England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		16 January 2013

1. LORD JUSTICE MOSES: Two of those participating in a march on 9 November 2011, demonstrating against cuts in the education budget, left that march to join the Occupy Movement's demonstration in Trafalgar Square against the excesses of capitalism.
2. They were, on 17 April 2012, convicted by the District Judge at Westminster Magistrates' Court of breaching conditions imposed under section 12 of the Public Order Act 1986 in respect of the route the march should take.
3. The issue in this appeal by way of case stated arises as to the circumstances in which conditions imposed under section 12 of the 1986 Act continue to apply to those who, as they would have it, left the route designated by those conditions for the purposes of joining a different demonstration.
4. The facts are fully set out in the case stated. Conditions under section 12 of the Public Order Act 1986 designating the route had been imposed on 8 November 2011 following meetings between the organisers of the march - the University of London Union and the National Union of Students - and an Inspector of the Metropolitan Police.
5. The conditions identified what was described as an agreed route, starting in Mallet Street and culminating in London Wall. The march followed a route that took it into Duncannon Street at the junction with Trafalgar Square. There was a police cordon at that point. But, as the District Judge recorded in the case stated, it was not designed to prevent anyone leaving the march should they wish no longer to participate in it, and members of the public taking part in the march would be allowed through, as the District Judge described it, at the discretion of individual police officers.
6. Shortly after 1.30pm these appellants, with other co-defendants, discussed with police officers their wish to leave Duncannon Street, and go through the cordon to Trafalgar Square. They were advised that they had to remain within the confines of the march. In that particular section, there was in charge a Police Sergeant Woolley, who noticed that members of the march were becoming agitated, and in order to avoid any serious disorder, decided to let a group through the police cordon - a group which included these two appellants. But, as the District Judge found, he made it clear that they would, if they breached the conditions as to the designated route, be liable to be arrested, but that if they did not breach those conditions they could, as he put it, go on their way.
7. The District Judge found that these appellants, with other members of the procession, had "a pre-planned arrangement to set up an encampment in Trafalgar Square as part of a political protest similar to the anti-capitalist protest at St Paul's Cathedral. They had taken part in the main procession and demonstration against education cuts, but intended to break away once it reached Trafalgar Square. Their aim was to persuade the police to allow them through the filter cordon at that location so they could move to establish their encampment in Trafalgar Square."
8. The judge found that they knew they would be liable to arrest for breach of conditions imposed in respect of the march. He found that they were part of a group carrying placards and banners. Once they had been allowed by Police Sergeant Woolley to leave the route of the march, they joined others who were already present forming an encampment with pop-up tents around the base of Nelson's Column in Trafalgar Square.
9. Police officers sought to break up that encampment and to advise those participating in that assembly either to return to the main march or disperse, lest they should be arrested pursuant to section 12 of the Public Order Act for breach of the conditions.
10. Both these appellants were approached at different times and locations and warned by a police officer. They denied participation in the march, refused to co-operate and were arrested for an offence contrary to section 12(5) of the Public Order Act 1986.
11. The magistrate concluded that they had breached the section 12 conditions imposed in respect of the march, and found them guilty, sentencing them to a conditional discharge for 3 months.
12. It is important to start with the statutory scheme. The relevant provisions are to be found in section 12 of the 1986 Act, which reads:

"12 Imposing conditions on public processions.

(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to be held and to its route or proposed route, reasonably believes that—

(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,

he may give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions.

(2) In subsection (1) 'the senior police officer' means—

(a) in relation to a procession being held, or to a procession intended to be held in a case where persons are assembling with a view to taking part in it, the most senior in rank of the police officers present at the scene, and

(b) in relation to a procession intended to be held in a case where paragraph (a) does not apply, the chief officer of police.

(3) A direction given by a chief officer of police by virtue of subsection (2)(b) shall be given in writing.

(4) A person who organises a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.

(5) A person who takes part in a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.

(6) A person who incites another to commit an offence under subsection (5) is guilty of an offence."

13. The conditions in the instant case were imposed pursuant to the power conferred in section 12(1). The conditions are set out in a direction given in writing pursuant to section 12(3). The notice identifies a particular public procession, namely that "which is intended to take place in the following place: London and the City of London (WC2, EC1 EC2)". The notice sets out the grounds for imposing the condition and the details of the conditions to be imposed. It sets out a specific route, introduced by the words, "Protesters must remain on the agreed route".
14. Under paragraph 3(2) of the notice, there is added the words:

"Prohibited from entering the following public place(s):

Protesters are not permitted to march to Bank junction or within 100yds of each of the following streets [which are then specified]."

