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Westminster City Council v Haw
[2002] All ER (D) 59 (Oct)
QUEEN’S BENCH DIVISION
GRAY J
4th October 2002

Highway – Obstruction – Obstruction of free passage – Reasonableness – Freedom of expression – Defendant displaying placards as part of protest – Placards obstructing public highway – Highway authority applying to restrain defendant from obstructing highway – Whether injunction to be granted – Highways Act 1980, ss 130, 137 – Human Rights Act 1998 – European Convention on Human Rights, art 10.

From June 2001, the defendant had maintained a protest at Parliament Square against the British government’s policy towards Iraq. As part of his protest, the defendant had displayed a large number of placards and posters on the square stating various views associated with his protest, which encroached a foot and a half into the pavement, which was some 11 feet wide. The defendant also slept on the pavement and stored his bedding materials there.

The claimant, which was the relevant highway authority, applied for a final injunction restraining the defendant from obstructing the highway, pursuant to its powers under s 130 of the Highways Act 1980, and/or s 222 of the Local Government Act 1972. The authority argued, inter alia: that the defendant had unlawfully obstructed the highway contrary to s 137 of the 1980 Act, which provided that it was an offence wilfully to obstruct free passage on the highway without lawful authority or excuse; and that the placards constituted unlawful advertising contrary to s 224 of the Town and Country Planning Act 1990. The defendant contended, inter alia, that if there was any obstruction it was reasonable and lawful, and relied on art 10 of the European Convention on Human Rights, which protected the right to freedom of expression.

The court ruled:

In order for relief to be granted, it was incumbent on the local authority to prove (i) that there was a physical obstruction, (ii) that the obstruction was wilful, and (iii) that the obstruction was unreasonable. If the activity constituting the obstruction was unlawful, it was by that very state of affairs unreasonable.

The defendant’s activities clearly amounted to a wilful obstruction. In its ordinary connotation, an advertisement was something which promoted a product or service. The defendant’s placards did not fulfil such a purpose, and were not to be treated as advertisements for the purposes of s 224 of the 1990 Act. He had not therefore engaged in unlawful advertising, and the obstruction could not be said to be unreasonable by virtue of being unlawful.

While the right to freedom of expression was not an unqualified right, and was not a trump card to permit protesters to circumvent other regulations, it was a significant consideration to be taken into account in determining reasonableness. In the instant case, there did not seem to be any pressing social need to interfere with the defendant’s display of placards so as to allow free passage on the footpath.

Moreover, with regard to the other circumstances, including the appropriateness of the site of the protest, and despite its duration, the defendant’s obstruction was not unreasonable. Accordingly, the injunction sought would not be granted.

Hirst and Agu v Chief Constable of West Yorkshire (1986) 85 Cr App Rep 143, DPP v Jones [1999] 2 All ER 257, R v Secretary of State for the Home Department, ex p Simms [1999] 3 All ER 400 and R (on the application of ProLife Alliance) v BBC [2002] 2 All ER 756 considered.
Jonathon Powell (instructed by Colin Wilson) for the authority.
Emma Favata (instructed by Bindman & Partners) for the defendant.
Aaron Turpin Barrister.