Jessica Leigh v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate,Lord Justice Warby |
| Judgment Date | 11 March 2022 |
| Neutral Citation | [2022] EWHC 527 (Admin) |
| Docket Number | Case No: CO/919/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 527 (Admin)
Lord Justice Warby
and
Mr Justice Holgate
Case No: CO/919/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Hickman QC, Adam Wagner and Pippa Woodrow (instructed by Bindmans LLP) for the Claimants
Monica Carss-Frisk QC and George Thomas (instructed by Directorate of Legal Services, Metropolitan Police Service) for the Defendant
Yaaser Vanderman (instructed by Treasury Solicitor) for the Interested Party
Hearing dates: 19 – 20 January 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10:30am on Friday 11 March 2022.
Introduction
At around 9pm on 3 March 2021 Sarah Everard, aged 33, went missing while walking home from Clapham to Brixton Hill, in South London. There were fears that she had been abducted and killed. On 9 March, the defendant announced that a serving Metropolitan Police officer had been arrested on suspicion of her kidnap. This was Wayne Couzens. On 10 March, Ms Everard's remains were found. On 12 March, Couzens was charged with her kidnap and murder. All these events attracted widespread publicity. In June and July 2021, Couzens pleaded guilty to kidnap, rape, and murder. In September 2021, he was sentenced to a whole life order.
This claim is concerned with events on and between Wednesday 10 March and Saturday 13 March 2021. This was a week after Ms Everard's disappearance, at a time when Couzens had been charged but not convicted. It was also at a time when the ordinary civil rights and freedoms of citizens were restricted by Regulations imposed to protect public health during the Covid-19 pandemic. The conduct restricted by the Regulations in force at the time included holding a gathering of more than 30 persons in a public outdoor place in a Tier 4 area. The Regulations made it a crime to contravene these restrictions without a reasonable excuse and gave the police power to arrest and/or serve a fixed penalty notice (“FPN”) imposing a fine of £10,000 on someone they reasonably suspected of committing such an offence. London was a Tier 4 area.
The claimants are members of an informal collective that goes by the name #ReclaimTheseStreets which planned to hold a vigil on Clapham Common, prompted by Sarah Everard's disappearance. The date set for the vigil was 13 March 2021. Its purposes were to highlight risks to women's safety and to campaign for changes in attitudes and responses to violence against women. The claimants advertised the event, and large numbers showed an interest in attending. In the event the claimants abandoned their plans. In this judicial review claim they allege that their plans were unlawfully thwarted by officers of the Metropolitan Police Service (“MPS”) for whose conduct the defendant Commissioner is responsible in law.
The claimants say the officers adopted an interpretation of the Regulations that was legally wrong as it categorised the proposed vigil as “unlawful”, meaning criminal, merely because it contravened the restrictions on gatherings. The police are said to have (1) ignored the possibility that the fundamental rights to freedom of expression and freedom of assembly might have supplied a “reasonable excuse” for contravening those restrictions on this occasion and (2) failed to carry out the fact-specific proportionality assessment which they were duty-bound to conduct in order to reach a decision on that point. It is on that legally mistaken basis, say the claimants, that officers made decisions and statements that prevented, or at the very least discouraged, the claimants from carrying out their plans.
As is common knowledge, a vigil and other events went ahead on Clapham Common that Saturday and, later in the day, arrests were made. These events were not organised by the claimants and this aspect of the matter has only tangential relevance to the issues in this case.
Issues
The first main issue is whether the police made decisions that unlawfully interfered with the fundamental rights relied on because they prevented the claimants from organising the vigil on grounds that were not prescribed by law. As I shall explain, concealed within that broad formulation is an issue between the parties as to how we should analyse the conduct of the police. The claimants' case is that over the three-day period with which we are concerned the MPS repeatedly decided that holding the vigil would be an offence or unlawful and liable to sanction. The defendant maintains that there was no such decision; all her officers did was to point to the legal restrictions and the possibility that there might be enforcement action, depending on how things turned out. The defendant argues that the real nub of the claimants' case is a complaint that officers declined to provide them with an assurance that they would not face enforcement action if the vigil went ahead. It is said that the police had no duty to provide such an assurance; and it therefore cannot be said that this was an unlawful interference with the claimants' human rights.
