Arla Foods Ltd v Persons Unknown, 2024 WL 03597159 (2024)
Regard must also be had to the property rights of the owner of the shopping centre under Article 1 of Protocol No.1 ". That underlies the specific points in (1) and (2) above. (4) It appears that the result of the application of the above principles is that the proportionality exercise does not apply in a case where the protest takes place on private land: Cuciurean (2022) at [33]. 73. Therefore, as did Ritchie J in Valero Energy Limited v Persons Unknown [2024] EWHC 134 (KB) , I do not consider that articles 10 and 11 provide any defence to what would otherwise constitute a trespass in the present case. 74. It was accepted by the Claimants that I should consider whether articles 10 and 11 are engaged here, whether as a result of considering whether section 12 of the HRA applies, and if so in having particular regard to the importance of the ECHR right to freedom of expression, or the Court's duty as a public authority under section 6(1) of the HRA . Therefore, I do not need to consider that question further. Public nuisance 75. As in Ineos (above), the Claimants asked me to proceed on the basis that the same core principles applied to public nuisance and the criminal offence of obstructing the highway under section 137(1) of the Highways Act 1980 . I am content to do so, and would expect the two to march hand in hand. 76. As explained at [65] of that judgment, for there to be an offence under section 137(1) , it must be shown that:
"(1) There is an obstruction of the highway which is more than de minimis; occupation of part of a road, thus interfering with people having the use of the whole road, is an obstruction… (2) The obstruction must be wilful, ie. deliberate; (3) The obstruction must be without lawful authority or excuse; 'without lawful excuse' may be the same thing as 'unreasonably' or it may be that it must in addition be shown that the obstruction is unreasonable."
77. The purposes for which a highway may be used are not limited to travelling. As Lord Irvine stated in DPP v Jones [1999] 2 AC 240 at 245G-255A:
"The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. For the reasons I have set out below in my judgment it should. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the public to pass and repass, they should not constitute a trespass. Subject to these qualifications, therefore, there would be a right to peaceful assembly on the public highway."
78. A highway may be put to many other uses. It would be surprising if " two friends who meet in the street and stop to talk are committing a trespass; so too a group of children playing on the pavement outside their homes; so too charity workers collecting donations; or political activists handing out leaflets; and so too a group of Salvation Army singing hymns and addressing those who gather to listen ": [1999] AC 240 at 254F-G. Therefore, there is a right to peaceful assembly on the highway.
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