QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE SOOLE
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MICHAEL BUCHANAN |
Appellant |
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- and – |
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THE CROWN PROSECUTION SERVICE |
Respondent |
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Rosalind Earis (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 10 July 2018
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Crown Copyright ©
Lord Justice Hickinbottom :
Introduction
The Facts
"5. … Mr Buchanan leads an organisation called 'Justice for Men and Boys' which campaigns against the practice of male circumcision or male genital mutilation. Mr Buchanan believes that the practice is illegal; and that the police and [the Crown Prosecution Service ("the CPS")] ought to prosecute those who conduct circumcision on those who are too young to give informed consent.
6. On the 1st of June 2016 Mr Buchanan accompanied by a small number of supporters of his organisation protested outside the Home Office. One of their number filmed part of the protest and this included an interview with Mr Buchanan in which he stated his intention to get arrested later in the day. This video which included much footage of the later protest in Parliament Square was later posted on-line. We were shown the video in full as part of the prosecution case with Mr Buchanan's agreement.
7. Mr Buchanan and his supporters moved to Parliament Square where they protested on the pavement that surrounds the green area in the middle of the square. It was clear from the video that Mr Buchanan on his own then crossed into the middle of the road using a light-controlled pedestrian crossing. He stopped in the middle of the road and when the light changed stood in the middle of the road holding up a placard towards the drivers of vehicles. Initially the vehicles were able to pass on either side of him but he then moved deliberately in order to place himself in front of oncoming vehicles. These vehicles could not continue and either had to wait for Mr Buchanan to move or had to seek to merge into traffic using the other lane.
8. A police carrier driven by an officer called PC Moore happened to pass. PC Moore gave evidence and his evidence was entirely consistent with the video material we were shown which also included some CCTV. Neither PC Moore nor PC Habid who was a passenger in the carrier and who also gave evidence were cross-examined by Mr Buchanan.
9. We were satisfied that PC Moore initially stopped his carrier beside Mr Buchanan and asked him to move back onto the pavement. When Mr Buchanan politely refused PC Moore parked his van outside the House of Commons and went back to Mr Buchanan and sought to persuade him to move back to the pavement where his supporters were still protesting. Mr Buchanan refused and PC Moore made the request more forcefully and told him what might happen if he did not comply. When Mr Buchanan still did not go back to the pavement PC Moore walked into him and pushed him out of the road back to the pavement.
10. During the time Mr Buchanan was in the road we were satisfied that vehicles were obstructed for a period of approximately 5 minutes. Buses, taxis and cars were blocked. We were satisfied that Mr Buchanan's conduct was significant risk to himself and to others. We were also satisfied that Mr Buchanan positively wanted to be arrested and he later confirmed this when he gave evidence. We were also satisfied that PC Moore had acted with great patience and done everything he could reasonably do to avoid arresting Mr Buchanan.
11. Having pushed Mr Buchanan back to the pavement PC Moore and Mr Buchanan had a polite conversation in which PC Moore sought to persuade Mr Buchanan not to return to the middle of the road. Mr Buchanan told him he was going to go back into the carriageway and then did so and PC Moore ushered him to the carrier where PC Habid arrested him for obstruction of the highway. PC Moore said he was satisfied that Mr Buchanan's goal was to get arrested which was confirmed by a caption in the video.
12. Mr Buchanan gave evidence on his own behalf. We did not accede to his request to show us a lecture on the subject of male genital mutilation. We did allow him to explain his views and we were satisfied that he genuinely holds these views and does so in good faith. We did not consider it necessary to determine whether his argument that circumcision is unlawful was correct in law.
13. Mr Buchanan said in evidence that he decided to walk into the road and stop there because he was frustrated at the lack of success of his organisations campaign. He agreed he was prepared to be arrested. In all respects his evidence was effectively identical to that of PC Moore."
"I chose to protest in a multi-lane highway, putting myself at physical risk of injury and more, but near to traffic lights from where motorists would clearly see me, so they had a good opportunity to drive past me. The vast majority did drive past me, which is evident from the video." (emphasis in the original).
