Scott v Mid-South Essex Justices & Anor

Under section 137 of the Highways Act 1980, stopping on a highway is prima facie an obstruction if it materially interferes with the public’s use. The obstruction must be wilful and without lawful authority or excuse. Lawful excuse may exist where the activity is itself lawful and the use is reasonable in all the circumstances.

Following DPP v Jones, whether an obstruction unreasonably impedes the primary right of passage is a question of fact and degree. Relevant considerations include the duration, location, purpose and actual effect of the obstruction. The High Court should intervene only where the magistrates’ conclusion is perverse or one which no reasonable tribunal could reach.

The claimant privately prosecuted Osman Keskin on six informations alleging wilful obstruction of Bramston Way, contrary to section 137(1) of the Highways Act 1980. Keskin operated a burger and kebab trailer on or beside the highway, generally at night and for periods exceeding seven hours.

The justices found an obstruction which was wilful, but concluded that Keskin had a reasonable excuse. They relied particularly on Nagy v Weston and DPP v Jones. The issue before the Divisional Court was whether that conclusion was legally available on the facts.

1. The appeal was dismissed. The justices were entitled to conclude that the respondent had a reasonable excuse for parking and operating the trailer on the highway.

2. The court adopted the approach stated by Glidewell LJ in Hirst v Chief Constable of West Yorkshire: first determine whether there was an obstruction; then whether it was wilful; and finally whether it was without lawful authority or excuse. Lawful excuse includes activities which are otherwise lawful but reasonable in all the circumstances. An unlawful activity cannot be reasonable.

3. The majority decision in DPP v Jones had changed the law. Public use of a highway is not confined to activities incidental or ancillary to passage. A use may be reasonable provided that it does not involve nuisance and does not unreasonably impede the public’s primary right to pass and repass. The question is one of fact and degree.

4. The justices were entitled to take account of the industrial location, the limited traffic, the absence of obstruction in fact and the ease with which members of the public could pass and repass. Another bench might have reached a different conclusion, but the conclusion reached fell within the permissible range.

5. In a criminal prosecution, the prosecution must prove every component of the offence. The High Court should intervene only if the decision was perverse or the facts found made it inevitable that the use was unreasonable.

• Magistrates’ court: The Mid-South Essex Justices dismissed the six informations against Osman Keskin.
• High Court (Administrative Court): The Divisional Court dismissed the claimant’s appeal and answered the justices’ question in the affirmative.