DIRECTOR OF PUBLIC PROSECUTIONS v ELLIOTT CUCIUREAN

A statutory protest offence does not require a separate, fact-specific proportionality inquiry merely because articles 10 and 11 of the Convention may be engaged. The need for such an inquiry depends on the proper construction of the offence. Where the statutory ingredients themselves strike the required balance, proof of those ingredients is sufficient.

Section 68 of the Criminal Justice and Public Order Act 1994 is such an offence. It criminalises trespass coupled with an intended intimidation, obstruction or disruption of lawful activity. It protects property rights, lawful land use and public order. Articles 10 and 11 confer no general right to enter private land, or publicly owned land closed to the public, in order to protest.

The respondent protested against the HS2 project by occupying a tunnel on land acquired for construction purposes. He was charged with aggravated trespass under section 68(1) of the Criminal Justice and Public Order Act 1994.

The Deputy District Judge found the statutory elements proved but acquitted him. She held that the prosecution had not proved that conviction was a necessary and proportionate interference with his rights under articles 10 and 11 of the Convention, applying DPP v Ziegler [2021] UKSC 23.

On the prosecution's appeal by case stated, the central issue was whether Ziegler required a separate proportionality assessment for aggravated trespass or for all non-violent protest offences.

1. Appeal allowed. The court answered both questions in the case stated negatively and remitted the case to the Magistrates’ Court with a direction to convict the respondent of aggravated trespass under section 68(1).

2. DPP v Ziegler [2021] UKSC 23 concerned obstruction of a highway under section 137 of the Highways Act 1980, an offence containing a defence of lawful excuse. Its proportionality analysis was confined to that statutory setting. It did not establish a general rule that the prosecution must prove the proportionality of conviction whenever articles 10 and 11 are engaged.

3. Whether proportionality is an additional matter for the prosecution depends on the substantive offence. Where an offence requires proof that conduct was unreasonable, or permits lawful or reasonable excuse, proportionality may form part of that inquiry. But where Parliament has struck the balance in the offence’s ingredients, proof of those ingredients is sufficient. Section 6 of the Human Rights Act 1998 does not itself impose a free-standing proportionality ingredient.

4. Section 68 is intrinsically compatible with articles 10 and 11. It has the legitimate aims of protecting property rights under A1P1, lawful land use and public order. It requires more than trespass: the defendant must intend to intimidate, obstruct or disrupt persons engaged in lawful activity. Deliberate obstruction of others’ lawful activity lies towards the periphery of the rights of expression and peaceful assembly.

5. Articles 10 and 11 do not provide a freedom to choose a private forum for protest. They do not generally confer entry rights over private land or publicly owned land from which the public is excluded. A different conclusion might arise only in an exceptional case where exclusion prevented any effective exercise, or destroyed the essence, of the Convention rights.

6. Alternatively, if a case-specific proportionality inquiry had been required, conviction was the only lawful outcome. The magistrate failed to weigh property rights, Parliament’s authorisation of HS2 and the availability of lawful protest methods. The project’s overall cost and duration, the comparatively short delay, and the absence of immediate public inconvenience were irrelevant to the balance.

• High Court (Divisional Court): Allowed the Director of Public Prosecutions’ appeal by case stated, answered both questions negatively, and remitted the case with a direction to convict.
• City of London Magistrates’ Court: The Deputy District Judge acquitted the respondent after holding that the prosecution had not proved that conviction under section 68 was a proportionate interference with articles 10 and 11.