Director of Public Prosecutions v Ziegler and others

In September 2017, the biennial Defence and Security International (DSEI) arms fair was held at the Excel Centre in East London. In the days before the opening of the fair equipment and other items were being delivered to the Excel Centre. The appellants were strongly opposed to the arms trade and to the fair and on Tuesday 5 September 2017 they took action which was intended both to draw attention to what was occurring at the fair and also to disrupt deliveries to the Excel Centre.

The action taken consisted of lying down in the middle of one side of the dual carriageway of an approach road leading to the Excel Centre (the side for traffic heading to it). The appellants attached themselves to two lock boxes with pipes sticking out from either side. Each appellant inserted one arm into a pipe and locked themselves to a bar centred in the middle of one of the boxes.

There was a sizeable police presence at the location in anticipation of demonstrations. Police officers approached the appellants almost immediately and went through the “5 stage process” to try and persuade them to remove themselves voluntarily from the road. When the appellants failed to respond to the process they were arrested. It took, however, approximately 90 minutes to remove them from the road. This was because the boxes were constructed in such a fashion that was intentionally designed to make them hard to disassemble.

The appellants were charged with wilful obstruction of a highway contrary to section 137 of the Highways Act 1980 (“the 1980 Act”). On 1-2 February 2018, they were tried before District Judge Hamilton at Stratford Magistrates’ Court. The district judge dismissed the charges, handing down his written judgment on 7 February 2018. Having regard to the appellants’ right to freedom of expression under article 10 of the European Convention on Human Rights (“ECHR”) and their right to freedom of peaceful assembly under article 11 ECHR, the district judge found that “on the specific facts of these particular cases the prosecution failed to prove to the requisite standard that the defendants’ limited, targeted and peaceful action, which involved an obstruction of the highway, was unreasonable”.

The respondent appealed by way of case stated to the Divisional Court, Singh LJ and Farbey J. Following a hearing on 29 November 2019, the Divisional Court handed down judgment on 22 January 2019, allowing the appeal and directing that convictions be entered and that the cases be remitted for sentencing: [2019] EWHC 71 (Admin); [2020] QB 253. On 21 February 2019, the appellants were sentenced to conditional discharges of 12 months.

On 8 March 2019, the Divisional Court dismissed the appellants’ application for permission to appeal to the Supreme Court, but certified two points of law of general public importance. On 3 December 2019, a panel of the Supreme Court (Lord Kerr, Lord Hodge and Lady Arden) granted permission to appeal.

The parties agreed in the statement of facts and issues that the issues in the appeal, as certified by the Divisional Court as points of law of general public importance, are:

Section 137 of the 1980 Act provides:

In Nagy v Weston[1965] 1 WLR 280 it was held by the Divisional Court that “lawful excuse” encompasses “reasonableness”. Lord Parker CJ said at p 284 that these are “really the same ground” and that:

In cases of obstruction where ECHR rights are engaged, the case law preceding the enactment of the Human Rights Act 1998 (“the HRA”) needs to be read in the light of the HRA.

Section 3(1) of the HRA provides:

Section 6 of the HRA makes it unlawful for a public authority to act in a way which is incompatible with Convention rights. The courts are public authorities for this purpose (section 6(3)(a)), as are the police.

The Convention rights are set out in Schedule 1 of the HRA 1998. The rights relevant to this appeal are those under article 10 ECHR, the right to freedom of expression, and article 11 ECHR, the right to freedom of peaceful assembly.

Article 10 ECHR materially provides:

Article 11 ECHR materially provides:

In the present case the Divisional Court explained how section 137(1) of the 1980 Act can be interpreted compatibly with the rights in articles 10 and 11 ECHR in cases where, as was common ground in this case, the availability of the statutory defence depends on the proportionality assessment to be made. It stated as follows:

Guidance as to the limits to the right of lawful assembly and protest on the highway is provided in the Court of Appeal decision in City of London Corpn v Samede[2012] EWCA Civ 160; [2012] PTSR 1624, a case involving a claim for possession and an injunction in relation to a protest camp set up in the churchyard of St Paul’s Cathedral. Lord Neuberger of Abbotsbury MR gave the judgment of the court, stating as follows at paras 39-41:

The outline facts as found in the case stated have been set out in the Introduction. The district judge’s findings followed a trial in which almost all of the prosecution case was in the form of admissions and agreed statements. Oral evidence about what occurred was given by one police officer and police body-worn video footage was also shown.

All the appellants gave evidence of their long-standing opposition to the arms trade and of their belief that there was evidence of illegal activity taking place at the DSEI arms fair, which the Government had failed to take any effective action to prevent. The district judge found at para 16 of the case stated that:

The district judge identified the issue for decision at para 37 of the case stated, as being:

He recognised that this required an assessment of the proportionality of the interference with the appellants’ Convention rights, in relation to which he took into account the following points (at para 38 of the case stated):

The district judge’s conclusion at para 40 of the case stated was that on these facts the prosecution had failed to prove to the requisite standard that the obstruction of the highway was unreasonable and he therefore dismissed the charges. The question for the High Court was expressed at para 41 of the case stated as follows:

It was common ground between the parties prior to the hearing of the appeal that the appropriate appellate test on an appeal by way of case stated was whether the district judge had reached a decision which it was not reasonably open to him to reach. That is the conventional test on an appeal by way of case stated, as applied in many Divisional Court decisions.

