WESTMINSTER CITY COUNCIL v BRIAN HAW [2002] EWHC 2073 (QB)

IN THE HIGH COURT OF JUSTICE

Queen's Bench Division

[2002] EWHC 2073 (QB)

Case No Claim No. IMQ/02/096

Venue Royal Courts of Justice, Strand, London

Between

WESTMINSTER CITY COUNCILClaimant

BRIAN HAWDefendant

Before

Mr Justice Gray

MR J POWELL (Instructed by the City Solicitor) appeared on behalf of the Claimant

MS E FAVATA (Instructed by Messrs Birdnall & Parker) appeared on behalf of the Defendant

Date 4 October 2002

[1]MR JUSTICE GRAY : This application raises questions as to the interaction between the right and the duty of a local authority to remove obstructions from its highways, on the one hand, and the right of the individual citizen to use those highways to exercise his or her right to freedom of expression, on the other hand. It is an application by Westminster City Council, which is the local authority responsible for the highways, including the pavements, in Parliament Square in London, to restrain Mr Brian Haw from obstructing the pavement opposite the House of Commons by displaying there a considerable number of placards supporting his protest against the policies of the Government in relation to Iraq.

[2]What is sought is a final injunction that the defendant cease the obstruction in Parliament Square and elsewhere in Westminster, and that he remove the placards and other paraphernalia.

[3]When I raised in the course of argument the question whether the Council could be entitled to a final injunction at this early stage of the proceedings, Mr Powell on behalf of the Council, referred me to Part 8 of the Civil Procedure Rules. I have some doubts whether an application of the present kind is one which is permitted to be made under Part 8, but Miss Favata for the defendant did not challenge the entitlement of the Council to seek a final injunction: I shall proceed on the assumption that it is open to the Council to do so.

[4]The application is supported by several witness statements from various street enforcement officers of the Council, which give accounts of the activities of the defendant in Parliament Square on the pavement between April and late September of this year. Exhibited to those witness statements are a number of photographs from which it is clear that the number of posters and placards has increased over the months. Included in the evidence are numerous colour photographs of the placards; I shall return later to the question of the extent of any obstruction caused by them.

[5]On behalf of the defendant, it is accepted that he has been conducting a protest from the pavement in Parliament Square ever since June 2001. He has been doing so, so he says, on a 24-hour a day basis, every day, since then. According to his witness statement, Mr Haw sleeps and eats there, and he has from time to time been fasting. He, too, exhibits to his witness statement numerous photographs of the placards and posters which have, from time to time, been on display. It is not necessary for me to go into detail; it suffices to say that the placards and posters criticise in trenchant terms the policy adopted by the Government towards the regime in Iraq and the effect of that policy on Iraqi citizens.

[6]The case for the defendant is, in essence, that he is not obstructing the highway but rather is using it in a lawful and reasonable manner to exercise his rights of freedom of expression and assembly contained respectively in Articles 10 and 11 of the European Convention on Human Rights, and now incorporated as part of English domestic law by the Human Rights Act.

[7]It is stating the obvious to say that Mr Haw feels passionately about the policy currently being adopted towards Iraq and the effect it is having, but no-one has doubted his sincerity.

[8]Before coming to the detail of the basis on which the injunction is sought by Westminster I should mention that there was an application by the defendant to strike out the proceedings pursuant to CPR Part 3.4(2)(b) on the grounds that the present proceedings are an abuse of the process, or otherwise likely to obstruct the just disposal of the proceedings. The basis of that application was, in essence, that the Council should have proceeded against the defendant in the magistrates' court, but Miss Favata has abandoned that application; she does not challenge the entitlement of the Council to seek against her client an injunction to prevent him from committing a criminal offence.

[9]Returning to the injunction which is sought, Mr Powell for the Council, relies on section 130.1 of the Highways Act 1980 as imposing a duty on the Council to prevent obstruction, and on subsection 5 of the same section as entitling the Council to mount the present application. The terms of those two subsections so far as material are as follows. Subsection 1:

"It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority." "5. Without prejudice to their powers under section 222 of the Local Government Act 1972, a council may, in the performance of their functions under the foregoing provisions of this section, institute legal proceeds in their own name."

