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:

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:

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):

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:

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):

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.

The Appellant, having moved from outside the Home Office to Parliament Square, was initially protesting for the cause he espouses on the pavement around the central green. As I have indicated, that is part of the highway; but no one has suggested that the protest there was an unreasonable use of the highway or, thus, an obstruction of the highway for the purposes of section 137. The Crown Court considered that their use of the highway was reasonable (see paragraph 21 of the case stated), the right of the public to pass on that part of that highway outweighing the right of the Appellant and his supporters, by virtue of articles 10 and 11 of the ECHR, to assemble and express their views as they did.

The Appellant alone moved to stand in the middle of the carriageway, which at that point is multi-lane and, during the late afternoon, was very busy. In his skeleton argument, he says that he chose to protest there, “putting [himself] at physical risk and more”. Standing there clearly put the Appellant at risk of serious injury – and he understood that risk, and was determined to take it – but it also put others at risk of injury and/or risked damage to property. It notably put at risk not only the drivers of vehicles attempting to negotiate Parliament Square, but those who might have attempted to “rescue” or remove the Appellant, such as police officers. The Crown Court found that the Appellant’s conduct posed a significant risk to himself and others. It was clearly entitled to make that finding.

Although some vehicles may have managed to drive around the Appellant as he stood in the middle of the road, the Crown Court found that “buses, taxis and cars were blocked” for about five minutes. The Appellant accepts that he stopped vehicles for 49 seconds, and that he disrupted the traffic for a couple of minutes: but the Crown Court found that the disruption was for about five minutes. We are bound to respect that finding. The Crown Court found that, when in the road, the Appellant moved deliberately to place himself in front of oncoming vehicles. By his activity, it was clearly his intention to disrupt the use of the highway by other users, i.e. those in vehicles seeking to pass along it; and, indeed, he readily accepted before us that that was his intention.

The Appellant “positively wanted to be arrested”. That was the finding of the Crown Court, but it said it merely confirmed the Appellant’s own evidence. The case stated says that, in the video made by one of his supporters earlier that day, the Appellant said that it was his intention to get arrested that day. As I understand it, the voice over said that his goal was to get arrested as a demonstration against the practice of male genital mutilation: but, as the video was made by a supporter of the Appellant and publicised on his organisations website, it was open to the court to treat that as evidence that he had earlier stated that intention and to conclude on the evidence as a whole that he intended to get arrested. He accepts that he was prepared to be arrested; and his conduct, as I have described it, made arrest inevitable. It was certainly his intention to disrupt the traffic: and he was aware that he might be arrested apparently because he understood that what he was doing was wrong, and amounted to an arrestable offence.

The Appellant was asked to move out of the middle of the road twice, and was told that he would be arrested if he did not comply with the request: but would not move until PC Moore walked to him and pushed him out of the road onto the pavement. The Appellant then made clear that he proposed to return to the middle of the road – which he sought to do. He was intent on continuing to disrupt the traffic using the road. PC Moore then moved him out of the road for a second time, and PC Habid arrested him for obstructing the highway.

The Appellant relies on other cases involving protests on the highway, in an attempt to show that, in his case, the obstruction was de minimis. As I have described, the case of Haw involved a demonstration with placards on the footway in Parliament Square for a continuous period of 15 months, which involved an obstruction which Gray J found to be more than de minimis but nevertheless a reasonable use of the highway. The Appellant also referred to a protest marches which required various roads to be closed in central London. However, each case is fact-specific. I have already described some of the circumstances of Haw, which (e.g.) did not involve any disruption of anyone else using the highway nor risk to the protester himself or other users of the highway. The circumstances of the marches are unknown, but it seems that they were pre-planned and organised events, in respect of which the police and other authorities took steps to exclude vehicular traffic from the relevant roads. None of the cases to which the Appellant referred assists his submission that the use of the highway by him at the relevant time was either not an obstruction at all or was an obstruction which fell within the de minimis principle

The obstruction the Appellant caused was clearly more than de minimis. He disrupted the traffic from its lawful passage along the highway at an extremely busy point for about five minutes. Not only was the Crown Court entitled to conclude that the obstruction was not de minimis, on the facts as it found them to be, it seems to me that they would have been wrong in law to have concluded otherwise.

I understand that the Appellant feels very strongly about the cause in respect of which he was protesting, namely male circumcision. He was entitled to protest. He was not being prevented from protesting on the highway, namely on the footway along the centre green in Parliament Square where his supporters were protesting. From that place, his views and his protest could have been voiced.

Once he left his fellow protesters on the footway, I doubt whether article 11 of the ECHR had much if any role to play; but he was fully entitled to exercise his article 10 rights which gave him the right both to hold his views and express them. However, rights under article 10 are not absolute. As I have indicated, the freedom which the provision protects is subject to restrictions as prescribed by law as necessary in a democratic society, and for the protection of health and of the rights of others, including of course the right to pass and repass along the full extent of a highway.

The Crown Court found that the Appellant’s removal from the road and arrest were 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”. It therefore concluded that the Appellant’s use of the highway was unreasonable and without lawful excuse; and he obstructed the free passage along the highway. In my view, the court was undoubtedly entitled to make such findings. Indeed, in the circumstances, again, it is difficult to see how it could properly have found otherwise.

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.