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URL: http://www.bailii.org/uk/cases/UKSC/2021/23.html
Cite as: [2021] 3 WLR 179, [2021] UKSC 23

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Press Summary     Issues & Facts

Trinity Term

[2021] UKSC 23

On appeal from: [2019] EWHC 71 (Admin)

 

 

 

JUDGMENT

 

 

Director of Public Prosecutions (Respondent) v Ziegler and others (Appellants)

 

 

before

 

Lord Hodge, Deputy President

Lady Arden

Lord Sales

Lord Hamblen

Lord Stephens

 

 

 

JUDGMENT GIVEN ON

 

 

25 June 2021

 

 

Heard on 12 January 2021


 

Appellants

 

Respondent

Henry Blaxland QC

 

John McGuinness QC

Blinne Ni Ghrálaigh

 

 

Owen Greenhall

 

 

(Instructed by Hodge Jones & Allen LLP (London))

 

(Instructed by CPS Appeals and Review Unit)

 

 

 


LORD HAMBLEN AND LORD STEPHENS:

1.         Introduction

1.                  In September 2017, the biennial Defence and Security International (DSEI) arms fair was held at the Excel Centre in East London. In the days before the opening of the fair equipment and other items were being delivered to the Excel Centre. The appellants were strongly opposed to the arms trade and to the fair and on Tuesday 5 September 2017 they took action which was intended both to draw attention to what was occurring at the fair and also to disrupt deliveries to the Excel Centre.

2.                  The action taken consisted of lying down in the middle of one side of the dual carriageway of an approach road leading to the Excel Centre (the side for traffic heading to it). The appellants attached themselves to two lock boxes with pipes sticking out from either side. Each appellant inserted one arm into a pipe and locked themselves to a bar centred in the middle of one of the boxes.

3.                  There was a sizeable police presence at the location in anticipation of demonstrations. Police officers approached the appellants almost immediately and went through the “5 stage process” to try and persuade them to remove themselves voluntarily from the road. When the appellants failed to respond to the process they were arrested. It took, however, approximately 90 minutes to remove them from the road. This was because the boxes were constructed in such a fashion that was intentionally designed to make them hard to disassemble.

4.                  The appellants were charged with wilful obstruction of a highway contrary to section 137 of the Highways Act 1980 (“the 1980 Act”). On 1-2 February 2018, they were tried before District Judge Hamilton at Stratford Magistrates’ Court. The district judge dismissed the charges, handing down his written judgment on 7 February 2018. Having regard to the appellants’ right to freedom of expression under article 10 of the European Convention on Human Rights (“ECHR”) and their right to freedom of peaceful assembly under article 11 ECHR, the district judge found that “on the specific facts of these particular cases the prosecution failed to prove to the requisite standard that the defendants’ limited, targeted and peaceful action, which involved an obstruction of the highway, was unreasonable”.

5.                  The respondent appealed by way of case stated to the Divisional Court, Singh LJ and Farbey J. Following a hearing on 29 November 2019, the Divisional Court handed down judgment on 22 January 2019, allowing the appeal and directing that convictions be entered and that the cases be remitted for sentencing: [2019] EWHC 71 (Admin); [2020] QB 253. On 21 February 2019, the appellants were sentenced to conditional discharges of 12 months.

6.                  On 8 March 2019, the Divisional Court dismissed the appellants’ application for permission to appeal to the Supreme Court, but certified two points of law of general public importance. On 3 December 2019, a panel of the Supreme Court (Lord Kerr, Lord Hodge and Lady Arden) granted permission to appeal.

7.                  The parties agreed in the statement of facts and issues that the issues in the appeal, as certified by the Divisional Court as points of law of general public importance, are:

(1)       What is the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of “lawful excuse” when Convention rights are engaged in a criminal matter?

(2)       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 other highway users is more than de minimis, and prevents them, or is capable of preventing them, from passing along the highway?

2          The legal background

8.                  Section 137 of the 1980 Act provides:

“137.  Penalty for wilful obstruction

(1)       If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.”

9.                  In Nagy v Weston [1965] 1 WLR 280 it was held by the Divisional Court that “lawful excuse” encompasses “reasonableness”. Lord Parker CJ said at p 284 that these are “really the same ground” and that:

“… there must be proof that the use 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 upon all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and of course whether it does in fact cause an actual obstruction as opposed to a potential obstruction.”

10.             In cases of obstruction where ECHR rights are engaged, the case law preceding the enactment of the Human Rights Act 1998 (“the HRA”) needs to be read in the light of the HRA.

11.             Section 3(1) of the HRA provides:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

12.             Section 6 of the HRA makes it unlawful for a public authority to act in a way which is incompatible with Convention rights. The courts are public authorities for this purpose (section 6(3)(a)), as are the police.

13.             The Convention rights are set out in Schedule 1 of the HRA 1998. The rights relevant to this appeal are those under article 10 ECHR, the right to freedom of expression, and article 11 ECHR, the right to freedom of peaceful assembly.

14.             Article 10 ECHR materially provides:

“(1)     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

(2)       The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

15.             Article 11 ECHR materially provides:

“(1)     Everyone has the right to freedom of peaceful assembly …

(2)       No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. …”

16.             In the present case the Divisional Court explained how section 137(1) of the 1980 Act can be interpreted compatibly with the rights in articles 10 and 11 ECHR in cases where, as was common ground in this case, the availability of the statutory defence depends on the proportionality assessment to be made. It stated as follows:

“62.     The way in which the two provisions can be read together harmoniously is that, in circumstances where there would be a breach of articles 10 or 11, such that an interference would be unlawful under section 6(1) of the HRA, a person will by definition have ‘lawful excuse’. Conversely, if on the facts there is or would be no violation of the Convention rights, the person will not have the relevant lawful excuse and will be guilty (subject to any other possible defences) of the offence in section 137(1).

63.       That then calls for the usual enquiry which needs to be conducted under the HRA. It requires consideration of the following questions:

(1)       Is what the defendant did in exercise of one of the 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 paragraph (2) of article 10 or article 11, for example the protection of the rights of others?

(5)       If so, is the interference ‘necessary in a democratic society’ to achieve that legitimate aim?

64.       That last question will in turn require consideration of the well-known set of sub-questions which arise in order to assess whether an interference is proportionate:

(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 available 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?

65.       In practice, in cases of this kind, we anticipate that it will be the last of those questions which will be of crucial importance: a fair balance must be struck between the different rights and interests at stake. This is inherently a fact-specific enquiry.”

17.             Guidance as to the limits to the right of lawful assembly and protest on the highway is provided in the Court of Appeal decision in City of London Corpn v Samede [2012] EWCA Civ 160; [2012] PTSR 1624, a case involving a claim for possession and an injunction in relation to a protest camp set up in the churchyard of St Paul’s Cathedral. Lord Neuberger of Abbotsbury MR gave the judgment of the court, stating as follows at paras 39-41:

“39.     As the judge recognised, the answer to the question which he identified at the start of his judgment [the limits to the right of lawful assembly and protest on the highway] is inevitably fact sensitive, and will normally depend on a number of factors. In our view, those factors include (but are not limited to) the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public.

40.       The defendants argue that the importance of the issues with which the Occupy Movement is concerned is also of considerable relevance. That raises a potentially controversial point, because as the judge said, at para 155:

‘it is not for the court to venture views of its own on the substance of the protest itself, or to gauge how effective it has been in bringing the protestors’ views to the fore. The Convention rights in play are neither strengthened nor weakened by a subjective response to the aims of the protest itself or by the level of support it seems to command … the court cannot - indeed, must not - attempt to adjudicate on the merits of the protest. To do that would go against the very spirit of articles 10 and 11 of the Convention … the right to protest is the right to protest right or wrong, misguidedly or obviously correctly, for morally dubious aims or for aims that are wholly virtuous.’

41.       Having said that, we accept that it can be appropriate to take into account the general character of the views whose expression the Convention is being invoked to protect. For instance, political and economic views are at the top end of the scale, and pornography and vapid tittle-tattle is towards the bottom. In this case the judge accepted that the topics of concern to the Occupy Movement were ‘of very great political importance’: para 155. In our view, that was something which could fairly be taken into account. However, it cannot be a factor which trumps all others, and indeed it is unlikely to be a particularly weighty factor: otherwise judges would find themselves according greater protection to views which they think important, or with which they agree. As the Strasbourg court said in Kuznetsov v Russia, para 45:

‘any measures interfering with the freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles - however shocking and unacceptable certain views or words used may appear to the authorities - do a disservice to democracy and often even endanger it. In a democratic society based on the rule of law, the ideas which challenge the existing order must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means …’

The judge took into account the fact that the defendants were expressing views on very important issues, views which many would see as being of considerable breadth, depth and relevance, and that the defendants strongly believed in the views they were expressing. Any further analysis of those views and issues would have been unhelpful, indeed inappropriate.”

3          The case stated

18.             The outline facts as found in the case stated have been set out in the Introduction. The district judge’s findings followed a trial in which almost all of the prosecution case was in the form of admissions and agreed statements. Oral evidence about what occurred was given by one police officer and police body-worn video footage was also shown.

19.             All the appellants gave evidence of their long-standing opposition to the arms trade and of their belief that there was evidence of illegal activity taking place at the DSEI arms fair, which the Government had failed to take any effective action to prevent. The district judge found at para 16 of the case stated that:

“All … defendants described their action as ‘carefully targeted’ and aimed at disrupting traffic headed for the DSEI arms fair. Most but not all of the defendants accepted that their actions may have caused disruption to traffic that was not headed to the DSEI arms fair. Conversely it was not in dispute that not all access routes to the DSEI arms fair were blocked by the defendants’ actions and it would have been possible for a vehicle headed to the DSEI arms fair but blocked by the actions to have turned around and followed an alternative route.”

20.             The district judge identified the issue for decision at para 37 of the case stated, as being:

“… whether the prosecution had proved that the demonstrations in these two particular cases were of a nature such that they lost the protections afforded by articles 10 and 11 and were consequently unreasonable obstructions of the highway.”

21.             He recognised that this required an assessment of the proportionality of the interference with the appellants’ Convention rights, in relation to which he took into account the following points (at para 38 of the case stated):

“a.       The actions were entirely peaceful - they were the very epitome of a peaceful protests [sic].

b.         The defendants’ actions did not give rise either directly or indirectly to any form of disorder

c.         The defendants’ behavior [sic] did not involve the commission of any criminal offence beyond the alleged offence of obstruction of the highway which was the very essence of the defendants’ protest. There was no disorder, no obstruction of or assault on police officers and no abuse offered.

d.         The defendants’ actions were carefully targeted and were aimed only at obstructing vehicles headed to the DSEI arms fair … I did hear some evidence that the road in question may have been used, at the time, by vehicles other than those heading to the arms fair, but that evidence was speculative and was not particularly clear or compelling. I did not find it necessary to make any finding of fact as to whether ‘non-DSEI traffic’ was or was not in fact obstructed since the authorities cited above appeared to envisage ‘reasonable’ obstructions causing some inconvenience to the ‘general public’ rather than only to the particular subject of a demonstration …

e.         The action clearly related to a ‘matter of general concern’ …namely the legitimacy of the arms fair and whether it involved the marketing and sale of potentially unlawful items (eg those designed for torture or unlawful restraint) or the sale of weaponry to regimes that were then using them against civilian populations.

f.          The action was limited in duration. I considered that it was arguable that the obstruction for which the defendants were responsible only occurred between the time of their arrival and the time of their arrests - which in both cases was a matter of minutes. I considered this since, at the point when they were arrested the defendants were no longer ‘free agents’ but were in the custody of their respective arresting officers and I thought that this may well have an impact on the issue of ‘wilfulness’ which is an essential element of this particular offence. The prosecution in both cases urged me to take the time of the obstruction as the time between arrival and the time when the police were able to move the defendants out of the road or from below the bridge. Ultimately, I did not find it necessary to make a clear determination on this point as even on the Crown’s interpretation the obstruction in Ziegler lasted about 90-100 minutes …

g.         I heard no evidence that anyone had actually submitted a complaint about the defendants’ action or the blocking of the road. The police’s response appears to have been entirely on their own initiative.

h.         Lastly, although compared to the other points this is a relatively minor issue, I note the longstanding commitment to opposing the arms trade that all four defendants demonstrated. For most of them this stemmed, at least in part, from their Christian faith. They had also all been involved in other entirely peaceful activities aimed at trying to halt the DSEI arms fair. This was not a group of people who randomly chose to attend this event hoping to cause trouble.”

22.             The district judge’s conclusion at para 40 of the case stated was that on these facts the prosecution had failed to prove to the requisite standard that the obstruction of the highway was unreasonable and he therefore dismissed the charges. The question for the High Court was expressed at para 41 of the case stated as follows:

“The question for the High Court therefore is whether I was correct to have dismissed the case against the defendants in these circumstances. The point of law for the decision of the High Court, is whether, as a matter of law, I was entitled to reach the conclusions I did in these particular cases.”

4          The decision of the Divisional Court

23.             It was common ground between the parties prior to the hearing of the appeal that the appropriate appellate test on an appeal by way of case stated was whether the district judge had reached a decision which it was not reasonably open to him to reach. That is the conventional test on an appeal by way of case stated, as applied in many Divisional Court decisions.

24.             At the hearing of the appeal the court suggested that in cases involving an assessment of proportionality the applicable approach should be that set out by Lord Neuberger of Abbotsbury in In re B (a Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, namely whether the judge’s conclusion on proportionality was wrong. As Lord Neuberger stated at paras 91-92:

“91.     That conclusion leaves open the standard which an appellate court should apply when determining whether the trial judge was entitled to reach his conclusion on proportionality, once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessments. In my view, an appellate court should not interfere with the trial judge’s conclusion on proportionality in such a case, unless it decides that that conclusion was wrong. I do not agree with the view that the appellate court has to consider that judge’s conclusion was ‘plainly’ wrong on the issue of proportionality before it can be varied or reversed. As Lord Wilson says in para 44, either ‘plainly’ adds nothing, in which case it should be abandoned as it will cause confusion, or it means that an appellate court cannot vary or reverse a judge’s conclusion on proportionality of [sic] it considers it to have been ‘merely’ wrong. Whatever view the Strasbourg court may take of such a notion, I cannot accept it, as it appears to me to undermine the role of judges in the field of human rights.

