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Director of Public Prosecutions v Ziegler & Ors (Rev1) [2021] UKSC 23 (25 June 2021)

Director of Public Prosecutions v Ziegler & Ors (Rev1) [2021] UKSC 23 (25 June 2021)


Citation:Director of Public Prosecutions v Ziegler & Ors (Rev1) [2021] UKSC 23 (25 June 2021).

Link to case on BAILII.

Link to case on YouTube.

Subjects invoked: 9. 'Evidence'.85. 'Police 4 - Public disorder'.

Rule of thumb:If you are being prosecuted, and the Police officers who arrested you or provided reports do not turn up in Court to lead evidence against you, what happens? The case has to be dismissed. This case affirmed the high weight of evidence that has to be led by the UK prosecutors in criminal cases against protestors actively demonstrating - where protestors are demonstrating actively a full body of evidence, in particular a police report with the police officers present to be questioned about their report, has to be presented to the court in order for the accused to be convicted of public disorder offences thereafter.

Background facts:

This case invoked the subject of public disorder crimes and the law of evidence.

The facts of this case were that there was an arm's fair taking place in East London. Protestors against gun laws, and against this fair glorifying these guns on display, lay down in the middle of a road close to this fair. These protestors also put some sort of block in the middle of the road and attached themselves to it. The police arrived and followed standard protocols asking the protestors to move off the road willingly. The protestors refused and the police had to remove them by force. The protestors had prepared in advance for the demonstration and attached themselves to the block on the road in such a manner that it took the police 1 hour and 45 minutes to remove them from the road. This excessive delay to remove all the protestors meant that enormous traffic jams were caused.

When it came to the prosecution of this case the prosecution presented a skeletal case. There were not full police reports with the police officers called as witnesses to explain the report. This then sparked an argument on the law of evidence being raised.

Defending the case the protestors argued that the best evidence principle applied in this matter. The ‘Best evidence’ principle means that the Court must be provided with the best and most direct evidence in a case in order to infer facts from it in a credible way, and if the best evidence is being withheld from the Court then the body of evidence inherently lacks credibility. The protestors further argued that the fact that the police report was not full and the police were not there in person to explain what they were saying and face questions, meant that the best evidence in the matter was being withheld from the Court - the protestors therefore concluded insufficient weight of evidence was presented by the prosecution in order to prove criminality. As a supplement to these arguments, the protestors argued further that such a flimsy body of evidence being presented when such an important matter as a criminal prosecution was being sought was also a breach of the principle of proportionality - they also argued that all these arguments had to be considered alongside their human rights to freedom of expression and freedom of assembly - they argued that lax gun laws and the devastating impact they had on society merited a protest of the nature they presented.

The prosecution argued that lying down in the middle of the road was such a blatantly and wholly undeniable act that even although they did not have absolutely all the evidence about this happening, they had still had more than sufficient evidence in the form of the police reports to infer the facts that this clearly happened. The prosecution also argued that lying down in the middle of the road for almost 2 hours to deliberately slow down traffic was such a blatant public disorder offence that they had prepared the case sufficiently to reflect that. The Prosecution argued that this was a black and white, run-of-the mill crime that had been committed, and they had prepared a case in accordance with that, which should lead to a conviction.

Judgment:

The court sided with the protestors in this matter and upheld the arguments that the prosecution case did not have sufficient evidence to secure a conviction. The Court affirmed the importance of police officers being called as witnesses in order to be questioned and examined about their reports. The Court affirmed that prosecutions being based on police reports without the police attending as witnesses to explain their report was not a practice that could become commonplace in the UK criminal law system. The Court affirmed that this did indeed fly in the face of the fundamentals of evidence and the principle of best evidence. The Court held that it is not sufficient for only secondary evidence to be led as the evidence in a criminal case when superior primary evidence is clearly readily available.

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Ratio-decidendi:

‘115. In the Case Stated, the trial judge noted that at trial the prosecution submitted that any demonstration that constituted a de facto obstruction of the highway lost the protection of articles 10 and 11 as it was unlawful. For the reasons he gave, the trial judge rejected that proposition and in my judgment he was correct to do so. 116. I agree with Lord Hamblen and Lord Stephens’ thorough review of the considerations relied on by the trial judge. I have in relation to the first certified question dealt with the two criticisms which Lord Sales and Lord Hodge consider were rightly made. So, I make only some brief concluding points at this stage. 117. Overall, in my respectful view, the district judge made no error of law in not finding facts on which no evidence was led, or if he failed to make a finding of secondary fact which it was not suggested at any stage was required to be made. Moreover, it appears that the prosecution made no representations about the content of the draft case as it was entitled to do under Criminal Procedure Rules, rule 35.3.6. Alternatively, if new facts are relevant to a proportionality assessment it would seem to me to be unfair to the appellants for an assessment now to be carried out in the manner proposed by Lord Sales and Lord Hodge, which could enable the prosecution to adduce new evidence or to seek additional findings of fact, which go beyond the Case Stated’. ‘the district judge made no error of law in not finding facts on which no evidence was led, or if he failed to make a finding of secondary fact’, Lady Arden at 117

Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.