Peaceful protesters deliberately obstructed one side of a road leading to an arms fair. In this prosecution under section 137 of the Highways Act 1980, did the deliberate nature of the obstruction by itself rule out a lawful excuse? The answer determined whether the trial judge had been entitled to acquit.
The protest and the charge
In September 2017 the Defence and Security International arms fair was held at the Excel Centre in East London. On 5 September, while equipment was being delivered, the appellants lay on the carriageway leading towards the Centre and locked themselves to boxes designed to be difficult to take apart. They opposed the arms trade and meant both to draw attention to the fair and to disrupt deliveries. Police officers already there used a five-stage process to persuade them to leave. When they did not, they were arrested. Clearing that side of the road took about 90 to 100 minutes. The carriageway leading away remained open, and it was not disputed that vehicles could turn and use another route.
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The offence at issue was wilfully obstructing free passage along a highway without lawful authority or excuse. The court had to interpret lawful excuse compatibly with the Convention rights of expression and peaceful assembly. That brought the proportionality of a conviction into the analysis.
The courts below
District Judge Hamilton, at Stratford Magistrates’ Court, dismissed the charges. He found the action peaceful, targeted at traffic heading for the fair, concerned with a matter of general public concern, and limited in duration. There was no disorder, no other offence, and no evidence of a complaint. Evidence that traffic unconnected with the fair had been blocked was speculative. He held that the prosecution had not proved the obstruction to be unreasonable.
The Director of Public Prosecutions appealed by case stated, an appeal limited to error of law. The Divisional Court held that the district judge had relied on irrelevant considerations and that his conclusion could not stand. It said that the highway to the Centre had been completely blocked for a significant period, so no fair balance had been struck with other road users. It directed that convictions be entered. The appellants were later given conditional discharges of 12 months. Two questions were certified for the Supreme Court.
Reviewing the defence on appeal
The first question was how an appeal court should review a trial court’s assessment of lawful excuse where Convention rights are engaged. Lord Hamblen and Lord Stephens held that the ordinary case-stated approach remains that in Edwards v Bairstow. The appeal is not a rehearing. It may be allowed if a material error of law appears on the face of the case, or if no reasonable court, properly instructed, could have reached the decision on the facts found. They rejected a separate, looser test merely because proportionality is involved: a section 137 prosecution may raise several issues, and the appeal test should not change with the mix. A flaw in the proportionality reasoning which undermines the conclusion can nevertheless be an error of law. That review uses the findings in the case stated, not a fresh look at the evidence, unless a finding lacked evidence or was one no reasonable tribunal could make.
They held that the Divisional Court had been wrong to treat the test in In re B, concerned with a broader right of appeal, as replacing the case-stated test. That later case law can help identify a flaw in a proportionality assessment, but Edwards v Bairstow remains the overarching test. Lady Arden agreed. She added that findings of fact stay subject to that restrained review, while the evaluative judgment is reviewed for a material flaw rather than remade.
Lord Sales, with whom Lord Hodge agreed, dissented on the test. In his view, lawful excuse here asks whether the police response was proportionate. An appeal court should decide whether that assessment was wrong in the sense used in proportionality appeals, not merely whether it was irrational. The procedural route should not change the standard.
Obstruction is not automatically unlawful
On the second question, the Court held that deliberate physical obstruction can be a lawful excuse even where its impact is more than minimal and prevents, or could prevent, others from passing. Peaceful protest commonly disrupts ordinary life, including traffic. Public authorities must show some tolerance if freedom of assembly is not to be deprived of substance. Intentional obstruction remains within the right. Serious disruption of others’ activities is not at its core and may count against the protesters, but it does not by itself make a conviction proportionate.
The balance is fact-specific, and no factor has a fixed weight. It may include the location and its importance to the protesters, duration, how much space is occupied, the actual effect on others, alternative routes, whether the blockage is aimed at the object of the protest, whether other offences are committed, and whether the views are political and sincerely held. The court must not judge the merits of the cause.
Lord Hamblen and Lord Stephens, agreeing with Lady Arden and differing from Lord Sales, treated the restriction in question as the conviction, not only the police decision to intervene. Facts proved at trial may differ from how matters appeared to officers. Arrest, prosecution, conviction and sentence are separate restrictions and may require separate assessment.
Why the majority upheld the acquittal
The trial judge had found a peaceful, targeted protest lasting about 90 to 100 minutes. The findings did not establish that all access to the fair had been prevented, and there was an alternative route. On those findings the majority held that the Divisional Court was not entitled to substitute its own conclusion about the balance with the rights of other road users.
The majority also held that the protesters could not be convicted on the footing that the protest would have lasted longer had the police not intervened. Only the obstruction that actually occurred can be used in the assessment leading to conviction.
The partial dissent
Lord Sales accepted that obstructive protest can in principle be excused, but held that the district judge had failed to take proper account of the complete obstruction of the relevant carriageway and of the fact that the protest was short because the police removed the protesters. He considered that they had intended to prolong the blockage and had brought equipment for that purpose. Those omissions, in his view, flawed the assessment. He nevertheless thought the Divisional Court wrong to enter convictions itself: the stated facts were insufficient to decide proportionality, including the extent of disruption, the alternative routes, and other available forms of protest. He would have remitted the case to the magistrates’ court. Lady Arden rejected both criticisms of the district judge.
Verdict: By a majority the Supreme Court allowed the appeal and restored the dismissal of the charges. Deliberate obstruction with more than minimal impact was capable of attracting lawful excuse under section 137. Whether that defence succeeded depended on the facts.
Source: Director of Public Prosecutions v Ziegler and others [2021] UKSC 23