92.       I appreciate that the attachment of adverbs to ‘wrong’ was impliedly approved by Lord Fraser in the passage cited from G v G (Minors: Custody Appeal) [1985] 1 WLR 647, 652, by Lord Wilson at para 38, and has something of a pedigree: see eg per Ward LJ in Assicurazioni [2003] 1 WLR 577, para 195 (although aspects of his approach have been disapproved: see Datec [2007] 1 WLR 1325, para 46). However, at least where Convention questions such as proportionality are being considered on an appeal, I consider that, if after reviewing the trial judge's decision, an appeal court considers that he was wrong, then the appeal should be allowed. Thus, a finding that he was wrong is a sufficient condition for allowing an appeal against the trial judge’s conclusion on proportionality, and, indeed, it is a necessary condition (save, conceivably, in very rare cases).”

25.             In re B was a family law case but the Divisional Court noted that the test had been applied in other contexts, and in particular in extradition cases - see Love v Government of the United States [2018] EWHC 172 (Admin); [2018] 1 WLR 2889. It concluded that it should also be applied in the criminal law context, stating as follows at para 103:

“We can see no principled basis for confining the approach in In re B to family law cases or not applying it to the criminal context. This is because the issue of principle discussed by Lord Neuberger in that case related to the approach to be taken by an appellate court to the assessment by a lower court or tribunal of proportionality under the HRA. That is a general question of principle and does not arise only in a particular field of law.”

26.             Applying that test to the facts as found, the Divisional Court held that the district judge’s assessment of proportionality was wrong “because (i) he took into account certain considerations which were irrelevant; and (ii) the overall conclusion was one that was not sustainable on the undisputed facts before him, in particular that the carriageway to the Excel Centre was completely blocked and that this was so for significant periods of time, between approximately 80 and 100 minutes” (para 129).

27.             Of the factors listed at paras 38(a) to (h) of the case stated as cited in para 21 above, the Divisional Court considered those set out at paras 38(a), (b), (c), and (g) to be of little or no relevance and that at para 38(h) to be irrelevant. It disagreed with the district judge’s conclusion at para 38(f) that an obstruction of the highway for 90-100 minutes was of “limited duration”. The Divisional Court considered that to be a “significant period of time”. Its core criticism was of para 38(d), in relation to which it stated as follows at para 112:

“At para 38(d) the district judge said that the defendants’ actions were carefully targeted and were aimed only at obstructing vehicles headed to the DSEI arms fair. However, the fact is that the ability of other members of the public to go about their lawful business, in particular by passing along the highway to and from the Excel Centre was completely obstructed. In our view, that is highly relevant in any assessment of proportionality. This is not a case where, as commonly occurs, some part of the highway (which of course includes the pavement, where pedestrians may walk) is temporarily obstructed by virtue of the fact that protestors are located there. That is a common feature of life in a modern democratic society. For example, courts are well used to such protests taking place on the highway outside their own precincts. However, there is a fundamental difference between that situation, where it may be said (depending on the facts) that a ‘fair balance’ is being struck between the different rights and interests at stake, and the present cases. In these two cases the highway was completely obstructed and some members of the public were completely prevented from doing what they had the lawful right to do, namely use the highway for passage to get to the Excel Centre and this occurred for a significant period of time.” (Emphasis added)

28.             The Divisional Court explained at para 117 that the “fundamental reason” why it considered the district judge’s assessment of proportionality to be wrong was 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. Rather the ability of other members of the public to go about their lawful business was completely prevented by the physical conduct of these defendants for a significant period of time. That did not strike a fair balance between the different rights and interests at stake.” (Emphasis added)

5          What is the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of ‘lawful excuse’ when Convention rights are engaged in a criminal matter?

The conventional approach

29.             As indicated above, the conventional approach of the Divisional Court to appeals by way of case stated in criminal proceedings is to apply an appellate test of whether the court’s conclusion was one which was reasonably open to it - ie is not Wednesbury irrational or perverse. This is reflected in a number of decisions of the Divisional Court, including cases involving issues of proportionality.

30.             Oladimeji v Director of Public Prosecutions [2006] EWHC 1199 (Admin) concerned an appeal by way of case stated from the decision of magistrates to reject a “reasonable excuse” defence to an offence of failing to provide a specimen of breath when required to do so, contrary to section 7(6) Road Traffic Act 1988. In dismissing the appeal, Keene LJ at para 22 identified the relevant issue as being as follows:

“… the real issue is whether the justices were entitled on the evidence and the facts they found to conclude that the appellant had no reasonable excuse for his failure. It seems to me that they were. In the light of the facts to which I have referred, their conclusion was not perverse. It was within the range of conclusions properly open to them.”

31.             H v Director of Public Prosecutions [2007] EWHC 2191 (Admin) concerned an appeal by way of case stated from a district judge’s decision to admit identification evidence notwithstanding a breach of Code D of the Police and Criminal Evidence Act 1984 (“PACE”). At para 19 Auld LJ stated the proper approach on such an appeal to be as follows:

“Finally, I should note the now well established approach of the Court of Appeal (Criminal Division) to section 78 cases, when invited to consider the trial judge’s exercise of judgment as to fairness, only to interfere with the judge’s ruling if it is Wednesbury irrational or perverse. In my view, this Court should adopt the very same approach on appeals to it by way of case stated on a point of law, for on such a point, anything falling short of Wednesbury irrationality will not do.”

32.             More recently, in Garry v Crown Prosecution Service [2019] EWHC 636 (Admin); [2019] 1 WLR 3630 the issue on the appeal was the operation of the “reasonable excuse” defence to the offence of carrying an offensive weapon contrary to section 1 of the Prevention of Crime Act 1953. Rafferty LJ followed the approach of Auld LJ in H v Director of Public Prosecutions as to the appropriate standard of review, stating at para 25 as follows:

“… On appeals by way of case stated on a point of law this court adopts the same approach as does the Court of Appeal to a trial judge’s exercise of judgment, interfering with the judge’s ruling only if it be Wednesbury irrational or perverse (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223): H v Director of Public Prosecutions [2007] EWHC 2192 (Admin). The ruling in this case was not Wednesbury irrational let alone perverse.”

33.             There have been a number of examples of appeals by way of case stated in cases involving Convention rights and issues of proportionality in which the Divisional Court has stated the applicable test to be whether the conclusion of the court below was one which was reasonably open to it - see, for example, Norwood v Director of Public Prosecutions [2003] EWHC 1564 (Admin) at para 40 (Auld LJ) (article 10 ECHR); Hammond v Director of Public Prosecutions [2004] EWHC 69 (Admin) at para 33 (May LJ) (articles 9 and 10 ECHR), and Gough v Director of Public Prosecutions [2013] EWHC 3267 (Admin) at para 21 (Sir Brian Leveson P) (article 10 ECHR).

34.             Abdul v Director of Public Prosecutions [2011] EWHC 247 (Admin); [2011] HRLR 16 was an appeal by way of case stated from a district judge’s decision that a prosecution for an offence under section 5 of the Public Order Act 1986 was a proportionate interference with the appellants’ rights under article 10 ECHR. The alleged offences concerned slogans shouted by the appellants who were protesting in the vicinity of a local Royal Anglian Regiment homecoming parade following its return from Afghanistan and Iraq. The slogans which the appellants shouted included “British soldiers murderers”, “Rapists all of you” and “Baby killers”. In giving the main judgment of the Divisional Court, Gross LJ said that “even if there is otherwise a prima facie case for contending that an offence has been committed under section 5, it is still for the Crown to establish that prosecution is a proportionate response, necessary for the preservation of public order” (para 49(viii)). He noted at para 49(vi) that the legislature had entrusted that decision to magistrates or a district judge and stated the appellate test to be as follows:

“The test for this court on an appeal of this nature is whether the decision to which the district judge has come was open to her or not. This court should not interfere unless, on well-known grounds, the appellants can establish that the decision to which the district judge has come is one she could not properly have reached.”

35.             None of these cases were referred to by the Divisional Court in this case. Since the issue of the appropriate appellate test was not raised until the hearing the parties had not prepared to address that issue, nor did they apparently seek further time to do so. In the result, the Divisional Court reached its decision that the appropriate appellate test was that set out in In re B without consideration of a number of relevant authorities.

Edwards v Bairstow

36.             The conventional approach of the Divisional Court to apply a strict appellate test of irrationality or perversity reflects recognition of the fact that an appeal by way of case stated is an appeal from the tribunal of fact which is only permissible on a question of law (or excess of jurisdiction). As stated in section 111(1) of the Magistrates’ Courts Act 1980 (“MCA”):

“(1)     Any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved …” (Emphasis added)

37.             It has long been recognised that appellate restraint is required in cases involving appeals from tribunals of fact which are only allowed on questions of law. The leading authority as to the appropriate approach in such cases is the House of Lords decision in Edwards v Bairstow [1956] AC 14. That case concerned an appeal by way of case stated from a decision of the Commissioners for the General Purposes of the Income Tax. Such appeals are only allowable if the decision can be shown to be wrong in law. The case concerned whether a joint venture for the purchase and sale of a spinning plant was an “adventure … in the nature of trade”. The commissioners had decided that it was not and before the courts below the appeal had been dismissed on the grounds that the question was purely one of fact. The House of Lords allowed the appeal. In a well-known and often cited passage, Lord Radcliffe explained the proper approach as follows (at p 36):

“When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that, this has been responsible for the determination. So there, too, there has been error in point of law. … the true and only reasonable conclusion contradicts the determination.”

38.             This approach has been followed for other case stated appeal procedures - see, for example, New Windsor Corpn v Mellor [1974] 1 WLR 1504 in relation to appeals from commons commissioners. It has also been applied in other related contexts, such as, for example, appeals from arbitration awards. Since the Arbitration Act 1979 appeals have only been allowed on questions of law arising out of an award. In Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 the question arose as to the proper approach to an appeal against an arbitrator’s decision that a charterparty had been frustrated by delay, a question of mixed fact and law. It was held that Edwards v Bairstow should be applied. As Lord Roskill stated at pp 752-753:

“My Lords, in Edwards v Bairstow [1956] AC 14, 36, Lord Radcliffe made it plain that the court should only interfere with the conclusion of special commissioners if it were shown either that they had erred in law or that they had reached a conclusion on the facts which they had found which no reasonable person, applying the relevant law, could have reached. My Lords, when it is shown on the face of a reasoned award that the appointed tribunal has applied the right legal test, the court should in my view only interfere if on the facts found as applied to that right legal test, no reasonable person could have reached that conclusion. It ought not to interfere merely because the court thinks that upon those facts and applying that test, it would not or might not itself have reached the same conclusion, for to do that would be for the court to usurp what is the sole function of the tribunal of fact.”

39.             The conventional approach of the Divisional Court to appeals by way of case stated in criminal proceedings is to similar effect. A conclusion will be one which is open to the court unless it is one which no reasonable court, properly directed as to the law, could have reached on the facts found. If on the face of the case stated, there is an error of law material to the decision reached, then it will be wrong in law and, as such, a conclusion which it was not reasonably open to the court to reach.

40.             In the context of appeals by way of case stated in criminal proceedings (unlike in arbitration appeals), a conclusion will be open to challenge on the grounds that it is one which no reasonable court could have reached even if it categorised as a conclusion of fact. As stated by Lord Goddard CJ in Bracegirdle v Oxley and Cobley [1947] KB 349, 353:

“It is said that this court is bound by the findings of fact set out in the cases by the magistrates. It is true that this court does not sit as a general court of appeal against magistrates’ decisions in the same way as quarter sessions. In this court we only sit to review the magistrates’ decisions on points of law, being bound by the facts which they have found, provided always that there is evidence on which they could come to the conclusions of fact at which they have arrived … if magistrates come to a decision to which no reasonable bench of magistrates, applying their minds to proper considerations, and giving themselves proper directions, could come, then this court can interfere, because the position is exactly the same as if the magistrates had come to a decision of fact without evidence to support it.”

In R v North West Suffolk Magistrates’ Court [1998] Env LR 9, 18-19 Lord Bingham CJ agreed with those observations, adding as follows:

“… It is obviously perverse and an error of law to make a finding of fact for which there is no evidential foundation. It is also perverse to say that black is white, which is essentially what the justices did in Bracegirdle v Oxley and Cobley. But it is not perverse, even if it may be mistaken, to prefer the evidence of A to that of B where they are in conflict. That gives rise, in the absence of special and unusual circumstances (absent here), to no error of law challengeable by case stated in the High Court. It gives rise to an error of fact properly to be pursued in the Crown Court.”

41.             In D’Souza v Director of Public Prosecutions [1992] 1 WLR 1073 the House of Lords applied the Edwards v Bairstow test to an appeal by way of case stated in criminal proceedings concerning whether the appellant, who had absconded from a hospital where she was lawfully detained under the Mental Health Act 1983, was a person who was “unlawfully at large and whom [the police constables were] pursuing” under section 17(1)(d) of PACE so as to empower entry to her home without a warrant. Lord Lowry (with whose judgment all their lordships agreed) categorised this issue as “a question of fact” but one which “must be answered within the relevant legal principles and paying regard to the meaning in their context of the relevant words” (at p 1082H). Lord Lowry’s conclusion (at p 1086F), citing Lord Radcliffe’s judgment in Edwards v Bairstow, was that:

“I do not consider that it was open to the Crown Court to find that ‘those seeking to retake the escaped patient’ and in particular the constables concerned, were pursuing her, because there was in my view no material in the facts found on which (taking a proper view of the law) they could properly reach that conclusion.”

