R v McCafferty and others

R (Respondent) v McCafferty and others (Appellants) [2026] UKSC 20

https://supremecourt.uk/cases/uksc-2025-0165 

Background

This case concerned the scope of the statutory offence of public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022 ("PCSCA 2022"), and in particular whether obstructing access to private business premises via a private road amounts to obstructing the public in the exercise or enjoyment of "a right that may be exercised or enjoyed by the public at large".

The proceedings arose from a protest organised by Animal Rising on 8 September 2022 as part of a campaign highlighting the environmental impact of the dairy industry and the suffering of animals within it. Protesters targeted a Müller dairy processing facility near Droitwich by preventing vehicles from entering and leaving the site.

Six protesters: James McCafferty, Osian Dixon, Alberto, Catherine, Sarah and Tatum, were charged with intentionally or recklessly causing a public nuisance contrary to section 78 of the PCSCA 2022. At Worcester Crown Court, the trial judge accepted a submission of no case to answer and acquitted the defendants, finding that the prosecution had failed to establish an essential element of the offence. The Crown successfully appealed to the Court of Appeal, which ordered that the proceedings resume. The defendants then appealed to the Supreme Court.

The Supreme Court unanimously allowed the appeal, restoring the acquittals.

Facts

The protest took place outside the entrance to a Müller dairy processing site located within a private industrial estate. Access to the site was via Pointon Way, a private road owned by the estate's investment company and marked with signage stating that it was private land.

The defendants chained themselves to temporary fencing or glued themselves to the road immediately outside the entrance to the dairy site. As a result, vehicles were unable to enter or leave the premises for approximately four hours, although pedestrians could still gain access with the permission of Müller staff.

The Crown prosecuted the defendants under the second limb of section 78(1)(b) of the PCSCA 2022, alleging that they caused nuisance by obstructing members of the public in exercising a right that may be exercised or enjoyed by the public at large. The prosecution did not rely on the first limb of the offence, which concerns conduct creating a risk of, or causing, serious harm to the public.

Law

Section 78 of the PCSCA 2022 abolished the common law offence of public nuisance and introduced a statutory offence that can be committed in two distinct ways.

Section 78 of the 2022 Act provides:

(1) A person commits an offence if—

(a) the person—

(i) does an act, or

(ii) omits to do an act that they are required to do by any enactment or rule of law,

(b) the person’s act or omission—

(i) creates a risk of, or causes, serious harm to the public or a section of the public, or

(ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and

(c) the person intends that their act or omission will have a consequence mentioned in paragraph (b) or is reckless as to whether it will have such a consequence.

The first limb criminalises conduct that creates a risk of, or causes, serious harm to the public or a section of the public.

The second limb criminalises conduct that obstructs the public, or a section of the public, in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large.

The certified question before the Supreme Court was whether people travelling to and from private business premises, including employees, customers and suppliers, were exercising such a public right when entering or leaving those premises via a private road.

Judgment

The Supreme Court unanimously found in favour of the defendants. 

Delivering the leading judgment, Lord Leggatt held that the second limb of section 78 protects only genuine public rights, not activities carried out with the permission of a private landowner. The Court drew a clear distinction between a legal right and a licence or permission. While members of the public may be permitted to enter private land, permission alone does not amount to a legal right capable of protection under section 78(1)(b)(ii).

The Court held that Pointon Way was a private road. The public had neither a public right of way over it nor any general legal entitlement to use it. Employees, suppliers and other authorised visitors were able to use the road because they had permission derived from the occupiers of the premises, not because they enjoyed a public right. Consequently, obstructing passage along Pointon Way could not amount to obstructing the exercise of a right enjoyed by the public at large.

In reaching this conclusion, the Court undertook a detailed examination of the history of public nuisance and the law relating to highways. It concluded that the second limb of section 78 reflects the historic common law protection of public rights, such as the public's right to pass along highways, navigate public waterways and exercise other recognised public rights. It rejected the broader interpretation adopted by the Court of Appeal, which would have extended the offence to places merely open to the public by permission, such as private businesses, sporting venues or concert halls.

The Court also emphasised that Parliament had deliberately created two separate limbs of the offence. Cases involving obstruction that causes serious inconvenience or disruption to the public may still fall within the first limb, provided the statutory threshold of serious harm is met. However, where the prosecution relies solely on the second limb, it must establish interference with a genuine public right for the public at large.

As the Crown had chosen not to rely on the first limb, and the defendants had not interfered with any right exercisable by the public at large, the prosecution could not succeed. The acquittals were therefore restored.

Commentary

Since the passing of the Police, Crime, Sentencing and Courts Act 2022 there have been serious concerns within the animal protection community regarding what this means for all forms of protest activity, This judgment provides important clarification of the scope of the statutory offence of public nuisance.

The decision confirms that the second limb of section 78 cannot be used simply because protesters interfere with access to private premises. Instead, prosecutors must demonstrate that the conduct obstructed the exercise of a genuine public right, rather than activity undertaken pursuant to a private landowner's permission.

The judgment also reinforces the distinction between the two limbs of the offence created by Parliament. Where protest activity causes widespread disruption, prosecutors may still seek to rely on the first limb by establishing that the conduct created a risk of, or caused, serious harm to the public. However, they cannot satisfy that threshold by relying on the second limb where no public right has been interfered with.

The decision establishes an important precedent for the interpretation of section 78 of the PCSCA 2022 and will no doubt reassure anyone who protests. However, there remains some uncertainty over where the threshold will be met for the first limb of the test which makes it an offence to create a risk of, or causes, serious harm to the public or a section of the public, rather than the public at large.  

Getting advice

This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws, please contact info@advocates-for-animals.com.