R v McCafferty and others

For the second limb of statutory public nuisance under section 78(1)(b)(ii) of the Police, Crime, Sentencing and Courts Act 2022, a right exercisable or enjoyed by the public at large means a legal right, not a revocable licence or permission.

People entering or leaving private business premises by permission do not exercise such a public right. Nor do people approaching those premises over a private road. Passage towards the premises falls within the provision only where the route is a highway or is otherwise subject to a right belonging to the public at large. If the meaning of a penal provision carrying imprisonment is reasonably ambiguous, the interpretation more favourable to the accused must be adopted.

Six protesters blocked vehicular access to and from a dairy works for about four hours. The obstruction occurred on Pointon Way, a private road providing the only road access to the works. They were charged solely under section 78(1)(b)(ii) of the Police, Crime, Sentencing and Courts Act 2022.

At the Crown Court at Worcester, the judge ruled at the close of the prosecution case that there was no case to answer because the public at large had no right to use the private road or enter the private premises. The Court of Appeal allowed the prosecution's appeal and ordered the proceedings to resume: [2025] EWCA Crim 748.

The Supreme Court considered whether employees, customers, suppliers and other business visitors exercise or enjoy a right belonging to the public at large when approaching, entering or leaving private business premises.

1. Disposition. The appeal was allowed unanimously. The Crown Court judge's ruling that there was no case to answer was confirmed, and the defendants were ordered to be acquitted.

2. Meaning of a public right. Lord Leggatt, with whom Lord Reed, Lady Simler and Lord Doherty agreed, held that section 78(1)(b)(ii) of the Police, Crime, Sentencing and Courts Act 2022 refers to a right in the strict legal sense. A right of way is an interest with which others have a duty not to interfere. A licence merely makes lawful an act that would otherwise be a trespass, remains dependent on the landowner's consent and is ordinarily revocable. Permission given to the public generally therefore does not itself create a right enjoyed by the public at large.

3. Private premises and roads. Employees, customers, suppliers and other visitors enter and leave private business premises by permission, not by exercising a public right. Whether they exercise a public right while approaching the premises depends on the route. Passage along a highway qualifies because every member of the public has the right to use it. Passage along a private road, available only through a private right of way or permission, does not.

4. Penal construction and statutory structure. Even if the word right were ambiguous, the narrower construction was required because a penal provision carrying imprisonment must be construed in favour of the accused where two reasonable meanings are available. The two limbs of section 78 address distinct mischiefs. The first concerns serious harm to the public or a section of it. The second concerns obstruction of a right belonging to every member of the public. Extending the second limb to permissions would create uncertainty and circumvent the serious-harm threshold imposed by the first limb.

5. Application. Pointon Way was a private road, and the sign prohibiting trespass negatived any inference that it had been dedicated to the public. A person leaving private land does not acquire a public right of way merely by deciding to depart. Nor did the obstruction amount to false imprisonment: partial restriction of movement, without confinement within a bounded area, is insufficient.

6. Procedure. The prosecution had chosen not to seek amendment of the indictment at trial. An appellate court could not reverse or vary the no-case ruling on the basis of an application which was never made. Section 35(3) of the Criminal Appeal Act 1968 therefore enabled the Supreme Court to make the acquittal order which the Court of Appeal should have made.

7. Concurring reasoning. Lord Sales agreed with the narrow construction and the result. He regarded right as initially ambiguous but considered that the principle against doubtful penalisation decisively favoured the narrower meaning. He would have permitted a Law Commission report to guide the specific meaning of statutory words if adapted Pepper v Hart conditions were satisfied. The majority disagreed with that proposed use of a Law Commission opinion.

• United Kingdom Supreme Court: The defendants' appeal was allowed unanimously. The no-case ruling was confirmed and the defendants were ordered to be acquitted.
• Court of Appeal (Criminal Division): The prosecution's appeal was allowed, and the Crown Court proceedings were ordered to resume: [2025] EWCA Crim 748.
• Crown Court at Worcester: At the close of the prosecution case, His Honour Judge Jackson ruled that there was no case to answer because the alleged obstruction did not interfere with a right exercisable or enjoyed by the public at large.