In re B

42.             In the light of the well-established appellate approach to appeals from tribunals of fact which are only permitted on questions of law, including in relation to cases stated under section 111 of the MCA, we do not consider that the Divisional Court was correct to decide that there is a different appellate test where the appeal raises an assessment of proportionality and, moreover, to do so without regard to any of the relevant authorities.

43.             In re B was a family law case and involved the appellate test under CPR rule 52.21(3) that an appeal will be allowed where the decision of the lower court is “wrong”, whether in law or in fact. The Divisional Court placed reliance on the extradition case of Love but that too involves a wide right of appeal “on a question of law or fact” (sections 26(3)(a) and 103(4)(a) of the Extradition Act 2003). An appeal may be allowed if: “the district judge ought to have decided a question before him differently” and “had he decided it as he ought to have done, he would have been required to discharge the appellant” - see sections 27(3) and 104(3). In argument, reliance was also placed on the application of In re B in judicial review appeals. There are, however, generally no disputed facts in judicial review cases, nor do they involve appeals from the only permissible fact finder. In the specific context of challenges to the decision of a Magistrates’ Court, where an error of law is alleged, the appropriate remedy is normally by way of case stated rather than by seeking judicial review - see, for example, R (P) v Liverpool City Magistrates’ Court [2006] EWHC 887 (Admin) at para 5.

44.             It would in any event be unsatisfactory, as a matter of both principle and practicality, for the appellate test in appeals by way of case stated to fluctuate according to the nature of the issue raised. That would mean that there were two applicable appellate tests and that it would be necessary to determine in each case which was applicable. That would be likely to depend upon whether or not the case turns on an assessment of proportionality, which may well give rise to difficult and marginal decisions as to how central the issue of proportionality is to the decision reached. On any view, having alternative appellate tests adds unnecessary and undesirable complexity and uncertainty.

45.             A prosecution under section 137 of 1980 Act, for example, requires proof of a number of different elements. There must be an obstruction; the obstruction must be of a highway; it must be wilful, and it must be without lawful authority or excuse. Some cases stated in relation to section 137 prosecutions may involve no proportionality issues at all; some may involve proportionality issues and other issues; some may involve only proportionality issues. The appellate test should not vary according to the ingredients of the case stated.

46.             Whilst we do not consider that In re B is the applicable appellate test it may, nevertheless, be very relevant to appeals by way of case stated that turn on issues of proportionality. The law as stated in In re B has been developed in later cases. In In re B at para 88 Lord Neuberger stated as follows:

“If, after reviewing the judge’s judgment and any relevant evidence, the appellate court considers that the judge approached the question of proportionality correctly as a matter of law and reached a decision which he was entitled to reach, then the appellate court will not interfere. If, on the other hand, after such a review, the appellate court considers that the judge made a significant error of principle in reaching his conclusion or reached a conclusion he should not have reached, then, and only then, will the appellate court reconsider the issue for itself if it can properly do so (as remitting the issue results in expense and delay, and is often pointless).”

47.             This approach was qualified by the Supreme Court in R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47; [2018] 1 WLR 4079. In that case Lord Carnwath (with whom the other justices agreed) said at para 64:

“In conclusion, the references cited above show clearly in my view that to limit intervention to a ‘significant error of principle’ is too narrow an approach, at least if it is taken as implying that the appellate court has to point to a specific principle - whether of law, policy or practice - which has been infringed by the judgment of the court below. The decision may be wrong, not because of some specific error of principle in that narrow sense, but because of an identifiable flaw in the judge's reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be ‘wrong’ under CPR rule 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation. As Elias LJ said in R (C) v Secretary of State for Work and Pensions [2016] PTSR, para 34:

‘the appeal court does not second guess the first instance judge. It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong …’”

48.             As Lewison LJ stated in R (Z) v Hackney London Borough Council [2019] EWCA Civ 1099; [2019] PTSR 2272, para 66:

“It is not enough simply to demonstrate an error or flaw in reasoning. It must be such as to undermine the cogency of the conclusion. Accordingly, if there is no such error or flaw, the appeal court should not make its own assessment of proportionality.”

Lewison LJ’s observations as to the proper approach were endorsed by the Supreme Court R (Z) v Hackney London Borough Council [2020] UKSC 40; [2020] 1 WLR 4327 - see the judgment of Lord Sales at para 74 and that of Lady Arden at paras 118-120.

49.             In cases stated which turn on an assessment of proportionality, the factors which the court considers to be relevant to that assessment are likely to be the subject of findings set out in the case, as they were in the present case. If there is an error or flaw in the reasoning which undermines the cogency of the conclusion on proportionality that is, therefore, likely to be apparent on the face of the case. In accordance with In re B, as clarified by the later case law, such an error may be regarded as an error of law on the face of the case. It would, therefore, be open to challenge under the Edwards v Bairstow appellate test. As Lady Arden observes, any such challenge would have to be made on the basis of the primary and secondary findings set out in the case stated, unless there was no evidence for them or they were findings which no reasonable tribunal could have reached. The review is of the judgment and any relevant findings, not “any relevant evidence”.

50.             In his judgment Lord Sales sets out in detail the differences between rationality and proportionality and why he considers that the same approach should be adopted in all cases on appeal which concern whether an error of law has been made in relation to an issue of proportionality.

51.             As Lady Arden’s analysis at para 101 of her judgment demonstrates, the nature and standard of appellate review will depend on a number of different factors. Different kinds of proceedings necessarily require different approaches to appellate review. For example, an appeal against conviction following a jury trial in the Crown Court, where the Court of Appeal Criminal Division must assess the safety of a conviction, is a very different exercise to that which is carried out by the Court of Appeal Civil Division in reviewing whether a decision of the High Court is wrong in judicial review proceedings, although both may involve proportionality assessments.

52.             Whilst we agree that the approach to whether there is an error of law in relation to an issue of proportionality determined in a case stated is that set out in In re B, as clarified by the later case law, Edwards v Bairstow remains the overarching appellate test, and the alleged error of law has to be considered by reference to the primary and secondary factual findings which are set out in the case.

53.             In the present case the Divisional Court considered that there were errors or flaws in the reasoning of the district judge taking into account a number of factors, which it considered to be irrelevant or inappropriate and that these undermined the cogency of the conclusion reached. Although the Divisional Court applied the wrong appellate test, it may therefore have reached a conclusion which was justifiable on the basis that there was an error of law on the face of the case. We shall address this question when considering the second issue on the appeal.

Conclusion in relation to the first certified question

54.             For all these reasons, we consider that the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of “lawful excuse” when Convention rights are engaged in a criminal matter is the same as that applicable generally to appeals on questions of law in a case stated under section 111 of the MCA, namely that set out in Edwards v Bairstow. That means that an appeal will be allowed where there is an error of law material to the decision reached which is apparent on the face of the case, or if the decision is one which no reasonable court, properly instructed as to the relevant law, could have reached on the facts found. In accordance with that test and In re B, where the statutory defence depends upon an assessment of proportionality, an appeal will lie if there is an error or flaw in the reasoning on the face of the case which undermines the cogency of the conclusion on proportionality. That assessment falls to be made on the basis of the primary and secondary findings set out in the case stated, unless there was no evidence for them or they were findings which no reasonable tribunal could have reached.

6.         Is deliberate physically obstructive conduct by protesters capable of constituting a lawful excuse for the purposes of section 137 of the Highways Act 1980, where the impact of the deliberate obstruction on other highway users is more than de minimis, and prevents them, or is capable of preventing them, from passing along the highway?

The second certified question

55.             As the Divisional Court explained, (see para 28 above) a fundamental reason why it considered the district judge’s assessment of proportionality to be wrong was that there was no fair balance struck between the different rights and interests at stake given that “the ability of other members of the public to go about their lawful business was completely prevented by the physical conduct of these respondents for a significant period of time”. That fundamental reason led the Divisional Court to certify the second question which the parties agreed as being in the terms set out in para 7(2) above (“the second certified question”). The implication of the second certified question is that deliberately obstructive conduct cannot constitute a lawful excuse for the purposes of section 137 of the Highways Act 1980, where the impact on other highway users is more than de minimis, so as to prevent users, or even so as to be capable of preventing users, from passing along the highway. In those circumstances, the interference with the protesters’ article 10 and article 11 ECHR rights would be considered proportionate, so that they would not be able to rely on those rights as the basis for a defence of lawful excuse pursuant to section 137 of the 1980 Act.

56.             On behalf of the appellants it was submitted, to the contrary, that deliberate physically obstructive conduct by protesters is capable of constituting a lawful excuse for the purposes of section 137 of the Highways Act 1980, even where the impact of the deliberate obstruction on other highway users is more than de minimis. In addition, it was submitted that the district judge’s assessment of proportionality did not contain any error or flaw in reasoning on the face of the case such as to undermine the cogency of his conclusion. Accordingly, it was submitted that the Divisional Court’s order directing convictions should be set aside and that this court should issue a direction to restore the dismissal of the charges.

Articles 10 and 11 ECHR

57.             The second certified question relates to both the right to freedom of expression in article 10 and the right to freedom of assembly in article 11. Both rights are qualified in the manner set out respectively in articles 10(2) and 11(2): see paras 14-15 above. Article 11(2) states that “No restrictions shall be placed” except “such as are prescribed by law and are necessary in a democratic society …” In Kudrevičius v Lithuania (2016) 62 EHRR 34, para 100 the European Court of Human Rights (“ECtHR”) stated that “The term ‘restrictions’ in article 11(2) must be interpreted as including both measures taken before or during a gathering and those, such as punitive measures, taken afterwards” so that it accepted at para 101 “that the applicants’ conviction for their participation in the demonstrations at issue amounted to an interference with their right to freedom of peaceful assembly”. Arrest, prosecution, conviction, and sentence are all “restrictions” within both articles. Different considerations may apply to the proportionality of each of those restrictions. The proportionality of arrest, which is typically the police action on the ground, depends on, amongst other matters, the constable’s reasonable suspicion. The proportionality assessment at trial before an independent impartial tribunal depends on the relevant factors being proved beyond reasonable doubt and the court being sure that the interference with the rights under articles 10 and 11 was necessary. The police’s perception and the police action are but two of the factors to be considered. It may have looked one way at the time to the police (on which basis their actions could be proportionate) but at trial the facts established may be different (and on that basis the interference involved in a conviction could be disproportionate). The district judge is a public authority, and it is his assessment of proportionality of the interference that is relevant, not to our mind his assessment of the proportionality of the interference by reference only to the intervention of the police that is relevant. In that respect we differ from Lord Sales (see for instance para 120, 153 and 154) who considers that the defence of “lawful excuse” under section 137 depends on an assessment of the proportionality of the police response to the protest and agree with Lady Arden at para 94 that “the more appropriate question is whether the convictions of the appellants for offences under section 137(1) of the Highways Act 1980 were justified restrictions on the right to freedom of assembly under article 11 or not” (emphasis added).

58.             As the Divisional Court identified at para 63 the issues that arise under articles 10 and 11 require consideration of five questions: see para 16 above. In relation to those questions it is common ground that (i) what the appellants did was in the exercise of one of the rights in articles 10 and 11; (ii) the prosecution and conviction of the appellants was an interference with those rights; (iii) the interference was prescribed by law; and (iv) the interference was in pursuit of a legitimate aim which was the prevention of disorder and the protection of the rights of others to use the highway. That leaves the fifth question as to whether the interference with either right was “necessary in a democratic society” so that a fair balance was struck between the legitimate aims of the prevention of disorder and protection of the rights and freedoms of others and the requirements of freedom of expression and freedom of assembly.

59.             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.

60.             In a criminal case the prosecution has the burden of proving to the criminal standard all the facts upon which it relies to establish to the same standard that the interference with the articles 10 and 11 rights of the protesters was proportionate. If the facts are established then a judge, as in this case, or a jury, should evaluate those facts to determine whether or not they are sure that the interference was proportionate.

61.             In this case both articles 10 and 11 are invoked on the basis of the same facts. In the decisions of the ECtHR, whether a particular incident falls to be examined under article 10 or article 11, or both, depends on the particular circumstances of the case and the nature of a particular applicant’s claim to the court. In Kudrevičius v Lithuania, para 85 and in Lashmankin v Russia (Application No 57818/09) at para 364, both of which concerned interference with peaceful protest, the ECtHR stated that article 11 constitutes the lex specialis pursuant to which the interference is to be examined. The same approach was taken by the ECtHR at para 91 of its judgment in Primov v Russia (Application No 17391/06). However, given that article 11 is to be interpreted in the light of article 10, said to constitute the lex generalis, the distinction is largely immaterial. The outcome in this case will be the same under both articles.

Deliberate obstruction with more than a de minimis impact

62.             The second certified question raises the issue as to how intentional action by protesters disrupting traffic impacts on an assessment of proportionality under articles 10 and 11 ECHR.

63.             The issue of purposeful disruption of others was considered by the ECtHR in Hashman v United Kingdom (2000) 30 EHRR 241, paras 27-28 and Steel v United Kingdom (1999) 28 EHRR 603, para 142. It was also considered by the ECtHR in Kudrevičius v Lithuania in relation to the purposeful disruption of traffic and in Primov v Russia in relation to an attempted gathering which would have disrupted traffic.

