Some thoughts on DPP v Cuciurean [2022] EWHC 736 Admin

NB 1  These notes and views are ex tempore, thought about and written about in the three hours since judgment was handed down this morning

NB 2 In the interests of full transparency, I should disclose limited “behind the scenes” involvement with defence counsel, and that I attended Court where I took some notes

1. The Divisional Court judgment is open to criticism in holding that the statutory scheme in s.68 on its face constitutes a proportionate restriction on Art10/11 rights

• The line of cases where Courts have become more deferential to domestic decision-makers, culminating in Animal Defenders – sometimes called “process-based review”, a term coined by Judge Spano, is premised on legislatures actually undertaking and being seen to undertake balancing exercise when deliberating.

• Animal Defenders seems to have totally misunderstood or misused ([71]). The point is not, or is less, that parliament cannot “enact a general measure which address proportionality itself”. That is not in doubt. The issue is whether Parliament has done enough to secure that choice against subsequent judicial evaluation. Animal Defenders indicates the sorts of criteria by which a court might assess that. That simply has not and cannot have happened here with s.68. The legislation here predates the HRA by some four years; I have not yet gone back to Hansard but would struggle to believe such a process was undertaken by the HoC in 1993/4

• Relatedly, the principle of legality might well have pointed the court in a different direction:
  • Lord Hoffmann in R v Home Secretary ex parte Simms [2000] 2 AC 115 at 131 where he said “… the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

• We would expect more since the effect here of the restriction is conviction and possible imprisonment not a lesser regulatory wrong or refusal to transmit an advert (see on this Perincek v Switzerland, brought to my attention by @amrit_lohia)

• At a higher, normative level it rather risks undermining the whole statutory protective scheme in the HRA by obviating any role for judges once Parliament has legislated, and this would apply (given the lesser impact) to matters outside criminal law: how would, to take just one example of thousands, the Divisional Court explain what the HL did in Mendoza v Ghaidan – why was the Rent Act 1977 not deemed a sufficiently proportionate and balanced scheme?

• The Divisional Court was wrong to hold/assert that there is no warrant for proportionality exercise to be conducted by a judge absent some opening such as “lawful excuse” or “reasonable excuse” defence in the statutory scheme creating the offence.
  • Connolly v DPP [2007] EWHC 37 was put before the Court in argument yet the judgment is silent. It is clear Div Court authority (by Lord Dyson CJ) for “reading in” of Art. 10 where there is no such defence, by giving a heightened meaning to the words “grossly offensive” or “insulting” or “by reading into [the section] a provision to the effect that the section will not apply where to create an offence would be a breach of a person’s Convention rights, ie a breach of article 10(1), not justified under article 10(2).” Exactly the same could have been achieved by reading ‘disruption’ or ‘obstruction’ in the same way and it was incumbent on the High Court in the instant case to explain how it would have disposed of it

• There are ECHR cases where the Strasbourg Court has undertaken Art10/11 analysis of disruptive protests despite the domestic law containing no such limiting or qualifying defence. I have done my best this morning to check these three:-

Barraco v France –          L412-1 of the Code de la Route

Kurevicius v Lithuania –   Art 124 of the Code of Administrative Law Offences

Drieman v Norway –       s. 14 and 53 of the Sea Waters Fisheries Act

• While the Divisional Court is correct (at [80]) that the health protection context of Leigh – the successful JR of the Met in relation to the Sarah Everard vigil – is important, I am not so sure that it can be side-lined as easily. The case as a whole can certainly be read as one in which Parliament’s say on a statutory scheme did not obviate the need for (there) the police to conduct their own proportionality analysis. In other words, if the Divisional Court was right here, then in Leigh why was the scheme differently viewed (intriguingly, by the LCJ who sat there too) – it cannot be simply that “that was the police, this is the court” since s.6 of the HRA knows of no distinction.

