High Court Appeal - Defendant protesters setting up camp outside St Paul's Cathedral - Freedom of expression

City of London Corporation v Samede and others: CA (Civ Div) (Lord Neuberger of Abbotsbury (Master of the Rolls), Lord Justices Stanley Burnton, McFarlane): 22 February 2012

The defendants were all members of an unincorporated association (Occupy) which had organised a protest in central London.

The first defendant was appointed a representative defendant of Occupy under Civil Procedure Rule 19.6. In October 2011, the defendants established a protest camp in the churchyard of St Paul's Cathedral which consisted of between 150 and 200 tents, some used as accommodation and others for activities such as meetings, a library, a first aid facility and a welfare facility. For all of the land in respect of which the instant proceedings related, and the surrounding land, the claimant (the City) was both the local planning authority under the Town and Country Planning Act 1990 and a local authority under the Local Government Act 1972 and the Local Government Act 2000.

In respect of some of the land, the City was also the highway authority in accordance with the Highways Act 1980 and that land vested in the City by virtue of section 263(1) of the 1980 act. The City had not given a licence or consent for the protest camp, for which no end date had been set. On 15 October, the crypt door of St Paul's Cathedral was closed by the Church of England (the church), except for emergency use. On 21 October, the cathedral was temporarily closed. On 25 October, the City undertook a survey of pedestrian movements in the local area. On 28 October, the cathedral was reopened. On 4 November, the City sent a without-prejudice proposal for an agreed settlement to the defendants' solicitors.

On 11 November, that proposal was rejected. On 15 November, the City's planning and transportation committee resolved to take legal action against the protest camp. On 16 November, the City served notice on the camp requiring the removal of all tents and other structures by 6pm on 17 November. The camp was not removed. On 18 November, proceedings were issued by the City and served, together with evidence and a document setting out a broad legal analysis. On 23 November, the first directions hearing took place at which a date was set for trial and the appropriate procedural steps were laid down. On 24 November, the first defendant was given details of the person with whom to negotiate or discuss the claim on behalf of the City.

On 29 November, the church formally offered the defendants an alternative forum for their protest and repeated its request that the camp be removed. On 30 November, an enforcement notice under the 1990 act was served on the defendants. The instant proceedings concerned the City's application for possession of the highway and other open land that was being used as the protest camp. The disputed land comprised three areas: highway land (area 1); open land owned by the church (area 2); and a large area vested in the City which encircled the cathedral and included footpaths and a carriageway (area 3). Area 1 was wholly contained within area 3. The proceedings did not include the public open space within the precincts of the cathedral which was owned in part by the City and in part by the church. The claimant sought possession of areas 1 and 3.

The City further sought injunctions in respect of areas 1 and 3 under section 130 of the 1980 act and a further injunction in respect of area 2 pursuant to section 187B of the 1990 act. Furthermore, the City sought a declaration that it might use its power at common law and, if necessary, its power pursuant to section 143 of the 1980 act to remove the tents from area 1 and any tents erected in area 3 and a further injunction preventing the defendants from interfering in the removal of the tents from areas 1 and 3. The City's application was allowed. The judge held that the requirements for a claim for possession had been met, there had been an unreasonable obstruction of the highway and a breach of planning control. Further, the interference with the defendants' rights under articles 10 and 11 of the European Convention on Human Rights had been both necessary and proportionate. The defendants applied for permission to appeal.

The issues for determination were: (i) whether articles 10 and 11 of the convention had been engaged; (ii) whether the judge had erred in failing to dismiss the City's application because, inter alia, assuming the correctness of all of the findings of fact that had been made by the judge and the relevant factors that he had identified, it had been an unjustified interference with the defendants' convention rights pursuant to articles 10 and 11 to have made any order which closed the camp; and (iii) whether the judge should have made more limited orders which were less intrusive of the defendants' Convention rights. The application would be dismissed.

(1) Applying established principles to the instant proceedings, it had been clear that articles 10 and 11 of the ­convention had been engaged, that was, the defendants could invoke their rights under those articles of the Convention in relation to the maintenance of the camp (see [28] of the judgment).

(2) The answer to the question 'what were the limits to the right of lawful assembly and protest on the highway?' was inevitably fact-sensitive and normally depended on a number of factors. Those included, inter alia, the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupied the land, the extent of the actual interference the protest caused to the rights of others (including the property rights of the owners of the land and the rights of any members of the public).

