Buchanan vThe Crown Prosecution Service

This is an appeal by way of case stated by the Appellant Michael Buchanan from the Crown Court at Isleworth which, on 3 March 2017, refused his appeal against conviction at the Hammersmith Magistrates’ Court on 12 October 2016 for obstructing the highway in Parliament Square at about 4.30pm on 1 June 2016 contrary to section 137(1) of the Highways Act 1980.

The facts giving rise to the charge are set out in paragraphs 5-13 of the Case Stated, as follows:

“5.

… Mr Buchanan leads an organisation called ‘Justice for Men and Boys’ which campaigns against the practice of male circumcision or male genital mutilation. Mr Buchanan believes that the practice is illegal; and that the police and [the Crown Prosecution Service (“the CPS”)] ought to prosecute those who conduct circumcision on those who are too young to give informed consent.

6.

On the 1st of June 2016 Mr Buchanan accompanied by a small number of supporters of his organisation protested outside the Home Office. One of their number filmed part of the protest and this included an interview with Mr Buchanan in which he stated his intention to get arrested later in the day. This video which included much footage of the later protest in Parliament Square was later posted on-line. We were shown the video in full as part of the prosecution case with Mr Buchanan’s agreement.

7.

Mr Buchanan and his supporters moved to Parliament Square where they protested on the pavement that surrounds the green area in the middle of the square. It was clear from the video that Mr Buchanan on his own then crossed into the middle of the road using a light-controlled pedestrian crossing. He stopped in the middle of the road and when the light changed stood in the middle of the road holding up a placard towards the drivers of vehicles. Initially the vehicles were able to pass on either side of him but he then moved deliberately in order to place himself in front of oncoming vehicles. These vehicles could not continue and either had to wait for Mr Buchanan to move or had to seek to merge into traffic using the other lane.

8.

A police carrier driven by an officer called PC Moore happened to pass. PC Moore gave evidence and his evidence was entirely consistent with the video material we were shown which also included some CCTV. Neither PC Moore nor PC Habid who was a passenger in the carrier and who also gave evidence were cross-examined by Mr Buchanan.

9.

We were satisfied that PC Moore initially stopped his carrier beside Mr Buchanan and asked him to move back onto the pavement. When Mr Buchanan politely refused PC Moore parked his van outside the House of Commons and went back to Mr Buchanan and sought to persuade him to move back to the pavement where his supporters were still protesting. Mr Buchanan refused and PC Moore made the request more forcefully and told him what might happen if he did not comply. When Mr Buchanan still did not go back to the pavement PC Moore walked into him and pushed him out of the road back to the pavement.

10.

During the time Mr Buchanan was in the road we were satisfied that vehicles were obstructed for a period of approximately 5 minutes. Buses, taxis and cars were blocked. We were satisfied that Mr Buchanan’s conduct was significant risk to himself and to others. We were also satisfied that Mr Buchanan positively wanted to be arrested and he later confirmed this when he gave evidence. We were also satisfied that PC Moore had acted with great patience and done everything he could reasonably do to avoid arresting Mr Buchanan.

11.

Having pushed Mr Buchanan back to the pavement PC Moore and Mr Buchanan had a polite conversation in which PC Moore sought to persuade Mr Buchanan not to return to the middle of the road. Mr Buchanan told him he was going to go back into the carriageway and then did so and PC Moore ushered him to the carrier where PC Habid arrested him for obstruction of the highway. PC Moore said he was satisfied that Mr Buchanan’s goal was to get arrested which was confirmed by a caption in the video.

12.

Mr Buchanan gave evidence on his own behalf. We did not accede to his request to show us a lecture on the subject of male genital mutilation. We did allow him to explain his views and we were satisfied that he genuinely holds these views and does so in good faith. We did not consider it necessary to determine whether his argument that circumcision is unlawful was correct in law.

13.

Mr Buchanan said in evidence that he decided to walk into the road and stop there because he was frustrated at the lack of success of his organisations campaign. He agreed he was prepared to be arrested. In all respects his evidence was effectively identical to that of PC Moore.”

In his skeleton argument, the Appellant (who, as before the Magistrates’ Court and Crown Court, is acting in person) accepts that the essential facts are not in dispute; and, in any event, despite the manner in which the case was stated (to which I shall return: see paragraph 7 and following below), they are unchallengeable in this forum. There is no application before us to return the case stated to the Crown Court for amendment or correction. We have to deal with the case as stated, and the two questions it poses for determination by this court, on the basis of the facts as found by the Crown Court.