Mr Powell also relies in the alternative on section 222 of the Local Government Act which provides:

"1. Where a local authority considers it expedient for the promotion or protection of the interests of the inhabitants of their area, (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name."

[10]Mr Powell accepts that whether this application is made under section 130 of the Highways Act or under section 222 of the Local Government Act, it is necessary for him, in order to be entitled to the injunctive relief sought, to establish that the defendant is in breach of section 137 of the Highways Act, which reads as follows:

"(1) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway, is guilty of an offence and liable to a fine."

[11]In support of the application several authorities are relied on, namely, Seekings v Clarke

[1961] 59 LGR 268

; Hurst and Agu(?) v The Chief Constable of West Yorkshire

[1986] Cr App R 143

; Moran v Westminster City Council [1988] 77 E&CR 294; DPP v Jones

[1999] 2 WLR 625

; and Torbay Borough Council v Cross [1995] JPN 682. In the light of those authorities, to some of which I will return, Mr Powell accepts - rightly, in my view - that he must establish not only the fact of obstruction but also that it is, in all the circumstances, unreasonable.

[12]The case for the defendant is that such obstruction of the highway as has been taking place is de minimis , that it is not wilful and that, in any event, it is lawful and reasonable. Reliance is placed by Miss Favata on two of the cases already mentioned, namely Hurst and Agu v The Chief Constable of West Yorkshire , and DPP v Jones . In addition, she has referred me to Redmond Bate v DPP Divisional Court, 23rd July 1999, unreported. Furthermore, the defendant relies, through his counsel, on Articles 10 and 11 of the Convention. Miss Favata has referred me to several well-known domestic and Strasburg cases underlining the importance to be attached to freedom of expression, including Handisard(?) v United Kingdom

[1979] 1 EHRR 737

; Zana v Turkey

[1997] 27 EHRR 667

; Pro-Life Alliance v The BBC

[2002] EWCA Civil 297

; Steele v United Kingdom

[1999] 28 EHRR 603

; Core Hair v Austria

[1993] 17 EHRR 358

; and finally, R v The Secretary of State for the Home Department Ex Parte Simms

[2000] 2 App Cas 115

[13]It is accepted on behalf of the defendant that the rights arising under Articles 10 and 11 are not unqualified, but it is contended on his behalf that there is no pressing social need to restrict his rights and that the action being taken against him by the Council is in any event disproportionate.

[14]Since the relief being sought by the Council is a final injunction, the Council must establish affirmatively its entitlement to that relief. I accept, for what it is worth, that the standard of proof is somewhat higher than the usual balance of probability, since it is a criminal offence which the Council is alleging. I also bear in mind in this connection that I am enjoined by section 12.4 of the Human Rights Act to have "particular regard" to the Convention right to freedom of expression.

[15]What is it necessary for the Council to prove in order to establish a breach of section 137 of the Highways Act which I have quoted earlier? There must first be established the fact of physical obstruction. As I have said, there is an abundance of photographic evidence. Neither the number nor the position of the placards remains static. Some of the placards are, according to the photographs, positioned on the grass in Parliament Square, which comes under the jurisdiction of the Greater London Authority and not that of Westminster City Council. I am concerned only with the obstruction of the pavement.

[16]It has been agreed between the parties that Mr Schwartz, of the defendant's solicitors, accurately describes the extent of the physical obstruction and encroachment on the pavement when he says that the placards encroach on the pavement, which is 11 feet wide, by some 1½ feet, and that the bed on which the defendant sleeps on the pavement encroaches to the extent of about 2 feet. Miss Favata suggests that obstruction of the pavement of that kind and magnitude is de minimis and therefore can be disregarded. I do not agree. The authorities to which I have been referred indicate that the degree of obstruction would indeed have to be trifling in order for the Court to ignore it. I think the fact of physical obstruction is established. I also accept that the obstruction is "wilful" in the sense that it is, and has been, deliberate.

[17]But it also seems clear from the authorities that the mere fact of wilful obstruction is not of itself sufficient to give rise to an offence under section 137 and highways can, according to the authorities, be lawfully used for purposes other than "passage and repassage." Nagey v Weston

[1965] 1 All ER 78

, a case concerning a hot dog van in Oxford, Lord Parker CJ said at page 80:

"Counsel for the appellant 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 can be used in the present case to the effect that the appellant had lawful authority to obstruct the highway if what happened was an obstruction. It is undoubtedly true, counsel for the appellant is quite right, that there must be proof that the user in question was an unreasonable user. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact but 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."

