Kieron Spoors: A Case Note and Analysis – Director of Public Prosecutions v Ziegler and others [2021] UKSC 23

Introduction

Director of Public Prosecutions v Ziegler and others [2021] UKSC 23 (“Ziegler”) concerned a protest against the Defence and Security Equipment International (DSEI) arms fair, one of the world’s largest arms fairs. The Appellants were strongly opposed to the arms trade and the fair. They laid down on the road leading to the Excel Centre and attached themselves to lockboxes. The Appellants were arrested and charged with “wilful obstruction of a highway without lawful authority or excuse”, contrary to section 137(1) of the Highways Act 1980 (“HwA”). At trial, the first-instance judge considered the Appellants’ rights under Articles 10-11 of the European Convention of Human Rights (“ECHR”). These Articles guarantee “freedom of expression” and “freedom of peaceful assembly,” respectively. The trial judge found that the “lawful excuse” defence was made out, and the Appellants were acquitted.

Ziegler is the latest case to sit at the difficult intersection between criminal law on one hand and freedom of expression and peaceful assembly on the other. It is made more significant following the ‘Kill the Bill’ protests against the Police, Crime, Sentencing and Courts Bill 2021, which purports to restrict the right to protest severely. 

Divisional Court Judgement

The Director of Public Prosecutions (“Respondent”) appealed to the Divisional Court (“DC”) ([2019] EWHC 71 (Admin)). The DC observed that it had a duty, where possible, to interpret s.137 compatibly with ECHR rights ([59] – [61]). In the Court’s view, a person would have a “lawful excuse” for breaching s.137, if Arts.10 or 11 ECHR were engaged ([62]). The usual test under the Human Rights Act 1998 (“HRA”) applied: there would be a breach of Arts.10 or 11, unless the inference by the public authority was (a) prescribed by law, (b) in pursuit of a legitimate aim, and (c) necessary in a democratic society ([63]). The final step required a proportionality assessment, balancing the individual’s rights and the general interest of the public ([64] – [65]). For Lord Justice Singh and Mrs. Justice Farbey, whilst ECHR rights were not trump cards in this case, they were more than “significant considerations.”

The DC noted that the proportionality assessment was not a question of fact. It was an evaluative assessment as outlined in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 (“Re B”) ([100]). The test for appellate courts to answer was whether the assessment as to proportionality made by the lower court was “wrong” ([104]) following Lord Neuberger’s analysis in Re B.

On the facts, the DC determined that the district judge had erred in assessing proportionality. Firstly, the fact that the protects had been peaceful had not prevented the s.137 offence from having been committed ([111]). Secondly, it was highly relevant that people had been completely obstructed from using the highway for a significant time ([112] & [114]). Thirdly, it was neither relevant that no one complained about the protest ([115]), nor that the protestors were not random troublemakers ([116]). In those circumstances, the judge failed to balance between the right to protest and the general interest ([117]). The DC allowed the appeal and directed that conviction be entered ([129] & [137]).

The main issues before the Supreme Court

On appeal ([2021] UKSC 23), there were two questions that the Supreme Court (“SC”) had to address:

  1. What is the test to be applied to an assessment of the trial court, regarding the statutory defence of lawful excuse, when Convention rights are engaged in a criminal matter?
  2. Can deliberate physically obstructive conduct constitute a lawful excuse under s.137, where the impact of the deliberate obstruction on other highway users is more than minimal and prevents them from passing along the highway?

By a majority (Lord Hamblen & Lord Stephen, with Lady Arden concurring), the SC allowed the appeal and directed that the dismissal of charges be restored. Lord Sales, with whom Lord Hodge agreed, gave a judgement dissenting in part.

Decision of the Court

(i) Appellate test

Lords Hamblen and Stephens observed that, for appeals by way of case stated in criminal proceedings, a conclusion would be open to challenge where it is one which no reasonable court could have reached ([40]). The DC was incorrect in deciding that there is a different test where there is an assessment of proportionality ([42]).

