ZACHARY BROWN v CROWN PROSECUTION SERVICE

For an offence under section 137 of the Highways Act 1980, the prosecution need not prove that an actual lawful user of the highway was obstructed. Whether conduct amounts to an obstruction is assessed through the reasonableness of the user, considering all the circumstances. Actual obstruction is relevant to that evaluation, but is not a free-standing ingredient of the offence.

The power under section 28A(2) of the Senior Courts Act 1981 to return a case stated for amendment addresses deficiencies preventing proper determination of the issues raised. It cannot be used to introduce an entirely new appeal and thereby avoid procedural requirements or the choice between appeal routes.

The appellant was convicted of wilfully obstructing the free passage along a bridleway, contrary to section 137 of the Highways Act 1980, after lying across a bridleway on an HS2 construction site. The Magistrates’ Court rejected his argument that the prosecution had to prove that the vehicle obstructed was lawfully entitled to use the bridleway.

On appeal by way of case stated, the appellant initially challenged that ruling. He later sought to raise proportionality arguments under articles 10 and 11 of the Convention and asked the Divisional Court to remit the case for amendment. The central issues were whether lawful use by the obstructed vehicle was an ingredient of the section 137 offence and whether the case stated could be amended to permit the new argument.

1. Appeal dismissed. Questions 1, 2 and 4 in the case stated were answered “yes”. Question 5 did not arise, and question 3 was conditional on a construction of section 137 which was rejected.
2. Section 137 of the Highways Act 1980 does not require proof that anyone was actually obstructed, still less that a lawful user of the highway was obstructed. The prosecution therefore did not have to prove that the vehicle using the bridleway had lawful authority.
3. Following Nagy v Weston [1965] 1 WLR 280, the relevant question is whether the user amounting to an obstruction was unreasonable. That assessment depends on all the circumstances, including the duration and location of the obstruction, its purpose, and whether it caused actual rather than merely potential obstruction. The issue of actual obstruction belongs within the evaluation of reasonable user, rather than forming a separate ingredient of the offence.
4. The Divisional Court in DPP v Ziegler [2020] QB 253 confirmed that this remained the law under section 137(1). Nothing in the Supreme Court decision reported at [2021] 3 WLR 179 undermined that conclusion.
5. Section 28A(2) of the Senior Courts Act 1981 permits a case stated to be returned where it contains a deficiency which must be remedied before the High Court can properly determine the issues raised. It does not permit an appellant to advance an entirely different appeal, evade time limits, or circumvent the distinction between an appeal by case stated and an appeal to the Crown Court for rehearing.
6. The appellant’s representatives had identified the legal errors and questions relied upon under Part 35 of the Criminal Procedure Rules. The case stated was not deficient in a way requiring amendment. The court therefore declined to adjourn or remit the matter.

• Magistrates’ Court: The appellant was convicted under section 137 of the Highways Act 1980. The court rejected the submission that the prosecution had to prove lawful use of the bridleway by the obstructed vehicle.
• High Court, Queen’s Bench Division, Divisional Court: The appeal by way of case stated was dismissed. The court declined to remit the case for amendment.