Director of Public Prosecutions v Cathy Eastburn
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWHC 1063 (Admin) |
| Docket Number | Case No: CO/1483/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 1063 (Admin)
Lord Justice Bean
Mrs Justice Farbey
Case No: CO/1483/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Little KC and James Boyd (instructed by CPS) for the Appellant
Henry Blaxland KC and Blinne Ní Ghrálaigh KC (instructed by Hodge, Jones and Allen) for the Respondent
Hearing date: 25 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 5 May 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is the judgment of the court.
Parliament Square has been the scene of many protests and demonstrations. The central part of the square is a pedestrian area, mainly grass, known as Parliament Square Gardens. This is surrounded by busy roads on all sides, one of which is Parliament Street. On 2 September 2020, Cathy Eastburn sat down in Parliament Street as part of an Extinction Rebellion protest. She was told by a police officer that this was unlawful because a direction had been given under section 14 of the Public Order Act 1986 that the assembly had to be confined to Parliament Square Gardens. She remained seated in Parliament Street. She was arrested and charged with the offence of failing to comply with the direction.
On 25 January 2022, she was tried at the City of London Magistrate's Court before Judge (DDJ) Bone, who acquitted her. The Director of Public Prosecutions appeals against that acquittal by way of case stated.
This provides, so far as relevant:
“(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that –
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community …
… he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such … disruption…
(2) In subsection (1) “the senior police officer” means –
(b) in relation to an assembly intended to be held, the chief officer of police.
(3) A direction given by a chief officer of police by virtue of subsection (2)(b) shall be given in writing.
(5) A person who takes part in a public assembly and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.
(9) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”
Section 14 has been amended with effect from 28 June 2022 by s 75 of the Police, Crime, Sentencing and Courts Act 2022, but those amendments do not affect the present case.
Section 15(2) of the 1986 Act delegates the powers of a chief officer to an Assistant Commissioner of the Metropolitan Police. Assistant Commissioner (“AC”) Rolfe gave the direction in the present case.
Findings of fact
DDJ Bone (“the judge”) made the following findings of fact set out in the case stated:
“8. By way of background, on 1st September 2020 an Extinction Rebellion demonstration took place in and around Parliament Square, London.
9. This case involved another Extinction Rebellion demonstration that was planned for the following day.
10. The cause of both demonstrations was climate change and the police had prior knowledge of the second event.
11. On 2nd September 2020, protesters again gathered in and around Parliament Square, London and the Respondent was one of those protesters.
12. It was not in dispute that she was exercising her ECHR Article 10 (Freedom of Expression) and Article 11 (Freedom of Assembly) rights at the relevant time.
13. I heard testimony from AC Rolfe, PC McGaffin, and the Respondent. The arrest was captured on police body-worn video footage which I viewed with the parties via a lap-top because the usual court video playing facilities were not working.
14. I found the following facts proved to the criminal standard:
a. The protest on 2nd September 2020 was an assembly intended to be held at the time the direction with conditions was made.
b. AC Rolfe was the appropriate senior police officer lawfully able to make that direction in advance. She did so in writing on 1st September 2020 and when doing so, gave evidence that she considered the ECHR rights of the protesters.
c. When making her direction, AC Rolfe reasonably believed that the intended assembly may result in serious disruption to the life of the community.
d. Her reasonable belief was based upon police experience of Extinction Rebellion demonstrations in London.
e. AC Rolfe anticipated among other consequences that the intended assembly might delay traffic, impede the emergency services, prevent access to the Houses of Parliament, disrupt the working of the Supreme Court and/or negatively impact on commerce.
f. Based upon police experience of Extinction Rebellion demonstrations, AC Rolfe did not however anticipate serious public disorder or violence.
g. The conditions imposed by AC Rolfe were those that appeared to her necessary to prevent serious disruption to the life of the community.
h. The conditions allowed the protest to take place but confined the assembly to Parliament Square Gardens so that traffic could continue to move. AC Rolfe also made clear that police officers were briefed to seek compliance with the conditions and were expected to exercise their discretion in making arrests.
i. On 2nd September 2020, the Respondent was part of the assembly to which the direction with conditions applied and was sitting in the road in Parliament Street.
j. Police officers informed her of the fact that the direction had been made which prohibited her from sitting in that road.
k. The Respondent was given an opportunity to leave the road. She continued to sit in the road and her non-compliance was both ‘knowing’ and within her control.
15. I therefore found the statutory ingredients of the offence to have been proved.
16. However, I did not find it proved that the Respondent had caused or contributed to anything other than very minor disruption.
17. No specific evidence was offered on behalf of the Applicant about how long the Respondent and/or others
18. The police body-worn video footage captured a peaceful protest and appeared to show some vehicles and members of the public on foot passing the assembly without difficulty. The area was also said not to be as busy as usual due to the impact of the Coronavirus pandemic.
19. It followed that whilst AC Rolfe had held the requisite belief to make a direction imposing conditions in advance, on 2nd September 2020 it was not established there had been any serious disruption to the life of the community.”
The decision of the deputy district judge
The prosecution submitted to the judge that if he found the statutory ingredients of the offence under s 14 proved, he should convict Ms Eastburn without further consideration. On her behalf, however, it was submitted that in addition to the statutory ingredients the prosecution was also required to prove to the criminal standard that a conviction would be a proportionate interference with Ms Eastburn's rights under ECHR Articles 10 and 11. The judge was referred in particular to the decisions of this court in James v DPP [2015] EWHC 3296 (Admin), [2016] 1 WLR 1118 and of the Supreme Court in DPP v Ziegler [2021] UKSC 23 now reported at [2022] AC 408.
In the case stated the judge explained his decision to acquit as follows:-
“32. It is … established law that:-”
“a. Whilst Article 10 and Article 11 provide important ECHR rights, they are not unfettered rights. A state can impose restrictions upon those rights provided the restrictions are lawful, necessary in a democratic society and proportionate to, for example, preventing disorder and protecting the rights and freedoms of others; and
b. Article 10 and Article 11 rights are therefore not a trump card for protesters, see Westminster City Council v Haw [2002] EWHC 2073.
33. Given I did not hear argument that the Respondent should not be prosecuted, I did not refer to that part of the judgement in James which makes clear the decision to prosecute is not an issue for a trial Court.
34. The decision I made concerned the proportionality of convicting the Respondent as a restriction of her ECHR rights.
35. That was a decision I made following the finding of facts at the conclusion of a trial. The trial was never argued before me to be an abuse of process and for completeness, the legality of the arrest was never challenged.
36. Arrest, prosecution, conviction, and sentence are all restrictions upon ECHR rights, but the Supreme Court in Ziegler confirmed that different considerations to each may apply to the proportionality of those restrictions, see below.
37. I acknowledged in my judgement that Ziegler was a case involving Obstructing the Highway, a different offence contrary to Section 137 Highways Act 1980. The second question considered by the Supreme Court centred around the defence of lawful excuse, not a statutory defence in this case.
38. However, I accepted that the Supreme Court had clarified in Ziegler important principles about how a trial Court should approach the conviction of a defendant who is alleged to have offended whilst exercising her Article 10 or Article 11 ECHR rights.”
39. I was referred to the judgement of Lord Hamblen and Lord Stephens at para 57:
“The second...
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