Proportionality

REFERENCE by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32

(1) What is the test of whether a provision is beyond legislative competence on the ground that it will result in a disproportionate interference with a Convention right?

12. As I have explained, the Lord Advocate submits that a provision of devolved legislation can only be said to beyond legislative competence on the ground that it is a disproportionate interference with a Convention right if it would always, or almost always, have that effect. In support of that proposition she relies upon this court’s judgment in the case of Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29; [2016] HRLR 19 (“Christian Institute”). In response, counsel for the Attorney argue that the test laid down in that case was superseded in In re McLaughlin [2018] UKSC 48; [2018] 1 WLR 4250, where a less demanding test was laid down, according to which it is sufficient that the provision will inevitably operate incompatibly in a legally significant number of cases. Neither party presented any analysis of the authorities, or any arguments as to why one approach or the other ought in principle to be preferred.

13. In the case of Christian Institute, the court considered whether devolved legislation was incompatible with Convention rights on the basis that it involved a disproportionate interference with article 8 rights, and was therefore outside the competence of the Scottish Parliament. Since the present case also raises the question whether devolved legislation is incompatible with Convention rights on the basis that it involves a disproportionate interference with qualified rights, and is therefore outside the competence of the Assembly, the decision in Christian Institute is directly in point. In a judgment delivered by Lady Hale, Lord Hodge and myself, with which the other members of the court agreed, the court stated at para 88:

“This court has explained that an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights (R (Bibi) v Secretary of State for the Home Department [[2015] UKSC 68; [2015] 1 WLR 5055 (“Bibi”)], per Lady Hale, paras 2, 60, Lord Hodge, para 69).”

14. The rationale of that approach is that where there is an ab ante challenge to a legislative provision (that is to say, a challenge to the provision in advance of its application to any particular facts), the striking down of the provision is only justifiable if the court is satisfied that it is incapable of being applied in a way which is compatible with the Convention rights, whatever the facts may be. If the legislation is capable of being applied compatibly with the Convention, then it will survive an ab ante challenge.

15. The case of In re McLaughlin concerned a provision of primary legislation in force in Northern Ireland under which the eligibility of a surviving parent to receive widowed parent’s allowance, a social security benefit designed to support the children of the relationship, depended on whether the parents were married to one another. The provision was challenged as discriminating against the survivor of unmarried parents on the basis of their marital status, and against the children of unmarried parents on the basis of their birth status, contrary to article 14 of the Convention read with article 8.

16. In a judgment with which Lord Mance, Lord Kerr and Lady Black agreed, Lady Hale reached the conclusion at para 42 “on the facts of this case” that there was unjustified discrimination in the enjoyment of a Convention right, which was enough to ground a declaration of incompatibility under section 4(2) of the Human Rights Act. She added at para 43:

“It does not follow that the operation of the exclusion of all unmarried couples will always be incompatible. It is not easy to imagine all the possible permutations of parentage which might result in an entitlement to widowed parent’s allowance. The recent introduction into the household of a child for whom only the surviving spouse is responsible is one example. Whether it would be disproportionate to deny that child the benefit of the deceased’s [national insurance] contributions would be a fact specific question. But the test is not that the legislation must operate incompatibly in all or even nearly all cases. It is enough that it will inevitably operate incompatibly in a legally significant number of cases: see Christian Institute v Lord Advocate 2016 SLT 805, para 88.” (emphasis in original)

17. It is not immediately apparent why, in In re McLaughlin, the compatibility of the legislation with article 14 of the Convention depended on the facts of the individual case. One might think that the conclusion reached – that a rule which prevented the children of unmarried parents from benefiting from an allowance available to the children of married parents, by reason of the marital status of their parents or their own birth status, was unjustifiably discriminatory - would apply in any case concerning the denial of the same allowance for the same reason. If that were so, then no issue would arise of the kind which arose in Christian Institute, where the measure was not inherently incompatible with the Convention but might be applied incompatibly in particular cases.

18. Be that as it may, in the last sentence of the passage cited in para 16 above Lady Hale cited Christian Institute, para 88, as authority for the proposition that “[i]t is enough [to render legislation incompatible with Convention rights] that it will inevitably operate incompatibly in a legally significant number of cases”. With respect, that is not what was said in Christian Institute, para 88. The critical words were:

“if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights ...”

