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Hirst and Agu v Chief Constable of West Yorkshire
85 Cr App Rep 143, 151 JP 304, [1987] Crim LR 330
Divisional Court

Obstruction of the Highway

Notes

This case establishes what is meant by “lawful excuse” when defending an Obstruction of the Highway charge. It's useful for an otherwise ‘fluffy’ demonstration that blocks a road, but less useful for a blockade-type demo on a highway. Importantly it establishes that "lawful use" of the highway is not restricted to the right of "passage and repassage" but covers other forms of activity such as protests.

The reference to this case in the law journals (which you are supposed to quote in court) is 85 Cr.App.R. 143, which you read out as, “volume 85, Criminal Appeals Reports, page 143.”

Facts and background of the case

The case arose from an animal rights protest in January 1985 in Bradford, involving leafletting and holding banners outside a fur shop, in a pedestrian precinct. The defendants (Hirst and Agu) were originally arrested for ‘breach of the peace’ as well as (in one case, rather than) obstruction of the highway, but were only charged with the obstruction.

They were convicted by Bradford magistrates and appealed to Leeds Crown Court. They were convicted at the Crown court and appealed by ‘case stated’ (i.e. on a matter of law) to the Divisional Court. These appeals were upheld and the convictions quashed: this is the judgement of the Divisional Court.

Summary of the judgement

The conviction was quashed because the Crown court had not considered whether they had “lawful excuse” for the obstruction, which is a matter of fact. Therefore, the convictions were unsafe and the appeal allowed.

The case sets out in detail the conditions for a defence of “lawful authority or excuse” under the Highways Act 1980 to succeed. Lord Justice Glidewell summarised the law thus:

First . . . is there an obstruction? Unless the obstruction is so small that one can consider it comes within the rubric de minimis, any stopping on the highway, whether it be on the carriageway or on the footway, is prima facie an obstruction.. . .

The second question then will arise: was it wilful, that is to say, deliberate? . . . if the stopping is deliberate, then there is wilful obstruction.

Then there arises the third question: have the prosecution proved that the obstruction was without lawful authority or excuse? Lawful authority includes permits and licences granted under statutory provision . . . . Lawful excuse embraces activities otherwise lawful in themselves which may or may not be reasonable in all the circumstances mentioned by Lord Parker in Nagy v Weston . (Glidewell LJ, at p.151)

The reference to Nagy v Weston is to an earlier case, reference [1965] 1 All E.R. 78. The important part of the Nagy v Weston judgement is quoted in full in Hirst & Agu, and is as follows:

Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction. (Parker CJ, in Nagy v Weston, p.80D–E) These two quotations taken together effectively define what is meant by “lawful excuse” when defending an obstruction of the highway charge.

To summarise:
•the activity must be inherently lawful;

•it must be reasonable in the circumstances. This is a matter of fact not of law (i.e. it is for the magistrates to decide), using the criteria in the Parker quotation above (length of time, place, purpose).

Making use of this case

This case is likely to be most useful if a fairly low-key or moderate demo leads to an obstruction of the highway charge. It could also be used where you are accused of causing an obstruction by holding a street stall. To succeed, you need to be able to appeal to the magistrates’ sense of what is “reasonable”—which may involve ‘down-playing’ the demo. Alternatively, you could try to argue that a much higher level of obstruction should be seen as “reasonable” when something as big as nuclear weapons is concerned.

The principles of this case have been more recently upheld in Westminster City Council v Haw, where it was held that an anti-war protest consisting of placards which encorached by 1 1/2 feet on to an 11 foot pavement was not an unreasonable obstruction in all the circumtances.

This case might also be needed if the prosecution tries to use what is now an obsolete case, Waite v Taylor, 1985, reference 149 J.P. 551. They may use this case to argue that any activity on a highway which is not strictly ancillary to or part of travelling (“passing and re-passing”) could be an offence. If this happens, point out that Waite v Taylor is specifically disapproved by Lord Justice Glidewell at page 150 of the Hirst & Agu case, and is therefore now superseded.