Obstruction of the Highway. Establishes what is meant by “lawful excuse” when defending an Obstruction of the Highway charge. Useful for an otherwise ‘fluffy’ demonstration that blocks a road, but less useful for a blockade-type demo on a highway.
The reference to this case in the law journals (which you are supposed to quote in court) is 85 Cr.App.R. 143, which you read out as, “volume 85, Criminal Appeals Reports, page 143.”
The case arose from an animal rights protest in January 1985 in Bradford, involving leafletting and holding banners outside a fur shop, in a pedestrian precinct. The defendants (Hirst and Agu) were originally arrested for ‘breach of the peace’ as well as (in one case, rather than) obstruction of the highway, but were only charged with the obstruction.
They were convicted by Bradford magistrates and appealed to Leeds Crown Court.[note] They were convicted at the Crown court and appealed by ‘case stated’ (i.e. on a matter of law) to the Divisional Court. These appeals were upheld and the convictions quashed: this is the judgment of the Divisional Court.
The conviction was quashed because the Crown court had not considered whether they had “lawful excuse” for the obstruction, which is a matter of fact. Therefore, the convictions were unsafe and the appeal allowed.
The case sets out in detail the conditions for a defence of “lawful authority or excuse” under the Highways Act 1980 to succeed. Lord Justice Glidewell summarised the law thus:
First . . . is there an obstruction? Unless the obstruction is so small that one can consider it comes within the rubric de minimis, any stopping on the highway, whether it be on the carriageway or on the footway, is prima facie an obstruction.. . .
The second question then will arise: was it wilful, that is to say, deliberate? . . . if the stopping is deliberate, then there is wilful obstruction.
Then there arises the third question: have the prosecution proved that the obstruction was without lawful authority or excuse? Lawful authority includes permits and licences granted under statutory provision . . . . Lawful excuse embraces activities otherwise lawful in themselves which may or may not be reasonable in all the circumstances mentioned by Lord Parker in Nagy v Weston (supra). (Glidewell LJ, at p.151)
The reference to Nagy v Weston is to an earlier case, reference [1965] 1 All E.R. 78. The important part of the Nagy v Weston judgment is quoted in full in Hirst & Agu, and is as follows:
Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction. (Parker CJ, in Nagy v Weston, p.80D–E)
These two quotations taken together effectively define what is meant by “lawful excuse” when defending an obstruction of the highway charge. To summarise:
•the activity must be inherently lawful;
•it must be reasonable in the circumstances. This is a matter of fact not of law (i.e. it is for the magistrates to decide), using the criteria in the Parker quotation above (length of time, place, purpose).
This case is likely to be most useful if a fairly low-key or moderate demo leads to an obstruction of the highway charge. To succeed, you need to be able to appeal to the magistrates’ sense of what is “reasonable”—which may involve ‘down-playing’ the demo. Alternatively, you could try to argue that a much higher level of obstruction should be seen as “reasonable” when something as big as nuclear weapons is concerned. (This is less likely to succeed, but does allow our points about Trident etc to be made in court.)
This case might also be needed if the prosecution tries to use what is now an obsolete case, Waite v Taylor, 1985, reference 149 J.P. 551.[note] They may use this case to argue that any activity on a highway which is not strictly ancillary to or part of travelling (“passing and re-passing”) could be an offence. If this happens, point out that Waite v Taylor is specifically disapproved by Lord Justice Glidewell at page 150 of the Hirst & Agu case, and is therefore now superseded.
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”
I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 11/12/2001
(See the changelog and authorship page for revision details.)