Protest Camp Possession Proportionate

The Court of Appeal on 22 February 2012 put paid to the protest camp around St. Paul’s Cathedral in London. In a short but substantively conclusive judgment of the Court ‘to which all members have contributed’, Lord Neuberger M.R. rejected the Defendants’ application for leave to appeal against the decision of Lindblom J on 18 January 2012 (see City of London Corporation v. Samede and others [2012] EWCA Civ 160 - Lord Neuberger M.R. Stanley Burnton and McFarlane LJJ).

The Judge in what the Court of Appeal described as ‘a very full and careful judgment’ had then upheld the Corporation’s claim for possession, finding that there had been an unreasonable obstruction of the highway and a breach of planning control. In addition, interference with the Defendants’ rights under Articles 10 and 11 of the European Convention on Human Rights had been ‘both entirely necessary and proportionate’.

Issues in Question

A key question concerned the appropriate balance between the legal rights of the Corporation and those of the Defendants under the European Convention on Human Rights. In issue were Article 10 (Freedom of Expression) and Article 11 (Freedom of Assembly and Association).

Lord Neuberger said that Lindblom J had ‘correctly identified’ the three main issues as follows, i.e.: (1)  whether the Corporation had established entitlement to possession so that (subject to applicable rights under Articles 10 and 11) a possession order should be granted; (2) whether the Corporation should succeed in its possession claim and (3) whether the requisite interference with the Defendants’ rights would be ‘lawful, necessary and proportionate’.

The Corporation had argued that the orders sought did not prevent the Defendants from exercising relevant rights and would constitute a ‘justified interference’ with those rights. The Defendants, so the Corporation contended, could not rely on Articles 10 and 11 to justify occupying land as ‘a semi-permanent campsite’ particularly since such occupation breached various statutory provisions, infringed the property rights of the City and the Church and impeded other members of the public from enjoying their rights, in particular the right to worship (per Article 9 – freedom of religion) and public use of the highway.

First Instance

Lindblom J had concluded that the Defendants had no domestic law defence to the Corporation’s possession claim regarding their occupation of Corporation land areas. The Camp was found ‘undoubtedly’ to be an ‘unreasonable obstruction of the highway’ and a breach of planning control, both of which the Corporation had a duty to enforce and which applied to the area of land owned by the Church. As to Convention rights, the Judge found that ‘the factors for granting relief . . .easily outweigh the factors against’ and the Corporation had ‘undoubtedly’ ‘convincingly established a pressing social need not to permit the Defendants’ protest camp to remain in St. Paul’s Churchyard’ or other land relevant in the proceedings.

It would, in the Judge’s view, ‘undoubtedly’ not be ‘disproportionate to grant the relief’ claimed. The orders sought by the Corporation were, the Judge considered, ‘the least intrusive way in which to meet the pressing social need’ and they strike ‘a fair balance between the needs of the community and the individuals concerned so as not to impose an excessive burden them’. In the circumstances, Lindblom J found that to withhold relief would simply be ‘wrong’.

Court of Appeal

In the light of domestic and Strasbourg jurisprudence the Court considered it clear that Articles 10 and 11 were engaged in relation to the maintenance of the Camp. However, an argument raised by one Defendant that his ‘Magna Carta rights’ would be breached by execution of the orders was given short shrift.

Lord Neuberger noted that only Clauses 1, 9 and 29 of the 1297 version of Magna Carta survive. Whilst clause 29 (with its requirement for the state to proceed according to law and its prohibition on selling or delaying justice) is seen by many as the historical foundation of the rule of law in England ‘it has no bearing on the arguments in this case’. ‘Somewhat ironically,’ Lord Neuberger continued, ‘the other two chapters concern the rights of the Church and the City of London, and cannot help the Defendants’. So whilst Tony Hancock had once celebratedly asked concerning Magna Carta in Twelve Angry Men, ‘Did she die in vain?’ it is nevertheless clear that the Great Charter had never even lived in this case.

The majority of the Defendants contended that the orders made by Lindblom J should not have been made and that the Camp should have been allowed to continue in place. In Sergey Kuznetsov v. Russia, (App No 10877/04) [2008] ECHR 1170, the European Court of Human Rights, in considering an Applicant who took part in a small demonstration which for a short period obstructed access to a public court building, having noted that the demonstration had last about 30 minutes and had blocked the public passage which gave access to the court-house, emphasised that the State needs to afford ‘a degree of tolerance’.

