Director of Public Prosecutions v Ziegle & Ors

This court held that section 137 of the Highways Act 1980 must be read compatibly with Articles 10 and 11 of the Convention, so that a person lawfully exercising Convention rights may have a "lawful excuse" for obstructing a highway. The compatibility enquiry requires a proportionality assessment: whether any interference with Convention rights is prescribed by law, pursues a legitimate aim and is necessary in a democratic society. An appellate court reviews a lower court's proportionality evaluation by asking whether it was wrong, not whether it was merely open to the judge.

The appeals by way of case stated arose from two magistrates' court trials in Stratford concerning protests that obstructed routes to the DSEI arms fair. The district judge (DJ Hamilton) dismissed obstruction charges against eight defendants, finding their conduct reasonable in light of Articles 10 and 11 ECHR. The Crown appealed by case stated to the Divisional Court. The central issue before this Court was whether the District Judge was entitled to conclude that the prosecution had not proved the defendants' conduct was unreasonable and therefore lacked "lawful excuse" under section 137 of the Highways Act 1980. The Court considered the interplay between section 137 and the Human Rights Act 1998, the correct approach to proportionality and the standard of appellate review.

1. Disposition: The DPP's appeal was allowed in relation to the first to fourth respondents and dismissed for want of jurisdiction in relation to the fifth to eighth respondents. Convictions were ordered to be entered for the first to fourth respondents and the cases remitted for sentence (paras [128]-[137]).
2. Statutory interpretation: Section 137 of the Highways Act 1980 can, so far as possible under section 3 of the Human Rights Act 1998, be read compatibly with Articles 10 and 11 ECHR. Where conduct engages Articles 10/11 and interference would be disproportionate, the defendant will have a "lawful excuse" and thus not commit the offence (paras [61]-[64]).
3. Proportionality framework: The court set out the sequential questions to be asked: (1) engagement of Article 10/11; (2) is there interference by a public authority; (3) is the interference prescribed by law; (4) does it pursue a legitimate aim; (5) is it necessary in a democratic society. The ultimate inquiry is whether a fair balance is struck between individual Convention rights and the rights/ interests of others (paras [63]-[65]).
4. Appellate standard: The assessment of proportionality is an evaluative judgment. An appellate court should interfere if, after anxious consideration, it concludes the lower court's proportionality conclusion was wrong (following the approach in Re B [2013] UKSC 33) (paras [99]-[104]).
5. Application to facts: Although the district judge considered relevant factors (peacefulness, targeting, subject matter, duration, absence of public complaints), the Divisional Court found his evaluation erroneous in important respects. The carriageway to the Excel Centre was completely obstructed for a substantial period (c. 80–100 minutes). That interference prevented members of the public from lawfully using the highway and did not, on these facts, strike a fair balance. The district judge therefore reached a wrong conclusion on proportionality (paras [110]-[118]).
6. Jurisdictional point: The DPP's application to state a case against the fifth to eighth respondents was out of time under section 111(2) of the Magistrates' Court Act 1980 because time runs from the public dismissal of charges, namely 8 February 2018, not from later written reasons. Accordingly the Court lacked jurisdiction to hear those appeals (paras [119]-[126]).
7. Orders: Appeal allowed as to respondents 1–4; convictions to be entered and cases remitted for sentence. Appeal dismissed for respondents 5–8 for want of jurisdiction. The Court explained that outcomes in other cases depend on their facts (paras [129], [131], [137]).

• High Court (Divisional Court): This Court (Singh LJ and Farbey J) heard the case stated appeals from Stratford Magistrates' Court and remitted convictions for sentence for respondents 1–4; dismissed appeals for respondents 5–8 for want of jurisdiction ([2019] EWHC 71 (Admin)).
• Magistrates' Court (Stratford): DJ (MC) Hamilton dismissed the obstruction charges against all eight defendants; drafted and served a case stated which precipitated the present appeals (decision pronounced 8 February 2018; written reasons 7/20 February 2018).