Brickfields Asia

COLLEGE

LLB
UNIVERSITY of LONDON
External Programme

Revision LLB (Part 2)

2022

Jurisprudence & Legal Theory

Module 2
Supreme Court decision of
Director of Public Prosecutions v Ziegler and others
[2021] 4 All ER 985, [2021] UKSC 23
juxtaposed with Liberalism and the law–pointers for
answering Section A

Lecturer: Rabinder Singh

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This year you are required to study the Supreme Court case of
Director of Public Prosecutions v Ziegler and others [2021] 4 All ER 985, [2021]
UKSC 23 decided on 25 June 2021. In the examination, there will be three
questions to choose from in Part A. That is, one on each of the following
perspectives, and you will have to answer ONE:
(a) Liberalism and law.
(b) Marx, Marxism & Marxist legal theory.
(c) Natural law;

Preparation for the revision course:

This module focuses on guiding students with pointers on how to grapple with
the judicial reasoning behind the decision of the Supreme Court in in
Director of Public Prosecutions v Ziegler and others [2021] 4 All ER 985, [2021]
UKSC 23 (“the Zeigler’s case”), and juxtapose, where pertinent, with certain
jurisprudential views on liberalism and law (where the font is Arial Black in this
handout)
Please take note that you will have to construct your own answer from the
pointers given. Law institutions have been advised and reminded by UOL
that stock answers are not encouraged.

You are required to read, understand and analyse Zeigler’s case (as is the
norm at BAC and ‘precedents set’, I have summarised the case in Module 1
after reading and analysing the case)

The examination questions will focus on the Supreme Court judgment though
some references are made to the decision of the Divisional Court (the High
Court) which heard the appeal by way of case stated from the decision of
the District Judge below.

You are not required to discuss the test for judicial interference by the High
Court on appeals by way of case stated. Your focus should be on the second
question posed to the Supreme Court which deals with the following:
What is the the test for ‘without lawful authority or excuse’ for obstruction of the
highway under section 137 of the Highways Act 1980 in light of the
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interpretative section 3 Human Rights Act 1998 (hereinafter referred to as

“HRA”) read with Articles 10 and 11 of HRA (Sch 1, Pt 1 HRA). The
proportionality test on legislative interference with human rights is the focus of
the Supreme Court decision and you need to analyse and evaluate and how
this test is connected to the different juriprudential approaches to the theory of
liberalism and the law. That the crux of the question.
You need to argue and submit that from what you have studied and
understood (which I am very optimistic of), whether the decision of the
Supreme Court could be explained from the prism of liberism and law.

The starting point for your preparation should be to hone in on the relevant
portions of the case, only citing the relevant cases and why the Supreme
Court agreed with the district judge.

Examiners will be looking for your ability to demonstrate how Ziegler’s case
relates to liberal principles such as freedom of the person, freedom of
expression and freedom of assembly. Are these absolute? If they are qualified
under Articles 10(2) and 11(2) HRA, how do proportionality issues address the
alleged commission of the offence under section 137 Highways Act 1980 in
relation to the phrase ‘without lawful excuse’. How did the Supreme Court
assess the issue of proportionality to be in favour of the appellants.

The factors which district judges listed favoured the appelants, bringing them
squarely within the into the defence of lawful excuse, implying that charging
them under section 137 of the Highways Act 1980 was a disproportionate
interference with the freedom of expression and association under Articles 10
and 11 HRA respectively.

In liberalism and law, which of the jurisprudential perspectives could fit into
the arguments by the Supreme Court? You may need to address utilitarianism
in general discussing Bentham briefly, John Stuart Mill’s justification for the
state to intefere with individual liberty the rationale behind the findings of the
Wolfenden Committee.
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You may also need to consifder the views of other jurists like Lord Devlin who
advocated the ‘shared moral fabric’ precept of society and its relation to
state intervention with individual liberty, and HLA Hart’s views in particular,
excerpts of the Hart Devlin debate, if necessary. Your arguments must be in
continium with the facts of the case.

It is your answer that the examiners are looking for, not a standard answer. A
stock answer is unlikely to gain a good mark. You have to lay out your views
and not parrot out word for word what is discussed during the revision course!
There must be some element of novelty in your arguments and correlation
with the chosen theory when you analyse the case.

1. Begin by stating that the student would be analisying the judicial

reasoning in this case, from the perspective of liberalism and the

law and that the answer would focus on the second question

certified for consideration by the Supreme Court.

2. The first certified question is not relevant to liberalism and the law

as it is about the test for judicial intervention by the Divisional

Court for appeals by way of case stated which is a mixure of

procedural and substantive law.

