Director of Public Prosecutions v Ziegler & Ors [2019] EWHC 71 (Admin), [2020] QB 253, [2019] 2 WLR 1451 , [2019] 1 CrAppR 32

In Director of Public Prosecutions v Ziegler & Ors [2019] EWHC 71 (Admin), the Divisional Court (Lord Justice Singh and Mrs Justice Farbey) allowed an appeal by way of case stated in relation to seven acquittals for obstruction of the highway arising from protests against the Defence and Security International arms fair at the Excel Centre in September 2017.

All eight respondents had been charged under section 137 of the Highways Act 1980. On 5 September 2017, Ms Ziegler, Ms Cullinan, Ms Frew and Mr Cole locked themselves in boxes in the middle of an approach road to the Excel Centre, completely blocking one carriageway for approximately 90 minutes. On the same day, Mr Cooper, Mr Donaldson, Mr Dorton and Mr Franklin suspended themselves by rope from a bridge above both carriageways of Royal Albert Way, causing police to close the road for safety reasons for 78 minutes. All eight respondents gave evidence that their actions were carefully targeted at disrupting traffic heading to the arms fair, accepted that the action was planned and took place on the highway, and acknowledged causing an obstruction. The only disputed element of the offence was whether they had lawful excuse for the obstruction, which required an assessment of the reasonableness of their conduct.

District Judge Hamilton dismissed the charges against all eight respondents in two separate trials in February 2018. He held that Articles 10 and 11 of the European Convention on Human Rights were engaged and found that the prosecution had not proved to the requisite standard that the defendants’ limited, targeted and peaceful action was unreasonable. In reaching this conclusion, the District Judge took into account that the action was entirely peaceful, did not give rise to disorder, involved no criminal offence beyond the section 137 charge, was carefully targeted at vehicles heading to the arms fair, related to a matter of general concern, was limited in duration, and had generated no complaints. He expressly directed himself that Convention rights were not a trump card but concluded that the action was reasonable in all the circumstances. He adopted the same reasoning and reached identical conclusions in both trials.

The Director of Public Prosecutions appealed by way of case stated, advancing five overlapping grounds. First, the conduct was unlawful in itself and incapable of giving rise to lawful excuse because deliberately lying in the road with one’s arm locked in a box, or suspending oneself from a bridge, was not on its face lawful activity. Secondly, the District Judge took insufficient account of the primary right of the public to use the highway for free passage and re-passage and relegated this primary right to secondary status behind the respondents’ Convention rights. Thirdly, the District Judge took insufficient account of the qualifications to Convention rights in Articles 10(2) and 11(2) and treated the Convention rights as a trump card despite his statement to the contrary. Fourthly, many of the reasons enumerated by the District Judge were flawed, including his assessment that the actions were carefully targeted when their blatant purpose was to inhibit free passage, his view that the action was time-limited when the delay in removal was attributable to the respondents who intended to make removal difficult, and his reliance on the absence of complaints when police were on hand to react promptly. Fifthly, the conclusions were ones which no reasonable court could have reached.

The respondents submitted that the District Judge’s decisions were findings of fact reached on the specific facts of these particular cases with which this Court should be cautious to interfere on appeal. Articles 10 and 11 were plainly engaged, there was nothing inherently unlawful about the conduct, the District Judge gave sufficient consideration to the rights of others to pass and re-pass, he was well aware of the qualifications in Articles 10(2) and 11(2), his enumerated factors properly mirrored the criteria identified in ECHR case law, and he was entitled to undertake the required balancing exercise as he did. Similar decisions had been reached by two other tribunals at Stratford Magistrates’ Court dealing with trials arising from the same series of demonstrations, so the decision was not one that no reasonable tribunal could have reached. The fifth to eighth respondents advanced a separate jurisdictional argument that the appeal against them was initiated out of time.

The Divisional Court gave detailed guidance on the relationship between the Human Rights Act 1998 and section 137 of the Highways Act 1980. The court held that section 6(1) of the HRA imposes a duty on every public authority, including the court, to act in a way which is compatible with Convention rights. Applying the strong obligation of interpretation in section 3 of the HRA, section 137 can and must be read and given effect in a way which is compatible with Articles 10 and 11. In circumstances where there would be a breach of Articles 10 or 11, such that an interference would be unlawful under section 6(1), a person will by definition have lawful excuse under section 137. Conversely, if on the facts there is or would be no violation of the Convention rights, the person will not have the relevant lawful excuse. The court emphasised that this represents what Sedley LJ had described as a constitutional shift in the protection of freedom of expression and assembly. The court cautioned that cases decided before the HRA came into full force in October 2000 should be treated with caution in cases involving the exercise of Article 10 and 11 rights on the highway.

