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The road that wasn't

Environmentalists have struck a major blow against iGas's attempts to drill for shale gas at the Barton Moss site, with a judge making what appears to be a quite extraordinary ruling in their favour.

Prosecutors accepted at Manchester Magistrates Court that charges of obstructing a highway against the protesters should be dropped after Judge Khalid Qureshi ruled that Barton Moss Road is a public footpath.

Here are two pictures of Barton Moss Road, taken from just outside the iGas site, looking in opposite directions. In the middle is the map.

It sure looks like a road to me.

Perhaps someone can advise how the judge can make such a ruling? Is there something in the legal definition of a footpath that can explalin how the judge could reach this conclusion?

I must say, I don't get a warm feeling about this.

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Reader Comments (29)

First post here - but a long time reader - it is indeed a public right of way as shown on the OS Maps

Feb 15, 2014 at 10:38 AM | Unregistered CommenterOldjim

Perhaps Barton Moss Road should be renamed to Barton Moss Footpath.

Feb 15, 2014 at 10:48 AM | Unregistered CommenterMartyn

Old jim: A public right of way (PROW) can be a footpath, a bridleway, a lane etc. "Public rights of way are open to everyone at any time and give you the right to walk, ride a horse or cycle along certain routes. Some rights of way are open to vehicles" and "public rights of way are paths on which the public have a legally protected right to pass and re-pass".

See wikipedia (Can't guarantee correctness)

Feb 15, 2014 at 10:52 AM | Registered CommenterPhillip Bratby

This is no ordinary footpath. This is a special footpath. As Barton Moss "Footpath" emerges onto the "footbridge" crossing the M62, this footpath has its own footpath verging the footpath. Or is this raised verge area designed so that the police can go about their proper duties of setting up speed cameras to catch evil speeding motorists on the M62 without blocking the footpath to upright citizens carrying out their legal right to block the footpath.

Feb 15, 2014 at 10:52 AM | Unregistered CommenterColin Porter

Having read ssat's extract above on the definition of a highway I trust that ASAP iGas..will start a legal challenge to the judge's extraordinarily perverse decision.

Feb 15, 2014 at 11:15 AM | Unregistered CommenterMessenger

If the road is a "public footpath", why the need for a separate pavement across the bridge? That decision needs challenging, and a new hearing arranged - preferably chaired by an English judge...

Feb 15, 2014 at 11:17 AM | Unregistered CommenterOld Goat

Countryside and Rights of Way Act 2000

If it is on a map as a road used as a public path then it is a "restricted byway". A restricted byway is a highway maintainable at the public expense.

Feb 15, 2014 at 11:21 AM | Unregistered CommenterTerryS

Does anybody have the National Grid reference for the location of the pin in the picture? Does anybody know who the landowner is?

The bridge is most likely to be a Highways Agency asset and, if it is not actually a highway, it may have been constructed to continue to provide residential/ farm access of a private road as well as continuity of any Right of Way which the motorway would otherwise have severed.

Bing maps has an OS layer which will show you their record of the RoW status of the location. This however may not be the same as the actual status of the location - for that you need to consult the Definitive Map:

I've not read the judgement but this may have no impact on gas extraction at the site. FWIW my impression is that this will be an acquittal on a technicality, quite possibly because of an incorrectly specified charge - if this isn't a public highway, the site access issue will come down to agreement between the landowner and those who wish to cross the land. Provided the gas company have done their homework and have access agreements in place, I don't see this as a "major blow" to gas extraction. It might mean,however, that action against any protestors obstructing the route would need to be for trespass or unlawful interference. One for the experts IMO.

Feb 15, 2014 at 11:28 AM | Unregistered Commenternot banned yet

This is the same judge who jailed a pregnant woman with young kids for 6 months because she accepted a pair of shorts that (whether she new it or not) had been looted from a shop during the Manchester riots.

Feb 15, 2014 at 11:55 AM | Unregistered CommenterDave

When walking along a public footpath I might expect to encounter other pedestrians and possibly cyclists, mountain bikers, and people on horseback. I don't expect to encounter people in cars or even on motorbikes. The judge does not appear to understand the difference between a road and a path. Is the law an ass, or is it just the judge?

Nevertheless, his ruling might come in useful if anyone wants to obstruct the construction of wind turbines.

Feb 15, 2014 at 12:04 PM | Unregistered CommenterRoy

In Irish a road is "bothar" which means cow path but was taken to be a path where two cows can pass each other, one parallel and one at right angles. Think about how wide a cow is and then look at the above picture.

That would be a road then.