3. Briefly state the facts of Ziegler’s case (try to summarise– see the earlier
handout on the case summarised by me).
3.1 In September 2017, the biennial Defence and Security International ('DSEI')
arms fair was held at the Excel Centre in East London (hereinafter referred to
as “the arms fair”). Before the opening of the fair, equipment and other
items were being delivered to the Excel Centre. The appellants were strongly
opposed to the arms trade (the belief they honestly held) and hence to the
fair. They took action which was intended both to draw attention to what was
occurring at the fair and also to disrupt deliveries to the Excel Centre, which
consisted of lying down in the middle of one side of the dual carriageway of
leading to the Excel Centre and attaching themselves to lock boxes which
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were not easy to dismantle. There was a sizeable police presence at the
location in anticipation of demonstrations. Police officers approached the
appellants who tried to persuade them to remove themselves voluntarily
from the road. When the appellants failed to respond to the process they
were arrested. Due to the costruction of the boxes which were not easy to
disessmble, it took, however, approximately 90 minutes to remove them from
the road. Was the duration limited?

3.2 The appellants were attested and thereafter charged with willful obstruction
of a highway contrary to s 137 of the Highways Act 1980 ('the 1980 Act')
which reads:
1 Penalty for wilful obstruction
(1) If a person, without lawful authority or excuse, in any way wilfully
obstructs the free passage along a highway he is guilty of an offence and
liable to a fine…..'

3.3 Were the appellants at liberty to do so? Did they obstruct the

highway? Were they expressing the views they held? Were they

assembling? Did they have lawful excuse? Was the state

intervention in charging and convicting them proportionate?

3.4 The district judge dismissed the charges, having regard to the appellants'
right to freedom of expression under art 10 of the European Convention on
Human Rights ('ECHR') and their right to freedom of peaceful assembly
under art 11 ECHR. He found that on the specific facts
the prosecution failed to prove to the requisite standard that the
defendants' limited, targeted and peaceful action, which involved an
obstruction of the highway, was unreasonable (which he equated with the
word ‘unlawful’)

3.5 The respondent appealed by way of case stated to the Divisional Court.
which allowed the appeal and directed that convictions be entered and
that the cases be remitted for sentencing. Thereafter, the appellants were
sentenced.
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3.6 They then appealed to the Divisional Court which then dismissed the
appellants' application for permission to appeal to the Supreme Court, but
certified two points of law of general public importance. The Supreme
Court then granted permission to appeal.

3.7 2 points of law as certified by the Divisional Court of which the second one
is pertinent for this question ie
Is deliberate physically obstructive conduct by protesters capable of
constituting a lawful excuse for the purposes of s 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.

3.8 The Supreme Court held that where ECHR rights are engaged, the case law
preceding the enactment of Human Rights Act 1998 “HRA”) needs to be
read in the light of the HRA. Section 3(1) of the HRA provides:
'So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible
with the Convention rights”

3.9 The convention rights in issue were Articles 10 and 11.

(a) Article 10 ECHR materially provides:
'(1) Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers …

(2) The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection
of health or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.'
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(b) Article 11 ECHR materially provides:

'(1) Everyone has the right to freedom of peaceful assembly …
(2) No restrictions shall be placed on the exercise of these rights other
than such as are prescribed by law and are necessary in a democratic
society in the interests of national security or public safety, for the
prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others …'

4. The Divisional Court stated that s 137(1) of the 1980 Act can be interpreted
compatibly with the rights in arts 10 and 11 ECHR in cases where, the
availability of the statutory defence of ‘lawful excuse’ depends on the
proportionality assessment to be made ie whether the facts and assessment
of the law showed that provisios 10(2) and 11(2) above applied and
conversely; if they didn’t then there would be no contravention and the
obstruction of the highway would not be unlawful.

5. On that analysis the Supreme Court agreed with the Divisional (High) Court,
but the Supreme Court disagreed with the Divisional Court on the latter’s
analysis of the factors cited by the trial judge; which pointed towards the
proportionality assessment in favour of the appellants ie them having had
lawful excuse. The Supreme Court cited Nagy v Weston [1965] 1 All ER
78, where it was held that 'lawful excuse' encompasses 'reasonableness'
and 'there must be proof that the use in question was an unreasonable use.
Whether or not the user amounting to an obstruction is or is not an
unreasonable use of the highway is a question of fact – its fact sensitive.