15. The notice then warns that if anyone organising or taking part in the procession knowingly fails to comply with the conditions, they would commit an offence.
16. It is important to note that the conditions imposed pursuant to the power confirmed under section 12(1) are conditions which relate, as the section indicates, to a particular public procession. "Public procession" is defined in section 16 of the Act to mean a procession in a public place. That it relates to a particular public procession is made clear by the identification within section 12(1) of the grounds upon which conditions may be imposed. The circumstances and the route on the basis of which a police officer's belief of risk must reasonably be founded route relate to a particular public procession.
17. Further, section 12(2)(a) in its reference to a particular scene makes it clear that it is to a particular procession that the conditions must relate. Section 12(2)(b) refers to the particular procession to be held in the future.
18. It follows from the fact that conditions must only be imposed in relation to a particular procession that they do not apply to those participating, or for that matter organising, some other procession. Nor, as the statutory scheme makes clear, do they apply to those participating in a public assembly. Section 12 conditions do not and cannot apply to those organising or participating in a public assembly.
19. Separate provision is made in relation to particular public assemblies in section 14. Section 14 reads:

"14 Imposing conditions on public assemblies.

(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—

(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.

(2) In subsection (1) 'the senior police officer' means—

(a) in relation to an assembly being held, the most senior in rank of the police officers present at the scene, and

(b) in relation to an assembly intended to be held, the chief officer of police.

(3) A direction given by a chief officer of police by virtue of subsection (2)(b) shall be given in writing.

(4) A person who organises a public assembly and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.

(5) A person who takes part in a public assembly and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.

(6) A person who incites another to commit an offence under subsection (5) is guilty of an offence."

20. "Public assembly" is defined in section 16 as "an assembly of 20 or more persons in a public place which is wholly or partly open to the air". Conditions may be either made in advance, pursuant to section 14(2)(b), or at the time, pursuant to section 14(2)(a).
21. These features of the statutory scheme are demonstrated by the circumstances which arose in the instant case. There were on the same day (9 November 2011) other processions, one involving a union, the Electricity and Plumbers Trade Union, and another involving Black Cabs, in respect of both of which, as the District Judge recognised, conditions under section 12 had not been imposed. The section 12 conditions imposed in relation to the education cuts procession did not apply to those processions.
22. It is important to acknowledge that the section 12 conditions imposed in relation to the public procession in respect of education cuts had no application to those participating in the public assembly in Trafalgar Square before, during or after the public procession to which the section 12 conditions in question applied, namely the procession in relation to education cuts. It follows that mere participation in the Occupy assembly in Trafalgar Square, could not and did not constitute a breach of the section 12 conditions under section 12(5).
23. The crucial question in this appeal must therefore focus not on the subsequent participation of these appellants in the Occupy assembly in Trafalgar Square, but on the moment these appellants moved from the course of the procession, which was then going past the Duncannon Street junction with Trafalgar Square, and the moment they crossed the police cordon as described in paragraph 6(o) of the case stated. If the appellants could not be proved to be taking part in the procession at that moment, then the section 12 conditions could not and did not apply and they were not guilty of any offence under section 12(5).
24. The appellants say that the moment they left the route, as the District Judge described, with the intention formed previously of joining the Trafalgar Square Occupy assembly, the section 12 conditions no longer applied to them and they could not and were not guilty of any offence.
25. It was accepted by the prosecution and by the District Judge that if these appellants had left the public procession to go home, they committed no offence. As I have already recalled, the judge had found there was no absolute containment or form of kettling constituted by the cordon at the junction of Duncannon Street or Trafalgar Square, and Sergeant Woolley himself had recognised that when he told them that they were free to be on their way. The District Judge himself correctly noted at paragraph 20 of the case stated that it was open to participants in the march to leave at any time. They were not compelled to remain on the march from start to finish. If they were no longer participating in the public procession, then the section 12 conditions did not apply.
26. It must equally follow that if they were no longer taking part in that public procession within the meaning of sections 12(5) for some reason other than their wish to go home, the conditions no longer applied to them. Thus, the issue of whether a person was in fact taking part in a public procession to which the conditions applied must be determined by the actions of those who were said to be participating and not by their intention, although, of course, evidence of their intention may cast light on the inference to be drawn and the characterisation of their actions.
27. All of this the District Judge accepted. At paragraph 16 of the case stated he recorded that there was no doubt about which march the notice applied to: the public procession was the public procession protesting against education cuts. Equally, at paragraph 17 he records that the conditions did not apply to the processions on the same day formed by the Electrical Workers and Plumbers Union and the Association of Black Cab Drivers. But the District Judge concluded that, at the time these two appellants left the route of the march and crossed the cordon, they were still taking part in the public procession to which the section 12 conditions apply.
28. At paragraph 6(v) he records the pre-planned arrangement to leave the march and join the anti-capitalist assembly in Trafalgar Square. At paragraph 6(x) he describes people breaking off from the agreed route, including these appellants.
29. At paragraph 20, the judge rightly acknowledges that the question of whether there was a deviation from the designated route was a question which depended on the particular facts. In that paragraph, he describes those who continue to take part in the procession as protesters. He wrote:

"For example, a member of the public who takes part in the procession but then decides to go home will no longer be a 'protester' for the purposes of the condition imposed in this case and will cease to be subject to the requirement to remain on the agreed route."

