Westminster City Council v Haw
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GRAY |
| Judgment Date | 04 October 2002 |
| Neutral Citation | [2002] EWHC 2073 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No. IMQ/02/096 |
| Date | 04 October 2002 |
[2002] EWHC 2073 (QB)
IN THE HIGH COURT OF JUSTICE
Queen's Bench Division
Royal Courts of Justice
Strand
London
Mr Justice Gray
Claim No. IMQ/02/096
MR J POWELL (Instructed by the City Solicitor) appeared on behalf of the Claimant
MS E FAVATA (Instructed by Messrs Birdnall & Parker) appeared on behalf of the Defendant
Friday, 4th October, 2002
This application raises questions as to the interaction between the right and the duty of a local authority to remove obstructions from its highways, on the one hand, and the right of the individual citizen to use those highways to exercise his or her right to freedom of expression, on the other hand. It is an application by Westminster City Council, which is the local authority responsible for the highways, including the pavements, in Parliament Square in London, to restrain Mr Brian Haw from obstructing the pavement opposite the House of Commons by displaying there a considerable number of placards supporting his protest against the policies of the Government in relation to Iraq.
What is sought is a final injunction that the defendant cease the obstruction in Parliament Square and elsewhere in Westminster, and that he remove the placards and other paraphernalia.
When I raised in the course of argument the question whether the Council could be entitled to a final injunction at this early stage of the proceedings, Mr Powell on behalf of the Council, referred me to Part 8 of the Civil Procedure Rules. I have some doubts whether an application of the present kind is one which is permitted to be made under Part 8, but Miss Favata for the defendant did not challenge the entitlement of the Council to seek a final injunction: I shall proceed on the assumption that it is open to the Council to do so.
The application is supported by several witness statements from various street enforcement officers of the Council, which give accounts of the activities of the defendant in Parliament Square on the pavement between April and late September of this year. Exhibited to those witness statements are a number of photographs from which it is clear that the number of posters and placards has increased over the months. Included in the evidence are numerous colour photographs of the placards; I shall return later to the question of the extent of any obstruction caused by them.
On behalf of the defendant, it is accepted that he has been conducting a protest from the pavement in Parliament Square ever since June 2001. He has been doing so, so he says, on a 24-hour a day basis, every day, since then. According to his witness statement, Mr Haw sleeps and eats there, and he has from time to time been fasting. He, too, exhibits to his witness statement numerous photographs of the placards and posters which have, from time to time, been on display. It is not necessary for me to go into detail; it suffices to say that the placards and posters criticise in trenchant terms the policy adopted by the Government towards the regime in Iraq and the effect of that policy on Iraqi citizens.
The case for the defendant is, in essence, that he is not obstructing the highway but rather is using it in a lawful and reasonable manner to exercise his rights of freedom of expression and assembly contained respectively in Articles 10 and 11 of the European Convention on Human Rights, and now incorporated as part of English domestic law by the Human Rights Act.
It is stating the obvious to say that Mr Haw feels passionately about the policy currently being adopted towards Iraq and the effect it is having, but no-one has doubted his sincerity.
Before coming to the detail of the basis on which the injunction is sought by Westminster I should mention that there was an application by the defendant to strike out the proceedings pursuant to CPR Part 3.4(2)(b) on the grounds that the present proceedings are an abuse of the process, or otherwise likely to obstruct the just disposal of the proceedings. The basis of that application was, in essence, that the Council should have proceeded against the defendant in the magistrates' court, but Miss Favata has abandoned that application; she does not challenge the entitlement of the Council to seek against her client an injunction to prevent him from committing a criminal offence.
Returning to the injunction which is sought, Mr Powell for the Council, relies on section 130.1 of the Highways Act 1980 as imposing a duty on the Council to prevent obstruction, and on subsection 5 of the same section as entitling the Council to mount the present application. The terms of those two subsections so far as material are as follows. Subsection 1:
"It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority."
"5. Without prejudice to their powers under section 222 of the Local Government Act 1972, a council may, in the performance of their functions under the foregoing provisions of this section, institute legal proceeds in their own name."
Mr Powell also relies in the alternative on section 222 of the Local Government Act which provides:
"1. Where a local authority considers it expedient for the promotion or protection of the interests of the inhabitants of their area, (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name."
Mr Powell accepts that whether this application is made under section 130 of the Highways Act or under section 222 of the Local Government Act, it is necessary for him, in order to be entitled to the injunctive relief sought, to establish that the defendant is in breach of section 137 of the Highways Act, which reads as follows:
"(1) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway, is guilty of an offence and liable to a fine."
In support of the application several authorities are relied on, namely, Seekings v Clarke [1961] 59 LGR 268; Hurst and Agu(?) v The Chief Constable of West Yorkshire [1986] Cr App R 143; Moran v Westminster City Council [1988] 77 E&CR 294; DPP v Jones [1999] 2 WLR 625; and Torbay Borough Council v Cross [1995] JPN 682. In the light of those authorities, to some of which I will return, Mr Powell accepts rightly, in my view that he must establish not only the fact of obstruction but also that it is, in all the circumstances, unreasonable.
The case for the defendant is that such obstruction of the highway as has been taking place is de minimis, that it is not wilful and that, in any event, it is lawful and reasonable. Reliance is placed by Miss Favata on two of the cases already mentioned, namely Hurst and Agu v The Chief Constable of West Yorkshire, and DPP v Jones. In addition, she has referred me to Redmond Bate v DPP Divisional Court, 23rd July 1999, unreported. Furthermore, the defendant relies, through his counsel, on Articles 10 and 11 of the Convention. Miss Favata has referred me to several well-known domestic and Strasburg cases underlining the importance to be attached to freedom of expression, including Handisard(?) v United Kingdom [1979] 1 EHRR 737; Zana v Turkey [1997] 27 EHRR 667; Pro-Life Alliance v The BBC [2002] EWCA Civil 297; Steele v United Kingdom [1999] 28 EHRR 603; Core Hair v Austria [1993] 17 EHRR 358; and finally, R v The Secretary of State for the Home Department Ex Parte Simms [2000] 2 App Cas 115.
It is accepted on behalf of the defendant that the rights arising under Articles 10 and 11 are not unqualified, but it is contended on his behalf that there is no pressing social need to restrict his rights and that the action being taken against him by the Council is in any event disproportionate.
Since the relief being sought by the Council is a final injunction, the Council must establish affirmatively its entitlement to that relief. I accept, for what it is worth, that the standard of proof is somewhat higher than the usual balance of probability, since it is a criminal offence which the Council is alleging. I also bear in mind in this connection that I am enjoined by section 12.4 of the Human Rights Act to have "particular regard" to the Convention right to freedom of expression.
What is it necessary for the Council to prove in order to establish a breach of section 137 of the Highways Act which I have quoted earlier? There must first be established the fact of physical obstruction. As I have said, there is an abundance of photographic evidence. Neither the number nor the position of the placards remains static. Some of the placards are, according to the photographs, positioned on the grass in Parliament Square, which comes under the jurisdiction of the Greater London Authority and not that of Westminster City Council. I am concerned only with...
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