Hirst and Agu v Chief Constable of West Yorkshire, Queen's Bench Division 85 Cr App Rep 143, 151 JP 304, [1987] Crim LR 330

HEARING-DATES: 7 November 1986


The appellants were members of a group of animal rights supporters who were demonstrating on a highway outside a shop which was selling furs. The demonstration took the form of displaying banners and offering leaflets to passers-by. The appellants were arrested. In due course they were convicted by the justices of wilfully obstructing, without lawful authority or excuse, free passage along the highway, contrary to s 137 of the Highways Act 1980. The Crown Court, following Waite v Taylor (1985) 149 JP 551, found that standing on the highway offering leaflets and holding banners was not incidental to its lawful user, and that therefore the appellant had wilfully obstructed the highway. Accordingly, they dismissed appeals against conviction. On appeal to the Queen's Bench Divisional Court by way of case stated.

"The question for the opinion of the High Court is whether we correctly interpreted the meaning of the words 'willfully obstruct', and whether the facts of the case are capable as a matter of law of justifying a conviction."

" [Willful Obstruction] is when obstruction is caused purposely or deliberately". However, precedents have indicated two further elements must be satisfied before any one can be convicted of these offenses. First, the defendant must have no lawful authority or excuse to engage in the act in question. Second, the court must determine whether the acts engaged in are reasonable. The court went declared, however, that it viewed excuse and reasonableness as the same critiria. It placed the emphasis on where there was no lawful authority. Furthermore, it established that use amounting to an obstruction that is or is not an unreasonable use of the highway is a question of fact. 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.

The court then outlined an approach for magistrates who are dealing with the issues that were raised in this case. First, the court should query whether there was an obstruction. Any stopping on the highway, whether it be on the carriage way or on the footway, is prima facie an obstruction unless the obstruction is so small that it comes within the rubric de minimis. Second, whether the act in question was willful and deliberate. Thus a pedestrian or a motorist who had to stop because of exogenoues circumstances is not engaged in a willful act. Third, is whether the prosecution proved that obstruction was without lawful authority or excuse. Lawful authority includes: permits and licences granted under statutory provision for street vendors and street markets. Lawful excuse embraces activities otherwise lawful in themselves which may or may not be reasonable.

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