Rethinking “Public Rights” under Section 78 PCSC Act 2022: The Court of Appeal’s Five-Point Framework in AFY & Ors ([2025] EWCA Crim 769)

1. Introduction

AFY & Ors, R. v ([2025] EWCA Crim 769) marks the first detailed appellate consideration of the statutory offence of intentionally or recklessly causing public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022 (“PCSC Act 2022”). The case arose from a protest staged at the entrance to privately owned premises. Six defendants were charged under section 78(1)(a)(i)–(c) for allegedly obstructing “the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large.” At trial the Crown Court judge upheld a “no-case” submission, holding that the prosecution had failed to prove the existence of the requisite public right.

The prosecution appealed under section 58 Criminal Justice Act 2003. Lord Justice Holroyde, giving the judgment of the Court of Appeal (Criminal Division), treated the matter as an application for leave and granted it in order to provide urgently needed guidance on the brand-new statutory regime.

The central question: What amounts to a “right that may be exercised or enjoyed by the public at large” for the purposes of section 78(1)(b)(ii)?

2. Summary of the Judgment

The Court allowed the prosecution’s appeal, overturned the trial judge’s termination ruling, and reinstated the case against all six defendants. In a substantive part of the decision, the Court articulated a five-point framework for interpreting section 78(1)(b)(ii):

  1. Public right = general entitlement. The expression refers to rights which the general public is entitled to exercise, not private or ad hoc permissions.
  2. Conditions permissible. A right need not be “wholly unqualified”; conditional rights (e.g., ticket-based entry, compliance with rules) remain within scope.
  3. Context matters. Courts must pinpoint where and how the alleged obstruction occurred, distinguishing pre-entry from post-entry acts.
  4. Obstruction need not be absolute. Hindering or impeding—even temporarily or partially—suffices.
  5. No requirement of frustrated attempt. The prosecution need not show that someone actually tried to exercise the right and failed.

On the facts, employees and authorised visitors were, in the Court’s view, exercising a conditional but nonetheless public right to enter premises open to the public at large. Consequently, the trial judge had erred in ruling there was “no case.” Partial publication of the principles was authorised, subject to continuing reporting restrictions under section 71 Criminal Justice Act 2003 and section 4 Contempt of Court Act 1981.

3. Analysis

3.1 Precedents Cited

  • R v Smith (Joshua) [2024] EWCA Crim 1040 – First appellate decision on section 78. Key holding: public nuisance may be committed on private land such as a ticketed venue. AFY builds directly on this by dissecting the “public right” limb.
  • Law Commission Report No 358 (2015) “Simplification of Criminal Law — Public Nuisance and Outraging Decency.” The Court quoted paragraph 3.45, endorsing the Commission’s broad understanding of public rights, echoing historic common-law flexibility.

3.2 Legal Reasoning

The Court’s reasoning pivots on statutory interpretation principles: (a) ordinary meaning of words; (b) purpose of the legislation; and (c) continuity with the common law. Highlights include:

  1. Textual Analysis. Section 78(1)(b)(ii) contains no express limitation to public highways or common land. Therefore, “public at large” must bear its natural meaning—any member of the general public.
  2. Purposive Approach. Parliament intended to codify, not narrow, common-law public nuisance, as evidenced by the Explanatory Notes and the Law Commission Report. A restrictive reading would defeat that purpose, re-instating gaps the 2022 Act was meant to close.
  3. Illustrative Examples. The Court deployed hypotheticals—music festivals, transport networks, permissive paths—to clarify real-world application and show that qualified rights fit comfortably within the statute.
  4. Rejection of “licensee = private right” thesis. While agreeing that pure licences do not create public rights, the Court held that once a landowner throws open premises or services to the public generally—even subject to fees or rules—the resulting entitlement is a public one for the relevant period.

3.3 Impact

The judgment is likely to have an immediate and far-reaching influence:

  • Protest Cases. Prosecutors now possess a clear analytical tool when charging activists who obstruct access to commercial premises, ticketed events, or critical infrastructure.
  • Corporate Security & Event Management. Operators of stadiums, shopping centres, and festivals gain statutory backing for seeking criminal sanctions against obstructive conduct, even if admission requires payment or passes.
  • Judicial Training. Trial judges can apply the five-point framework at half-time “no-case” submissions, ensuring uniform practice.
  • Erosion of Common-Law Ambiguities. With section 78 expressly abolishing common-law public nuisance, AFY provides the managerial bridge between the old and new regimes, thereby reducing uncertainty.
  • Human Rights Dimension. Defendants will likely pivot towards Article 10/11 ECHR “reasonable excuse” arguments, now that the public-right element is settled in the Crown’s favour.

4. Complex Concepts Simplified

  • Section 78 PCSC Act 2022. A modern statutory version of public nuisance. It criminalises (1) acts or omissions (2) causing serious harm or obstructing public rights (3) with intent or recklessness.
  • “Public at Large.” A broad term meaning anyone in the general public, not limited to specific categories.
  • Obstruction. Making it harder, slower, or less convenient for people to exercise a right—even briefly.
  • Conditional Public Right. A right open to the whole public but subject to conditions such as payment, time limits, or security checks.
  • Section 58 CJA 2003 Appeals. Allows the prosecution to appeal a terminating ruling (e.g., “no case to answer”) to secure a definitive interpretation of the law.
  • Reporting Restrictions (s.71 CJA 2003 & s.4 CCA 1981). Court orders preventing media reports to ensure fair trial, with partial publication of legal points permitted.

5. Conclusion

AFY & Ors furnishes the first comprehensive appellate construction of the “public rights” component in the new statutory offence of public nuisance. By confirming that conditional but general rights of access qualify, the Court has preserved the breadth of the old common-law protection while adding clarity through its five-point framework. The decision will steer charging decisions, trial rulings, and protest-related litigation for years to come, cementing section 78 as a powerful yet principled tool against disruptive conduct. Future disputes will likely migrate to the “reasonable excuse” defence and proportionality assessments under the ECHR, but the threshold question of public right has now been decisively answered.