6. You could start with (your own unique introduction but keep it

short and within one paragraph). Liberalism has a nexus with the

central issue of proportionality of enforcement of section 137

(supra) by the state readings provisios 10(2) and 11(2) of the

Articles of HRA and as a consequence thereof, whether the

appelants had ‘lawful excuse’

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7. What is Liberalism? It includes a broad spectrum of political

philosophies that consider individual liberty to be the most

important political goal, which emphasise individual

rights and equality of opportunity. These include freedom of the

person, extensive freedom of thought and freedom of speech,

limitations on the power of governments and the application of

the rule of law.

8. Could the issue of ‘lawful excuse’ be analysed from the viewpoint

of utilitarianism? The jurists who need to be considered are

Jeremy Bentham and John Stuart Mill. Bentham adopted a

quantitative approach whereas Mill sought a more refined and

qualitative approach for utilitarianism.

9. In ‘Introduction to the Principles of Morals and Legislation’

Bentham believed that all men desire are pleasures and avoidance

of pains and that men are motivated to do whatever they do by

their desires. Utility according to Bentham is the property or

tendency of an object to produce benefit, good and happiness or

prevent mischief, pain or evil. ‘Pleasure’ is to be equated with

‘good’ and ‘pain with evil’ and what is good is right for man.

10. Bentham advocated the principle of utility as the sole basis for

morality and legislation and also justice. According to him, it is

possible to take an exact account of the general tendency of any

act by which the interests of the community are affected. One

takes an account of an act by which the interests of the

community is affected by observing, in the case of an individual,

the pleasure (or pain) it produces – the ‘felicific calculus test’.

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11. According to Bentham, acts which the legislator wishes to prevent

are considered evils. Legislation which is intended to attain

certain goals and any act which increases pain in society

generally ought to constrained by law, justice is premised on

utility.

12. Premised on utilitarianism, Bentham provided an analysis of crime

and punishment in terms of the utilitarian theory. The ‘mischief’ of

an act (the pain it produces) must be taken into account by

legislation. Activities which tend to produce evil must be

discouraged - if there is a higher probability of an act producing

harm (and thereby diminishing the community’s total happiness)

its commission should be prohibited by appropriate legislation.

13. Could the Supreme Court’s decision in Zeigler’s case above, be

explained away initially with Bentham’s utilitarianism? Did what

the appellants do, increase the sum total of pain in society, in

particular, the users of the highway on one side of the dual

carriageway? Did it cause that great unhappiness to the

participants and attendees of arms fair?

14. As the Supreme Court stated – no one complained, and as the trial,

judge stated the obstruction was for a limited time. Could

utilitarianism explain whether provisios 10(2) and 11(2) of the

Articles of HRA were triggered? You need to analyse the words

used in both provisios. (be brief here and keep Bentham’s

utilitaranism as only being periphereal to the answer).

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15. John Stuart Mill in ‘Utilitarianism’ sought to substitute a

qualitative approach to utilitarianism. He is associated with the

harm principle and the justification for state intervention on an

individual’s liberty.

16. The Supreme Court in Zeigler’s case, cited the case City of London Corp v
Samede [2012] 2 All ER 1039 reiterating that fact sensitive factors would
include the extent to which the continuation of the protest would breach
domestic law, the importance of the precise location to the protesters, the
duration of the protest, the degree to which the protesters occupy the land,
and the extent of the actual interference the protest causes to the rights of
others, including the property rights of the owners of the land, and the rights
of any members of the public. The court must not attempt to adjudicate on
the merits of the protest.

17. Lord Neuberger MR in City of London Corp (supra) accepted that it can be
appropriate to take into account the general character of the views whose
expression the convention is being invoked to protect. Political and
economic views are at the top end of the scale, and pornography and
vapid tittle-tattle is towards the bottom.

18. So is holding political beliefs which are of public interest immoral

intrinsically? Well it would depend on how those political beliefs

are being demonstrated. There was evidence of the appellants’ long-

standing opposition to the arms trade and of their belief that there was
evidence of illegal activity taking place at the DSEI arms fair, which the
Government had failed to take any effective action to prevent.

19. John Stuart Mill in ‘On Liberty’ first published in 1859, Mill stated

‘..one very simple principle, as entitled to govern absolutely the

dealings of society with the individual in the way of compulsion

and control’….that principle is that the only purpose for which

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power can be rightfully exercised over any member of a civilized

community, against his will, is to prevent harm to others. His own

good, either physical or moral, is not a sufficient warrant.’

20. John Stuart Mill was of the firm belief that society has no 'right' to

enforce its moral perceptions using the state intervention vide law,

where their violation would not cause objectively perceptible 'harm'

to others. Do political beliefs have different moral perceptions?