2. The Court is also exposed in its analysis of the trespassory element to the s.68 offence.

It is the case that there has been no Strasbourg decision establishing a right to enter “obviously” private land and to hold a protest there. That said, I think there are areas of the judgment where the Court either elides matters or fails properly to distinguish or explain. This is aside from the matter of quasi-public land as a third way and warranting different protection and access rights, a topic beyond the confines of this short post other than to note than several – Kevin Gray, Jacob Rowbottom and I have all argued that a more granular analytical framework is needed than simply a bifurcated one.

• Appleby is an oft-misunderstood and misapplied case. This is no exception. It is a case where the UK’s positive obligation under Art 10/11 was in issue. Thus proportionality came into the equation then at the engagement stage. It would not necessarily be the same in domestic law when asked of a similarly situated body.

• In any event where it and similar cases are held up as authority for the proposition that A10/A11 confers no right of entry, that is because of the factual matrix of a group seeking permission to enter/be there to erect some stalls. It is not a case that decided once you are on land X what can you do on it… as that was not the issue

• That becomes important in s.68 aggravated trespass as the offence is not one that can be committed simply by trespassing i.e. by being there. It is committed by trespass plus …, as we know from Barnard v DPP (again not cited in judgment although Bauer with similar reasoning is)

• There is a case where Art10/A11 analysis was carried out by a court in context of what we’d term “trespass  but not on obviously public land to which everyone had entry or right of access”: R (Singh) v CC West Midlands [2006] EWCA Civ 1118, a s.30 dispersal case but where the protesting group had gained access to the theatre (where a play they objected was being performed) and had staged a protest there. While the time line is not that easy to make out, my reading is that while the dispersal order covered the group outside, the triggering disruptive behaviour all occurred inside – to staff, to theatre premises etc. There was no issue of the court simply saying “Art 10 and 11 do not apply here given where these events took place” – instead the proportionality of the policing measure is assessed based on what they were doing inside and out. For anyone interested, the relevant paras are [108] et seq.

• While it might seem a counter-intuitive point (and perhaps it might prove to be one!), the court’s analysis in the instant case of protests “carried out in locations to which the public has a right of access, like highways” ([39] of Barraco and Kudrevicius) seems to put the cart before the horse. As a matter of domestic law that is so and indeed we know from DPP v Jones and Lloyd in 1999 that that limited right of access might extend to certain forms of protest i.e. is not limited simply to passing and repassing but that is not the question: the question “is there a right of access onto land in order to protest” is not properly answered if one starts with by saying: ‘The present case is concerned with trespass on land to which the public has not right of access at all’ ([39]). The premise begs the question. In fact, the judgment is premised on there being identifiable “public places” (see emphasis in [35] and [37]) yet with no definition other than that self-supporting one.

• In its assessment of whether a conviction under s.68 is per se proportionate ([74] – [80]), I think the Court falls into error on several occasions:
  • Its first and second points (paras 74-75) need eliding into one; since s.68 cannot be committed solely by trespassing, it is only that additional act that can be said to be aimed at protecting A1P1 property rights
  • The Court has failed to appreciate the reach of s.68 and in so doing erred in concluding that it is necessarily a proportionate scheme. While charges under s.68 do require that additional Barnard act, I am not sure that ([76]) “protests carried out for the purposes of disrupting or obstructing the lawful activities of others” do not lie at the core of Art 10/11. Rather, what the Strasbourg Court said in Kudrevicius was this (at [97])

“In the Court’s view, although not an uncommon occurrence in the context of the exercise of freedom of assembly in modern societies, 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 Article 11 of the Convention”

In other words, it needs an obstructive activity – not simply the intention. Yet, under s.68 someone might be guilty of an offence without that being possible: the case of Winder v DPP is instructive here

“The result of Winder v DPP is that the protest activity engaged in need not be one that is even capable of intimidating, disrupting or obstructing. As long as at the time it is performed, the protester intends it should have that effect and the activity can be said to be more than ‘merely preparatory’ to that end, the offence is committed. The case has been heavily criticised by commentators. (taken from my own book, p260)