That passage was quoted with approval by Glidewell LJ in Hurst v Agu v The Chief Constable for West Yorkshire . Lord Justice Glidewell, in that case, went on to refer to the fact that Lord Denning, Master of the Rolls, in his dissenting judgment in Hubbard v Pitt

[1975] 3 All ER 1

, had also approved the words which I have quoted by Lord Parker. Glidewell LJ continued at page 150 as follows:

"As counsel pointed out to us in argument, if that is not right there are a variety of activities which quite commonly go on in the street which may well be the subject of prosecution under section 137. For instance, what is now relatively commonplace, at least in London and large cities, distributing advertising material or free periodicals outside stations when people are arriving in the morning. Clearly that is an obstruction. Clearly it is not incidental to passage up and down the street because the distributors are virtually stationary. The question must be: is it a reasonable use of the highway or not? In my judgment, that is a question that arises. It may be decided that if the activity grows to an extent that is unreasonable by reason of the space occupied or the duration of time for which it goes on, that an offence would be committed, but it is a matter on the facts for the magistrates, in my view."

Later on he added:

"I emphasise that for there to be a lawful excuse for what would otherwise be an obstruction of the highway, the activity in which the person causing the obstruction is engaged must itself be inherently lawful. If it is not, the question of whether it is reasonable does not arise so an obstruction of the highway caused by unlawful picketing in pursuance of a trade dispute cannot be said to be an activity for which there is a lawful excuse, but in this case it is not suggested that the activity itself - distributing pamphlets and displaying banners in opposition to the wearing of animal furs as garments - was itself unlawful. "

I suggest that the correct approach for justices who are dealing with the issues which arose and arise in the present case is as follows. First, they should consider: is there an obstruction? Unless the obstruction is so small that one can consider it comes within the rule of de minimis , any stopping on the highway, whether it be on the carriageway or on the footway is prima facie an obstruction. To quote Lord Parker:

'Any occupation of part of a road thus interfering with people having the use of the whole of the road, is an obstruction.'

The second question then will arise: was it wilful; that is to say, deliberate? Clearly in many cases a pedestrian or a motorist has to stop because the traffic lights are against the motorist. Were there other people in the way, not because he wishes to do so, such stopping is not wilful but if 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, as I have already said, such as for markets and street traders and no doubt for those collecting for charitable causes on Saturday mornings. 'Lawful excuse' embraces activities otherwise lawful in themselves which may, or may not, be reasonable in all the circumstances mentioned by Lord Parker in Nagey v Weston ."

[18]Next, and finally, in DPP v Jones , a case concerning alleged trespassory assembly(?) Lord Irvine said this:

"I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and re-pass. Within these qualifications there is a public right of peaceful assembly on the highway."

In his speech, Lord Irvine was seeking to accommodate the requirements imposed by Article 11, that the same reasoning must apply in the case of Article 10.

[19]Before dealing with the criteria applicable to the question of reasonableness, I should mention the point taken by Mr Powell, that the defendant's activities amount to the unlawful display of advertising and so cannot be reasonable. I accept that in order to be reasonable, the activities carried out on the highway must be lawful; so much appears from the judgment of Lord Justice Glidewell which I have quoted. But does setting up political placards in Parliament Square amount to advertising within the meaning of section 224 of the Town and Country Planning Act so as to be unlawful under that section? Mr Powell relies on the definition of advertising in section 336 of the same Act. "Advertisement" is there defined as meaning:

"any word, letter, model, sign, placard board, notice, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of advertisement, announcement or direction."

In its ordinary connotation "advertisement" applies, in my view, to material which promotes a product or service. Regulation of the display of such material appears to me to be the purpose which underlies section 224 of the Act.

[20]I am not persuaded that the defendant's placards are to be treated as advertisements, on the footing that they are either "announcements" or "directions". It does appear to me that Mr Haw is announcing anything, or that he is directing anyone anywhere, or to do anything. I do not, therefore, accept that the defendant's activities in Parliament Square are unreasonable because they are unlawful. As has been seen, the factors which come into play when judging reasonableness include the length of time for which the obstruction continues, the place where it occurs, its purpose and whether actual obstruction occurs.