21. Is being opposed to arms fair on the premise that the weapons

could be used for torture (in itself a violation of Article 3 HRA whih

is absolute) or used by oppressive regimes to violate minorities or

human rights in their countries intrincically immoral? Mill was of

the view that we should not use either the law or moral

condemnation to alter behaviour of others, unless they are causing

harm to other people.

22. According to Mill society should only interfere with the harmful

action, e.g. outlaw it or declare it immoral.

23. What needs to be explored here is that whether genuinely holding

political beliefs is in itself intrinscally immoral before one

considers the harm which may occur to other members of society.

Here the act was ‘obstruction of the highway’ in order to express

the appellants’ political views about the arms fair at Excel Centre.

So we need to address the fact of obstruction – is it morally

permissable to obtruct others who have a right of way (which in

land law had been deemed unlawful since time immeprial if you

impede access to someone’s legal right of way, analogous to the

law on easements).
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24. According to Mill, if the act of an individual harms others but is not

judged immoral, then we shouldn’t interfere with it. It is only those

actions that harm others and are also immoral that society should

seek to exercise control over. It is submitted that obstruction of

some one else’s right of way is something which is unacceptable

unless there is justification for it – in Mill’s terms the justification

being it does not cause harm to others.

25. According to the disctrict judge, all the appellants had described their
action as “carefully targeted” and aimed at disrupting traffic headed for the
DSEI arms fair. Not all access routes to the DSEI arms fair were blocked by
the appellants’ actions and it would have been possible for a vehicle
headed to the DSEI arms fair but blocked by the actions to have turned
around and followed an alternative route.'

26. The majority of the Supereme Court Judges (Lord Hamblen and Lord
Stephens which whom Lady Arden concurred on the analysis of the second
question posed) generally agreed with the District Judge’s assessment of
the proportionality of the interference with the appellants' Convention
rights, which required evaluation of the following:
(a) The actions were entirely peaceful.
(b) The defendants' actions did not give rise either directly or indirectly
to any form of disorder.
(c) The defendants' behavior did not involve the commission of any
other criminal offence beyond the alleged offence of obstruction
of the highway which was the very essence of the defendants'
protest. There was no disorder, no obstruction of or assault on
police officers and no abuse offered.
(d) The defendants' actions were carefully targeted and were aimed
only at obstructing vehicles headed to the DSEI arms fair.
(e) The action clearly related to a “matter of general concern” …
namely the legitimacy of the arms fair and whether it involved the
marketing and sale of potentially unlawful items (eg those
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designed for torture or unlawful restraint) or the sale of weaponry to

regimes that were then using them against civilian populations.
(f) The action was limited in duration.
(g) There was no evidence that anyone had actually submitted a
complaint about the defendants' action or the blocking of the
road. The police's response appeared to have been entirely on
their own initiative.
(h) Lastly, although a relatively minor issue the District judge noted that
the appellants’ longstanding commitment to opposing the arms
trade, for most of them this stemmed, partly from their Christian
faith. They had also all been involved in other entirely peaceful
activities aimed at trying to halt the DSEI arms fair. This was not a
group of people who randomly chose to attend this event hoping
to cause trouble.

27. The district judge's view was that on these facts the prosecution had failed to
prove to the requisite standard that the obstruction of the highway was
unreasonable and he therefore dismissed the charges.

28. The Divisional Court, on the contrary held that the district judge's assessment
of proportionality was wrong 'because (i) he took into account certain
considerations which were irrelevant; and (ii) the overall conclusion was one
that was not sustainable on the undisputed facts before him, in particular
that the carriageway to the Excel Centre was completely blocked and that
this was so for significant periods of time, between approximately 80 and 100
minutes'.

29. Of the factors listed by the district judge at paras 25 (a) to (h) above, the
Divisional Court considered a), (b), (c), and (g) to be of little or no relevance
and that (h) to be irrelevant. Accordingt to the the Divisional held that the
district judge's assessment of proportionality to be wrong was that 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. It held that the
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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.

30. In the Supreme Court the appellants submitted that deliberate physically
obstructive conduct by protesters is capable of constituting a lawful excuse
for the purposes of s 137 of the Highways Act 1980, even where the impact of
the deliberate obstruction on other highway users is more than de minimis.

31. The Supreme Court stated that both rights are qualified in the manner set out
respectively in arts 10(2) and 11(2. Article 11(2) states that 'No restrictions shall
be placed' except 'such as are prescribed by law and are necessary in a
democratic society …'

32. The Supreme Court stated that the issues that arise under Arts 10 and 11
require consideration of five questions:
(i) what the appellants did was in the exercise of one of the rights in arts
10 and 11;
(ii) the prosecution and conviction of the appellants was an interference
with those rights;
(iii) the interference was prescribed by law; and
(iv) the interference was in pursuit of a legitimate aim which was the
prevention of disorder and the protection of the rights of others to use
the highway. (the proportionality test).

