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NAGY v. WESTON
[1965] 280 1 W.L.R.
QUEEN'S BENCH DIVISION
1964 Nov. 27.
Lord Parker C.J., Ashworth and Brabin

Highway - Obstruction - "Excuse" - Motor van selling hot dogs - Van parked near bus stop for five minutes - Whether unreasonable use of highway - Circumstances to be considered - "Wilfully obstructs" - Highways Act, 1959 (7 & 8 Eliz. 2, c. 25), s. 121 (1)

The defendant parked his motor van in a public street for the purpose of selling hot dogs in a lay-by where there was a bus stop. He remained so parked for five minutes and was then asked on several occasions by the prosecutor, a police constable, to move the vehicle. He refused and was charged and convicted of an offence contrary to section 121 (1) of the Highways Act, 1959,1 in that he, without lawful authority or excuse, wilfully obstructed the free passage along a highway.

On appeal on the ground that in order for an obstruction to be "wilful" it must be deliberate and that "wilful" involved lack of lawful authority or excuse and that the user of the highway must be unreasonable:-

Held, dismissing the appeal, that excuse and reasonableness were really the same and, while there must always be proof of unreasonable user of the highway, such user was a question of fact in each case, depending upon all the circumstances including the length of time the obstruction continued, the place where it occurred, the purpose for which it was done, and whether it amounted to an actual obstruction; and that, on the facts, the justices were right in finding that the defendant had used the highway unreasonably and, the defendant having no lawful authority, had properly convicted him.

CASE STATED by Oxford justices. On May 12, 1964, the defendant, Lajos Nagy, was charged that on that day at 10.20 p.m. without lawful authority or excuse he did wilfully obstruct the free passage along St. Giles Street by leaving a motor van, registered number 146 RWL, thereon contrary to section 121 of the Highways Act, 1959. The justices heard the charge on June 11, 1964, and found the following facts: At 10.15 p.m. on Tuesday, May 12, 1964, the defendant parked a motor van in St. Giles Street, Oxford, and it remained there until 10.20 p.m. When the prosecutor, George Weston, a police constable, asked the defendant to move on several times, he refused to do so and was arrested. The defendant's purpose in parking his motor van was to sell hot dogs from it. St. Giles Street formed part of the main north-south traffic route running through Oxford. It was 55 feet wide and was divided into two carriageways by traffic islands running along the middle of it. Each carriageway was therefore 27 to 28 feet wide. The defendant's van was parked on the left-hand side of the carriageway reserved for north bound traffic. On the left-hand side of the north bound carriageway there was a bus stop. That bus stop consisted of an inlet or lay-by. The defendant's motor van was parked just past and on the same side of the street as the lay-by. The traffic using the north bound carriageway of St. Giles Street was heavy at the time but there was no evidence of actual obstruction either of vehicles proceeding directly along it or of buses leaving the lay-by.

A charge brought against another defendant of causing a motor van to stand on St. Giles Street so as to cause an unnecessary obstruction thereof contrary to regulations 89 and 104 of the Motor Vehicles (Construction and Use) Regulations, 1955, was dismissed by other Oxford justices on November 2, 1962. In that case the motor van was in the same place as that of the Highways Act, 1959, s. 121: "(1) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he shall be guilty of an offence ..." defendant and was there for 35 minutes but there was not, at that time, a lay-by there and there was no evidence as to the time of day when the defendant was alleged to have committed the earlier offence, but the justices concluded that it was in the evening.

The defendant did not give evidence himself and the only evidence given on his behalf related to the facts as stated and, accordingly, the justices were faced with what was in effect a submission of no case to answer. They, however, understood that the facts as given by the prosecution were agreed by the defence. It was contended by the defendant that he had a right to stop and the words in the statute "wilfully obstruct" meant making an unreasonable use of the right to stop; that the defendant had not made an unreasonable use of his right to stop, and the fact that he was selling food, if it made any difference at all, increased rather than decreased his right to stop; and that the police were endeavouring to use this charge to prevent something which was not unlawful, namely, the selling of hot dogs from a motor vehicle.

It was contended by the prosecutor that if the defendant by his conscious act, as opposed to accidentally, rendered St. Giles Street less commodious and convenient to use, it constituted wilful obstruction of the street.

The justices were of the opinion that there was an obstruction of the highway because other traffic could not pass over the place where the defendant's motor van was standing, and although the carriageway was a wide one, nevertheless it was a busy one carrying heavy traffic at that time of the evening, including buses which would be pulling out of the lay-by, and there was an unreasonable use of it by parking a motor van on it even for five minutes.