The difference is between Lady Hale’s words, “in a legally significant number of cases”, and the earlier words, “in all or almost all cases”.

19. There is no indication in In re McLaughlin that Lady Hale intended to depart from the test stated in Christian Institute, para 88, but her dictum in the last sentence of para 43 did not state the test accurately. In the circumstances, the test remains as set out in Christian Institute.

(2) Questions arising from the cases of Ziegler and Cuciurean

20. Before addressing the various questions raised in the submissions concerning the cases of Ziegler and Cuciurean, it is necessary to consider the relevant aspects of the judgments. This court has not, however, heard argument on all aspects of these cases, and only certain parts of the judgments are relevant to the issues in the present case. This is not, therefore, the occasion for a comprehensive review.

(i) Ziegler

21. In Ziegler, the defendants were charged with obstructing the highway, contrary to section 137(1) of the Highways Act 1980 (“the 1980 Act”). That provides:

“If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.”

In the magistrates’ court, the defendants were acquitted by the district judge on the ground that the prosecution had failed to establish the absence of a lawful excuse. The case then proceeded on appeal by way of case stated, first to the Divisional Court and finally to this court.

22. Section 137 and the equivalent predecessor provisions have a long and specific history, and have been the subject of a great deal of judicial consideration. The approach adopted to section 137 and its predecessors for over a century prior to Ziegler was rooted in authorities which treated the question to be decided under the statute as similar to the question to be decided in civil nuisance cases of an analogous kind. On that basis, it was held that it was necessary for the court to consider whether the activity being carried on in the highway by the defendant was reasonable or not: see, for example, Lowdens v Keaveney [1903] 2 IR 82, 87 and 89. That question was treated as one of fact, depending on all the circumstances of the case: Nagy v Weston [1965] 1 WLR 280, 284; Cooper v Metropolitan Police Commissioner (1985) 82 Cr App R 238, 242 and 244.That approach accorded with the general treatment in the criminal law of assessments of reasonableness as questions of fact. In cases where the activity in question took the form of a protest or demonstration, common law rights of freedom of speech and freedom of assembly were treated as an important factor in the assessment of reasonable user: see, for example, Hirst v Chief Constable of West Yorkshire (1986) 85 Cr App R 143. That approach was approved, obiter, by members of the House of Lords in Director of Public Prosecutions v Jones [1999] 2 AC 240 (“Jones”), 258-259 and 290. Lord Irvine of Lairg LC summarised the position at p 255: “the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage”. The same approach continued to be followed after the Human Rights Act entered into force: see, for example, Buchanan v Crown Prosecution Service [2018] EWHC 1773 (Admin); [2018] LLR 668.

23. That approach was not followed in the case of Ziegler. Although the case was argued before the Divisional Court in accordance with the established approach, and it was not suggested that that approach had resulted in an infringement of Convention rights, the Divisional Court embarked upon the exercise of interpreting section 137 in accordance with section 3 of the Human Rights Act: [2019] EWHC 71 (Admin); [2020] QB 253. It did so not only without the benefit of argument, but also without having considered whether the established interpretation of section 137, as stated for example by the Lord Chancellor in Jones, would result in a breach of Convention rights, contrary to the guidance given many times by this court (see, for example, S v L [2012] UKSC 30; 2013 SC (UKSC) 20; [2012] HRLR 27, para 15, and most recently R (Z) v Hackney London Borough Council [2020] UKSC 40; [2020] 1 WLR 4327, para 114).

24. The Divisional Court decided that “in circumstances where there would be a breach of articles 10 or 11, such that an interference would be unlawful under section 6(1) of the HRA, a person will by definition have ‘lawful excuse’” (para 62). The court did not explain what the relevant “interference” might be. It did, however, make it clear at paras 63-64 that the district judge or magistrates would have to apply a complex legal test:

“63.     That then calls for the usual enquiry which needs to be conducted under the HRA. It requires consideration of the following questions:

(1) Is what the defendant did in exercise of one of the rights in articles 10 or 11?

(2) If so, is there an interference by a public authority with that right?

(3) If there is an interference, is it ‘prescribed by law’?

(4) If so, is the interference in pursuit of a legitimate aim as set out in paragraph 2 of article 10 or article 11, for example the protection of the rights of others?

(5) If so, is the interference ‘necessary in a democratic society’ to achieve that legitimate aim?