Feb 15, 2014 at 1:17 PM | Unregistered CommenterMicky H Corbett

Since proceedings were in Manchester Magistrates Court, the judge is in fact a District Judge which is the lowest form of judicial life except for a magistrate. If he thinks Barton Moss Road is a footpath (and it would appear that counsel for the protesters must think much the same way judging by his comment) then it suggests that the local authority has at some time changed its designation (because it sure looks like a road to me!) because of a change in circumstances as, for example the building of a motorway which has cut the road in two so that it no longer serves a purpose.
After that you're into what is it precisely and whether it's public or private.

Feb 15, 2014 at 1:35 PM | Registered CommenterMike Jackson

It's islamic law !!

Feb 15, 2014 at 1:43 PM | Unregistered CommenterStephen Richards

It would have taken the CPS about 5 minutes to view the entire length of the road on Streetmap inorder to demonstrate to the judge that the road is a vehicular access for a number of residential and business properties - a number of cars and vans can be seen in the Streetmap images. The road is tarmaced along it's full length - and as there are no signs at either end to indicate that it is a private road I think is is reasonable to assume that it has been adopted by the local council - a brief phone call or email could have established the case definitively. I think we can conclude that the CPS team involved in this are a bunch of lazy useless halfwits who are completely unfit for purpose !

I'm sure that the people who live and work on this road are going to be pretty unhappy to discover that they no longer have any legal right to access their homes and businesses other than by foot! !

Feb 15, 2014 at 1:49 PM | Unregistered CommenterMartin

So it's alright to obstruct a public footpath?

Feb 15, 2014 at 1:56 PM | Unregistered CommenterBloke in Central Illinois

My mistake - at the Liverpool Road / Barton Moss Road there is a "Private Road" notice - although it's doesn't appear to be a similar notice at any of the other ways into Barton Moss Road so my guess would be that it only applies to the last few hundred metres which appear narrower on the traffic map - although this section looks better maintained in the Streemap images, The North West end of the road does become a footpath to the middle of a field having crossed the railway line - is this where the Cuadrilla site is located ?

Feb 15, 2014 at 2:10 PM | Unregistered CommenterMartin

Next time its a charge of trespass.

Feb 15, 2014 at 3:04 PM | Unregistered CommenterMartyn
Feb 15, 2014 at 3:04 PM | Unregistered CommenterIt doesn't add up...

We had a case like this in New Zealand in the 1950s. Don't recall the precise legal details but believe the defendants argued they had a every right to use the road [that they were obstructing] as it was part of the King's Highway. [It was very early 1950s.] The magistrate ruled that was indeed the case just so long as they kept moving. As they had ceased to move and had sat down he convicted them of obstructing the King's Highway and fined them all heavily.

Feb 15, 2014 at 4:37 PM | Unregistered CommenterDr K.A. Rodgers

It doesn't add up - thanks.

Feb 15, 2014 at 4:49 PM | Unregistered Commenternot banned yet

I suspect that the devil is in the (legal) detail. The specific charge of "obstructing a highway" may be at risk if the definition of the highway in question is unclear. However daft the judge, the prosecutors would not have accepted the ruling unless they felt he had some sort of point (or had been nobbled)...

Feb 15, 2014 at 6:20 PM | Registered Commenterjamesp

Rights of Way legislation was described to us by our barrister as 'strange beyond belief''. An example: historical use means that a way remains a public ROW forever unless it has been closed by an enclosure or by a specific order. This means that Watling Street, the Roman road that crosses the Thames at Westminster, is still a footpath as there was a public right of way along each side of a Roman road.

When I applied to Westminster City Council for them to reopen the footpath -- it runs straight through the Palace of Westminster and through the Members' Dining room -- it was turned down on the grounds that I didn't have a map. In the rest of England that wouldn't have worked as the test is whether it is a reasonable assertion, but in London you have to appeal through the magistrate's court and they will charge for the process.

ROW law is barking.

My guess is that the ROW in question is a BOAT, byway open to all traffic, or whatever that turned into when the latest ROW Act came into efffect. My opinion is that the judge is wrong in that a BOAT will have the same protection in law as the highway, but perhaps the charge should have been 'obstructing a BOAT' or somesuch. If so the police have the option of altering the charge sheet and dumping on the Luddites from a further height.

I'm actually in profit from our footpath tribulations. Someone tried to open a footpath that cannot have been walked for 190 years which ran right by my back door. Five of us ended up paying £5000 each but we won. In the process I did a huge amount of research which woke me up and led to my becoming a UKIP councillor. As a side-effect I started looking deeper into climate science. Last week we stopped a turbine, an almost impossible task -- funny old world.

