Introduction (always give birds eye picture of the whole essay and try to give conclusion

as well)
This case concerns the relationship of the criminal law with the rights to freedom of
expression and freedom of peaceful assembly guaranteed by articles 10 and 11 of the
European Convention of Human Rights (the "ECHR"). It engages issues of basic goods,
morality, principles, and human rights. Natural law theories (NLT) of John Finnis and Ion
Fuller address normative and procedural issues involved in this case. It will be shown that the
NLTs are more relevant than ever. It explains the increasing importance of principles, values,
morality, and natural law principles. Protection of basic goods – such as life, free speech,
acquisition of knowledge, political organisation – has been key factor in legitimacy of
modern constitutional governments. The case at hand is an important example of when
multiple principles compete and conflict with each other. Positive law theories do not explain
well how such disputes are resolved by courts by applying and balancing basic goods. The
basic goods refer to basic human rights, values, and principles which are discernable without
reference to empirical evidence. These are accessible by application of human reasoning and
evaluative or qualitative knowledge. Hence, positivist methodology of knowledge cannot
capture such knowledge. This essay will explain how NLT explains the process, substantive
issues, and outcome in the present case.

Facts (try to be relevant and brief in giving material facts; but for the purposes of this
notes, full facts are given. You should summarise these in 2-3 paras by giving out facts,
reasoning, and decision of the court and in particular differing views of any judge(s))

In September 2017, the Defence and Security International arms fair was held at the Excel
Centre in East London. The appellants are strongly opposed to the arms trade. They took
action to protest the fair and disrupt deliveries to the Excel Centre. The action consisted of
lying down in the middle of one side of an approach road leading to the Excel Centre, and
locking themselves to lock boxes, which are hollow boxes containing bars to which the
appellants attached their arms. The police were present at the scene in anticipation of
demonstrations. Officers tried to persuade the appellants to remove themselves from the road.
When this failed, the appellants were arrested. It took roughly 90 minutes to remove them
from the road, however, as the lock boxes were constructed in a way which made them hard
to disassemble.
The appellants were charged with wilful obstruction of a highway without lawful authority or
excuse, contrary to section 137(1) of the Highways Act 1980 (the "1980 Act").

[please note how courts below use systematic procedures to hear, review, and decide
cases by identifying facts with relevant legal rules and principles. There is a systematic
process and public reasoning used by courts. This conforms with Fuller’s idea of law
being transparent, logical, and non-arbitrary. Notice if court deviated from eight points
of Fuller discussed below.]

They were acquitted following a trial at Stratford Magistrates’ Court. The district judge had
regard to the appellants’ article 10 and 11 ECHR rights, and concluded that the prosecution
had not proved that the appellants’ obstruction of the highway, which it found to be limited,
targeted, and peaceful, was unreasonable. The appellants therefore had a defence of lawful
excuse for the purposes of section 137. The respondent appealed by way of case stated to the
Divisional Court, which allowed the appeal and directed that convictions be entered. The
Divisional Court considered that the assessment of the proportionality of the interference with
the appellants’ ECHR rights was wrong, essentially because the district judge failed to strike
a fair balance between the interests of the protestors and those of other members of the
public. The parties agreed that the issues in the appeal, as certified by the Divisional Court as
points of law of general public importance, are as follows:

[Notice that the first issue relates to how court approaches the reasoning publicly by
using objective, well-defined tests to review cases]

1. What is the test to be applied by an appellate court to an assessment of the trial court
in respect of a statutory defence of lawful excuse when Convention rights are engaged
in a criminal matter?

[This issue involves competing basic goods. Courts use the Practical Reasonableness
factors to decide whether the conduct of defendants was harmful or justified on
principles, as there is no clear answer]

2. Is deliberate physically obstructive conduct capable of constituting a lawful excuse

for the purposes of section 137 of the 1980 Act, where the impact of the deliberate
obstruction on other highway users is more than de minimis (i.e. minimal), and
prevents them, or is capable of preventing them, from passing along the highway?

Judgment
The Supreme Court allows the appeal by a majority. The order directing convictions is set
aside. The dismissal of the charges against the appellants is restored. Lord Hamblen and Lord
Stephens give the main judgment, and Lady Arden gives a separate concurring judgment.
Lord Sales, with whom Lord Hodge agrees, gives a judgment dissenting in part.

Reasons for the Judgment

Finnis’ NLT posits that all humans are endowed with reasoning abilities. Using one’s rational
faculties of mind one can derive general principles of morality. Laws should be based on such
reasoning. Said knowledge of basic goods of human life and society can be accessed using
rationality. This is universal to all. anyone can access it and it is shared knowledge, which
makes communication, public reasoning, and rational argumentation possible. No proof from
external world through sense-perception is required to validate such knowledge. Hence,
natural law – for its validity – does not require positivist approach. Through this reasoning
process, Finnis argued that there are at least seven basic goods such as right to life,
knowledge, friendship, aesthetics, beliefs, play and sports, and practical reasonableness. In
case there is conflict between any of the goods, it is to resolved through application of at least
nine factors of practical reasonableness.