The court held that the usual enquiry under the HRA requires consideration of whether what the defendant did was in exercise of rights under Articles 10 or 11, whether there was interference by a public authority with that right, whether the interference was prescribed by law, whether it was in pursuit of a legitimate aim as set out in paragraph (2) of the relevant Article, and whether the interference was necessary in a democratic society to achieve that legitimate aim. That last question requires assessment of proportionality by considering whether the aim is sufficiently important to justify interference with a fundamental right, whether there is a rational connection between means and aim, whether less restrictive alternatives exist, and whether there is a fair balance between individual rights and the general interest of the community including the rights of others. In practice, the fair balance question will be of crucial importance, and the enquiry is inherently fact-specific.

The court emphasised that freedom of expression is one of the essential foundations of a democratic society. The right extends far beyond political speech and protects not only expression acceptable to others but also that which may disturb, offend or shock. It can include protests which take the form of physically impeding activities of which the protestors disapprove. However, the court noted that conduct purposely obstructing traffic is not at the core of Article 11 as protected by the Convention, which may have implications for assessment of necessity and proportionality. One reason is that the essence of these rights is the opportunity to persuade others, not to compel them. Where people are physically prevented from doing what they could otherwise lawfully do, that is not an exercise in persuasion but an act of compulsion. While not all types of speech are equally important, courts cannot adjudicate upon the validity or legitimacy of particular points of view or engage in viewpoint discrimination. Political speech must be given great weight, but the court cannot express approval or disapproval of opinions.

The court rejected the DPP’s first three grounds of appeal. The acts were done in exercise of Articles 10 and 11 rights and were capable of giving rise to lawful excuse, with the crucial question being proportionality. It was not helpful to refer to either the right to protest or the right to pass and re-pass as the primary right; rather the court must assess proportionality and whether a fair balance has been struck. The District Judge was well aware that the rights are qualified and not absolute, expressly directed himself that they should not be treated as a trump card, and as a matter of substance sought to grapple with the proportionality questions.

Addressing the standard of review, the court held that assessment of proportionality is not a question of fact but an evaluative assessment. Applying Lord Neuberger’s guidance in Re B (A Child) [2013] UKSC 33, an appellate court should not interfere with the trial judge’s conclusion on proportionality unless it decides that conclusion was wrong. The test is not whether the decision was one which no reasonable court could have reached but whether the assessment of proportionality was wrong. The court saw no principled basis for confining this approach to family law cases, as it concerns the general question of the approach to be taken by an appellate court to assessment of proportionality under the HRA.

Applying these principles, the court found that the District Judge had fallen into error in a number of respects in his approach to proportionality. The fact that the actions were peaceful, did not give rise to disorder, and involved no other criminal offences did not prevent the section 137 offence being committed. The District Judge’s assessment that the actions were carefully targeted was misguided; the fact was that other members of the public were completely prevented from using the highway to and from the Excel Centre for a significant period. This was fundamentally different from protests where some part of the highway is temporarily obstructed but passage remains possible. His analysis that the action was limited in duration displayed an erroneous approach; the obstruction did not last longer only because police intervened to arrest and remove the respondents, and if they were exercising lawful rights they should not have been arrested and might have remained much longer. The absence of complaints was of little or no relevance. The respondents’ longstanding commitment to opposing the arms trade had no relevance to proportionality and came perilously close to expressing approval of their viewpoint, which is not appropriate for a neutral court in a democratic society.

The court concluded that the District Judge’s overall assessment of proportionality was wrong. The fundamental reason was that no fair balance was struck between the rights of individuals to protest and the general interest of the community including the rights of other members of the public to pass along the highway. Rather, the ability of others to go about their lawful business was completely prevented by the physical conduct of these respondents for a significant period of time, between approximately 80 and 100 minutes. This did not strike a fair balance between the different rights and interests at stake. The court emphasised that what the answer might be in other cases where there was no complete obstruction or where it was for a very brief period would turn on particular facts.

On the separate jurisdictional issue concerning the fifth to eighth respondents, the court held that the DPP’s application to state a case was out of time. Under section 111(2) of the Magistrates’ Courts Act 1980, an application must be made within 21 days after the day on which the decision was given. The decision that started the clock was the dismissal of charges on 8 February 2018, not the handing down of written reasons on 20 February. Verdicts became fixed when pronounced publicly in court, and thereafter the District Judge was not free to change his mind. Public pronouncement provides clarity and certainty, and defendants are entitled to know definitely at the expiry of the statutory period whether a decision in their favour is to be challenged. The DPP’s application on 12 March 2018 was therefore outside the 21-day period in relation to these respondents, and the court lacked jurisdiction to consider that appeal.

In short, the appeal in relation to the first to fourth respondents was allowed because the District Judge’s assessment of proportionality was wrong in that he took into account irrelevant considerations and reached a conclusion that was unsustainable on the undisputed facts, particularly the complete blockage of the carriageway for a significant period; convictions were entered and the cases remitted for sentencing; the appeal in relation to the fifth to eighth respondents was dismissed for want of jurisdiction, the application to state a case having been made out of time.

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