33. As to whether the interference with either right was 'necessary in a

democratic society' so that a fair balance was struck between the
legitimate aims of the prevention of disorder and protection of the rights
and freedoms of others and the requirements of freedom of expression and
freedom of assembly. (the proportionality test)
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34. The provisios to Articles 10 and 11 is 10(2) and 11(2) are almost similar and
the pertinent ones for discusssion here are whethere intereference by the
State is allowed as prescribed by law and necessary in a democratic
society interests of national security or public safety “in the interests of
national security, …or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of the…. rights and
freedoms of others”

35. In Zeigler’s case could such clear lines be drawn on the acts of

the appelants which caused harm to others and acts which

harmed themselves (ie lying on the highway ‘locked’ in boxes)?

36. It is submitted that the Supreme Court’s analysis showed

otherwise as compared to the Divisional Court. The Supreme

Court’s evaluated whether there was ‘objective harm’ caused to

others due to the conduct of the appellants and as to whether

such conduct was within reasonable bounds to deflect the

argument and allegation that there was objectively assessed

harm to a section of the society – the road users heading towards

the Excel arms fair centre as well as the actual or potential

impact on the venue of the arms fair itself.

37. The Supreme Court (per Lord Hamblen and Lord Stephens) went

on to consider the facts which may constitute obstruction which

is unlawful or alternatively lawful by citing the ECtHR cases of:

(a) Hashman v UK (1999) 8 BHRC 104

(b) Steel v UK (1998) 5 BHRC 339.
(c) Kudrevicius v Lithuania; and
(d) Primov v Russia in relation to an attempted gathering which would
have disrupted traffic.
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38. The case of Steel v UK involved intentional physical obstuction on the

activity itself ie a grouse shoot in which it was held that demonstration
would not only include vervbal protest but also physical impediment of the
very activity which was the subject of protest. It was in essence held that
there was proportionality in interference with the right of expression by the
enforcement authorities.

39. The Supreme Court in citing Steel (supra) stated that the points of relevance
to this appeal are that deliberate obstructive conduct which has a more
than de minimis impact on others, still requires careful evaluation in
determining proportionality

40. The case of Hashman v UK did not involve a protest obstructing a highway
but had intentional disruption of the activities to protest against fox hunting.
The EctHR held that 'the protest took the form of impeding the activities of
which they disapproved' but considered 'nonetheless that it constituted an
expression of opinion within the meaning of art 10' and that 'The measures
taken against the applicants were, therefore, an interference with their right
to freedom of expression'.

41. In Kudrevicius v Lithuania the applicants had been involved in a major

protest by farmers against the Lithuanian government which resulted the
complete obstruction of all the three major roads in Lithuania for
approximately 48 hours. The ECtHR held that 'physical conduct purposely
obstructing traffic and the ordinary course of life in order to seriously disrupt
the activities carried out by others is not at the core of that freedom as
protected by art 11 of the Convention'.

42. The Supreme Court in Ziegler’s case added that its was apparent
from Kudrevicius (supra) that purposely obstructing traffic still engages art 11
but on the facts of that case the Lithuanian authorities had struck a fair
balance between the legitimate aims of the 'prevention of disorder' and
'protection of the rights and freedoms of others' and the requirement of
freedom of assembly. On that basis the interference was proportinate.
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43. In Primov v Russia the ECtHR held that the public authorities need to show
a certain degree of tolerance towards peaceful gatherings if the freedom
of assembly guaranteed by art 11 of the Convention is not to be deprived
of its substance.

44. The Supreme Court in citing Kudrevicius (supra) added that there can be
circumstances in which the actions of protesters take them outside the
protection of art 11 so that the question as to proportionality does not arise.
Article 11 of the Convention only protects the right to 'peaceful assembly'.
'The notion of peaceful assembly does not cover a demonstration where
the organisers and participants have violent intentions. The guarantees of
art 11 therefore apply to all gatherings except those where the organisers
and participants have such intentions, incite violence or otherwise reject
the foundations of a democratic society.'

45. The Supreme Court also cited Primov v Russia (supra) where the ECtHR
stated that 'Article 11 does not cover demonstrations where the organisers
and participants have violent intentions ……' Moreover, a protest is
peaceful even though it may annoy or cause offence to the persons
opposed to the ideas or claims that the protest is seeking to promote.

