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Wrongful roadblocks: the backlash from the Supreme Court’s ruling on lawful protests

Wrongful roadblocks: the backlash from the Supreme Court’s ruling on lawful protests

Bethany Barrett

09/08/2021

Section 137(1) of the Highways Act 1980 codifies the offence of wilfully obstructing a highway without lawful reason or excuse. Given the popularity of roadblocking as a form of peaceful protest, this provision has repeatedly been used as a catch-all clause with which many arrested protestors can be charged.

However, in June the Supreme Court emphasised that the act must be read in line with human rights considerations, specifically Section 3 of the Human Rights Act 1998. Consequently, a weighing exercise between the protestors’ rights (namely under Articles 10 and 11 of the European Convention on Human Rights – the rights to freedom of expression, assembly and association) and the justification for the state’s inference with these must be conducted. As limited rights, these can be encroached on by states in a way which absolute rights cannot. Nonetheless, any such encroachment must be proportionate. In this specific case, which involved the blocking of a road to a Defence and Security International weapons fair in protest of such weapons, the court found the protestors’ actions to be lawful and therefore issued an order for the convictions held against the protestors to be quashed. Relevant factors included the relatively short and limited nature of the block (which was around 90 to 100 minutes in duration and involved only the road leading to the fair), the peaceful nature of the protest, and the fact that there were no other convictions brought against the protestors in relation to the event.

In response to this judgement, several protestors from the environmental activist group Extinction Rebellion have appealed their own convictions on the same grounds. Over the past week, all three appeals heard have been successful, with the Crown Prosecution Service (CPS) failing to provide evidence to support the convictions. With seven cases still to be heard, the CPS was advised by Southwark Crown Court to conduct a review of all cases where protestors have asserted the “lawful excuse” exception to be relevant to their case. The judge presiding over the previous three appeals, Judge Mark Dennis QC, found there to be a “fundamental problem” with the way the CPS were continuing to view such roadblock cases, with it seemingly failing to understand the gravity of the Supreme Court’s ruling in June.

This issue cannot be discussed without reference to the potential future impact of the controversial Police, Crime, Sentencing and Courts Bill (PCSC), which – among other things – would limit the ways in which protests can be held. The commotion caused by the Bill was well-documented, with protests being sparked across the country by its passage. The issues with this legislation specifically fall outside of the scope of this blog post; however, it is interesting, and perhaps comforting, to see the Supreme Court’s actions in June a reminder of the power of the judiciary in common law systems such as ours. Existing without an overarching constitution affords greater power to the judiciary to fill the inevitable gaps left in legislation and to interpret ambiguous legislation in line with wider considerations such as those relating to human rights. In doing so, the sharp sword of Parliament’s decrees can be dulled. While the judiciary is still limited to Parliament’s ultimate word, the willingness of judges to continue to find ways to prioritise human rights in relation to protests is telling. As the PCSC Bill continues through the House of Lords, this is something Parliament will have to consider.