Michael Buchanan v The Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Soole |
| Judgment Date | 10 July 2018 |
| Neutral Citation | [2018] EWHC 1773 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/447/2018 |
| Date | 10 July 2018 |
[2018] EWHC 1773 (Admin)
Lord Justice Hickinbottom
and
Mr Justice Soole
Case No: CO/447/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person.
Rosalind Earis (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 10 July 2018
Judgment Approved
Introduction
This is an appeal by way of case stated by the Appellant Michael Buchanan from the Crown Court at Isleworth which, on 3 March 2017, refused his appeal against conviction at the Hammersmith Magistrates' Court on 12 October 2016 for obstructing the highway in Parliament Square at about 4.30pm on 1 June 2016 contrary to section 137(1) of the Highways Act 1980.
The Facts
The facts giving rise to the charge are set out in paragraphs 5–13 of the Case Stated, as follows:
“5. … Mr Buchanan leads an organisation called ‘Justice for Men and Boys’ which campaigns against the practice of male circumcision or male genital mutilation. Mr Buchanan believes that the practice is illegal; and that the police and [the Crown Prosecution Service (“the CPS”)] ought to prosecute those who conduct circumcision on those who are too young to give informed consent.
6. On the 1st of June 2016 Mr Buchanan accompanied by a small number of supporters of his organisation protested outside the Home Office. One of their number filmed part of the protest and this included an interview with Mr Buchanan in which he stated his intention to get arrested later in the day. This video which included much footage of the later protest in Parliament Square was later posted on-line. We were shown the video in full as part of the prosecution case with Mr Buchanan's agreement.
7. Mr Buchanan and his supporters moved to Parliament Square where they protested on the pavement that surrounds the green area in the middle of the square. It was clear from the video that Mr Buchanan on his own then crossed into the middle of the road using a light-controlled pedestrian crossing. He stopped in the middle of the road and when the light changed stood in the middle of the road holding up a placard towards the drivers of vehicles. Initially the vehicles were able to pass on either side of him but he then moved deliberately in order to place himself in front of oncoming vehicles. These vehicles could not continue and either had to wait for Mr Buchanan to move or had to seek to merge into traffic using the other lane.
8. A police carrier driven by an officer called PC Moore happened to pass. PC Moore gave evidence and his evidence was entirely consistent with the video material we were shown which also included some CCTV. Neither PC Moore nor PC Habid who was a passenger in the carrier and who also gave evidence were cross-examined by Mr Buchanan.
9. We were satisfied that PC Moore initially stopped his carrier beside Mr Buchanan and asked him to move back onto the pavement. When Mr Buchanan politely refused PC Moore parked his van outside the House of Commons and went back to Mr Buchanan and sought to persuade him to move back to the pavement where his supporters were still protesting. Mr Buchanan refused and PC Moore made the request more forcefully and told him what might happen if he did not comply. When Mr Buchanan still did not go back to the pavement PC Moore walked into him and pushed him out of the road back to the pavement.
10. During the time Mr Buchanan was in the road we were satisfied that vehicles were obstructed for a period of approximately 5 minutes. Buses, taxis and cars were blocked. We were satisfied that Mr Buchanan's conduct was significant risk to himself and to others. We were also satisfied that Mr Buchanan positively wanted to be arrested and he later confirmed this when he gave evidence. We were also satisfied that PC Moore had acted with great patience and done everything he could reasonably do to avoid arresting Mr Buchanan.
11. Having pushed Mr Buchanan back to the pavement PC Moore and Mr Buchanan had a polite conversation in which PC Moore sought to persuade Mr Buchanan not to return to the middle of the road. Mr Buchanan told him he was going to go back into the carriageway and then did so and PC Moore ushered him to the carrier where PC Habid arrested him for obstruction of the highway. PC Moore said he was satisfied that Mr Buchanan's goal was to get arrested which was confirmed by a caption in the video.
12. Mr Buchanan gave evidence on his own behalf. We did not accede to his request to show us a lecture on the subject of male genital mutilation. We did allow him to explain his views and we were satisfied that he genuinely holds these views and does so in good faith. We did not consider it necessary to determine whether his argument that circumcision is unlawful was correct in law.