In respect of the facts, in his skeleton argument, the Appellant says:

“I chose to protest in a multi-lane highway, putting myself at physical risk of injury and more, but near to traffic lights from where motorists would clearly see me, so they had a good opportunity to drive past me. The vast majority did drive past me, which is evident from the video.” (emphasis in the original).

Although the Appellant accepts he obstructed vehicles (in the sense of “vehicle stopped”) for 49 seconds, he denies obstructing the traffic at all during the period described by the case stated.

The Appellant was charged with obstructing the highway and, at a hearing at Hammersmith Magistrates’ Court on 12 October 2016, he was convicted and fined. He appealed to the Crown Court. On 3 March 2017, that court (Mr Recorder Greene and magistrates) refused his appeal which was by way of full rehearing.

The Crown Court, having dealt with the facts, referred to the cases cited to it including Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr App R 143 (“Hirst & Agu”) which identified three elements in the statutory offence namely (i) obstruction of free passage along the highway, (ii) wilful obstruction and (iii) lack of lawful authority or excuse. The court concluded that, in the appeal before it, each element was made out to the criminal standard of proof. The case stated says (at paragraphs 19-21):

“19.

There was an obstruction of the highway by Mr Buchanan. It lasted in total about five minutes and impeded and blocked many vehicles and caused significant risk to Mr Buchanan and other road users. It could not possibly be described as trifling or small or ‘de minimis’.

20.

The obstruction was wilful and deliberate.

21.

The obstruction was without lawful authority or reasonable excuse. Mr Buchanan’s use of the highway was not reasonable. His supporters were protesting peacefully on the pavement and he could have stayed with them. They were obstructing the pavement but their use of the highway was reasonable. The arrest and prosecution of Mr Buchanan was a necessary interference with his article 10 and 11 rights in the interests of public safety and the protection of the rights and freedoms of others. Unlike the case of Brian Haw there was abundant unchallenged evidence that this was a real and serious obstruction of other users of the highway. Mr Buchanan deliberately set out to be arrested on 1st of June 2016.”

“Article 10 and 11” is of course a reference to those articles of the European Convention on Human Rights (“the ECHR”). Article 10 provides for the right to freedom of speech, and article 11 for the right to freedom of peaceful assembly and to freedom of association with others. “The case of Brian Haw” is a reference to Westminster City Council v Haw [2002] EWHC 2073 (QB) (“Haw”), to which I shall return.

On 20 March 2017, the Appellant applied to the Crown Court for a case stated. Things did not then proceed as they ought to have done.

On 27 March 2017, the court responded, granting the application and attaching a document drafted by the Recorder and headed “Case Stated”. That is the case stated now before us. In preparing and circulating a case as it did, the Crown Court failed to comply with the requirements of CrimPR Part 35, which deals with criminal cases stated. If an application is made to state a case, then any party wishing to make representations must do so within 14 days (rule 35.2(3)): in this case, on 29 March 2017, the CPS did make representations opposing the application to state a case, but only after the case stated had been prepared and sent out. Under the rules, once the court has accepted that a case should be stated, then the obligation to prepare a draft compliant with rule 35.3(4) falls upon the applicant (now, appellant) who must file and serve a draft within 21 days (rule 35.3(2)(b)). Any party wishing to make representations on the draft must do so within 21 days (rule 35.3(6)). The court must then, within 21 days, state a (final) case which the court serves on each party (rule 35.3(7) and (8)). The appellant must then file an appellant’s notice at the appeal court within ten days, and serve the notice and accompanying documents on the respondent within four days thereafter (paragraphs 2.2-2.4 of CPR PD 52E). None of that occurred in this case.

Rather, having received the case stated, on 11 April 2017, the Appellant wrote to the Crown Court seeking amendments to it; and he followed that up on 20 June and 27 November 2017 with letters seeking a response. The Crown Court eventually replied on 14 December 2017, simply directing the Appellant to this court.

The Appellant wrote to this court on 2 January 2018, seeking to appeal on the basis of the case stated sent to him on 27 March 2017; but the Administrative Court Office refused to issue the appeal because the documentation was incomplete and no fee had been paid. The Appellant sent the full documentation and fee on 29 January 2018, the appeal being issued on 31 January 2018.

The case stated poses two questions for this court, namely:

The Appellant submits that the answer to each question is, “No”; and consequently the appeal ought to be allowed and his conviction quashed. Ms Earis for the CPS submits that the answer to the questions is that the Crown Court were correct on each matter, and the appeal should be dismissed on its merits.