The SC held that the Edwards v Bairstow [1956] AC 14 (“Edwards”) test is applicable. This test stands for the proposition that an appeal will be allowed where (a) there is an error of law material to the decision reached, or (b) the decision is one which no reasonable court could have reached. Where the statutory defence depends upon an assessment of proportionality, there may be an appeal if there is a flaw in the reasoning, undermining the conclusion on proportionality ([54]).

(ii) Lawful excuse under s.137

On the second question, Lords Hamblen and Stephens noted that there should be a “certain degree of tolerance” to any disruption to ordinary life caused by the exercise of rights under Arts.10-11 ECHR ([68]). Intentional action, that is more than de minimis, does not automatically mean that any interference was proportionate. There must be an assessment of the facts to determine whether any interference was “necessary in a democratic society” ([70]). The majority identified a non-exhaustive list of factors to be considered in an evaluation of proportionality. These factors included the precise location of the protestors and the duration of the protest ([71] – [78]).

Lords Hamblen and Stephens then observed that the district judge was not in error in considering the intention for a peaceful gathering, the lack of disorder arising from the protest, and the commission of other offences ([80]). For their Lordships, the issue was not the ‘proportionality’ of the police’s actions in arresting the Appellants. It was about proportionality in the context of the alleged commission of an offence under s.137 HA. Thus, there was no error in the judge’s conclusion on proportionality ([87]).

Lord Sales’ dissent

On the first question – concerning the correct appellate test – the minority would uphold the DC’s decision ([120] & [153]). For Lords Sales and Hodge, it was not coherent to say that the appellate court should apply a different approach for appeals by way of case stated compared with other situations. The legal rule was the same and was unaltered by the appeal’s procedural route ([134]).

Turning to the second question – on the question of “lawful excuse” – the minority disagreed with Lords Hamblen and Stephens in their criticisms of the DC’s judgement. The DC was right to identify errors by the district judge’s assessment of proportionality ([122]). However, Lords Sales and Hodge observed that the DC’s proportionality assessment was also flawed. The facts did not allow the DC to conclude that the police action was proportionate. Any decision called for a thorough assessment of the disruption likely to be achieved, the viability of alternative routes to the Excel Centre, and the availability of other avenues to express their opinions ([150]). The minority would allow the appeal, but would substitute the convictions for an order of remittal to the magistrate’s court to examine further the facts ([151] & [154]).

Analysis

The judgement in Ziegler provides welcome clarification. It makes it expressly clear that deliberate physically obstructive conduct is, in principle, capable of being something for which there is a “lawful excuse” under s.137 HwA. There was no disagreement in the SC that neither the protestor’s rights, nor the general interest, trumped one another. It was held that the proportionality assessment is a holistic one. As Lord Sales (at [126]) put it, “Did the arrest and removal of the protesters strike a fair balance between the rights and interests at stake?”

The difference of opinion centred on the correctness of the district judge’s decision. The majority provided a more pragmatic assessment of the judge’s reasoning. They were right to highlight the narrow approach taken by the DC to the factors that the district judge had considered (see [80]). The minority believed that the judge had failed to consider the blockage of the dual carriageway ([143]) and that the protest would have been longer if the police had not intervened ([144] – [145]). However, as Lady Arden noted, the prosecution did not provide evidence that alternative entry to the Centre was prevented ([110]), and the only time relevant for s.137 HA was the time when the highway was obstructed ([111] – [113]).  

There was also disagreement regarding the test to be applied to an assessment of the trial court in this particular context. Although uniformity has its appeal, the majority’s approach is to be preferred. Lady Arden remarked that courts must proceed carefully in these situations, unless there is a clear error of law ([102]).

Conclusion

Ziegler is a reminder that balancing freedom of expression and freedom of assembly with the general interest is a difficult exercise. This will not be made any easier with the Police, Crime, Sentencing and Courts Bill 2021. Its enactment would constitute an inroad into the rights of protestors, creating a narrative that favours prioritising the public interest over individual rights. Only time will tell if that concern is realised.

Image credit: Steve Eason, hosted under the CC BY-NC 2.0 license.

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