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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Mayor Commonalty and Citizens of London v Samede (St Paul's Churchyard Camp Representative) & Ors [2012] EWCA Civ 160 (22 February 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/160.html Cite as: [2012] WLR(D) 41, [2012] EWCA Civ 160, [2012] PTSR 1624, [2012] BLGR 372, [2012] 2 All ER 1039, [2012] HRLR 14 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE HON MR JUSTICE LINDBLOM
Case No HQ11X04327
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE STANLEY BURNTON
and
LORD JUSTICE McFARLANE
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THE MAYOR COMMONALTY AND CITIZENS OF LONDON |
Respondents |
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- and - |
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TAMMY ![]() ![]() GEORGE BARDA DANIEL ASHMAN PAUL RANDLE-JOLLIFFE STEPHEN MOORE PERSONS UNKNOWN |
Appellants |
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Samede
Felicity Williams (instructed by) for Mr Barda (who also made submissions)
Mr Ashman (assisted by Mr Steven Rushton ) in person
Mr Randle-Jolliffe (assisted by Michael Upstone) in person
Mr Moore (assisted by Malcolm Blackman ) in person
David Forsdick and Zoe Leventhal (instructed by Andrew Colvin, the Comptroller and City Solicitor, City of London Corporation) for the City of London
Hearing date: 13 February 2012
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Crown Copyright ©
The Master of the Rolls:
This is the judgment of the court to which all members have contributed
The factual background
'It consists of a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either regularly or from time to time, as overnight accommodation, and several larger tents used for other activities and services including the holding of meetings and the provision of a "university" (called "Tent City University"), a library, a first aid facility, a place for women and children, a place where food and drink are served, and a "welfare" facility. The size and extent of the camp has varied over time. Shortly before the hearing its footprint receded in some places. At an earlier stage some adjustments had been made to it in an effort to keep fire lanes open.'
'largely centr[ing] on, but … far from being confined to, the crisis – or perceived crisis – of capitalism, and of the banking industry, and the inability – or perceived inability – of traditional democratic institutions to cope with many of the world's most pressing problems. They encompass climate change, social and economic injustice, the iniquitous use of tax havens, the culpability of western governments in a number of conflicts, and many more issues besides. All of these topics, clearly, are of very great political importance, and are to do with what they perceive as the excesses of capitalism. They say that the protest is part of a worldwide movement (extending inter alia to cities in North America, the UK and mainland Europe). The protest also includes those concerned about the Arab spring.'
The judgment of Lindblom J
'extend to the indefinite occupation of highway land by an encampment of protestors who say this form of protest is essential to the exercise of their rights under Articles 10 and 11 of the European Convention on Human Rights, when the land they have chosen to occupy is in a prominent place in the heart of the metropolis, beside a cathedral of national and international importance, which is visited each year by many thousands of people and where many thousands more come to exercise their right, under Article 9 of the Convention, to worship as they choose?'
'[F]irst, whether the City has established that it is entitled to possession of [the areas it owns], so that, subject to the court's consideration of the interference with the defendants' rights under Articles 10 and 11 of the Convention, an order for possession ought to be granted; second, whether, again subject to the court's consideration of the interference with the defendants' rights, the City should succeed in its claim ….; and third, whether the interference with the defendants' rights entailed in granting relief would be lawful, necessary and proportionate.'
'[T]he harm caused by this protest camp, in this place, is materially greater than the harm that would be likely if the protest were conducted by the same protestors, assembling every day but without the tents and all the other impedimenta they have brought to the land.'
He went on to reject the 'suggestion that the City's main concerns could be met by an injunction stipulating that no tents were to be occupied between certain hours' on the ground that it was 'wholly unconvincing'. He doubted that it could be enforced. Anyway, he said, 'it would not serve to remove the obstruction of the highway' or 'overcome the problems attributable to the presence of the camp, including the damage being done to the work of, and worship in, the cathedral, to the amenity of the cathedral's surroundings, and to local businesses'.