46. Accordingly, the Supreme Court held that intentional action even with an
effect that is more than de minimis does not automatically lead to the
conclusion that any interference with the protesters' arts 10 and 11 rights is
proportionate. Rather, there must be an assessment of the facts in each
individual case to determine whether the interference with art 10 or art 11
rights was 'necessary in a democratic society'.

47. The above analysis of the Supreme Court is more in tandem with

the harm principle enunciated by John Stuart Mill which was

relied on by the Lord Wolfenden in the ‘Report of the Committee of

Homosexuals Offences and Prostitution’ in 1957 Of interest is part

of the report which reads as follows:

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“The functions of the criminal law is to preserve public order

and decency, to protect the citizen from what is offensive and

injurious and to provide sufficient safe-guards against

exploitation and corruption of others….”

48. From extract of Lord Wolfenden’s report above, is a peaceful

protest, even though it may annoy or cause offence to the persons

opposed to the ideas or claims that the protest is seeking to

promote, offensive and injurous? Did it cause public disorder?

49. The ECtHR cases cited above have a close nexus with analysis of

the harm principle where expression and assembly may cause

violence or where it causes public disorder like complete

obstruction of public activity in bringing it to standstill, or

otherwise where the acts involve physical interference with the

activity targetted which may entail in commission of other

offences other than mere obstruction. Otherwise there seems to

be a caveat by the law that peaceful demonstration, though it may

cause some inconvenience, public authorities need to show a

certain degree of tolerance.

50. The Supreme Court alluded to the non-exhaustive list as cited by Lord
Neuberger of Abbotsbury MR in City of London Corp v Samede (supra) A
factor listed in that case was the extent of the actual interference the
protest causes to the rights of others. Again, as in this case, in relation to
protests on a highway the extent of the actual interference can depend on
whether alternative routes were used or could have been used. In Primov v
Russia, it was held that a factor taken into account in relation to
proportionality by the ECtHR was the availability of 'alternative
thoroughfares where the traffic could have been diverted by the police'.
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51. As another factor relevant to proportionality, citing the ECtHR of

Kudrevicius (supra), the Supreme Court took into account that 'the actions
of the demonstrators had not been directly aimed at an activity of which
they disapproved, but at the physical blocking of another activity (the use
of highways by carriers of goods and private cars). A relevant factor is
whether the obstruction was targeted at the object of the protest.

52. In Ziegler’s case, the Supreme Court found that obstruction was not of the
activity at the arms fair at Excel but the obstruction of the highway leading
to the said premises to demonstrate the political views of the appellants
against arms trade. In this case the appellants ascribed a particular
'symbolic force' to the location of their protest, in the road, leading to the
Excel Centre.

53. Another factor set out in City of London Corp (supra) was 'the extent to
which the continuation of the protest would breach domestic law'. The
Supreme Court agreed that the manner and form of a protest on a
highway will potentially involve the commission of an offence contrary to
s 137 of the 1980 Act.

54. However, in Ziegler’s case, the protest was peaceful and no other offences
had been committed, such as resisting arrest or assaulting a police officer.
The Supreme Court cited Balçik v Turkey where the ECtHR took into
account that there was no evidence to suggest that the group in that case
'presented a danger’.

55. The Supreme Court then considered that the district judge's assessment of
proportionality did not any error or flawand generally disagreed with the
Divisional Court’s analysis of the district judge’s factors (a) to (h).
(a) The fact that this was intended to be and was a peaceful
gathering was relevant.
(b) the appellants' actions did not give rise, directly or indirectly, to
`any form of disorder was also relevant. There are some protests
that are likely to provoke disorder. This was not such a protest.The
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protest was not intended to, nor was it likely to, nor did it in fact
provoke disorder. There were no 'clashes' with the police.
(c) The highway from the Excel Centre was not completely
obstructed, so throughout the duration of the protest this
route from the Excel Centre was available to be used. Though
approach the road for vehicles to the Excel Centre was
obstructed that access could be gained by vehicles by another
route. On that basis members of the public were not 'completely
prevented' from getting to the Excel Centre.
(d) the duration was 'limited';
(e) There were no findings by the district judge as to the number or
even the approximate number of members of the public who
were inconvenienced by this demonstration. Furthermore, there
were no factual findings that the protest had any real adverse
impact on the Excel Centre.
(f) that the protest clearly related to the legitimacy of the arms fair
and whether it involved the marketing and sale of potentially
unlawful items. This was a matter of legitimate public interest. The
content of the expression in this case was political and therefore
fell at the end of the spectrum at which greatest weight is
attached to the kind of expression involved.
(g) the lack of complaint was indicative of a lack of substantial
disruption to those in the Excel Centre. If there had been
substantial disruption one might expect there to have been
complaints. Rather, on the basis of the facts found by the district
judge there was no substantial disruption. There was no error or
flaw in the reasoning of the district judge.
(h) the long-standing commitment of the defendants to opposing
the arms trade and that for most of them this stemmed, at least in
part, from their Christian faith. They had also all been involved in
other entirely peaceful activities aimed at trying to halt the DSEI
arms fair. 'This was not a group of people who randomly chose to
attend this event hoping to cause trouble'.
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56. The Supreme Court held that whether the appellants 'believed in the views
they were expressing' was relevant to proportionality. Furthermore, it held
that it was appropriate to take into account the general character of the
views whose expression the Convention is being invoked to protect. The
appellants were not a group of people who randomly chose to attend this
event hoping to cause trouble. The peaceful intentions of the appellants
were appropriate matters to be considered in an evaluation of
proportionality.