64.             The case of Steel v United Kingdom did not involve obstructive behaviour on a highway but rather involved an attempt by the first applicant, with sixty others, to obstruct a grouse shoot. The first applicant was arrested for breach of the peace for impeding the progress of a member of the shoot by walking in front of him as he lifted his shotgun. She was detained for 44 hours before being released on conditional bail. She was charged with breach of the peace and using threatening words or behaviour, contrary to section 5 of the Public Order Act 1986. At trial she was convicted of both offences and the Crown Court upheld the convictions on appeal. She complained to the European Commission of Human Rights (“the Commission”) on the basis, in particular, of violations of articles 10 and 11, arising from the disproportionality of the restrictions on her freedom to protest. At para 142 of its judgment the Commission noted that “the first … applicant [was] demonstrating not only by verbal protest or holding up placards and distributing leaflets, but by physically impeding the activities against which [she was] protesting” (emphasis added). In addressing this issue, the Commission recalled “that freedom of expression under article 10 goes beyond mere speech, and considers that the applicants’ protests were expressions of [her] disagreement with certain activities, and as such fall within the ambit of article 10”. Despite the protest physically impeding the activities of those participating in the grouse shoot the Commission found that “there was a clear interference with the applicants’ freedom under article 10 of the Convention”. Thereafter the Commission considered whether the interference was prescribed by law, whether it pursued a legitimate aim and whether it was proportionate. In relation to proportionality it found that the removal of the applicant by the police from the protest and her detention for 44 hours, even though it interfered with her freedom to demonstrate, could, in itself, be seen as proportionate to the aim of preventing disorder. It reached similar findings in relation to the proportionality of the convictions: see paras 154-158. However, the points of relevance to this appeal are: (a) that deliberate obstructive conduct which has a more than de minimis impact on others , still requires careful evaluation in determining proportionality; and, (b) that there is a separate evaluation of proportionality in respect of each restriction. In Steel those separate evaluations included the proportionality of the removal of the first applicant from the scene (para 155), the proportionality of the detention of the first applicant for 44 hours before being brought before a magistrate (para 156) and the proportionality of the penalties imposed on the first applicant (paras 157-158). A separate analysis was carried out in relation to the third, fourth and fifth applicants leading to the conclusion that their removal from the scene was not proportionate: see paras 168-170.

65.             The case of Hashman and Harrup v United Kingdom similarly did not involve a protest obstructing a highway. Rather, the applicants had intentionally disrupted the activities of the Portman Hunt to protest against fox hunting. Proceedings were brought against the applicants in respect of their behaviour. They were bound over to keep the peace and be of good behaviour. They complained to the ECtHR that this was a breach of their article 10 rights. At para 28 the ECtHR noted that “the protest took the form of impeding the activities of which they disapproved” but considered “nonetheless that it constituted an expression of opinion within the meaning of article 10” and that “The measures taken against the applicants were, therefore, an interference with their right to freedom of expression”. Again, the point of relevance to this appeal is that deliberate obstructive conduct which has a more than de minimis impact on others still requires careful evaluation in determining proportionality.

66.             In Kudrevičius v Lithuania the applicants had been involved in a major protest by farmers against the Lithuanian government. The protests involved the complete obstruction of the three major roads in Lithuania. Subsequently the first and second applicants were convicted of inciting the farmers to blockade the roads and highway contrary to article 283(1) of the Criminal Code. The remaining applicants were convicted of a serious breach of public order during the riot by driving tractors onto the highway and refusing to obey requests by the police to move them. Before the ECtHR the applicants complained that their convictions had violated their rights to freedom of expression and freedom of peaceful assembly, guaranteed by articles 10 and 11 ECHR respectively. The extent of the significant obstruction intended and caused can be discerned from the facts. One of the highways which was obstructed was the main trunk road connecting the three biggest cities in the country. It was obstructed on 21 May 2003 at around 12.00 by a group of approximately 500 people who moved onto the highway and remained standing there, thus stopping the traffic. Another of the highways was a transitional trunk road used to enter and leave the country. It was obstructed on 21 May 2003 at 12.00 by a group of approximately 250 people who moved onto the highway and remained standing there, thus stopping the traffic until 12 noon on 23 May 2003. The third highway which was obstructed was also a transitional trunk road used to enter and leave the country. It was obstructed on 21 May 2003 at 11.50 by a group of 1,500 people who moved onto the highway and kept standing there, thus stopping the traffic. In addition, on the same day between 15.00 and 16.30 tractors were driven onto the highway and left standing there. Such blockage continued until 16.00 on 22 May 2003. According to the Lithuanian Government, all three roads were blocked at locations next to the customs post for approximately 48 hours. The Government alleged, in particular, that owing to the blocking rows of heavy goods vehicles and cars formed in Lithuania and Poland at the Kalvarija border crossing and that heavy goods vehicles were forced to drive along other routes in order to avoid traffic jams. It was also alleged that as the functioning of the Kalvarija customs post was disturbed, the Kaunas Territorial Customs Authority was obliged to re-allocate human resources as well as to prepare for a possible re-organisation of activities with the State Border Guard Service and the Polish customs and that, as a consequence, the Kaunas Territorial Customs Authority incurred additional costs; however, the concrete material damage had not been calculated.

67.             The ECtHR in Kudrevičius at para 97 recognised that intentional disruption of traffic was “not an uncommon occurrence in the context of the exercise of freedom of assembly in modern societies, …”. However, the court continued that “physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by article 11 of the Convention” (emphasis added). The court also added that “This state of affairs might have implications for any assessment of ‘necessity’ to be carried out under the second paragraph of article 11” (emphasis added). It is apparent from Kudrevičius that purposely obstructing traffic still engages article 11 but seriously disrupting the activities carried out by others is not at the core of that freedom so that it “might”, not “would”, have implications for any assessment of proportionality. In this way, such disruption is not determinative of proportionality. On the facts of that case the Lithuanian authorities had struck a fair balance between the legitimate aims of the “prevention of disorder” and “protection of the rights and freedoms of others” and the requirement of freedom of assembly. On that basis the criminal convictions and the sanctions imposed were not disproportionate in view of the serious disruption of public order provoked by the applicants. However, again, the point of relevance to this appeal is that deliberate obstructive conduct which has a more than de minimis impact on others still requires careful evaluation in determining proportionality.

68.             The case of Primov v Russia involved a complaint to the ECtHR that the Russian authorities’ refusal to allow a demonstration, the violent dispersal of that demonstration and the arrest of the three applicants breached their right to freedom of expression and to peaceful assembly, guaranteed by articles 10 and 11 of the Convention respectively. The protesters wished to gather in the centre of the village of Usuklchay. To prevent them from doing so the police blocked all access to the village. One of the reasons for this blockade was that if allowed to demonstrate in the centre of the village the crowd would risk blocking the main road adjacent to the village square. In conducting a proportionality assessment between paras 143-153 the ECtHR referred to the importance for the public authorities to show a certain degree of tolerance towards peaceful gatherings. At para 145 it stated:

“The court reiterates in this respect that any large-scale gathering in a public place inevitably creates inconvenience for the population. Although a demonstration in a public place may cause some disruption to ordinary life, including disruption of traffic, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by article 11 of the Convention is not to be deprived of its substance (see [Galstyan v Armenia (No 26986/03) at paras 116-117, and Bukta v Hungary, (No 25691/04); ECHR 2007-III at para 37]). The appropriate ‘degree of tolerance’ cannot be defined in abstracto: the Court must look at the particular circumstances of the case and particularly to the extent of the ‘disruption of ordinary life’.”

So, there should be a certain degree of tolerance to disruption to ordinary life, including disruption of traffic, caused by the exercise of the right to freedom of expression or freedom of peaceful assembly.

69.             This is not to say that there cannot be circumstances in which the actions of protesters take them outside the protection of article 11 so that the question as to proportionality does not arise. Article 11 of the Convention only protects the right to “peaceful assembly”. As the ECtHR stated at para 92 of Kudrevičius:

“[the] notion [of peaceful assembly] does not cover a demonstration where the organisers and participants have violent intentions. The guarantees of article 11 therefore apply to all gatherings except those where the organisers and participants have such intentions, incite violence or otherwise reject the foundations of a democratic society.”

There is a further reference to conduct undermining the foundations of a democratic society taking the actions of protesters outside the protection of article 11 at para 98 of Kudrevičius. At para 155 of its judgment in Primov and v Russia the ECtHR stated that “Article 11 does not cover demonstrations where the organisers and participants have violent intentions … However, an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual in question remains peaceful in his or her own intentions or behaviour …”. Moreover, a protest is peaceful even though it may annoy or cause offence to the persons opposed to the ideas or claims that the protest is seeking to promote.

70.             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. Accordingly, intentional action even with an effect that is more than de minimis does not automatically lead to the conclusion that any interference with the protesters’ articles 10 and 11 rights is proportionate. Rather, there must be an assessment of the facts in each individual case to determine whether the interference with article 10 or article 11 rights was “necessary in a democratic society”.

Factors in the evaluation of proportionality

71.             In setting out various factors applicable to the evaluation of proportionality it is important to recognise that not all of them will be relevant to every conceivable situation and that the examination of the factors must be open textured without being given any pre-ordained weight.

72.             A non-exhaustive list of the factors normally to be taken into account in an evaluation of proportionality was set out at para 39 of the judgment of Lord Neuberger of Abbotsbury MR in City of London Corpn v Samede (see para 17 above). The factors included “the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public”. At paras 40-41 Lord Neuberger identified two further factors as being: (a) whether the views giving rise to the protest relate to “very important issues” and whether they are “views which many would see as being of considerable breadth, depth and relevance”; and, (b) whether the protesters “believed in the views they were expressing”. In relation to (b) it is hard to conceive of any situation in which it would be proportionate for protesters to interfere with the rights of others based on views in which the protesters did not believe.

73.             In Nagy v Weston (see para 9 above) one of the factors identified was “the place where [the obstruction] occurs”. It is apparent, as in this case, that an obstruction can have different impacts depending on the commercial or residential nature of the location of the highway.

74.             A factor listed in City of London Corpn v Samede was “the extent of the actual interference the protest causes to the rights of others”. Again, as in this case, in relation to protests on a highway the extent of the actual interference can depend on whether alternative routes were used or could have been used. In Primov v Russia at para 146 a factor taken into account in relation to proportionality by the ECtHR was the availability of “alternative thoroughfares where the traffic could have been diverted by the police”.

75.             Another factor relevant to proportionality can be discerned from para 171 of the judgment of the ECtHR in Kudrevičius in that it took into account that “the actions of the demonstrators had not been directly aimed at an activity of which they disapproved, but at the physical blocking of another activity (the use of highways by carriers of goods and private cars) which had no direct connection with the object of their protest, namely the government’s alleged lack of action vis-à-vis the decrease in the prices of some agricultural products”. So, a relevant factor in that case was whether the obstruction was targeted at the object of the protest.

76.             Another factor identified in City of London Corpn v Samede was “the importance of the precise location to the protesters”. In Hall v Mayor of London [2010] EWCA Civ 817; [2011] 1 WLR 504, para 37 it was acknowledged by Lord Neuberger, with whom Arden and Stanley Burnton LJJ agreed, that “The right to express views publicly, …, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends … to the location where they wish to express and exchange their views”. In Sáska v Hungary (Application No 58050/08) at para 21 the ECtHR stated that “the right to freedom of assembly includes the right to choose the time, place and modalities of the assembly, within the limits established in paragraph 2 of article 11”. This ability to choose, amongst other matters, the location of a protest was also considered by the ECtHR in Lashmankin v Russia (Application No 57818/09). At para 405 it was stated that:

“… the organisers’ autonomy in determining the assembly’s location, time and manner of conduct, such as, for example, whether it is static or moving or whether its message is expressed by way of speeches, slogans, banners or by other ways, are important aspects of freedom of assembly. Thus, the purpose of an assembly is often linked to a certain location and/or time, to allow it to take place within sight and sound of its target object and at a time when the message may have the strongest impact.” (Emphasis added)

In this case the appellants ascribed a particular “symbolic force” to the location of their protest, in the road, leading to the Excel Centre.

77.             It can also be seen from para 405 of Lashmankin that the organisers of a protest have autonomy in determining the manner of conduct of the protest. That bears on another factor set out in City of London Corpn v Samede, namely “the extent to which the continuation of the protest would breach domestic law”. So, the manner and form of a protest on a highway will potentially involve the commission of an offence contrary to section 137 of the 1980 Act. However, if the protest is peaceful then no other offences will have been committed, such as resisting arrest or assaulting a police officer. In Balçik v Turkey (Application No 25/02) at para 51 the ECtHR took into account that there was no evidence to suggest that the group in that case “presented a danger to public order, apart from possibly blocking the tram line”. So, whilst there is autonomy to choose the manner and form of a protest an evaluation of proportionality will include the nature and extent of actual and potential breaches of domestic law.

78.             Prior notification to and co-operation with the police may also be relevant factors in relation to an evaluation of proportionality, especially if the protest is likely to be contentious or to provoke disorder. If there is no notification of the exact nature of the protest, as in this case, then whether the authorities had prior knowledge that some form of protest would take place on that date and could have therefore taken general preventive measures would also be relevant: see Balçik v Turkey at para 51. However, the factors of prior notification and of co-operation with the police and the factor of any domestic legal requirement for prior notification, must not encroach on the essence of the rights: see Molnar v Hungary [2008] ECHR (Application No 10346/05), paras 34-38 and DB v Chief Constable of the Police Service of Northern Ireland [2017] UKSC 7; [2017] 3 LRC, para 61.

Whether the district judge’s assessment of proportionality contained any error or flaw in reasoning on the face of the case such as to undermine the cogency of his conclusion

79.             A conventional balancing exercise involves individual assessment by the district judge conducted by reference to a concrete assessment of the primary facts, or any inferences from those facts, but excluding any facts or inferences which have not been established to the criminal standard. It is permissible within that factorial approach that some factors will weigh more heavily than others, so that the weight to be attached to the respective factors will vary according to the specific circumstances of the case. In this case the factual findings are set out in the Case Stated and it is on the basis of those facts that the district judge reached the balancing conclusion that the prosecution had not established to the requisite standard that the interference with the articles 10 and 11 rights of the appellants was proportionate. This raises the question on appeal as to whether there were errors or flaws in the reasoning on the face of the case which undermines the cogency of the conclusion on proportionality, insofar as the district judge is said to have taken into account a number of factors which were irrelevant or inappropriate.