64.      That last question will in turn require consideration of the well-known set of sub-questions which arise in order to assess whether an interference is proportionate:

(1) Is the aim sufficiently important to justify interference with a fundamental right?

(2) Is there a rational connection between the means chosen and the aim in view?

(3) Are there less restrictive alternative means available to achieve that aim?

(4) Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?”

25. The Divisional Court also decided that the correct approach to be taken to appeals by way of case stated, where the proportionality of an interference with a Convention right was in issue, was not that traditionally adopted in appeals against conviction under section 137, but was that set out by Lord Neuberger in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911 (“In re B”), para 92, namely whether the judge’s conclusion on proportionality was “wrong”.

26. On the subsequent appeal to this court, the decision of the Divisional Court was reversed. However, it was agreed between the parties, and this court accepted, that section 137 has to be read and given effect, in accordance with section 3 of the Human Rights Act, on the basis that the availability of the defence of lawful excuse, in a case raising issues under articles 10 or 11, depends on a proportionality assessment carried out in accordance with the approach set out by the Divisional Court: see paras 10-12 and 16. As that question is not in issue in the present case, we make no comment upon it.

27. One of the issues in dispute in the appeal was whether there can be a lawful excuse for the purposes of section 137 in respect of deliberate physically obstructive conduct by protesters, where the obstruction prevented, or was capable of preventing, other highway users from passing along the highway. Lord Hamblen and Lord Stephens concluded that there could be (Jones was neither cited nor referred to). Lady Arden and Lord Sales expressed agreement in general terms with what they said on this issue.

28. In the course of their discussion of this issue, Lord Hamblen and Lord Stephens stated at para 59:

“Determination of the proportionality of an interference with ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case”.

One might expect that to be the usual position at the trial of offences charged under section 137 in circumstances where articles 9, 10 or 11 are engaged, if the section is interpreted as it was in Ziegler; and that was the only situation with which Lord Hamblen and Lord Stephens were concerned. The dictum has, however, been widely treated as stating a universal rule; and that was the position adopted by counsel for JUSTICE in the present case.

29. That view is mistaken. In the first place, questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; [2009] 1 AC 287, the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38; [2015] AC 657, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; [2020] AC 869 and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223.

30. Those cases also demonstrate the related point that the determination of whether an interference with a Convention right is proportionate is not an exercise in fact-finding. It involves the application, in a factual context (often not in material dispute), of the series of legal tests set out at para 24 above, together with a sophisticated body of case law, and may also involve the application of statutory provisions such as sections 3 and 6 of the Human Rights Act, or the development of the common law. As Lord Bingham of Cornhill stated in the Belmarsh case (A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, para 44), with the agreement of the majority of a nine-member Appellate Committee of the House of Lords:

“The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom (1999) 29 EHRR 493. Nor should domestic courts do so.”

31. That is reflected in the approach adopted by this court to appeals on questions of proportionality. In cases such as those cited in the previous two paragraphs, the court (or, in the Belmarsh case, the House of Lords) did not accord any deference to the assessment of proportionality by the courts below, or limit its review to an assessment of the rationality of their conclusion, but carried out its own assessment. The same is true of other appeals concerned with rules or policies in which the facts of the individual case were of greater significance, such as Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 and R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56; [2022] 2 WLR 133.

32. That also reflects the related fact that the judicial protection of statutory rights by appellate courts is not secured merely by review according to a standard of unreasonableness. Nor does such a restricted review meet the requirements of the Convention, as this court, and the House of Lords before it, have pointed out on many occasions: see, for example, the Belmarsh case, para 44, where Lord Bingham referred to “[t]he greater intensity of review now required in determining questions of proportionality”.