At the hearing of the appeal the court suggested that in cases involving an assessment of proportionality the applicable approach should be that set out by Lord Neuberger of Abbotsbury in In re B (a Child) (Care Proceedings: Threshold Criteria)[2013] UKSC 33; [2013] 1 WLR 1911, namely whether the judge’s conclusion on proportionality was wrong. As Lord Neuberger stated at paras 91-92:

In re B was a family law case but the Divisional Court noted that the test had been applied in other contexts, and in particular in extradition cases - see Love v Government of the United States[2018] EWHC 172 (Admin); [2018] 1 WLR 2889. It concluded that it should also be applied in the criminal law context, stating as follows at para 103:

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, in particular that the carriageway to the Excel Centre was completely blocked and that this was so for significant periods of time, between approximately 80 and 100 minutes” (para 129).

Of the factors listed at paras 38(a) to (h) of the case stated as cited in para 21 above, the Divisional Court considered those set out at paras 38(a), (b), (c), and (g) to be of little or no relevance and that at para 38(h) to be irrelevant. It disagreed with the district judge’s conclusion at para 38(f) that an obstruction of the highway for 90-100 minutes was of “limited duration”. The Divisional Court considered that to be a “significant period of time”. Its core criticism was of para 38(d), in relation to which it stated as follows at para 112:

The Divisional Court explained at para 117 that the “fundamental reason” why it considered the district judge’s assessment of proportionality to be wrong was that:

As indicated above, the conventional approach of the Divisional Court to appeals by way of case stated in criminal proceedings is to apply an appellate test of whether the court’s conclusion was one which was reasonably open to it - ie is not Wednesbury irrational or perverse. This is reflected in a number of decisions of the Divisional Court, including cases involving issues of proportionality.

Oladimeji v Director of Public Prosecutions[2006] EWHC 1199 (Admin) concerned an appeal by way of case stated from the decision of magistrates to reject a “reasonable excuse” defence to an offence of failing to provide a specimen of breath when required to do so, contrary to section 7(6) Road Traffic Act 1988. In dismissing the appeal, Keene LJ at para 22 identified the relevant issue as being as follows:

H v Director of Public Prosecutions[2007] EWHC 2191 (Admin) concerned an appeal by way of case stated from a district judge’s decision to admit identification evidence notwithstanding a breach of Code D of the Police and Criminal Evidence Act 1984 (“PACE”). At para 19 Auld LJ stated the proper approach on such an appeal to be as follows:

More recently, in Garry v Crown Prosecution Service[2019] EWHC 636 (Admin); [2019] 1 WLR 3630 the issue on the appeal was the operation of the “reasonable excuse” defence to the offence of carrying an offensive weapon contrary to section 1 of the Prevention of Crime Act 1953. Rafferty LJ followed the approach of Auld LJ in H v Director of Public Prosecutions as to the appropriate standard of review, stating at para 25 as follows:

There have been a number of examples of appeals by way of case stated in cases involving Convention rights and issues of proportionality in which the Divisional Court has stated the applicable test to be whether the conclusion of the court below was one which was reasonably open to it - see, for example, Norwood v Director of Public Prosecutions[2003] EWHC 1564 (Admin) at para 40 (Auld LJ) (article 10 ECHR); Hammond v Director of Public Prosecutions[2004] EWHC 69 (Admin) at para 33 (May LJ) (articles 9 and 10 ECHR), and Gough v Director of Public Prosecutions[2013] EWHC 3267 (Admin) at para 21 (Sir Brian Leveson P) (article 10 ECHR).

Abdul v Director of Public Prosecutions[2011] EWHC 247 (Admin); [2011] HRLR 16 was an appeal by way of case stated from a district judge’s decision that a prosecution for an offence under section 5 of the Public Order Act 1986 was a proportionate interference with the appellants’ rights under article 10 ECHR. The alleged offences concerned slogans shouted by the appellants who were protesting in the vicinity of a local Royal Anglian Regiment homecoming parade following its return from Afghanistan and Iraq. The slogans which the appellants shouted included “British soldiers murderers”, “Rapists all of you” and “Baby killers”. In giving the main judgment of the Divisional Court, Gross LJ said that “even if there is otherwise a prima facie case for contending that an offence has been committed under section 5, it is still for the Crown to establish that prosecution is a proportionate response, necessary for the preservation of public order” (para 49(viii)). He noted at para 49(vi) that the legislature had entrusted that decision to magistrates or a district judge and stated the appellate test to be as follows:

None of these cases were referred to by the Divisional Court in this case. Since the issue of the appropriate appellate test was not raised until the hearing the parties had not prepared to address that issue, nor did they apparently seek further time to do so. In the result, the Divisional Court reached its decision that the appropriate appellate test was that set out in In re B without consideration of a number of relevant authorities.

The conventional approach of the Divisional Court to apply a strict appellate test of irrationality or perversity reflects recognition of the fact that an appeal by way of case stated is an appeal from the tribunal of fact which is only permissible on a question of law (or excess of jurisdiction). As stated in section 111(1) of the Magistrates’ Courts Act 1980 (“MCA”):

It has long been recognised that appellate restraint is required in cases involving appeals from tribunals of fact which are only allowed on questions of law. The leading authority as to the appropriate approach in such cases is the House of Lords decision in Edwards v Bairstow[1956] AC 14. That case concerned an appeal by way of case stated from a decision of the Commissioners for the General Purposes of the Income Tax. Such appeals are only allowable if the decision can be shown to be wrong in law. The case concerned whether a joint venture for the purchase and sale of a spinning plant was an “adventure … in the nature of trade”. The commissioners had decided that it was not and before the courts below the appeal had been dismissed on the grounds that the question was purely one of fact. The House of Lords allowed the appeal. In a well-known and often cited passage, Lord Radcliffe explained the proper approach as follows (at p 36):

