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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> The London Borough of Hackney v Grant& Ors  EWHC 2548 (QB) (22 September 2021)
Cite as:  EWHC 2548 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE LONDON BOROUGH OF HACKNEY
|- and -
|CAUL GRANT and Others
The First and Thirty-First Defendants in person
Hearing date: 14 September 2021
Crown Copyright ©
Mr Justice Lavender:
(2)(a) Shepherd's Bush Green
(2)(b) Clapham Common
(2)(c) Hackney Downs
(2)(c)(i) Mr Grant's Letter
"IN ACCORDANCE WITH CLAUSE 61 OF THE MAGNA CARTA 1215 AND ARTICLE 7 OF THE HUMAN RIGHTS ACT 1998
The area of land, here in Hackney Downs, currently occupied by the LOVEDOWN Campaigners has been lawfully seized by Campaign for Truth & Justice as partial remedy for the ongoing violation of the law committed by the Judiciary and other branches of the State.
Any attempt to enter the above property without an invitation will carry serious consequences and could result in injury to the person."
"Let it be known that any attempt to interfere with any member, their family or their property will be in direct contravention of the Rule of Law and will be met with any resistance deemed necessary by ourselves.
Ignorance of the law is no defence.
you have been WARNED"
(2)(c)(ii) Alleged Public Nuisance and/or Anti-Social Behaviour
(1) there was an increase in litter in the area, which required more resources to manage;
(2) placards were stuck into the ground;
(3) bunting and banners were hung from the tress, in one case causing access problems for the gardeners' vehicles; and
(4) gardeners were abused on one occasion when they asked for bunting to be removed.
(2)(c)(iii) The Possession Claim
(2)(c)(iv) The Commencement of the Present Action
"PERSONS UNKNOWN LABELLED (A) – (T) AND IDENTIFIED IN THE PHOTOGRAPHS ATTACHED TO THE WITNESS STATEMENT OF GAVIN HEBDITCH"
"The Claimant seeks an injunction pursuant to s.1 of the Anti-Social Behaviour, Crime and Policing Act 2014 and/or S.222 of the Local Government Act 1971 to prevent acts of anti-social behaviour in Hackney. The Claimant also seeks a power of arrest pursuant to s.1 of the 2014 Act and/or s.27 of the Police and Justice Act 2006."
"The presence of people at these gatherings represents a risk to public health as well as to the environment. The said conduct also constitutes a public nuisance and the Claimant considers that an injunction is expedient for the promotion and/or protection of the interest of the inhabitants of its area."
"4. There has been police intelligence provided (email attached and exhibited to the statement of Mark White) that once the Defendants leave Hackney Downs, they intend to set up an encampment elsewhere in a green space in Hackney. This would mean that we would be required to start the High Court possession proceedings all over again at great time and cost to the Council and its officers.
5. We are requesting a hearing for an urgent without notice injunction for the following reasons: a) The Defendants have been lighting open fires in the land at great risk to both the park and other users of the land. This is despite being asked not to do so; b) The Defendants have been damaging the land by lighting fires, littering and there has been evidence of defecation on the land; c) The Defendants have been intimidating members of the public; d) If we give the defendants any notice of our intention to apply for an injunction, it is likely the defendants will move onto another green space quickly (and therefore we would have to obtain another possession order); and e) We do not have addresses to enable us to serve all of the Defendants with injunction papers and therefore need to do so before they are evicted from the land."
"I have spoken with our Public order intelligence unit, one of this unit's roles is to monitor and develop intelligence from protest groups across London and further afield. I have explained to them the current situation with this group calling themselves "lovedown" and that the Local authority intended to use court proceedings to remove the group, the intel unit advised me that they had extensive knowledge of this group and were of the opinion if they are evicted from Hackney Downs site they would immediately attempt to occupy a nearby site within a park or open space in Hackney, the intelligence units advice was that we seek an order preventing them from occupying other green spaces in Hackney."
(2)(c)(v) The Interim Injunction
"Organising or participating in any of the following activities in the Prescribed Area shown on the attached map marked Schedule 1:
i. using or threatening to use violence against any other person
ii. erecting any tent or other structure used for the purposes of sleeping overnight save in areas designated for such purposes such as camp sites
iii. the destruction or damage of trees, shrubs, plants or any other flora, fauna, woodland or wildlife, such as (by not limited to), affixing bunting or erecting stakes in the ground
iv. the playing of loud amplified music
v. the lighting of fire, stoves, barbeques and/or naked flames (with the exception of a cigarette lighter) on any equipment or entertainment device save in an area designated for such purposes (such as, but not limited to a campsite)
vi. leaving litter, other than in receptables provided for such purpose, or for the disposal of waste
vii. urinating or defecating other than when making se of toilet facilities designed for such use;
viii. parking cars save in a designated parking area or car park"
"The steps proposed to be taken to serve the Claim Form, Particulars of Claim, N16A application for an injunction, N244 Application Notice, the draft order and power of arrest and the witness statements in support, by emailing copies to those Defendants whose email addresses are known to the Claimant and posting copies of the interim injunction and power of arrest (only) in various locations in and around the Prescribed Area and the posting of the interim injunction order and the power of arrest (only) on the Claimant's Facebook and Twitter accounts, are adequate steps to constitute service of the claim form by alternative means pursuant to CPR 6.15(2) and of documents other than the Claim Form pursuant to CPR 6.27."
