Director of Public Prosecutions v Ziegler and others

The appellants were protesters who lay and locked themselves to devices on an approach road to the Excel Centre to disrupt deliveries to an arms fair and were charged with wilful obstruction of the highway contrary to Highways Act 1980 s 137. The district judge acquitted, finding the prosecution had not disproved a defence of “lawful excuse” having regard to article 10 and article 11 ECHR rights. The Director of Public Prosecutions obtained a case stated and the Divisional Court allowed the appeal, entering convictions. The Supreme Court was asked (1) what appellate test applies to a case stated where Convention rights and a proportionality assessment are engaged; and (2) whether deliberate obstructive protest that more than de minimis prevents passage can in principle amount to a lawful excuse under s 137. The court held that Edwards v Bairstow is the applicable appellate test, with In re B and later authorities explaining when proportionality errors warrant intervention, and that intentional obstruction can in principle be protected by article 10/11 depending on a fact‑sensitive proportionality assessment.

1. Disposition: The appeal was allowed. The Divisional Court’s order directing convictions was set aside and the District Judge’s acquittals restored.

2. The correct appellate standard on a case stated under section 111 MCA is the Edwards v Bairstow approach: an appeal is permitted where there is an error of law apparent on the face of the case or the decision is one which no reasonable court properly instructed as to the law could have reached on the facts found. Where the statutory defence depends upon a proportionality assessment, the appellate court will intervene if there is an error or flaw in reasoning on the face of the case which undermines the cogency of the conclusion (applying and explaining In re B and subsequent authority, but without replacing Edwards as the overarching standard).

3. In a criminal prosecution where the defendant relies on Convention rights for a defence of lawful excuse under s 137, the prosecution bears the burden of proving beyond reasonable doubt that the interference with article 10/11 rights was proportionate. The court must assess proportionality by reference to the primary and secondary findings set out in the case stated (unless they lack evidential foundation).

4. Deliberate obstructive conduct which has more than a de minimis impact on others still engages articles 10 and 11 and may in principle constitute a lawful excuse under s 137; however, such conduct is not at the core of the freedom of assembly and requires careful fact‑sensitive proportionality evaluation. No bright‑line rule excludes deliberate obstruction from protection: the outcome depends on the factors relevant to proportionality.

5. The district judge’s balancing and reasoning were not, on the face of the case stated, shown to contain an error of law which undermined the cogency of his conclusion; accordingly his acquittals were restored.

6. Practical guidance: the court listed non‑exhaustive factors relevant to proportionality (including peacefulness, degree of disruption, duration, location and targeting, availability of alternatives, importance of subject matter and prior notification/co‑operation with police) and emphasised that only the actual obstruction should be considered for conviction.

7. Order: Appeal allowed; Divisional Court order directing convictions set aside; direction restoring dismissal of charges.

• High Court (Divisional Court): Appeal by case stated allowed; convictions directed and case remitted for sentence: [2019] EWHC 71 (Admin) (referred to in judgment).
• Magistrates’ Court (Stratford): District Judge Hamilton dismissed charges (acquittal); decision stated to High Court (case stated) (original decision set out in the case stated).