This approach has been followed for other case stated appeal procedures - see, for example, New Windsor Corpn v Mellor[1974] 1 WLR 1504 in relation to appeals from commons commissioners. It has also been applied in other related contexts, such as, for example, appeals from arbitration awards. Since the Arbitration Act 1979 appeals have only been allowed on questions of law arising out of an award. In Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema)[1982] AC 724 the question arose as to the proper approach to an appeal against an arbitrator’s decision that a charterparty had been frustrated by delay, a question of mixed fact and law. It was held that Edwards v Bairstow should be applied. As Lord Roskill stated at pp 752-753:

The conventional approach of the Divisional Court to appeals by way of case stated in criminal proceedings is to similar effect. A conclusion will be one which is open to the court unless it is one which no reasonable court, properly directed as to the law, could have reached on the facts found. If on the face of the case stated, there is an error of law material to the decision reached, then it will be wrong in law and, as such, a conclusion which it was not reasonably open to the court to reach.

In the context of appeals by way of case stated in criminal proceedings (unlike in arbitration appeals), a conclusion will be open to challenge on the grounds that it is one which no reasonable court could have reached even if it categorised as a conclusion of fact. As stated by Lord Goddard CJ in Bracegirdle v Oxley and Cobley[1947] KB 349, 353:

In D’Souza v Director of Public Prosecutions[1992] 1 WLR 1073 the House of Lords applied the Edwards v Bairstow test to an appeal by way of case stated in criminal proceedings concerning whether the appellant, who had absconded from a hospital where she was lawfully detained under the Mental Health Act 1983, was a person who was “unlawfully at large and whom [the police constables were] pursuing” under section 17(1)(d) of PACE so as to empower entry to her home without a warrant. Lord Lowry (with whose judgment all their lordships agreed) categorised this issue as “a question of fact” but one which “must be answered within the relevant legal principles and paying regard to the meaning in their context of the relevant words” (at p 1082H). Lord Lowry’s conclusion (at p 1086F), citing Lord Radcliffe’s judgment in Edwards v Bairstow, was that:

In the light of the well-established appellate approach to appeals from tribunals of fact which are only permitted on questions of law, including in relation to cases stated under section 111 of the MCA, we do not consider that the Divisional Court was correct to decide that there is a different appellate test where the appeal raises an assessment of proportionality and, moreover, to do so without regard to any of the relevant authorities.

In re B was a family law case and involved the appellate test under CPR rule 52.21(3) that an appeal will be allowed where the decision of the lower court is “wrong”, whether in law or in fact. The Divisional Court placed reliance on the extradition case of Love but that too involves a wide right of appeal “on a question of law or fact” (sections 26(3)(a) and 103(4)(a) of the Extradition Act 2003). An appeal may be allowed if: “the district judge ought to have decided a question before him differently” and “had he decided it as he ought to have done, he would have been required to discharge the appellant” - see sections 27(3) and 104(3). In argument, reliance was also placed on the application of In re B in judicial review appeals. There are, however, generally no disputed facts in judicial review cases, nor do they involve appeals from the only permissible fact finder. In the specific context of challenges to the decision of a Magistrates’ Court, where an error of law is alleged, the appropriate remedy is normally by way of case stated rather than by seeking judicial review - see, for example, R (P) v Liverpool City Magistrates’ Court[2006] EWHC 887 (Admin) at para 5.

It would in any event be unsatisfactory, as a matter of both principle and practicality, for the appellate test in appeals by way of case stated to fluctuate according to the nature of the issue raised. That would mean that there were two applicable appellate tests and that it would be necessary to determine in each case which was applicable. That would be likely to depend upon whether or not the case turns on an assessment of proportionality, which may well give rise to difficult and marginal decisions as to how central the issue of proportionality is to the decision reached. On any view, having alternative appellate tests adds unnecessary and undesirable complexity and uncertainty.

A prosecution under section 137 of 1980 Act, for example, requires proof of a number of different elements. There must be an obstruction; the obstruction must be of a highway; it must be wilful, and it must be without lawful authority or excuse. Some cases stated in relation to section 137 prosecutions may involve no proportionality issues at all; some may involve proportionality issues and other issues; some may involve only proportionality issues. The appellate test should not vary according to the ingredients of the case stated.

Whilst we do not consider that In re B is the applicable appellate test it may, nevertheless, be very relevant to appeals by way of case stated that turn on issues of proportionality. The law as stated in In re B has been developed in later cases. In In re B at para 88 Lord Neuberger stated as follows:

This approach was qualified by the Supreme Court in R (R) v Chief Constable of Greater Manchester Police[2018] UKSC 47; [2018] 1 WLR 4079. In that case Lord Carnwath (with whom the other justices agreed) said at para 64:

As Lewison LJ stated in R (Z) v Hackney London Borough Council[2019] EWCA Civ 1099; [2019] PTSR 2272, para 66:

In cases stated which turn on an assessment of proportionality, the factors which the court considers to be relevant to that assessment are likely to be the subject of findings set out in the case, as they were in the present case. If there is an error or flaw in the reasoning which undermines the cogency of the conclusion on proportionality that is, therefore, likely to be apparent on the face of the case. In accordance with In re B, as clarified by the later case law, such an error may be regarded as an error of law on the face of the case. It would, therefore, be open to challenge under the Edwards v Bairstow appellate test. As Lady Arden observes, any such challenge would have to be made on the basis of the primary and secondary findings set out in the case stated, unless there was no evidence for them or they were findings which no reasonable tribunal could have reached. The review is of the judgment and any relevant findings, not “any relevant evidence”.

