Director of Public Prosecutions v Nora Ziegler
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mrs Justice Farbey |
| Judgment Date | 22 January 2019 |
| Neutral Citation | [2019] EWHC 71 (Admin) |
| Docket Number | Case No: CO/1789/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2019 |
[2019] EWHC 71 (Admin)
Lord Justice Singh
and
Mrs Justice Farbey
Case No: CO/1789/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John McGuinness QC (instructed by the Crown Prosecution Service) for the Appellant
Henry Blaxland QC, Blinne Ní Ghrálaigh and Owen Greenhall (instructed by Hodge Jones & Allen and Bindmans) for the Respondents
Hearing date: 29 November 2018
Approved Judgment
Lord Justice Singh and
Introduction
This is the judgment of the Court.
These are appeals by way of case stated in relation to two separate trials which concerned materially similar facts. The first trial was R v Ziegler, Cullinan, Frew and Cole (“ Ziegler and Ors”), heard between 1 and 2 February 2018; and the second was R v Cooper, Donaldson, Dorton and Franklin (“ Cooper and Ors”), heard between 7 and 8 February 2018, both taking place before DJ (MC) Hamilton (“DJ Hamilton” or “the District Judge”) at Stratford Magistrates' Court. All eight defendants (now the Respondents) faced a charge of obstruction of the highway, contrary to section 137 of the Highways Act 1980 (the “1980 Act”).
All of the charges arose out of protests in which each of the Respondents took part on 5 September 2017, some days prior to the opening of the biennial Defence and Security International (“DSEI”) fair at the Excel Centre in East London.
In the case of Ziegler and Ors, all four defendants lay in the middle of an approach road leading to the Excel Centre, locking their arms onto a bar in the middle of a box designed to make disassembly, removal and arrest more difficult. The police approached them and, after initiating a process known as the “5 stage process” to try and persuade them to remove themselves voluntarily from the road, arrested them and removed them to a police station around 90 minutes after their arrival. One carriageway (the one leading to the Excel Centre) was entirely blocked as a consequence.
In Cooper and Ors, the four defendants suspended themselves by ropes from a bridge above both carriageways of the Royal Albert Way, a short distance from the Excel Centre. The police closed the road to traffic for safety reasons, and the defendants were removed from the bridge 78 minutes after the incident took place (after the police had, again, undertaken the 5 stage process).
Of the elements that must be proved under section 137 of the 1980 Act (an obstruction of the highway; which was wilful; there being no lawful authority or excuse for the obstruction), only the “lawful excuse” element was in dispute at either of the trials. As was common ground, this required an assessment of the “reasonableness” of the defendants' conduct. On this ground, DJ Hamilton dismissed the charges against all eight defendants at the two trials.
The question of law set out at para. 41 of the Case Stated is whether the District Judge was entitled to reach the conclusions which he did in these particular cases; and therefore whether he was correct to have dismissed the case against the defendants in these circumstances.
Factual and Procedural Background
The primary facts were not in dispute and can be summarised briefly.
Shortly before 9.00 am on 5 September 2017, a vehicle containing the Respondents Ziegler, Cullinan, Frew and Cole stopped on a road leading to the Excel Centre. There was already, at that time, a sizeable police presence there, in anticipation of demonstrations taking place during the arms fair. The four defendants decamped from the vehicle quickly, carrying two boxes. Each box had a pipe sticking out at the end, and a bar in the middle of it. The defendants placed the boxes in the middle of the road heading towards the Excel Centre, lay down, and locked themselves to the bar with the use of a carabiner clip. Two defendants were locked on each box. The locks on the boxes were colourful and bore messages of peace.
Police officers approached the defendants almost immediately and went through the 5 stage process to try and persuade them to remove themselves voluntarily from the road. When the defendants failed to respond to the 5 stage process, they were arrested. All were arrested by 9.05 am. However, it took a considerable time after arrest to move the defendants, whose boxes were, by design, difficult to disassemble. This process took about 90 minutes, with the defendants arriving at their respective police stations at around 10.40 am.
PC Wright, the only officer to give live evidence at trial, stated that he had been briefed to prevent obstructions of the road leading to the Excel Centre, and to assist vehicles getting into it. Protesters, other than the defendants, had been permitted to walk slowly in front of other vehicles destined for the Excel Centre, but no one had been permitted to block the road.