The Strasbourg Court also then noted that there had been no complaints by anyone about the alleged obstruction caused by the picket in question, that the Applicant had complied with the officials’ request ‘and without further argument descended. . .onto the pavement’ and that ‘the alleged hindrance was of an extremely short duration’.  It said 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. . .is not to be deprived of all substance’. Therefore, the Court was not satisfied that the alleged obstruction, particularly where there was evidence of the Applicant’s flexibility and willingness to co-operate, was a ‘relevant and sufficient reason for the interference’.

However, whilst in Kuznetsov the demonstration lasted only some 30 minutes, appeared to interfere with no public rights in practice and ended as soon as the police so requested, by contrast the St. Paul’s Camp had for three months been: trespassing in St. Paul’s churchyard; substantially interfering with the public right of way and the rights of those wishing to worship in the Cathedral; operating in breach of planning control and causing strain on public health facilities as well as causing some damage to local businesses.

In those circumstances, said Lord Neuberger ‘. . . far from it not being open to the Judge to make the orders that he made, it seems to us that there is a very powerful case indeed for saying that, if he had refused to make any order in the City's favour, this court would have reversed him’.

The Court of Appeal also referred to Mayor of London v. Hall [2010] EWCA Civ 817 as the domestic case with the greatest similarity to the present one. This concerned a protest camp (‘the Democracy Village’) on Parliament Square Gardens (PSG) opposite the Houses of Parliament. There the Court held that it was ‘to put it at its lowest. . .open to the Judge’ to conclude that there was ‘a pressing social need not to permit an indefinite camped protest on PSG for the protection of the rights and freedoms of others to access all of PSG and to demonstrate with authorisation but also importantly for the protection of health . . . and the prevention of crime’ and to enable ‘the use of PSG by tourists and visitors, by local workers, by those who want to take advantage of its world renowned setting and by others who want to protest lawfully, is being prevented’.

Lord Neuberger said that:
‘The essential point in Hall . . . and in this case is that, while the protesters' art 10 and 11 rights are undoubtedly engaged, it is very difficult to see how they could ever prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner's property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely.’

The Defendants’ argument that the Judge should have made a less intrusive order was also rejected. For if the Defendants were to have persuaded the Judge to make any less intrusive order than he did they would have had to come up with a specific arrangement which would be: (i) workable in practice; (ii) not give rise to anything like the same degree as the breaches of statute and the rights of others as was the situation in question and (iii) would be less intrusive of the Defendants’ Convention Rights than the orders made by the Judge.

However, in the absence of such proposals it was neither open to the Judge nor the Court of Appeal to make any such less intrusive order. Indeed Lord Neuberger was ‘very sceptical as to whether any such proposal could realistically have been put forward in this case’.

Pour Encourager Les Autres. . .

The Court in its concluding remarks made clear that both in the instant case and in Hall there was now guidance available for first instance judges faced with similar cases. Indeed, the present case (as well as Hall) ‘may be cited as an authority, notwithstanding that it is a decision refusing permission to appeal’. Whilst stressing that ‘each case turns on its facts, and where Convention rights are engaged, case law indicates that the court must examine the facts under a particularly sharp focus’:

‘Nonetheless, in future cases of this nature (where the facts involve a demonstration which involves not merely occupying public land, but doing so for more than a short period and in a way which not only is in breach of statute but substantially interferes with the rights of others), it should be possible for the hearing to be disposed of at first instance more quickly than in the present case or in Hall . . ..’

John Mortimer’s Rumpole of the Bailey always used to recommend caution about judges who were surprisingly polite, pleasant and reasonable since those were the ones that invariably handed his criminal clients down a bracing sentence. In the instant case both the Judge and the Court of Appeal were apparently generous to the Defendants in allowing them to air their views extensively even though ‘they are very unlikely to be of much significance to the legal issues involved’. But, ‘while it would be wrong to suggest that in every case such evidence should be excluded, a judge should be ready to exercise available case management powers to ensure that hearings in this sort of case do not take up a disproportionate amount of court time’.

Courts will of course be keen to ensure that (particularly litigants in person) feel that they have had a fair opportunity of having their say, even if that say is of extremely dubious legal assistance. However, fifty years ago such defendants would probably have had a very different court experience. But, as L.P. Hartley noted in the opening to his novel The Go-Between: ‘The past is a foreign country: they do things differently there’.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for ACSeS. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.

© Nicholas Dobson March 2012.