In his judgment Lord Sales sets out in detail the differences between rationality and proportionality and why he considers that the same approach should be adopted in all cases on appeal which concern whether an error of law has been made in relation to an issue of proportionality.

As Lady Arden’s analysis at para 101 of her judgment demonstrates, the nature and standard of appellate review will depend on a number of different factors. Different kinds of proceedings necessarily require different approaches to appellate review. For example, an appeal against conviction following a jury trial in the Crown Court, where the Court of Appeal Criminal Division must assess the safety of a conviction, is a very different exercise to that which is carried out by the Court of Appeal Civil Division in reviewing whether a decision of the High Court is wrong in judicial review proceedings, although both may involve proportionality assessments.

Whilst we agree that the approach to whether there is an error of law in relation to an issue of proportionality determined in a case stated is that set out in In re B,as clarified by the later case law, Edwards v Bairstow remains the overarching appellate test, and the alleged error of law has to be considered by reference to the primary and secondary factual findings which are set out in the case.

In the present case the Divisional Court considered that there were errors or flaws in the reasoning of the district judge taking into account a number of factors, which it considered to be irrelevant or inappropriate and that these undermined the cogency of the conclusion reached. Although the Divisional Court applied the wrong appellate test, it may therefore have reached a conclusion which was justifiable on the basis that there was an error of law on the face of the case. We shall address this question when considering the second issue on the appeal.

For all these reasons, we consider that the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of “lawful excuse” when Convention rights are engaged in a criminal matter is the same as that applicable generally to appeals on questions of law in a case stated under section 111 of the MCA, namely that set out in Edwards v Bairstow. That means that an appeal will be allowed where there is an error of law material to the decision reached which is apparent on the face of the case, or if the decision is one which no reasonable court, properly instructed as to the relevant law, could have reached on the facts found. In accordance with that test and In re B, where the statutory defence depends upon an assessment of proportionality, an appeal will lie if there is an error or flaw in the reasoning on the face of the case which undermines the cogency of the conclusion on proportionality. That assessment falls to be made on the basis of the primary and secondary findings set out in the case stated, unless there was no evidence for them or they were findings which no reasonable tribunal could have reached.

As the Divisional Court explained, (see para 28 above) a fundamental reason why it considered the district judge’s assessment of proportionality to be wrong was that there was no fair balance struck between the different rights and interests at stake given that “the ability of other members of the public to go about their lawful business was completely prevented by the physical conduct of these respondents for a significant period of time”. That fundamental reason led the Divisional Court to certify the second question which the parties agreed as being in the terms set out in para 7(2) above (“the second certified question”). The implication of the second certified question is that deliberately obstructive conduct cannot constitute a lawful excuse for the purposes of section 137 of the Highways Act 1980, where the impact on other highway users is more than de minimis, so as to prevent users, or even so as to be capable of preventing users, from passing along the highway. In those circumstances, the interference with the protesters’ article 10 and article 11 ECHR rights would be considered proportionate, so that they would not be able to rely on those rights as the basis for a defence of lawful excuse pursuant to section 137 of the 1980 Act.

On behalf of the appellants it was submitted, to the contrary, that deliberate physically obstructive conduct by protesters is capable of constituting a lawful excuse for the purposes of section 137 of the Highways Act 1980, even where the impact of the deliberate obstruction on other highway users is more than de minimis. In addition, it was submitted that the district judge’s assessment of proportionality did not contain any error or flaw in reasoning on the face of the case such as to undermine the cogency of his conclusion. Accordingly, it was submitted that the Divisional Court’s order directing convictions should be set aside and that this court should issue a direction to restore the dismissal of the charges.

The second certified question relates to both the right to freedom of expression in article 10 and the right to freedom of assembly in article 11. Both rights are qualified in the manner set out respectively in articles 10(2) and 11(2): see paras 14-15 above. Article 11(2) states that “No restrictions shall be placed” except “such as are prescribed by law and are necessary in a democratic society …” In Kudrevičius v Lithuania(2016) 62 EHRR 34, para 100 the European Court of Human Rights (“ECtHR”) stated that “The term ‘restrictions’ in article 11(2) must be interpreted as including both measures taken before or during a gathering and those, such as punitive measures, taken afterwards” so that it accepted at para 101 “that the applicants’ conviction for their participation in the demonstrations at issue amounted to an interference with their right to freedom of peaceful assembly”. Arrest, prosecution, conviction, and sentence are all “restrictions” within both articles. Different considerations may apply to the proportionality of each of those restrictions. The proportionality of arrest, which is typically the police action on the ground, depends on, amongst other matters, the constable’s reasonable suspicion. The proportionality assessment at trial before an independent impartial tribunal depends on the relevant factors being proved beyond reasonable doubt and the court being sure that the interference with the rights under articles 10 and 11 was necessary. The police’s perception and the police action are but two of the factors to be considered. It may have looked one way at the time to the police (on which basis their actions could be proportionate) but at trial the facts established may be different (and on that basis the interference involved in a conviction could be disproportionate). The district judge is a public authority, and it is his assessment of proportionality of the interference that is relevant, not to our mind his assessment of the proportionality of the interference by reference only to the intervention of the police that is relevant. In that respect we differ from Lord Sales (see for instance para 120, 153 and 154) who considers that the defence of “lawful excuse” under section 137 depends on an assessment of the proportionality of the police response to the protest and agree with Lady Arden at para 94 that “the more appropriate question is whether the convictions of the appellants for offences under section 137(1) of the Highways Act 1980 were justified restrictions on the right to freedom of assembly under article 11 or not” (emphasis added).

