•Many animal rights stalls and assemblies may cause an obstruction, but the key legal point is whether or not there is a “lawful excuse” for the obstruction.
•Once it was the case that there could only be a lawful excuse for obstructing the highway where you were using it for passage or re-passage and for ancillary matters – e.g. stopping to read a map. But more recent case decisions have interpreted the right to use the highway much more liberally, so as to include, for example, the handing out of leaflets, assembling and collecting for charity. Nowadays the courts are much more mindful of the exercise of European convention rights when deciding whether or not an obstruction has been caused.
•It follows that it is not necessarily the case that an animal rights stall or a picket outside a shop on the highway is causing an unlawful obstruction, even though the police and council officials often maintain that it is. Leading cases state that all the circumstances must be considered in determining whether the obstruction was unlawful, including the duration, the purpose of the obstruction and its extent on to the highway.
•One of the purposes of an obstruction during the course of a demo will be the exercise of one or more European convention rights – eg the right to freedom of expression under Article 10 of the convention. Now that the police are legally bound to respect your rights under the European Convention on Human Rights, they have to interpret their powers so as to be consistent with those rights. And the courts must, wherever possible, interpret all legislation so as to be consistent.
•In a case which went to the high court last year, an anti-war protestor had erected a number of placards in Parliament Square in London. These placards protruded by one and a half feet on to a highway eleven feet wide. The council sought an injunction against him in the High Court prohibiting him from obstructing the highway. The court ruled that he had wilfully obstructed the highway, but that the obstruction was reasonable in all the circumstances. The injunction was refused.
•You cannot be arrested for obstruction where you are simply walking along the highway, unless you are blocking a main road.
•The courts have ruled that unlawful activity could never be regarded as “reasonable” for the purpose of the act.
•Although breach of Section 137 is not strictly speaking an “arrestable offence”, the police can arrest you to prevent an obstruction of the highway using their general power of arrest under Section 25 of PACE.
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