Director of Public Prosecutions v Cathy Eastburn

Where a protest-related offence is defined so that its statutory ingredients themselves strike the proportionality balance required by Articles 10 and 11, proof of those ingredients establishes that a conviction is compatible with Convention rights. The trial court need not conduct a separate, fact-specific proportionality assessment before convicting.

Section 14 of the Public Order Act 1986 is such an offence. Once the direction is lawful and the offence ingredients are proved, minor disruption may affect sentence but does not prevent conviction.

Cathy Eastburn was acquitted by the City of London Magistrates’ Court after being prosecuted under section 14(5) of the Public Order Act 1986 for knowingly failing to comply with a written direction confining an Extinction Rebellion assembly to Parliament Square Gardens. The deputy district judge found the statutory ingredients proved but held that conviction would be a disproportionate interference with Articles 10 and 11.

The DPP appealed by way of case stated. The issue was whether a separate proportionality assessment was required after the ingredients of the section 14(5) offence had been established.

1. Appeal allowed. The case was remitted to the City of London Magistrates’ Court with a direction to convict.

2. The court followed James v DPP: section 14 is an offence for which the statutory ingredients strike the Convention proportionality balance. The senior officer must reasonably believe that the assembly may cause the specified serious consequences, and the conditions must appear necessary to prevent them. If those requirements are not met, the direction is unlawful and cannot support conviction.

3. DPP v Cuciurean, the Colston case and the Supreme Court’s decision in the AGNI case confirmed that DPP v Ziegler did not establish a general rule requiring a separate proportionality assessment for every protest-related offence. The approach depends on the statutory definition of the offence.

4. Section 14 of the Public Order Act 1986 is an offence-creating provision whose ingredients ensure compatibility with Articles 10 and 11. Once the lawful direction, knowing non-compliance and absence of circumstances beyond the defendant’s control were proved, the judge should have convicted. Minor disruption could be reflected in the penalty.

• High Court (King’s Bench Division), Divisional Court: allowed the DPP’s appeal and remitted the case with a direction to convict.
• City of London Magistrates’ Court: acquitted the respondent after finding the statutory ingredients proved but treating proportionality of conviction as an additional issue.