Director of Public Prosecutions v Ziegler & Ors [2019] EWHC 71 (Admin), [2020] QB 253, [2019] 2 WLR 1451 , [2019] 1 CrAppR 32
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These were appeals by way of case stated in relation to two separate trials, Ziegler & Others and Cooper & Others. All defendants faced a charge under s137 of the Highways Act 1980, obstruction of the highway relating to the biennial Defence and Security International (DSEI) fair at the Excel Centre in East London.
In Ziegler 4 defendants lay in the middle of an approach road leading to the Excel Centre, locking their arms onto a bar in the middle of a box, designed to make disassembly, removal and arrest more difficult. They were arrested and removed to a police station about 90 minutes after their arrival during which time one carriageway was entirely blocked.
In Cooper 4 defendants suspended themselves by ropes from a bridge above both carriageways a short distance from the centre. The road was closed for safety reasons, and they were removed after 78 minutes. On both occasions, removal took place after the police undertook a process known as the “5 stage process” to try and persuade them to remove themselves voluntarily.
The only dispute at trial was “lawful excuse” which required an assessment of the reasonableness of the defendants’ conduct. The defendants described their actions as “carefully targeted” and most accepted their actions may have caused disruption, but it was common ground, not all access routes were blocked. The District Judge dismissed the charges against all defendants. The question of law in the case stated was whether he was entitled to reach the conclusion he did and so was correct to dismiss the charges.
The DJ’s reasoning was there was no clear guidance or authority on the impact of Articles 19 and 11 but Westminster City Council v Haw [2002] EWHC 2073 QB was authority for the proposition that an unauthorised demonstration that constitutes a prima facie obstruction of the highway will still be reasonable if it is in pursuance of the rights set out in Articles 10 and 11 of the ECHR. He also noted it was peaceful; there was no disorder, there was no other criminality (such as abuse of the police), it was carefully targeted, limited in duration, there was no complaint and the action related to “a matter of general concern”.
The Crown appealed on the basis that there was no question of the engagement of Convention rights, the lawful excuse component of s137 embraces “activities otherwise lawful in themselves”, and there weren’t. If the use of the highway was lawful there was no account of the ‘primary right’ of the public to use the highway and the express purpose was to disrupt that passage. The DJ took no account of the qualifications to the Convention rights in Articles 10(2) and 11(2), the reasons in support of the decision were misguided, and the conclusions were one which no reasonable court could have reached.
The High Court referred to Laporte v Chief Constable of Gloucestershire [2007] UKHL 55, and in their judgment, it was perfectly possible to interpret s137 in a way compatible with the rights in Articles 10 and 11, “in circumstances where there would be. Breach of Articles 10 or 11, such that an interference would be unlawful under s 6(1) of the HRA, a person will by definition have ‘lawful excuse’.” The following questions needed to be considered:
1. Is what the defendant did in exercise of one of his rights in Articles 10 or 11?
2. If so, is there an interference by a public authority with that right?
3. If there is an interference, is it “prescribed by law”?
4. If so, is the interference in pursuit of a legitimate aim as set out in para. (2) of Article 10 or Article 11, for example the protection of the rights of others?
5. If so, is the interference “necessary on a democratic society” to achieve that legitimate aim?
Q5 turns on the following subsections:
1. Is the aim sufficiently important to justify interference with a fundamental right?
2. Is there a rational connection between the means chosen and the aim in view?
3. Are there less restrictive alternative means to achieve that aim?
4. Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?
In essence, the lawful exercise of Convention Rights in Articles 10 and 11 will mean that the prosecution have failed to prove that the defendant’s use of the highway was “unreasonable” and the defendant will have “lawful excuse” for the obstruction of the highway. The focus is not on “what was reasonable in all the circumstances” but whether an interference with the rights in Articles 10 and 11 is proportionate. If it is not, the defendant will have been acting reasonable and will have lawful excuse under s137. If the interference would be proportionate, the defendant will have been acting unreasonably and will not have that lawful excuse.
The assessment of proportionality is better described as an “evaluative assessment”, the Court concluded that the test to be applied is not whether the first instance court’s conclusion was one which no reasonable court could reach but whether that court’s assessment as to proportionality was “wrong”.
Held: the DJ did fall into error in a number of respects in his approach to the assessment of proportionality and, at the end of the day, was wrong. The fundamental reason being that there was no fair balance struck in these cases between the rights of the individuals to protest and the general interest of the community, including the rights of other members of the public to pass along the highway. The appeal was therefore allowed subject to an issue with four of the original defendants.
The charges against the defendants in Cooper were dismissed on 8 February, but the DJ reserved his written reasons which he handed down on 20 February. He stated that the time for appeal ran from the later date. The High Court disagreed saying the “question of when time starts to run is a question of law to be determined by reference to the statute”. The decision of the DJ started the clock on 8th February, by handing down his reasons at a later date he was not adjourning his decision but supplying reasons for it. The Court, therefore, lacked jurisdiction to consider the DPP’s appeal in relation those four defendants so that appeal was dismissed. Convictions were entered for the defendants in Ziegler and the cases remitted for the purpose of sentencing.