Government guidance on flying flags (updated 20 July 2021) indicates that: ‘Flags are a very British way of expressing joy and pride – they are emotive symbols which can boost local and national identities, strengthen community cohesion and mark civic pride.’ So why did Oxfordshire County Council seek injunctive relief against various individuals who had been attaching union jacks to lampposts, lighting columns and highway structures such as street signs, barriers and railings?
As Mr Justice Dexter Dias noted when, on 31 July 2026, he gave judgment in Oxfordshire County Council v Cullen and others [2026] EWHC 2019 (KB), government guidance provides that all flags must (among other things) ‘have the permission of the owner of the site on which they are displayed (this includes the Highway Authority if the sign is to be placed on highway land)’ and ‘not obscure, or hinder the interpretation of official road, rail, waterway or aircraft signs, or otherwise make hazardous the use of these types of transport’. In addition to planning restrictions, section 132(1) of the Highways Act 1980 provides that: ‘A person who, without either the consent of the highway authority for the highway in question or an authorisation given by or under an enactment or a reasonable excuse, paints or otherwise inscribes or affixes any picture, letter, sign or other mark upon the surface of a highway or upon any tree, structure or works on or in a highway is guilty of an offence.’ Moreover, noted the judge: ‘Section 132(2) empowers the highway authority to remove material affixed without consent or authorisation under an enactment’, while: ‘Section 303 makes it an offence to obstruct any person, whether council employee or contractor, acting in execution of its statutory functions under the [1980 act], for example by removing flags attached without consent or authorisation.’
While Oxfordshire had repeatedly removed unauthorised flags, more flags were later affixed. Council employees and contractors were obstructed in removal duties, and there was intimidation and ‘naming and shaming’ on social media. Having already sent a ‘cease and desist’ letter to the named defendants and letters before action (LBA) to Kevin Good and three others, to which there was no response, the council sought injunctions to prevent further breaches of criminal law, trespass contrary to civil law, and interference with its proprietary rights as highway authority. While three named defendants gave undertakings not to engage in future flag-related activity, one, Good, failed to sign an undertaking despite having indicated a willingness to do so. The court therefore had to determine whether it should grant a final injunction against persons unknown and whether to grant a final injunction against Good.
In Abbasi v Newcastle Upon Tyne NHS Trust [2026] AC 63 the Supreme Court held that a hospital or other public authority ‘can apply to the court for an injunction to prevent conduct which interferes with its performance of its statutory functions, and that the court can grant an injunction where the circumstances make it just and convenient to do so (and… provided that the grant of an injunction is compatible with convention rights, where those are engaged)’. The convention rights in question are Article 10 of the European Convention on Human Rights (freedom of expression) and Article 11 (right to freedom of peaceful assembly and to freedom of association). This required an analysis in accordance with DPP v Ziegler [2022] AC 408, which (in the instant case) required consideration of whether any public authority interference with a convention right is ‘prescribed by law’ and, if so, whether it pursues a legitimate aim and is necessary in a democratic society. To determine necessity in a democratic society, the court must ask itself the questions set out by Lady Hale in paragraph 33 of R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57, which draws on the proportionality test in Bank Mellat v Her Majesty’s Treasury No. 2 [2014] AC 700: ‘(i) does the measure have a legitimate aim; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?’ The court concluded that factors in favour of granting the injunctive relief sought by the claimant significantly outweigh the factors against.
Dias was satisfied on the evidence that prosecuting identified individuals will not provide sufficient relief to the claimant and is unlikely to have sufficient deterrent effect. He found compelling need for equitable relief by way of injunction: ‘The injunction will assist in not just protecting the claimant’s “civil rights” … but also will assist in preventing unlawful interference with its statutory functions and duties such as its duty as highway authority to maintain the highway.’ He concluded that: ‘it is just and convenient to grant an injunction against persons unknown.’ For: ‘absent a restraining injunction, a substantial group of unknown individuals will affix flags in Oxfordshire contrary to the criminal law and the proprietary rights of the highway authority.’ Given Good’s absence from the hearings and his inconsistent behaviour, it was also ‘just and convenient’ to grant a final injunction against him.
Nicholas Dobson writes on local government, public law and governance
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