80.             The Divisional Court at paras 111-118 considered the assessment of proportionality carried out by the district judge (see para 21 above). The Divisional Court considered that the factors at 38(a)-(c) were of little or no relevance. We disagree. In relation to the factor at 38(a), article 11 protects peaceful assembly. The ECtHR requires “a certain degree of tolerance towards peaceful gatherings”, see Primov v Russia at para 62 above. The fact that this was intended to be and was a peaceful gathering was relevant. Furthermore, the factor in 38(b) that the appellants’ actions did not give rise, directly or indirectly, to any form of disorder was also relevant. There are some protests that are likely to provoke disorder. This was not such a protest. Rather it was a protest on an approach road in a commercial area where there was already a sizeable police presence in anticipation of demonstration without there being any counter-demonstrators or any risk of clashes with counter-demonstrators: (for the approach to the risk of clashes with counter-demonstrations see para 150 of Primov v Russia). The protest was not intended to, nor was it likely to, nor did it in fact provoke disorder. There were no “clashes” with the police. The factor taken into account by the district judge at 38(c) related to the commission of any other offences and this also was relevant, as set out in City of London Corpn v Samede (see para 17 above) in which one of the factors listed was “the extent to which the continuation of the protest would breach domestic law”. The Divisional Court considered that none of these factors prevented the offence of obstruction of the highway being committed in a case such as this. That reasoning is correct in that the offence can be committed even if those factors are present. However, the anterior question is proportionality, to which all those factors are relevant. There was no error or flaw in the reasoning of the district judge in taking these factors into account in his assessment of proportionality. That assessment was central to the question as to whether the appellants should be convicted under section 137 of the 1980 Act.

81.             The Divisional Court’s core criticism related to the factor considered by the district judge at 38(d). We have set out in para 27 above the reasoning of the Divisional Court. We differ in relation to those aspects to which we have added emphasis.

(i)                We note that in para 112 the Divisional Court stated that the “highway to and from the Excel Centre was completely obstructed” but later stated that “members of the public were completely prevented from” using “the highway for passage to get to the Excel Centre …” (emphasis added). We also note that at para 114 the Divisional Court again stated that there was there was “a complete obstruction of the highway …”. In fact, the highway from the Excel Centre was not obstructed, so throughout the duration of the protest this route from the Excel Centre was available to be used. Moreover, whilst this approach road for vehicles to the Excel Centre was obstructed it was common ground that access could be gained by vehicles by another route. On that basis members of the public were not “completely prevented” from getting to the Excel Centre, though it is correct that for a period vehicles were obstructed from using this particular route.

(ii)              The fact that “actions” were carefully targeted and were aimed only at obstructing vehicles headed to the DSEI arms fair was relevant: see para 75 above. Furthermore, the district judge found that the targeting was effective, as the evidence as to the use of the road by vehicles other than those heading to the arms fair was speculative and was not particularly clear or compelling (see para 38(d) of the case stated set out at para 21 above). He made no finding as to whether “non-DSEI” traffic was or was not in fact obstructed since even if it had been this amounted to no more than reasonable obstruction causing some inconvenience to the general public. Targeting and whether it was effective are relevant matters to be evaluated in determining proportionality.

(iii)           The choice of location was a relevant factor to be taken into account by the district judge: see para 76 above.

(iv)            The Divisional Court considered that the obstruction was for a “significant period of time” whilst the district judge considered that the “action was limited in duration”. As we explain in paras 83-84 below whether the period of 90 to 100 minutes of actual obstruction was “significant” or “limited” depends on the context. It was open to the district judge to conclude on the facts of this case that the duration was “limited” and it was also appropriate for him to take that into account in relation to his assessment of proportionality.

(v)              The Divisional Court’s conclusion referred to disruption to “members of the public”. However, there were no findings by the district judge as to the number or even the approximate number of members of the public who were inconvenienced by this demonstration which took place on one side of an approach road to the Excel Centre in circumstances where there were other available routes for deliveries to the Centre (see para 19 above). Furthermore, there were no factual findings that the protest had any real adverse impact on the Excel Centre.

82.             The Divisional Court agreed at para 113 with the factor taken into account by the district judge at para 38(e) of the case stated:

“that the action clearly related to a matter of general concern, namely the legitimacy of the arms fair and whether it involved the marketing and sale of potentially unlawful items. That was relevant in so far as it emphasised that the subject matter of the protests in the present cases was a matter of legitimate public interest. As Mr Blaxland submitted before us, the content of the expression in this case was political and therefore falls at the end of the spectrum at which greatest weight is attached to the kind of expression involved.”

That was an appropriate factor to be taken into account: see para 72 above. As in Primov v Russia at paras 132-136 the appellant’s message “undeniably concerned a serious matter of public concern and related to the sphere of political debate”. There was no error or flaw in the reasoning of the district judge in taking this factor into account in relation to the issue of proportionality.

83.             The Divisional Court disagreed with the district judge’s conclusion at para 38(f) of the case stated that an obstruction of the highway for 90-100 minutes was of limited duration. The Divisional Court at para 112 referred to the period of obstruction as having “occurred for a significant period of time”. Then at para 114 the Divisional Court stated:

“On any view, as was common ground, the duration of the obstruction of the highway was not de minimis. Accordingly, the fact is that there was a complete obstruction of the highway for a not insignificant amount of time. That is highly significant, in our view, to the proper evaluative assessment which is required when applying the principle of proportionality.” (Emphasis added)

As we have observed the district judge did not find that there was a complete obstruction of the highway but rather that the obstruction to vehicles was to that side of the approach road leading to the Excel Centre. It is correct that the district judge equivocated as to whether the duration of the obstruction was for a matter of minutes until the appellants were arrested, or whether it was for the 90 to 100 minutes when the police were able to move the appellants out of the road. It would arguably have been incorrect for the district judge to have approached the duration of the obstruction on the basis that it was for a matter of minutes rather than by reference to what actually occurred. The district judge, however, did not do so and instead correctly approached his assessment based on the period of time during which that part of the highway was actually obstructed. Lord Sales at para 144 states that the district judge ought to have taken into account any longer period of time during which the appellants intended the highway to be obstructed. If it was open to the district judge to have done so, then we do not consider this to be a significant error or flaw in his reasoning. However, we agree with Lady Arden at para 96 that the appellants “cannot be convicted on the basis that had the police not intervened their protest would have been longer”. We agree that the proportionality assessment which potentially leads to a conviction can only take into account the obstruction of the highway that actually occurs.

84.             It is agreed that the actual time during which this access route to the Excel Centre was obstructed was 90 to 100 minutes. The question then arises as to whether this was of limited or significant duration. The appraisal as to whether the period of time was of “limited duration” or was for “a not insignificant amount of time” or for “a significant period of time” was a fact-sensitive determination for the district judge which depended on context including, for instance the number of people who were inconvenienced, the type of the highway and the availability of alternative routes. We can discern no error or flaw in his reasoning given that there was no evidence of any significant disruption caused by the obstruction. Rather, it was agreed that there were alternative routes available for vehicles making deliveries to the Excel Centre: see para 19 above.

85.             The Divisional Court considered at para 115 that the factor taken into account by the district judge at para 38(g) of the case stated “was of little if any relevance to the assessment of proportionality”. The factor was that he had:

“heard no evidence that anyone had actually submitted a complaint about the defendants’ action or the blocking of the road. The police’s response appears to have been entirely on their own initiative.”

In relation to the lack of complaint, the Divisional Court stated that this did not alter the fact that the obstruction did take place and continued that “The fact that the police acted, as the district judge put it, ‘on their own initiative’ was only to be expected in the circumstances of a case such as this”. We agree that for the police to act it was obvious that they did not need to receive a complaint. They were already at the Excel Centre in anticipation of demonstrations and were immediately aware of this demonstration by the appellants. However, the matter to which the district judge was implicitly adverting was that the lack of complaint was indicative of a lack of substantial disruption to those in the Excel Centre. If there had been substantial disruption one might expect there to have been complaints. Rather, on the basis of the facts found by the district judge there was no substantial disruption. There was no error or flaw in the reasoning of the district judge in considering the matters set out at para 38(g).

86.             The Divisional Court at para 116 considered that the factor at para 38(h) of the case stated was irrelevant. In this paragraph the district judge, although he regarded this as a “relatively minor issue”, noted the long-standing commitment of the defendants to opposing the arms trade and that for most of them this stemmed, at least in part, from their Christian faith. He stated that they had also all been involved in other entirely peaceful activities aimed at trying to halt the DSEI arms fair. The district judge considered that “This was not a group of people who randomly chose to attend this event hoping to cause trouble”. The Divisional Court held that this factor had “no relevance to the assessment which the court was required to carry out when applying the principle of proportionality” and that “It came perilously close to expressing approval of the viewpoint of the defendants, something which … is not appropriate for a neutral court to do in a democratic society”. However, as set out at para 67 above whether the appellants “believed in the views they were expressing” was relevant to proportionality. Furthermore, it is appropriate to take into account the general character of the views whose expression the Convention is being invoked to protect. Political views, unlike “vapid tittle-tattle” are particularly worthy of protection. Furthermore, at para 38(h) the district judge took into account that the appellants were not a group of people who randomly chose to attend this event hoping to cause trouble. We consider that the peaceful intentions of the appellants were appropriate matters to be considered in an evaluation of proportionality. There was no error or flaw in the reasoning of the district judge in taking into account the matters set out at para 38(h).

Conclusion in relation to the second certified question

87.             We would answer the second certified question “yes”. The issue before the district judge did not involve the proportionality of the police in arresting the appellants but rather proportionality in the context of the alleged commission of an offence under section 137 of the 1980 Act. The district judge determined that issue of proportionality in favour of the appellants. For the reasons which we have given there was no error or flaw in the district judge’s reasoning on the face of the case such as to undermine the cogency of his conclusion on proportionality. Accordingly, we would allow the appeal on this ground.

7          Overall conclusion

88.             For the reasons that we have given, we would allow the appeal by answering the certified question set out in para 7(1) as set out in para 54 above; answering the certified question set out in para 7(2) “yes”; setting aside the Divisional Court’s order directing convictions; and issuing a direction to restore the dismissal of the charges.

LADY ARDEN:

The context in which the certified questions arise

89.             This appeal from the order of the Divisional Court (Singh LJ and Farbey J), allowing the appeal of the Director of Public Prosecutions and entering convictions against the appellants, requires this court to answer two certified questions set out in para 8 of this judgment. One of the matters which gives this appeal its importance is the context in which those questions have arisen. This appeal involves the right to freedom of peaceful assembly and association set out in article 11 of the European Convention on Human Rights 1950 (“the Convention”), one of the rights now guaranteed in our domestic law by the Human Rights Act 1998. The European Court of Human Rights (“the Strasbourg court”) has described this important right as follows:

“[T]he right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression [which is also engaged in this case but raises no separate issue for the purposes of this judgment] is one of the foundations of such a society. Thus it should not be interpreted restrictively.” (Kudrevicius v Lithuania (2016) 62 EHRR 34, para 91)

90.             The agreed statement of facts and issues filed on this appeal sets out the basic facts as follows:

“1.       The appellants took part in a protest against the arms trade on 5 September 2017 outside the Excel Centre in East London, protesting the biennial Defence and Security International (‘DSEI’) weapons fair taking place at the centre.

2.         Their protest consisted of them lying down on one side of one of the roads leading to the Excel Centre, and locking their arms onto a bar in the middle of a box (‘lock box’), using a carabiner.

3.         The police arrested the appellants within minutes of them beginning their protest, after initiating a procedure known as the ‘5 stage process’, intended to persuade them to remove themselves voluntarily from the public highway.

4.         The appellants were removed from the public highway by police removal experts approximately 90 minutes after their protest began (the delay being caused by the necessity for the police to use specialist cutting equipment safely to remove the appellants’ arms from the boxes).

5.         The left-hand dual lane carriageway of the public highway leading to the Excel Centre was blocked for the duration of the appellants’ protest; the right-hand dual lane carriageway, leading away from the Excel Centre remained open, as did other access routes to the Excel Centre. The evidence before the trial court of disruption caused by the appellants’ protest was limited, and there was no direct evidence of disruption to non-DSEI traffic.

6.         The appellants were charged with obstructing the highway contrary to section 137 of the Highways Act 1980.

7.         They were tried before District Judge (Magistrates’ Court) (‘DJ(MC)’) Hamilton on 1 and 2 February 2018. The prosecution case was largely agreed and the appellants gave evidence.

8.         DJ Hamilton delivered his reserved judgment on 7 February 2018. He acquitted the appellants on the basis that, having regard inter alia to the appellants’ rights under articles 10 and 11, “on the specific facts of these particular cases the prosecution failed to prove to the requisite standard that the defendants’ limited, targeted and peaceful action, which involved an obstruction of the highway, was unreasonable.” (Case Stated, para 40)

91.             Section 137 of the Highways Act 1980 provides:

“(1)     If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding [level 3 on the standard scale].”

92.             As Lord Sales, with whom Lord Hodge agrees, explains, this must now be interpreted so as to permit the proper exercise of the rights guaranteed by articles 10 and 11 of the Convention. Previously it was (for instance) no excuse that the obstruction occurred because the defendant was giving a speech (Arrowsmith v Jenkins [1963] 2 QB 561). The Human Rights Act 1998 has had a substantial effect on public order offences and made it important not to approach them with any preconception as to what is or is not lawful. As Lord Bingham observed in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 AC 105, 127:

“The Human Rights Act 1998, giving domestic effect to articles 10 and 11 of the European Convention, represented what Sedley LJ in Redmond-Bate v Director of Public Prosecutions 163 JP 789, 795, aptly called a ‘constitutional shift’.”

93.             Article 11, which I set out in para 95 below, consists of two paragraphs. The first states the right and the second provides for restrictions on that right. For any exercise of the right to freedom of assembly to be Convention-compliant, a fair balance has to be struck between the exercise of those rights and the exercise of other rights by other persons. It is not necessary on this appeal to refer throughout to article 10 of the Convention (freedom of expression), as well as article 11, but its importance as a Convention right must also be acknowledged.

