Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The continuing failure of our law of public protest was made vivid again last week, when Amanda Kelly, a District Judge, found four members of Insulate Britain not guilty of the offence of wilful obstruction of the highway.
The four were part of a group of 38 protestors who during September 2021 blocked both directions of travel on the M25 between junctions nine and ten. The Judge’s decision may seem startling, because the defendants did, after all, wilfully obstruct the M25 in order to put pressure on the Government to yield to their demands. The decision is open to legal challenge in some respects, but its wider significance is that it confirms – again – that the law needs urgent reform.
No one can be convicted of obstructing the highway if he or she has a lawful excuse. The District Judge followed the lead set by the Supreme Court in its Ziegler judgment, in June 2021, and reasoned that a person has a lawful excuse if he or she is exercising Convention rights of expression and assembly – sometimes (inaccurately) termed a right to protest. The significance of the Ziegler judgment is that the Supreme Court ruled that a conviction would not be justified unless it was a proportionate interference with the exercise of the right to protest.
As Policy Exchange has argued repeatedly since that judgment, the Supreme Court’s ruling put police, prosecutors and trial courts in a very difficult position, not to mention the law-abiding public who should be entitled to use the highways free from obstruction. The Ziegler approach is that someone is only to be convicted if the judge or jury concludes that convicting him or her would, all things considered, be a justified interference in his or her freedom. But this is an unworkable standard for a criminal court to apply and one that risks politicising the courtroom. The question of proportionality should be decided by Parliament in enacting the offence itself.
The drawbacks with the Ziegler approach are widely recognised. The approach was deployed in the Colston statue trial, in relation to the offence of criminal damage, which also has a defence of acting with lawful excuse. As Policy Exchange said immediately after the trial, extending Ziegler to criminal damage was a mistake, which needed urgently to be reversed.
The then Attorney General, now Home Secretary, subsequently referred the point to the Court of Appeal, facing down a chorus of abuse from legal commentators. And the Court later narrowed the application of Ziegler in the context of criminal damage, which was an important development.
But the Ziegler approach continues to distort policing and prosecution of public order offences. Part of the reason that the police have had such difficulty getting to grips with Just Stop Oil, and similar groups, is the uncertainty that the judgment introduces, both in relation to the lawfulness of arresting protestors, but especially in relation to the prospect of securing a conviction. What can go wrong in the courtroom is revealed by the District Judge’s recent decision.
The Judge said that she had a difficult balancing act to perform, balancing the Convention rights of the defendants against the rights of others to go about their daily lives, including by travelling freely on the highway. She noted that the protestors only spent a short time on the road itself, although two glued themselves to the road, one lay down on it, and all four had to be physically removed by police. As in Ziegler itself, the brevity of the protest was a function of the efficiency of the police. The protestors targeted rush hour in order to maximise disruption
The Judge asserted that this was a peaceful protest. It is true that the protestors did not assault anyone, but they were clearly wiling to use and to provoke force, physically obstructing the highway and requiring others forcibly to remove them. It needs to be stressed that the protestors set out to disrupt the lives of others. This was not a protest that inadvertently caused disruption to others, as when thousands of protestors march together down a street, temporarily limiting the flow of traffic. On the contrary, the defendants (and the other 34 protestors, who should also have been charged) attempted to make their point by causing harm to others.
It is hard to avoid the conclusion that the Judge’s reasoning was distorted by sympathy for environmental protest. While ostensibly taking no view on the merits of the protest, the Judge went on to note the importance of the issue and the sincerity of the protestors. But the self-belief of Insulate Britain (or Just Stop Oil) should be no licence to obstruct the highway. It is difficult to imagine the court acting so gently towards those with different, but equally sincere, views, whether pro-life protestors (who our law treats severely) or anti-immigration protestors.
But perhaps the most astonishing part of the District Judge’s reasoning concerns her analysis of the impact that the obstruction of the highway had on the rights of others. The Judge accepted that the disruption was significant and that many members of the public would have been significantly inconvenienced. In terms of Ziegler, this should have been enough to establish that there was no lawful excuse.
However, the Judge went on to note that traffic on the M25 is often slow, that the delay the protest caused was similar to that caused by an accident or flying debris, and that there was no proof of grave consequences to any particular individual or business. This is setting the bar far too high. The offence does not require the obstruction to be more serious than an accident!
The prosecution can challenge the District Judge’s understanding of the law by inviting her to state a case for the High Court to consider. If the Judge were to refuse to do so, the prosecution should apply for judicial review.
This is necessary because the approach taken by the Judge makes the Ziegler judgment even less workable than it has been up until this point. The High Court should address the question whether the proportionality of conviction is a question of fact or a question of law. It should also specify that any evaluation of proportionality should not hold police efficiency against them, should not rely on the importance of the issue or the sincerity of the protestors, and, especially, should not turn on proof some kind of extraordinary disruption to the rights of others.
The High Court should have an opportunity to correct this decision. But it would be better still for Parliament to change the law, making clear that if protestors intend to cause disruption to others, they have no lawful excuse for obstructing the highway. The Public Order Bill is about to be enacted and, like the Police, Crime, Sentencing and Courts Act 2022 before it, will do very little to address the problems to which Ziegler has given rise. Policy Exchange proposed amendments that would have solved the problem. But Government support came too late, and the Lords narrowly rejected relevant amendments, which means the problem persists.
It is shameful that two enactments in successive years have failed to reform the law. It will be difficult to find parliamentary time, but the Government should now advance new legislation that will at last overturn the Ziegler judgment. Third time’s a charm?