AFY & Ors, R. v

Factual and Procedural Background

This opinion concerns a prosecution appeal against a judge's ruling that six defendants charged with an offence under section 78(1) and (4) of the Police, Crime, Sentencing and Courts Act 2022 had no case to answer. The trial judge purported to grant leave to appeal, but the appellate court treated the matter as an application for leave due to procedural non-compliance. The defendants participated in a protest at the entrance to private premises, and the legal issue centers on the proper interpretation of section 78 of the 2022 Act in relation to the alleged offence.

Legal Issues Presented

1. Whether the defendants' conduct at the protest constituted an offence under section 78 of the Police, Crime, Sentencing and Courts Act 2022.
2. The proper interpretation of the phrase "a right that may be exercised or enjoyed by the public at large" within section 78(1)(b)(ii).
3. Whether obstruction of such a right must be total or prolonged to constitute an offence.
4. Whether it is necessary to prove that the public was actively exercising or attempting to exercise the right at the time of the obstruction.

Arguments of the Parties

Prosecution's Arguments

• Employees and legitimate visitors to the private premises were exercising a right that may be exercised or enjoyed by the public at large, despite the owners' ability to restrict entry.
• The legislation does not require the right of the public at large to be unfettered for section 78 to apply.

Defendants' Arguments

• The general public may have a right of access to private property only subject to specific conditions, such as ticket purchase, but this right does not belong to all members of the public.
• Employees and authorised persons were exercising private rights, not public rights as contemplated by section 78.
• The public at large do not have a right of access to private property in the relevant sense.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Smith (Joshua) [2024] EWCA Crim 1040	Interpretation of section 78(1)(b)(i) regarding harm to the public or a section of the public.	The court referred to the Law Commission's recommendations and explanatory notes to the 2022 Act to clarify the scope of the offence and rejected limitations based on private land access conditions.
Law Commission 2015 Report No 358	Recommendation to replace common law public nuisance with a statutory offence covering conduct endangering public life, health, property, or comfort.	The court used the report as authoritative guidance to interpret the statutory offence broadly, including obstruction of public rights under conditions.

Court's Reasoning and Analysis

The court began by examining the statutory language of section 78, noting the absence of definitions within the Act itself. It relied on the Law Commission's 2015 report and the explanatory notes to understand Parliament's intent to replace the common law offence with a statutory one covering harm or obstruction affecting the public or a section thereof.

The court distinguished between rights exercised by the public at large and private rights granted to specific individuals by landowners. It held that a right exercisable or enjoyable by the public at large is one to which the general public is entitled, even if subject to conditions such as ticket purchase or rules of conduct.

The court provided examples illustrating that public rights subject to qualification—such as attending a concert, traveling on public transport, or using a path on private land during permitted times—fall within the ambit of section 78. It emphasized that obstruction need not be total or prolonged; any interference that makes the exercise of a right more difficult or less convenient may suffice.

Crucially, the court found it unnecessary for the prosecution to prove that any member of the public was actively attempting to exercise the right at the time of obstruction; the existence of obstruction to a right exercisable by the public at large is sufficient.

Applying these principles, the court considered the defendants' protest at the entrance to private premises and the nature of the rights exercised by employees and visitors, ultimately framing the legal questions for further determination.

Holding and Implications

The court granted leave to appeal and clarified the interpretation of section 78 of the Police, Crime, Sentencing and Courts Act 2022 as it relates to public rights and obstruction.

The decision allows for publication of a partial anonymised judgment focused on points of principle, while maintaining reporting restrictions on the remainder of the case until the conclusion of the trial or further order. No new precedent was established beyond the interpretative guidance provided, but the ruling informs future applications of section 78 in cases involving protests and obstruction on private premises.