Director of Public Prosecutions v Ziegle & Ors

Section 137 of the Highways Act 1980 must be interpreted compatibly with Articles 10 and 11 under section 3 of the Human Rights Act 1998. Protest involving physical obstruction may engage Convention rights, but intentional obstruction of traffic is not at their core and remains subject to proportionality.

The decisive question is whether a fair balance has been struck between the protesters, the community and other highway users. Complete obstruction preventing lawful passage for a significant period may be disproportionate, even where the protest is peaceful, political and carefully targeted. On appeal, proportionality is an evaluative assessment, and the question is whether the lower court was wrong, not whether no reasonable court could have reached its conclusion.

The Director of Public Prosecutions brought two appeals by way of case stated from decisions of DJ Hamilton at Stratford Magistrates’ Court. Eight respondents had been acquitted of wilfully obstructing the highway, contrary to section 137 of the Highways Act 1980, following protests connected with an arms fair.

The District Judge held that the respondents had a lawful excuse because their conduct was reasonable in light of Articles 10 and 11 of the Convention. The appeals concerned whether that approach was legally available and whether the proportionality assessment was properly made. In relation to the fifth to eighth respondents, a further issue arose under section 111(2) of the Magistrates’ Court Act 1980 because the applications to state a case were made more than 21 days after the acquittals.

1. Construction of section 137. The court held that section 137(1) of the Highways Act 1980 can be read compatibly with Articles 10 and 11 by applying section 3 of the Human Rights Act 1998. Conduct which is a lawful exercise of those Convention rights may constitute a lawful excuse. The relevant question is whether any restriction on the rights is proportionate.
2. Convention framework. Physical obstruction of traffic can fall within freedom of expression and peaceful assembly, although it is not at the core of those rights. The court must assess whether the interference is prescribed by law, pursues a legitimate aim, is necessary in a democratic society and strikes a fair balance. Political expression attracts substantial weight, but a court must remain neutral as to the viewpoint expressed. The pre-Human Rights Act authorities, including Director of Public Prosecutions v Jones (Margaret) & Another [1999] 2 AC 240, required reading in light of the later statutory framework.
3. Appellate standard. Proportionality is an evaluative assessment rather than a question of fact. Applying Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, the appellate question is whether the lower court’s assessment was wrong, not whether no reasonable court could have reached it.
4. Application. The District Judge erred in treating the complete obstruction as carefully targeted, giving weight to the absence of public complaints, and treating the respondents’ longstanding commitment to opposing the arms trade as relevant. The highway was completely blocked, preventing lawful passage to and from the Excel Centre for approximately 80 to 100 minutes. Peacefulness, absence of disorder and political importance did not outweigh that interference. No fair balance had been struck, so the assessment was wrong.
5. Jurisdiction and disposal. Under section 111(2) of the Magistrates’ Court Act 1980, time ran from the public dismissal of the charges and entry of the verdicts, not from the later written reasons. There was no discretion to extend the statutory period. The appeals concerning the fifth to eighth respondents were therefore dismissed. The appeals concerning the first to fourth respondents were allowed; their acquittals were quashed, convictions were entered and the cases were remitted for sentencing.

• High Court (Administrative Court) — In [2019] EWHC 71 (Admin), the appeals were allowed for the first to fourth respondents and dismissed for the fifth to eighth respondents.
• Stratford Magistrates’ Court — DJ Hamilton dismissed the charges and entered acquittals in two trials. The Director of Public Prosecutions applied to state a case to the High Court.