Introduction

The case of Director of Public Prosecutions v. Ziegler & Ors ([2021] UKSC 23) addresses significant intersections between public order legislation and human rights protections in the United Kingdom. The Supreme Court's decision provides crucial guidance on how appellate courts should assess proportionality in cases involving obstructive protests under the Highways Act 1980, specifically section 137, which penalizes the wilful obstruction of highways. Central to the case were the appellants' actions during the Defence and Security International (DSEI) arms fair in September 2017, where they deliberately obstructed access routes to the event as a form of protest against the arms trade.

Summary of the Judgment

The appellants, staunch opponents of the arms trade, positioned themselves in a dual carriageway approach road to the DSEI arms fair with the intent to disrupt traffic and draw attention to their cause. They were charged under section 137 of the Highways Act 1980 for wilful obstruction of a highway. Initially, the magistrates court acquitted them, citing their rights under Articles 10 and 11 of the European Convention on Human Rights (ECHR). However, upon appeal, the Divisional Court overturned this decision, leading the appellants to seek further redress from the Supreme Court.

The Supreme Court primarily addressed two certified questions:

1. What is the appropriate test for appellate courts when assessing trial courts' decisions regarding the statutory defense of lawful excuse when Convention rights are involved?
2. Can deliberate physical obstruction by protesters constitute a lawful excuse under section 137 of the Highways Act 1980 when it significantly impairs other highway users?

Ultimately, the Supreme Court upheld aspects of the Divisional Court's reasoning but also identified critical errors in the proportionality assessment made by the lower courts, leading to a nuanced resolution that emphasized the correct appellate standards for such cases.

Analysis

Precedents Cited

The judgment extensively engages with prior case law to frame the standards for appellate review in proportionality assessments. Key precedents include:

• Edwards v Bairstow [1956] AC 14: Established the standard for appellate courts to intervene only when a lower court's decision was not reasonably open to it, particularly in cases involving factual findings.
• In re B (a Child) [2013] UKSC 33: Refined the appellate test for proportionality assessments, emphasizing that appeals should only be allowed where there is a significant error in the lower court's reasoning.
• R (AR) v Chief Constable of Greater Manchester Police [2018] UKSC 47: Further clarified the nuanced approach appellate courts must take when reviewing proportionality, distinguishing it from pure rationality standards.
• Kudrevičius v Lithuania (2016) 62 EHRR 34 and Hashman v United Kingdom (2000) 30 EHRR 241: Provided European Court of Human Rights (ECtHR) perspectives on the limits and necessities of proportionality in assembly-related protests.

Legal Reasoning

The Supreme Court's reasoning focused on the appropriate standard of appellate review in cases where proportionality assessments intersect with Convention rights. The Court affirmed that appellate courts must apply the same rigorous standards established in prior cases like Edwards v Bairstow and In re B, ensuring that lower courts' proportionality assessments are free from material errors or flawed reasoning.

In addressing the second certified question, the Court recognized that while deliberate obstruction can engage Article 10 and Article 11 rights, such actions must be carefully weighed against their impact on other highway users. The decision underscored that lawful excuse under section 137 does not automatically apply when obstruction exceeds a de minimis impact, emphasizing the necessity of proportionality in assessing the legitimacy of the protesters' actions versus the general public's rights.

Impact

This judgment sets a definitive precedent for how appellate courts in the UK should approach proportionality assessments in cases involving obstructive protests under the Highways Act. It clarifies that appellate reviews must adhere to established standards, preventing lower courts from making disproportionate findings that could undermine human rights protections. Future cases involving similar intersections of public order laws and human rights will rely heavily on the principles elucidated in this decision, promoting consistency and fairness in judicial reviews.

Complex Concepts Simplified

Proportionality Assessment

Proportionality in legal terms refers to the balance between the rights of individuals and the interests of the community. When a person's actions infringe upon the rights of others, the law examines whether such interference is justified by checking if it is proportionate to the legitimate aim it seeks to achieve.

Appellate Review Standards

Appellate Review determines whether a lower court's decision was legally sound. Standards like Edwards v Bairstow require appellate courts to intervene only if the lower court's decision was unreasonable or flawed in essence, ensuring that judges have the autonomy to make factual determinations without unnecessary interference.

Lawful Excuse under Section 137

Lawful Excuse under section 137 of the Highways Act 1980 allows individuals to obstruct highways without penalty if their actions are justified, typically under human rights protections such as freedom of expression and assembly.

Human Rights Act 1998 (HRA)

The HRA incorporates the European Convention on Human Rights into UK law, obligating courts to interpret legislation in a manner compatible with Convention rights when possible. This ensures that actions by public authorities, including law enforcement, adhere to human rights standards.

Conclusion

The Supreme Court's decision in Director of Public Prosecutions v. Ziegler & Ors reaffirms the stringent standards appellate courts must uphold when reviewing proportionality assessments in the context of public protests and highway obstructions. By delineating clear guidelines for appellate review and emphasizing the importance of balancing individual rights against community interests, the judgment ensures that future legal determinations in similar cases are conducted with fairness, consistency, and respect for human rights. This landmark ruling not only clarifies the application of the Human Rights Act in public order offenses but also fortifies the judicial framework that protects both the rights of protesters and the public's right to unobstructed highway use.