33. However, in Ziegler, the majority of the court treated issues of proportionality as being susceptible to appeal by way of case stated only on the basis explained in Edwards v Bairstow [1956] AC 14: that is to say, if an error of law was apparent on the face of the case, or if the decision was one which no reasonable court properly instructed as to the relevant law could have reached (see Ziegler at paras 29, 36 and 42-52). In arriving at that approach, Lord Hamblen and Lord Stephens interpreted the decision in In re B, in the light of a dictum of Lord Carnwath in R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47; [2018] 1 WLR 4079 (“R (R)”), para 64, as meaning that appellate courts should adopt a standard of unreasonableness when considering issues of proportionality. In re B, like the more recent case of In re H-W (Children) [2022] UKSC 17; [2022] 1 WLR 3243, was concerned with the proportionality of a specific care order in the light of the circumstances of a particular child: a one-off decision, affecting only persons involved in the proceedings, which the judge who heard the evidence was particularly well placed to take. The approach adopted by this court was that the appellate court should intervene if the lower court’s assessment of proportionality was wrong. That approach is capable of being applied flexibly, since the test or standard applied in deciding whether a decision is wrong can be adapted to the context, as Lady Arden noted in Ziegler at paras 102-103, and as Lord Sales emphasised in his judgment. The case of R (R) was a judicial review concerned with the disclosure of particular information about an individual’s past in an enhanced criminal record certificate. Lord Carnwath followed the approach laid down in In re B, but added the observation cited by Lord Hamblen and Lord Stephens, that “for the decision to be ‘wrong’ … it is not enough that the appellate court might have arrived at a different evaluation”. It would, however, be a mistake to attach undue significance to a statement which was made by Lord Carnwath in the context of a particular case without reference to a plethora of other cases, some of which have been mentioned in paras 29-31 above, in which a more interventionist approach was adopted by this court in order to enable it to fulfil its constitutional function and to perform its duty under the Human Rights Act.

34. There is a further reason why the dictum cited at para 28 above, that the determination of proportionality is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case, cannot be taken to be a universal rule. It is possible for a general legislative measure in itself to ensure that its application in individual circumstances will meet the requirements of proportionality under the Convention, without any need for the evaluation of the circumstances in the individual case.

35. Even in the particularly sensitive context of restrictions on freedom of political speech under article 10, the European court has accepted that general restrictions imposed by legislation can sometimes be justifiable. In its judgment in Animal Defenders International v United Kingdom (2013) 57 EHRR 21 (“Animal Defenders”), which concerned a statutory prohibition of political advertising, the Grand Chamber said that:

(1)       “[A] state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases” (para 106).

(2)       The European court attaches particular importance to “[t]he quality of the parliamentary and judicial review of the necessity of the measure” (para 108). In that regard, the court made clear at paras 115-116 the importance which it attaches to judicial consideration of proportionality issues in the light of the Convention case law.

(3)       “It is also relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the state to assess” (para 108).

(4)       “A general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty, of litigation, expense and delay as well as of discrimination and arbitrariness” (para 108).

(5)       “[T]he more convincing the general justifications for the general measure are, the less importance the [European] court will attach to its impact in the particular case” (para 109).

(6)       “The central question as regards such measures is not ... whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it” (para 110).

36. The position is similar in relation to article 11. In Kablis v Russia (Application Nos 48310/16 and 59663/17) (unreported) given 30 April 2019, the European court considered a complaint concerning a law which prohibited demonstrations and other public events in the main square of a Russian town. The European court stated at para 54, under reference to Animal Defenders, that “a state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case, even if this might result in individual hard cases”.

37. Counsel for JUSTICE submits that the approach adopted in Animal Defenders has no application to criminal proceedings, relying principally on the judgment of the majority of the Grand Chamber in Perinçek v Switzerland (2015) 63 EHRR 6 (“Perinçek”). That case concerned the applicant’s conviction of an offence of grossly trivialising a genocide on racial grounds, after he made public statements denying that the Armenian genocide had taken place. The critical issue was whether the Swiss authorities had struck a proper balance between the applicant’s rights under article 10 and the right of the Armenian people to the protection of their dignity under article 8. The European court observed at para 198 that “in principle the rights under these articles deserve equal respect”. It added that the choice of the means to secure compliance with article 8, and the assessment of whether and to what extent an interference with the right to freedom of expression is necessary, are both matters falling within the state’s margin of appreciation. As the court stated, the margin of appreciation goes hand in hand with European supervision. However:

“If the balancing exercise has been carried out by the national authorities in conformity with the criteria laid down in the [European] court’s case-law, the [European] court would require strong reasons to substitute its view for theirs.”

38. At para 272, the European court pointed out that the form of interference at issue in that case - a criminal conviction which could result in a term of imprisonment - was much more serious in terms of its consequences for the applicant than the interference considered in Animal Defenders, and called for stricter scrutiny. The question in issue in the present case, however (where the maximum penalty on conviction of an offence under the Bill is a fine), is whether there must be an assessment of proportionality on the facts of the individual case. In that regard, counsel relied on a passage in para 275 of the judgment in Perinçek:

“Indeed, an interference with the right to freedom of expression that takes the form of a criminal conviction inevitably requires detailed judicial assessment of the specific conduct sought to be punished. In this type of case, it is normally not sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general terms; what is rather required is that it was necessary in the specific circumstances.”