'[T]he continued presence of the protest camp on this land is plainly at odds with the intent and purpose of th[ose] statutory schemes … . The corollary is this. For Parliament's intention in enacting those statutory schemes to be given effect it is necessary for the relief sought by the City to be granted'.
'[D]uring the camp's presence, and, in my view, largely if not totally as a result of its presence, there has been a drop of about two fifths in the numbers of those worshipping in the cathedral. About the same fraction has been lost in the number of visitors, an important source of funds for the upkeep of the building and for its ministry'.
He also took into account of 'the effects of the presence of the Camp on the work and morale of the cathedral staff as a significant factor in the balancing exercise', referring to the fact '[n]oise from the camp has been a persistent problem', that 'members of the cathedral's staff have been verbally abused', and that '[g]raffiti ha[ve] been scrawled on the Chapter House and on the cathedral itself'.
These applications
Are Articles 10 and 11 engaged?
'reiterate[d] at the outset that the right to freedom of assembly covers both private meetings and meetings on public thoroughfares, as well as static meetings and public processions; this right can be exercised both by individual participants and by those organising the assembly….'
The argument that the Judge should have dismissed the City's claim
'To camp on the highway as a means of protest was not held lawful in DPP v Jones. Limitations on the public right of assembly on the highway were noticed, both at common law and under Article 11 of the Convention (see Lord Irvine at p 259A-G, Lord Slynn at p 265C-G, Lord Hope of Craighead at p 277D-p 278D, and Lord Clyde at p 280F). In a passage of his speech that I have quoted above Lord Clyde expressed his view that the public's right did not extend to camping.'
'[I]t is not for the court to venture views of its own on the substance of the protest itself, or to gauge how effective it has been in bringing the protestors' views to the fore. The Convention rights in play are neither strengthened nor weakened by a subjective response to the aims of the protest itself or by the level of support it seems to command. … [T]he court cannot – indeed, must not – attempt to adjudicate on the merits of the protest. To do that would go against the very spirit of Articles 10 and 11 of the Convention. … [T]he right to protest is the right to protest right or wrong, misguidedly or obviously correctly, for morally dubious aims or for aims that are wholly virtuous.'
'Any measures interfering with the freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it. In a democratic society based on the rule of law, the ideas which challenge the existing order must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means'.
The Judge took into account the fact that the defendants were expressing views on very important issues, views which many would see as being of considerable breadth, depth and relevance, and that the defendants strongly believed in the views they were expressing. Any further analysis of those views and issues would have been unhelpful, indeed inappropriate.
'The Court considers the following elements important for the assessment of this situation. Firstly, it is undisputed that there were no complaints by anyone, whether individual visitors, judges or court employees, about the alleged obstruction of entry to the court-house by the picket participants. Secondly, even assuming that the presence of several individuals on top of the staircase did restrict access to the entrance door, it is creditable that the applicant diligently complied with the officials' request and without further argument descended the stairs onto the pavement. Thirdly, it is notable that the alleged hindrance was of an extremely short duration. Finally, as a general principle, the Court reiterates that any demonstration in a public place inevitably causes a certain level of disruption to ordinary life, including disruption of traffic, and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance Accordingly, the Court is not satisfied that the alleged obstruction of passage, especially in the circumstances where the applicant gave evidence of his flexibility and readiness to cooperate with the authorities, was a relevant and sufficient reason for the interference.'
'[T]he applicant's conviction for having participated in a sit-in can reasonably be considered as necessary in a democratic society for the prevention of disorder and crime. In this respect, the Commission considers especially that the applicant had not been punished for his participation in the demonstration … as such, but for particular behaviour in the course of the demonstration, namely the blocking of a public road, thereby causing more obstruction than would normally arise from the exercise of the right of peaceful assembly. The applicant and the other demonstrators had thereby intended to attract broader public attention to their political opinions concerning nuclear armament. However, balancing the public interest in the prevention of disorder and the interest of the applicant and the other demonstrators in choosing the particular form of a sit-in, the applicant's conviction for the criminal offence of unlawful coercion does not appear disproportionate to the aims pursued.'
The argument that the Judge should have made more limited orders
Mr Moore's application
Concluding remarks