As the Divisional Court identified at para 63 the issues that arise under articles 10 and 11 require consideration of five questions: see para 16 above. In relation to those questions it is common ground that (i) what the appellants did was in the exercise of one of the rights in articles 10 and 11; (ii) the prosecution and conviction of the appellants was an interference with those rights; (iii) the interference was prescribed by law; and (iv) the interference was in pursuit of a legitimate aim which was the prevention of disorder and the protection of the rights of others to use the highway. That leaves the fifth question as to whether the interference with either right was “necessary in a democratic society” so that a fair balance was struck between the legitimate aims of the prevention of disorder and protection of the rights and freedoms of others and the requirements of freedom of expression and freedom of assembly.

Determination of the proportionality of an interference with ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case.

In a criminal case the prosecution has the burden of proving to the criminal standard all the facts upon which it relies to establish to the same standard that the interference with the articles 10 and 11 rights of the protesters was proportionate. If the facts are established then a judge, as in this case, or a jury, should evaluate those facts to determine whether or not they are sure that the interference was proportionate.

In this case both articles 10 and 11 are invoked on the basis of the same facts. In the decisions of the ECtHR, whether a particular incident falls to be examined under article 10 or article 11, or both, depends on the particular circumstances of the case and the nature of a particular applicant’s claim to the court. In Kudrevičius v Lithuania, para 85 and in Lashmankin v Russia (Application No 57818/09) at para 364, both of which concerned interference with peaceful protest, the ECtHR stated that article 11 constitutes the lex specialis pursuant to which the interference is to be examined. The same approach was taken by the ECtHR at para 91 of its judgment in Primov v Russia (Application No 17391/06). However, given that article 11 is to be interpreted in the light of article 10, said to constitute the lex generalis, the distinction is largely immaterial. The outcome in this case will be the same under both articles.

The second certified question raises the issue as to how intentional action by protesters disrupting traffic impacts on an assessment of proportionality under articles 10 and 11 ECHR.

The issue of purposeful disruption of others was considered by the ECtHR in Hashman v United Kingdom(2000) 30 EHRR 241, paras 27-28 and Steel v United Kingdom(1998) 28 EHRR 603, para 142. It was also considered by the ECtHR in Kudrevičius v Lithuania in relation to the purposeful disruption of traffic and in Primov v Russia in relation to an attempted gathering which would have disrupted traffic.

The case of Steel v United Kingdom did not involve obstructive behaviour on a highway but rather involved an attempt by the first applicant, with sixty others, to obstruct a grouse shoot. The first applicant was arrested for breach of the peace for impeding the progress of a member of the shoot by walking in front of him as he lifted his shotgun. She was detained for 44 hours before being released on conditional bail. She was charged with breach of the peace and using threatening words or behaviour, contrary to section 5 of the Public Order Act 1986. At trial she was convicted of both offences and the Crown Court upheld the convictions on appeal. She complained to the European Commission of Human Rights (“the Commission”) on the basis, in particular, of violations of articles 10 and 11, arising from the disproportionality of the restrictions on her freedom to protest. At para 142 of its judgment the Commission noted that “the first … applicant [was] demonstrating not only by verbal protest or holding up placards and distributing leaflets, but by physically impeding the activities against which [she was] protesting” (emphasis added). In addressing this issue, the Commission recalled “that freedom of expression under article 10 goes beyond mere speech, and considers that the applicants’ protests were expressions of [her] disagreement with certain activities, and as such fall within the ambit of article 10”. Despite the protest physically impeding the activities of those participating in the grouse shoot the Commission found that “there was a clear interference with the applicants’ freedom under article 10 of the Convention”. Thereafter the Commission considered whether the interference was prescribed by law, whether it pursued a legitimate aim and whether it was proportionate. In relation to proportionality it found that the removal of the applicant by the police from the protest and her detention for 44 hours, even though it interfered with her freedom to demonstrate, could, in itself, be seen as proportionate to the aim of preventing disorder. It reached similar findings in relation to the proportionality of the convictions: see paras 154-158. However, the points of relevance to this appeal are: (a) that deliberate obstructive conduct which has a more than de minimis impact on others, still requires careful evaluation in determining proportionality; and, (b) that there is a separate evaluation of proportionality in respect of each restriction. In Steel those separate evaluations included the proportionality of the removal of the first applicant from the scene (para 155), the proportionality of the detention of the first applicant for 44 hours before being brought before a magistrate (para 156) and the proportionality of the penalties imposed on the first applicant (paras 157-158). A separate analysis was carried out in relation to the third, fourth and fifth applicants leading to the conclusion that their removal from the scene was not proportionate: see paras 168-170.

The case of Hashman and Harrup v United Kingdom similarly did not involve a protest obstructing a highway. Rather, the applicants had intentionally disrupted the activities of the Portman Hunt to protest against fox hunting. Proceedings were brought against the applicants in respect of their behaviour. They were bound over to keep the peace and be of good behaviour. They complained to the ECtHR that this was a breach of their article 10 rights. At para 28 the ECtHR noted that “the protest took the form of impeding the activities of which they disapproved” but considered “nonetheless that it constituted an expression of opinion within the meaning of article 10” and that “The measures taken against the applicants were, therefore, an interference with their right to freedom of expression”. Again, the point of relevance to this appeal is that deliberate obstructive conduct which has a more than de minimis impact on others still requires careful evaluation in determining proportionality.

