City of London v Samede and Others
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls |
| Judgment Date | 22 February 2012 |
| Neutral Citation | [2012] EWCA Civ 160 |
| Docket Number | Case Nos: A2/2012/0152,0200,0205,0206.0207 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2012 |
[2012] EWCA Civ 160
The Master of the Rolls
Lord Justice Stanley Burnton
and
Lord Justice Mcfarlane
Case Nos: A2/2012/0152,0200,0205,0206.0207
Case No HQ11X04327
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE HON MR JUSTICE LINDBLOM
Royal Courts of Justice
Strand, London, WC2A 2LL
John Cooper QC and Michael Paget (instructed by Kaim Todner) for Ms Samede
Felicity Williams (instructed by) for Mr Barda (who also made submissions)
Mr Ashman (assisted by Mr Steven Rushton ) in person
Mr Randle-Jolliffe (assisted by Michael Upstone) in person
Mr Moore (assisted by Malcolm Blackman ) in person
David Forsdick and Zoe Leventhal (instructed by Andrew Colvin, the Comptroller and City Solicitor, City of London Corporation) for the City of London
Hearing date: 13 February 2012
This is the judgment of the court to which all members have contributed
On 18 January 2012, Lindblom J handed down a very full and careful judgment, following a five day hearing the previous month. Having heard consequential arguments, he then made orders in favour of the Mayor Commonalty and Citizens of the City Of London ('the City'), against three named defendants Tammy Samede (who had been appointed by the court as a representative defendant), George Barda, and Daniel Ashman and 'Persons Unknown'. If implemented, the effect of these orders would be to put an end to the camp ('the Camp') which has been located in the St Paul's Cathedral churchyard in London since 15 October 2011, and has received much publicity.
The factual background
The Camp was described by the Judge in his judgment at [2012] EWHC 34 (QB), para 4 in these terms:
'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.'
Many of the occupiers of the Camp have designated their organisation the 'Occupy Movement'. The concerns of the Occupy Movement were summarised by the Judge at [2012] EWHC 34 (QB), para 155 as:
'largely centr[ing] on, but … far from being confined to, the crisis – or perceived crisis – of capitalism, and of the banking industry, and the inability – or perceived inability – of traditional democratic institutions to cope with many of the world's most pressing problems. They encompass climate change, social and economic injustice, the iniquitous use of tax havens, the culpability of western governments in a number of conflicts, and many more issues besides. All of these topics, clearly, are of very great political importance, and are to do with what they perceive as the excesses of capitalism. They say that the protest is part of a worldwide movement (extending inter alia to cities in North America, the UK and mainland Europe). The protest also includes those concerned about the Arab spring.'
The concerns of those in the Camp are well summarised in that passage, and they were well articulated before us. In particular, Mr Barda, Mr Ashman and the Mr Randle-Jolliffe, in powerful, eloquent and concise submissions, advanced the causes which the Occupy Movement and the Camp stand for, with a passion, which was all the more impressive given the restraint and humour with which their arguments were presented.
The majority of the area occupied by the camp consists of a piece of highway land owned by the City, but the occupied area also includes other open land which is owned by the Church. The City's claim was for orders for (i) possession of the highway land which it owns and which is occupied by the Camp, (ii) an injunction requiring the removal of the tents from that land, and restraining the erection of tents thereon in the future, (iii) an injunction requiring the removal of the tents from the land owned by the Church, and restraining the erection of tents thereon in the future, (iv) possession of adjoining highway land and open space land owned by the City and onto which it was feared that the Camp would move, and (v) an injunction restraining the erection of tents on the adjoining land in the future. Apart from its right to possession of the land referred to in (i) and (iv), the City principally relied on its power to seek injunctive relief under section 130(5) of the Highways Act 1980, as the Camp obstructs the highway, and under section 187B of the Town and Country Planning Act 1990, as the Camp breaches planning control and an enforcement notice has been served.
The judgment of Lindblom J
At [2012] EWHC 34 (QB), para 1, the Judge identified the general issue which these proceedings involved as being 'the limits to the right of lawful assembly and protest on the highway', which, as he said, '[i]n a democratic society [is] a question of fundamental importance.' More specifically, the Judge said that these proceedings raised the question whether the limits on the rights of assembly and protest:
'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 11 of 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?'
At [2012] EWHC 34 (QB), para 13, the Judge correctly identified the three main issues for him as being:
'[F]irst, whether the City has established that it is entitled to possession of [the areas it owns], so that, subject to the court's consideration of the interference with the defendants' rights under Articles 10 and 11 of the Convention, an order for possession ought to be granted; second, whether, again subject to the court's consideration of the interference with the defendants' rights, the City should succeed in its claim ….; and third, whether the interference with the defendants' rights entailed in granting relief would be lawful, necessary and proportionate.'
In the following two paragraphs, he recorded that the City did not dispute that the defendants' rights under Articles 10 (freedom of expression) and 11 (freedom of assembly) of the Convention were engaged. He then stated that the City contended that the orders it was seeking did not prevent the defendants from exercising those rights, and that they would amount to a 'justified interference' with those rights. He also mentioned that the City's case, in summary terms, was that the defendants could not rely on Articles 10 and 11 of the Convention to justify occupying land as 'a semi-permanent campsite', particularly bearing in mind that such occupation was in breach of a number of statutory provisions, infringed the property rights of the City and the Church, and also impeded other members of the public from enjoying their rights, most notably the right of access to the Cathedral to worship, which engages Article 9 of the Convention (freedom of religion), and obstructed the use of the highway by members of the public generally.
The Judge then explained at [2012] EWHC 34 (QB), paras 17–100 in some detail the evidence which he had heard from witnesses called on behalf of the City and on behalf of the defendants, and some of the distinguished people who had provided written evidence in support of the views supported and propagated by the Occupy Movement. In the next thirteen paragraphs, he summarised the arguments which had been advanced to him. At [2012] EWHC 34 (QB), paras 114–152, the Judge then discussed the various issues which had been raised under three headings, which reflected the three main issues which he had identified.
Under 'Possession' at [2012] EWHC 34 (QB), paras 114–126, the Judge concluded that the defendants were in occupation of the areas of land owned by the City and had no domestic law defence to the City's possession claim. Under the heading 'Injunctive and declaratory relief', in the next seventeen paragraphs, the Judge concluded that the Camp was 'undoubtedly' an 'unreasonable obstruction of the highway' and a breach of planning control, both of which the City had a duty to enforce, and which applied to the area of land owned by the Church.
In those circumstances, as the Judge said, the only basis upon which the defendants could hope to succeed in resisting the relief sought by the City was under the third heading, 'Human rights', which he dealt with at [2012] EWHC 34 (QB), paras 144–164. We shall describe his analysis in those paragraphs in a little more detail.
He began by discussing the arguments raised by the defendants. They relied on 'the fundamental importance in a democratic...
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