Time for change: protesters and obstruction of the highway
Michael Orlik assesses the changing laws and regulations over protestors obstructing highways.
On 5 September 2017, protesters against the arms industry lay down in the road leading to East London’s Excel Centre, where an arms fair was being held. They were arrested and prosecuted; however, the district judge dismissed the prosecutions. The prosecution appealed to the Divisional Court which ordered convictions to be recorded. On further appeal. the Supreme Court held the district judge was right, and that his dismissal should be reinstated.
The Human Rights Act (HRA) 1998 has embodied the European Convention of Human Rights (ECHR) into our law. The Supreme Court said the previous case law will need to be read in light of this legislation. What activities may lawfully be carried out on the highway, apart from passing and repassing, has troubled the courts for over a century. Judges have been gradually extending the range of activities they consider can be lawfully carried out on the highway.
In Nagy v Weston  1 All ER 78, the Divisional Court considered the case of a hotdog seller in Oxford. He had placed his van at the kerbside on a wide road. After 5 minutes, he was arrested and later convicted by Magistrates of obstructing the highway contrary to the Highways Act 1959, section 121.
Section 121 provided: “If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he shall be guilty of an offence…”. The Divisional Court upheld the conviction. Lord Parker, then Lord Chief Justice, said in considering the phrase “without lawful authority or excuse”:
“I think that excuse and reasonableness are really the same ground but it is quite true that it has to be proved that there was no lawful authority. It is undoubtably true… there must be proof that the user in question was an unreasonable use. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all circumstances”.
An unreasonable use
He held the Magistrates were correct in finding the highway was obstructed because other traffic could not pass through the place where the hotdog van was standing and that, even if it had been there for only 5 minutes, that was an unreasonable use.
Section 137 of the Highways Act 1980 is the current statutory provision governing obstruction of the highway and is in exactly the same terms as section 121 of the 1959 Act. In 1985, animal rights protesters were convicted of an offence against section 137 by Magistrates because they had stood in the city centre outside a shop which sold furs offering leaflets and displaying banners for animal rights. The Divisional Court quashed the convictions because the Magistrates had not considered whether the use was reasonable.
Mr Justice Otton said: “as long as all is done peaceably and in good order, without threats or incitement to violence or obstruction to traffic, it is not prohibited.”.
The last case to reach the House of Lords before the HRA 1998 came into force was Director of Public Prosecutions v Jones  2 AC 240. In that case, demonstrators on the grass verge of the A303 at Stonehenge were convicted by Magistrates of a “trespassory assembly” contrary to the Public Order Act 1986. The Crown Court quashed the convictions. The Director of Public Prosecutions appealed against the decision of the Crown Court to the House of Lords.
The Lord Chancellor, giving the decision of the majority of the House of Lords said:
“I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, providing the activity in question does not amount to a public or private nuisance and does obstruct the highway by unreasonably impeding the primary right of the public to pass and repass within these qualifications there is a public right of peaceful assembly on the highway.”
The decision of the Crown Court to quash the convictions was upheld. Even so, this was a majority decision and two of the law lords did not agree that there was any right of peaceful assembly on the highway.
Right of peaceful assembly
In DPP v Ziegler  UKSC 23, the district judge had held the right to freedom of peaceful assembly, protected by article 11 (1) of the Convention of Human Rights, was engaged and he dismissed the charge of obstructing the highway to the arms fair. Article (11)(2) provides no restrictions should be placed on the freedom of assembly
“Other than such as are prescribed by law and are necessary in a democratic society... for the prevention of disorder… or for the protection of the rights and freedoms of others”.
The central issue was whether arresting and charging the demonstrators was a proportionate
response on the part of the police in preventing disorder or protecting the freedom of others. The district judge held that it was not; however, the Divisional Court found the district judge had erred in his assessment of proportionality and directed convictions be recorded.
The question put to the Supreme Court was: “is deliberate physically obstructive conduct by protesters capable of constituting a lawful excuse for the purposes of section 137 of the 1980 Act where the impact of the deliberate obstruction on highway users is more than de minimis and prevents them, or is capable of preventing them, from passing along the highway?”
In considering the issue of proportionality, the district judge took into account a number of factors. He found the actions of the demonstrators were peaceful and did not give rise to any disorder. The defendants’ actions were carefully targeted and aimed only at obstructing vehicles headed to the arms fair.
He found the action was limited in duration and no one had made a complaint to the police. He also found only one side of the dual carriageway was obstructed, the way into the fair, and there was an alternative route. The Supreme Court agreed with the district judge that all these factors were relevant in assessing proportionality.
The district judge further found the marketing of arms was a matter of general concern. Both the Divisional Court and the Supreme Court agreed this was a relevant factor in assessing proportionality. The Supreme Court also held that in a criminal case, the prosecution must establish to the criminal standard all the facts upon which it relies, and this meant it had to prove to that standard that the interference with the right of assembly was proportionate.
The Supreme Court concluded deliberately physically obstructive conduct on the highway is capable of constituting a lawful excuse for the purpose of section 137. Each case would be fact sensitive. The Appeal Courts should not interfere with the assessment of proportionality by the trial court, unless it has taken into account irrelevant matters or reached a conclusion that no reasonable person could have reached.
Apart from the interpretation of “lawful excuse” in section 137, there is another problem in enforcing the section. The only penalty for contravening the section is a maximum fine of £1,000. An alternative would be to consider charging the common law offence of public nuisance because obstruction of the highway has been held to be a public nuisance. Public nuisance is triable either way and the Crown Court may impose unlimited fines or up to five years’ imprisonment.
In a report some years ago, the Law Commission recognised the common law offence of public nuisance is useful and does cover a number of situations not otherwise covered in criminal law. The Commission recommended public nuisance be made into a statutory offence. This is now being enacted into the Police Crime Sentencing and Courts Bill. If the bill becomes law a further article will examine how far the statutory offence of public nuisance can resolve the problems of Ziegler and enforcement in relation to obstruction of the highway.
Michael Orlik is a solicitor specialising in highway law at Lodders Solicitors lodders.co.uk