Baroness Jenny Jones v The Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Mr Justice Chamberlain |
| Judgment Date | 06 November 2019 |
| Neutral Citation | [2019] EWHC 2957 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4032/2019 |
| Date | 06 November 2019 |
The Queen on the application of
[2019] EWHC 2957 (Admin)
Lord Justice Dingemans
Mr Justice Chamberlain
Case No: CO/4032/2019
TN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Phillippa Kaufmann QC and Jude Bunting (instructed by Bindmans LLP) for the Claimants
Ian Skelt and Aaron Rathmell (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Defendant
Hearing date 24 October 2019
Approved Judgment
Lord Justice Dingemans and
Introduction
This is the judgment of the Court to which we have both contributed. This case raises a point about the proper interpretation of the words “public assembly” in section 14(1) of the Public Order Act 1986 (“the 1986 Act”).
This is an expedited, rolled-up hearing, pursuant to an order dated Thursday 17 October 2019, of an application for permission to apply for judicial review and, if permission is granted, a claim for judicial review of the decision of Superintendent Duncan McMillan to impose a condition on the “Extinction Rebellion Autumn Uprising” (“XRAU”) on Monday 14 October 2019.
The XRAU was intended to run between Monday 7 and Saturday 19 October 2019. There were intended to be multiple sites at which protests would take place. It was intended that the protests would cause inconvenience to the general public so that politicians would take notice of and engage with the aims of Extinction Rebellion (“XR”). At 1900 hours on 14 October 2019, Superintendent McMillan, who had been designated by the Commissioner of Police of the Metropolis (“the Commissioner”) as Bronze Commander for Contingencies, recorded the view that XRAU was “an assembly” that “may result in serious disruption to the life of the community”. He purported to exercise the power conferred on “the senior police officer” by section 14(1) of the 1986 Act and imposed the following condition:
‘Any assembly linked to the Extinction Rebellion “Autumn Uprising” (publicised as being from 7 th October to 19 th October at 1800 hours) must now cease their protest(s) within London (MPS & City of London Police Areas) by 2100 hours 14 th October 2019.’
Following a review carried out at 1730 hours on Friday 18 th October 2019 by Chief Superintendent Karen Findlay who was Silver Commander, the condition was removed.
The parties and the procedural history
XR is an environmental pressure movement that aims to bring about governmental action on climate breakdown, biodiversity loss and the risk of social and ecological collapse. It co-ordinated the XRAU between 7 and 19 October 2019. This consisted of many individual gatherings (using a neutral word) of protestors, in distinct locations within the Metropolitan and City of London police areas. The Claimants are politicians, and activists who support XR. Two of them, the Third Claimant Ms Chowns and the Seventh Claimant Mr Monbiot, were arrested for breach of the condition (though in Mr Monbiot's case obstruction of a highway was given as a further ground for arrest).
On 16 October the Claimants issued a claim for judicial review challenging the decision of 14 October to impose the condition on XRAU and seeking urgent consideration and an expedited hearing before 19 October. On 17 October 2019 there was a hearing of an oral application for the hearing to take place on Friday 18 October 2019. The application was refused because it would not have been possible for the hearing to take place on a basis that was fair to both parties in such a short time scale, and because it would have been very difficult for the court to produce any judgment before the conclusion of the XRAU on Saturday 19 October 2019. It was ordered that there should be an expedited, rolled-up hearing. That took place on Thursday 24 October 2019.
The Commissioner is responsible for policing in the Metropolitan police area. At events like XRAU, which have public order implications, the Metropolitan Police has a three-tier command structure. The officers in charge are referred to as ‘Gold’, ‘Silver’ and ‘Bronze’. Gold was Commander Jane Connors. Silver was Chief Superintendent Karen Findlay. Superintendent McMillan was Bronze Commander for Contingencies.
The evidence
We have set out below a short summary of relevant evidence from the Claimants and the Commissioner. There was no real dispute about matters of fact between the parties, because the dispute related to the legal consequences of the facts.
The First Claimant, Baroness Jenny Jones, is a life peer and a campaigner on environmental and civil liberties issues. She spoke at an XR-linked gathering on 7 October 2019.
