Summary of DPP v. Ziegler Relevance

Lots of questions have been raised about the DPP v. Ziegler & ors. case within XR, so we've prepared this precis of the relevance of the judgement to help people understand where and how it might apply.

The Supreme Court addressed two questions in this judgment.

The first question – when should an appellate court intervene?

The first, which only concerns our defendants in a few cases, confirmed that an appellate court should only intervene where the decision of the trial court is “Wednesbury unreasonable”, that is that no reasonable judge could have reached it, rather than “wrong”.

This is a test that applies to cases where an appeal is being heard and emphatically does NOT mean, as has been stated in one recent Magistrates’ Court case, that the Ziegler ruling applies only to appellate courts.

If a case goes to appeal, the appellate courts should not interfere with that decision unless it is “Wednesbury unreasonable”. Whilst this might help someone acquitted in a magistrates’ court to have this acquittal upheld, it could also work the other way, and make overturning a guilty verdict harder upon appeal. This aspect of the ruling does not apply where an appeal from the Magistrates’ Court to the Crown Court is being made, as this is a complete re-hearing of the case.

The second question – when does the exercise of Convention rights amount to a lawful excuse in relation to a charge of obstruction?

In relation to the second question, which is the one which will affect most of our defendants, the Court held that deliberative or obstructive protests, where there is a real impact for other road users can still be protected by Convention Rights and can be a lawful excuse for the purposes of a charge of wilful obstruction of the Highway. It ought to be noted however that the judgment talks about the tests for the proportionality of the protests and these are very fact-specific.

In Ziegler the defendants laid down in the middle of the road on one side of the carriageway, blocking the road carrying traffic towards the venue. This was therefore obstruction of the highway. The question became whether it was proportionate exercise of Convention rights sufficient to amount to a lawful excuse.

Whilst the protestors were arrested in a few minutes, locks attached to them took time to remove and they were not removed until 90 minutes later. They blocked traffic to the arms fair venue only, and were protesting explicitly about the arms trade. No members of the public not connected to the arms fair were affected.

The Supreme Court make clear that each case is a fact specific inquiry, which will look at a range of factors. If a defendant’s Convention rights have been interfered with, then the interference must still be proportionate. Whether it is proportionate is a matter for the trial court to decide.

In effect, the protesters must be exercising their Convention rights to assemble and to free speech, which together create a right to protest, but they must also be doing so in a way which is proportionate in terms of the disruption to the life of the community.

The change

The protection of deliberately obstructive protests causing more than de minimis effect on other road users is still a significant change. In previous cases, prosecution lawyers would point to complete obstruction, to the lock-ons and the High Court decision as arguments that when the framework was applied in practice, a deliberately obstructive protest would invariably mean that defendants should be convicted. This is not the position, and a full balancing exercise should be carefully carried out.

Elements to be taken into account when conducting the balancing exercise can, not exhaustively, include:

  • The importance of the issue being protested about

  • The relevance of the place of protest to the issue being protested

  • The disruption to members of the public unconnected to the venue being protested

  • The length of time of the disruption

Further relevant issues raised

Interestingly, in some of the judgments, the Supreme Court referred not only to the proportionality of the arrest as a police action, but that “arrest, prosecution, conviction and sentence were all restrictions within both articles”.

This could mean that the courts must consider whether even if arrest was a proportionate response by the police, the court may need to consider whether prosecution and conviction is a proportionate response. This was not the position in all of the judgments, and it will need to be further tested in courts of a higher level than that of magistrates for it to be clearly established that is the law. However in some cases, particularly with s14 arrests that later led to obstruction charges, it may be worth arguing.

January 2022 - Recent Developments

The recent Court of Appeal decision in James Brown’s case (January 2022) has sought to limit the application of Ziegler. The decision in Brown asserts that the proportionality balance does not apply to each stage of the arrest/prosecution/conviction/sentence process (the Court of Appeal relied on the fact that it was only one of the Law Lords who took this view in Ziegler). It further seeks to limit the application of the proportionality arguments to statutory criminal offences which provide for defences (such as “acting reasonably” or “with lawful excuse"). This makes it more difficult for those charged with offences that have no such defined defence to seek to rely on proportionality arguments.