3. The Divisional Court makes some points about s.6 of the HRA that I am not at all sure are that well-founded.

Nothing is provided by way of support for its averring that “Section 6 applies if both (a) Convention rights such as articles 10 and 11 are engaged and (b) proportionality is an ingredient of the offence and therefore something which the prosecution has to prove.” I am not surprised by that omission as this is new to me as what s.6 covers – there is certainly no warrant on the face of s.6 and I am not sure what cases the Court had in mind when constructing those lines. It seems to resemble more of a QED. It leads into this problem too, identified in part by Cuciurean’s counsel (Tim Moloney QC) during the proceedings (albeit paraphrased here): if the Court is right that offences containing no identifiable “reasonable excuse” defence require nothing of the court to be read in or by way of proportionality, that all being assumed from the legislative scheme, then this results in a division within the criminal law of what we’d term “Convention-applicable offences” and “non Convention-applicable offences” where no ECHR analysis is ever needed. First, that, we’d expect, would have required greater positive enunciation or imprimatur by Parliament than this by the back door judicial approach and sanctioning – creation of whole new criminal law scheme by silence and omission. Second is this different point. It removes the court from any role in checking – perhaps even approving – the application of the criminal law to citizens even where that bites on the exercise of a Convention right conferred on them by Parliament. What that means, and this is the real problem, is that it allocates solely to the police the decision about citizens enjoying their rights. In socio-legal terms, what will rein the police in from charging wherever possible with an offence that is out of the reach of the Convention – any sensible officer would avoid s.137 and use s.68, on the basis that disruptive etc protests take a protester outwith the limited wider right to use the public highway conferred by the HL in Jones and Lloyd. The history of the common law and especially of rights-jurisprudence is towards imposing greater restraint on state bodies and control over otherwise arbitrary exercises of discretion – Cuciurean expands that.

4. There is no doubt that Ziegler needs revisiting in order to assess its reach.

It is true that there is nothing in Ziegler that positively states that the proportionality criteria it expounds – or rather Lords Hamblen and Stephens do – are applicable to all offences, but then that is not how a ratio would work. It was “interesting” that the Divisional Court in the instant case (at [47]) picked up on an obiter in Richardson by Lord Hughes and decided it should be “accorded very great respect” but equally seem to have missed the more expansive statement by Lady Arden in Ziegler (which I would say is part of the ratio or at least is less obviously obiter). She says this: “The Human Rights Act 1998 has had a substantial effect on public order offences and made it important not to approach them with any preconception as to what is or is not lawful” (at [92]). That, it seems to me, offers a view of wider reach of the holding than simply to s.137. Be that as it may. It seems very likely that the Supreme Court will be asked to revisit a case a little over a year since it decided it and asked whether the Divisional Court was right to hold that

“it is impossible to read the judgments in Ziegler as deciding that there is a general principle in our criminal law that where a person is being tried for an offence which does engage articles 10 and 11, the prosecution, in addition to satisfying the ingredients of the offence, must also prove that a conviction would be a proportionate interference with those rights.

Watch this space.

ADDENDA

Amazing what comes to you walking the dog in sleet, refreshed and distracted

A. While this is of tangential relevance to the disposal and any possible appeal, the case yet again highlights the need to think “better” about property holdings – for public law trespasses/protests/free speech at the very least. The land here was owned by HS2 but for the purposes of a large scale public utilities project, a rail route. In many jurisdictions this would have been “obviously” public land, rather than owned privately by a plc or corporate entity. How land is held and by whom affects the exercise of these publicly-bestowed rights and, in turn, engages questions of state or public action – the decision to contract out or to sell off being those of government. I do not have all, many, any of the answers but do know we need to address this more fully on as some others have – the notion of quasi-public is as good a place as any to start.