94.             I pause here to address a point made by Lord Sales and Lord Hodge that those restrictions occur when the police intervene and so the right to freedom of assembly is delimited by the proportionality of police action. In some circumstances it may be helpful to cross-check a conclusion as to whether conduct is article 11-compliant by reference to an analysis of the lawfulness of police intervention but that cannot be more than a cross-check and it may prove to be a misleading diversion. It may for instance be misleading if the police action has been precipitate, or based on some misunderstanding or for some other reasons not itself article 11-compliant. In addition, if the proportionality of the police had to be considered, it would be relevant to consider why there was apparently no system of prior notification or authorisation for protests around the DSEI fair - a high profile and controversial event - and also what the policy of the police was in relation to any demonstrations around that event and what the police knew about the protest and so on. Moreover, the question of whether any action was article 11-compliant may have to be answered in a situation in which the police were never called and therefore never intervened. Furthermore, the proportionality of police intervention is not an ingredient of the offence, and it is not the state of mind of the police but of the appellants that is relevant. In the present case, the more appropriate question is whether the convictions of the appellants for offences under section 137(1) of the Highways Act 1980 were justified restrictions on the right to freedom of assembly under article 11 or not.

95.             Article 11 provides:

“1.       Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.         No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

96.             Thus, the question becomes: was it necessary in a democratic society for the protection of the rights and freedoms of others for the rights of the appellants to be restricted by bringing their protest to an end and charging them with a criminal offence? The fact that their protest was brought to an end marks the end of the duration of any offence under section 137(1). They cannot, in my judgment, be convicted on the basis that had the police not intervened their protest would have been longer. They can under section 137(1) only be convicted for the obstruction of the highway that actually occurs. In fact, in respectful disagreement with the contrary suggestion made by Lord Sales and Lord Hodge in Lord Sales’ judgment, the appellants did not in fact intend that their protest should be a long one. If their intentions had been relevant, or the prosecution had requested that such a finding be included in the Case Stated, the district judge is likely to have included his finding in his earlier ruling that the appellants only wanted to block the highway for a few hours (Written ruling of DJ (MC) Hamilton, para 11).

97.             It follows from the structure of article 11 and the importance of the right that the trial judge, DJ (MC) Hamilton, was right to hold that the prosecution had to justify interference (and under domestic rules of evidence this had to be to the criminal standard). Justification for any interference with the Convention right has to be precisely proved: see Navalnyy v Russia (Application No 29580/12) and four others), GC:

“137.  The Court has previously held that the exceptions to the right to freedom of assembly must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see Kudrevičius , para 142). In an ambiguous situation, such as the three examples at hand, it was all the more important to adopt measures based on the degree of disturbance caused by the impugned conduct and not on formal grounds, such as non-compliance with the notification procedure. An interference with freedom of assembly in the form of the disruption, dispersal or arrest of participants in a given event may only be justifiable on specific and averred substantive grounds, such as serious risks referred to in paragraph 1 of section 16 of the Public Events Act. This was not the case in the episodes at hand.”

The certified questions

98.             The issues of law in the appeal, as certified by the Divisional Court, are:

(1)       What is the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of “lawful excuse” when Convention rights are engaged in a criminal matter and, in particular the lower court’s assessment of whether an interference with Convention rights was proportionate?

(2)       Was deliberate physically obstructive conduct by protesters capable of constituting a lawful excuse for the purposes of section 137 of the Highways Act 1980, in circumstances where the impact of the deliberate obstruction on other highway users prevent them completely from passing along the highway for a significant period of time?

Overview of my answers to the two certified questions

99.             For the reasons explained below, my answers to the two certified questions are in outline as follows:

(1)              Standard of Appellate Review Applying to a Proportionality Assessment. The standard of appellate review applicable to the evaluation of the compliance with the Convention requirement of proportionality is that laid down in R (AR) v Chief Constable of Greater Manchester Police [2018] 1 WLR 4079 (“R (AR)”), at para 64, which refines the test in In re B (a Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 (“In re B”), which was relied on by the Divisional Court. R (AR) establishes a nuanced correctness standard but in my judgment that standard is limited to the evaluative assessment of proportionality and does not extend to the underlying primary and secondary facts to which (in this case) the test in Edwards v Bairstow [1956] AC 14 continues to apply. That test imposes an “unreasonableness” standard and so, unless it is shown that the findings were such that no reasonable tribunal could have made them, the primary and secondary factual findings of the trial judge will stand. Lord Hamblen and Lord Stephens agree with this: analysis of the standard applying to the findings of fact (judgment, para 49).

(2)              Whether the exercise of articles 10 and 11 rights may involve legitimate levels of obstruction: my answer is yes, this is possible, depending on the circumstances. I agree with what is said by Lord Hamblen and Lord Stephens on this issue and I would therefore allow this appeal. I consider that the district judge was entitled to come to the conclusions that he did.

Certified Question 1:  Standard of appellate review applying to proportionality assessment

100.         People do not always realise it but there are many different standards of appellate review for different types of appeal. The most familiar examples of different standards of appellate review are the following. Where there is an appeal against a finding of primary fact, the appellate tribunal in the UK would in general give great weight to the fact that the trial judge saw all the witnesses. In making findings of fact it is very hard for the trial judge to provide a comprehensive statement of all the factors which he or she took into account. Where, however, there is an appeal on a point of law, the court asks whether the trial judge’s conclusion was or was not correct in law. The reason for the distinction between these types of appellate review is clear.

101.         But there are many other standards. In appeals by Case Stated as in the present case, the grounds of appeal are limited to points of law or an excess of jurisdiction (Magistrates’ Courts Act 1980, section 111). As Lord Hamblen and Lord Stephens have explained, the standard of review is that laid down in Edwards v Bairstow. That means that the appellate court cannot set aside findings of fact unless there was no evidence on which the fact-finding tribunal could make the finding in question and no basis on which it could reasonably have come to its conclusion. In those circumstances the appellate tribunal can only substitute its finding if the fact-finding body could not reasonably have come to any other conclusion: see Hitch v Stone [2001] EWCA Civ 63; [2001] STC 214.

102.         Standards of appellate review are not ordained by reference to prefigured criteria or similarity on technical grounds to some other case. In formulating them, the courts take into account a range of factors such as the appropriateness of a particular level of review to a particular type of case, the resources available and factors such as the need for finality in litigation and to remove incentives for litigation simply for litigation’s sake. At one end of the gamut of possibilities, there is the de novo hearing and the pure correctness standard and at the other end of the gamut there are types of cases where the approach in Edwards v Bairstow applies. In public law, there may be yet other factors such as the need to prevent litigation over harmless errors in administrative acts or where the result of an appeal would simply be inevitable. In some cases, appellate review is required because there has been a failure to follow a fundamental rule, such as a requirement for a fair hearing. The appearance of justice is important. In yet other cases, if appellate courts interfere unnecessarily in the decisions of trial judges, they may reduce confidence in the judicial system which would itself be harmful to the rule of law. Over-liberality in appeals may lead to unnecessary litigation, and to the over-concentration of judicial power in the very few, which even though for well-intentioned reasons may also be inconsistent with the idea of a common law and destructive of confidence in the lower courts. In many instances it is difficult to identify any great thirst for normative uniformity in our law, as opposed to the experiential evolution of judge-made law. In criminal cases there are further considerations, and the one that occurs to me in the present case is that these are appeals from acquittals where the trial judge (sitting without a jury) was satisfied on the evidence before the court that no offence was committed. Courts must proceed cautiously in that situation unless there is a clear error of law which the appeal court has jurisdiction to address.

103.         I would accept that it is important to have appellate review in the assessment of proportionality where this raises issues of principle. But in my judgment the assessment of proportionality does not lead to any need to disturb the rules which apply to the primary and secondary facts on which such an appeal is based. To do so would create a divergence between the treatment of questions of fact when those facts are relied on for the purposes of a proportionality assessment and the treatment of facts relied on for disposing of all other issues in the appeal. Obviously, the same facts in the same matter must be determined in the same way. I would extend this to secondary facts drawn from the primary facts. To give an example, in the recent case of Google LLC v Oracle America, Inc, 141 St Ct 1183, 1200 (2021) (US Supreme Court), a case involving alleged “fair use” of the declaring code of Java, a computer platform, the US Supreme Court (by a majority) treated “subsidiary facts” found by the jury as having the same effect for the purposes of appellate review as primary facts. Subsidiary facts included for example the jury’s finding of market effects and the extent of copying, leaving the ultimate legal question of fair use for the court.

104.         As to the standard of appellate review of proportionality assessments, no-one has suggested that this is the subject of any Strasbourg jurisprudence. The Divisional Court relied on In re B, a family case. However, in R (AR) this court considered and refined that test in the context of judicial review and the essence of the matter is to be found in para 64 of the judgment of Lord Carnwath with whom the other members of this court agreed:

“64.     In conclusion, the references cited above show clearly in my view that to limit intervention to a ‘significant error of principle’ is too narrow an approach, at least if it is taken as implying that the appellate court has to point to a specific principle - whether of law, policy or practice - which has been infringed by the judgment of the court below. The decision may be wrong, not because of some specific error of principle in that narrow sense, but because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be ‘wrong’ under CPR 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation. As Elias LJ said (R (C) v Secretary of State for Work and Pensions [2016] EWCA Civ 47; [2016] PTSR 1344, para 34): ‘… the appeal court does not second guess the first instance judge. It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong’.”

105.         The refinement by this court of the In re B test in R (AR) as I see it makes it clear that the appeal is only a review. The court does not automatically or because it would have decided the proportionality assessment differently initiate a review: the appellant still has to show that the trial judge was wrong, not necessarily that there was a specific error of principle, which would be the case only in a limited range of cases. It could be an error of law or a failure to take a material factor into consideration which undermines the cogency of the decision. Moreover, the error has to be material. Harmless errors by the trial judge are excluded. This restriction on appeals is perhaps particularly important when the court is dealing with appeals against acquittals. It is still a powerful form of review unlike a marginal review which makes appellate intervention possible only in marginal situations.

106.         In short, I would hold that the standard of appellate review applicable in judicial review following R (AR) should apply to appeals by way of case stated in relation to the proportionality assessment but not in relation to the fact-finding that leads to it.

107.         Since circulating the first draft of this judgment I have had the privilege of reading paras 49 to 54 and 78 of the joint judgment of Lord Hamblen and Lord Stephens. I entirely agree with what they say in those paragraphs. It is easy to lose sight of the fact that a proportionality assessment is in part a factual assessment and in part a normative assessment. This is so even though there is a substantial interplay between both elements. The ultimate decision on proportionality is reached as an iterative process between the two. As I read the passage from R (AR) which I have already set out in para 104 of this judgment, Lord Carnwath was there dealing with the normative aspects of a proportionality assessment. The assessment is normative for instance in relation to such matters as the legitimacy of placing restrictions on a protest impeding the exercise by others of their rights, and testing events by reference to hypothetical scenarios. But there is also substantial factual element to which the normative elements are applied: for example, what actually was the legitimate aim and how far was it furthered by the action of the state and was there any less restrictive means of achieving the legitimate end.

108.         In reality, no proportionality analysis can be conducted in splendid isolation from the facts of the case. In general, in discussions of proportionality, as this case demonstrates, the role of the facts, and the attributes of the fact-finding process, are under-recognised. It is necessary to analyse the assessment in order to identify the correct standard of review on appeal applying to each separate element of the assessment, rather than treat a single test as applying to the whole. To take the latter course is detrimental to the coherence of standards of review (see para 102 above).

109.         As I see it, the role of the facts is crucial in this case. The proportionality assessment is criticised by Lord Sales and Lord Hodge for two reasons. First, they hold that the district judge was in error because he failed to take into account that the relevant carriageway of the dual carriageway leading to the Centre was “completely blocked” by the appellants’ actions (Lord Sales’ judgment, para 142). But, as paragraph 5 of the statement of facts and issues set out in para 90 above makes clear, while the carriageway was blocked, there was no evidence that alternative routes into the Centre were not available and were not used. There was no dispute that such routes were available. As the district judge said at para 16 of the Case Stated:

“All eight defendants described their action as ‘carefully targeted’ and aimed at disrupting traffic headed for the DSEI arms fair. Most but not all of the defendants accepted that their actions may have caused disruption to traffic that was not headed to the DSEI arms fair. Conversely it was not in dispute that not all access routes to the DSEI arms fair were blocked by the defendants’ actions and it would have been possible for a vehicle headed to the DSEI arms fair but blocked by the actions to have turned around and followed an alternative route.” (Emphasis added)

110.         The rights of other road users were to be balanced against the rights of the appellants. There was no basis, however, on which the district judge could take into account that the carriageway was completely blocked when no member of the public complained about the blockage caused by the protest (which is of course consistent with there being convenient alternative routes) and the prosecution did not lead evidence to show that entry into the Excel Centre by alternative routes was prevented. It might even be said that if the district judge had treated the actions of the appellants as a complete impediment to other road-users that that conclusion could be challenged under Edwards v Bairstow. (We are only concerned with mobile vehicular traffic: there is no reference in the Case Stated to any pedestrians being inconvenienced by having to find any alternative route). Scholars have debated whether a judge dealing with a proportionality issue has a duty to investigate facts that she or he considers relevant to the proportionality assessment, but it was not suggested on this appeal that there was such a duty, and in my judgment correctly so.

111.         The second point on which Lord Sales and Lord Hodge hold that the proportionality assessment of the district judge was wrong was that he did not take into account the fact that, but for the police intervention, the protest would have been longer in duration. I have already explained in para 96 above that in my judgment, on a charge of obstruction of the highway, the only time relevant for the purposes of conviction for an offence under section 137 of the Highways Act 1980 was the time when the highway was obstructed. The time cannot depend on whether the appellants would have engaged in a longer protest if they had been able to do so or, per contra, whether they believed that the police would have been more quick-fingered and brought their protest to an end more quickly.

112.         This second criticism of the district judge’s proportionality assessment was wrong is based on para 38(f) of the Case Stated which reads:

“The action was limited in duration. I considered that it was arguable that the obstruction for which the defendants were responsible only occurred between the time of their arrival and the time of their arrests - which in both cases was a matter of minutes. I considered this since, at the point when they were arrested the defendants were no longer ‘free agents’ but were in the custody of their respective arresting officers and I thought that this may well have an impact on the issue of ‘wilfulness’ which is an essential element of this particular offence. The prosecution urged me to take the time of the obstruction as the time between arrival and the time when the police were able to move the defendants out of the road or from the bridge. Ultimately, I did not find it necessary to make a clear determination on this point as even on the Crown’s interpretation the obstruction in Ziegler lasted about 90-100 minutes.”