Further, that the obstruction was wilful in that the defendant deliberately parked his motor van where he did; and although it was desirable that the decisions of magistrates' courts should be uniform, the justices were not satisfied that the facts were the same as those in the earlier case quoted and they considered that it was for them to judge the case on the facts given to them, and accordingly they convicted the defendant and ordered that he should pay a fine of 40s.

The defendant appealed and the question for the opinion of the High Court was whether the justices correctly interpreted the meaning of the words "wilfully obstruct" and whether the facts of the case were capable as a matter of law of justifying a conviction.

J. E. M. Irvine for the defendant.
Leo Clark for the prosecutor.

The following cases were cited in argument: Arrowsmith v Jenkins2; Fabbri v. Morris3; Wolverton U.D.C. v. Willis (Trading as S. G. Willis & Sons)4; Divito v. Stickings5; Fearnley v. Ormsby6; Gill v. Carson & Nield7; and Solomon v. Durbridge.8
LORD PARKER C.J.This is an appeal by way of case stated from a decision of justices for the county borough of the city of Oxford who convicted the defendant of an offence contrary to section 121 (1) of the Highways Act, 1959. That section provides that:

"If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he shall be guilty of an offence."

The short facts were as follows: the defendant has a motor van from which he desires to sell hot dogs, and at 10.15 p.m. in the evening of Tuesday, May 12, 1964, he parked his motor van for that purpose in St. Giles Street, Oxford. The point at which he parked the motor van was just past a lay-by where there was a bus stop. He remained in that position for five minutes, when the prosecutor, a police constable, asked him to move, indeed asked him to move more than once, and the defendant refused to do so and was arrested. When the matter was before the justices the defendant gave no evidence save that he did cause to be brought to the justices' attention the fact that another defendant, whether a competitor of his or not does not appear, had done virtually the same thing on another occasion but that that defendant had been prosecuted not for an offence under the Highways Act, but for an offence contrary to regulation 89 of the Motor Vehicles (Construction and Use) Regulations, 1955. The defendant prayed in aid that on that occasion, which was in 1962, other justices, but for the same county borough, had dismissed the information.

The justices were of opinion as follows:
"There was an obstruction of the highway because other traffic could not pass over the place where the [defendant's] motor van was standing. Although the carriageway is a wide one, nevertheless it is a busy one carrying heavy traffic at this time of the evening including buses which would be pulling out of the lay-by and there was an unreasonable use of it by parking a motor van on it even for five minutes. The obstruction was wilful in that the [defendant] deliberately parked his motor van where he did. Although it is desirable that the decisions of magistrates' courts should be uniform, we were not satisfied that the facts were the same as those in the earlier case quoted to us and we considered that it was for us to judge the case before us on the facts given to us, and accordingly convicted the defendant and ordered that he should pay a fine of 40s. The question for the opinion of the High Court is whether we correctly interpreted the meaning of the words 'wilfully obstruct' and whether the facts of the case are capable as a matter of law of justifying a conviction."

In my judgment the answer to those questions is, clearly, "Yes." Mr. Irvine for the defendant concedes, as indeed he is bound to concede, that any occupation of part of a road thus interfering with people having the use of the whole of the road is an obstruction. He also concedes that wilful obstruction is when the obstruction is caused purposely or deliberately. He goes on, however, to say that before anyone can be convicted of this offence, two further elements must be proved: first, that the defendant had no lawful authority or excuse, and secondly that the user to which he was putting the highway was an unreasonable user. For my part I think that excuse and reasonableness are really the same ground, but it is quite true that it has to be proved that there was no lawful authority. It is really difficult to think of any argument that could be used in the present case to the effect that the defendant had lawful authority to obstruct the highway if what happened was an obstruction.

It is undoubtedly true - Mr. Irvine is quite right - that 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. It depends upon 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.

So far as this case is concerned, the justices, in the finding that I have already read, have clearly found that in the circumstances of this case there was an unreasonable use of the highway. Indeed, on the facts stated, it is difficult to see how they could conceivably arrive at any other conclusion. I would dismiss this appeal.

ASHWORTH J.I agree.
BRABIN J.I agree.
Appeal dismissed with costs.
Solicitors: Preston, Lane-Claypon & O'Kelly for Cole & Cole, Oxford; Burton, Yeates & Hart for Andrew Walsh, Lightfoot & Co., Oxford.