B. Of more relevance to the disposal, this thought struck me. Have the constituent elements of s.68 been made out? The facts are not clear. What activity of HS2 was disrupted or obstructed by C over the two days 16-18 March 2021? It requires someone present on the land (Tilly v DPP) who is doing an activity. There was no building going on. If HS2 employees are simply there, is that enough? Is being there and taking measures to ensure C is evicted enough? This might become circular and/or raises the Q can C be guilty of aggravated trespass – that is trespass plus, following Barnard – simply by resisting the act of eviction? Is obstructing one’s own eviction – the lawfulness of which is yet to be decided, that being the Q in point – enough to make good the offence? I do not know but with the disposal today, we will never know (unless successfully appealed) as the outcome is a direction to convict

And a two more thoughts, one clarification over night…

C. In terms of Ziegler, it seems to me the options are:- it applies only to s.137; it applies wherever there is a “reasonable/lawful excuse” or closely worded similar defence (and we might note here that the accompanying s.69 which allows an officer to give directions on reasonable belief an aggravated trespass is being committed does so in s.69(4)(b)); it applies or can be applied wherever there is some wording that can be given a s.3 HRA “heightened” (or narrowed reading as suits, along the lines of Connolly – such as, here, obstruction or disruption i.e. obstructing in s.68 includes only those obstructive protests that it would be proportionate for the state to restrict given D’s Art 10/11 rights (given the Ziegler criteria); where there is no such wording, we reach the age-old constitutional conundrum and I suspect that a declaration of incompatibility under s.4 HRA is the appropriate relief not expansion via s.3…though I imagine those cases to be few given the actus reus of protest-/activism-restricting offences tend to be activities to which a heightened meaning can be given.

D. Raising this without really an answer or having researched/thought about it deeply: there is much in the case about the application of A1P1, the right peacefully to enjoy possessions, as a counterpoise to C’s rights under Art10/11. It was set up as a right in conflict, neither given equal or higher priority – as with Art8/Art 10 media privacy cases – but I wonder of that is correct. The cases cited – Canada Goose etc – all involved either (both) private company v private protester or private law actions for injunctions etc. None involved the state v private protester, which is what we have here with a prosecution for a criminal offence. The state has no rights, none under A1P1 or any other, and so is the relevance of A1P1 lesser, not an equal right but as a countervailing interest in the Art10(2)/11(2) proportionality exercise? If so, the point is not moot as the burden remains on the state to show a legitimate and balanced reason for limiting C’s rights – rather than C having to show his own case why HS2’s A1P1 rights should lose to his right…if that makes sense? The questions(s) then are whether there is case law one way or another which hold that the property rights of a non-party (that is, not party to the criminal proceedings between state and X) are in play and how – is it somehow the case that the state, through the DPP/CPS, is deemed to hold them or be the guardian of them? If no case, what should our normative position here be? it strikes me that that leads onto Qs about the relative roles of private law and public/criminal law – in short, and perhaps trite: if HS2 wanted its property rights protected in a free-standing way, it should have pursued C itself. where it does not (or chooses not to or cannot) it is at the mercy of their being given lesser weight as a countervailing Art10(2)/11(2) interest.

E. Related is this point on trespass. The court at [74] says this: “section 68 has the legitimate aim of protecting property rights in accordance with A1P1. Indeed, interference by an individual with the right to peaceful enjoyment of possessions can give rise to a positive obligation on the part of the State to ensure sufficient protection for such rights in its legal system”. But if that 2nd sentence holds good, why is trespass not a crime in domestic, UK law? If there be such a positive obligation, then either this is met by the tort – so s.68 cannot or does not serve that purpose – or the UK is in breach because we have not criminalised all trespasses (though incrementally we are nearing that!) Section must then have a different aim – and we touch upon this in [75]-[76] but as I suggest in the main blog, the Court does not fully appreciate the sorts of harms captured by the section – Winder v DPP (1996) 160 JP 713 DC would be a case in point; the argument I made in my book is that that case effectively allows for arrest (or risks it) on intention provide an act is done with that intention, even if it is not capable of achieving it. The Div. Court here in Cuciurean I suggest has significantly underplayed the width or potential of s.68 and thus in the balancing exercise, attributed the wrong weight on one side of the scales.