Peaceful Protesters Successful in Supreme Court
After a District Judge’s dismissal of a charges of wilful obstruction of the Highway without lawful authority or excuse[1], the Divisional Court considered that the Judge’s assessment of the proportionality of the interference with the appellants’ rights under the European Convention of Human Rights was wrong because he failed to strike a fair balance between the interests of the protesters and other members of the public and directed convictions.
The appellant protesters against the arms trade had been arrested after lying down in the road and locking themselves to lock boxes. After police efforts to persuade them to move had failed, it took around 90 minutes to remove the protesters from the road.
The Divisional Court had certified two points of law of general importance.[2]
Allowing the appeal by a majority, Lord Hamblen and Lord Stephens observed that at the hearing of the appeal the it was suggested that in cases involving an assessment of proportionality, the applicable approach should be that set out by Lord Neuberger of Abbotsbury[3], namely, whether the judge’s conclusion on proportionality was wrong: Director of Public Prosecutions v Ziegler and others [2021] UKSC 23 Lord Hodge (Deputy President), Lady Arden, Lord Sales, Lord Hamblen, Lord Stephens
That test had been applied in other contexts, in particular extradition cases, where it was also concluded that it should be applied in the criminal law context.[4]
Applying that test to the facts as found, the Divisional Court held that the District Judge’s assessment of proportionality was wrong because (i) he took into account certain considerations which were irrelevant, and (ii) the overall conclusion was one that was not sustainable on the undisputed facts before him.
The conventional approach of the Divisional Court to appeals by way of case stated in criminal proceedings was to apply an appellate test of whether the court’s conclusion was one which was reasonably open to it, ie not Wednesbury[5] irrational or perverse.
Section 137(1) of the 1980 Act had to be read compatibly with the ECHR which involved considering whether the public authority’s interference with the protesters’ rights was proportionate.
The majority considered that the test in In Re B was not the correct test. In Re B was a family law case involving the appellate test under the Civil Procedure Rules (which did not apply to criminal proceedings such as these).
Whilst the majority did not consider that In Re B was the applicable appellate test, it may nevertheless be very relevant to appeals by way of case stated that turned on issues of proportionality. The law had been developed in later cases.
If there were an error or flaw on the face of the case, in the judge’s reasoning which undermined the cogency of the conclusion on proportionality, that was likely to be apparent on the case stated, and therefore an error of law on the face of the case, such that the decision would be open to challenge on the correct appellate test.
The minority considered that the same appellate test in relation to an assessment of proportionality should be applied regardless of the procedural route by which the appeal happened to proceed and would have upheld the decision of the Divisional Court.
Lords Hamblen and Stephens added that a review of the case law of the European Court of Human Rights showed that the protection of Articles 10 and 11 ECHR extended to a protest which took the form of intentional disruption obstructing others.
But the extent of the disruption and whether it was intentional were relevant factors in the assessment of proportionality. The factors relevant to the assessment included 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 event, involved no complete obstruction of the highway and, insofar as the obstruction lasted for around 90 minutes, was of limited duration.
The District Judge was entitled to take those 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.
The minority considered that both the District Judge’s and Divisional Court’s assessment of proportionality was flawed and would have remitted the matter to the magistrates’ court for further examination of the facts.
[1] Contrary to section 137(1) Highways Act 1980
[2] 1. What is the test to be applied by an appellate court to an assessment of the trial court in respect of a statutory defence of lawful excuse when Convention rights are engaged in a criminal matter? 2. Is deliberate physically obstructive conduct capable of constituting a lawful excuse for the purposes of section 137 of the 1980 Act, where the impact of the deliberate obstruction on other highway users is more than de minimis, and prevents them, or is capable of preventing them, from passing along the highway?
[3] In re B (a Child)(Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911
[4] Love v Government of the United States [2018] EWHC 172 (Admin); [2018] 1 WLR 2889
[5] Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223