Arla Foods Ltd v Persons Unknown, 2024 WL 03597159 (2024)
71. In DPP v Ziegler [2021] UKSC 23; [2022] AC 408 , the Supreme Court endorsed at [58] the Divisional Court's identification of the five questions that arise when an Article 10 or 11 right may be engaged, which was expressed in the following terms by the Divisional Court:
"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?"
© 2025 Thomson Reuters. (3) As the European Court explained in Appleby at [43] , one must also consider the rights under Article 1 of Protocol 1: " while freedom of expression is an important right, it is not unlimited. Nor is it the only Convention right at stake. 197 13 In Ziegler , the question arose in the context of a statutory provision, namely section 137(1) of the Highways Act 1980 . 72. It is convenient to deal in this section on the legal principles with whether Articles 10 and 11 could justify a trespass in the present case. In my judgment, they could not, for the following reasons: (1) The exercising of rights under Articles 10 and 11 cannot normally justify a trespass: Cuciurean (2021) at [9(1)] to [9(2)]. Here, I see nothing to take this out of the ordinary case. (2) Articles 10 and 11 do not include any right to trespass when exercising those rights: Boyd (above) at [36]-[37]. The reason for that is that Articles 10 and 11 do not contain any right to protest on privately owned land: Secretary of State for Transport v Cuciurean [2022] EWCA Civ 661 ( "Cuciurean (2022)" ) at [31], applying the European Court of Human Rights decision in Appleby v UK (2003) 37 EHRR 38 . The Court of Appeal endorsed in the latter case the explanation of the Divisional Court at [45] of its judgment, where Lord Burnett CJ and Holgate J explained that: "there is no basis in the Strasbourg jurisprudence to support the respondent's proposition that the freedom of expression linked to the freedom of assembly and association includes a right to protest on privately owned land or upon publicly owned land from which the public are generally excluded. Instead, it has consistently said that articles 10 and 11 do not "bestow any freedom of forum" in the specific context of interference with property rights (see Appleby at [47] and [52] ). There is no right of entry to private property or to any publicly owned property. The further that the Strasbourg Court has been prepared to go is that where a bar on access to property has the effect of preventing any effective exercise of rights under articles 10 and 11, or of destroying the essence of those rights, then it would not exclude the possibility of a State being obliged to protect them by regulating property rights."
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