113.         As I read that subparagraph, the district judge was prepared to accept that the duration of the protest was either the few minutes that the appellants were free to make their protest before they were arrested or the entire time that they were on the highway until the police managed to remove them. There was a difficult point of law (or mixed fact and law) involved (“whether the defendants were ‘free agents’ [or] were in the custody of” the police after their arrest). The district judge held that that point did not have to be decided because, either way, in the judgment of the district judge, the duration of the protest was limited. That was the district judge’s judgment on the length of time relative to the impeding of the highway. It was not a normative assessment, but an application of the Convention requirement to achieve a fair balance of the relevant rights and of the principle determined on the second issue on this appeal (on which this court is unanimous) to the facts found by the judge who heard all the evidence. It cannot be said that the finding contains some “identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion” (see para 104 above). It was a judgment which the district judge was entitled to reach. In my judgment this court should not on established principles substitute its own judgment for that of the district judge on that evaluation of the facts. Therefore, it should not set aside his proportionality assessment on that point.

Certified Question 2: Convention-legitimacy of obstruction and concluding observations on the district judge’s fact finding in this case

114.         As I have already explained, before the Human Rights Act 1998 came into force an offence under section 137(1) of the Highway Act 1980 or its predecessor, section 121 of the Highway Act 1959, could be committed by any obstruction. Now that the Human Rights Act 1998 has been enacted and brought into force, the courts interpret section 137 conformably with the Convention and the jurisprudence of the Strasbourg court. Under that jurisprudence, the state must show a certain degree of tolerance to protesters and it is accepted that in some circumstances protesters can obstruct the highway in the course of exercising their article 11 right. Thus, for example, the Strasbourg court held in Kuznetsov v Russia [2008] ECHR (Application No 10877/04), at para 44:

“Finally, as a general principle, the court reiterates that any demonstration in a public place inevitably causes a certain level of disruption to ordinary life, including disruption of traffic, and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by article 11 of the Convention is not to be deprived of all substance.”

115.         In the Case Stated, the trial judge noted that at trial the prosecution submitted that any demonstration that constituted a de facto obstruction of the highway lost the protection of articles 10 and 11 as it was unlawful. For the reasons he gave, the trial judge rejected that proposition and in my judgment he was correct to do so.

116.         I agree with Lord Hamblen and Lord Stephens’ thorough review of the considerations relied on by the trial judge. I have in relation to the first certified question dealt with the two criticisms which Lord Sales and Lord Hodge consider were rightly made. So, I make only some brief concluding points at this stage.

117.         Overall, in my respectful view, the district judge made no error of law in not finding facts on which no evidence was led, or if he failed to make a finding of secondary fact which it was not suggested at any stage was required to be made. Moreover, it appears that the prosecution made no representations about the content of the draft case as it was entitled to do under Criminal Procedure Rules, rule 35.3.6. Alternatively, if new facts are relevant to a proportionality assessment it would seem to me to be unfair to the appellants for an assessment now to be carried out in the manner proposed by Lord Sales and Lord Hodge, which could enable the prosecution to adduce new evidence or to seek additional findings of fact, which go beyond the Case Stated.

Conclusion

118.         For the reasons given above, I would allow this appeal and make the same order as Lord Hamblen and Lord Stephens.

LORD SALES: (dissenting in part) (with whom Lord Hodge agrees)

119.         This case concerns an appeal to the Divisional Court (Singh LJ and Farbey J) by way of case stated from the decision of District Judge Hamilton (“the district judge”) in the Stratford Magistrates’ Court, in relation to the trial of four defendants (whom I will call the appellants) on charges of offences under section 137 of the Highways Act 1980 (“section 137”). The case stated procedure is governed by section 111 of the Magistrates’ Courts Act 1980 and section 28A of the Senior Courts Act 1981. So far as relevant, section 111 only permits the appeal court to allow an appeal if the decision is “wrong in law”: section 111(1).

120.         I respectfully disagree with what Lord Hamblen and Lord Stephens say in relation to the first question of law certified by the Divisional Court, regarding the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of “lawful excuse” under section 137 in a case like this, where the issue on which the defence turns is the proportionality of the intervention by the police. I emphasise this last point, because there will be cases where the defence of “lawful excuse” does not depend on an assessment of what the police do.

121.         The second question of law certified by the Divisional Court concerns whether, in principle, a “lawful excuse” defence under section 137 could ever exist in a case involving deliberate physically obstructive conduct by protesters designed to block a highway, where the obstruction is more than de minimis. As to that, I agree with what Lord Hamblen and Lord Stephens say at paras 62-70. In principle, a “lawful excuse” defence might exist in such a case. Whether it can be made out or not will depend on whether the intervention by police to clear the highway involves the exercise of their powers in a proportionate manner. In general terms, I agree with the discussion of Lord Hamblen and Lord Stephens at paras 71-78 regarding factors which are relevant to assessment of proportionality in this context.

122.         I respectfully disagree with Lord Hamblen and Lord Stephens regarding important parts of their criticism of the judgment of the Divisional Court. In my opinion, the Divisional Court was right to identify errors by the district judge in his assessment of proportionality. However, in my view the Divisional Court’s own assessment of proportionality was also flawed. I would, therefore, have allowed the appeal on a more limited basis than Lord Hamblen and Lord Stephens, to require that the case be remitted to the magistrates’ court.

Human rights compliant interpretation of section 137 of the Highways Act

123.         Section 3(1) of the Human Rights Act 1998 (“the HRA”) requires a statutory provision to be read and given effect in a way which is compatible with the Convention Rights set out in Schedule 1 to the HRA, so far as it is possible to do so. Schedule 1 sets out relevant provisions of the European Convention on Human Rights (“the ECHR”), including article 10 (the right to freedom of expression) and article 11 (the right to freedom of peaceful assembly). Subject to limits which are not material for this appeal, section 6(1) of the HRA makes it unlawful for a public authority to act in a way which is incompatible with the Convention rights. The police are a public authority for the purposes of application section 6. So is a court: section 6(3)(a).

124.         The Divisional Court construed section 137 in light of the interpretive obligation in section 3(1) of the HRA and having regard to the duties of public authorities under section 6 of that Act. No one has criticised their construction of section 137 and I would endorse it. As the Divisional Court held (paras 61-65), the way in which section 137 can be read so as to be compatible with the Convention rights in article 10 and article 11 is through the interpretation of the phrase “without lawful … excuse” in section 137. In circumstances where a public authority such as the police would violate the rights of protesters under article 10 or article 11 by arresting or moving them, and hence would act unlawfully under section 6(1) of the HRA, the protesters will have lawful excuse for their activity. Conversely, if arrest or removal would be a lawful act by the police, the protesters will not have a lawful excuse.

125.         This interpretation of section 137 means that the commission of an offence under it depends upon the application of what would otherwise be an issue of public law regarding the duty of a public authority such as the police under section 6(1) of the HRA. Typically, as in this case, this will turn on whether the police were justified in interfering with the right of freedom of expression engaged under article 10(1) or the right to peaceful assembly under article 11(1), under article 10(2) or article 11(2) respectively. The applicable analysis is well-established. Importantly, for present purposes, the interference must be “necessary in a democratic society” in pursuance of a specified legitimate aim, and this means that it must be proportionate to that aim. The four-stage test of proportionality applies: (i) Is the aim sufficiently important to justify interference with a fundamental right? (ii) Is there a rational connection between the means chosen and the aim in view? (iii) Was there a less intrusive measure which could have been used without compromising the achievement of that aim? (iv) Has a fair balance been struck between the rights of the individual and the general interest of the community, including the rights of others? The last stage is sometimes called proportionality stricto sensu.

126.         In this case the police acted to pursue a legitimate aim, namely the protection of the rights and freedoms of others in being able to use the slip road. The first three stages in the proportionality analysis are satisfied. As will be typical in this sort of case, it is stage (iv) which is critical. Did the arrest and removal of the protesters strike a fair balance between the rights and interests at stake?

127.         At a trial for an alleged offence under section 137 it will be for the prosecution to prove to the criminal standard that the defendant did not have a lawful excuse, meaning in a case like the present that the public authority did not act contrary to section 6(1) of the HRA in taking action against him or her. But that does not change the conceptual basis on which the offence under section 137 depends, which involves importation of the test for breach of a public law duty on the part of the police.

128.         It is also possible to envisage a public law claim being brought by protesters against the police in judicial review, say in advance of a protest which is about to be staged, asserting their rights under article 10 and article 11, alleging that their arrest and removal by the police would be in breach of those rights and hence in breach of duty under section 6(1) of the HRA, and seeking declaratory or injunctive relief accordingly; or, after the intervention of the police, a claim might be brought pursuant to section 8 of the HRA for damages for breach of those rights. The issues arising in any such a claim would be the same as those arising in a criminal trial of an alleged offence under section 137 based on similar facts, although the burden and standard of proof would be different.

The role of the district judge and the role of the Divisional Court on appeal

129.         The district judge was required to apply the law correctly. He found that the police action against the protesters was disproportionate, so that they had a good defence under section 137. If, on proper analysis, the police action was a proportionate response, this was an error of law; so also if the district judge’s reasoning in support of his conclusion of disproportionality was flawed in a material respect. Conversely, in a case where the criminal court found that the police action was proportionate for the purposes of article 10 and article 11 and therefore held that a protester had no “lawful excuse” defence under section 137, but on proper analysis the action was disproportionate, that also would be an error of law open to correction on appeal.

130.         It is well established that on the question of proportionality the court is the primary decision-maker and, although it will have regard to and may afford a measure of respect to the balance of rights and interests struck by a public authority such as the police in assessing whether the test at stage (iv) is satisfied, it will not treat itself as bound by the decision of the public authority subject only to review according to the rationality standard: see A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 (“the Belmarsh case”), paras 40-42 and 44 (per Lord Bingham of Cornhill, with whom a majority of the nine-member appellate committee agreed); Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 11; R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100, paras 29-31 (Lord Bingham) and 68 (Lord Hoffmann); and R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, paras 46 (Lord Wilson), 61 (Lady Hale) and 91 (Lord Brown) (Lord Phillips and Lord Clarke agreed with Lord Wilson and Lady Hale). This reflects the features that the Convention rights are free-standing rights enacted by Parliament to be policed by the courts, that they are in the form of rights which are enforced by the European Court of Human Rights on a substantive basis rather than purely as a matter of review according to a rationality standard, and that the question whether a measure is proportionate or not involves a more searching investigation than application of the rationality test. Thus, in relation to the test of proportionality stricto sensu, even if the relevant decision-maker has had regard to all relevant factors and has reached a decision which cannot be said to be irrational, it remains open to the court to conclude that the measure in question fails to strike a fair balance and is disproportionate.

131.         Similarly, a lower court or tribunal will commit an error of law where, in a case involving application of the duty in section 6(1) of the HRA, it holds that a measure by a public authority is disproportionate where it is proportionate or that it is proportionate where it is disproportionate. Where the lower court or tribunal has directed itself correctly as to the approach to be adopted in applying a qualified Convention right such as article 10 or article 11, has had proper regard to relevant considerations and has sought to strike a fair balance between rights and interests at the fourth stage of the proportionality analysis an appellate court will afford an appropriate degree of respect to its decision. However, a judgment as to proportionality is not the same as a decision made in the exercise of a discretion, and the appellate court is not limited to assessing whether the lower court or tribunal acted rationally or reached a conclusion which no reasonable court or tribunal could reach: see the Belmarsh case, para 44. There was a statutory right of appeal from the tribunal in that case only on a point of law. Lord Bingham noted at para 40 that in the judgment of the European Court of Human Rights in Smith and Grady v United Kingdom (1999) 29 EHRR 493 “the traditional Wednesbury approach to judicial review … was held to afford inadequate protection” for Convention rights and that it was recognised that “domestic courts must themselves form a judgment whether a Convention right has been breached” and that “the intensity of review is somewhat greater than under the rationality approach” (citing R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, paras 23 and 27). At para 44, Lord Bingham held that the finding of the tribunal on the question of proportionality in relation to the application of the ECHR could not be regarded as equivalent to an unappealable finding of fact. As he explained:

“The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom … Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review [ie by an appellate court].”

132.         Since that decision, this court has developed the principles to be applied to determine when an appellate court may conclude that a lower court or tribunal has erred in law in its proportionality analysis. So far as concerns cases involving a particular application of a Convention right in specific factual circumstances without wide normative significance, such as in the present case, it has done this by reference to and extrapolation from the test set out in CPR Part 52.11 (now contained in Part 52.21). An appellate court is entitled to find an error of law if the decision of the lower court or tribunal is “wrong”, in the sense understood in that provision: see In re B (a Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, paras 88-92 (Lord Neuberger of Abbotsbury, with whom Lord Wilson and Lord Clarke agreed); R (AR) v Chief Constable of Greater Manchester Police [2018] UKSC 47; [2018] 1 WLR 4079, paras 53-65 (Lord Carnwath, explaining that the appellate court is not restricted to intervening only if the lower court has made a significant error of principle); R (Z) v Hackney London Borough Council [2020] UKSC 40; [2020] 1 WLR 4327, paras 56 and 74. In the latter case it was explained at para 74 that the arguments for a limited role for the appellate court in a case concerned with an assessment of proportionality in a case such as this are of general application and the same approach applies whether or not CPR Part 52.21 applies. This is an approach which limits the range of cases in which an appellate court will intervene to say that a proportionality assessment by a lower court or tribunal involved an error of law, but still leaves the appellate court with a greater degree of control in relation to the critical normative assessment of whether a measure was proportionate or not than an ordinary rationality approach would do. In determining whether the lower court or tribunal has erred in law in its assessment of proportionality, it may be relevant that it has had the advantage of assessing facts relevant to the assessment by means of oral evidence (as in In re B (a Child)); but this is not decisive and the relevant approach on appeal is the same in judicial review cases where all the evidence is in writing: see R (AR) v Chief Constable of Greater Manchester Police and R (Z) v Hackney London Borough Council.