39. In that passage, the word “normally” is important. Although the first sentence provides general guidance, the European court did not lay down an absolute principle. On the facts of the case, the majority of the European court based their decision to uphold the complaint on their view that the Swiss Government, in promoting the legislation in question, had accepted that proof of the ingredients of the offence would not in itself satisfy the proportionality balance, but that the balance needed to be struck in individual situations (para 275). Furthermore, the reasoning of the Swiss courts in the applicant’s case “does not show that they paid any particular heed to this balance” (para 276). I would also observe that the measure in question criminalised the expression of a political opinion, rather than merely regulating the time, place or manner of its expression.

40. Two other points need to be borne in mind. First, the European court confines itself, as far as possible, to an examination of the concrete case before it. As it has often said, its task is not to review legal provisions and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention. Domestic courts are not required to proceed on the same basis, and this court cannot do so on a reference of the present kind.

41. Secondly, the European court has repeatedly emphasised that the Convention is intended to protect rights that are practical and effective, and that its concern is therefore with matters of substance rather than form. It would be inconsistent with that approach to draw a fundamental distinction in our domestic application of the Convention, in relation to legal measures restricting protesters’ rights under articles 9 to 11, according to the domestic classification of the measures as civil or criminal. That is illustrated by the fact that one of the government’s responses to the decision in Ziegler was to obtain civil injunctions, covering the national network of motorways and other major roads, and prohibiting activities which would obstruct them. Such injunctions, although classified as civil remedies, are generally directed against “persons unknown” as well as any protesters whose identities are known, and contain a power of arrest. They are enforceable by proceedings for contempt, in which unlimited fines or sentences of imprisonment can be imposed. Those are more serious penalties than are available under the present Bill.

(ii) Cuciurean

42. The decision in Ziegler was widely understood as having established that every criminal conviction of protesters involved a restriction upon their Convention rights, and must be proved to be justified and proportionate on the basis of an assessment of the particular facts. As explained, that understanding was mistaken. The issue reached an appellate court in the case of Cuciurean, which concerned a protester who trespassed on land adjacent to the West Coast railway. He dug a tunnel there and occupied it with the intention of obstructing the construction of the HS2 project. He was charged with an offence of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which provides (so far as material):

“(1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect -

(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,

(b) of obstructing that activity, or

(c) of disrupting that activity.”

43. In the magistrates’ court, the deputy district judge acquitted the defendant on the basis that, following Ziegler, the prosecution had to establish that a conviction would be a proportionate interference with his article 10 and 11 rights, and had failed to do so. The prosecution appealed by way of case stated to the Divisional Court, which allowed the appeal on the basis that the ingredients of the offence under section 68 ensured that a conviction of that offence was a proportionate interference with those rights.

44. The central issue in the appeal was whether the decision in Ziegler requires a proportionality test to be made an ingredient of any offence which impinges on the exercise of rights under articles 10 or 11 of the Convention. The court held that Ziegler did not have that effect, and upheld the submission by the prosecution that a conviction of the offence of aggravated trespass was - intrinsically and without the need for a separate consideration of proportionality in individual cases - a justified and proportionate interference with those rights.

45. In its judgment, delivered by Lord Burnett of Maldon CJ, the court noted at para 37 that the Grand Chamber of the European court had stated that intentional serious disruption by demonstrators to ordinary life and to the activities lawfully carried out by others, to a more significant extent than that caused by the normal exercise of the right of peaceful assembly in a public place, may be considered a “reprehensible act” within the meaning of the court’s case law, so as to justify a criminal sanction: Kudrevičius v Lithuania (2015) 62 EHRR 34 (“Kudrevičius”), para 173. As the Divisional Court noted, the case law of the European court contains numerous examples of cases where criminal sanctions, imposed on protesters who obstructed roads or otherwise disrupted the ordinary activities of others, were held to be a reaction proportionate to the legitimate aim of protecting the rights and freedoms of others or protecting public order. The court also cited Animal Defenders (at para 71) as an example of a case where the European court accepted that a general measure enacted by Parliament had satisfactorily addressed proportionality, making case-by-case assessment unnecessary.

