The King on the application of Debbie Hicks v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain,Lord Justice Bean |
| Judgment Date | 09 May 2023 |
| Neutral Citation | [2023] EWHC 1090 (Admin) |
| Docket Number | Case No: CO/1169/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 1090 (Admin)
Lord Justice Bean
and
Mr Justice Chamberlain
Case No: CO/1169/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hannah Thomas (instructed by Murray Hughman Solicitors) for the Claimant
James Boyd (instructed by Crown Prosecution Service) for the Defendant
Hearing dates: 26 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 9 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is a claim for judicial review of the decision of District Judge Snow (“the judge”), sitting at Westminster Magistrates' Court, to refuse to state a case for the opinion of this court, pursuant to s. 111 of the Magistrates' Courts Act 1980.
Background
The first Covid-19 lockdown was imposed on 26 March 2020 by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”: SI 2020/350). These contained a variety of restrictions on normal activities. Regulation 7 imposed a prohibition on participating in a gathering in a public place of more than two people. It was subject to a very limited list of exceptions, which did not include protesting. Constables (among others) were empowered, where they considered that three or more people were gathered together in breach of reg. 7, to direct the gathering to disperse or direct any person in the gathering to return to the place where they were living: reg. 8(9). By reg. 9, a person who without reasonable excuse contravened reg. 7 committed an offence. However, by reg. 10, powers were given to constables (among others) to issue fixed penalty notices (“FPNs”) to adults reasonably believed to have committed such an offence. The FPN was “a notice offering the person to whom it is issued the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty”: reg. 10(2). The penalty was £60, or £30 if paid within 14 days: reg. 10(6) & (7).
On 16 May 2020, there was a protest in Hyde Park against the lockdown. Debbie Hicks learned of the protest and decided to attend. She drove from Stroud to London and then took the underground to Hyde Park, arriving at about 12.30pm. At 1.10pm, Ms Hicks was standing on the edge of the crowd, which numbered over 100. Police Constable Casey of the Metropolitan Police approached her, explained that she was committing an offence under the Regulations and directed her to go home. She responded that she did not care and attempted to argue with the officer. PC Casey explained that failure to comply could lead to a £60 fine. She did not leave, so PC Casey issued an FPN for £60. She did not pay and was charged with contravening reg. 7 of the Regulations.
The judge's findings of fact, conclusions and sentence
The judge found that Ms Hicks did not know who had organised the protest. She had been a politics lecturer for at least 30 years and had attended a significant number of protests on issues on which she felt strongly and had genuine views. She was protesting on this occasion because she regarded lockdown as tyrannical. She genuinely held that view. She attended the protest because she was anxious to assert her right to do so and to try to secure the overturning of the tyrannical restrictions. She travelled up from Gloucestershire to London by car to participate and travelled on the underground to Hyde Park not wearing a mask. She was at the protest for around 40–60 minutes before she was approached by PC Casey. She was at the fringe of a crowd numbering well over 100 people. Few in the crowd were wearing masks and there was no evidence of social distancing. PC Casey approached her. She asserted that he had approached her because she was a woman, but the judge rejected this. The officer was anxious to avoid criminalising Ms Hicks in any way. He engaged with her and attempted to explain she was committing an offence under the Regulations by remaining at the protest. He then gave Ms Hicks a direction to go home, warning her that she faced sanction if she did not do so. She responded that she did not care. The officer issued an FPN, explaining that the penalty was £60 but if paid in 14 days would be reduced to £30. Ms Hicks did not pay the penalty notice but gave details to the officer allowing the notice to be issued to her. At the time when she was issued with the notice, the protest was peaceful, though it became less peaceful subsequently.
