Director of Public Prosecutions v Ziegler & Ors (Rev1) [2021] UKSC 23

Protesters blocked a road leading to an arms fair by lying down with lock boxes. They were charged with wilful obstruction of a highway. The district judge acquitted them, finding their peaceful, targeted protest was protected by articles 10 and 11 ECHR. The Supreme Court upheld the acquittals, confirming deliberate obstruction can constitute lawful excuse if proportionate.

Facts

In September 2017, the appellants protested against the Defence and Security International (DSEI) arms fair at the Excel Centre in London. They lay on one carriageway of an approach road, attaching themselves to lock boxes designed to delay their removal. Police arrested them within minutes, but it took approximately 90 minutes to remove them due to the box construction. The appellants were charged with wilful obstruction of a highway contrary to section 137 of the Highways Act 1980.

Trial Proceedings

District Judge Hamilton acquitted the appellants, finding that having regard to their rights under articles 10 and 11 ECHR, the prosecution failed to prove the obstruction was unreasonable. He considered factors including the peaceful nature of the protest, its targeted character, limited duration, the subject matter being of general public concern, and the absence of complaints.

Issues

Two questions of law were certified: (1) What test should an appellate court apply when reviewing a trial court’s assessment of lawful excuse where Convention rights are engaged? (2) Can deliberate physically obstructive conduct by protesters constitute lawful excuse under section 137 where the obstruction is more than de minimis?

Judgment

Majority Judgment (Lord Hamblen and Lord Stephens)

The majority held that the appellate test remains that established in Edwards v Bairstow: an appeal will succeed where there is an error of law on the face of the case, or where the decision is one no reasonable court properly directed could reach. However, following In re B as clarified by later cases, an appeal lies if there is an error or flaw undermining the cogency of the proportionality conclusion.

The determination of the proportionality of an interference with ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case.

On the second issue, the majority confirmed that deliberate obstruction can constitute lawful excuse:

It is clear from those authorities that intentional action by protesters to disrupt by obstructing others enjoys the guarantees of articles 10 and 11, but both disruption and whether it is intentional are relevant factors in relation to an evaluation of proportionality.

The majority found no error in the district judge’s reasoning that undermined his proportionality conclusion. The protest was peaceful, targeted at the arms fair, of limited duration on a commercial road with alternative routes available, concerned matters of public importance, and caused no proven substantial disruption.

Concurring Judgment (Lady Arden)

Lady Arden agreed with the outcome but emphasised the distinction between the standard of review for proportionality assessments (the R (AR) refinement of In re B) and factual findings (where Edwards v Bairstow applies). She stressed that convictions can only be based on actual obstruction, not intended longer duration.

Dissenting Judgment (Lord Sales, Lord Hodge agreeing)

Lord Sales disagreed on the first issue, holding that the In re B test should apply to proportionality assessments in all contexts. He identified errors in the district judge’s reasoning regarding the complete obstruction of the carriageway and the limited duration factor. However, he agreed the Divisional Court erred by entering convictions rather than remitting for further fact-finding.

Implications

This judgment confirms that peaceful protest involving deliberate obstruction of highways can be lawful under section 137 when articles 10 and 11 rights are engaged. Courts must conduct a fact-sensitive proportionality assessment considering factors including: the peaceful nature of the protest, duration, location, targeting, availability of alternative routes, the importance of the cause, and actual disruption caused. The state must show tolerance towards peaceful gatherings, and the prosecution bears the burden of proving disproportionality to the criminal standard.

Verdict: Appeal allowed. The Divisional Court’s order directing convictions was set aside, and the district judge’s dismissal of the charges was restored. The appellants’ acquittals stood.

Source: Director of Public Prosecutions v Ziegler & Ors (Rev1) [2021] UKSC 23