Arla Foods Ltd v Persons Unknown, 2024 WL 03597159 (2024)
79. As Lord Reed explained in The Safe Access Zones Bill Reference [2022] UKC 32 at [22], the approach in Jones was, prior to the coming into force of the HRA , to use common law rights of freedom of speech and assembly as an important factor in assessing whether the use of the highway was reasonable. That would apply equally to section 137(1) as it would to the Public Order Act 1986 offence considered in Jones . 80. In Ziegler the Supreme Court considered the interaction of section 137(1) with Articles 10 and 11 in light of the coming into force of the HRA . The Court held that section 137 has to be read and given effect, in accordance with section 3 of the HRA , on the basis that the availability of the defence of lawful excuse, in a case raising issues under Articles 10 or 11, depends on a proportionality assessment, as the Divisional Court had considered. 81. Their Lordships in Ziegler adopted at [72] the non-exhaustive list of factors to consider when evaluating proportionality that had been set out by Lord Neuberger MR in City of London Corporation v Samede [2012] EWCA Civ 160 at [39]-[41] . Paraphrasing that content, those factors are: (1) the extent to which the continuation of the protest would breach domestic law; (2) the importance of the precise location to the protestors; (3) the duration of the protest; (4) the degree to which the protestors occupy the land; (5) 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; (6) whether the views giving rise to the protest relate to 'very important issues' and whether they are 'views which many 82. In the Safe Access Zones Bill Reference case, Lord Reed, giving the judgment of the Court, considered that the Divisional Court in Ziegler should- before resorting to the special interpretative duty imposed by section 3 of the HRA- have considered whether the established interpretation of section 137 , as stated for example by Lord Irvine in Jones , would result in a breach of Convention rights: [23]. However, given that the question of the need to apply in the context of section 137 the proportionality test set out in Ziegler was not before the Court, Lord Reed made no specific comment on it: [26]. 83. What he did address was the comment in Ziegler at [59] that " [d]etermination of the proportionality of an interference with ECHR rights is a fact-sensitive enquiry which requires the evaluation of the circumstances in the individual case ". He stated that while this might be the useful position in a criminal trial of offences charged under section 137 where Article 9, 10 or 11 rights were engaged, if the section was interpreted as it was in Ziegler , that would not universally be the case: [28]-[29]. Questions of proportionality, particularly where they concerned the compatibility of a rule or policy with ECHR rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case: [29]. Further, it is possible for a piece of legislation to ensure that its application in individual circumstances will meet the proportionality requirements under the ECHR without any need for evaluation of the circumstances in the individual case: [34]. would see as being of considerable breadth, depth and relevance'; and (7) whether the protestors 'believed in the views that they were expressing'. 84. Therefore, when a defendant relies on Article 9, 10 or 11 in the defence of a protest-related defence, the Court should- if those articles are engaged- consider whether the ingredients of the defence themselves strike the proportionality balance: [55]. If it considers that they do not strike such a balance, the Court's duty under section 6 of the HRA is to consider whether there is a means by which the proportionality of a conviction can be ensured, whether through using the interpretative duty under section 3 in the case of construing the legislation creating a statutory offence or developing the common law where the offence arises at common law: [56]-[61]. 85. In the present case, the Claimants accept, as explained above, that the requirements for public nuisance should be the same as those in section 137 of the Highways Act 1980 . Therefore, on the face of it, the proportionality requirements set out in Ziegler would apply, and I consider that I should apply them given that Lord Reed made clear in Safe Access Zones Bill Reference that he was not specifically considering this point in the context of section 137 . 86. The Claimants submit in relation to the injunction sought against persons unknown that it is not possible to apply the proportionality requirements under the ECHR to specific individual protestors because by definition the identity and circumstances of those individuals is not presently known. Rather at one should apply a proportionality test to the restrictions imposed by the draft order sought with future protests in mind. I accept that I should take the latter course.
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