13. Mr Buchanan said in evidence that he decided to walk into the road and stop there because he was frustrated at the lack of success of his organisations campaign. He agreed he was prepared to be arrested. In all respects his evidence was effectively identical to that of PC Moore.”
In his skeleton argument, the Appellant (who, as before the Magistrates' Court and Crown Court, is acting in person) accepts that the essential facts are not in dispute; and, in any event, despite the manner in which the case was stated (to which I shall return: see paragraph 7 and following below), they are unchallengeable in this forum. There is no application before us to return the case stated to the Crown Court for amendment or correction. We have to deal with the case as stated, and the two questions it poses for determination by this court, on the basis of the facts as found by the Crown Court.
In respect of the facts, in his skeleton argument, the Appellant says:
“I chose to protest in a multi-lane highway, putting myself at physical risk of injury and more, but near to traffic lights from where motorists would clearly see me, so they had a good opportunity to drive past me. The vast majority did drive past me, which is evident from the video.” (emphasis in the original).
Although the Appellant accepts he obstructed vehicles (in the sense of “vehicle stopped”) for 49 seconds, he denies obstructing the traffic at all during the period described by the case stated.
The Proceedings
The Appellant was charged with obstructing the highway and, at a hearing at Hammersmith Magistrates' Court on 12 October 2016, he was convicted and fined. He appealed to the Crown Court. On 3 March 2017, that court (Mr Recorder Greene and magistrates) refused his appeal which was by way of full rehearing.
The Crown Court, having dealt with the facts, referred to the cases cited to it including Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr App R 143 (“ Hirst & Agu”) which identified three elements in the statutory offence namely (i) obstruction of free passage along the highway, (ii) wilful obstruction and (iii) lack of lawful authority or excuse. The court concluded that, in the appeal before it, each element was made out to the criminal standard of proof. The case stated says (at paragraphs 19–21):
“19. There was an obstruction of the highway by Mr Buchanan. It lasted in total about five minutes and impeded and blocked many vehicles and caused significant risk to Mr Buchanan and other road users. It could not possibly be described as trifling or small or ‘de minimis’.
20. The obstruction was wilful and deliberate.
21. The obstruction was without lawful authority or reasonable excuse. Mr Buchanan's use of the highway was not reasonable. His supporters were protesting peacefully on the pavement and he could have stayed with them. They were obstructing the pavement but their use of the highway was reasonable. The arrest and prosecution of Mr Buchanan was a necessary interference with his article 10 and 11 rights in the interests of public safety and the protection of the rights and freedoms of others. Unlike the case of Brian Haw there was abundant unchallenged evidence that this was a real and serious obstruction of other users of the highway. Mr Buchanan deliberately set out to be arrested on 1st of June 2016.”
“Article 10 and 11” is of course a reference to those articles of the European Convention on Human Rights (“the ECHR”). Article 10 provides for the right to freedom of speech, and article 11 for the right to freedom of peaceful assembly and to freedom of association with others. “The case of Brian Haw” is a reference to Westminster City Council v Haw [2002] EWHC 2073 (QB) (“ Haw”), to which I shall return.
On 20 March 2017, the Appellant applied to the Crown Court for a case stated. Things did not then proceed as they ought to have done.
On 27 March 2017, the court responded, granting the application and attaching a document drafted by the Recorder and headed “Case Stated”. That is the case stated now before us. In preparing and circulating a case as it did, the Crown Court failed to comply with the requirements of CrimPR Part 35, which deals with criminal cases stated. If an application is made to state a case, then any party wishing to make representations must do so within 14 days (rule 35.2(3)): in this case, on 29 March 2017, the CPS did make representations opposing the application to state a case, but only after the case stated had been prepared and sent out. Under the rules, once the court has accepted that a case should be stated, then the obligation to prepare a draft compliant with rule 35.3(4) falls upon the applicant (now, appellant) who must file and serve a draft within 21 days (rule 35.3(2)(b)). Any party wishing to make representations on the draft must do so within 21 days (rule 35.3(6)). The court must then,...
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...have been acting unreasonably in all the circumstances and will not have that lawful excuse by way of defence. 93 In Buchanan v CPS [2018] EWHC 1773 (Admin), at para. 20, Hickinbottom LJ said, after citing pre- HRA cases on section 137 such as Nagy v Weston and Hirst and Agu, that the righ......