Pink table is no more
But can its supporters be charged with obstructing the highway?
More than 50 people were arrested yesterday in connection with the Extinction Rebellion demonstration in London, for what Scotland Yard described as “a variety of offences”. What might those be? And does a recent ruling by the UK Supreme Court provide protestors with a defence?
The demonstrators put up a large pink table at a road junction in Covent Garden, central London. Scaffolding was later erected around it to help the police take it down. But officers were told that attempts to dismantle the table would pose a danger to protestors who had shackled themselves to its structure:
Later, though, police officers in protective overalls and hard hats removed the structure:
There has been further disruption today in Whitehall. The police announced this afternoon that Parliament Street had been reopened to traffic and people who used “complicated lock-on devices” had been removed.
Obstructing the highway
The obvious charge when protestors block roads is wilful obstruction of a highway contrary to section 137 of the Highways Act 1980. This says:
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 [£1000].
There is no suggestion that the Covent Garden protesters had any “authority” to erect their table. So the question prosecutors will have to consider is whether they had a “lawful excuse” for obstructing free passage along the surrounding roads.
That question was considered recently by the UK Supreme Court in a case called DPP v Ziegler. The hearing was in January but judgment was not delivered until 25 June. That was because the five justices who heard the case disagreed on a number of issues.
At first sight, the facts look strikingly similar to the current protests. In September 2017, demonstrators wanted to disrupt deliveries to an arms fair that was due to open shortly at the Excel Centre in east London. Nora Ziegler, Henrietta Cullinan, Joanna Frew and Christopher Cole lay down on an approach road and attached themselves to “lock boxes” that were designed to make it difficult for the police to remove them. The police succeeded in doing so after about 90 minutes
There was no doubt that the demonstrators disrupted vehicles that had been heading to the Excel Centre. But there was also no doubt that these vehicles could have reached it by using an alternative route. Only one side of the dual carriageway was blocked.
An obstruction lasting less than two hours in an industrial zone on the outskirts of London is factually different from a 24-hour obstruction at a busy road junction in a central shopping area. But what does the law say?
Lawful excuse
Since the Human Rights Act 1998 came into force in 2000, “lawful excuse” has encompassed the rights to freedom of expression and peaceful assembly, guaranteed by articles 10 and 11 of the human rights convention. Those are not absolute and courts must balance the rights of the individual against the general interests of the community.
The courts have said that this task is fact-sensitive or fact-specific. In other words, the law has to strike a fair balance between the right to protest and the rights of others to carry on their daily activities.
District Judge Hamilton at Stratford magistrates’ court found that the protests in 2017 had been peaceful, targeted and limited in duration. There was no abuse or disorder. He decided that the defendants did have a lawful excuse and dismissed the charges against them.
The appeals
Normally, the prosecution cannot appeal against an acquittal. But the Magistrates’ Courts Act 1980 allows any party to appeal to the High Court on a question of law.
The Director of Public Prosecutions did so and the case came before Lord Justice Singh and Mrs Justice Farbey, sitting as a divisional court (one with two or more judges). They allowed the prosecution appeal in January 2019 and the four defendants were later sentenced to conditional discharges.
Because the law was still not thought to be clear, Ziegler and the other three defendants were given permission to appeal to the Supreme Court. The district judge was required to “state a case” — to summarise his ruling for consideration by the appeal court. The question to be decided was whether Hamilton’s decision was one that was reasonably open to him.
As the Magistrates’ Courts Act says, that has to be decided as a question of law. The High Court isn’t supposed to grant a appeal if the magistrates got the verdict wrong but the law right.
As long ago as 1946, though, the High Court found a way round that. Two lorry drivers in Cheshire were found to have been driving at over 40 miles an hour, even though vehicles of that class were restricted to 20mph. When stopped by the police, one said: “I was talking and I have no speedometer”. The other said he was trying to clear his carburettor. But magistrates at Knutsford found there was no danger to other traffic and cleared them of driving at a speed dangerous to the public.
Superintendent Bracegirdle of the local police appealed to the High Court and the case came before Lord Goddard, the notoriously irascible chief justice, and four other judges of whom the most junior was Mr Justice Denning.
Goddard thought the magistrates had behaved in a “somewhat contumacious manner” and warned them that if they persisted in giving rulings that were contrary to previous judgments of his court then they would find themselves in serious trouble.
Of course, he could not go behind their findings of fact. But he gladly accepted the argument, put by lawyers for the police, that the question of whether there was any evidence on which the magistrates could reach those findings was a question of law.
The “treasury devil” — the government’s jobbing barrister — was Hubert Parker, who was to succeed Goddard as chief justice in 1958. His brief was to defend the magistrates. But Goddard got Parker to concede that the High Court could overturn a decision if it was one that no reasonable bench of magistrates, acting properly, could have reached. It was as if the magistrates had reached a decision of fact without evidence to support it.
That approach was subsequently confirmed by the law lords.
Following these decisions, Lord Hamblen and Lord Stephens ruled two months ago in Ziegler that an appeal would be allowed from a magistrates’ court:
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 a case such as this, where the defence turned on whether the defendant’s actions were proportionate,
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 [by the district judge], unless there was no evidence for them or they were findings which no reasonable tribunal could have reached.
So that was the test. The next question was whether there could ever be a lawful excuse for deliberately obstructive conduct that stopped members of the public going about their lawful business.
“Yes”, answered Hamblen and Stephens. The district judge had decided the issue of proportionality in favour of the four protestors. “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,” they said. So the two justices voted to allow the appeal.
Lady Arden agreed, for broadly similar reasons. That meant that the charges against Ziegler, Cullinan, Frew and Cole were finally dismissed and their conditional discharges set aside. Other cases based on similar evidence have subsequently been withdrawn.
Lord Sales and Lord Hodge took a different approach to assessing proportionality. Whether there was a lawful excuse depended, they said, on an assessment of the proportionality of the police response in seeking to remove the obstruction. A full examination of the facts would probably have needed a retrial and they would have sent the case back to the magistrates’ court for reconsideration.
What all five justices agreed on was that the defence of lawful excuse depended on the circumstances of each case; in other words, it was fact-specific. So although this ruling provides guidance for magistrates dealing with similar cases in the future, it does not provide an easy way of predicting how these cases will be resolved.
For that reason, I think that Deputy Assistant Commissioner Matt Twist of Scotland Yard was right to say this at the weekend:
Like everyone else, Extinction Rebellion have the right to assemble and the right to protest. However these rights are qualified and are to be balanced against the rights of others. They do not have the right to cause serious disruption to London’s communities and prevent them going about their lawful business.
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