Obstruction of the Highway. A bad case. Severely limits rights of defendant to present evidence about unlawful activities in connection with an obstruction of the highway charge.
This case has not been reported in the law journals, only in the Independent for 13/1/2000. You can still use the case in court, but you have to say that it is “unreported” and state that your transcript comes from the Smith-Bernal website. You could also give the reference to the one-paragraph summary at [2000] 2 C.L. 100, which you would read out as “year 2000, volume 2 of Current Law, paragraph 100.”
Stephen Birch was arrested for lying down in the road in front of a vehicle destined for SARP’s premises in Killamarsh, Derbyshire, in November 1998.[note] Both this vehicle and other (public) vehicles were obstructed.
In his trial, before the Chesterfield stipendiary magistrate, he wanted to present evidence about the unlawful activities of SARP, thereby arguing that his actions were reasonable and aimed at preventing crime (“lawful excuse” and “prevention of crime” defences). The magistrate refused to hear his evidence, and he was convicted.
He appealed by ‘stated case’ (i.e. on a matter of law) to the ‘Divisional Court’. His appeal was rejected—this is the judgment of the Divisional Court in rejecting his appeal.
The defence case, in brief
There were two parts of the defence, as follows. Note that these two grounds are a bit mixed up in the judgment.
1)The activity of lying down in the road was a reasonable one, that gave rise to a defence of “lawful authority or excuse” under the Highways Act 1980. This defence used the cases of Hirst and Agu v Chief Constable of West Yorkshire, 1987, and Nagy v Weston, 1965.[note]
2)The activity was taken in order to prevent crime, in accordance with s.3 of the Criminal Law Act 1967.[note] Therefore, the magistrate should have allowed him to lead evidence about the alleged unlawful activities of SARP before he could dismiss this defence.
Why the “lawful excuse” defence failed
The first ground of defence is dismissed by distinguishing the Hirst and Agu case, as follows:[note]
The question which there [in Hirst and Agu] arose was whether the lawful activity of handing out leaflets was a reasonable activity providing lawful excuse. In the present case, deliberately lying down in the road so as to obstruct the highway and traffic flowing along it was not, on its face, a lawful activity. (Rose LJ)
Mr Perry submitted that, in the present case, no question of lawful excuse can arise because the use of the highway by the appellant [i.e. Birch] in obstructing it was not in itself lawful and was inconsistent with the primary right of other uses of the highway. Because the appellant’s actions gave rise to trespass, public nuisance and private nuisance they were not within any category of lawful excuse, aside from the question of prevention of crime. (Rose LJ)
I.E. Handing out leaflets is normally lawful, but lying in the road isn’t, so there’s no question of a “lawful authority or excuse” under the Highways Act 1980.
Why the “prevention of crime” defence failed
The second ground of defence was the crucial one, because it involved the evidence which Birch was not allowed to even present at his original trial. Its rejection is a bit more complicated. The grounds for rejecting it can be summarised as follows:
a)The test of whether something is a “crime” (which we can justifiably use reasonable force to try to prevent) is an objective not a subjective test: it’s not a matter of our “belief” but of proving that something actually is criminal.
b)The crime being prevented must be an imminent breach of the peace or other serious offence.
c)There has to be an actual (or imminent) crime on or near the highway itself: you cannot obstruct a vehicle that could merely be contributing to crime elsewhere.
d)The activity would have to actually prevent (or be capable of preventing) the crime, not merely draw attention to it.
More detail on the judgment relating to “prevention of crime” defence
First, the CPS barrister is quoted as saying that the “prevention of crime” cannot rely merely on an “honest” or “reasonable” belief (i.e. you have to prove that the activity is actually criminal, not just that you believe it to be so):
The defence here advanced of prevention of crime would involve a defendant being judged on the basis of the facts as he believed them to be and that, submitted Mr Perry, is not a proposition which follows either from Duffy or from section 3 of the Criminal Law Act. (Rose LJ, summarising CPS arguments)
Most of the useful comments relating to the “prevention of crime” defence (under s.3 of the Criminal Law Act 1967) come in the “Rider” to Lord Justice Rose’s judgment, and in Mrs Justice Smith’s judgment.