Turning to the facts of the second case, on 5 September 2017, shortly before 11.40 am, the defendants arrived at the Connaught Bridge roundabout at the point at which it crosses over the Royal Albert Way. They used climbing equipment to lower themselves from the bridge so that each was suspended by rope above both carriages of the Royal Albert Way. It was not in dispute that each was suspended low enough to prevent lorries from using the carriageways, although cars, cyclists and pedestrians could pass underneath them. Nevertheless, the police closed the road to all traffic for safety reasons, and the road remained closed until the defendants had been arrested and brought to the ground by a specialist police team. It was also not in dispute that a police vehicle did pass underneath the defendants without incident while they were suspended above the road. After the 5 stage process had been initiated, the defendants were arrested between 11.58 am and 12.06 pm, although they were not all removed from the bridge until 12.58 pm.
All eight defendants gave evidence at their trials. They described their actions as “carefully targeted” and aimed at disrupting traffic heading for the DSEI arms fair. Although most of the defendants accepted that their actions may have caused disruption to traffic that was not headed to the fair, it was common ground that not all access routes to the DSEI arms fair were blocked by the defendants' actions, and it would have been possible for vehicles headed there to turn around and follow an alternative route.
The trial of Ziegler, Cullinan, Frew and Cole took place between 1 and 2 February 2018. DJ Hamilton dismissed all charges and handed down his written judgment on 7 February 2018.
Following this, the trial commenced in the cases of Cooper, Donaldson, Dorton and Franklin, taking place between 7 and 8 February 2018. DJ Hamilton found all defendants not guilty, giving oral reasons at that time, with his written judgment handed down on 20 February 2018.
From 7 to 9 February 2018, the trial in the related DSEI protest case of R v Ammori, Hill, Johnson, Kirkeby and Sinfield (involving charges of obstruction of the highway contrary to section 137 of the 1980 Act, on the same road as the eight Respondents' protest) took place. At Stratford Magistrates' Court, DJ McGiver found that there was no case to answer in respect of Ammori, and that Hill, Johnson and Sinfield were not guilty, after which the prosecution was discontinued in relation to Kirkeby. In the related DSEI protest cases of R v Dixon, Gibbons, Lysaczenko, Pasteur and Reader, taking place between 14 to 16 February 2018, the prosecution was discontinued for all but Lysaczenko, who was acquitted.
The CPS served an application to state a case in R v Ziegler and Ors on 26 February 2018, and in R v Cooper and Ors on 14 March 2018. DJ Hamilton completed the draft Case Stated relating to all eight Respondents on 15 March 2018, and the Court served this on the Respondents on 20 March 2018.
The judgments of the District Judge
As we have mentioned, DJ Hamilton handed down his judgment in Ziegler and Ors on 7 February 2018.
He identified at the outset that the single issue in the case was whether the obstruction caused was reasonable in all the circumstances, in particular in light of the defendants' rights under Articles 10 and 11 of the European Convention on Human Rights (“ECHR”). Account was also taken of Ms Frew's Article 9 ECHR rights because of her faith. Essentially all other elements of the section 137 offence were not in dispute. The defendants all accepted that their action was planned, that it took place on a “highway” to which section 137 applied, and that the action caused an “obstruction” thereon. Finally, although the action was not particularly long in duration there was no contention that it was de minimis or entirely minimal.
DJ Hamilton dismissed the charges that the four defendants faced. His reasons for this are set out at paras. 38–44 of his judgment. His reasoning was broadly as follows.
First, there was no clear guidance or higher court authority on the impact of Articles 10 and 11 on the present situation, perhaps as a consequence of such cases being decided on their own individual facts: para. 38.
Secondly, he nonetheless found that the judgment of Gray J in Westminster City Council v Brian Haw [2002] EWHC 2073 QB (quoted more fully below) was authority for the proposition that an unauthorised demonstration that constitutes a prima facie obstruction of the highway will still be reasonable, and thus not constitute an offence under the 1980 Act, if it is in pursuance of the rights set out in Articles 10 or 11 of the ECHR: paras. 39–40.
Thirdly, he took into consideration a list of various...
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