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Obstruction, Greengrocery, Burger Vans and Demonstrations

An article written by Nicholas Hancox

Everybody knows that a greengrocer is obstructing the public highway when he places a box of cabbages for sale on the footway outside his shop. (Wolverton UDC v Willis [1962] 1 All ER 243 and many other cases) Everybody knows that a publican is obstructing the public highway when she places an A-framed board on the footway advertising her Happy Hour. And everybody knows that the driver of a hot food van is obstructing the public highway when she or he lurches to a halt at the kerbside in order to sell their apparently irresistible foodstuffs. But times are changing and what used to be a clear case of unlawful obstruction (under section 137 of the Highways Act 1980 or (the sadly much overlooked) section 28 of the Town Police Clauses Act 1847) is now increasingly seen as a perfectly legitimate use of the public highway.

To be fair, there never was a law that said you have to be in a state of constant motion, when exercising your right to pass and re-pass along (or across) the King's or the Queen's highway. "The King's Highway", said Chief Justice Ellenborough in R v Cross (1812) 3 Camp 224, "is not to be used as a stable yard. A stage coach.. ." (Remember those?) "...may set down or take up passengers in the street, this being necessary for public convenience, but it must be done in reasonable time and private premises must be procured for the coach to stop in during the interval between the end of one journey and the commencement of another." The right to pass and re-pass always included the right to stop and have lunch ( Rodgers v Ministry of Transport [1952] 1 All ER 634) and, since 1999 at least, the right to conduct some protest demonstrations on the highway. (DPP v Jones [1999] 2 AC 240). But there has long been an uneasy relationship between the judges who want to keep the highways clear and those who see little harm in minor obstructions which, in their eyes, do no real harm.

So it was in the High Court on 25 March 2004, when Kennedy LJ and Goldring J heard an appeal (Scott v Mid-South Essex Justices and Keskin [2004] EWHC 1001 (Admin)) by way of 'case stated' from a decision of the Mid-South Essex Justices. You can tell there is something funny going on, when a private individual brings a prosecution for obstruction of the highway and such was the case in Mid-South Essex. Mr Scott, the appellant, was miffed by Mr Keskin, the Interested Party and the police and the local Council would do nothing about it. Mr Keskin was the proprietor of the Cosmos Takeaway, an enterprise selling burgers and kebabs to the hungry of Mid-South Essex. No harm so far, but the Cosmos Takeaway had its premises on the tarmac of Bramston Way in Laindon and this was, and is, a public highway. The Cosmos Takeaway was a hot food van. More precisely, the Cosmos Takeaway was a series of hot food vans, the second much larger than the first. The enterprising Mr Keskin parked his van in Bramston Way every night and distributed advertising flyers amongst the good people of Mid-South Essex, encouraging them to wend their way to Laindon and sample his burgers and kebabs. This, by all accounts, they duly did and the Cosmos Takeaway was a great success.

The Cosmos Takeaway, parked overnight in Bramston Way, and surrounded by tables, chairs, flashing lights and a dustbin, was also clearly an obstruction of the public highway. Mr Scott was miffed and Mr Keskin was prosecuted. The local beaks threw the case out. "Yes", they said in their Case Stated, " Mr Keskin was obstructing the highway, but he was not obstructing the highway unreasonably and we must follow the cases of Nagy v Weston [1965] 1 All ER 78 and (in the House of Lords) DPP v Jones." Deciding the appeal, Goldring J (with whom Kennedy LJ agreed) said that DPP v Jones had changed the law. Only an unreasonable obstruction is now unlawful. It was up the Magistrates to decide, on the facts, whether Mr Keskin's Cosmos Takeaway was, or was not, an unreasonable obstruction of Bramston Way. They thought it was not an unreasonable obstruction and their view was 'within the range of permissible views on the subject'. The Appeal was dismissed and the failure of the prosecutions was confirmed.

So, has the law changed or has it not?

It was ever the case, that a traveller was entitled to stop on the King's Highway for so long as was necessary for the purposes of his journey. Having a lunch break, resting and feeding the horses, mending punctures and dealing with fellow-travellers who crash into you are all, it is submitted, perfectly lawful at Common Law. The right to pass and re-pass extends to all those. Now however, the traveller may also stop and demonstrate, stop and sell burgers, and indeed stop and indulge in any other reasonable activity. The test now is this: Is the obstruction reasonable or unreasonable? And in many ways, 'twas ever thus.