Animal Rebellion protesters blocked a private industrial-estate road outside Müller’s dairy and were charged with statutory public nuisance under the obstruction limb only. The Supreme Court held that there is no public right over private ways. A mere licence is not a public ‘right’, so the defendants were acquitted.
Background
Section 78 of the Police, Crime, Sentencing and Courts Act 2022 abolished the common law offence of public nuisance and replaced it with a statutory offence. The offence can be committed in either of two ways:
- The first limb (s 78(1)(b)(i)) covers an act or omission which creates a risk of, or causes, serious harm to the public or a section of the public.
- The second limb (s 78(1)(b)(ii)) covers an act or omission which obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large.
On 8 September 2022, six protesters from the group ‘Animal Rebellion’ obstructed the main vehicular entrance to a dairy works owned by Müller UK. The works sit within the Stonebridge Cross Industrial Estate near Droitwich. The defendants either chained themselves to temporary fencing that Müller had placed on Pointon Way, or glued themselves to the road surface. They stayed there for around four hours, during which no vehicles could enter or leave the site. Pedestrians could pass through a gap in the fencing with the permission of Müller staff.
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Pointon Way is a no through road. It is owned by an investment company and is the only road access to the estate’s premises. It carries a sign reading ‘PRIVATE LAND CCTV is in operation and no trespassing is permitted’.
The Crown deliberately relied only on the second limb, thereby avoiding the need to prove serious harm. At the close of the prosecution case, HHJ Jackson in the Crown Court at Worcester accepted a submission of no case to answer. The Court of Appeal (Holroyde LJ, Goss and McGowan JJ) allowed the prosecution’s appeal against that ruling ([2025] EWCA Crim 748). It certified a question of general public importance.
The issue
The certified question was whether persons who go to private business premises, whether as employees, customers, suppliers or for some other connected reason, are a section of the public exercising or enjoying a right which may be exercised or enjoyed by the public at large within s 78(1)(b)(ii) when they (a) approach, (b) enter and/or (c) leave the premises.
The concessions below
Before the Court of Appeal, defence counsel made two concessions:
- where a landowner permits the public generally (rather than particular persons) to enter land, even subject to conditions such as buying a ticket, members of the public have a qualifying ‘right’; and
- the public at large had a right to pass along Pointon Way.
On that footing, the Court of Appeal held that the public have a right to attend places and events, or to use facilities, offered to the public at large, even if subject to conditions. It gave three illustrations: concerts and festivals, travel by bus or train, and a permissive path that is locked at night.
The Crown, through Mr David Perry KC, accepted that if the concessions were right the appeal must fail. Relying on Lord Diplock in Bahamas International Trust Co Ltd v Threadgold, the Supreme Court held that it was not bound by a concession on a point of law. It invited argument on whether the Court of Appeal’s proposition was correct.
The Court’s reasoning
Lord Leggatt gave the lead judgment, with whom Lord Reed, Lady Simler and Lord Doherty agreed. Lord Sales concurred. Lord Leggatt framed the answer at the outset:
“The short answer is “no” because what distinguishes a private way from a highway is that the public at large does not enjoy a right to use it.”
No public authority to use Pointon Way
The Court first rejected the factual premise. Generally, the only people who may lawfully use a private road are:
- the owner or other occupier; and
- those granted a right of way or permission by the occupier.
The Court assumed that the businesses on the estate, and their employees and visitors, enjoy a private right in the nature of an easement. However, there was no evidence that anyone else had been granted a right or permission to use the road. Tolerated use did not make such use lawful. A person with no business on the estate who walks along the road is ‘in law a trespasser even if the trespass is tolerated’. The sign showed that no permission had been given to the general public.
‘Right’ does not include a licence
Even if the public had been given permission, that would not be a ‘right’ within s 78(1)(b)(ii). Lord Leggatt drew on the established distinction between proprietary rights and licences:
“A right of way is an interest in land which others owe a duty not to interfere with. A licence merely makes it lawful for the licensee to do what would otherwise be a trespass.”
A licence also depends on the owner’s continuing consent and can be revoked. Lord Leggatt, Lord Reed, Lady Simler and Lord Doherty considered the statutory language clear on this point. All five Justices agreed that, even if the word were ambiguous, the narrower reading must prevail under the principle against doubtful penalisation. The Court relied on Tuck & Sons v Priester, Sweet v Parsley and R v Allen:
“So, if a statutory provision which creates a criminal offence punishable with imprisonment can reasonably be understood in two ways, the narrower interpretation should be preferred.”
Arbitrariness of the Court of Appeal’s test
The Court of Appeal’s approach made criminality turn on whether a permission was offered to all members of the public or to only some of them. The Supreme Court found this distinction arbitrary and incoherent:
- Ticketed events: a ticket requirement indicates that the public at large has no right of access. Only ticket-holders could be said to have such a right.
- Conditions and exclusions: it was unclear how bag searches, or the exclusion of known troublemakers, would affect the analysis.
The Court concluded:
“In our opinion, the distinction between an owner of real property who invites particular persons or a particular class of persons to enter it and an owner who invites those who satisfy certain conditions or restrictions to enter the property is uncertain, unstable and unsustainable as a basis for determining whether conduct that obstructs entry is criminal.”
Historical context: highways and public nuisance
The Court traced the second limb to the common law of highways. Sources included Coke, Holt CJ in R v Saintiff, Hawkins’ Pleas of the Crown and Bateman v Bluck. The Court emphasised:
“What has always been, and still is, the essential characteristic of a highway at common law is that it is a way, following a defined route, over which all the King’s subjects (or, in modern terminology, the public at large) have a right to pass freely.”
