Broome v Director of Public Prosecutions (on Appeal From a Divisional Court of the Queen's Bench Division)
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Viscount Dilhorne,Lord Salmon |
| Judgment Date | 21 December 1973 |
| Judgment citation (vLex) | [1973] UKHL J1221-1 |
| Docket Number | Parliamentary Archives, HL/PO/JU/4/3/1242 |
| Court | House of Lords |
| Date | 21 December 1973 |
[1973] UKHL J1221-1
HOUSE OF LORDS
Lord Reid
Lord Morris of Borth-y Gest
Lord Hodson
Viscount Dilhorne
Lord Salmon
Parliamentary Archives, HL/PO/JU/4/3/1242
MY LORDS,
On 3rd October, 1972, the Justices of the County Borough of Stockport dismissed an information laid against the Appellant that he, on 5th September, 1972, without lawful authority or excuse wilfully did obstruct the free passage along Short Street, a highway, contrary to section 121 of the Highways Act, 1959. On appeal to a Divisional Court their decision was set aside and the case remitted with a direction to convict. The Appellant now seeks to have the decision of the Justices restored.
The case for the Appellant is that he did have lawful authority or excuse for the obstruction with which he was charged. He says that what he did was authorised by section 134 of the Industrial Relations Act, 1971.
That section is in these terms:—
"134.—(1) The provisions of this section shall have effect where one or more persons (in this section referred to as 'pickets'), in contemplation or furtherance of an industrial dispute, attend at or near—
(a) a place where a person works or carries on business, or
(b) any other place where a person happens to be, not being a place where he resides, and do so only for the purpose of peacefully obtaining information from him or peacefully communicating information to him or peacefully persuading him to work or not to work.
(2) In the circumstances specified in the preceding subsection, the attendance of the pickets at that place for that purpose-
(a) shall not of itself constitute an offence under section 7 of the Conspiracy, and Protection of Property Act 1875 (penalty for intimidation or annoyance by violence or otherwise) or under any other enactment or rule of law, and
(b) shall not of itself constitute a tort."
The facts are set out in the Case Stated by the Justices:
" (a) On 5th September, 1972, there was in progress a nationwide building workers strike. On that day one Ronald Dickinson, a driver, called at a building site and was accosted by the respondent who was a trade union official. The respondent tried to dissuade Dickinson from entering the site, but it transpired that Dickinson was at the wrong site so he departed in his lorry for the correct site, which was in Short Street, and told the respondent of his intention. The respondent took a short cut to Short Street, (b) In Short Street the respondent held out a poster and asked Dickinson to draw into the side of the road which he did. In a brief conversation the respondent tried to dissuade Dickinson from entering the site for which his load was Intended. He failed in his first attempt to persuade Dickinson to go away with his load. Dickinson manoeuvred his lorry to drive into the site. The respondent stood in front of the lorry with his poster, still shouting in an attempt to persuade Dickinson to refrain from delivering his load. Dickinson did not attempt to drive into the respondent but asked him to move. He did not move.
(c) The appellant—a police inspector—arrived and spoke to Dickinson. He then told the respondent that Dickinson wanted to enter the site and the respondent said that he did not want Dickinson to enter the site. The appellant told the respondent that if he did not move he would be arrested. The defendant did not move and was immediately arrested.
(d) Throughout the whole incident there were no angry words or violent actions. It was a peaceful picket. The whole incident in Short Street lasted only at the very most for nine minutes. At all material times the respondent was on the highway."
The Justices' reason for dismissing the information is set out in the Case Stated.
"We were of opinion that a period of nine minutes at most interspersed with manoeuvring of the lorry and intervention by the police was not an unreasonably long time for the respondent to spend in exercising his statutory right peacefully to seek to persuade a person not to work and that his statutory right is meaningless unless the picket places himself in such a position that the person to be persuaded is obliged to stop and listen for a reasonable length of time and accordingly we dismissed the case."
It is therefore necessary to examine carefully the terms of section 134. The section was new in form but the matter had been dealt with in at least two earlier statutes. The Conspiracy, and Protection of Property Act, 1875, conferred great benefits on Trade Unions and their members, but section 7 created a number of new offences. It provided inter alia that "Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority,—(4) Watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place" commits an offence. But the section also contains a provision:
"Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section".
The latter provision regarding attending was repealed by the Trade Disputes Act, 1906, and there was substituted for it by section 2(1):
"It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working".
This subsection was repealed by the Act of 1971 so that section 134 of that Act is now the only provision dealing with this particular matter. I do not know why the provision in the 1906 Act was completely redrafted and I get little if any assistance from the fact that the provision has been given a new form. We were referred to a number of cases decided before 1971 but I can deal with them briefly because most of them do not deal with the question which your Lordships now have to decide.
In J. Lyons & Sons v. Wilkins [1899] 1 Ch. 255 there had been watching and besetting to such an extent as to create a nuisance. The purpose was peaceful persuasion. But it was held that attendance deemed by the last part of section 7 of the 1875 Act not to be a watching and besetting only included attendance for the purpose of obtaining or communicating information and did not include attendance for the purpose of peaceful persuasion. It may have been this decision which caused peaceful persuasion to be expressly mentioned in section 2 of the 1906 Act.
In Ward Lock & Co. v. Operative Printers (1906) 22 T.L.R. 327 it was held that section 7 of the 1875 Act: "legalises nothing and it renders nothing wrongful that was not so before. Its object is solely to visit certain selected classes of acts which were previously wrongful, i.e., were at least civil torts, with penal consequences capable of being summarily inflicted." (per Moulton L.J. at p. 329).
We were referred to several Irish cases. They contain much interesting information but hardly touch the present question. Lowdens v. Keaveney [1903] 2 I.R 82 arose out of a prosecution for wilfully preventing and interrupting the free passage of persons in a public street. There had been a procession with a band playing. It was held to be a question of fact and degree whether such a use of the street was reasonable.
"No body of men has a right to appropriate the highway and exclude other citizens from using it. The question whether user is reasonable or not is a question of fact to be determined by common sense with regard to ordinary experience". (per Gibson J. at p. 90).
Ferguson v. O'Gorman (1937) I.R. 620 dealt with trespass on the highway. I need only quote a short passage from the judgment of Sullivan C.J. at p. 648.
"The usual approach to a residence or place of business is by a public highway and unless the right to attend at or near a residence or place of business is a right to attend on a public highway I do not see how such right can be exercised at all, consistently with the decisions in Larkin's case and McCusker's case that private property may not be invaded. I am, therefore, driven to the conclusion that sect. 2 of the Trade Disputes Act authorises the user of a highway by the persons and for the purposes described in that section, and that it therefore justifies a user of the highway which would constitute a trespass at common law. Whether the user proved in any particular case is such a user as can be justified under the section will depend on the particular circumstances, including the acts and conduct of the alleged trespassers."
In Tynan v. Balmer [1967] 1 Q.B. 91 the facts were nearer to those of the present case. Some 40 pickets assembled and kept walking around on the roadway. Widgery J. having referred to section 2 of the 1906 Act said:
"The recorder has found as a fact that the pickets in this case were not attending merely for the purposes described in the section. He has found as a fact that their object at any rate in part was to seal off the highway and to cause vehicles approaching the premises to stop. In my judgment that finding of fact is quite enough to require this court to say that as a matter of law the recorder's judgment in this case should be upheld."
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