The second main issue arises only if we find that the defendant's officers did unlawfully interfere with the claimants' rights under the European Convention on Human Rights (“the Convention”). The issue is whether we would, even then, be required by s 31(2A) of the Senior Courts Act 1981 to withhold relief because it is “highly likely that the outcome for the applicant would not have been substantially different” if the decision-making had been on a basis prescribed by law.
The legal and policy context
Human rights
The right to freedom of expression is guaranteed by Article 10(1) of the Convention. It includes the right to receive and impart information and ideas without interference by a public authority. Article 11(1) of the Convention guarantees the right to freedom of peaceful assembly and association with others, which includes the right to organise, and the right to take part in, a protest, vigil or other gathering. Section 6 of the Human Rights Act 1998 (“the HRA”) makes it unlawful for a public authority, which includes a police officer, to act in a way which is incompatible with these rights. To that end, s 3 of the HRA requires a public authority to interpret and apply the law compatibly with the Convention rights, where it is possible to do so. The claim before us relies on s 7 of the HRA, which allows a person who claims to be a victim of behaviour that is contrary to s 6 to bring proceedings against the public authority concerned.
The Strasbourg cases make clear that the concept of an interference with Article 10 rights is a broad one, particularly in the sphere of political speech and debate on questions of public interest. The notion of interference goes beyond conduct which directly prevents a person from exercising their rights, such as censorship, confiscation of written material or the apparatus required to publish that material, or physically preventing people from meeting one another. It extends to the imposition of sanctions after the event and encompasses conduct which has a tendency to “chill” the exercise of the right in question. An instance of this is conduct which falls short of prosecution but induces the citizen to exercise self-restraint for fear of a future investigation or prosecution: see Miller v College of Policing [2021] EWCA Civ 1926 [64]–[70], in particular at [73]–[76]. All of this applies equally to restrictions on Article 11 rights. Article 11 is regarded as a lex specialis, an elaboration of rights already protected under Article 10.
The right to be free from such interference or restriction is not absolute. Article 10(2) authorises interferences, and Article 11(2) permits restrictions, where these are prescribed by domestic law and necessary in a democratic society in pursuit of one or more of the legitimate aims specified in the relevant provision. For present purposes it is enough to say that an interference or restriction is “prescribed by” domestic law if it is in accordance or conformity with that law. The concept of necessity carries with it a requirement that the interference be proportionate, going no further than is necessary. This will require careful scrutiny. The importance of the rights protected by Articles 10 and 11 is clear from the Strasbourg cases. The jurisprudence was summarised by the Divisional Court (Singh LJ and Farbey J) in DPP v Ziegler [2019] EWHC 71 (Admin), [2020] QB 253 [48]–[50], in terms which were approved by the Supreme Court on the subsequent appeal: [2021] UKSC 23, [2021] 3 WLR 179. Key points are that the right to freedom of expression is one of the essential foundations of a democratic society; it is applicable to a wide range of information and ideas, including those that shock or disturb; it helps to maintain social peace by permitting people a ‘safety valve’ to let off steam, thus eliminating or at least reducing the risk of violence and disorder; and it extends beyond what might traditionally be regarded as forms of “speech”, to include activities such as protests.
Ziegler was a case about political protest. The court analysed the relationship between Article 10 and 11 rights and the offence of wilful obstruction of a highway without reasonable excuse contrary to s 137 of the Highways Act 1980. It was held that a person obstructing the highway in the lawful exercise of Article 10 and 11 rights will not be acting “without lawful excuse”. There will be no lawful excuse if...
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