The Supreme Court have delivered their judgment in the case of Ziegler today. This is one of the most significant cases in relation to protest cases for some years, and considered broadly two important matters (the full certified questions are not reproduced here):
- What is the test to be applied by an appellate court to an assessment of the decision of the trial court in when Convention rights are engaged in a criminal matter?
- Is deliberate physically obstructive conduct by protesters capable of constituting a lawful excuse for the purposes of section 137 of the 1980 Act, even when there is a real impact for other road users?
In relation to the first question, the Supreme Court confirmed that the test is that the appellate court should only intervene where the decision of the trial court is “Wednesbury unreasonable” rather than “wrong”.
In relation to the second question, the Court held that deliberative or obstructive protests, where there is a real impact for other road users can still be protected by Convention Rights and can be a lawful excuse for the purposes of a charge of wilful obstruction of the Highway.
Common questions relating to the case:
What did the Defendants in Ziegler do?
On 5 September 2017 outside London’s ExCeL exhibition centre, where the arms fair was being held. The protestors, Nora Ziegler, Chris Cole, Jo Frew, and Henrietta Cullinan, laid down in the middle of the road on one side of the carriageway, blocking the road carrying traffic towards the venue.
While the protestors were arrested a few minutes, locks attached to them took time to remove and they were not removed until 90 minutes later.
What happened to the protestors?
In February 2018, they stood trial at Stratford Magistrates Court and were found Not Guilty.
The District Judge found that the protestors were exercising their rights to free speech and assembly (under Article 10 and 11 of the European Convention on Human Rights) and so they had a “lawful excuse”.
However, the prosecution appealed on a point of law, and the acquittals were reversed by the High Court in January 2019.
The Supreme Court reversed that decision today (25 June 2021) and the convictions were overturned.
Does this give a licence for all protests to deliberately obstruct other road users?
No – the Supreme Court make clear that each case is a fact specific inquiry, which will look at a range of factors. If a defendant’s Convention rights have been interfered with, then the interference must still be proportionate. Whether it is proportionate is a matter for the trial court to decide. The appellate courts should not interfere with that decision unless it is “Wednesbury unreasonable”.
Has the legal framework from the High Court been overturned?
The High Court in Ziegler set out a legal framework from paragraph 62 to 65 which has been used in large number of cases in the last two years (including hundreds of Extinction Rebellion cases).
The legal framework of asking:
- Is the defendant exercising with a Convention Right?
- Is there an interference with that right by a public authority?
- Is the interference prescribed by law?
- Is the interference pursuant to a legitimate aim set out in art 10(2) or 11(2)?
- Is the interference necessary in a democratic society?
The last question in turn, leads to the following matters to address:
- Is the aim sufficiently important to justify interference with a fundamental right?
- Is there a rational connection between the means chosen and the aim in view?
- Are there less restrictive alternative means available to achieve that aim?
- Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?
This framework remains in place, but the Supreme Court has held that deliberately obstructive protests do not necessarily mean that state intervention is proportionate
Will those convicted of obstruction of the highway cases, particularly in respect of Extinction Rebellion cases automatically have a right of appeal?
No – this judgment is unlikely to mean a large number of appeals being heard in relation to previous cases. It will depend upon the circumstances in each case. The case can affect how future cases are being prepared.
So what is different for protest cases?
The protection of deliberately obstructive protests causing more than de minimis effect on other road users is still a significant change. In previous cases, prosecution lawyers would point to complete obstruction, to the lock-ons and the High Court decision as arguments that when the framework was applied in practice, a deliberately obstructive protest would invariably mean that defendants should be convicted. This is not the position, and a full balancing exercise should be carefully carried out.
Are there any other important developments?
Interestingly, in some of the judgments, the Supreme Court referred not only to the proportionality of the arrest as a police action, but that “arrest, prosecution, conviction and sentence were all restrictions within both articles”.
This could mean that the courts must consider whether even if arrest was a proportionate response by the police, the court may need to consider whether prosecution and conviction is a proportionate response.
Hodge Jones & Allen is grateful to the invaluable representation in the Supreme Court by Henry Blaxland QC and Owen Greenhall of Garden Court Chambers and Blinne Ni Ghralaigh of Matrix Chambers.