any such variation as appears to him to be reasonable.
(6) Unless the Secretary of State otherwise directs, the promoting authority shall, not later than 2 weeks before the date fixed for the holding of an inquiry:
(a) post a notice of the inquiry in a conspicuous place or (in the case of an order or scheme making provision for highway works more than 5 kilometres in length) at intervals of not more than 5 kilometres, on or as close as reasonably practicable to the site or, where more than one site is involved, to each site;
(b) post a notice of the inquiry in one or more places where public notices are usually posted in the locality or localities concerned; and
(c) publish a notice of the inquiry in one or more local newspapers circulating in the locality in which the site or sites are situated or, if more than one locality is concerned, in one or more newspapers circulating in each such locality.
(7) Any notice of inquiry posted or published pursuant to paragraph (6) shall contain a statement of the date, time and place (or where a direction has been given under paragraph (3) above, the places) of the inquiry, and of the relevant section under which the scheme or order has been made, together with a sufficient description of the scheme or order to identify the location of the land to which they relate with or without reference to a specified map.
(8) Where an inquiry is to be held in more than one place paragraphs (2) to (7) shall apply to the second and any subsequent inquiry location.
Representatives of government departments at inquiry
21.(1) Where a government department has expressed in writing to the promoting authority a view in support of the order or scheme and the promoting authority has included that view in its statement of case, a representative of the department concerned shall be made available to attend the inquiry.
(2) Such representative shall at the inquiry state the reasons for the view expressed by his department and shall give evidence and be subject to cross-examination to the same extent as any other witness.
(3) Nothing in paragraph (2) shall require such representative of a government department to answer any question which in the opinion of the inspector is directed to the merits of government policy.
Other appearances at inquiry
22.(1) The promoting authority and every statutory objector shall be entitled to appear at the inquiry.
(2) Nothing in paragraph (1) shall prevent the inspector from permitting any other person to appear at the inquiry, and such permission shall not be unreasonably withheld.
(3) Any person entitled or permitted to appear may do so on his own behalf or be represented by counsel, solicitor or any other person.
(4) The inspector may allow one or more persons to appear on behalf of some or all of any persons having a similar interest in the matter under inquiry.
PART IV
RULES APPLICABLE TO ALL INQUIRIES
Proofs of evidence
23.(1) A person entitled to appear at an inquiry who proposes to give, or to call another person to give, evidence at the inquiry by reading a proof of evidence shall send to the inspector and to the promoting authority a copy of the proof and (subject to paragraph (2) below) a written summary thereof.
(2) No written summary shall be required where the proof which it is proposed to read contains not more than 1,500 words.
(3) The proof and summary shall be sent to the inspector and the promoting authority not later than-
(a) 3 weeks before the date fixed for the commencement of the inquiry, or
(b) where a timetable has been arranged pursuant to rule 8 or 18, which specified a date by which the proof and summary shall be sent to the inspector, that date.
(4) Unless paragraph (2) applies, only the summary shall be read at the inquiry unless the inspector permits or requires otherwise.
(5) The promoting authority shall afford to any person who so requests a reasonable opportunity to inspect and, where practicable and on payment of a reasonable charge, take copies of any document sent to or by them in accordance with this rule.
Procedure at inquiry
24.(1) Except as otherwise provided in these Rules, the inspector shall determine the procedure at an inquiry.
(2) Unless in any particular case the inspector with the consent of the promoting authority otherwise determines, the promoting authority shall begin and shall have the right of final reply. The other persons entitled or permitted to appear shall be heard in such order as the inspector may determine.
(3) Persons specified in rule 13(1) and 22(1) shall be entitled to call evidence, and the promoting authority and the statutory objectors shall be entitled to cross-examine persons giving evidence, but, subject to paragraphs (2), (4), (5) and (7), the calling of evidence and the cross-examination of persons giving evidence shall otherwise be at the inspector's discretion.
(4) The inspector may refuse to permit-
(a) the