(1) by placing it at all official entry and exit points to the parks and open spaces in the borough;
(2) by posting copies to Campaign for Truth and Justice at the address shown on Mr Grant's letter;
(3) by posting copies on Hackney's Facebook and Twitter accounts and on Hackney's website; and
(4) by emailing copies of the interim injunction, the claim form and other documents to those defendants whose email addresses were known.
(2)(c)(vi) Service of the Claim Form and the Interim Injunction
(2)(c)(vii) No Response from the Defendants
(3) The Present Application
(1) The twelfth defendant is now identified as:
"THE PERSON IDENTIFIED IN THE PHOTOGRAPH LABELLED "A" AS EXHIBITED TO THE WITNESS STATEMENT OF GAVIN AVEY-HEBDITCH DATED 10 AUGUST 2021"
(2) The sixteenth defendant is now identified as:
"THE PERSON IDENTIFIED IN THE PHOTOGRAPH LABELLED "E" AS EXHIBITED TO THE WITNESS STATEMENT OF GAVIN AVEY-HEBDITCH DATED 10 AUGUST 2021, ALSO KNOWN AS "Aka_trev_kay" ON INSTAGRAM"
(1) by post, in the case of Campaign for Truth and Justice Limited;
(2) by email, in the case of those defendants whose email address was known;
(3) by sending a link to the order via direct message on Instagram or other social media platform in the case of those 10 defendants whose Instagram account was known; and
(4) by posting a copy of the order on Hackney's website and Facebook and Twitter accounts.
"Any Defendants who have not been served by post, email, Instagram, or other social media platform, or where personal service has not been effected upon them cannot be committed for an alleged breach of this order until 24 hours after service of the sealed order, sealed power of arrest and bundle of documents as per the index at Page 18a is effected. Such service shall be effected by personal service, post, email, WhatsApp, or direct message via Instagram or other social media platform, and shall be deemed to constitute adequate steps to constitute service of documents other than the Claim Form pursuant to CPR 6.27 and CPR 81.5."
(4)(a) Service of the Claim Form
(4)(b) Resolving Disputed Issues of Fact
"When the Court grants a final injunction, it is (or is part of) the remedy to which the Court considers the claimant has demonstrated an entitlement, in respect of those against whom judgment is granted ("the Trial Defendants"), based upon a cause of action or other entitlement following either a trial on the merits or other judgment in his/her favour (for example default or summary judgment). ..."
(1) CPR 12.2(b) provides that a claimant may not obtain a default judgment where he uses the procedure set out in Part 8.
(2) CPR 8.1(2)(a) provides that a claimant may use the Part 8 procedure where he seeks a decision on a question which is unlikely to involve a substantial dispute of fact.
(3) CPR 8.1(3) provides that the court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure. An alternative is to amend the Part 8 procedure, as Warby J did in Birmingham City Council v Afsar  4 WLR 168, a case in which there was a 5 day trial of a local authority's application for an injunction against protestors outside a school.
(4) Although the defendants in this case had filed no written evidence, CPR 8.6(1)(b) provides that the court may give permission for written evidence to be relied on at the hearing of the claim.
(5) CPR 8.6(2) provides that the court may require or permit a party to give oral evidence at the hearing and CPR 8.6(3) provides that the court may give directions requiring the attendance for cross-examination of a witness who has given written evidence.
(1) The most serious misconduct alleged is that of using or threatening violence. As to that:
(a) The only evidence of actual violence is contained in Mr White's evidence of an anonymised complaint to Hackney. Any court will be cautious about relying on hearsay from an anonymous source.
(b) On the other hand, Mr Grant's letter contains what I regard as a threat of violence against anyone who impedes the protesters.
(2) Namaste denied that any of the protestors had defecated in a public place. He asserted that a council employee had provided them with a key to the public toilets in Hackney Downs. He did not file written evidence to this effect and so it would be open to the court to say that he was precluded from making such a factual assertion. As to that:
(a) On the one hand, the defendants are litigants in person and might on that account be afforded some latitude.
(b) On the other hand, they are experienced in relevant aspects of legal procedure and did not invite me to hear any oral evidence.
""Prescribed Area" means the public spaces to which the public have access, whether on payment or otherwise, as of right or by virtue of express or implied permission, within the London Borough of Hackney as shown by the red boundary on the attached map."
(4)(d) Anti-Social Behaviour
"(1) A court may grant an injunction under this section against a person aged 10 or over ("the respondent") if two conditions are met.
(2) The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in anti-social behaviour.
(3) The second condition is that the court considers it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour.
(4) An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour—
(a) prohibit the respondent from doing anything described in the injunction;
(b) require the respondent to do anything described in the injunction.
(5) Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid—
(a) any interference with the times, if any, at which the respondent normally works or attends school or any other educational establishment;
(b) any conflict with the requirements of any other court order or injunction to which the respondent may be subject.
