Fiona James v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley,Lord Justice Davis |
| Judgment Date | 13 November 2015 |
| Neutral Citation | [2015] EWHC 3296 (Admin) |
| Docket Number | Case No: CO/1130/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2015 |
[2015] EWHC 3296 (Admin)
Lord Justice Davis
Mr Justice Ouseley
Case No: CO/1130/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tim Owen QC and Shahida Begum (instructed by Hartnells Solicitors) for the Claimant
John McGuiNness QC and Lee Ingham (instructed by Crown Prosecution Service) for the Defendant
Hearing dates: 13th October 2015
Approved Judgment
This is an appeal by case stated against the decision of District Judge Greenfield at Westminster Magistrates Court on 14 May 2014, convicting the Appellant of an offence under section 14 (5) of the Public Order Act 1986, the POA 1986.
She was found guilty of taking part on 23 September 2013 in a public assembly, and knowingly failing to comply with a condition imposed under section 14 of the POA 1986. She received a conditional discharge for two years, was ordered to pay £500 contribution to prosecution costs and a victim surcharge of £15.
Section 14 (1) and (5) of the POA 1986 provides:
"14 Imposing conditions on public assemblies.
(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, or
(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,
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 disorder, damage, disruption or intimidation.
(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."
The facts as found by DJ Greenfield
The Appellant was part of a group protesting outside the Royal Courts of Justice, RCJ, in the Strand and was part of its organisation. The protestors were crossing and re-crossing the zebra crossing outside the RCJ with the result that road traffic could not proceed along the Strand. The protest had begun on 23 September 2013 at 11am outside the RCJ. Between 13.15 hours and 13.24 hours, the eastbound carriageway was brought to a complete standstill by protesters walking back and forth continually across the pedestrian crossing. Not long afterwards a banner was unfurled across the crossing by the group, again bringing traffic in the Strand to a stop. Chief Inspector Wade left the RCJ to speak to the demonstration leader, Mr Grant, on the crossing. Chief Inspector Wade, as the Senior Police Officer present, imposed an order under section 14 POA 1986 requiring the protest not to take place on the crossing nor to block the footway. This condition would last until 17.00 hours when it would be re-assessed. The District Judge accepted Chief Inspector Wade's view that he reasonably believed the protest on the crossing could result in serious disruption to the life of the community, that he had taken the view that the actions of the protestors in disrupting the traffic were not reasonable, and that the protest should continue on the pavement. The Appellant was not found to be in breach of that first order.
After 17.00 hours however protestors were again continually walking back and forth on the pedestrian crossing outside the RCJ. Chief Inspector Wade then signed a second notice under section 14 of the POA 1986 at 17:15 hours. This notice stated that it related to a public assembly taking place outside the RCJ. The reason for the direction by him as Senior Officer, was this:
"Having regard to the time or place at which and the circumstances in which this public assembly is being held I reasonably believe that the assembly may result in serious disruption to the life of the community."
He directed that a condition be imposed on the organisers or participants in the assembly "which appeared to me to be necessary to prevent serious… disruption… as specified above". The location condition was that the assembly was to "locate in the Strand outside the Royal Courts of Justice on the Gateway, not to protest on the pedestrian crossing or obstruct the passage way". The condition as to the maximum duration of the assembly was until 23.15 hours but there was no condition as to the maximum number of people who could assemble. The notice, timed at 17.15 hours, also referred to the offence created by non-compliance with the condition.
Chief Inspector Wade went to inform the protestors of the order at 17.18 hours, communicating it to the Appellant and her group. She was protesting on the pedestrian crossing. Chief Inspector Wade communicated the order by standing on the highway and using a loudhailer. He said "Ladies and gentleman, you are in breach of section 14 of the Public Order Act, please protest over there, please leave the crossing now". The Appellant was found by the District Judge to have heard the order. Chief Inspector Wade handed Mr Grant a copy of the order which Mr Grant refused to accept.
The District Judge found that there was no misunderstanding by those including the Appellant, who were on the crossing at 17.18 hours. For a period of at least 7 minutes protestors including the Appellant remained on the crossing; these 7 minutes were sufficient time for the protestors including her to comply with the direction. She knowingly failed to comply with the direction without good reason.
The District Judge found that "during this time the traffic disruption was significant. At 17.18 hours the protestors were on the crossing chanting, one chanting using a megaphone. The disruption to the life of the community through these actions was significant over this period. Traffic flow being seriously disrupted in The Strand."
The District Judge accepted Chief Inspector Wade's evidence at paragraph 7.2. of the case stated:
"…that the actions of the demonstrators in walking across the crossing over a length of time brought serious disruption to the traffic flow along the Strand, with a knock on effect of serious disruption to the roads feeding into the Strand. I accepted his evidence that members of the public were aggrieved by the disruption caused by the demonstration and that the police had to prevent confrontations between motorists and the demonstrators by their actions of essentially blocking the Strand by continually walking across the crossing."
The District Judge also found, or accepted, Chief Inspector Wade's evidence, that the disruption of the flow of traffic outside the RCJ caused serious disruption to the life of the community.
The District Judge stated two questions for this Court: "(1) Was I right to refuse to rule on a new issue on behalf of Ms James raised during closing submissions by her Counsel? (2) Was I right to rule that the second Section 14 direction issued by Chief Inspector Wade was a lawful direction?" The first was by far the most important for the arguments before us.
The first question arose in this way. In her closing submissions before the District Judge, Counsel appearing for Ms James, who was neither of the Counsel appearing for her before us, raised what the Judge described as "the issue of proportionality", and did so for the first time. The Judge explained that he took this to be whether the CPS' decision to prosecute Ms James was proportionate, "not necessarily based on "any human rights points as to proportionality". This is a reference to the Human Rights Act 1998, and, I infer, to ECHR Articles 10 (freedom of expression) and 11 (freedom of assembly). He ruled that the proportionality of the CPS decision to prosecute had never been raised before and it was not his role to rule on that issue, notwithstanding Dehal v CPS [2005] EWHC 2154 (Admin), Moses J. It was also too late, applying the Criminal Procedure Rules and their overriding objective, for such an issue to be raised at that stage and without prior warning. No evidential base for the issue had been raised during the case, no questions put to the prosecution witnesses, no notice given and no skeleton argument served.
The District Judge's ruling was correct, and plainly so. A comment at a directions hearing, which appeared to relate more to whether the offence was too trivial for prosecution, which was not the argument mounted in closing submissions before him, could not amount to compliance with Part 1 of the Criminal Procedure Rules. Applying, as he did, Malcolm v DPP [2007] EWHC 363 (Admin), in line with R (DPP) v Chorley Magistrates Court [2006] EWHC 1795 (Admin), [26], the District Judge was entirely right. Indeed, viewing the issue on that limited basis there was no real opposition from Mr Owen, whose argument took a rather different shape.
The District Judge was also right to reach the view he did on the question of whether the proportionality of the CPS' decision to prosecute was for him. It was not. Dehal, which was the foundation for the argument before him, was wrongly decided, and should not be followed. Mr Owen contended that it was rightly decided and should be followed, though his main argument on proportionality concerned whether the District Judge, in deciding whether Ms James was guilty, should have decided whether the action taken by the police was proportionate to the...
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