Director of Public Prosecutions v Ziegler and Others
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] UKSC 23 |
| Court | Supreme Court |
2021 Jan 12; June 25
Human rights - Freedom of expression and assembly - Interference with - Defendants charged with obstructing highway during demonstration against arms fair - Whether defendants lawfully exercising Convention rights so as to have “lawful … excuse” - Whether interference with defendants’ Convention rights proportionate - Proper approach to proportionality by appellate court on appeal by way of case stated -
The defendants were charged with obstructing the highway, contrary to section 137 of the Highways Act 1980F1, by causing a road to be closed during a protest against an arms fair that was taking place at a conference centre nearby. The defendants had obstructed the highway for approximately 90 minutes by lying in the middle of the approach road to the conference centre and attaching themselves to two lock boxes with pipes sticking out from either side, making it difficult for police to remove them from the highway. The defendants accepted that their actions had caused an obstruction on the highway, but contended that they had not acted “without lawful … excuse” within the meaning of section 137(1), particularly in the light of their rights to freedom of expression and peaceful assembly under articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2. The district judge acquitted the defendants of all charges, finding that the prosecution had failed to prove that the defendants’ actions had been unreasonable and therefore without lawful excuse. The prosecution appealed by way of case stated, pursuant to section 111 of the Magistrates’ Courts Act 1980F3. The Divisional Court of the Queen’s Bench Division allowed the appeal, holding that the district judge’s assessment of proportionality had been wrong. The defendants appealed. It was common ground on the appeal that the availability of the defence of lawful excuse depended on the proportionality of any interference with the defendants’ rights under articles 10 or 11.
On the appeal—
Held, allowing the appeal, (1) that it was clear from the jurisprudence of the European Court of Human Rights that intentional action by protesters to disrupt the activities of others, even with an effect that was more than de minimis, did not automatically lead to the conclusion that any interference with the protesters’ rights was proportionate for the purposes of articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms; that, rather, there had to be an assessment of the facts in each individual case to determine whether the interference was “necessary in a democratic society” for the purposes of articles 10(2) and 11(2); that, therefore, deliberate physically obstructive conduct by protesters was capable of being something for which there was a “lawful … excuse” for the purposes of section 137(1) of the Highways Act 1980, even where the impact of the deliberate obstruction on other highway users was more than de minimis and prevented them, or was capable of preventing them, from passing along the highway; and that whether or not the protesters had a lawful excuse would depend on (per Lady Arden, Lord Hamblen and Lord Stephens JJSC) whether the protesters’ convictions for offences under section 137(1) were justified restrictions on their Convention rights or (per Lord Hodge DPSC and Lord Sales JSC) whether the police response in seeking to remove the obstruction involved the exercise of their powers in a proportionate manner (post, paras 63–70, 94, 99, 121, 154).
(2) (Lord Hodge DPSC and Lord Sales JSC dissenting) that, on an appeal by way of case stated under section 111 of the Magistrates’ Courts Act 1980, the test to be applied by the appellate court to an assessment of the decision of the trial court in respect of a defence of lawful excuse under section 137 of the Highways Act 1980 when Convention rights were engaged was the same as that applicable generally to appeals on questions of law in a case stated, namely that an appeal would be allowed where there was an error of law material to the decision reached which was apparent on the face of the case stated or if the decision was one which no reasonable court, properly instructed as to the relevant law, could have reached on the facts found; that, in accordance with that test, where the defence of lawful excuse depended upon an assessment of proportionality, an appeal would lie if there had been an error or flaw in the court’s reasoning on the face of the case stated which undermined the cogency of its conclusion on proportionality; that such assessment fell to be made on the basis of the primary and secondary findings set out in the case stated, unless there was no evidence for them or they were findings which no reasonable tribunal could have reached; and that, therefore, the Divisional Court in the present case had applied an incorrect test by asking itself whether the district judge’s assessment of proportionality had been wrong (post, paras 42–45, 49–54, 99, 106–108).
(3) (Lord Hodge DPSC and Lord Sales JSC dissenting in part, but agreeing in allowing the appeal) that there had been no error or flaw in the district judge’s reasoning on the face of the case stated such as as to undermine the cogency of his conclusion on proportionality; that, in particular, he had not erred in considering as relevant factors the facts that the defendants’ actions (a) had been entirely peaceful, (b) had not given rise either directly or indirectly to any form of disorder, (c) had not involved the commission of any other criminal offence, (d) had been aimed only at obstructing vehicles headed to the arms fair, (e) had related to a matter of general concern, namely the legitimacy of the arms fair, (f) had been limited in duration, (g) had not given rise to any complaint by anyone other than the police and (h) had stemmed from the defendants’ long-standing commitment to opposing the arms trade; and that, accordingly, the convictions should be set aside and the dismissal of the charges against the defendants restored (post, paras 71–78, 80–88, 99, 109–113, 115–118).
The following cases are referred to in the judgments:
A v Secretary of State for the Home Department
Abdul v Director of Public Prosecutions
Arrowsmith v Jenkins [
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [
B (A Child) (Care Proceedings: Threshold Criteria), In re
Balçik v Turkey (Application No 25/02) (unreported) 29 November 2007,
Bracegirdle v Oxley [
City of London Corpn v Samede
Council of Civil Service Unions v Minister for the Civil Service [
DB v Chief Constable of Police Service of Northern Ireland
D’Souza v Director of Public Prosecutions [
Edwards v Bairstow [
Garry v Crown Prosecution Service
Google LLC v Oracle America Inc (
Gough v Director of Public Prosecutions
H v Director of Public Prosecutions
Hammond v Director of Public Prosecutions
Hashman and Harrup v United Kingdom (Application No 25594/94) (
Hitch v Stone
Huang v Secretary of State for the Home Department
Kudrevičius v Lithuania (Application No 37553/05) (
Kuznetsov v Russia (Application No 10877/04) (unreported) 23 October 2008,
Lashmankin v Russia (Application No 57818/09) (unreported) 7 February 2017,
Love v Government of the United States of America
Mayor of London (on behalf of the Greater London Authority) v Hall
Molnár v Hungary (Application No 10346/05) (unreported) 7 October 2008,
Nagy v Weston [
Navalnyy v Russia (Application Nos 29580/12, 36847/12, 11252/13, 12317/13, 43746/14) (
New Windsor Corpn v Mellor [
Norwood v Director of Public Prosecutions
Oladimeji v Director of Public Prosecutions
Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [
Primov v Russia (Application No 17391/06) (unreported) 12 June 2014,
R v North West Suffolk (Mildenhall) Magistrates’ Court, Ex p Forest Heath District Council [
R (Aguilar Quila) v Secretary of State for the Home Department
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