46. The Divisional Court also noted a number of domestic cases in which it had been held that a criminal offence with which protesters were charged was inherently proportionate, without any need for a fact-specific assessment in individual cases.

47. One such case was Bauer v Director of Public Prosecutions (Liberty intervening) [2013] EWHC 634 (Admin); [2013] 1 WLR 3617 (“Bauer”), concerned with section 68 of the 1994 Act. The Divisional Court held at paras 39-40 that the state was entitled, for the purpose of preventing disorder or crime, to prevent aggravated trespass, and that if the ingredients of section 68 were proved, there was nothing more to prove, including proportionality, in order to convict of the offence.

48. Another such case was James v Director of Public Prosecutions [2015] EWHC 3296 (Admin); [2016] 1 WLR 2118 (“James”), which concerned the offence of failing to comply with a condition imposed by a police officer on the holding of a public assembly, contrary to section 14(5) of the Public Order Act 1986. The ingredients of the offence included that a senior police officer (a) had reasonably believed that the assembly might result in serious public disorder, serious damage to property or serious disruption to the life of the community or that the object of the organisers was to intimidate others into not doing something that they had a right to do or into doing something they had a right not to do, and (b) had given a direction imposing conditions appearing to him to be necessary to prevent such disorder, damage, disruption or intimidation. The Divisional Court held that where the prosecution satisfied those statutory tests, that was proof that the imposition of the conditions was proportionate.

49. Another example was the decision of the High Court of Justiciary in Gifford v HM Advocate [2011] HCJAC 101; 2011 SCCR 751 (“Gifford”), which concerned the common law offence of breach of the peace, which in Scots law requires conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. The court stated that “the Convention rights to freedom of expression and freedom of assembly do not entitle protesters to commit a breach of the peace” (para 15). In support of that proposition, the court cited inter alia the decision of the European court in Lucas v United Kingdom (Application No 39013/02) (unreported) given 18 March 2003, which concerned a complaint following a conviction of a protester for breach of the peace. The European court held the complaint to be manifestly inadmissible, since the actions of the police in arresting and detaining the applicant, and of the national court in convicting and sentencing her, were proportionate to the legitimate aim pursued, in view of the dangers posed by her conduct in sitting in a public road and the interest in maintaining public order, and a relatively minor penalty had been imposed. In Gifford, the court observed (para 17):

“Accordingly, if the jury are accurately directed as to the nature of the offence of breach of the peace, their verdict will not constitute a violation of the Convention rights under articles 10 and 11, as those rights have been interpreted by this court in the light of the case law of the Strasbourg Court. It is unnecessary, and inappropriate, to direct the jury in relation to the Convention.”

50. Another relevant authority was Richardson v Director of Public Prosecutions [2014] UKSC 8; [2014] AC 635, a decision of this court which concerned an offence under section 68 of the 1994 Act. In a passage which was obiter, but with which all the members of the court agreed, Lord Hughes stated at para 3:

“References in the course of argument to the rights of free expression conferred by article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms were misplaced. Of course a person minded to protest about something has such rights. But the ordinary civil law of trespass constitutes a limitation on the exercise of this right which is according to law and unchallengeably proportionate. Put shortly, article 10 does not confer a licence to trespass on other people’s property in order to give voice to one’s views.”

51. In Cuciurean, the Divisional Court noted that there was no need to consider those authorities in Ziegler, as it was a case concerned solely with the “lawful excuse” defence in section 137 of the 1980 Act, and proceeded upon a concession that the availability of that defence, in cases concerned with protests, depended on an assessment of the proportionality of an interference with the defendant’s rights under articles 10 and 11 of the Convention. The court in Ziegler had no need to consider, and expressed no views about, offences where the balance required for proportionality under articles 10 and 11 may be struck by the terms of the legislation setting out the ingredients of the offence (or, in the case of a common law offence, by the relevant case law). Accordingly, as the Divisional Court stated in Cuciurean at para 67:

“For these reasons, 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.”

52. One more observation should be made about the case of James. In its judgment in that case the Divisional Court distinguished between two categories of offence: first, those whose ingredients include a requirement for the prosecution to prove that the conduct of the defendant was not reasonable, where any restrictions on the exercise of rights under articles 10 and 11, and the proportionality of those restrictions, are relevant to whether that ingredient is proved; and secondly, offences where, once the ingredients of the offence have been proved, the defendant’s conduct has gone beyond what could be regarded as reasonable conduct in the exercise of Convention rights, so that the necessary balance for proportionality is struck by the terms of the offence itself.