In Kudrevičius v Lithuania the applicants had been involved in a major protest by farmers against the Lithuanian government. The protests involved the complete obstruction of the three major roads in Lithuania. Subsequently the first and second applicants were convicted of inciting the farmers to blockade the roads and highway contrary to article 283(1) of the Criminal Code. The remaining applicants were convicted of a serious breach of public order during the riot by driving tractors onto the highway and refusing to obey requests by the police to move them. Before the ECtHR the applicants complained that their convictions had violated their rights to freedom of expression and freedom of peaceful assembly, guaranteed by articles 10 and 11 ECHR respectively. The extent of the significant obstruction intended and caused can be discerned from the facts. One of the highways which was obstructed was the main trunk road connecting the three biggest cities in the country. It was obstructed on 21 May 2003 at around 12.00 by a group of approximately 500 people who moved onto the highway and remained standing there, thus stopping the traffic. Another of the highways was a transitional trunk road used to enter and leave the country. It was obstructed on 21 May 2003 at 12.00 by a group of approximately 250 people who moved onto the highway and remained standing there, thus stopping the traffic until 12 noon on 23 May 2003. The third highway which was obstructed was also a transitional trunk road used to enter and leave the country. It was obstructed on 21 May 2003 at 11.50 by a group of 1,500 people who moved onto the highway and kept standing there, thus stopping the traffic. In addition, on the same day between 15.00 and 16.30 tractors were driven onto the highway and left standing there. Such blockage continued until 16.00 on 22 May 2003. According to the Lithuanian Government, all three roads were blocked at locations next to the customs post for approximately 48 hours. The Government alleged, in particular, that owing to the blocking rows of heavy goods vehicles and cars formed in Lithuania and Poland at the Kalvarija border crossing and that heavy goods vehicles were forced to drive along other routes in order to avoid traffic jams. It was also alleged that as the functioning of the Kalvarija customs post was disturbed, the Kaunas Territorial Customs Authority was obliged to re-allocate human resources as well as to prepare for a possible re-organisation of activities with the State Border Guard Service and the Polish customs and that, as a consequence, the Kaunas Territorial Customs Authority incurred additional costs; however, the concrete material damage had not been calculated.

The ECtHR in Kudrevičius at para 97 recognised that intentional disruption of traffic was “not an uncommon occurrence in the context of the exercise of freedom of assembly in modern societies, …”. However, the court continued that “physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by article 11 of the Convention” (emphasis added). The court also added that “This state of affairs might have implications for any assessment of ‘necessity’ to be carried out under the second paragraph of article 11” (emphasis added). It is apparent from Kudrevičius that purposely obstructing traffic still engages article 11 but seriously disrupting the activities carried out by others is not at the core of that freedom so that it “might”, not “would”, have implications for any assessment of proportionality. In this way, such disruption is not determinative of proportionality. On the facts of that case the Lithuanian authorities had struck a fair balance between the legitimate aims of the “prevention of disorder” and “protection of the rights and freedoms of others” and the requirement of freedom of assembly. On that basis the criminal convictions and the sanctions imposed were not disproportionate in view of the serious disruption of public order provoked by the applicants. However, again, the point of relevance to this appeal is that deliberate obstructive conduct which has a more than de minimis impact on others still requires careful evaluation in determining proportionality.

The case of Primovv Russia involved a complaint to the ECtHR that the Russian authorities’ refusal to allow a demonstration, the violent dispersal of that demonstration and the arrest of the three applicants breached their right to freedom of expression and to peaceful assembly, guaranteed by articles 10 and 11 of the Convention respectively. The protesters wished to gather in the centre of the village of Usuklchay. To prevent them from doing so the police blocked all access to the village. One of the reasons for this blockade was that if allowed to demonstrate in the centre of the village the crowd would risk blocking the main road adjacent to the village square. In conducting a proportionality assessment between paras 143-153 the ECtHR referred to the importance for the public authorities to show a certain degree of tolerance towards peaceful gatherings. At para 145 it stated:

This is not to say that there cannot be circumstances in which the actions of protesters take them outside the protection of article 11 so that the question as to proportionality does not arise. Article 11 of the Convention only protects the right to “peaceful assembly”. As the ECtHR stated at para 92 of Kudrevičius:

It is clear from those authorities that intentional action by protesters to disrupt by obstructing others enjoys the guarantees of articles 10 and 11, but both disruption and whether it is intentional are relevant factors in relation to an evaluation of proportionality. Accordingly, intentional action even with an effect that is more than de minimis does not automatically lead to the conclusion that any interference with the protesters’ articles 10 and 11 rights is proportionate. Rather, there must be an assessment of the facts in each individual case to determine whether the interference with article 10 or article 11 rights was “necessary in a democratic society”.

In setting out various factors applicable to the evaluation of proportionality it is important to recognise that not all of them will be relevant to every conceivable situation and that the examination of the factors must be open textured without being given any pre-ordained weight.

A non-exhaustive list of the factors normally to be taken into account in an evaluation of proportionality was set out at para 39 of the judgment of Lord Neuberger of Abbotsbury MR in City of London Corpn v Samede (see para 17 above). The factors included “the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public”. At paras 40-41 Lord Neuberger identified two further factors as being: (a) whether the views giving rise to the protest relate to “very important issues” and whether they are “views which many would see as being of considerable breadth, depth and relevance”; and, (b) whether the protesters “believed in the views they were expressing”. In relation to (b) it is hard to conceive of any situation in which it would be proportionate for protesters to interfere with the rights of others based on views in which the protesters did not believe.

In Nagy v Weston (see para 9 above) one of the factors identified was “the place where [the obstruction] occurs”. It is apparent, as in this case, that an obstruction can have different impacts depending on the commercial or residential nature of the location of the highway.

