Buchanan vThe Crown Prosecution Service

For the offence under section 137(1) of the Highways Act 1980, obstruction is assessed by asking whether the defendant’s use of the highway unreasonably impedes the public right of passage. The assessment is fact-sensitive and includes the duration, location, purpose and actual effect of the conduct. Articles 10 and 11 rights may be significant, but they are qualified rights and do not justify serious disruption or risks to other road users. The de minimis principle is narrowly confined. It may apply to a genuinely fractional or very brief obstruction, but not merely because traffic can use another part of the highway. Deliberate conduct and the absence of lawful authority or reasonable excuse complete the offence where the use is unreasonable.

Michael Buchanan appealed by way of case stated from the Crown Court at Isleworth, which had refused his appeal against conviction at Hammersmith Magistrates’ Court for obstructing the highway contrary to section 137(1) of the Highways Act 1980.

He had deliberately stood in the carriageway at Parliament Square during busy traffic while protesting against male circumcision. Vehicles were blocked for approximately five minutes, and he refused requests to leave the road. The Crown Court found that the obstruction was not de minimis and that his use of the highway was unreasonable and without lawful excuse. The questions were whether those conclusions were correct.

1. The appeal was refused. The court granted an extension of time because the substantial delay was principally attributable to the Crown Court’s failure to comply with the criminal case-stated procedure and the CPS suffered no apparent prejudice.
2. Section 137(1) of the Highways Act 1980 requires an obstruction of free passage along a highway, wilful obstruction, and absence of lawful authority or excuse. There is significant overlap between those elements.
3. Following Director of Public Prosecutions v Jones [1999] 2 WLR 625, the central question is whether the defendant’s use of the highway unreasonably impedes the public right of passage. Reasonableness depends on all the circumstances, including duration, location, purpose and actual obstruction. The relevance of articles 10 and 11 of the ECHR must be assessed within their qualified and proportionate limits.
4. The de minimis principle is narrowly confined. It may apply to a fractional spatial obstruction or a very short temporal obstruction, but an obstruction is not trivial merely because users could pass elsewhere on the highway. The authorities concerning small encroachments and brief interruptions provided the relevant guidance.
5. The Crown Court was entitled, and indeed correct, to find that the appellant’s conduct was more than trivial. He stood alone in the middle of a busy multi-lane carriageway, deliberately moved in front of vehicles, created significant risks, blocked buses, taxis and cars for about five minutes, and intended to disrupt traffic and be arrested. His continuing right to protest could have been exercised from the pavement, where his supporters remained.
6. The interference with his article 10 and 11 rights was necessary in the interests of public safety and protecting the rights of other highway users. The Crown Court therefore correctly answered both questions in the affirmative. The conviction stood.

• High Court (Administrative Court): appeal by case stated refused; the Crown Court’s answers to both questions were upheld.
• Crown Court at Isleworth: appeal against conviction refused on 3 March 2017.
• Hammersmith Magistrates’ Court: appellant convicted and fined on 12 October 2016.