The rights common to the public at large at common law are limited. They are free passage on highways and navigable rivers, and navigation and fishing in tidal waters. Statute has added others, such as access rights under the Countryside and Rights of Way Act 2000. These public rights are distinct from private easements and from customary rights of local inhabitants. Hawkins had contrasted a highway with a private way to a house or parish church, which ‘belongeth not to all the King’s subjects’.
The codification history pointed the same way. Stephen’s Digest and draft Bill, the 1879 Commissioners’ draft code and the Archbold definition approved in R v Rimmington all used a two-limb structure. That structure was needed precisely because ‘rights common to all Her Majesty’s subjects’ did not capture the wider class of nuisances causing harm or annoyance to the public.
The Law Commission’s paragraph 3.45 rejected
The Crown relied on paragraph 3.45 of the Law Commission’s 2015 report (Law Com No 358), as had the Court of Appeal. That paragraph suggested that ‘rights’ includes a general right of the public to go about its business without interference or annoyance. The majority held:
“the opinion expressed by the Law Commission about how the proposed statutory wording should be interpreted must be assessed purely on its merits: there can be no assumption that it was adopted by Parliament.”
Assessed on its merits, the paragraph was rejected for four reasons:
- Mistaken premise: no authority supported the claimed broad common law reading.
- Vagueness: the supposed ‘general right’ is too wide and vague to meet the Rimmington requirement of clarity and precision.
- Incoherence: it would collapse the two limbs into each other and circumvent the serious-harm threshold of the first limb.
- Unnecessary: the boat-race example given by the Law Commission is in any event covered by the right of navigation on the Thames, and potentially by the first limb.
Post-2022 authorities
R v Trowland and R v Hallam involved obstruction of the M25, a highway. R v Smith (Joshua) (the Silverstone protest) was prosecuted under the first limb. It therefore did not support the proposition that obstructing passage on private land can fall within the second limb. DPP v Bailey showed that conduct like the defendants’ could have been charged as aggravated trespass. This answered the Crown’s argument that it would be surprising if the defendants’ conduct were not criminal.
The fallback argument: a right of egress
The Crown argued in the alternative that every member of the public has a right to leave premises, even without a right to enter. The Court rejected this:
“Whether a person is a trespasser on private land does not depend on whether the person is coming or going.”
The right not to be falsely imprisoned was not engaged. Applying Bird v Jones, a partial interference with freedom of movement does not amount to imprisonment. In any event, false imprisonment would be a distinct wrong.
Answer to the certified question
- Entering and leaving: persons attending private business premises do not exercise a public right when they enter or leave, because the public at large has no right to be on private premises.
- Approaching: whether they exercise such a right when approaching depends on whether the land is a highway.
The Court of Appeal’s three examples were each rejected:
- Concerts: attendees at a concert or festival do not exercise a qualifying right.
- Buses and trains: a contractual right to travel is irrelevant. What matters is whether the road is a highway, and the public has no right of way over a railway track (Butler v Manchester, Sheffield and Lincolnshire Railway Co).
- Locked path: a permissive path closed at night is a mere licence.
Lord Sales (concurring)
Lord Sales found the case less straightforward. In his view, English law often uses ‘right’ in a relational sense. On that sense, a licensee could properly assert a ‘right’ against a trespasser. He therefore regarded the word as ambiguous.
He considered that a Law Commission report could, in principle, fix the meaning of a specific word if adapted Pepper v Hart conditions were satisfied. The majority disagreed with that suggestion. In any event, he found those conditions unmet because paragraph 3.45 was neither clear nor unambiguous. He gave very strong weight to the principle against doubtful penalisation, given the seriousness of the offence, and concluded:
“the balance comes down firmly in favour of the narrow interpretation of that word, as identified by Lord Leggatt.”
Disposal
The judge’s no case to answer ruling was correct. Under ss 58(8) and 61(7) of the Criminal Justice Act 2003, read with s 35(3) of the Criminal Appeal Act 1968, acquittal had to follow.
The Crown argued that the ruling should be reversed or varied so that the indictment could be amended to rely on the first limb or on aggravated trespass. The Court rejected this because the prosecution had never applied to amend:
“It is equally not open to an appeal court to reverse or vary his ruling on the basis that he did not consider an application to amend the indictment which the prosecution did not choose to make.”
Practical significance
- Narrow second limb: the second limb of s 78 is confined to obstruction of rights strictly so called that belong to the public at large. The paradigm is passage along a highway. It extends to the cognate rights over navigable and tidal waters and statutory rights such as access land.
- Private land: obstructing private roads, private premises, ticketed venues, railway lines or permissive paths does not fall within the second limb. Such conduct can only constitute statutory public nuisance under the first limb, which requires proof of a risk of, or the causing of, serious harm. Other offences, such as aggravated trespass, may also be available.
- Charging decisions: prosecutors must choose the correct limb and offence at the outset. A tactical decision to avoid the serious-harm threshold may be fatal, and appellate courts will not rescue an indictment the prosecution chose not to amend.
- Statutory interpretation: the decision reaffirms the strength of the principle against doubtful penalisation for imprisonable offences. It also confirms that a court is not bound by concessions of law. The majority held that a Law Commission’s view of how proposed wording should be read carries no presumption of parliamentary adoption.
Verdict: Appeal allowed. The Supreme Court held that persons attending private business premises do not exercise a right that may be exercised or enjoyed by the public at large within s 78(1)(b)(ii) of the Police, Crime, Sentencing and Courts Act 2022 when entering or leaving the premises. When approaching the premises, they exercise such a right only if passing over a highway, and Pointon Way was a private road. The trial judge’s ruling that there was no case to answer was confirmed, the Crown’s request to reverse or vary that ruling so that a fresh trial could proceed on an amended indictment was refused, and the defendants were ordered to be acquitted.