133.         In my judgment, the approach established by those cases also applies in the present context of an appeal by way of case stated from the decision of a magistrates’ court. Where, as here, the lower court has to make a proportionality assessment for the purposes of determining whether there has been compliance by a public authority with article 10 or article 11, an appellate court is entitled, indeed obliged, to find an error of law where it concludes that the proportionality assessment by the lower court was “wrong” according to the approach set out in those cases. The Divisional Court directed itself that it should follow that approach. In my view, it was right to do so.

134.         I respectfully disagree with Lord Hamblen and Lord Stephens in their criticism of the Divisional Court in this regard. In my view, it is not coherent to say that an appellate court should apply a different approach in the context of an appeal by way of case stated as compared with other situations. The legal rule to be applied is the same in each case, so it is difficult to see why the test for error of law on appeal should vary. The fact that an appeal happens to proceed by one procedural route rather than another cannot, in my view, change the substantive law or the appellate approach to ensuring that the substantive law has been correctly applied.

135.         By way of illustration of this point, as observed above, essentially the same proportionality issue could arise in judicial review proceedings against the police, to enforce their obligation under section 6(1) of the HRA directly rather than giving it indirect effect via the interpretation of section 137. The approach on an appeal in such judicial review proceedings would be that set out in In re B (a Child) and the cases which have followed it. To my mind, it makes little sense to say that this same issue regarding the lawfulness of the police’s conduct should be subject to a different test on appeal. The scope for arbitrary outcomes and inconsistent rulings is obvious, and there is no justification for adopting different approaches.

136.         To say, as the Divisional Court did, that the proper test of whether the district judge had reached a decision which was wrong in law on the issue of proportionality of the action by the police is that derived from In re B (a Child) is not inconsistent with the leading authority of Edwards v Bairstow [1956] AC 14. That case involved an appeal by way of case stated on a point of law from a decision of tax commissioners regarding application of a statutory rule which imposed a tax in respect of an adventure in the nature of trade. The application of such an open-textured rule depended on taking into account a number of factors of different kinds and weighing them together. As Lord Radcliffe said (p 33), it was a question of law what meaning was to be given to the words of the statute; but since the statute did not supply a precise definition of the word “trade” or a set of rules for its application in any particular set of circumstances, the effect was that the law laid down limits “within which it would be permissible to say that a ‘trade’ [within the meaning of the statutory rule] does or does not exist”. If a decision of the commissioners fell within those limits, it could not be said to involve an error of law. The decision to decide one way or the other would be a matter of degree which could, in context, best be described as a question of fact. Lord Radcliffe then stated the position as follows (p 36):

“If the case [as stated] contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that, this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.”

137.         In a well-known passage in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410-411, Lord Diplock explained that, as with Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223), Lord Radcliffe’s explanation of an inferred error of law not appearing ex facie was now to be regarded as an instance of the application of a general principle of rationality as a ground of review or the basis for finding an error of law. However, as stated by Lord Bingham in the Belmarsh case and other authorities referred to above, irrationality may be insufficient as a basis for determining whether there has been an error of law in a case involving an assessment of proportionality. It may be that in such an assessment a lower court or tribunal has had proper regard to all relevant considerations, has not taken irrelevant considerations into account, and has reached a conclusion as to proportionality which cannot be said to be irrational, yet it may still be open to an appellate court to say that the assessment was wrong in the requisite sense. If it was wrong, that constitutes an error of law which appears on the face of the record. The difference between Edwards v Bairstow and a case involving an assessment of proportionality for the purposes of the ECHR and the HRA is that the legal standard being applied in the former is the standard of rationality and in the latter is the standard of proportionality.

138.         Having said all this, however, the difference between application of the ordinary rationality standard on an appeal to identify an error of law by a lower court or tribunal and the application of the proportionality standard for that purpose in a context like the present should not be exaggerated. As Lord Carnwath said in R (AR) v Chief Constable of Greater Manchester Police at para 64 (in a judgment with which the other members of the court agreed) of the approach to a proportionality assessment to be adopted on appeal, in a passage to which Lord Hamblen and Lord Stephens also draw attention:

“… to limit intervention to a ‘significant error of principle’ is too narrow an approach, at least if it is taken as implying that the appellate court has to point to a specific principle - whether of law, policy or practice - which has been infringed by the judgment of the court below. The decision may be wrong, not because of some specific error of principle in that narrow sense, but because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be ‘wrong’ under CPR 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation. As Elias LJ said (R (C) v Secretary of State for Work and Pensions [2016] EWCA Civ 47; [2016] PTSR 1344, para 34):

‘… the appeal court does not second guess the first instance judge. It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong.’”

However, this is not to say that the standard of rationality and the standard of proportionality are simply to be treated as the same.

139.         I find myself in respectful disagreement with para 45 of the judgment of Lord Hamblen and Lord Stephens. It seems to me that the proper approach for an appellate court must inevitably be affected by the nature of the issue raised on the appeal. If the appeal is based on a pure point of law, the appellate court does not apply a rationality approach. The position is different if the appeal concerns a finding of fact. This is recognised in the speeches in Edwards v Bairstow. The effect of the rights-compatible interpretation of section 137 pursuant to section 3 of the HRA is that a public law proportionality analysis is introduced into the meaning of “lawful excuse” in that provision, and in my view the proper approach for an appellate court to apply in relation to that issue is the one established for good reason in the public law cases.

140.         It is clearly right to say, as Lady Arden emphasises, that an assessment of proportionality has to be made in the light of the facts found by the court, but in my opinion that does not mean that the assessment of proportionality is the same as a finding of fact nor that the same approach applies on an appeal for identifying an error of law. As the European Court of Human Rights explained in Vogt v Germany (1996) 21 EHRR 205, in setting out the principles applicable in relation to reviewing a proportionality assessment under article 10 (para 52(iii), omitting footnotes):

“The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts.”

Lord Bingham explained in the Belmarsh case that a domestic court reviewing the proportionality of action by a public body should follow the same approach as the Strasbourg court.

The decision of the district judge

141.         I turn, then, to the decision of the district judge in applying section 137, in order to assess whether the case stated discloses any error of law.

142.         Assessment of the proportionality of police action in a case like this is fact sensitive and depends on all the circumstances. In broad terms, the interest of protesters in expressing their ideas has to be weighed against the disruption they cause to others by their actions, with account also being taken of other options open to them to express their ideas in an effective way: see Kudrevicius v Lithuania (2016) 62 EHRR 34, GC, para 97. The district judge directed himself correctly as to the interpretation of section 137 and the significance of an assessment of the proportionality of the intervention by the police.

143.         However, I consider that two of the criticisms of the decision of the district judge made by the Divisional Court were rightly made. First, at para 38(d) of the statement of case, the district judge said that the appellants’ actions were carefully targeted and thus, on the face of his assessment of proportionality, failed to bring into account in the way he should have done the fact that the relevant highway, even though just a sliproad leading to the Excel Centre, was completely obstructed by them as to that part of the dual carriageway (see para 112 of the judgment of the Divisional Court). I agree with the Divisional Court that, in the context of an assessment of the proportionality of police action to clear the highway, this was a highly material feature of the case. Since it was not referred to by the district judge, he failed to take account of “a material factor” (in the words of Lord Carnwath) or a relevant consideration (as it is usually referred to in the application of Wednesbury and Edwards v Bairstow), and accordingly his assessment of proportionality was flawed for that reason.

144.         Secondly, at para 38(f) of the statement of case, the district judge said that the action was limited in duration and gave this feature of the case significant weight in his assessment of proportionality. At para 114 of its judgment, the Divisional Court said:

“In our view, that analysis displays an erroneous approach. The reason why the obstruction did not last longer was precisely because the police intervened to make arrests and to remove the respondents from the site. If they were exercising lawful rights, they should not have been arrested or removed. They might well have remained at the site for much longer. On any view, as was common ground, the duration of the obstruction of the highway was not de minimis. Accordingly, the fact is that there was a complete obstruction of the highway for a not insignificant amount of time. That is highly significant, in our view, to the proper evaluative assessment which is required when applying the principle of proportionality.

I agree. In my view, the district judge’s assessment left out what was one of the most significant features of the action taken by the appellants. They went to the sliproad with special equipment (the specially constructed boxes to which they attached themselves) designed to make their action as disruptive and difficult to counter as was possible. They intended to block the highway for as long as possible. The fact that their action only lasted for about 90-100 minutes was because of the swift action of the police to remove them, which is the very action the proportionality of which the district judge was supposed to assess. I find it difficult to see how the action of the police was made disproportionate because it had the effect of reducing the disruption which the appellants intended to produce.

145.         Therefore, the district judge left out of his assessment this further material factor or relevant consideration; alternatively, one could say that he took into account or gave improper weight to what was in context an immaterial factor, namely the short duration of the protest as produced by the very intervention by the police which was under review.

146.         In my opinion, by reason of both these material errors by the district judge, the proportionality assessment by him could not stand. The case as stated discloses errors of law. This is so whether one applies ordinary Wednesbury and Edwards v Bairstow principles according to the rationality standard or the enhanced standard of review required in relation to a proportionality assessment and the appellate approach in In re B (a Child) and the cases which follow it. In fact, the Divisional Court held both that the district judge had erred in a number of specific respects in his assessment of proportionality and that his overall assessment was “wrong” in the requisite sense: paras 117 and 129.

The decision of the Divisional Court

147.         Since the district judge had made the material errors to which I have referred, in my judgment the Divisional Court was right to allow the appeal pursuant to section 111(1) of the Magistrates’ Courts Act 1980 on the grounds that the decision disclosed errors of law.

148.         The question then arises as to what the Divisional Court should have done in these circumstances. Here, the fact that the appeal was by way of case stated is significant. The court hearing such an appeal may determine that there has been an error of law by the lower court but also find that the facts, as stated, do not permit the appeal court to determine the case for itself. Section 28A(3) of the Senior Courts Act 1981 provides in relevant part that:

“The High Court shall hear and determine the question arising on the case … and shall -

(a)       reverse, affirm or amend the determination in respect of which the case has been stated; or

(b)       remit the matter to the magistrates’ court … with the opinion of the High Court,

and may make such other order in relation to the matter (including as to costs) as it thinks fit.”

149.         The Divisional Court considered that, having allowed the appeal, it was in a position to reverse the determination regarding the application of section 137 in respect of which the case had been stated. The Divisional Court made its own determination that the intervention of the police had been a proportionate interference with the appellants’ rights under article 10(1) and article 11(1), with the result that the appellants had no “lawful excuse” for their activity for the purpose of section 137, and therefore substituted convictions of the appellants for offences under that provision.

150.         In my judgment, this went too far. As I have said, the assessment of proportionality of police action against protesters in a case like this is highly fact-sensitive. In my view, the facts as set out in the stated case did not allow the Divisional Court simply to conclude that the police action was, in all the circumstances of the case, proportionate. The decision to be made called for a more thorough assessment of the disruption in fact achieved (and likely to have been achieved, if the police did not intervene) by the protesters, the viability and availability of other access routes to the Excel Centre, and the availability to the protesters of other avenues to express their opinions (such as by way of slow marching, as it appears the police had facilitated for others at the location). The Divisional Court did not have available to it the full evidence heard by the district judge, only a summary as set out in the case stated which disclosed his error of law. Therefore, the proper course for the Divisional Court should have been to allow the appeal but to remit the matter to the magistrates’ court for further examination of the facts. If the case had been remitted to the district judge, he could have approached the case in relation to the issue of proportionality on a proper basis and set out further findings based on the evidence presented to him. With the passage of time, that might not now be feasible, in which case the effect would have been that there was a mistrial and further examination of the facts would have to be by way of a re-trial.

151.         I would therefore have allowed the appeal against the order of the Divisional Court to this extent. The order I would have made is that the appeal against the determination by the Divisional Court, that the appeal against the district judge’s decision be allowed, should be dismissed, but that an order for remittal to the magistrates’ court should be substituted for the convictions which the Divisional Court ordered should be entered.

152.         In addition, I respectfully consider that the Divisional Court’s own assessment of proportionality (on the basis of which it determined that the protesters had committed the offences under section 137 with which they were charged) was flawed in another respect. Unlike Lord Hamblen and Lord Stephens, I do not myself read the Divisional Court as saying that points (a) to (c) in para 38 of the case stated were of little or no relevance; at para 111 of its judgment the court only said that none of those points “prevents the offence of obstruction of the highway being committed in a case such as this”. The Divisional Court correctly identified point (e) as significant and made a correct evaluation of point (g). However, I agree with Lord Hamblen and Lord Stephens that the Divisional Court’s assessment of point (h) at para 116 was flawed: para 80 above and City of London Corpn v Samede [2012] EWCA Civ 160; [2012] PTSR 1624, paras 39-41. This court is not in a position to assess proportionality for itself, given the limited factual picture which emerges from the case stated. Again, the conclusion I would draw is that the appeal to this court should be allowed to the limited extent I have indicated.

153.         I would answer the first question certified by the Divisional Court (para 7(1) above) as follows: in a case like the present, where the defence of “lawful excuse” under section 137 depends on an assessment of the proportionality of the police response to the protest, the correct approach for the court on an appeal is that laid down in In re B (a Child) and the cases which follow and apply it.

154.         I would answer the second question certified by the Divisional Court (para 7(2) above) in the affirmative: deliberate physically obstructive conduct by protesters, where the impact of the deliberate obstruction on other highway users is more than de minimis, and prevents them, or is capable of preventing them, from passing along the highway, is in principle capable of being something for which there is a “lawful excuse” for the purposes of section 137. Whether it does so or not will depend on an assessment of the proportionality of the police response in seeking to remove the obstruction.


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