The Second Claimant, David Drew, is the Labour MP for Stroud. He has repeatedly spoken in support of XR.
The Third Claimant, Eleanor Chowns, is a member of the Green Party and since June 2019 has been Member of European Parliament for the West Midlands. Ms Chowns was arrested at Trafalgar Square for breach of the condition challenged in this claim.
The Fourth Claimant, Adam Alnutt, is an active supporter of XR, including as an organiser for Tower Hamlets XR. He is a member of XR's ‘political circle’. After the condition was imposed he went to the Trafalgar Square site and was involved in relocating “lost and found items” from those involved in the XRAU. He attempted to agree a movement of the lost and found items to a location in Vauxhall but was required, because of the condition, to move the items outside the M25.
The Fifth Claimant, Caroline Lucas, has been the Green Party MP for Brighton Pavilion since 2010 and has supported XR since its inception. She spoke at XR gatherings on 7 October.
The Sixth Claimant, Clive Lewis, has been the Labour MP for Norwich south since 2015. He is an active supporter of the XR movement and spoke at a gathering organised by a group called “XR East England and West Midlands” on Horse Guards Parade on 9 October.
The Seventh Claimant, George Monbiot, is a journalist who writes for The Guardian and who has campaigned with XR since it was formed. He spoke at the XR gathering at Lambeth Bridge on 7 October and was arrested at Trafalgar Square on 14 October for breach of the challenged condition and for obstructing the highway.
In a document headed “October Rebellion Action Design Version 1 25 th September 2019”, it was stated: “In October, thousands of rebels from across the UK are coming to London. We will build pressure on the state to the point where their only option is to respond to our demands for change…” Three tactical elements were identified: “blocks” around Government departments in Westminster; “mass actions” said to be a coordinated calendar of pressure building mass participation actions away from the blocks; and “AGs”, being a decentralised network of smaller satellite actions which will contribute to stretching the state's resources. Under the heading “Third logic for Rebellion” it was stated: “it is vital that we continue to take disruptive actions outside of the large scale national actions that will necessitate a police response to further stretch police capacity. When taking these actions, groups should remember that we are not going to London to do bad things to bad people. We are following a clear strategy of taking police resources to a breaking point, so the only mechanism the state has to remove us is by engaging with us directly”.
On 4 October 2019, a document appeared on XR's website produced ‘by Ronan’. It was headed “Everybody Now: London's Rebellion on track to be FIVE times bigger than April”. There was a map showing 12 locations in the centre of London with one or more groups listed by each location. There was to be an opening ceremony at 5pm at Marble Arch. The document noted that “Rebellion will consist of three tactical elements: site ‘blocks’, mass participation actions, and decentralised affinity (member) group actions”. It was noted that protests would take place in 60 cities around the world. The mass participation actions scheduled included “Westminster Site Blocks” on Monday 7 October and action to “occupy/block” all Government departments around Westminster on Tuesday 8 October. The author added for clarity that “we will not be preventing civil servants from going about their work”. Other events were scheduled for the remainder of the week. In the second week, there was to be a “hunger strike”, which was to be part of an international movement taking place in cities all round the world.
For Monday 14 October, the following appeared:
“START TIME 7am
WHERE TO SWARM: Festival Gardens (near St Paul's)
Montague Close (behind Southwark Cathedral)
Exchange Square, Broadgate (behind Liverpool Street Station)
START TIME: 9am
MEETING PLACE: Bank tube station, Threadneedle Street, EC3V 3LA
ACTION
Affinity groups will come together to hold mass actions across the City of London, disrupting roads, public transport, and financial institutions. This includes the Bank of England…”
Superintendent McMillan explained that, among his duties was to ‘work within Gold's legal framework and be available to Silver as a tactical option to deploy, assess, develop and impose…conditions’. Superintendent McMillan noted that it had been decided that, if he were to impose conditions under section 14 of the 1986 Act, he would “own” the review process, ensuring the conditions remained necessary, proportionate and legally accountable.
Superintendent McMillan was appointed Bronze Commander for Contingencies in part because of his experience in dealing with XR protests in April 2019. He explained that there are:
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