MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
(3) if the conditions of s.78 Police, Crime, Sentencing and Courts Act 2022 (or, prior to enactment, the common law offence of public nuisance) are met, obstruction of the highway may amount to public nuisance; and (4) a threatened or actual public nuisance can ground a civil claim upon proof of special damage. (a) Obstruction of the highway: s.137 Highways Act 1980 84. So far as material, s.137 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 imprisonment for a term not exceeding 51 weeks or a fine or both…”
85. Any occupation of part of a highway which interferes with people having the use of the whole of the highway is an obstruction; and unless the obstruction is so small that it is de minimis , any stopping on the highway is prima facie an obstruction. However, the prosecution must also prove that the person responsible for the obstruction was acting unreasonably. Resolving that issue depends on all the circumstances, including the length of time of the obstruction, the place where it occurs, the purpose for which it is done, and whether it does in fact cause an actual obstruction as opposed to a potential obstruction: Nagy -v- Weston [1965] 1 WLR 280 ; Hirst -v- Chief Constable of West Yorkshire (1987) 85 Cr App R 143, 151 . 86. These principles were approved by the Divisional Court in DPP -v- Ziegler [2020] QB 253 (and not subject to adverse comment in the Supreme Court [2022] AC 408 ). 87. The law resolves the tension between the criminal offence of obstruction of the highway, under s.137, and the right to protest (protected by Articles 10 and 11 of the ECHR) by recognising that some protest activities, that create an obstruction on a highway, can be defended on the basis that the right to protest provides a lawful excuse for the obstruction. That was the effect of Ziegler and Lord Reed gave the following summary in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2023] AC 505 (“ Northern Ireland Abortion Services ”): [22] Section 137 and the equivalent predecessor provisions have a long and specific history, and have been the subject of a great deal of judicial consideration. The approach adopted to section 137 and its predecessors for over a century prior to Ziegler was rooted in authorities which treated the question to be decided under the statute as similar to the question to be decided in civil nuisance cases of an analogous kind. On that basis, it was held that it was necessary for the court to consider whether the activity being carried on in the highway by the defendant was reasonable or not: see, for example, Lowdens -v- Keaveney [1903] 2 IR 82, 87 and 89 . That question was treated as one of fact, depending on all the circumstances of the case: Nagy -v- Weston [1965] 1 WLR 280, 284 ; Cooper -v- Metropolitan Police Commissioner (1985) 82 Cr App R 238, 242 and 244 . That approach accorded with the general treatment in the criminal law of assessments of reasonableness as questions of fact. In cases where the activity in question
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