MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
took the form of a protest or demonstration, common law rights of freedom of speech and freedom of assembly were treated as an important factor in the assessment of reasonable user: see, for example, Hirst -v- Chief Constable of West Yorkshire (1986) 85 Cr App R 143 . That approach was approved, obiter , by members of the House of Lords in Director of Public Prosecutions -v- Jones [1999] 2 AC 240, 258-259 and 290 . Lord Irvine of Lairg LC summarised the position at p 255: ‘the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage’. The same approach continued to be followed after the Human Rights Act entered into force: see, for example, Buchanan -v- Crown Prosecution Service [2018] EWHC 1773 (Admin) ; [2018] LLR 668 .
88. Lord Reed did criticise some aspects of the approach adopted by the Divisional Court in Ziegler ([23]-[25]), but recognised that the Supreme Court’s decision in Ziegler governed the proper approach to the interpretation of s.137 in protest cases: [26] … it was agreed between the parties, and this court accepted [in Ziegler ], that section 137 has to be read and given effect, in accordance with section 3 of the Human Rights Act, 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 carried out in accordance with the approach set out by the Divisional Court: see [10]-[12] and [16]. As that question is not in issue in the present case, we make no comment upon it. [27] One of the issues in dispute in the appeal was whether there can be a lawful excuse for the purposes of section 137 in respect of deliberate physically obstructive conduct by protesters, where the obstruction prevented, or was capable of preventing, other highway users from passing along the highway. Lord Hamblen and Lord Stephens concluded that there could be ( Jones was neither cited nor referred to). Lady Arden and Lord Sales expressed agreement in general terms with what they said on this issue. [28] In the course of their discussion of this issue, Lord Hamblen and Lord Stephens stated at [59]:
“Determination of the proportionality of an interference with ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case”. One might expect that to be the usual position at the trial of offences charged under section 137 in circumstances where articles 9, 10 or 11 are engaged, if the section is interpreted as it was in Ziegler ; and that was the only situation with which Lord Hamblen and Lord Stephens were concerned…
89. Lord Reed’s quarrel with Ziegler was with the suggestion – in [59] – that the Supreme Court had been stating a principle of universal application relevant to all contexts in which protest rights were engaged. It was this submission that Lord Reed rejected: [29]ff.
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