Although the Appellant accepts he obstructed vehicles (in the sense of "vehicle stopped") for 49 seconds, he denies obstructing the traffic at all during the period described by the case stated.
The Proceedings
"19. There was an obstruction of the highway by Mr Buchanan. It lasted in total about five minutes and impeded and blocked many vehicles and caused significant risk to Mr Buchanan and other road users. It could not possibly be described as trifling or small or 'de minimis'.
20. The obstruction was wilful and deliberate.
21. The obstruction was without lawful authority or reasonable excuse. Mr Buchanan's use of the highway was not reasonable. His supporters were protesting peacefully on the pavement and he could have stayed with them. They were obstructing the pavement but their use of the highway was reasonable. The arrest and prosecution of Mr Buchanan was a necessary interference with his article 10 and 11 rights in the interests of public safety and the protection of the rights and freedoms of others. Unlike the case of Brian Haw there was abundant unchallenged evidence that this was a real and serious obstruction of other users of the highway. Mr Buchanan deliberately set out to be arrested on 1st of June 2016."
"Article 10 and 11" is of course a reference to those articles of the European Convention on Human Rights ("the ECHR"). Article 10 provides for the right to freedom of speech, and article 11 for the right to freedom of peaceful assembly and to freedom of association with others. "The case of Brian Haw" is a reference to Westminster City Council v Haw [2002] EWHC 2073 (QB) ("Haw"), to which I shall return.
Question 1: "We were satisfied so we were sure that the obstruction of the highway by Mr Buchanan was not so small and trifling that it could be described as 'de minimis'. Were we correct?"
Question 2: "We were satisfied so we were sure that the use of the highway by Mr Buchanan was unreasonable and thus without excuse. Were we correct?"
The Law
"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 and liable to a fine not exceeding level 3 on the standard scale."
In this judgment, I shall refer to that provision as simply "section 137".
"I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass: within these qualifications there is a public right of peaceful assembly on the highway."
That sets out the law as it currently stands. Whilst Lord Slynn of Hadley and Lord Hope of Craighead dissented on this point, concluding that the right to use a highway is limited to the right to pass and reasonably incidental uses associated with passage, Lord Clyde (at page 655C-D) and Lord Hutton (at page 661H) in substance agreed with Lord Irvine.
The Appeal
i) The Appellant, having moved from outside the Home Office to Parliament Square, was initially protesting for the cause he espouses on the pavement around the central green. As I have indicated, that is part of the highway; but no one has suggested that the protest there was an unreasonable use of the highway or, thus, an obstruction of the highway for the purposes of section 137. The Crown Court considered that their use of the highway was reasonable (see paragraph 21 of the case stated), the right of the public to pass on that part of that highway outweighing the right of the Appellant and his supporters, by virtue of articles 10 and 11 of the ECHR, to assemble and express their views as they did.
ii) The Appellant alone moved to stand in the middle of the carriageway, which at that point is multi-lane and, during the late afternoon, was very busy. In his skeleton argument, he says that he chose to protest there, "putting [himself] at physical risk and more". Standing there clearly put the Appellant at risk of serious injury – and he understood that risk, and was determined to take it – but it also put others at risk of injury and/or risked damage to property. It notably put at risk not only the drivers of vehicles attempting to negotiate Parliament Square, but those who might have attempted to "rescue" or remove the Appellant, such as police officers. The Crown Court found that the Appellant's conduct posed a significant risk to himself and others. It was clearly entitled to make that finding.
iii) Although some vehicles may have managed to drive around the Appellant as he stood in the middle of the road, the Crown Court found that "buses, taxis and cars were blocked" for about five minutes. The Appellant accepts that he stopped vehicles for 49 seconds, and that he disrupted the traffic for a couple of minutes: but the Crown Court found that the disruption was for about five minutes. We are bound to respect that finding. The Crown Court found that, when in the road, the Appellant moved deliberately to place himself in front of oncoming vehicles. By his activity, it was clearly his intention to disrupt the use of the highway by other users, i.e. those in vehicles seeking to pass along it; and, indeed, he readily accepted before us that that was his intention.
