ABSTRACT
A citizen is free to move along the highway. It is, however, a criminal offence to obstruct the highway. Obstructing the highway also represents a public nuisance, which may be prosecuted on indictment under common law.10 Under section 137 of the Highways Act 1980, ‘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’.11 In Hirst v Chief Constable for West Yorkshire (1986), animal rights demonstrators protesting outside a store selling animal fur products were charged with obstructing the highway. The magistrates’ court convicted them of obstruction. However, on appeal, the Divisional Court held that the justices should have considered the reasonableness of the action and weighed in the balance the right to protest and demonstrate and the need for public order. The magistrates’ court had failed to consider this and, accordingly, failed to respect the freedom to protest on matters of public concern. This approach was echoed in Director of Public Prosecutions v Jones (1999) in which the House of Lords ruled that – provided a highway was not in fact obstructed – it could be lawful to use it for protest.
