Nina Carter-Brown and Others v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Sir Wyn Williams,Lord Justice Burnett |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] EWHC 1955 (QB) |
| Date | 31 July 2017 |
| Court | Queen's Bench Division |
| Docket Number | Cases CO/1792/2017 and CO/1889/2017 |
[2017] EWHC 1955 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Burnett
Sir Wyn Williams
Sitting as a Judge of the High Court
Cases CO/1792/2017 and CO/1889/2017
Ms Joanna Buckley (instructed by Bindmans LLP) for the First four named Appellants
Mr Adam Payter (instructed by Sonn Macmillan Walker) for the Fifth named Appellant
Mr James Boyd (instructed by the CPS Appeals and Review Unit) for the Respondent
Hearing date: 12 July 2017
The road known as "The Mearings" is one of three means of access to the Atomic Weapons Establishment situated in Burghfield, near Reading in the county of Berkshire (hereinafter referred to as "the AWE"). Over much the greater part of its length it is a private road and subject to the Atomic Weapons Establishment Burghfield Byelaws 2010 (hereinafter referred to as "the Byelaws").
At its western extremity The Mearings forms a junction with Reading Road which is a highway. The junction lay out is typical in that vehicular access from The Mearings on to Reading Road is controlled by double broken white lines.
Some short distance from the mouth of the junction with Reading Road there are a number of features on the land adjoining the road surface of The Mearings and/or the surface itself. On the offside of The Mearings (for those travelling from Reading Road), there is a board upon which is written " Burghfield Place The Mearings Private Road". On the nearside there are two boards; one is coloured red and contains the words " MOD Property, Access subject to MOD Byelaws"; the second board (white in colour) is immediately below the red board and upon it the Byelaws are set out.
The next feature of note is a continuous green line over the width of The Mearings and the pavement which is on the northern side of the road. This line has been in existence since a point in time after May 2012. In very close proximity to the green line there exists a gate which, when closed, is more or less above the green line and which prevents access along The Mearings beyond the gate. A short distance further along The Mearings (to the east of the gate) there is a barrier which can also be used to prevent access along The Mearings.
Early in the morning of 27 June 2016 the Appellants chained and glued themselves together and then lay down upon The Mearings. Their position was such that their heads lay upon or just to the east of the painted green line and their feet were pointing towards the junction with Reading Road. Their object was to disrupt the business of the AWE in furtherance of a protest about nuclear weapons. When they were asked by the police to give up their positions they refused.
In due course the Appellants were arrested and jointly charged with the offence of wilfully obstructing free passage along a highway without lawful authority or excuse contrary to section 137(1) Highways Act 1980. On 26 January 2017 District Judge (Magistrates Court) Shomon Khan sitting at the Reading Magistrates' Court convicted the Appellants of that offence. Some days later he handed down his reasons for convicting each Appellant.
In this appeal against conviction by way of Case Stated two questions are posed for the court's consideration. First, was the District Judge entitled to conclude that the part of The Mearings upon which the Appellants laid down was a highway? Second, was he entitled to conclude that any obstruction by the Appellants was not de minimis? The Appellants argue that each of those questions should be answered in the negative. They argue that DJ Khan erred in law when he concluded that they had obstructed free passage along a highway since his findings of fact were such that he could not have been sure that the area in which they laid down constituted part of the highway. Alternatively, they argue that he was wrong to dismiss their contention that any obstruction of the highway, if proved, was or may have been de minimis.
It is now well established that this court must answer the questions posed for its opinion strictly by reference to the facts as found by the lower court and recorded in the Case Stated. If authority is necessary for that proposition it can be found in the recent decision of the Divisional Court (Gross LJ and Nichol J) in DPP v Jobling [2016] EWHC 2707 (Admin)– see paragraphs 7 and 16 in particular. However, it sometimes occurs that the challenge mounted against the decision of the lower court requires an analysis of the evidence upon which the lower court is said to have acted. As will become apparent this is such a case. Accordingly, I turn, first, to the evidence adduced before the District Judge and the conclusions which he reached upon it. I stress that this recital is taken from the Case Stated.
The Mearings is the main access road to the AWE. For most of its length it is a private road maintained at the expense of the Ministry of Defence. At or in close proximity to the junction with Reading Road there exist the features described above at paragraphs 2, 3 and 4. No evidence was provided as to how the various features came to be present. However, evidence was given by a police officer, PS Holt, to the effect that the green line painted on the surface of The Mearings was intended to mark the line of the boundary between the private road and the highway and that the police and the Ministry of Defence had proceeded on that basis. Footpaths were in existence which form part of Reading Road. The footpath to the north of Reading Road "bisects" The Mearings. According to PS Holt members of the public "have a right at all times to continue travelling by foot alongside Reading Road and this right in no way interferes with the boundary to the MOD land".
One of the important witnesses for the prosecution was Mr Robin Mann who was employed at the material time as a senior technician within the Highways Department of West Berkshire County Council. During the course of his evidence-in-chief he produced a map upon which the boundaries of the highway, Reading Road, were depicted as red lines. The map so produced showed the red line passing across the junction with The Mearings at a point some distance to the east of the mouth of the junction. Mr Mann's evidence-in-chief was to the effect that the green line painted on the surface of The Mearings was approximately, at least, in the same location as the red line depicting the eastern boundary of the highway, Reading Road, as shown on the map which he produced. His unchallenged evidence (accepted by the District Judge) was that he had measured the distance between the green line on The Mearings and the mouth of the junction with Reading Road and found that there was 6.8 metres between the two points.
Under cross-examination Mr Mann was asked to measure the distance between the red line on the map (on the east side of the junction) and the mouth of the junction. That was an exercise which it was possible to perform because the map was to scale and it was not suggested before the District Judge that Mr Mann should not do as he had been asked. Having carried out the exercise Mr Mann gave evidence to the effect that the distance between the red line and the junction was between 5.5metres and 6metres.
Faced with the evidence given by Mr Mann as to the measurement he had taken on site between the green line and the mouth of the junction and the evidence which he gave about the distance between the red line on the map and the mouth of the junction as measured by him on the map DJ Khan expressed himself thus at paragraph 19(e) of the Case Stated:-
"Having considered the pictures and the plans very carefully, there must be a possibility that the green line is in the wrong place. However, it is unlikely that the discrepancy is going to be any more than the 1.3 metres conceded by Mr Mann."
It seems to me to be clear that in the passage just quoted the District Judge was making a finding to the effect that the green line painted on the road surface of The Mearings may have been in the wrong place if it was intended to depict the boundary between the highway and the private road. In my judgment, he was allowing of the possibility that the boundary was located nearer the junction with Reading Road by as much as 1.3 metres. Indeed, his phraseology is consistent with his accepting the possibility that the true boundary line was even closer than that to the mouth of the junction.
In evidence Mr Mann could not say who painted the green line on the surface of The Mearings. His assumption was that it was done by or at the behest of the Ministry of Defence. It was common ground that a photograph of the The Mearings taken in May 2012 did not show the green line so that the line had been in existence for no more than about 4 years by the time of the Appellants' protest.
The District Judge reached a number of conclusions about the significance of the green line which are to be found at paragraph 19 of the Case Stated. It is necessary to set out that paragraph in full.
"I have carefully considered the written and oral arguments on this issue. I find so that I am sure, that The Mearings is a highway up to the green line. This is based on the following factual findings:
a. Photographic...
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