Anti-arms trade campaigners whose acquittal for their peaceful protest against the Defence and Security International (“DSEI”) arms fair in London was overturned in the High Court have won their appeal to the Supreme Court.
The four campaigners had attempted to disrupt deliveries to the arms fair in September 2017 by lying down in the middle of one side of an approach road to the Excel Centre, where the arms fair was taking place, and locking themselves to lock-on devices. They were arrested within minutes of beginning their protest, although it took some time to remove them from the road.
The four protesters were charged with wilful obstruction of the highway, contrary to section 137 of the Highways Act 1980. They were acquitted at trial on the basis that they had a “lawful excuse”, because the interference with their rights to freedom of speech and freedom of assembly under Articles 10 and 11 of the European Convention on Human Rights had not been proportionate. The Director for Public Prosecutions appealed on a point of law, and the acquittals were reversed by the High Court.
The Supreme Court has granted the protesters’ appeal against the High Court decision. The Supreme Court determined that, in criminal proceedings arising out of protest activity, deliberate physically obstructive conduct by protesters is capable of constituting a lawful excuse for the purposes of s.137 of the Highways Act 1980, even where its impact on other road users is more than minimal. Determination of the proportionality of an interference with ECHR rights is a fact-specific enquiry which requires the evaluation of the all the circumstances in the individual case.
The Supreme Court also considered the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of ‘lawful excuse’ when Convention rights are engaged in a criminal matter. It held that the appropriate test in an appeal by way of case stated is that there is an error of law material to the decision reached which is apparent on the face of the case, or that the decision is one which no reasonable court, properly instructed as to the relevant law, could have reached on the facts found.
By a majority, the Supreme Court restored the dismissal of the charges against the appellants on the basis that there was no error of law in the reasoning of the trial judge such as to undermine his conclusions that the interference with the protesters’ rights to freedom of assembly and freedom of speech had not been proportionate.
In this highly significant ruling for protest rights, Blinne Ní Ghralaigh represented the successful appellants, together with Henry Blaxland QC and Owen Greenhall of Garden Court Chambers, instructed by Raj Chada at Hodge Jones and Allen.