Furthermore, Ms Earis relies upon the lateness of appellant’s notice, and contends that the appeal should be dismissed on that ground alone. I acknowledge the importance of finality in criminal cases, and accept that the delay in issuing the appeal in this case was serious and substantial. However, the main period in respect of which complaint is made is from June to November 2017, when the Appellant was waiting for the Crown Court to respond to him. The overwhelming reason for that delay was the Crown Court’s failure to comply with the relevant rules and to respond promptly to correspondence from the parties. Looking at the period of delay as a whole, applying R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472, and having regard to all the circumstances (including that the Crown Court failed to comply with the requirements of the CrimPR, that this is a criminal matter and that the CPS do not appear to have been prejudiced in any way in dealing with the questions posed by the case stated), I would grant the appropriate extension of time so that the appellant’s notice is in time.

That leads us on to the merits of the appeal.

There is a general right to free passage over the whole extent of a public highway, which includes any carriageway, bridleway and footway (although parts of the highway may have restrictions on how and by what means members of the public may pass). It has always been the case that, at common law, to prevent the public from freely, safely and conveniently passing along the highway can amount to a public nuisance (see R v Mathias (1861) 2 F & F 570; 175 ER 1191, a case concerning the use of a perambulator on the footway). Wilfully obstructing the highway was made an offence by section 72 of the Highway Act 1835. The offence as presently worded appeared for the first time in section 121 of the Highways Act 1959. It is now found in section 137(1) of the Highways Act 1980, which provides that:

“If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.”

In this judgment, I shall refer to that provision as simply “section 137”.

As I have indicated, Hirst & Agu identified three elements in the offence, although it is now recognised that there is significant overlap between these.

The first element is that there must be an obstruction of the highway, in the sense of obstruction of free passage along the highway. Although this focuses on the effect of the relevant activity on other users of the highway, some of the authorities suggested that, if the activity was not itself one of passage along the highway or a reasonably incidental use associated with such passage, then it would inevitably amount to an obstruction of the highway for the purposes of section 137. That proposition was considered by the House of Lords in Director of Public Prosecutions v Jones [1999] 2 WLR 625, which concerned a peaceful assembly on the A344 trunk road by Stonehenge. The majority of the House of Lords effectively equated the test for obstruction of the highway with the extent of the right to use the highway. Whilst they recognised that the primary purpose of a highway is that of passage, they held that, if an activity does not unreasonably obstruct that public right of passage, then it is within the scope of those activities for which the public may lawfully use the highway and it cannot amount to an obstruction of the highway. As Lord Irvine of Lairg LC put it (at page 632H-633A):

“I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass: within these qualifications there is a public right of peaceful assembly on the highway.”

That sets out the law as it currently stands. Whilst Lord Slynn of Hadley and Lord Hope of Craighead dissented on this point, concluding that the right to use a highway is limited to the right to pass and reasonably incidental uses associated with passage, Lord Clyde (at page 655C-D) and Lord Hutton (at page 661H) in substance agreed with Lord Irvine.

After Jones, the focus of the enquiry into the first element of the offence has consequently been on whether the alleged obstructer’s use of the highway was “unreasonable”, such that he had no right to use the highway as he did.

Whether use of the highway is “unreasonable” for these purposes depends on all the circumstances, “including the length of time the obstruction continues, the place where it occurs the purpose for which it is done, and of course whether it does in fact cause an actual obstruction as opposed to a potential obstruction” (Nagy v Weston [1965] 1 WLR 280 at page 284E-F, which concerned the parking of a hot dog van in St Giles, Oxford, that passage being quoted with approval in Hirst & Agu at pages 147-8).

“The purpose for which it was done” involves, amongst other things, a consideration of whether the right to freedom of speech and/or to peaceable assembly, under articles 10 and 11 of the ECHR respectively, are engaged. If they are, of course they do not comprise a “trump card” – they are not absolute rights, but freedoms the exercise of which carries duties and responsibilities, and they may be the subject of such limitations as are prescribed by law and are necessary in a democratic society, for example in the interests of public safety or for the protection of the rights and interests of others. Nevertheless, if they are engaged, they are a significant consideration when assessing the reasonableness of any activity on a highway.

