Limitations on the Right to Peaceful Assembly and Protest

Mayor of London (On behalf of the Greater London Authority) v Hall & Ors [2010] EWCA Civ 817 (16 July 2010)

The England and Wales Court of Appeal upheld a High Court decision which held that the Mayor of London is entitled to seek an injunction against a group of protestors who established a long-term camping village in a public space.  The Court found the injunction did not violate the protestors’ right to freedom of expression or the right to freedom of peaceful assembly and freedom of association protections enshrined in arts 10 and 11 of the European Convention of Human Rights.  The Court granted two defendants who protested separately from the group permission to appeal the injunction and associated costs.

Facts

On 1 May 2010, a group established a camp named ‘Democracy Village’ in Parliament Square Gardens (‘PSG’) in London to hold demonstrations against the government.  Over a one month period Democracy Village increased in size and became self-sustained.  The Court estimated the damages to the grounds amounted to £50,000 as a result of the protestors’ occupation of PSG.

On 3 June 2010, the Mayor of London claimed an order for possession of PSG on behalf of the Greater London Authority and sought an injunction against the protestors.  The defendants challenged the Mayor’s statutory right to claim possession of the property and challenged the injunction as a violation of their right to freedom of expression and freedom of peaceful assembly and association under arts 10 and 11 of the Convention.  The High Court held the Mayor was entitled to the order for possession and that the injunction was not in violation of the protestors’ rights.  On appeal the defendants challenged their right to a fair trial under art 6 of the Convention, whether the claim for possession was properly constituted, whether the order for possession and injunction complied with arts 10 and 11 of the Convention in regards to proportionality, and whether the injunction was a permissible remedy in aid of criminal law sanctions.

Decision

The Court of Appeal granted two defendants the right to appeal the injunction, but dismissed the appeal of all other claims asserted by defendants who claimed association with Democracy Village.

Right to a Fair Trial

The right to a fair trial was challenged based on a lapse in the initial proceedings that ultimately created an abbreviated procedure.  The Court held the abbreviated procedure was appropriate to deliver prompt injunctive relief and that it was not in violation of the defendants’ art 6 right.

Right to Claim Possession

The Court upheld the High Court’s determination that the Mayor is entitled to statutory right of possession against persons who occupy PSG.  The issue brought before the High Court challenged the Mayor’s statutory right of possession over property vested in the Crown.  The Court of Appeal determined, ‘every aspect of ownership and possession is vested in the Mayor, as part of his own statutory duty and statutory right, and not as an agent of the Crown: he has complete control and regulation of PSG’.

Compliance with Articles 10 and 11 of the Convention and Proportionality

The Court of Appeal held arts 10 and 11 did not provide an adequate defence for the protestors.  Articles 10(2) and 11(2) provide that the right of freedom of expression and peaceful assembly and association may be interfered with if the rights are ‘prescribed by law and it is necessary in a democratic society in the interest of national security or public safety for the prevention of crime or disorder, for the protection of health or morals or for the protection of the rights and freedom of others’.  The High Court was required to apply a balancing test to determine whether any interference with the defendants’ rights under arts 10 and 11 was within the law as necessary to meet a pressing social need and whether the actions taken were proportionate to the harm caused.

The High Court found Democracy Village prevented the public from exercising their rights over a very significant part of PSG for a prolonged and indefinite period of time and that their occupation jeopardized the protection of health in the occupied areas. The High Court determined the Mayor’s attempt to seek an injunction was ‘a wholly proportionate response and [that] no defendant has a Convention defence or any other defence to the claim for right of possession’.

The Court of Appeal upheld the High Court ruling and concluded there were insufficient grounds to challenge the decision.  The Court stated the defendants had been permitted to express their views and assemble freely, however, that ‘it is equally important to all other people who wish to demonstrate on PSG that the Democracy village is removed….that presence impedes the ability of others to demonstrate there’.

Injunction and Costs

The Court found the High Court was justified in granting injunctive relief to the Mayor given the length and nature of the occupation of PSG.  However, the Court noted it should, ‘in principle, be ‘reluctant’ to grant an injunction in aid of the criminal law which provided for penalties’.

The Court granted permission to appeal the injunction to two defendants who claimed they were protesting separately from Democracy Village.  The Court determined that the defendants are entitled to an individual proportionality assessment under art 10 of the Convention. They also granted them permission to appeal costs to limit their liability to 80% rather than 100%.

Relevance to the Victorian Charter

This case is particularly relevant to the scope of right to freedom of expression under s 15 of the Charter and the right to peaceful assembly and freedom of association under s 16.  The right to freedom of expression under art 10 and the right to peaceful assembly under art 11 of the Convention are similar in the scope of the protection of rights found in ss 16 and 15 of the Victorian Charter.  Thus, Victorian courts may adopt a similar approach when considering the effect prolonged protests in public spaces have on the right to freedom of expression and peaceful assembly and association under the Charter.

This decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/817.html.

Loren Days is a volunteer with the Human Rights Law Resource Centre