R (Tabernacle) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Wall,Lord Justice Stanley Burnton |
| Judgment Date | 05 February 2009 |
| Neutral Citation | [2009] EWCA Civ 23 |
| Docket Number | Case No: C1/2008/0649 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2009 |
[2009] EWCA Civ 23
(Lord Justice Maurice Kay and Mr Justice Walker
Before: Lord Justice Laws
Lord Justice Wall and
Lord Justice Stanley Burnton
Case No: C1/2008/0649
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
Mr David Pievsky (instructed by Public Interest Lawyers) for the Appellant
Mr Gordon Nardell (instructed by The Treasury Solicitor) for the Secretary of State for Defence
Hearing dates: 26 November 2008
Lord Justice Laws:
INTRODUCTION
This is an appeal, with permission granted by Waller LJ on 13th May 2008, against the decision of the Divisional Court (Maurice Kay LJ and Walker J) given on 6th March 2008 by which it dismissed the appellant's application for judicial review seeking to challenge the legality of paragraph 7(2)(f) of the Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007 (the 2007 Byelaws).
The appellant is a long-time member of the Aldermaston Women's Peace Camp (the AWPC). The AWPC protest against nuclear weapons. They do so in the vicinity of the Atomic Weapons Establishment at Aldermaston (the AWE). They have camped on land at Aldermaston, most recently in an area owned by the respondent Secretary of State within what the 2007 Byelaws call “the Controlled Areas”. Paragraph 7(2)(f) of the 2007 Byelaws prohibits camping in the Controlled Areas from which, therefore, it bans the AWPC. The question in the case is whether this prohibition violates the appellant's right of free expression guaranteed by Article 10 of the European Convention on Human Rights (the ECHR).
THE FACTS
What follows is an outline. It will be necessary to say a little more about some of the facts in the context of particular submissions advanced by counsel and the conclusions I will arrive at.
The camp has been going for some 23 years. The women assemble on the land for the second weekend of each month. They stay from Friday evening until Sunday morning. They hold vigils, meetings and demonstrations, and hand out leaflets. Their protest is and always has been entirely peaceful.
The land occupied by the AWE includes what are called the Protected Areas and the Controlled Areas. Public entry into the Protected Areas, where the actual Research Establishment is situated, is forbidden. However the public has free access to the Controlled Areas, and it is there, as I have indicated, that the AWPC foregathers each month. We were told that the Controlled Areas have been open to the public at least since 1986.
THE LEGISLATION
The 2007 Byelaws have been in force since 31st May 2007. Their vires is s.14(1) of the Military Lands Act 1992. S.14(2) is also material. The relevant provisions are:
“(1) Where any land belonging to a Secretary of State or to a volunteer corps is for the time being appropriated by or with the consent of a Secretary of State for any military purpose, a Secretary of State may make byelaws for regulating the use of the land for the purposes to which it is appropriated, and for securing the public against danger arising from that use, with power to prohibit all intrusion on the land and all obstruction of the use thereof …
(2) Where any such byelaws permit the public to use the land for any purpose when not used for the military purpose to which it is appropriated, those byelaws may also provide for the government of the land when so used by the public, and the preservation of order and good conduct thereon, and for the prevention of nuisances, obstructions, encampments, and encroachments thereon, and for the prevention of any injury to the same, or to anything growing or erected thereon, and for the prevention of anything interfering with the orderly use thereof by the public for the purpose permitted by the byelaws.”
Paragraph 6 of the 2007 Byelaws allows the public to have access to the Controlled Areas. It provides:
“Subject to the provisions of these byelaws, members of the public are permitted to use all parts of the Controlled Areas not specially enclosed or entry to which is not shown by signs or fences as being prohibited or restricted, for any lawful purpose at all times when the Controlled Areas are not being used for the military purpose for which they are appropriated.”
Paragraph 7(2) of the 2007 Byelaws opens with the words “No person shall within the Controlled Areas …”, and there then follow twenty prohibited acts, listed under (a)-(t). I should read paragraph 7(2)(f), (g) and (j):
“(f) camp in tents, caravans, trees or otherwise;
(g) attach any thing to, or place any thing over any wall, fence, structure or other surface;
…
(j) act in any way likely to cause annoyance, nuisance or injury to other persons …”
Contravention of any provision of Byelaw 7 is a criminal offence: see Byelaw 9.
ECHR Article 10 provides:
“(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
I should also set out Article 11:
“(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others …
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others …”
THE ISSUE
The appellant sought originally to challenge the legality of paragraph 7(2)(f), (g) and (j). The Divisional Court, having granted permission to seek judicial review and proceeded to determine the substantive judicial review claim, upheld the challenge to paragraph 7(2)(g) but dismissed the balance of the application relating to 7(2)(f) and (j). We are no longer concerned with (j). The appeal relates only to (f).
As I have foreshadowed the appellant's primary case is that paragraph 7(2)(f) of the 2007 Byelaws constitutes an unlawful interference with her right – indeed the right of every member of the AWPC – of freedom of expression guaranteed by ECHR Article 10. It is also said there is a violation of Article 11. That, I think, is on the facts not so much to be regarded as an autonomous claim, but rather as underlining the mode of free expression relied on: a communal protest in a camp established for the purpose.
It is of course common ground, having regard to s.6 of the Human Rights Act 1998 which I need not read, that in framing paragraph 7(2)(f) of the 2007 Byelaws the Secretary of State was obliged to respect the Article 10 rights of persons potentially affected by the prohibition thereby enacted. It is clear that paragraph 7(2)(f) constitutes in practice an interference with the rights of the AWPC pursuant to Article 10(1). So much is also common ground. The ultimate question in the appeal, therefore, is whether this byelaw is nevertheless justified by any of the considerations in Article 10(2).
THE SECRETARY OF STATE'S CASE
Although the Secretary of State is respondent to the appeal it is convenient first to explain his case. He bears the burden of justifying the accepted interference with the Article 10 right. As a preliminary, there are some foothills to cross.
The Legal Setting
In deciding whether the interference is justified the court has to consider whether paragraph 7(2)(f) serves the achievement of a legitimate aim and, if it does, constitutes a proportionate means of doing so. The requirement of proportionality is derived from the rubric “necessary in a democratic society” in Article 10(2). It is well established that this standard can only be satisfied if the impugned measure is required to fulfil what the European Court of Human Rights has described as a ”pressing social need”: see, amongst a welter of authority, Sunday Times v United Kingdom (1979) 2 EHRR 245.
Moreover the weight of the Article 10(2) justification advanced by the State cannot – certainly in this case – be looked at in isolation. Whether paragraph 7(2)(f) imposes no more than a proportionate restriction of AWPC's free expression rights depends also on the particular nature and quality of the right's exercise with which the prohibition interferes. Here the Secretary of State's case has two specific aspects. First, Mr Nardell on his behalf submits that we should attach importance to the fact that the only source of the public's right (thus AWPC's right) to go on the Controlled Areas is to be found in the 2007 Byelaws themselves: paragraph 6, which I have set out. They are not, otherwise, public land at all. Mr Nardell says that all that has happened is that the Secretary of State has through the 2007 Byelaws granted the public a right to go on the Controlled Areas, but subject to conditions including that provided for by paragraph 7(2)(f). The State owes no...
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