(6) An injunction under this section must—
(a) specify the period for which it has effect, or
(b) state that it has effect until further order.
In the case of an injunction granted before the respondent has reached the age of 18, a period must be specified and it must be no more than 12 months.
(7) An injunction under this section may specify periods for which particular prohibitions or requirements have effect.
(8) An application for an injunction under this section must be made to—
(a) a youth court, in the case of a respondent aged under 18;
(b) the High Court or the county court, in any other case.
Paragraph (b) is subject to any rules of court made under section 18(2)."
"(1) In this Part "anti-social behaviour" means—
(a) conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,
(b) conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises, or
(2) Subsection (1)(b) applies only where the injunction under section 1 is applied for by—
(a) a housing provider,
(b) a local authority, or
(c) a chief officer of police."
"111. I do not consider that citation of such cases as Gouriet v Union of Post Office Workers  AC 435 is pertinent. Nor am I persuaded that the grant of the injunctions that are presently in place, or those that I propose to grant, involves the breach of any legal curb on the court's powers or discretion. The 2014 Act expressly confers on the Council the power to seek injunctions against anti-social behaviour which, for reasons I have given, must be taken to encompass protest. I see no reason to conclude that these statutory powers are exercisable only where the behaviour under scrutiny can be categorised as criminal. That forms no part of the case for the Council. In any such case, a local authority would bear the heavy legal, evidential, and persuasive burdens imposed by the Convention, and the related jurisprudence. The court would be bound to apply an intense focus to the facts before it. Those, I think, are sufficient protections for the rights of free thought, conscience, speech and assembly and, if engaged, the rights to hold and manifest one's religious views.
112. I have considered whether the use of the term "harassment" in this statute imports the tests which have been held to apply to that term in the context of the Protection from Harassment Act 1997 . I do not believe it does. The 1997 Act creates a statutory tort and a crime which are of precisely the same scope. The 2014 Act does not. Harassment, alarm and distress, in that context, bear their ordinary and natural meanings. In the case of harassment this is "a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress": Hayes v Willoughby  UKSC 17;  1 WLR 935 at para 1 (Lord Sumption).
113. In general terms, I can accept Mr de Mello's submission that the 2014 Act creates a "high hurdle". The court should not be too ready to grant injunctions prohibiting activities which citizens would ordinarily be free to undertake in a public place, or restricting the way they express themselves in such places. Injunctions under the 2014 Act should not be lightly granted, and their terms should be carefully framed to ensure that they do not involve unnecessary or excessive interference with the rights of others. These considerations will be especially potent in the context of protests, and all the more so where the protest relates to the conduct of a public authority, such as a School or local education authority, and issues of policy with a religious or ethical flavour. But I reject the submission that the court is powerless to grant, or should always refrain from granting, an order protecting fellow citizens from alarm or distress, or other consequences of harassment or anti-social behaviour, falling short of that which would justify prosecution. Other remedies are available in principle. But in this case, the Council considered whether lesser measures might suit the factual situation confronting it and decided, in my judgment legitimately, that interim relief under the 2014 Act was required due to the urgency of the matter. Having taken that decision, it was and is entitled to press the civil claim to its final conclusion, rather than falling back on other measures available under the 2014 Act, or other legislation."
"Whether or not a court could grant an injunction, under s.1 ASBCPA, against a person whose name was not known, but who could be identified, is a point that would require further argument. Whilst I can see force in the argument, for example, that it would be difficult to conduct any meaningful consultation with the local youth offending team if the respondent cannot be identified by name, it is not a point I need to determine."
(1) the defendant is over 18 (and so the consultation requirements in section 14 do not apply); and
(2) the injunction contains a prohibition or prohibitions, but no requirements (and so section 3(1) does not apply and does not require the injunction to specify who is to be responsible for supervising compliance with any requirement).
(1) There is no evidence that any of the defendants are currently in Hackney, let alone camped in a public space in Hackney.
(2) As appears from Miss Sterakides' statement, the reason for seeking the interim injunction was the risk, supported by Mr White's evidence and Inspector Mellon's email, that when evicted from Hackney Downs the defendants would immediately attempt to occupy another park or open space in Hackney. That did not happen.
(3) Those defendants who are still engaged in the protest are now in Brighton and have been there for over a month.
(4) I have no evidence as to when the individuals encamped in Brighton will be evicted, but I assume that it is likely that they will be. Mr Grant and Namaste appeared to expect that.
(5) Hackney has no specific evidence, such as up-to-date police intelligence, to suggest that any of the defendants are likely to return to Hackney when evicted from their current site in Brighton.
(6) Mr Grant and Namaste pointed to the pattern of their conduct. Each of the four encampments has been in a different local authority's area.
(7) While not indicating any specific plans, they claimed that their next move might be to another city altogether, such as Manchester.
(8) Ms Bhogal submitted that there was a risk that the defendants might return to Hackney, but she could not point to any evidence which made that risk any greater in the case of Hackney than in the case of any other urban area in the country.
(4)(e) Public Nuisance