The difference between a barrister and a solicitor? Solicitor: 'I read your email, that's a good point. I'll add it into our case. Barrister: 'to reading email, £35 +VAT.'

Feb 15, 2014 at 8:05 PM | Unregistered CommenterJulian Flood

Without more detail I'm at a loss to see what has gone on here

its perfectly possible for the route shown to be a public footpath, to be that it would be listed on the local definitive map of rights of way, though this would be without prejudice to the existence of higher rights - I've just checked on that and it is indeed a public footpath - the fact that its a tarmac covered road makes no difference, as we're talking about legal rights of access, not private use (e.g., a farmer is still allowed to drive a tractor on a public footpath, because its his land, and lorries driving to the facing site, with permission of the landowner, would be equally permitted to.

The legal status of the route should not make a difference if the protesters were charged with either aggravated trespass under criminal justice and public order act 1994 (the defence argument would be that they were not trespassing) or if they were charged with obstruction of a highway (even then whether it was a footpath or road would not matter, as both are still, in law, a highway).

There is a right in law to use any highway for any reasonable use, including protest - as long as you do not interfere with the primary use, that of public passage, or creating a public or private nuisance - case law DPP vs Jones 2000 - the test of reasonableness is a common language one of fact to be decided by the court on all the circumstances.

there is little doubt, in law, that a bunch of protesters stopping wagons or staff getting to the site would transcend the reasonableness test (whereas simply protesting there for a limited time and and not obstructing it, picket line style, would not be a breach - in the words of DPP V Jones: The law of trespass will continue to protect private landowners against unreasonably large, unreasonably prolonged or unreasonably obstructive assemblies upon these highways.)

once you are no longer using the highway (including footpath) for a reasonable use, then you can be dealt with either

i) as a trespasser (ejected by landowner or their agent, and the police may act as this agent if willing to do so)
ii) an aggravated trespasser under CJPOA94 if disrupting lawful activity
iii) for obstruction of the highway under 1980 highways act

so, legal status of the route as footpath or higher class of road should not have made any difference to the prosecution from the details I've seen so far.

Feb 15, 2014 at 9:41 PM | Unregistered CommenterLabrat

According to the Highways Act 1980 ( a footpath is a highway. More precisely a “footpath” means a highway over which the public have a right of way on foot only, not being a footway;. It seems a public footpath is also a highway, at least according to the Highways Act.

Feb 15, 2014 at 10:09 PM | Unregistered CommenterJack

OK, a little more exploring and after reading through a lot of bluff and bluster here, some of it is clearer:

So, it was an early case review hearing - despite claims of 'victory' the prosecutions have NOT been dropped.

argument from the protesters was that they were only obstructing vehicles, and therefore could not be guilty of obstruction of the highway, as no *right* to use vehicles on the highway

argument by the police/cps is that they were still obstructing passage on foot

the actual legal wording, is "If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding"

So, back to my earlier post - a lot of this is down to the particular charge that the police chose to use, obstruction of a highway - I would agree with the summation from the protesters and police - if they were *only* blocking vehicles, and people could still pass, then there was no offence, however if the court finds they were the obstructing the highway in any way that was not 'reasonable' in all the circumstances of the case (case law reference Hirst and Agu vs CC west yorks) then they would be guilty.

Of course, given the fact that the police chose to use this law, the relevant next step is that next time they are there, instead of charging them with this, the police can use the much more severe criminal trespass aspects, since the use by the protesters to prevent the passage of vehicles allowed to use the path would become a nuisance, and no longer a reasonable use of the highway, transforming them from protesters (legal) into trespassers (illegal)

Feb 15, 2014 at 10:23 PM | Unregistered CommenterLabrat

scaf points out "Highway authorities (i.e. county councils and unitary authorities) have a legal duty to remove obstructions which prevent the public from using rights of way in their area. If a highway authority fails to comply with this duty, a member of the public can apply for an order to force it to do so."
This surely means that there is a right of way. If the protesters try to block it, they will be breaking the law/.

Feb 16, 2014 at 8:28 PM | Unregistered CommenterThe Iceman Cometh

"This surely means that there is a right of way. If the protesters try to block it, they will be breaking the law/."

Its not quite that simple - the protesters have a legal right to protest on the highway, that is deemed in law to be a reasonable use, AS LONG AS it does not go on to cause a public or private nuisance or cause an unreasonable restriction of the primary right (to pass and repass) - It may be decided that if the activity grows to an extent that it is unreasonable by reason of the space occupied or the duration of time for which it goes on that an offence would be committed, but this is a matter of fact to be decided in all the circumstances of the case by the magistrates.

Feb 16, 2014 at 11:36 PM | Unregistered CommenterLabrat

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