City of London v Samede and Others

Judgment Approved by the court for handing down

Hearing dates: 19, 20, 21, 22 and 23 December 2011

Introduction

What are the limits to the right of lawful assembly and protest on the highway? In a democratic society that is a question of fundamental importance. It arises in this case, in this way. Do those limits extend to the indefinite occupation of highway land by an encampment of protestors who say this form of protest is essential to the exercise of their rights under Articles 10 and 1of the European Convention on Human Rights, when the land they have chosen to occupy is in a prominent place in the heart of the metropolis, beside a cathedral of national and international importance, which is visited each year by many thousands of people and where many thousands more come to exercise their right, under Article 9 of the Convention, to worship as they choose?

Before the court are claims made by the City of London Corporation ("the City") for possession of highway and other open land in the churchyard of St Paul's Cathedral, which has been occupied by the defendants as a protest camp. The City also seeks injunctions to require the removal of the tents and other structures comprised in the camp. For all of the land to which the claim relates, and for the surrounding land, the City is both the planning authority under the Town and Country Planning Act 1990 ("the 1990 Act") and a local authority under the Local Government Act 1972. ("the 1972 Act") and the Local Government Act 2000 ("the 2000 Act"). For some of the land the City is also the highway authority under the Highways Act 1980 ("the 1980 Act"). The defendants belong to the unincorporated association that has organized the protest, which originally called itself "Occupy London Stock Exchange", or "Occupy London SX", names now shortened simply to "Occupy". This group professes a common purpose with protest movements active in several countries throughout the world, including occupations of land in North America and Europe, and the uprisings of the "Arab Spring". The first defendant, Ms Tammy Samede, effectively represents Occupy. She was appointed a representative defendant, under CPR rule 19.6, by the order of Wilkie J made at a hearing for directions on 25 November 2011. By the same order, and at their request, the second and third defendants, Mr George Barda and Mr Daniel Ashman, became parties to the proceedings as litigants in person. The claim is also pursued against persons unknown, "being persons taking part in a protest camp at St Paul's Churchyard, London EC4". This is to ensure that anybody occupying the camp but not covered, or arguably not covered, by the representative order is nonetheless bound by such orders as the court may make in the claim. Wilkie J's order precluded any other defendants being joined to the proceedings. The Chapter of St Paul's Cathedral, to which I shall refer either as "the Chapter" or "the Church" according to the context, is not a party, but provided evidence for the City.

The hearing lasted five days—19, 20, 21, 22 and 23 December 2011. The City was represented by Mr David Forsdick and Ms Zoe Leventhal, Ms Samede by Mr John Cooper QC and Mr Michael Paget. Mr Barda and Mr Ashman were unrepresented. Evidence was given both in the form of witness statements and orally by a relatively small number of witnesses. Both at the beginning of the hearing and at its end submissions were made for the City, for Ms Samede, and by Mr Barda and Mr Ashman themselves. On the evening of the first day I visited the protest camp, accompanied by representatives of both sides.

Background

The defendants' protest camp was set up in St Paul's Churchyard on 15 and 16 October 2011. It consists of a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either regularly or from time to time, as overnight accommodation, and several larger tents used for other activities and services including the holding of meetings and the provision of a "university" (called "Tent City University"), a library, a first aid facility, a place for women and children, a place where food and drink are served, and a "welfare" facility. The size and extent of the camp has varied over time. Shortly before the hearing its footprint receded in some places. At an earlier stage some adjustments had been made to it in an effort to keep fire lanes open. The highway land in the City's ownership that is occupied by the camp has been referred to in the proceedings as Area 1; it is divided into two sections a short distance apart. Adjoining that land is a smaller area, which has been referred to as Area 2 and is owned by the Church. Area 1 is part of a much larger area of highway and open land around the cathedral, which has been referred to as Area 3. The City has given no licence or consent for the protest camp, which, by the time of the hearing, had been in place for more than two months. Attempts by the City to agree with the protestors a time for its removal have failed. Several witnesses for the defendants have made it clear that they intend it to stay for some time: how long is not clear.

When the protesters first arrived in the churchyard they had been trying to get into Paternoster Square, where the London Stock Exchange building stands. But Paternoster Square had been closed off by its owners, Paternoster Square Management Limited, who on 14 October 2011 had been granted an injunction by Peter Smith J, preventing "persons unknown" entering or remaining in or trespassing on the square. The same company issued a claim in the Chancery Division on 12 December 2011 (claim no. HC11CO4400), seeking an order preventing "persons unknown", without its consent, entering or remaining on Paternoster Square "for the purpose of any protest action". On 13 December 2011 Vos J granted a further injunction, effectively extending the prohibition contained in the order of Peter Smith J to adjoining land around Christchurch Court, "[until] trial or further order in the meantime or 13 December 2012 (whichever shall be the earliest)".

A short chronology of events following the defendants' occupation of the churchyard is this. On 15 October 2011 the crypt door of St Paul's Cathedral was closed by 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 re-opened. On 4 November, on behalf of the City, the Comptroller and City Solicitor, Mr Andrew Colvin, sent by e-mail to the protestors' solicitors a "without prejudice" proposal for an agreed settlement. 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 6 p.m. 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 before Wilkie J took place. Wilkie J's order set a date for the trial and laid down the appropriate procedural steps. On 24 November the City told Ms Samede's solicitors that Mr Colvin was the person with whom to negotiate or discuss the claim. The second directions hearing, to which I have already referred, took place on 25 November. On 29 November the Church formally offered the protesters 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 occupiers of the camp.

The scope of the claim

The protest camp occupies two distinct types of land: highway land, vested in the City by section 263(1) of the 1980 Act, and open land owned by the Church.

The highway land occupied by the camp comprises two separate areas within St Paul's Churchyard. These two areas are to the north of the cathedral at its western end and to the south and south-west of Paternoster Square. One is adjacent to the colonnade of Juxon House, the other to the front of the Chapter House. Separating them is an area of highway between the cathedral and Temple Bar, which is the main entrance to Paternoster Square at its south-western corner. These two areas have together been referred to in the proceedings as Area 1.

The open land owned by the Church on which part of the camp is sited is a relatively small piece of land, contiguous to the western portion of Area 1 and extending by a short distance towards the statue of Queen Anne in front of the main steps of the cathedral. This land has been referred to as Area 2.

The claim also relates to a larger area of land, which encircles St Paul's Cathedral save for a section of New Change adjacent to the St Paul's Cathedral Choir School behind the eastern end of the cathedral. This area includes the footway running alongside Paternoster House, the Chapter...