57. The Supreme Court held that the district judge’s assessment of
proportionality in context of the alleged comission of the offence under
section 137 of the Higahways Act 1980 was correct as he determined the
issue of proportionality in favour of the appellant – implying that their
charging and conviction was a disproportionate interference with their
rights under Articles 10 and 11 HRA and in evaluation of provisios 10(2) and
11(2) HRA 1998, the balance was in favour of the appelants as there no
justified interference by the State “in the interests of national security,
…or public safety, for the prevention of disorder or crime, for the protection
of health or morals, for the protection of the…. rights of others”

58. Does the above analysis by the Supreme Court resonate or sit well

with Bentham’s utilitarianism, Mill’s harm principle and the

Wolfenden Committee’s report? (you need to evaluate further and

discuss this using your own words).

59. The question posed by the Supreme Court as to whether the

interference with either right (Articles 10 and 11) was 'necessary

in a democratic society' so that a fair balance was struck between

the legitimate aims of the prevention of disorder and protection of

the rights and freedoms of others and the requirements of freedom

of expression and freedom of assembly needs to be explored

further. The provios 10(2) and 11(2) also use the words “…..for the
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protection of health or morals, for the protection of the…. rights of

others”

60. Could interference by the enforcement authorities to physical

obstruction of the highway be ‘justified in a democratic society’ or

for ‘the protection of the health or morals or protection of the

rights of others’ ? Can obstruction be morally abhorrent in the eyes

of the majority which would deem the obstruction to be ‘without

lawful excuse’ or unreasonable and deem it to be unlawful ?

61. Another Victorian Sir James Fitzjames Stephen, wrote an attack on

Mill, in ‘Liberty, Equality, Fraternity’ who argued that society could

not safely be precluded from enforcing its morality at 'need', even if

it should not always do so.

62. Stephen denied that there were good utilitarian grounds for

defending liberty as such. It all depends on what a person was at

liberty to do. According to him no clear lines could be drawn on

acts which harm others and those which don’t. For him the

punishment of the grosser forms of vice was a proper object of

legislation.

63. Could the balance between the rights of the appellants and the

protections and the rights and freedoms of others be analysed in

another way? The phrases ‘prevention of disorder’ and ‘necessary

in a democratic society’ and ‘the protection of the health or morals

or protection of the rights of others’ needs to be explored further.

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64. Lord Devlin in his Hamlyn lecture on “The Enforcement’s of

Morals”, put forth a view contrary to Mill’s 'harm principle'. Lord

Devlin contended that society rests upon the base of a shared

morality which is in itself a 'seamless web' and which can be legally

defended exactly as society may be defended from subversive

action.

65. Lord Devlin’s view was that society has a right to punish any kind

of act which in the opinion of the reasonable man in the jury box

(the right mined man) is grossly immoral; there in no need for proof

that the act in question harms assignable individuals or groups.

Thus for Devlin the 'morality' in question is a 'jury-box' morality,

that of the average 'right-minded' citizen.

66. Could the provisios 10(2) and 11(2) of Articles of HRA, inter alia, ie

‘necessary in a democratic society’ and ‘the protection of the

health or morals or protection of the rights of others’ fit into his

theory. Could some forms of obstruction or others’ right of way be

morally reprehensibe and ought to come under the strong arm of

the law irrespective of the harm to assigable groups.

67. This seems to be the view in Kudrevicius v Lithuania (supra) cited

by the Supreme Court in Ziegler’s case, where the obstruction was

unacceptable in a democratic society – ie complete obstruction to

access by others. This was also the view of the Russian

authorities in Primov v Russia (which was disprroved of by the ECtHR).

