Director of Public Prosecutions v Ziegler

The Supreme Court held that the statutory defence of "lawful excuse" under section 137 of the Highways Act 1980 must be construed compatibly with the Convention rights in articles 10 and 11 ECHR by application of the Human Rights Act 1998 (notably sections 3 and 6). The court decided that the appropriate appellate test on a case stated remains the Edwards v Bairstow approach: an appeal will succeed where an error of law is apparent on the face of the case or where no reasonable tribunal, properly instructed in law, could have reached the conclusion on the facts found. Where the statutory defence depends on a proportionality assessment, an appeal lies only if there is an error or flaw in reasoning on the face of the case which undermines cogency.

The court further held that deliberately obstructive protest conduct can in principle amount to a "lawful excuse" under section 137 where, on the facts proved beyond reasonable doubt, the interference with articles 10/11 would be disproportionate. Assessment of proportionality is fact-sensitive and requires weighing matters such as the peaceful character of the protest, the degree and duration of obstruction, targeting of the protest, importance of location, availability of alternative routes and any evidence of disorder. Applying those principles, the Supreme Court found no fatal error in the trial judge's proportionality assessment and allowed the appeal: the Divisional Court's order directing convictions was set aside and the magistrates' dismissal was restored.

This appeal concerned four protesters who lay attached to lock-boxes on a carriageway leading to the Excel Centre during the DSEI arms fair. They were arrested; it took police specialist teams about 90 minutes to remove them. They were prosecuted for wilful obstruction of the highway under section 137 Highways Act 1980. At trial District Judge Hamilton dismissed the charges, having assessed proportionality under articles 10 and 11 ECHR and concluded that the prosecution had not proved beyond reasonable doubt that the conduct was unreasonable. The Director of Public Prosecutions appealed by case stated to the Divisional Court which allowed the appeal, entered convictions and remitted for sentence ([2019] EWHC 71 (Admin)). The Divisional Court certified two points of law of general public importance and the Supreme Court granted permission to appeal.

The certified issues were: (1) the appellate test to be applied on an appeal by way of case stated when a statutory defence of "lawful excuse" engages Convention rights; and (2) whether deliberate obstructive conduct which has more than a de minimis impact and prevents passage can ever amount to a "lawful excuse" under section 137.

The Supreme Court’s reasoning: (i) section 137 is to be read compatibly with articles 10 and 11 via the Human Rights Act 1998 so that a protester has "lawful excuse" where the police action required to remove them would themselves be unlawful under section 6 HRA; (ii) appellate review of a case stated remains governed by the Edwards v Bairstow standard, subject to the clarification that, where proportionality is in issue, In re B and subsequent guidance on the proper scope of appellate review are highly relevant: appellate interference is appropriate where the proportionality conclusion is wrong because of a material error or flaw in reasoning apparent on the face of the case; (iii) the Convention and Strasbourg jurisprudence establish that intentional obstruction engages articles 10 and 11 but that serious disruption is not automatically determinative — proportionality must be assessed on the proved facts and each restriction (arrest, prosecution, conviction) is separately examinable; (iv) relevant proportionality factors include peacefulness, degree and duration of obstruction, whether the protest was targeted at its object, importance of location, availability of alternative thoroughfares, prior notice/co-operation with police and risk of disorder. Applying these principles to the facts stated, the Supreme Court concluded that the district judge had not made an error on the face of the case that undermined his conclusion on proportionality, and therefore the Divisional Court’s order directing convictions was set aside and the acquittals restored.

Appeal allowed. The court held (1) the appellate test on a case stated is the Edwards v Bairstow approach, with In re B and subsequent supervisory guidance informing how proportionality conclusions are reviewed; and (2) deliberate obstructive conduct can in principle constitute a "lawful excuse" under section 137 where, on the facts proved, interference with articles 10 and 11 would be disproportionate. Applying those principles, no error on the face of the case undermined the trial judge’s proportionality conclusion, so convictions entered by the Divisional Court were set aside and the magistrates’ dismissals restored.

Magistrates' Court (District Judge Hamilton) – trial and dismissal of charges (trial 1–2 February 2018; reserved judgment 7 February 2018). Appeal by way of case stated to the Divisional Court (Singh LJ and Farbey J) which allowed the respondent’s appeal, directed convictions and remitted for sentence: [2019] EWHC 71 (Admin) (reported [2020] QB 253). Divisional Court certified two points of law of general public importance. Supreme Court granted permission to appeal and allowed the appeal: [2021] UKSC 23.