R v McCafferty & Ors [2026] UKSC 20

Animal rights protesters blocked a private road leading to a Müller dairy works, preventing vehicles from entering or leaving. The Supreme Court held that obstructing passage on a private road cannot constitute public nuisance under section 78(1)(b)(ii) of the Police, Crime, Sentencing and Courts Act 2022, as the public has no right to use private ways.

Facts

The six appellants were members of ‘Animal Rebellion’ who, on 8 September 2022, staged a protest outside the Müller UK dairy works located within the Stonebridge Cross Industrial Estate near Droitwich. They either chained themselves to temporary fencing or glued themselves to the road surface of Pointon Way, the private road providing sole vehicular access to the industrial estate. For approximately four hours, no vehicles could enter or leave the Müller site, though pedestrians could pass through with permission. Pointon Way is owned by an investment company and displays a sign stating ‘PRIVATE LAND CCTV is in operation and no trespassing is permitted’.

The defendants were charged with intentionally or recklessly causing a public nuisance contrary to section 78(1)(b)(ii) of the Police, Crime, Sentencing and Courts Act 2022. The Crown expressly chose not to rely on the first limb (section 78(1)(b)(i)) which required serious harm. At trial, HHJ Jackson accepted a submission of no case to answer. The Court of Appeal reversed this ruling, and the defendants appealed to the Supreme Court.

Issues

The certified question was whether persons attending private business premises (as employees, customers, suppliers etc.) are exercising a right which may be exercised or enjoyed by the public at large within section 78(1)(b)(ii) when approaching, entering or leaving those premises. The essential question was whether there is a public right to pass over a private road (as opposed to a highway) to reach private business premises.

Arguments

The Crown, represented by David Perry KC, relied on concessions previously made by defence counsel that where a landowner permits the public generally to enter land (even conditionally), members of the public exercise a ‘right’ within section 78(1)(b)(ii). The Crown also advanced a fallback argument that even if the public had no right of entry, they had a right of egress from the site.

The defendants, represented by Benjamin Newton KC, initially maintained the concessions but were permitted to resile from them. They argued the public at large has no right of access to the Müller site itself, which is restricted to employees and business visitors.

Judgment

The Supreme Court unanimously allowed the appeal, confirming the trial judge’s ruling of no case to answer. Lord Leggatt (with whom Lord Reed, Lady Simler and Lord Doherty agreed) gave the leading judgment; Lord Sales delivered a concurring judgment.

The nature of a ‘right’ under section 78(1)(b)(ii)

The court held that the public at large are not authorised to pass along a private road such as Pointon Way. Only the owner, occupiers, and those granted a right of way or permission may lawfully use it. Any wider use by members of the public is a trespass, even if tolerated. The sign displayed confirmed no permission had been granted to the general public.

Crucially, the court drew a legal distinction between a right (an interest in land which others owe a duty not to interfere with) and a mere licence or permission (dependent on the continuing consent of the owner and revocable). The majority held the term ‘right’ in section 78(1)(b)(ii) clearly does not include a licence or permission. Even if ambiguous, the principle that penal provisions should be construed narrowly required this interpretation, citing Tuck & Sons v Priester, Sweet v Parsley and R v Allen.

Historical and legislative context

The court traced the historical origins of public nuisance to the obstruction of highways. The essential characteristic of a highway is that it is a way over which all the public have a right to pass freely. The two limbs of section 78 codify the common law distinction: the first limb addresses conduct causing serious harm; the second limb addresses obstruction of rights belonging to the public at large (principally the right of passage along a highway, together with rights on navigable rivers and to fish in tidal waters).

The Law Commission report

The court rejected paragraph 3.45 of the Law Commission’s 2015 report, which had suggested ‘rights’ should be interpreted broadly to include a ‘general right of the public to go about its business without interference or annoyance’. The majority found this premise mistaken, unsupported by authority, insufficiently precise for a criminal offence, and inconsistent with the Law Commission’s own recommendation that the first limb be limited to serious harm. Lord Sales concurred but considered the ambiguity greater, applying Pepper v Hart criteria and finding the Law Commission’s statements insufficiently clear to fix a particular meaning.

The Court of Appeal’s examples

The court rejected the Court of Appeal’s examples (music concerts, bus/train travel, permissive paths) as failing to distinguish between a licence and a genuine public right. Attendance at a concert on private land, even with public admission, does not involve exercising a public right within section 78(1)(b)(ii).

The right of egress argument

The Crown’s fallback argument was rejected. A trespasser does not cease to be a trespasser when heading towards the exit. Whilst false imprisonment is a distinct wrong, partial interference with movement (as here) does not amount to imprisonment (Bird v Jones).

Implications

The decision establishes that section 78(1)(b)(ii) of the 2022 Act applies only where the obstructed right is a genuine right of the public at large, principally the right to pass along a highway, or analogous rights on navigable rivers and to fish in tidal waters. A licence or permission granted by a landowner, however widely extended, does not create such a right.

The practical significance is considerable for prosecutions arising from protest activity. Where protesters obstruct passage on private land or private roads, the second limb of section 78 will not be engaged. Prosecutors must instead rely on the first limb (requiring proof of serious harm or risk thereof) or alternative offences such as aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994 (see DPP v Bailey).

The judgment reinforces the principle that penal provisions must be interpreted narrowly, particularly where imprisonment may follow, and cautions against relying on Law Commission commentary as an aid to interpretation absent clear satisfaction of Pepper v Hart-type conditions. The decision matters to protesters, landowners, prosecutors, and criminal practitioners, clarifying the scope of a relatively new statutory offence and preserving a coherent distinction between the two limbs of section 78. As the Crown had chosen to proceed only under the second limb and did not apply to amend the indictment, the defendants were ordered to be acquitted.

Verdict: Appeal allowed. The Supreme Court confirmed the trial judge’s ruling that there was no case to answer and ordered that the defendants be acquitted of the offence under section 78(1)(b)(ii) of the Police, Crime, Sentencing and Courts Act 2022.

Source: R v McCafferty & Ors [2026] UKSC 20