Analysis: Occupy London loses final eviction court challenge
29 February 2012
The Mayor Commonality and Citizens of London – v – Samede, Barda, Ashman, Randle-Jolliffe, Moore and Persons Unknown  EWCA Civ 160 – Read judgment
Members of the Occupy London Movement who have been occupying an area close to St Paul’s Cathedral have had their applications for permission to appeal the decision of the lower court to evict them refused by the Court of Appeal. The judgment of Mr Justice Lindbolm was deemed ‘very full and careful’by the Master of the Rolls. Shortly after midnight yesterday police began evicting occupants at the site.
In January we reported on the High Court battle between the City of London and the Occupy London Movement who had been occupying an area close to St Paul’s Cathedral. Mr Justice Lindbolm’s well-reasoned decision to grant possession, interlocutory and declaratory relief to the Mayor Commonality and Citizens of London meant that the Occupy Movement were to be evicted.
Inevitably oral applications for permission to appeal were made at that hearing, but refused, leading representatives of the Movement to apply to the Court of Appeal. Their applications were heard on 13 February 2012 by the Master of the Rolls, Lord Justice Neuberger, sitting with Lord Justice Stanley Burton and Lord Justice McFarlane. The judgment provides another look at the balancing of the Article 10 (free expression) and Article 11 (free assembly and association) European Convention rights of protesters with the rights of others – see also this blog’s commentary in relation to the Parliament Square protest camp eviction.
It was advanced and accepted that it was right for the City to concede that Articles 10 and 11 of the Convention were engaged; indeed the Occupy movement sought to propagate views as summarised by Mr Justice Lindbolm and to generate publicity.
The support of Strasbourg jurisprudence was noted, in particular the cases of Sergey Kuznetsov v Russia  ECHR 1170, Lucas v UK (App No 39013/02) 18 March 2003, and Appleby v UK (App No 44306/98). Domestic law was also consistent with the notion that state authorities have a positive duty to take steps to ensure that lawful public demonstrations can take place, the court referring in particular to the dicta of Lord Bingham in R (Laporte) v Chief Constable of Gloucestershire Constabulary  2 AC 105 and the Court of Appeal’s decision in Hall and Others  1 WLR 504.
Dismiss the Claim!
All but one of the appellants asserted that the City’s claim should have been dismissed however the reasons differed between them. Mr Rande-Jolliffe raised some rather odd arguments suggesting that Lindbolm J’s judgment did not apply to him as he was a ‘Magna Carta heir’ and, further, the city had no locus standi due to the current Mayoral position having been usurped by the Guilds and Aldermen in contravention of the City of London’s 1215 Royal Charter. Neither argument was accepted; the first had ‘no bearing on the arguments in this case’ and the second caused confusion given that the Lord Mayor and the Alderman and Guilds were Claimants (see Legal Bizzle’s post for more).
Mr Barda’s representative asserted that the decision could not be deemed proportionate purely on the basis of the City’s arguments regarding the breach of various statutes identified in the judgment, public rights and the City’s powers and duties. It was further argued that Lindbolm J was wrong to take into account the increase in crime and the interference with the rights of those who wished to worship at St Paul’s Cathedral as there was a lack of evidence. The Court did not accept these arguments. They doubted the first assertion was correct and emphasised that such concerns were only the subject of the first of the five reasons which persuaded the Judge to reach his conclusion. Lindbolm J was justified in considering both the increase in crime and deterrent to worshippers; there was evidence to justify his point of view.
Two further arguments were advanced by Mr Ashman; firstly an objection to the Judge’s referral to the Camp as a protest camp and secondly an assertion that the Appellants had intended to strike the Camp by the end of February in any event. In answer, whilst the Court accepted that Occupy London were not limited to protesting they found that ‘the Judge was plainly aware of this’ as demonstrated by paragraphs 2 and 3 of his judgment. The activities both included protesting and may be said to be based on protesting given that the raison d’etre of the Movement was at least substantially based on its opposition to many Government policies. The Court was unsatisfied that the Camp would cease voluntarily within the next few months.
The broadest argument for setting aside Mr Justice Lindbolm was that to close the Camp would amount to an unjustified interference with the Defendants’ Convention rights. It was advanced that Articles 10 and 11 effectively mandated the Judge to hold that the Camp be allowed to continue in its current form for the foreseeable future; there was an ‘insufficiently pressing social need in a democratic society to justify the orders’.
