Halcrow & Anor v Crown Prosecution Service

Restrictions protecting a site of exceptional cultural importance may lawfully interfere with religious freedom, freedom of expression and peaceful assembly where the interference is prescribed by law, pursues a legitimate aim and is proportionate.

The proportionality assessment requires close examination of the evidence relied on by the authority. The court must consider the activities and rights of the individuals, less restrictive means, and the fair balance between individual rights and the community’s interests. Where unrestricted access would undermine the protective scheme, lawful alternative opportunities for protest or religious observance may be significant. An interference justified under the Convention means that entry contrary to a barrier or notice is not accompanied by a reasonable excuse.

The appellants were convicted of entering the Stonehenge stone circle contrary to regulation 3(h) of the Stonehenge Regulations 1997 and section 19 of the Ancient Monuments and Archaeological Areas Act 1979. Their convictions were upheld by the Crown Court at Swindon.

On a case stated, they challenged the Crown Court’s proportionality assessment under articles 9, 10 and 11 of the ECHR. They argued that the prosecution had adduced insufficient evidence to justify the restrictions and that regulation 3(h) had not been interpreted compatibly with Convention rights. The central issues were whether the restrictions were necessary in a democratic society and, if not, whether the appellants had a reasonable excuse for entering the restricted area.

1. Extension of time. The court extended time for filing the appellant’s notices. The delay was serious, but the errors were made by the solicitors’ administrative staff, the proceedings were criminal, the Crown Court had stated a case raising proper issues, and the delay caused no further practical difficulty. The guidance in Denton v TH White Limited [2014] 1 WLR 3926 was applied.
2. Proportionality. The court assessed the interference for itself. The Crown Court was required both to consider the appellants’ activities and to examine closely the evidence relied on by the prosecution. The proportionality framework identified in Bank Mellat v HM Treasury (No.2) [2013] UKSC 38; [2014] AC 700 and DPP v Ziegler [2019] EWHC 71 (Admin); [2020] QB 253 required consideration of the importance of the aim, rational connection, less restrictive means and fair balance.
3. The preservation of Stonehenge for present and future generations was sufficiently important and restricting access was rationally connected to that aim. The evidence showed managed open access days, paid pre-booked access, alternative places for protest and arrangements that could be made with English Heritage. Removing the restrictions whenever a person entered to protest or exercise religious rights would seriously undermine preservation. The approach required a close and penetrating analysis of the factual justification, as stated in R v Shayler [2002] UKHL 11; [2003] 1 AC 247.
4. The restrictions struck a fair balance. Although the appellants’ religious and expressive activities engaged articles 9, 10 and 11, their entry was not necessary to make their protest effective, and the available access arrangements did not render the restrictions disproportionate. The interference was therefore justified and proportionate.
5. Because the interference was permissible, the appellants had no reasonable excuse under regulation 3(h). The stated questions were answered against them and the appeals against conviction were dismissed.

• High Court (Administrative Court): appeals by case stated dismissed. The court upheld the Crown Court’s conclusion that the restrictions were proportionate and that the appellants had no reasonable excuse.
• Crown Court at Swindon: appeals from convictions at Swindon Magistrates’ Court dismissed on 29 November 2019.
• Swindon Magistrates’ Court: appellants convicted on 15 November 2018 and given conditional discharges.