The judge reminded himself that he had to be sure that Ms Hicks did not have a reasonable excuse and noted that Ms Hicks' rights under Articles 10 and 11 were engaged. He concluded that, whilst she genuinely held her views, she had participated in a demonstration at a time when there was a pandemic for which there was no vaccination and in which thousands of citizens had died. The judge was sure that the restrictions imposed by the Regulations were prescribed by law and were necessary in a democratic society to protect public health. Ms Hicks had refused to leave the protest and go home and had refused to pay the FPN. He was satisfied that she had no reasonable excuse and found the matter proved.
As to sentence, Ms Hicks had filled in a means form disclosing no income but monthly outgoings of £3,000 endorsed with the words “I am out of work” and refused to provide further details. The judge deemed her to have an income of £460 and treated the offence as meriting a Band B fine given the risks posed to the public and the need to deter others. He imposed a fine of £230 and ordered her to pay the prosecution costs of £775 together with the victim surcharge of £34.
The application to state a case
Ms Hicks invited the judge to state a case posing seven questions:
“ Conviction
1. Did District Judge Snow carry out a correct analysis of proportionality of interference with human rights in this case following on from DPP v Ziegler [2021] UKSC 23, [2022] AC 408 (‘ Ziegler’)>?
a. Did he take into account irrelevant considerations and fail to take into account relevant considerations as set out in the grounds of appeal?
b. Did he fail to assess the proportionality of the interference with human rights posed by the regulations, as opposed to only considering the proportionality of the court finding her guilty of the offence?
c. Did he fail to properly consider proportionality of the interference with Ms Hicks' human rights at all? In particular:
i. By failing to consider the specific circumstances of the protest which she attended;
ii. By failing to conduct an assessment of the fact that less restrictive measures (such as those set out in later Coronavirus regulations permitting protesting in specific circumstances) could have been put in place?
iii. By not conducting a sufficient ‘balancing exercise’ of the rights of Ms Hicks versus others as required by Ziegler?
2. Was District Judge Snow wrong to convict Ms Hicks of the offence by finding that she had no reasonable excuse for gathering under the Regulations when she was engaging in a protest in the specific circumstances of the case?
3. Can it be said that the interference by the Government with human rights (namely Articles 10 and 11 of the European Convention on Human Rights (‘ECHR’)) by restricting gathering to protest during periods of national lockdown was proportionate given that there were less restrictive measures available, such as requiring a protest to be conducted by a specific body and for risk assessments to be carried out beforehand, as in some versions of the Coronavirus regulations?
4. Does the lack of certainty (as understood by law enforcement and the public) as to whether protest was permitted under the Coronavirus regulations in force as at the time of this alleged offence render the regulations incompatible with human rights, specifically Articles 10 and 11 ECHR?
5. Is protesting during the Coronavirus pandemic during periods of national lockdown in a group capable of amounting to a reasonable excuse?
Sentence
6. Was District Judge Snow right to make a finding that Ms Hicks earned £460 per week without any evidential basis for doing so?
7. Would the appropriate sentence for somebody convicted of breaching coronavirus gathering regulations by attending a protest usually be a discharge and not a fine?”
The judge certified that the application to state a case was frivolous and refused to state a case. He gave written reasons for the refusal. He said that question 1 was misconceived. He had noted that Ms Hicks had travelled to the protest by public transport without wearing a mask, but this did not form part of his reasons. He did undertake an assessment of proportionality. Question 1(c)(ii) was a disguised attempt to suggest that the prosecution was an abuse of process, which was not an issue for the trial court. Question 2 was not a question of law. Question 3 amounted to a challenge to the Regulations, whose compatibility with Articles 10 and 11 had already been determined by the Court of Appeal in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, [2021] 1 WLR 2326. There was no evidential basis for the issue raised by question 4. Question 5 misidentified the issue at a trial for breach of reg. 7 of the Regulations. What was required was an assessment whether the conviction was proportionate on the particular facts of the case: see Dolan at [103]. Question 6 was misconceived because s. 126(2) of the Sentencing Act 2020 provides that a judge can make such determination of weekly income as he feels appropriate where satisfied that he had not been given...
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