The defendants were arrested after distributing leaflets outside a furriers, and appealed against convictions for obstructing the highway.
Held: The appeals succeeded. In deciding whether there was a lawful excuse for a technical obstruction of the highway, the Court rejected the test that a use of the highway which was not incidental to passing along it could not give rise to a lawful excuse, and applied the test whether the use of the highway (even though not incidental to passage) was reasonable or not.
Glidewell LJ said: ‘As counsel pointed out to us in argument, if that is not right, there are a variety of activities which quite commonly go on in the street which may well be the subject of prosecution under section 137. For instance, what is now relatively commonplace, at least in London and large cities, distributing advertising material or free periodicals outside stations, when people are arriving in the morning. Clearly, that is an obstruction; clearly, it is not incidental to passage up and down the street because the distributors are virtually stationary. The question must be: is it a reasonable use of the highway or not? In my judgment that is a question that arises. It may be decided that if the activity grows to an extent that it is unreasonable by reason of the space occupied or the duration of time for which it goes on that an offence would be committed, but it is a matter on the facts for the magistrates. magistrates, in my view.
To take another even more mundane example, suppose two friends meet in the street, not having seen each other for some time, and stop to discuss their holidays and are more or less stationary for a quarter of an hour or 20 minutes. Obviously, they may well cause an obstruction to others passing by. What they are discussing has nothing to do with passing or re-passing in the street. They could just as well have the conversation at the home of one or other of them or in a coffee shop nearby. Is it to be said that they are guilty of an offence and the reasonableness of what they are doing is not in issue? In my judgment it cannot be said.
Some activities which commonly go on in the street are covered by statute, for instance, the holding of markets or street trading, and thus they are lawful activities because they are lawfully permitted within the meaning of the section. That is lawful authority. But many are not and the question thus is (to follow Lord Parker’s dictum): have the prosecution proved in such cases that the defendant was obstructing the highway without lawful excuse? That question is to be answered by deciding whether the activity in which the defendant was engaged was or was not a reasonable use of the highway.
I emphasise that for there to be a lawful excuse for what would otherwise be an obstruction of the highway, the activity in which the person causing the obstruction is engaged must itself be inherently lawful. If it is not, the question whether it is reasonable does not arise. So an obstruction of the highway caused by unlawful picketing in pursuance of a trade dispute cannot be said to be an activity for which there is a lawful excuse. But in this case it is not suggested that the activity itself – distributing pamphlets an displaying banners in opposition to the wearing of animal furs as garments – was itself unlawful.’
Judges:
Glidewell LJ
Citations:
(1987) 85 Cr App R 143
Statutes:
Jurisdiction:
England and Wales
Citing:
Applied – Nagy v Weston QBD 1965
The defendant was prosecuted after selling hot dogs from a van parked on a busy street in Oxford. The court was asked when such would become an illegal obstruction.
Held: Such a use ‘could not . . be said to be incidental to the right to pass . .
Cited – Duncan v Jones KBD 1936
The appellant was about to make a public address in a situation in which the year before a disturbance had been incited by her speaking. A policeman believed reasonably that a breach of the peace would occur if the meeting was held, and ordered the . .
Cited by:
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Smith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
Cited – Jones and Lloyd v Director of Public Prosecutions Admn 23-Jan-1997
The appellants had been peacefully protesting at Stonehenge. They were among others who refused to leave when ordered to do so under an order made by the police officer in charge declaring it to be a trespassory assembly under the 1986 Act. They . .
Lists of cited by and citing cases may be incomplete.
Crime, Land
Updated: 11 May 2022; Ref: scu.192190
