It is a source of irritation, to many people, that protesters can sit in the middle of traffic on major roads, holding up countless cars, lorries, buses, trucks and emergency vehicles, whilst the police look on, seemingly not perturbed enough by the conduct to swiftly intervene.

Just Stop Oil has continued its latest spree of disruption in the capital over the last week, demanding that the government immediately cease granting licences for the exploration and production of fossil fuels in the UK. This follows similar protests from the group Insulate Britain in 2021, which blocked the M25, the major 117-mile-long motorway encircling Greater London, and from Extinction Rebellion in 2019. All the protests follow the theme that the environment is in peril and that causing mass disruption is justified to force the government to act. 

Ambulances and fire engines were blocked and delayed

In the more recent cases, it has taken considerable time before the police arrested those causing serious obstruction — even though, with Just Stop Oil on 11 October, ambulances and fire engines were blocked and delayed in the road. 

One of the reasons for those delays is the understandable issue with protesters using glue to attach themselves to each other and to the ground. Yet, that is not the only reason. Officers at the scene said that arrests were not being made because they had “things we have to do first”. An officer online cited recent case law, explaining that human rights should come into consideration. This is in reference to the UK Supreme Court (UKSC) judgment in DPP v Ziegler. The defendants in that case had been charged with obstruction of the highway contrary to section 137 of the Highways Act 1980. They had attempted to obstruct the Defence and Security Equipment International arms fair by lying down on one side of a dual carriageway approach road leading to the Excel Centre, where the fair was being held. 

Human rights protection was raised in the judgment. The UKSC observed that the European Court of Human Rights (ECtHR) had found in Kudrevičiusv Lithuania that disruption to traffic by protesters had engaged article 11 (to freedom of assembly) of the European Convention on Human Rights (the Convention). Article 11 is a qualified right under the Convention, meaning that interference is permissible if it is prescribed by law and necessary in a democratic society in pursuit of legitimate aims. The ECtHR remarked in Kudrevičius that serious disruption was not at the core of the freedom under article 11 and that Lithuania had not violated the applicants’ rights since: 

 … the almost complete obstruction of three major highways in blatant disregard of police orders and of the needs and rights of the road users constituted conduct which, even though less serious than recourse to physical violence, can be described as “reprehensible”. 

However, as rights were engaged, the UKSC was of the view that Kudrevičius had established that a “careful analysis” of proportionality was required. Lords Hamblen and Stephens noted of the rights to protest that we should expect:

 … a certain degree of tolerance to disruption to ordinary life, including disruption of traffic, caused by the exercise of the right to freedom of expression or freedom of peaceful assembly. 

According to the UKSC, then, even in the event that obstruction is more than minimal, a factfinder should undertake a fact-specific proportionality exercise, taking into account articles 10 (freedom of expression) and 11 under the Convention before convicting the defendants. Such rights were interpreted into the “lawful excuse” element of section 137 pursuant to section 3 of the Human Rights Act 1998. In making the assessment, the factfinder should consider the following non-exhaustive list of factors: (1) the nature and extent of any potential breach of domestic law; (2) whether the views giving rise to the protest relate to very important issues; (3) the importance of the location; (4) the extent to which the protest would interfere with the rights of others; (5) the likely duration of the protest; (6) prior notification to, and cooperation with, the police; and (7) the nature of any precautions proposed or considered. It should also be considered whether protestors “believed in the views they were expressing”. 

Some drivers have decided to move protesters themselves

Although the case was decided in respect of the conviction of the defendants, the UKSC said that arrest, charge, prosecution and conviction all constitute restrictions within the Convention. This explains, then, why the police have modified their behaviour in respect of protesters blocking roads. More recently, the case of Leigh v The Commissioner of Police of the Metropolis may explain further caution by the police. The claimants were part of a group called ReclaimTheseStreets, which sought to hold a vigil for Sarah Everard, who had been abducted and murdered by a police officer, in a protest against violence towards women. The High Court found that statements made by the police dissuading the claimants from undertaking the vigil, due to the fact that Covid restrictions were in place, were unlawful because Ziegler and the later case R (Dolan) v Secretary of State for Health and Social Care had not been properly taken into account. The “reasonable excuse” in the Covid regulations should have included the right to assembly, as the “lawful excuse” in Ziegler had. 

That caution, however, appears to be excessive. In the ECtHR judgments cited in Ziegler, the interferences with articles 10 and 11 were proportionate. In Kudrevičius, the obstruction was described by the ECtHR as “reprehensible”. In Steel v United Kingdom, police action to stop the obstruction of a grouse shoot by removal and detention of protesters was proportionate. So, whilst the police should take into account proportionality according to the facts of arrest, the ECtHR itself has not considered action against protesters in similar circumstances to be disproportionate. 

Even if a conviction is later determined to be disproportionate, the UKSC observed that an arrest may still be proportionate: 

It may have looked one way at the time to the police (on which basis their actions could be proportionate) but at trial the facts established may be different (and on that basis the interference involved in a conviction could be disproportionate). 

It is obvious that the criminal standard of conviction, beyond reasonable doubt, is quite different to the standard required for arrest. The standard for arrest under section 24 of the Police and Criminal Evidence Act 1984 is “reasonable grounds for suspecting” that an offence is taking place or is about to take place. Under section 24(5)(c)(v) obstruction of the highway is one factor where an arrest without warrant is necessary. An assessment as to proportionality should take place as part of this, but it need not be burdensome. The reason why the claimants in Leigh established unlawfulness was because the approach of the police was incorrect — not giving a proper indication that the right to assembly should be read into the “reasonable excuse” element of the Covid regulations. In circumstances where serious disruption of the highway is taking place, the task of the police is straightforward. Of course, they should undertake an assessment on the facts, but the facts are often clear. Serious obstruction to the roads interfere with the rights of others, and a balancing of rights should not be time-consuming in light of that. 

The degree of caution to arrest is unjustified, then. The obstruction should not be prolonged needlessly. Emergency vehicles have been delayed. The financial impact has been considerable. The Insulate Britain protests on the M25 cost drivers an estimated £500,000, without even taking into account later effects on businesses. Some drivers, in frustration, have decided to move protesters themselves. Some have driven directly towards protesters at slow speeds in an effort to prevent the obstruction. If the police do not act as promptly as the law allows, more serious violence is a dangerous possibility.