A factor listed in City of London Corpn v Samede was “the extent of the actual interference the protest causes to the rights of others”. Again, as in this case, in relation to protests on a highway the extent of the actual interference can depend on whether alternative routes were used or could have been used. In Primov v Russia at para 146 a factor taken into account in relation to proportionality by the ECtHR was the availability of “alternative thoroughfares where the traffic could have been diverted by the police”.

Another factor relevant to proportionality can be discerned from para 171 of the judgment of the ECtHR in Kudrevičius in that it took into account that “the actions of the demonstrators had not been directly aimed at an activity of which they disapproved, but at the physical blocking of another activity (the use of highways by carriers of goods and private cars) which had no direct connection with the object of their protest, namely the government’s alleged lack of action vis-à-vis the decrease in the prices of some agricultural products”. So, a relevant factor in that case was whether the obstruction was targeted at the object of the protest.

Another factor identified in City of London Corpn v Samede was “the importance of the precise location to the protesters”. In Hall v Mayor of London[2010] EWCA Civ 817; [2011] 1 WLR 504, para 37 it was acknowledged by Lord Neuberger, with whom Arden and Stanley Burnton LJJ agreed, that “The right to express views publicly, …, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends … to the location where they wish to express and exchange their views”. In Sáska v Hungary (Application No 58050/08) at para 21 the ECtHR stated that “the right to freedom of assembly includes the right to choose the time, place and modalities of the assembly, within the limits established in paragraph 2 of article 11”. This ability to choose, amongst other matters, the location of a protest was also considered by the ECtHR in Lashmankin v Russia (Application No 57818/09). At para 405 it was stated that:

It can also be seen from para 405 of Lashmankin that the organisers of a protest have autonomy in determining the manner of conduct of the protest. That bears on another factor set out in City of London Corpn v Samede, namely “the extent to which the continuation of the protest would breach domestic law”. So, the manner and form of a protest on a highway will potentially involve the commission of an offence contrary to section 137 of the 1980 Act. However, if the protest is peaceful then no other offences will have been committed, such as resisting arrest or assaulting a police officer. In Balçik v Turkey (Application No 25/02) at para 51 the ECtHR took into account that there was no evidence to suggest that the group in that case “presented a danger to public order, apart from possibly blocking the tram line”. So, whilst there is autonomy to choose the manner and form of a protest an evaluation of proportionality will include the nature and extent of actual and potential breaches of domestic law.

Prior notification to and co-operation with the police may also be relevant factors in relation to an evaluation of proportionality, especially if the protest is likely to be contentious or to provoke disorder. If there is no notification of the exact nature of the protest, as in this case, then whether the authorities had prior knowledge that some form of protest would take place on that date and could have therefore taken general preventive measures would also be relevant: see Balçik v Turkey at para 51. However, the factors of prior notification and of co-operation with the police and the factor of any domestic legal requirement for prior notification, must not encroach on the essence of the rights: see Molnar v Hungary [2008] ECHR (Application No 10346/05), paras 34-38 and DB v Chief Constable of the Police Service of Northern Ireland[2017] UKSC 7; [2017] 3 LRC, para 61.

A conventional balancing exercise involves individual assessment by the district judge conducted by reference to a concrete assessment of the primary facts, or any inferences from those facts, but excluding any facts or inferences which have not been established to the criminal standard. It is permissible within that factorial approach that some factors will weigh more heavily than others, so that the weight to be attached to the respective factors will vary according to the specific circumstances of the case. In this case the factual findings are set out in the Case Stated and it is on the basis of those facts that the district judge reached the balancing conclusion that the prosecution had not established to the requisite standard that the interference with the articles 10 and 11 rights of the appellants was proportionate. This raises the question on appeal as to whether there were errors or flaws in the reasoning on the face of the case which undermines the cogency of the conclusion on proportionality, insofar as the district judge is said to have taken into account a number of factors which were irrelevant or inappropriate.

The Divisional Court at paras 111-118 considered the assessment of proportionality carried out by the district judge (see para 21 above). The Divisional Court considered that the factors at 38(a)-(c) were of little or no relevance. We disagree. In relation to the factor at 38(a), article 11 protects peaceful assembly. The ECtHR requires “a certain degree of tolerance towards peaceful gatherings”, see Primov v Russia at para 62 above. The fact that this was intended to be and was a peaceful gathering was relevant. Furthermore, the factor in 38(b) that the appellants’ actions did not give rise, directly or indirectly, to any form of disorder was also relevant. There are some protests that are likely to provoke disorder. This was not such a protest. Rather it was a protest on an approach road in a commercial area where there was already a sizeable police presence in anticipation of demonstration without there being any counter-demonstrators or any risk of clashes with counter-demonstrators: (for the approach to the risk of clashes with counter-demonstrations see para 150 of Primov v Russia). The protest was not intended to, nor was it likely to, nor did it in fact provoke disorder. There were no “clashes” with the police. The factor taken into account by the district judge at 38(c) related to the commission of any other offences and this also was relevant, as set out in City of London Corpn v Samede (see para 17 above) in which one of the factors listed was “the extent to which the continuation of the protest would breach domestic law”. The Divisional Court considered that none of these factors prevented the offence of obstruction of the highway being committed in a case such as this. That reasoning is correct in that the offence can be committed even if those factors are present. However, the anterior question is proportionality, to which all those factors are relevant. There was no error or flaw in the reasoning of the district judge in taking these factors into account in his assessment of proportionality. That assessment was central to the question as to whether the appellants should be convicted under section 137 of the 1980 Act.

