Director of Public Prosecutions v Ziegler and others

Deliberate and physically obstructive protest on a highway may constitute a lawful excuse under section 137 of the Highways Act 1980, even where its impact exceeds the de minimis threshold. Intentional disruption remains relevant, but it does not determine proportionality automatically.

Whether a conviction would unjustifiably interfere with rights under articles 10 and 11 requires a fact-specific and open-textured assessment. Relevant matters include peacefulness, duration, location, targeting, actual disruption, alternative routes, other unlawful conduct and the political character of the expression. The prosecution must establish proportionality beyond reasonable doubt.

On an appeal by case stated, an appellate court may intervene for a material error of law apparent from the case, including an identifiable flaw which undermines the cogency of the proportionality conclusion, or where no reasonable court properly instructed in law could have reached the decision.

The appellants conducted a peaceful protest against an arms fair by locking themselves to boxes on one carriageway of an approach road to the Excel Centre. The obstruction lasted approximately 90 to 100 minutes, but the opposite carriageway and alternative access routes remained available.

They were charged under section 137 of the Highways Act 1980. The district judge dismissed the charges because the prosecution had not proved that conviction for their limited, targeted and peaceful conduct was a proportionate interference with their rights under articles 10 and 11 of the European Convention on Human Rights.

The Divisional Court allowed the prosecution's appeal, directed that convictions be entered and remitted the cases for sentencing: [2019] EWHC 71 (Admin); [2020] QB 253. The issues before the Supreme Court concerned the standard of review on an appeal by case stated and whether deliberate obstruction having more than a de minimis impact could constitute a lawful excuse.

1. Disposition. The appeal was allowed. By a majority comprising Lord Hamblen, Lord Stephens and Lady Arden, the Divisional Court's direction that convictions be entered was set aside and the dismissal of the charges was restored. Lord Sales, with whom Lord Hodge agreed, would instead have remitted the cases for reconsideration.

2. Appeal by case stated. The narrow common ground of the majority was that the overarching restriction imposed by section 111 of the Magistrates’ Courts Act 1980 remained applicable. Following Edwards v Bairstow [1956] AC 14, an appeal lies for a material error of law apparent on the face of the case, or where no reasonable court properly instructed in the relevant law could have reached the determination on the facts found. In a proportionality case, an identifiable error or flaw which undermines the cogency of the conclusion may constitute such an error of law. The appellate court must work from the primary and secondary findings in the case stated and must not conduct the balancing exercise afresh merely because it would have evaluated the facts differently.

3. Deliberate obstruction and Convention rights. The Court unanimously held that intentional, physically obstructive protest may in principle constitute a lawful excuse under section 137 of the Highways Act 1980, even where the obstruction has a more than de minimis impact. Such conduct remains within articles 10 and 11 if the assembly is peaceful. Its intentional and disruptive character is relevant to necessity and proportionality, but is not determinative. A degree of tolerance towards disruption caused by peaceful assembly is required.

4. Proportionality. The assessment is fact-specific and open-textured. No factor has predetermined weight. Relevant matters may include the peaceful character of the protest; actual or threatened disorder; other breaches of domestic law; the protest's duration and location; the extent of interference with others; the availability of alternative routes; whether the obstruction directly targeted the activity protested against; the political character of the expression; the protesters' sincere and peaceful intentions; and prior notification or co-operation with the police.

5. Application. The prosecution bore the burden of establishing beyond reasonable doubt that conviction would be a proportionate interference with the appellants' rights. The majority held that the district judge had made no material error. He was entitled to consider that the protest was peaceful, targeted and limited in context. Alternative access routes existed, and there was no proved substantial disruption, disorder, additional offending or complaint. The proportionality assessment could concern only the obstruction which actually occurred, rather than a longer hypothetical protest prevented by police intervention.

6. Dissent. Lord Sales and Lord Hodge considered that lawful excuse depended on the proportionality of the police response. They concluded that the district judge had omitted material features, including the complete blockage of the relevant carriageway and the intended duration of the action. They nevertheless considered the Divisional Court unable to determine proportionality on the limited facts and would have ordered a remittal.

1. United Kingdom Supreme Court: The appeal was allowed. The order directing convictions was set aside and, by a 3–2 majority, the dismissal of the charges was restored: [2021] UKSC 23 .
2. Divisional Court of the High Court: The prosecution's appeal by case stated was allowed. Convictions were directed and the cases were remitted for sentencing: [2019] EWHC 71 (Admin) ; [2020] QB 253 .
3. Stratford Magistrates’ Court: District Judge Hamilton dismissed the charges because the prosecution had not proved that the obstruction was unreasonable when the appellants' Convention rights were considered.