In Halcrow & Ors v Crown Prosecution Service  EWHC 483 (Admin), Maryam Halcrow, Angel Grace and Lisa Mead were Pagans of various traditions. All three had been convicted by Swindon Magistrates’ Court of entering the stone circle at Stonehenge on 4 February 2018 and 6 May 2018 without reasonable excuse, contrary to regulation 3(h) of the Stonehenge Regulations 1997 and s.19 of the Ancient Monuments and Archaeological Areas Act 1979, and had been sentenced to a conditional discharge. Their appeal to the Crown Court was dismissed [1 & 2].
On appeal to the High Court by case stated, the two questions posed were these:
“(1) Was the Court wrong in law when it reached its determination on proportionality (of interference with the appellants’ ECHR rights) when there was no evidence adduced by the Crown relating to proportionality, despite the burden of proof resting on the Crown, and no other evidence adduced upon which the Court could properly reach a finding that the restriction was proportionate?
(2) Was the Court wrong in its analysis of regulation 3(h) by failing to interpret ‘reasonable excuse’ in a manner compatible with the Human Rights Act 1989 (and instead focussing on the prima facie restriction created by regulation 3(h))?”
The appellants held various religious beliefs in Paganism, Druidism and “light working”. All three regarded Stonehenge as important to their beliefs, for various reasons, and Ms Mead and Ms Grace said that the “managed open access” (MOA) days were too crowded for them to practise their beliefs [19 & 20]. The Crown Court had found that each of the appellants held neo-Pagan beliefs which attracted the protection of Article 9 ECHR and that their conduct engaged Articles 9, 10 and 11. In respect of the offences, the Court had found that the appellants had been present both to practise their religion and to protest against the management of the site by English Heritage . It had concluded that the restrictions on access were prescribed by law and that the restrictions on the appellants’ Article 9 ECHR rights were proportionate [25 & 27].
It was common ground that, at the material time, the appellants were exercising rights under Articles 9, 10 and 11 ECHR, that the Stonehenge Regulations and the 1979 Act interfered with those rights, that the interference was “prescribed by law” and “in pursuit of a legitimate aim”: the maintenance of Stonehenge for the rights and enjoyment of present and future generations . The remaining question, therefore, was whether the interference was “necessary in a democratic society” . The critical issues, therefore, were “whether there were less restrictive means available to achieve the aim of preserving Stonehenge” and “whether there was a fair balance between the rights of the individual and general interest of the community, including the rights of others”, the burden of proof being on the authority seeking to justify the measure .
The Court (Dingemans LJ and Steyn J) was of the view that the Crown Court had been right to consider the activities of the appellants at the material time  and had been correct to identify that there were other areas near to Stonehenge where the appellants could have lawfully gathered to protest about English Heritage’s management of Stonehenge . As to the Article 9 issue:
“the touching of the stones together with the singing, chanting and lying down in the stone circle, showed that presence in the stone circle was a necessary part of the manifestation of the religious beliefs on the respective occasions. The evidence adduced by way of agreed facts did highlight the four MOA days and the access to the stone circle which was available to the appellants, and anyone else, who had booked and paid for pre- and post-admission times access to the stone circle. It is also necessary to record that the evidence showed that one of the appellants had limited means, other evidence showed that one of the appellants suffered a medical condition which meant that she was unable to be with crowds of people, and further evidence proved that another of the appellants was distracted by the atmosphere from the crowds on MOA days” .
The only less restrictive means available to avoid any interference with the appellants’ Convention rights would have been to remove the restrictions on entry to the stone circle as soon as the appellants had approached the circle – which would have been “a very ineffective way of preserving Stonehenge for the current and future generations” . Removing restrictions on access to the stones because the appellants wanted to protest and exercise their religious freedoms would not strike a fair balance between the general interest of the community in the preservation of Stonehenge and the interference on the specific occasions with the appellants’ Convention rights . Appeal dismissed .