Written by: Shelley Gregory, PNLD Legal Adviser
Not reviewed after the date of publication - 1 December 2021
Tens of thousands of people have experienced disruption to their daily lives as a result of activists engaging in protests on the highways. In this article, PNLD Legal Adviser, Shelley Gregory, aims to identify the relevant legislation and highlight the legal action that is being taken in such a situation.
Obstruction of the Highway
The following provisions make it an offence to obstruct the highway, either wilfully or unnecessarily, depending on which provision is pursued.
Regulation 103 of the Road Vehicles (Construction and Use) Regulations 1986 and section 42 of the Road Traffic Act 1988 creates the offence of unnecessary obstruction on a road and states:
“103 No person in charge of a motor vehicle or trailer shall cause or permit the vehicle to stand on a road so as to cause any unnecessary obstruction of the road.”
The unnecessary element of the offence is a question of fact for a court to decide and is closely linked with the question of whether there is an obstruction, or not.
Section 137 of the Highways Act 1980 makes it an offence to wilfully obstruct the highway and provides:
“137(1) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence.”
This article will focus on the offence of wilful obstruction of the highway.
The term 'wilful' has not been defined by statute, although the Oxford Concise Dictionary describes it as “done on purpose, deliberate, intentional." 'Wilful' was defined by the Judge in the case of R v Senior [1899] 1 QB 283 as:
"that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it".
The term “highway” has been defined in statute as below:
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Section 5 of the Highway Act 1835 defines the term 'highways' as:
“5 In the construction of this Act the word highways shall be understood to mean all roads, bridges, carriageways, cartways, horseways, bridleways, footways, causeways, churchways, and pavements.”
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Section 328 of the Highways Act 1980 defines the term highway as:
“328(1) In this Act, except where the context otherwise requires, highway means the whole or a part of a highway other than a ferry or waterway.
328(2) Where a highway passes over a bridge or through a tunnel, that bridge or tunnel is to be taken for the purposes of this Act to be a part of the highway.”
In the case of Hirst and Agu v CC West Yorkshire Police 1986 guidance was provided on what constitutes a wilful obstruction of the highway. In this case, Hirst and Agu were Animal Rights supporters taking part in a demonstration outside a furrier’s shop. The demonstration caught the attention of on-lookers who began to gather in ever growing groups until the street was completely blocked. The protestors had also set themselves out to distribute leaflets. They were charged with wilfully obstructing the highway contrary to section 137 of the Highways Act 1980. At court they argued that their presence on the highway had not amounted to an obstruction because they had been spread out along the particular street rather than being in a large group and there was no evidence that anyone using the street had been obstructed or inconvenienced by their conduct. In addition, they argued that proof was required regarding the assertion that their use of the highway had been unreasonable. They asked the court to consider the fact that they had only been there for a short time and the fact that the actual place was a pedestrian precinct with ample space for pedestrians to pass and they had merely been passing out leaflets which was perfectly lawful conduct. In allowing the appeal, the court identified three questions to be asked in the circumstances in consideration of the offence of wilful obstruction of the highway as:
Is there an obstruction?
Any stopping or slowing of traffic on the highway (more than a trivial hold-up) is an obstruction (traffic could be vehicular, animal or pedestrian in this context).
Is the obstruction 'wilful' or deliberate (as opposed to accidental)?
The activity in which the person is engaged must cause an obstruction, but there is no requirement to show there was an intent to cause an obstruction.
Is the wilful obstruction without lawful excuse?
Lawful excuse may be by way of express permission, such as the licensing of charity collections or the observance of directions from a traffic police. However, any lawful activity carried out in a reasonable manner may amount to lawful excuse. The concept of implied lawful excuse may be relevant to political demonstrators provided their protests are reasonably limited in space and time, mere transitory inconvenience to traffic (including pedestrians) may not amount to an offence.
Therefore, what amounts to an obstruction of the highway will be fact specific to be judged on a case-by-case basis by the court. Factors to be considered will be the duration of the obstruction, the characteristics of the highway or particular place involved, the purpose of the obstruction and the degree of the obstruction.
A defence to the offence of wilful obstruction is available under section 137 where there is the presence of lawful authority or excuse.
Human Rights
Part 1 of Schedule 1 to the Human Rights Act 1998 sets out the Convention Rights and Freedoms. When participating in a protest, activist activity engages those human rights as provided in Articles 10 and 11 of the European Convention on Human Rights.
Article 10 of the European Convention on Human Rights provides for the freedom of expression and states:
“10.1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
10.2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11 of the European Convention on Human Rights provides for the freedom of assembly and association and provides:
“11.1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
11.2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms or others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of administration of the State.”
Recent Case Law
Ziegler and Others 2021 [2021] UKSC 23
Ziegler and others participated in a protest outside an arms fair. All four of the defendants laid down in the approach road and locked their arms onto a bar in the middle of two boxes designed to make disassembly, removal and arrest difficult. The police attempted the process whereby they would remove themselves voluntarily, but this failed, and the police arrested them. Eventually, after difficulties in removing them from the boxes, they were transported to police stations. By that time, they had completely blocked one carriageway for about 90 minutes.
Ziegler and the others were charged with obstructing a highway under section 137 of the Highways Act 1980.
The issue was whether Ziegler and the others had a lawful excuse for obstructing the highway. Reliance was placed on their rights under Article 10, the right to freedom of expression and Article 11, right to freedom of peaceful assembly, under the European Convention of Human Rights.
Ziegler and the others were initially convicted by the Divisional Court but successfully appealed to the UK Supreme Court who considered the issue of proportionality stating:
‘…intentional action by protesters disrupting traffic impacted on a proportionality assessment under art.10 and art.11. The exercise of those freedoms required a certain degree of tolerance to disruption to ordinary life, including traffic disruption,’
They concluded that deliberate physically obstructive conduct by protesters was capable of constituting a lawful excuse for the purposes of section 137 of the Highways Act 1980, where the impact of the deliberate obstruction on other highway users was more than de minimis, and prevented them, or was capable of preventing them, from passing along the highway.
Recent Legal Action
The question that comes to mind is, what legal action can be taken where one person’s expression of their Human Rights seemingly interferes with the rights of members of the public going about their everyday lives and business?
Recently, activists had been carrying out numerous disruptive demonstrations along the M25 motorway which had been causing travel chaos for tens of thousands of people. To tackle this disruption National Highways Limited successfully obtained an interim injunction between themselves and “persons unknown causing the blocking, endangering, slowing down, obstructing or otherwise preventing the free flow of traffic onto or along the M25 motorway for the purpose of protesting”. If the order is disobeyed by a person, or people instructing or encouraging others to disobey the order, then they may be held to be in contempt of court with the possible consequences of being imprisoned for up to 2 years, receiving an unlimited fine or having their assets seized. The injunction states that the order is not limited to the motorway itself but also includes the verges, central reservations, on- and off- slip roads, overbridges and underbridges and any apparatus related to that motorway.
Final Word
On the 16th November 2021, 9 protestors were jailed for breaching injunctions designed to prevent road blockades. Whilst this shows that there is legal mechanism that works to a degree in that the breach is prosecuted, it also shows that obtaining an injunction is not a sufficient deterrent to some seeking to cause an obstruction and subsequent disruption is not necessarily being avoided.
The rights of one person should not interfere with the rights of another but this is invariably going to occur in these types of situations. It does appear that a legal stalemate has been reached where protesters are entitled to cause a deliberate obstruction of the highway, but reactive and proactive legal action can be taken to obtain an injunction to prevent such an obstruction.
