Lawbite: Can protest on private land constitute a public nuisance?

The UK Supreme Court has ruled that blocking access to private business premises on a private road does not constitute an offence under the second limb of the statutory public nuisance offence in section 78 of the Police, Crime, Sentencing and Courts Act 2022 (“the Act”).

The decision is relevant to landowners, developers, occupiers, and their advisers across England and Wales who are concerned with protest activity on or near private land. It clarifies the limits of criminal public nuisance as a tool against protest disruption and highlights the importance of choosing the right legal route when responding to protest action.

What happened?

In September 2022, six protesters from the group Animal Rebellion blocked the entrance to a Müller dairy works in Droitwich. They chained themselves to temporary fencing and glued themselves to a private road called Pointon Way. No vehicles could enter or leave the site for around four hours.

The protesters were charged under section 78(1)(b)(ii) of the Act. This is the second limb of the statutory public nuisance offence. It applies where a person’s act obstructs the public in the exercise of “a right that may be exercised or enjoyed by the public at large”.

The Crown chose not to rely on the first limb of the offence (section 78(1)(b)(i)), which covers conduct creating a risk of, or causing, serious harm.

Was an offence committed?

At trial, the judge ruled there was no case to answer. Pointon Way was a private road, not a highway. The public had no right to use it. The Court of Appeal reversed this decision. The Supreme Court has now allowed the defendants’ appeal and restored the acquittals.

The Supreme Court held that “right” in section 78(1)(b)(ii) means a legal right in the strict sense. It does not include a licence or mere permission from a landowner. The public at large have no right to use a private road or to enter private premises. Importantly, the Supreme Court rejected the proposition that land or facilities made available to the public generally give rise to a relevant public right. The fact that access is permitted — even on an open, unrestricted basis — does not mean that a legal right exists.

This means that an action against trespassers in public nuisance may not be available in respect of a variety of land types and uses which may previously have been widely presumed to fall within the offence, such as factories, industrial parks, retail parks, office complexes, and similar premises.

Key Points

• the second limb of the public nuisance offence under section 78 of the Act only applies where the obstruction interferes with a legal right enjoyed by the public at large, such as the right of free passage on a highway. A mere licence or permission to use private land is not enough
• prosecutors and landowners should consider alternative charges where protest occurs on private land. Aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994 and the first limb of section 78 of the Act (serious harm) remain available options
• the decision does not weaken the ability to obtain civil injunctions against protest activity on private land. Organisations affected by protest and other trespass activity need to carefully consider and formulate their response. They may need to place greater reliance on private law remedies, property rights and injunctions, than on public nuisance offences