[21]It is an important feature of this case that the obstruction has been continuing for some 15 months, albeit in circumstances where the subject matter of the placards has remained topical throughout that period. The duration of the obstruction is an indication of unreasonableness. Against that, the point is fairly made for the defendant that, given that his objective is to influence Parliament in relation to policy towards Iraq, the location opposite the Houses of Parliament is a suitable one. The defendant assets an entitlement to continue to protest for so long as it is necessary for him to achieve, if he can, the change in policy which he is advocating. As to the extent of the interference with the right of passage and re-passage, according to the unchallenged evidence, the pavement which surrounds the grassed area in Parliament Square is not easily reached by pedestrians. There are no designated pedestrian crossings, and access to pedestrians is, according to the evidence, if anything, discouraged. In stark contrast to the pavement on the other side of the roads around Parliament Square, relatively few pedestrians use the inner pavements. The evidence of observations carried out by the street enforcement officers of the Council is that less than 30 pedestrians per hour use those inner pavements. There is no evidence of any actual obstruction of any pedestrian seeking to walk along the pavement. In all the time that the defendant has been present, the police have not once considered it necessary to take action against Mr Haw or even to warn him of any possible future action. There is no suggestion of any violence or disorder or breach of the peace arising out of the presence of Mr Haw in Parliament Square. The unchallenged evidence is that the defendant goes to great pains to ensure that the area is kept clean and tidy.

[22]Apart from these considerations, which all bear on the question of reasonableness, there is another, to my mind, significant, consideration which I should also take into account. It is the fact that the defendant is exercising his right to freedom of expression, and doing so on a political issue. (Miss Favata relied also on Article 11 but I do not think that the right of assembly is engaged in the present case.)

[23]The importance to be accorded to the right of freedom of expression, especially in the context of political discussion or debate, is emphasised in numerous domestic and Strasburg authorities, some of which I have mentioned earlier in this judgment. Two citations will suffice.

(e) :

"Freedom of expression is, of course, intrinsically important. It is valued for its own sake but it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society; secondly, in the famous words of Mr Justice Holmes echoing John Stewart Mill, 'the best test of truth is the power of thought' to get itself accepted in the competition of the market. Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve. People are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of areas in the governments and administration of the country."

The second citation is from the Pro-Life Alliance case, which dealt with the lawfulness or otherwise of attempts by the BBC to exercise control of party political broadcasts. In that context,

Lord Justice Laws said at paragraph 32 of the report, after referring to Wyngrove v United Kingdom :

"While this reasoning is compressed it tends, in my judgment, to show that in the Strasburg Court's view the state in principle should possess little discretion to interfere with free political speech, especially at the time of an election. That view is not a function of the margin of appreciation; on the contrary, it expresses a standard which the signatory states must fulfil for compliance with Article 10."

[24]Mr Powell rightly points out that the right to freedom of expression is not unqualified by Article 10.2. Interference with the right is permissible where it is necessary - that is, where there is a pressing social need - to do so in order to protect the rights of others. Mr Powell submits that there is such a need to protect the right of pedestrians to pass and re-pass along the pavement in Parliament Square. He also mentioned the right of other protestors to protest from the pavement. I certainly do not accept that Article 10 is a trump card entitling any political protestor to circumvent regulations relating to planning and the use of highways and the like, but in my judgment the existence of the right to freedom of expression conferred by Article 10 is a significant consideration when assessing the reasonableness of any obstruction to which the protest gives rise. I am not satisfied in the circumstances of this case that there is any pressing social need to interfere with the display of placards so as to protect the right of others to pass and re-pass. Objection may be taken to the defendant's activities on the ground that they constitute an eyesore, but that is a different matter. Moreover, as already mentioned, there is a requirement in section 12.4 of the Human Rights Act that on an application of the present kind, I should pay particular attention to the right of freedom of expression.

[25]Looking at the issue of reasonableness in the round, and taking account of the duration, place, purpose and effect of the obstruction, as well as the fact that the defendant is exercising his Convention right, I have come to the conclusion that the obstruction for which the defendant is responsible is not unreasonable. Accordingly, I decline to grant the injunction sought.

Cited in 11 later judgments

and 2 more of the most senior