Freedom of Association and Assembly / Protests
Vajnai v. Hungary
Closed Expands Expression
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The Supreme Court of the United Kingdom confirmed the District Court’s decision that the arrest and prosecution of a group of protesters infringed their rights to free speech and assembly under Article 10 and 11 of the European Convention on Human Rights. The case concerned a group of demonstrators apprehended for lying down in the middle of a road on one side of the highway, blocking traffic towards an arms fair venue. The District Judge found that the protestors were not guilty of a criminal offence since their rights to free speech and assembly gave them a lawful excuse to protest. However, the prosecution appealed on a point of law, and the Divisional Court reversed the acquittals. The Supreme Court concluded that the prosecution failed to prove that the defendant’s use of the highway was unreasonable, and therefore it overturned the Divisional Court decision, and the convictions were revoked.
In September 2017, the biennial Defence and Security International (DSEI) arms fair was held at the Excel Centre in East London. In the days before the fair’s opening, Nora Ziegler, Chris Cole, Jo Frew, and Henrietta Cullinan (the appellants), who were strongly opposed to the event, lay down in the middle of one side of an approach road leading to the Excel Centre. They attached themselves to two lockboxes with pipes sticking out from each side. During the demonstration, police officers approached the appellants and went through the “5 stage process” to try and persuade them to remove themselves voluntarily from the road. When the appellants failed to respond, they were arrested. However, it took approximately 90 minutes to successfully remove all the demonstrators from the road since the lockboxes were intentionally designed to make them hard to disassemble. The demonstrators were charged with willful obstruction of a highway per section 137 of the Highways Act 1980.
In February 2018, the applicants were tried before district judge Hamilton at Stratford Magistrates’ Court, who dismissed the charges. Taking into consideration the appellants’ right to freedom of expression and freedom of peaceful assembly under Articles 10 and 11 of the ECHR, the District Court found that the prosecution “had failed to prove the requisite standard that the defendants’ limited, targeted, and peaceful action, which involved obstruction of the highway, was unreasonable” [para. 4]. As a result, the Director of Public Prosecutions appealed the decision before the divisional court by way of case state, a type of appeal that deals with a question of law, not fact.
On 22 January 2019, the divisional court allowed the appeal and sentenced the applicants to conditional discharges of 12 months. The Court suggested that the assessment of proportionality in the instant case should have been that set out in In re B (a Child) (Care Proceedings: Threshold Criteria)  UKSC 33. The court held that the district judge’s assessment of proportionality was erroneous because “there was no ‘fair balance’ struck in these cases between the rights of the individuals to protest and the general interest of the community, including the rights of other members of the public to pass along the highway. Rather the ability of other members of the public to go about their lawful business was completely prevented by the physical conduct of these defendants for a significant period of time. That did not strike a fair balance between the different rights and interests at stake” [para. 28].
On 8 March 2019, the divisional court dismissed the appellants’ application for permission to appeal to the Supreme Court; however, it certified two points of law of general public importance for the Supreme Court to analyze. On 3 December 2019, a panel of the Supreme Court composed of Lord Kerr, Lord Hodge, and Lady Arden granted permission to appeal.
The main issues on merits before the Supreme Court was whether the conduct of the protestors could be considered a lawful excuse protected by section 137 of the 1980 Act, “where the impact of the deliberate obstruction on other highway users is more than de minimis, and prevents them, or is capable of preventing them, from passing along the highway” [para.7].
The second issue the apex court considered was whether the protesters’ deliberate physical obstruction could be considered a lawful excuse for section 137 of the Highways Act 1980, and whether the police restrictions on the obstruction were reasonable, in accordance with Article 10(2) and 11(2) of the ECHR.
In balancing the right to protest against public interest, the court noted that the “proportionality assessment at trial before an independent impartial tribunal depends on the relevant factors being proved beyond reasonable doubt and the court being sure that the interference with the rights under Articles 10 and 11 was necessary. The police’s perception and the police action are but two of the factors to be considered. It may have looked one way at the time to the police (on which basis their actions could be proportionate) but at trial the facts established may be different (and on that basis the interference involved in a conviction could be disproportionate)” [para 57].