68. Lord Devlin, advanced an argument, in terms of social cohesion,

why it is justifiable to enforce society’s morality by law. Like Sir

James Fitzjames Stephen before him, Lord Devlin did not argue that
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society should always enforce all aspects of its moral code, but he

did urge that society must always be able to defend itself against a

threat to its moral structure felt to be intolerable.

69. Lord Devlin advanced the ‘social cohesion’ argument. He stated

that one of the essential elements of a society is a shared

morality. If a society’s shared morality is weakened, this has a

tendency to lead to the destruction of the society itself.

70. For him, even if an act which is wrong by the society’s morality is

committed in private and harms no one in the way of offence to

decency, corruption or exploitation, its very practice weakens the

shared morality and so may lead to a weakening of society. He

thought that if the law did not enforce moral norms that society

would start to fall apart.

71. For Devlin, just as treason is punishable because it threatens

society’s existence, irrespective of the private moral opinion of

the traitor; so Devlin argues society’s entitled to punish any act

which, according to popular opinion is grossly immoral.

72. Devlin admitted the obvious potential tension between private

inclinations and the 'public' demands of a society (which in

Ziegler’s case was rights of the appellants and the protections and

the rights and freedoms of others) and suggested, inter alia, that

(a) There ought to be tolerance of the maximum individual

freedom consistent with society’s integrity.

(b) Only that which lies beyond the limits of tolerance ought to

be punished. These limits will be reached when an activity

creates disgust among ‘right minded persons’

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(c) The law is concerned with minima and not maxima.

73. So would the proportionality assessment in Ziegler’s case justify

interference with the appellants’ Article 10 and 11 rights as law is

concerned with minima and not maxima. Did the appelants’

conduct in Ziegler’s case create disgust among ‘right minded

persons’

74. Professor Hart put forth a different view in ‘Liberty and Morality’

which led to the Devlin/Hart debate which was essentially the

exchange between H.L.A. Hart and Devlin was over the use of laws

to enforce societal norms. In response to Lord Devlin's argument,

Hart defended a staunchly liberal position akin to Mill though

qualifying Mill’s harm principle on the issue of paternalism.

75. Hart’s reply to Devlin produces an important qualification to the

harm principle. Hart is opposed to “legal moralism”, to the view

that general agreement amongst the members of society that

conduct is immoral is a ground for legal prohibition.

76. The Supreme Court in citing Primov v Russia (supra) stated that a

protest is peaceful even though it may annoy or cause offence to

the persons opposed to the ideas or claims that the protest is

seeking to promote.

77. The view of the Supreme Court above is in tandem with Hart’s

view on the issue of ‘legal moralism’. Hart stated that in deciding

whether any act inflicts ‘harm’ we must disregard the distress

suffered by A through knowing that B is doing what A regards as

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immoral. According to Hart, offence through knowledge is not a

ground for restricting liberty.

78. Hart disagreed with Devlin’s notion of a shared morality as Devlin

advocated. Hart believed that sociologically there is a morality

which every society has – the “minimum content of natural law”.

Every society must have rules restricting violence, theft and

deception. Its detailed implementation varies. Apart from this

minimum, a society need have no shared morality peculiar to

itself.

79. Does obstuction of a highway with firmly entrenced political views

overlap with the minimum content of natural law? Did its genesis

originate from the minimum content of natural law which is in

most societies since time immemorial?

80. The question of legal enforcement of morality is a complex

political, moral and legal question on which opinion is sharply

divided among jurists. Submit that Mill’s harm principle (which Hart

is generally in consensus with) is a better indicator of the

assessment of proportionality which was in favour of the

appellants in Ziegler’s case.

81. Ronald Dworkin believed in a shared morality concept but does not

believe or subscribe to the Devlin formula. He stresses the law

should treat everyone with equal concern and respect. He places

great emphasis on individual rights, rights which are politically

based.
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82. For Dworkin, law is about interpretation - the best constructive

interpretation of the legal structure and political doctrine in the

Ziegler’s above may yield moral principles which are a veneer of

the rights the appellants had as trumps over the rest of the public

inconvenienced by the said obstruction or the views of those

participating or attending the said arms fair at Excel.

82 You can discuss Dworkin’s rights thesis (briefly). Some rights are abstract,
others are concretised vide legislation or judicial decisions. The principles vs
policy argument. Principles describe or give rise to rights; policy give rights to
community goals. How are principles derived?

83 What is the Hercules ideal for interpretation. Rights are trumps over
community goals. Discuss Dworkin rights theory in a liberal democratic
society as canvassed by him. (do not go into too much detail as it may
overlap with your answer in section B if you choose the question on Dworkin)

83. Conclude – in your own words and the best of luck!

Prepared by:
Rabinder Singh
31.3.2022