53. It is important not to make the mistake of supposing that all offences can be placed into one of those categories, or to suppose that a reference to lawful or reasonable excuse in the definition of an offence necessarily means, in cases concerned with protests, that an assessment of proportionality can or should be carried out. The position is more nuanced than that.

54. Where a defendant relies on article 9, 10 or 11 Convention rights as a defence to a protest-related offence with which he is charged, the first question which arises is whether those articles are engaged. The conduct in question will fall outside the scope of those articles altogether if it involves violent intentions, or incites violence, or otherwise rejects the foundations of a democratic society (Kudrevičius, para 92), or if article 17 of the Convention applies (article 17 provides that the Convention does not confer any right on a person to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set out in the Convention or at their limitation to a greater extent than is provided in the Convention). A recent domestic example is Attorney General’s Reference (No 1 of 2022) [2022] EWCA Crim 1259, where conduct causing significant damage to property, contrary to section 1(1) of the Criminal Damage Act 1971, was held by the Court of Appeal to fall outside the scope of articles 9, 10 and 11. Equally, if a protester were physically to assault another person, knowing that the assault, being newsworthy, would provide him with an opportunity to communicate to the public his views on a matter of public concern, Convention rights would not shield him from the criminal law.

55. If articles 9, 10 or 11 are engaged, the second question which arises is whether the offence is one where the ingredients of the offence themselves strike the proportionality balance, so that if the ingredients are made out, and the defendant is convicted, there can have been no breach of his or her Convention rights. If the offence is so defined as to ensure that any conviction will meet the requirements of proportionality, the court does not have to go through the process of verifying that a conviction would be proportionate on the facts of every individual case. The cases discussed in paras 47-50 above, and Cuciurean, are examples of circumstances where that approach was applied. Indeed, many commonly encountered criminal offences, such as offences of violence, and offences concerned with damage to property, are likely to be defined in such a way as to make an assessment of proportionality unnecessary, either because the conduct in question falls outside the scope of protection under the Convention or because proportionality is inherent in the ingredients of the offence. In considering whether the ingredients of the offence ensure the proportionality of a conviction, it is also necessary to bear in mind that decision-makers enjoy a margin of appreciation in relation to interferences with rights protected by articles 9, 10 and 11: see, for example, Delfi AS v Estonia 62 EHRR 6, para 131, and more recently Lilliendahl v Iceland (Application No 29297/18) (unreported) given 12 May 2020, paras 30-31. Courts therefore have to accord appropriate respect to the assessment made by the decision-maker, whether that be Parliament in the case of primary legislation or, in the case of offences created by subordinate or devolved legislation, the government or the devolved legislatures or executives.

56. Where the conduct in question falls within the scope of articles 9, 10 or 11, and proof of the ingredients of the offence does not in itself ensure the proportionality of a conviction, then the possibility arises that a conviction might be incompatible with the Convention rights. Given the court’s general duty not to act incompatibly with Convention rights under section 6(1) of the Human Rights Act, subject to the exceptions set out in section 6(2), it is accordingly necessary to consider a third question: whether there is a means by which the proportionality of a conviction can be ensured.

57. If the offence is statutory, the interpretative duty imposed by section 3 of the Human Rights Act may enable the court to construe the relevant provision in a way which renders it compatible with the Convention rights, either by interpreting it in such a way that a conviction will always meet the requirements of proportionality, or by interpreting it so as to allow for an assessment of the proportionality of a conviction in the circumstances of individual cases. For example, a defence of lawful or reasonable excuse may provide a route by which a proportionality assessment can be carried out, where the defence can properly be interpreted, having recourse if need be to section 3 of the Human Rights Act, as including the exercise of Convention rights.