The Divisional Court’s core criticism related to the factor considered by the district judge at 38(d). We have set out in para 27 above the reasoning of the Divisional Court. We differ in relation to those aspects to which we have added emphasis.

We note that in para 112 the Divisional Court stated that the “highway to and from the Excel Centre was completely obstructed” but later stated that “members of the public were completely prevented from” using “the highway for passage to get to the Excel Centre …” (emphasis added). We also note that at para 114 the Divisional Court again stated that there was there was “a complete obstruction of the highway …”. In fact, the highway from the Excel Centre was not obstructed, so throughout the duration of the protest this route from the Excel Centre was available to be used. Moreover, whilst this approach road for vehicles to the Excel Centre was obstructed it was common ground that access could be gained by vehicles by another route. On that basis members of the public were not “completely prevented” from getting to the Excel Centre, though it is correct that for a period vehicles were obstructed from using this particular route.

The fact that “actions” were carefully targeted and were aimed only at obstructing vehicles headed to the DSEI arms fair was relevant: see para 75 above. Furthermore, the district judge found that the targeting was effective, as the evidence as to the use of the road by vehicles other than those heading to the arms fair was speculative and was not particularly clear or compelling (see para 38(d) of the case stated set out at para 21 above). He made no finding as to whether “non-DSEI” traffic was or was not in fact obstructed since even if it had been this amounted to no more than reasonable obstruction causing some inconvenience to the general public. Targeting and whether it was effective are relevant matters to be evaluated in determining proportionality.

The choice of location was a relevant factor to be taken into account by the district judge: see para 76 above.

The Divisional Court considered that the obstruction was for a “significant period of time” whilst the district judge considered that the “action was limited in duration”. As we explain in paras 83-84 below whether the period of 90 to 100 minutes of actual obstruction was “significant” or “limited” depends on the context. It was open to the district judge to conclude on the facts of this case that the duration was “limited” and it was also appropriate for him to take that into account in relation to his assessment of proportionality.

The Divisional Court’s conclusion referred to disruption to “members of the public”. However, there were no findings by the district judge as to the number or even the approximate number of members of the public who were inconvenienced by this demonstration which took place on one side of an approach road to the Excel Centre in circumstances where there were other available routes for deliveries to the Centre (see para 19 above). Furthermore, there were no factual findings that the protest had any real adverse impact on the Excel Centre.

The Divisional Court agreed at para 113 with the factor taken into account by the district judge at para 38(e) of the case stated:

The Divisional Court disagreed with the district judge’s conclusion at para 38(f) of the case stated that an obstruction of the highway for 90-100 minutes was of limited duration. The Divisional Court at para 112 referred to the period of obstruction as having “occurred for a significant period of time”. Then at para 114 the Divisional Court stated:

It is agreed that the actual time during which this access route to the Excel Centre was obstructed was 90 to 100 minutes. The question then arises as to whether this was of limited or significant duration. The appraisal as to whether the period of time was of “limited duration” or was for “a not insignificant amount of time” or for “a significant period of time” was a fact-sensitive determination for the district judge which depended on context including, for instance the number of people who were inconvenienced, the type of the highway and the availability of alternative routes. We can discern no error or flaw in his reasoning given that there was no evidence of any significant disruption caused by the obstruction. Rather, it was agreed that there were alternative routes available for vehicles making deliveries to the Excel Centre: see para 19 above.

The Divisional Court considered at para 115 that the factor taken into account by the district judge at para 38(g) of the case stated “was of little if any relevance to the assessment of proportionality”. The factor was that he had:

The Divisional Court at para 116 considered that the factor at para 38(h) of the case stated was irrelevant. In this paragraph the district judge, although he regarded this as a “relatively minor issue”, noted the long-standing commitment of the defendants to opposing the arms trade and that for most of them this stemmed, at least in part, from their Christian faith. He stated that they had also all been involved in other entirely peaceful activities aimed at trying to halt the DSEI arms fair. The district judge considered that “This was not a group of people who randomly chose to attend this event hoping to cause trouble”. The Divisional Court held that this factor had “no relevance to the assessment which the court was required to carry out when applying the principle of proportionality” and that “It came perilously close to expressing approval of the viewpoint of the defendants, something which … is not appropriate for a neutral court to do in a democratic society”. However, as set out at para 67 above whether the appellants “believed in the views they were expressing” was relevant to proportionality. Furthermore, it is appropriate to take into account the general character of the views whose expression the Convention is being invoked to protect. Political views, unlike “vapid tittle-tattle” are particularly worthy of protection. Furthermore, at para 38(h) the district judge took into account that the appellants were not a group of people who randomly chose to attend this event hoping to cause trouble. We consider that the peaceful intentions of the appellants were appropriate matters to be considered in an evaluation of proportionality. There was no error or flaw in the reasoning of the district judge in taking into account the matters set out at para 38(h).

We would answer the second certified question “yes”. The issue before the district judge did not involve the proportionality of the police in arresting the appellants but rather proportionality in the context of the alleged commission of an offence under section 137 of the 1980 Act. The district judge determined that issue of proportionality in favour of the appellants. For the reasons which we have given there was no error or flaw in the district judge’s reasoning on the face of the case such as to undermine the cogency of his conclusion on proportionality. Accordingly, we would allow the appeal on this ground.

For the reasons that we have given, we would allow the appeal by answering the certified question set out in para 7(1) as set out in para 54 above; answering the certified question set out in para 7(2) “yes”; setting aside the Divisional Court’s order directing convictions; and issuing a direction to restore the dismissal of the charges.