Fuller’s theory on the other does not analyse substantive content of natural law. rather he
argues that there are procedural regularities which a legal system must adhere to. A good or
moral legal system has moral validity if it attains and fulfills the inner morality of law. Doing
so gives laws its normative validity which is different from ‘legal’ or positivist validity.
Moral perfection is a matter of degree and not validity and invalidity per se. having moral
legal system binds citizens and officials to follow the law. An immoral legal system would
still not be followed but it exempts citizens and officials from its moral binding force. This
means that if a citizen can avoid following such law, she would be perfectly justified to do so.
The eight points of Fuller involve making laws that are not arbitrary, are consistent,
transparent, easily accessible and understood, non-discriminatory, and so on. This is akin to
modern interpretation of rule of law – at least the procedural or ‘form’ aspect of rule of law –
espoused by Lord Bingham.

It can be seen that in giving the decision courts below and at appellate level adhere to such
aspects of Fuller’s NLT. There is a process by which case comes to court is heard and passed
judgment on. Appellate process also adheres to such principles. Courts make consistent
judgments by referring to the legal applicable rules and judgments, instead of following their
personal views on what is just and fair.

This case involves two such basic goods and various factors of practical reasonableness in the
guise of “proportionality” test of judicial review. The basic good that the defendants wanted
to exercise related to knowledge and its subset free speech and expression involving political
values. Government on the other hand argued that unlawful interference harms life, legal
order, and rights of others. The question was whether the defendants had lawful excuse in
doing their protest which is an exercise of free speech or whether it materially interfered with
public life and governmental business without any cause.

The appellate test: choosing between theories of public reasoning and judicial review
Court stated that Section 137(1) of the 1980 Act must be read compatibly with the ECHR. In
this context, that involves considering whether the public authority’s interference with the
protestors’ rights was proportionate. If it was not proportionate, such that the interference was
unlawful, the protestor will have a statutory defence of lawful excuse. [10]-[16]. This clearly
shows application of practical reasonableness test developed by Finnis. Court uses it to
balance competing basic goods and principles in a case.

Court had to ensure that exercise of its powers were within the law developed earlier. The
judicial review test involved concerned the Wednesbury irrationality test established in
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). Court also
examined the scope and application of its judicial review powers. It examined that the
Wednesbury irrationality or perversity principle is very strict. This means that only if lower
court made an error of law can this ground be invoked per Edwards v Bairstow. The
threshold of the test is too high. Instead of following this strict test, which is not suitable to
cases where principles and basic goods are involved, court adopted the approach of
Divisional Court which held that in appeals assessment of proportionality is involved (citing
In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33). The manner in
which court passed judgment shows application of basic good of knowledge as court
rationalized its arguments and reasoning and justified it by referring to established precedent.
This fulfills the requirements of Fuller’s theory that governmental or judicial power must be
exercised in a structured manner which is consistent, transparent, and non-arbitrary.

The question was whether the deliberatively obstructive conduct of the protestors was lawful
excuse. Court reviewed, by applying the rules of interpretation and relevant law,
jurisprudence of ECtHR on articles 10 and 11 of ECHR which relate to protest and such basic
goods. Court assessed the proportionality test by noting the extent of the disruption and
whether it is intentional are relevant factors in the assessment of proportionality. The factors
relevant to this assessment [71]-[78], include in particular, and so far as relevant here, that the
appellants’ action was, and was intended to be, a peaceful gathering, which gave rise to no
form of disorder, did not involve the commission of any offence other than the alleged
section 137 offence, was carefully targeted at vehicles heading to the fair, involved no
complete obstruction of the highway, and, insofar as the obstruction lasted 90-100 minutes,
was of limited duration. The district judge was entitled to take these factors into account in
determining the issue of proportionality in favour of the appellants. There was no error or
flaw in his reasoning on the face of the case such as to undermine the cogency of his
conclusion on proportionality.

This assessment of proportionality meets the criteria of practical reasonableness. Firstly, there
is no arbitrary preference of one basic good over the other. The overall scheme of law was
understood and envisaged, before making final assessment. No arbitrary preference was
given between private citizens who were protesting and participants of security and arms
event and security officials seeking to protect right of trade and life of the participants. Court
noted that the protestors were efficient and did not breach the threshold of unlawful
interference being intentionally harmful. Above all, morally, it gave effect to the right to
listen to one’s conscience and personal beliefs – this is what the protestors were actually
exercising. Hence, the judgment explains and applies the tenets of Fuller’s and Finnis’ NLTs.