58. But the mistake should not be made of assuming that the presence of a reference to lawful or reasonable excuse in the definition of an offence necessarily means that a proportionality assessment in respect of Convention rights is appropriate. As has been explained, offending conduct may fall outside the scope of articles 9 to 11, with the consequence that no proportionality assessment is required, even though the ingredients of the offence may include the absence of lawful excuse. That was held to be the case, in relation to section 1(1) of the Criminal Damage Act 1971, in Attorney General’s Reference (No 1 of 2022). Similarly, there is a defence of lawful excuse to the offence of threatening to kill, under section 16 of the Offences against the Person Act 1861. That defence caters for threats to kill that are made in circumstances where they are justifiable under our substantive criminal law, such as threats made in self-defence (R v Cousins [1982] QB 526). The defence would not arise merely because the defendant made the threat in the course of a protest, or as a means of drawing attention to an issue of current debate: as explained earlier, violent offences fall outside the scope of articles 9 to 11 (para 54 above). Further, where the ingredients of the offence in themselves do strike the appropriate balance, there is no need for a Convention proportionality assessment when considering the lawful excuse defence. That defence can be relied on in other circumstances that do not raise Convention issues, such as where the defendant asserts that he acted in self-defence or out of necessity, or had been lawfully authorised to engage in the conduct alleged.

59. If interpretation in accordance with section 3 cannot resolve the incompatibility, then the court must give effect to primary legislation notwithstanding the violation of Convention rights: section 6(2) of the Human Rights Act.

60. The position in relation to subordinate legislation (including devolved legislation: section 21 of the Human Rights Act) is more complex, having regard to sections 3 and 6(2)(b) of the Human Rights Act, and to authorities such as Boddington v British Transport Police [1999] 2 AC 143 and RR v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2019] UKSC 52; [2019] 1 WLR 6430.

61. Where the offence arises at common law, resort cannot be had to section 3 of the Human Rights Act, since there is no legislation capable of being given a Convention-compliant interpretation. Instead, the question arises whether the court can develop the common law so as to render the offence compatible with Convention rights, either on ordinary principles or by virtue of the duty imposed by section 6(1) of the Human Rights Act.

(iii) The questions arising from Ziegler and Cuciurean

62. In the light of that discussion of Ziegler and Cuciurean, the questions raised about those cases by counsel’s submissions in the present case can be answered quite briefly.

63. The first question was whether, in a case where the exercise of rights under articles 9 to 11 of the Convention is raised by the defendant to a criminal prosecution, there must always be an assessment of the proportionality of any interference with those rights on the facts of the individual case. The answer is no: see paras 29, 34-41 and 45-51 above.

64. The second question was whether, where an offence is liable to give rise to an interference with the exercise of rights under articles 9, 10 or 11 of the Convention, it is necessary for the ingredients of the offence to include (or be interpreted as including) the absence of reasonable or lawful excuse in order for a conviction to be compatible with the Convention rights. The answer is no: see paras 44-55 above.

65. The third question was whether it is possible for the ingredients of an offence in themselves to ensure the compatibility of a conviction with the Convention rights under articles 9, 10 and 11. The answer is yes: see paras 34-41, 45-51 and 55 above.

66. The fourth question was whether an assessment of proportionality is a question of fact. The answer is no: see paras 30-34 above.

67. The fifth question was whether an assessment of proportionality in criminal proceedings must necessarily be carried out by the body responsible for determining the facts at the trial of the offence. The answer is no. As has been explained, the assessment of proportionality is not a question of fact, and therefore need not necessarily be decided by the body responsible for finding the facts at any trial. Who determines it must depend on the relevant rules of criminal procedure. In Northern Ireland a devolution issue may arise, which has to be determined in accordance with the relevant legislation, and may be decided prior to trial, either by the court before which the issue has been raised, or by a higher court to which the issue has been referred. In Scotland, the statutory provisions governing compatibility issues apply, and again enable the issue to be decided or referred to a higher court prior to trial, commonly in the context of a plea in bar of trial on the ground of oppression (analogous, in English procedure, to an application for a stay on the ground of abuse of process). In relation to England and Wales, the Court of Appeal provided guidance in Attorney General’s Reference (No 1 of 2022), para 118, as to the circumstances in which a jury need not be directed on the issue of proportionality, or in which a judge might withdraw the issue from the jury. There may be a question as to whether the issue is appropriate for determination by a jury, having regard to the complexity of the analysis of proportionality (set out in para 24 above) and the other, equally complex, questions which may arise (eg as to the application of sections 3 and 6 of the Human Rights Act, where the challenge is to the proportionality of legislation, or the potential development of the common law, where it is not), or whether some other procedure, such as an application to stay proceedings as an abuse of process, might be more apt. However, it is unnecessary to consider the matter for the purpose of the present proceedings.