Thus, in Haw (a case to which the Recorder refers in the case stated, and upon which the Appellant specifically relies), the appellant held strong views on the policy that was then being adopted towards Iraq; and he maintained a protest on a pavement round the centre green at Parliament Square for 15 months without any break. His placards encroached 18 inches and his bed encroached 2 feet onto a pavement 11 feet wide. Gray J did not consider that obstruction of the highway to be de minimis (see paragraph 22 below), but nevertheless held that the appellant was not guilty of obstructing the highway, because the obstruction (i.e. his use of the highway) was reasonable. In coming to that conclusion, he particularly took into account the following: (i) the appellant was exercising his article 10 rights in an ideologically appropriate location for such expression, (ii) the placards were placed on a relatively little-used part of the pavement, (iii) the appellant had been given no indication by the police that action would be taken against him, and (iv) he had neither used nor caused any violence, breach of the peace or littering.

Even where an obstruction would otherwise be an unreasonable use of the highway, the courts have held that some encroachments onto the highway are so small that they fall outside the scope of section 137, e.g. where a newsagent hangs out a rack of newspapers projecting, if only fractionally, over the highway (Seekings v Clarke (1961) 59 LGR 268 at page 269). However, because the public have the right to free passage across the whole of the highway, an obstruction is not de minimis simply because the public could pass and repass by using other parts of the same highway (see, e.g., East Hertfordshire District Council v Isabel Hospice Trading Limited [2001] JPL 597 at [20]-[22]). Indeed, the courts have emphasised that, in this context, the de minimis principle is to be very narrowly confined. I have already referred to Haw, in which it was held that placards and a bed which encroached 18 inches to 2 feet onto a pavement 11 feet wide were held not to be de minimis, Gray J considering that the degree of obstruction would have to be “trifling” before the court would ignore it (at [16]). In Wolverton Urban District Council v Willis (1961) 60 LGR 135, this court, applying Seekings v Clarke, considered that the de minimis principle was wholly inapplicable to a greengrocer’s display on orange boxes in front of his shop projecting 11 inches over a pavement six to eight feet wide. In Torbay Borough Council v Cross and Mills (1995) 159 JP 682, a stand outside a shop which covered less than 5% of the pavement was found not to be de minimis, the court considering that the principle was “reserved for fractional obstructions”. Whilst each case will be fact-dependent, these cases give a clear indication of the sorts of obstruction that are capable of falling within the de minimis principle.

Those are spatial cases; but the de minimis principle equally applies temporally. In Kaba v Director of Public Prosecutions (7 November 2014: Unreported), the appellant was driving on a busy road which forked left and right. The traffic was slow moving. He was in the left hand lane, and wanted to go right. He stopped, indicated and waited to complete his manoeuvre. A police car drew level with him, and asked him to move on, as he was causing an obstruction. He moved forward, but then stopped again. The police pulled him over. The entire episode lasted only 30-40 seconds. The facts of that case are of course very different from the case before us; but Wyn Williams J held that, despite the obstruction lasting only 40 seconds at most, the appellant had deliberately obstructed the highway and it was more than de minimis.

The second element is that the obstruction has to be wilful, i.e. deliberate. If, in this case, the Appellant obstructed the highway, there is no doubt that he did so deliberately.

The third element is that there has to be a lack of lawful authority or excuse. As early as Nagy v Weston, Lord Parker CJ said, at page 284C-D, “For my part I think that excuse and reasonableness are really the same ground”: and, since Jones, this final element has to a large extent been incorporated into the question of whether there has been an obstruction, a question which itself turns on whether the activity on the highway is reasonable. Although section 137 specifically refers to the fact that the obstruction must be “without lawful authority or excuse”, where there is lawful authority or excuse for a particular use of the highway – for example, that the individual is properly and appropriately exercising his article 10 right to freedom of expression – it seems to me that that use would generally be reasonable.

Therefore, as both parties before us accept, the key question in this appeal is whether the Crown Court was entitled to conclude that the use of the highway by the Appellant in the manner I have described was unreasonable, and thus amounted to an obstruction of the highway.

Of course, as did the Crown Court, I accept that the Appellant holds strong and sincere views about male circumcision, which he considers is criminal where it is performed upon a boy who by virtue of his age is unable to consent to the procedure. His primary complaint is that such conduct continues without intervention of the police or other authorities. His purpose in protesting in Parliament Square as he did was to publicise this cause. I make no observation upon whether, as a matter of law, those views are sound, an issue which is not relevant to this appeal.

Nevertheless, in my judgment, the Crown Court was not only entitled but right to conclude that the Appellant’s use of the highway was unreasonable, and thus an obstruction of the highway for the purposes of section 137.

In coming to that conclusion, I have particularly taken into account the following.

For those reasons, subject to my Lord, Soole J, I would answer the questions posed by the Crown Court as follows.

Thus, the Crown Court did not err; and I would refuse the appeal.

I agree.