An honest and reasonable belief that the progress of a vehicle may contribute to criminal activity not amounting to an imminent breach of the peace or other serious offence is not, in my judgment, capable of affording lawful excuse for obstructing the passage along the highway of that vehicle, still less of other vehicles unconnected with it.
A demonstration involving lying down in the road, as it seems to me, may possibly draw attention to crime but it cannot, in my judgment, give rise to the prevention of crime within either the principle of Duffy or section 3 of the Act. (Rose LJ, rider to judgment)
however, it will not be the prevention of any crime which would be capable of amounting to such a lawful excuse and I agree with what my Lord has said that it will only be where there is an imminent danger of a breach of the peace or some other serious crime being committed that the possibility will arise of those circumstances amounting to a lawful excuse to obstruct the highway. (Smith Mrs J)
This is not a case that you are likely to want to raise yourself—it’s extremely unfriendly. But you need to be able to “distinguish” it in case it is raised by the prosecution, and you might even want to raise it yourself if you want to preempt the prosecution’s use of it and you think you can answer the problems with it well enough.
If you’re determined to argue from Hirst and Agu etc
In terms of the “lawful authority or excuse” part of the defence (as arising from the Highways Act 1980 itself, and from the Hirst and Agu case), this case makes it very hard to defend any action that is clearly deliberately obstructive (like standing in front of a vehicle). I think there are two possible approaches.
•You could point out that the argument in the judgment is a bit circular, thus suggesting that it is legally wrongly arrived at (a very bold thing to do, especially in a magistrates’ court). The judgment says that “lawful excuse” can only apply to an activity that is “otherwise lawful,” like handing out leaflets, and not to one that is patently unlawful, like blocking the highway. But the latter is only ‘patently unlawful’ under the Highways Act 1980, so it’s not very fair to say that it prevents you raising a defence under that act. (Lying in the road is intrinsically no more unlawful than handing out leaflets.)
•Alternatively, you could try to argue that the issue of nuclear weapons is so huge, and so potentially dangerous for the whole planet, and of such public importance (national and international), that even obstructing a vehicle associated with the nuclear weapons programme satisfies the “reasonable in the circumstances” criterion laid down in Nagy v Weston.
The first argument above unfortunately ignores the statements about obstructing the highway being a “public nuisance” and “private nuisance” and this would probably scupper it.
The second argument relies on a subjective assessment of what issues matter most in society, and doesn’t really answer the Birch case, but it stands a chance of being heard even if very little chance of success. It also enables you to argue about the nuclear issue instead of legal technicalities, and to appeal to the magistrates’ sense of what’s “reasonable” — they don’t have to agree with us that Trident is evil, just that it’s a major issue, which they can hardly deny.
Arguing the “prevention of crime” defence
This stands a bit more chance—at least it’s easier to answer the Birch arguments and hopefully therefore be able to present a decent defence. The points that you would need to make (and have evidence for) are as follows:
•that the vehicle you stopped was itself implicated in the crime, or actually committing it (e.g. nuclear convoy vehicles?);
•that the crime is a very serious one, not just any illegal activity;
•that your actions were not merely drawing attention to the crime, but were themselves (or could have been) preventing it.
A useful passage is from the start of the ‘rider’ by Lord Justice Rose to his judgment:
Whether or not preventing crime affords a defence to a particular charge must depend on the circumstances.
There may be circumstances in which preventing an actual, or imminently apprehended, breach of the peace of other serious offence, on or near the highway, will afford a lawful excuse for obstructing the passage along the highway of one or more vehicles. (Rose LJ)
© 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).
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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
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