The Court referred to the ECtHR cases of Hashman v United Kingdom, Steel v the United Kingdom (1998) 28 EHRR, Kudrevičius v Lithuania and Primov v Russia to note that there should be a certain degree of tolerance to disruption to ordinary life, including disruption of traffic caused by the exercise of the right to freedom of expression or freedom of peaceful assembly. However, the extent of the disruption and whether it is intentional are relevant factors in assessing proportionality. Thus, an intentional act of obstruction causing a more than de minimis impact on others does not automatically imply that the interference with the protesters’ Articles 10 and 11 rights is proportionate. The assessment to examine whether the interference was “necessary in a democratic society” must be fact-specific.
On the factors affecting proportionality, the Court stated that the examination must be “open textured” without giving any factor “pre-ordained weight” [para 71]. Relying on various cases including City of London Corp v Samede  EWCA Civ 160, the Court noted that the location and duration of protest, actual interference caused to the public, prior notification and co-operation with the police or prior knowledge of the authorities and the extent to which the protest breaches domestic law are all relevant factors to be considered. Citing Lashmankin v Russia (App. No. 57818/09) and Balçik v Turkey (App. No. 25/02 (February 29, 2008)) the Court noted that “whilst there is autonomy to choose the manner and form of a protest an evaluation of proportionality will include the nature and extent of actual and potential breaches of domestic law” [para. 77].
According to the Court, the factors relevant to such assessment must include that the plaintiffs’ action was intended to be a peaceful gathering and gave rise to no form of disorder; did not involve the commission of any offense other than the alleged section 137 offense; was carefully targeted at vehicles heading to the fair and did not obstruct completely the highway; and, was of limited duration since the obstruction lasted close to 100 minutes. Additionally, since there were alternative routes available for vehicles making deliveries to the Excel Centre during the demonstration, there was no evidence of any significant disruption caused by the obstruction. Hence, the Court deemed that the proportionality assessment applied by the district court in favor of the appellants was correct since he considered the relevant facts, and there was no error or flaw in his reasoning to undermine his conclusion.
The Court concluded that the appellants lawfully exercised their rights under Articles 10 and 11 and the prosecution failed to prove that the defendant’s use of the highway was unreasonable. Thus, the appellants had a lawful excuse for the obstruction of the highway, and therefore, the protest could not be considered as a criminal offense.
The Supreme Court overturned the national courts’ order and ordered the dismissal of the charges against the appellants to be restored.
Concurring opinion of Lady Arden:
In a concurring opinion, Lady Arden stated that with the introduction of the Human Rights Act 1998, courts interpret section 137 within the ECHR and ECtHR jurisprudence. “Under that jurisprudence, the state must show a certain degree of tolerance to protesters and it is accepted that in some circumstances protesters can obstruct the highway in the course of exercising their Article 11 right” [para 114].
Dissenting opinion of Lord Sales and Lord Hodge:
Lord Sales presented a dissenting opinion on behalf of himself and Lord Hodge.
While agreeing with the majority on their interpretation of “lawful excuse” under section 137 and the factors relevant to an assessment of proportionality, Lord Sales disagreed with the majority’s criticism of the divisional court judgment. He considered that the district judge decision had two material errors. First, it did not take into account the fact that the highway was completely obstructed as a result of the protest. Second, the duration of the protest was significant and not de minimis because but for the police intervention, the protest would have lasted longer. Both these errors resulted in the district court giving improper weight to immaterial factors. Further, the police action was not disproportionate because “it had the effect of reducing the disruption which the appellants intended to produce” [para. 144].
Lord Sales concluded that because of the material errors, the divisional court was correct in allowing the appeal. However, the proper course for the divisional court would have been to remit the matter to the magistrates’ court for further examination of the facts by way of re-trial.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court’s decision expands the scope of freedom of expression. After a thorough examination of ECtHR jurisprudence, the Supreme Court held that there must be a certain degree of tolerance to disruption to ordinary life, including disruption of traffic, caused by the exercise of the right to freedom of expression or freedom of peaceful assembly.
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