It could be appropriate for the court to take into account the general character of the views whose expression the convention had been invoked to protect. Political and economic views would be at the top end of the scale whereas pornography and tittle-tattle were towards the bottom. However, it could not be a factor which trumped all others and was unlikely to be a particularly weighty factor (see [39], [41] of the judgment).

On all the facts as found by the judge, there had been a very powerful case for the instant court saying that, if he had refused to make any order in the City's favour, the court would have reversed him. The judge had accepted that the topics that had concerned Occupy were of very great political importance. That was something that could fairly have been taken into account. He had taken into account the fact that the defendants had been expressing views on very important issues, issues which could have been seen as being of considerable breadth, depth and relevance, and that the defendants had strongly believed in the views that they had expressed. Any further analysis by the judge of those views would have been unhelpful and inappropriate.

While the churchyard at the cathedral had been a particularly attractive location for Occupy in view of its prominence in London, the judge's orders clearly had not prevented Occupy from protesting anywhere other than the churchyard. Further, there had been many 'rights' with which the camp had interfered adversely. While the protesters' rights under articles 10 and 11 of the convention had been undoubtedly engaged, it was very difficult to see how they could ever prevail against the will of the landowner, when they had continuously and exclusively occupied public land, breached not only the owner's property rights and certain statutory provisions, but significantly interfered with the public and convention rights of others, and caused other problems (connected with health, nuisance and the like), particularly in circumstances where the occupation had already continued for months and was likely to continue indefin
itely (see [41], [42], [49] of the judgment).

(3) In the circumstances, it had not been open to the judge to have made, nor to the Court of Appeal to make, any less intrusive order than had been made. Only one alternative to the maintenance of the camp in its then current state had been put to the judge by the defendants. The judge had rejected that possibility for plainly good reasons. Assuming that the judge's duty had nonetheless required him to consider the question further, it could not have required him to do more than to raise the issue with the defendants. For them to have persuaded him to make a less-intrusive order than he had, they would have had to come up with a specific arrangement which: (i) was workable in practice; (ii) did not give rise to anything like the same degree as the breaches of statutory provisions and other peoples' rights as the then current state of affairs; and (iii) would have been less intrusive of the defendants' convention rights as the orders that were made. The defendants had not put forward a proposal which satisfied any of those criteria to either the judge or the instant court (see [52]-[54] of the judgment).

Per curiam: The hearing of this case took up to five days and resulted in a conspicuously full and careful judgment. The hearing at first instance in Hall ([2010] All ER (D) 171 (Jul)) took eight days and also resulted in a detailed and clear judgment. Each case has now also resulted in a full judgment on the application for permission to appeal. There is now, therefore, guidance available for first instance judges faced with cases of a similar nature; indeed, that is part of the purpose of this judgment. Of course, 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. For instance, in each case, a significant amount of court time was taken up by the defendant protesters explaining to the court the views they were seeking to promote. In strict principle, little if any court time need be taken up with such evidence.

The contents of those views should not be in dispute, and, as we have sought to explain, they are very unlikely to be of much significance to the legal issues involved. Of course, any judge hearing such a case will not want to be thought to be muzzling defendants. Accordingly, 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.

We recognise, of course, that it is one thing for the Court of Appeal to make that sort of observation about a hypothetical future claim, and that it can be quite another thing for a trial judge, faced with a difficult actual claim, to comply with it. Nonetheless, with the benefit of the guidance given in two first instance judgments and two judgments of the Court of Appeal (and the Strasbourg and domestic decisions referred to above), it is not unreasonable to hope that future cases of this sort will be capable of being disposed of more expeditiously. Not least for that reason, this judgment, like that in Hall, may be cited as an authority, notwithstanding that it is a decision refusing permission to appeal (see [61] -[65] of the judgment). Decision of Lindblom J [2012] All ER (D) 88 (Jan) affirmed.

David Forsdick and Zoe Leventhal (instructed by Andrew Colvin, the comptroller and City solicitor, City of London Corporation) for the claimant; John Cooper QC and Michael Paget (instructed by Kaim Todner) for the first defendant; Felicity Williams (acting pro bono under the Direct Access Scheme) for the second defendant (who also made submissions on his own account); the third defendant appeared in person (assisted by Steven Rushton); the fourth defendant appeared in person (assisted by Michael Upstone); the fifth defendant appeared in person (assisted by Malcolm Blackman).

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