iv) The Appellant "positively wanted to be arrested". That was the finding of the Crown Court, but it said it merely confirmed the Appellant's own evidence. The case stated says that, in the video made by one of his supporters earlier that day, the Appellant said that it was his intention to get arrested that day. As I understand it, the voice over said that his goal was to get arrested as a demonstration against the practice of male genital mutilation: but, as the video was made by a supporter of the Appellant and publicised on his organisations website, it was open to the court to treat that as evidence that he had earlier stated that intention and to conclude on the evidence as a whole that he intended to get arrested. He accepts that he was prepared to be arrested; and his conduct, as I have described it, made arrest inevitable. It was certainly his intention to disrupt the traffic: and he was aware that he might be arrested apparently because he understood that what he was doing was wrong, and amounted to an arrestable offence.
v) The Appellant was asked to move out of the middle of the road twice, and was told that he would be arrested if he did not comply with the request: but would not move until PC Moore walked to him and pushed him out of the road onto the pavement. The Appellant then made clear that he proposed to return to the middle of the road – which he sought to do. He was intent on continuing to disrupt the traffic using the road. PC Moore then moved him out of the road for a second time, and PC Habid arrested him for obstructing the highway.
vi) The Appellant relies on other cases involving protests on the highway, in an attempt to show that, in his case, the obstruction was de minimis. As I have described, the case of Haw involved a demonstration with placards on the footway in Parliament Square for a continuous period of 15 months, which involved an obstruction which Gray J found to be more than de minimis but nevertheless a reasonable use of the highway. The Appellant also referred to a protest marches which required various roads to be closed in central London. However, each case is fact-specific. I have already described some of the circumstances of Haw, which (e.g.) did not involve any disruption of anyone else using the highway nor risk to the protester himself or other users of the highway. The circumstances of the marches are unknown, but it seems that they were pre-planned and organised events, in respect of which the police and other authorities took steps to exclude vehicular traffic from the relevant roads. None of the cases to which the Appellant referred assists his submission that the use of the highway by him at the relevant time was either not an obstruction at all or was an obstruction which fell within the de minimis principle
vii) The obstruction the Appellant caused was clearly more than de minimis. He disrupted the traffic from its lawful passage along the highway at an extremely busy point for about five minutes. Not only was the Crown Court entitled to conclude that the obstruction was not de minimis, on the facts as it found them to be, it seems to me that they would have been wrong in law to have concluded otherwise.
viii) I understand that the Appellant feels very strongly about the cause in respect of which he was protesting, namely male circumcision. He was entitled to protest. He was not being prevented from protesting on the highway, namely on the footway along the centre green in Parliament Square where his supporters were protesting. From that place, his views and his protest could have been voiced.
ix) Once he left his fellow protesters on the footway, I doubt whether article 11 of the ECHR had much if any role to play; but he was fully entitled to exercise his article 10 rights which gave him the right both to hold his views and express them. However, rights under article 10 are not absolute. As I have indicated, the freedom which the provision protects is subject to restrictions as prescribed by law as necessary in a democratic society, and for the protection of health and of the rights of others, including of course the right to pass and repass along the full extent of a highway.
x) The Crown Court found that the Appellant's removal from the road and arrest were a necessary interference with his article 10 and 11 rights "in the interests of public safety and the protection of the rights and freedoms of others". It therefore concluded that the Appellant's use of the highway was unreasonable and without lawful excuse; and he obstructed the free passage along the highway. In my view, the court was undoubtedly entitled to make such findings. Indeed, in the circumstances, again, it is difficult to see how it could properly have found otherwise.
Question 1: Yes, the Crown Court was correct to conclude that the obstruction of the highway by the Appellant was not so small and trifling that it could be described as "de minimis".
Question 2: Yes, the Crown Court was correct to conclude that the use of the highway by the Appellant was unreasonable and without lawful excuse.
Mr Justice Soole: