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Supreme Court upholds right to disruptive protest on highway

Friday 25 June 2021

The Appellants were represented by Henry Blaxland QC and Owen Greenhall, both members of the Garden Court Chambers Protest Team, and Blinne Ní Ghrálaigh of Matrix Chambers. They were instructed by Raj Chada of Hodge, Jones and Allen solicitors.

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In an important judgment, the UK Supreme Court (UKSC) has ruled that deliberately obstructive protest on the highway retains the protection of Articles 10 and 11. Even when a protest blocks the passage of others, the assessment of proportionality remains a fact-specific and evidence-based assessment.

The Supreme Court allowed an appeal brought by campaigners against the arms trade who in 2017 had obstructed an access road to the biennial DSEI arms fair in East London by locking themselves onto a device. In the magistrates’ court, the District Judge had dismissed the charges on the basis that the appellants’ actions were a proportionate exercise of their rights under Articles 10 and 11 of the Convention. The Divisional Court allowed the prosecution’s appeal. The Supreme Court has now reinstated the acquittals.

The Supreme Court’s judgment addresses important issues concerning the appellate test in Case Stated appeals where Convention rights are engaged and the importance to be attached to the rights of freedom of expression and peaceful assembly, even where the exercise of those rights involves conduct which is deliberately obstructive.  On both issues, the Supreme Court found in favour of the Appellants.

In giving judgment, the Supreme Court has provided a comprehensive overview of domestic and ECHR caselaw on deliberately obstructive protest. The court held that the following factors were all relevant to the assessment of proportionality:

The UKSC underscored the decision by the ECHR that there is a need for ‘serious disruption’ to the activities of others to be shown before a protest might lose the core protection of Articles 10 and 11. But even such disruption is not determinative of the assessment of proportionality which remains a fact-specific evaluation.

The extent of the actual disruption is relevant to proportionality and, in the case of blocking a highway, depends on a factual assessment including whether other routes are available.

The nature of the protest is important, including whether the views giving rise to protest relate to “very important issues” of “considerable breadth, depth and relevance”. The court held that: “political views, unlike ‘vapid tittle-tattle’ are particularly worthy of protection”

The sincerity of the protestors’ beliefs and their peaceful intentions of the protestors are relevant.

The importance of the location to the protestors, whether it has a ‘symbolic force’ and the need to have ‘sight and sound’ of the object of the protest are all relevant. Protestors should have the autonomy to choose the manner and form of their protest.

Whether the protest was targeted at the object of the protest is a relevant factor.

Whilst prior notification of a protest to police is relevant, a lack of prior notification must not encroach on the essence of the right to protest.

The lack of evidence of any complaints about the protest is a relevant factor for a court to consider. Whilst the police may take action of their own initiative, the lack of complaints may indicate a lack of substantial disruption.

In summary, the Supreme Court ruled:

“Intentional action by protestors to disrupt by obstructing others enjoys the guarantees of articles 10 and 11… there must be an assessment of the facts in each individual case to determine whether the interference with articles 10 and 11 rights was ‘necessary in a democratic society'.”

The Supreme Court judgment is available here. The Supreme Court press summary is here.

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