The Court considered Mr Justice Lindbolm’s observation at the beginning of his judgment as to the limits to the right of lawful assembly and protest on the public highway. Quoting Lord Irvine LC in DPP v Jones  2 AC 240, Lindbolm J noted that unless the law is that assembly on the public highway may be lawful the right contained in article 11(1) is denied. Reasoning further, the Court acknowledged that whether or not such activity is lawful is ‘inevitably fact-sensitive’ and at paragraph 35 listed the, not limited, factors which should be considered when determining the same:
a) The extent to which the continuation of the protest would breach domestic law
b) The importance of the precise location to the protesters
c) The duration of the protest
d)The degree to which the protesters occupy the land
e) The extent of the actual interference the protest causes to the rights of others, including the property rights of any owners of the land and any members of the public
Although Mr Justice Lindbolm at paragraph 155 had noted that ‘the court cannot – indeed, must not – attempt to adjudicate on the merits of the protest’, the Court accepted that ‘it can be appropriate to take into account the general character of the views whose expression the Convention is being invoked to protect’ however concluded that the Judge had done so. Importantly they noted that the orders made by Mr Justice Lindbolm did not prevent the Movement protesting anywhere other than the churchyard however there were many ‘rights’ with which the Camp adversely interfered.
Considering the case of Kuznetsov v Russia  ECHR 1170, involving a much shorter and less intrusive demonstration, the Court powerfully concluded at paragraph 44:
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.
And further reiterated the point made by Lindbolm J at paragraph 145 of his judgment that ‘complaints brought against evictions in cases where a protest on a far smaller scale than [the Camp] has blocked a public road or occupied a public space have been held inadmissible [by the Commission]’.
The Court considered the case of Hall and Others to be very similar to this case and at paragraph 49 noted:
‘the essential point in Hall  1 WLR 504 and in this case is that, while the protesters’ Article 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 provision, 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.’
Could the orders have been further limited?
Aside from suggestions that no order should have been made, it was also suggested that the court should have ensured that it had identified the least intrusive way of effecting an interference with Convention rights. Mr Justice Lindbolm had not done and his orders were too extreme. The Court immediately found fault with this argument. Although they were prepared to accept at paragraph 53 that in some cases the court may have a duty to investigate whether a less intrusive order was available, it cannot require a Judge to do more than raise the issue:
…it seems to us that it cannot have required him to do more than to raise the issue with the defendants. If they were then to persuade him to make any less intrusive order than he did, they would have had to come up with a specific arrangement which i) would be workable in practice, ii) would not give rise, at least to anything like the same degree, as the breaches of statutory provisions and other peoples’ rights, as the current state of affairs, and iii) would be less intrusive of the defendants’ Convention rights as orders made by the Judge
The Defendants did not put forward such a proposal to the Judge nor the Court of Appeal. It was therefore not open to either court to make any such less intrusive order but in any event the Court were ‘very sceptical’ as to whether any such proposal could realistically have been made.
As can be seen from the above summary of arguments, this judgment was clear. The Judges remained unconvinced by all of the Appellants’ arguments, noting at paragraph 60:
‘There is no chance that any of the criticisms raised by each of the defendants, or even all of those criticisms taken together, could persuade an appellate court that his decision was wrong. Like Griffiths-Williams J in Hall  1 WLR 504, in a very clear and careful judgment, Lindbolm J reached a conclusion which, to put it at its very lowest, he was plainly entitled to reach.’
Whilst this is a decision concerning permission to appeal rather than the hearing of a full appeal, the Judges clearly hoped that it would have a wider influence on the lower courts.
The key factors for consideration when determining if such ‘protest’ activities are lawful provide a workable guideline and it is anticipated that, whilst cases are fact-dependant, hearings may be disposed of more expedentiously at first instance if Judges consider and cite the guidelines in the present case or the aforementioned case of Hall.
The Court was in particular concerned with the significant amount of court time which can be wasted, in good faith, by allowing protesters to explain to the court their views which may not be relevant and urged Judges to exercise case management powers available to them to ensure court time is spent wisely.
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