ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Mr Justice Griffith Williams
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE STANLEY BURNTON
| (1) REBECCA HALL
(2) BRIAN HAW
(3) BARBARA TUCKER
(8) CHRIS COVERDALE
(11) FRIEND (ALSO KNOW AS IAN ROBERT HOBBS)
(12) STUART HOLMES
(15) PEACE LITTLE
(20) PERSONS UNKNOWN
|- and -
|THE MAYOR OF LONDON (ON BEHALF OF THE GREATER LONDON AUTHORITY)
Martin Westgate QC and Paul Harris (instructed by Birnberg Pierce & Partners) for the 2nd Appellant
Barbara Tucker, Chris Coverdale, Friend, Stuart Holmes, Peace Little and Persons Unknown all appeared In Person
Ashley Underwood QC and David Forsdick (instructed by Eversheds LLP) for the Respondent
Hearing date : 9 July 2010
Crown Copyright ©
Lord Neuberger MR:
The legislative background
"(1) The land comprised in the site of the central garden of Parliament Square (which, at the passing of this Act, is vested in the Secretary of State for Culture, Media and Sport) is by this subsection transferred to and vested in Her Majesty as part of the hereditary possessions and revenues of Her Majesty.
(2) Nothing in subsection (1) above affects—
(a) any sewers, cables, mains, pipes or other apparatus under that site, or
(b) any interest which was, immediately before the passing of this Act, vested in London Regional Transport or any of its subsidiaries.
(3) The care, control, management and regulation of the central garden of Parliament Square shall be functions of the Authority.
(4) It shall be the duty of the Authority well and sufficiently to light, cleanse, water, pave, repair and keep in good order and condition the central garden of Parliament Square.
(5) The functions conferred or imposed on the Authority by this section are in addition to any other functions of the Authority.
(6) In consequence of the preceding provisions of this section, any functions of the Secretary of State under or by virtue of section 22 of the Crown Lands Act 1851 (duties and powers of management in relation to the royal parks, gardens and possessions there mentioned), so far as relating to the whole or any part of the central garden of Parliament Square, shall determine.
(7) Subsections (3) and (4) above shall have effect notwithstanding any law, statute, custom or usage to the contrary.
(8) Any functions conferred or imposed on the Authority by virtue of this section shall be functions of the Authority which are exercisable by the Mayor acting on behalf of the Authority.
(9) In this section 'the central garden of Parliament Square' means the site in Parliament Square on which the Minister of Works was authorised by the Parliament Square (Improvement) Act 1949 to lay out the garden referred to in that Act as 'the new central garden'."
"(1) The Authority may make such byelaws to be observed by persons using Trafalgar Square or Parliament Square Garden as the Authority considers necessary for securing the proper management of those Squares and the preservation of order and the prevention of abuses there.
(2) Byelaws under this section may designate specified provisions of the byelaws as trading byelaws.
(3) A person who contravenes or fails to comply with any byelaw under this section shall be guilty of an offence and liable on summary conviction—
(a) if the byelaw is a trading byelaw, to a fine not exceeding level 3 on the standard scale, or
(b) in any other case, to a fine not exceeding level 1 on the standard scale.
"3. No person shall within the Squares …
(6) fail to comply with a reasonable direction given by an authorised person to leave the Squares; …
5. Unless acting in accordance with permission given in writing by …the Mayor …no person shall within the Squares
(1) attach any article to any tree, plinth, plant box, seat, railing fence or other structure;
(2) interfere with any notice or sign;
(3) exhibit any notice, advertisement or any other written or pictorial matter; ….
(7) camp, or erect or cause to be erected any structure, tent or enclosure; …
(9) make or give a public speech or address; …
(10) organise or take part in any assembly, display, performance, representation, parade, procession, review or theatrical event; …
(13) go on any shrubbery or flower bed. …"
The factual background to the projected appeal
"1. … PSG … comprises the central area of Parliament Square around which runs the public highway, including in places pavement. To the east is the Palace of Westminster, to the south Westminster Abbey, to the west the Supreme Court and to the north, Whitehall and various government buildings. It is a highly important open space and garden at the heart of London and our Parliamentary democracy; it is an area of significant historic and symbolic value worldwide.
2. PSG is part of the Westminster Abbey and Parliament Square conservation area and a UNESCO Designated World Heritage Site … . It is classified as Grade II on English Heritages Register of parks and gardens with special historic interest. It provides world renowned views of both the Palace of Westminster and Westminster Abbey.
3. On 1 May 2010, four separate groups said to represent the Four Horsemen of the Apocalypse and which had formed up at different locations across London arrived and set up a camp which they named their 'Democracy Village'. Their then stated intention was to remain until 6 May 2010, the date of the General Election but they have continued to occupy PSG and (on the evidence of a number of the defendants …) have every intention to do so for the foreseeable future.
4. Brian Haw (the second defendant) has been camping lawfully since 2001 on a pavement on the eastern side of PSG - a part of the highway controlled by Westminster City Council. He was joined some years later by Barbara Tucker (the third defendant). They have been conducting their own protest for Love, Peace, Justice for All. They and those associated with them are in no way a part of the Democracy Village.
5. The defendants who are a part of the Democracy Village are demonstrating variously in respect of a number of causes – these include the war in Afghanistan, the war in Iraq, genocide, war crimes and world wide environmental issues."
The issues on this appeal
Did the defendants have a fair trial?
Does the Mayor have the right to claim possession?
Articles 10 and 11 of the Convention and proportionality
"[T]he effect of the Democracy Village is to prevent the public from exercising their rights over a very significant part of PSG for a prolonged and indefinite period [and] one impact of the Democracy Village has been to exclude others from exercising their right to protest there. The extent and duration of the impact of the Democracy Village on the lawful, reasonable and ordinary activities on PSG is the primary reason for refusing consent".
The letter also said that "The Mayor is seriously concerned about the substantial damage which is being caused by the Democracy Village to PSG", and that "the cost of reparation to return the Square to its former condition is substantial". The letter went on to state that
"Permissions for other peaceful protests and rallies on Parliament Square Garden are normally limited to a maximum of 3 hours, in order to allow for proper management, to ensure that the day-to-day business of the city is not impeded, and to allow the maximum number of groups or individuals to use the space to exercise their democratic right to peaceful protest. As this period will be extended in appropriate cases, the Mayor is not prepared to permit camping by significant numbers for a prolonged period."
The injunction should not have been granted in aid of the criminal law
"Whereas the standard of proof required in civil proceedings is the balance of probabilities, I am, in fact, sure that these applications (subject to the exercise of the court's discretion) must succeed. I am satisfied, for the reasons which follow that this is an exceptional case:
• The identities of most of those taking part in the Democracy Village are unknown – but for their insistence in being joined as defendants to these proceedings, the identities of defendants 5 to 19 would not have been ascertained;
• It would impose an undue burden on the Claimant to institute proceedings against all the occupiers, with the complicating factor that some of those taking part move in and out of occupation; effecting service would not be straight forward;
• Proceedings in the magistrates' courts would have to be by way of summons, a sometimes prolonged procedure;
• The refusals, hitherto, of those taking part in the Democracy Village to obey lawful instructions gives no grounds for optimism that there will be future compliance; indeed a number of the defendants made it clear they have no intention of obeying a court order for possession."
Mr Haw's arguments
Issues relating to costs
Lady Justice Arden:
Lord Justice Stanley Burnton: