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On appeal from: [2019] EWHC 71

In this case the Supreme Court decides whether in criminal proceedings arising out of protest activity: (1) is deliberate physically obstructive conduct by protesters capable of constituting a lawful excuse for the purposes of s.137 of the Highways Act 1980?; and (2) what is the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of ‘lawful excuse’ when Convention rights are engaged in a criminal matter?

The Appellants took part in a demonstration protesting the Defence and Security International weapons fair at the Excel Centre. They were charged with obstructing the highway, contrary to section 137. They were acquitted at trial because their actions fell within the “lawful authority or excuse” defence contained in that section. The Director for Public Prosecutions appealed successfully by way of case stated to the High Court. The Appellants then appealed to the Supreme Court.

 

HELD: The Supreme Court allows this appeal concerning criminal proceedings arising out of protest activity, specifically under section 137 Highways Act 1980 by a majority. The order directing convictions is set aside. The dismissal of the charges against the appellants is restored..

Section 137(1) of the 1980 Act must be read compatibly with the ECHR. In this context, that involves considering whether the public authority’s interference with the protestors’ rights was proportionate. If it was not proportionate, such that the interference was unlawful, the protestor will have a statutory defence of lawful excuse. The appellate test conventionally applied by the Divisional Court in appeals by way of case stated in criminal proceedings, including in cases involving issues of proportionality, is whether the court’s conclusion was one which was reasonably open to it – i.e., it is not Wednesbury irrational or perverse.

The Divisional Court held that a different test applied in appeals, such as this, which involve an assessment of proportionality. Under that test, following the Supreme Court’s decision in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, an appeal will be allowed where the decision of the lower court was “wrong”, whether in law or in fact. The majority consider that this was not the correct test. In re B was a family law case involving the appellate test under the Civil Procedure Rules (which do not apply in criminal proceedings such as these). It would be unsatisfactory for the appellate test in appeals by way of case stated to fluctuate depending on whether the case turns on an assessment of proportionality [42]-[45]. However, the test in In re B, as subsequently refined, may be very relevant to appeals by way of case stated which turn on an assessment of proportionality. If there is an error or flaw in the judge’s reasoning which undermines the cogency of the conclusion on proportionality, that is likely to be apparent on the case stated, and therefore an error of law on the face of the case, such that the decision will be open to challenge on the correct appellate test.

With regards to whether deliberately obstructive conduct capable of constituting a lawful excuse for the purposes of section 137, a review of the case law of the European Court of Human Rights shows that the protection of articles 10 and 11 ECHR extends to a protest which takes the form of intentional disruption obstructing others. However, the extent of the disruption and whether it is intentional are relevant factors in the assessment of proportionality. The factors relevant to this assessment, include in particular, and so far as relevant here, that the appellants’ action was, and was intended to be, a peaceful gathering, which gave rise to no form of disorder, did not involve the commission of any offence other than the alleged section 137 offence, was carefully targeted at vehicles heading to the fair, involved no complete obstruction of the highway, and, insofar as the obstruction lasted 90-100 minutes, was of limited duration. The district judge was entitled to take these factors into account in determining the issue of proportionality in favour of the appellants. There was no error or flaw in his reasoning on the face of the case such as to undermine the cogency of his conclusion on proportionality.

 

For judgment, please see: Judgment

For press summary, please see: Press summary

 

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12 Jan 2021 Morning session Afternoon session