30. I would suggest that it is perhaps better in such cases not to use the description "protester". It is not the word used in the statute. Section 12(1) refers to the imposition of conditions on those taking part in the procession. Section 12(5) imposes criminal liability on those who take part in a public procession. The statute does not refer to protesters. The reason why it is important not to use that word is that if it is used it might lend force to the suspicion that members of the public had been charged and indeed convicted merely because they continued to protest in Trafalgar Square. That was not, for the reasons I have given, an offence, but deviating from the agreed route as a participant in a public procession to which the conditions imposed under section 12 applied is an offence.
31. The crucial finding in this appeal is that the appellants remained, as the District Judge put it, protesters as they left the agreed route and crossed into Trafalgar Square. In the context of the case stated read as a whole, the judge's use of the word "protester" must mean someone participating in the public procession to which the conditions applied.
32. Again, in paragraph 21 the judge found:

"In this case I found that the appellants had taken part in a public procession and prior to passing through the police cordon they had knowledge of the condition requiring them to remain on the agreed route. They chose not to comply. I also found that as a direct consequence of their actions a large number of other participants in the march deviated from the agreed route and followed them into Trafalgar Square. The appellants remained protesters as they left the agreed route and crossed into Trafalgar Square. I concluded that at the time they left the main procession they were in breach of the route condition even though Trafalgar Square had not been specified in any of the conditions imposed under sections 12 or 14 and it was not therefore an offence to assemble there."

33. Again, I would respectfully suggest that it was dangerous to use the description "protester" since it left the decision open to the possible interpretation that the offence was committed because the intention was to take part in the Occupy protest. That was not an offence, as I have emphasised, and certainly not the offence for which they were charged, as the final words of the paragraph I have quoted acknowledges. The District Judge, it is plain to me, did not fall into that error. He realised, as he says, that the assembly in Trafalgar Square was not a breach of section 12 conditions, as he had already made clear in various parts of his stated case. Leaving the agreed route was an offence if at that time those leaving were still participating in the public procession to which the conditions applied.
34. The District Judge was not using the word "protester" in any sense other than someone who was participating in the public procession to which the conditions apply.
35. I conclude that the District Judge did find that those two appellants were still taking part in the procession in respect of which the section 12 conditions applied at the time they left the route of that procession on their way to Trafalgar Square. They were thereby guilty of the offence. The District Judge was entitled to find that fact even though they were arrested an hour later, not because they were participating in the Trafalgar Square assembly, to which no conditions were attached, but because of their earlier breach of the section 12 conditions.
36. I would therefore answer the third question in the case stated, namely: "Did the conduct of the appellants amount to a criminal offence under section 12(5) of the Public Order Act 1986?" in the affirmative.
37. Other arguments were advanced by these appellants. It was contended that the terms of the conditions were vague and inconsistent. The first condition designated an agreed route. As I have indicated, the second condition prohibited those participating from entering what was described "as the following public places", and they were not permitted to march to Bank junction or various other areas. It was said that that was an unnecessary condition and inconsistent because, if the route was designated, there was no need to specify any prohibition to march on Bank junction.
38. There is no harm at all in being repetitive for the purposes of underlying the warning that there was an agreed route and that it had to be kept to. There was nothing misleading, vague or inconsistent about it.
39. It is argued that the leaflet that the police were good enough to hand out in relation to the National Student demonstration created doubt as to whether conditions had been imposed or not. The front of the leaflet says: "This leaflet is not a notice under sections 12 or 14 of the Public Order Act 1986". It sets out the designated route. It might have been possible to mount an argument by someone who had merely received that leaflet that they were ignorant of the imposition of any conditions, but the findings of fact that these two appellants were not so ignorant rules out that argument. It might have been better if the notice had referred to the fact that conditions had been imposed, but it may be that the date it was drafted and printed was before those conditions had in fact been imposed.
40. It was argued that there had been no proper service, but the argument was not persisted in orally and was hopeless. There is no statutory requirement to serve the notice on anybody in particular. The only requirement is to give the direction under section 12(3).
41. There was before the District Judge an argument as to delegation, but that was not pursued, and rightly so.
42. The final argument advanced related to the conduct of Sergeant Woolley in letting certain members of the march, including these appellants, through the cordon. Officers on the ground during such public demonstrations are expected to, and indeed must, use their good sense as to what public order requires, and Sergeant Woolley to his credit clearly did that. He had no power to waive the conditions that had been imposed, but he did not do so. For the reasons I have already outlined, he was entitled to let those who wished to quit their participation in the procession to do so. The fact that he let them out from the march merely acknowledged the correct legal position.
43. Those participating in the public procession were entitled to leave it, but they were not entitled to move from the route of the procession whilst they remained as participants in it. I would therefore answer the first two questions of the case stated, namely "Was I right to conclude that the section 12 notice was valid?" and "Was I right to conclude that the appellants were guilty when Sergeant Woolley accepted that he permitted them to pass through the cordon?" also in the affirmative.
44. I would dismiss this appeal.
45. MRS JUSTICE GLOSTER: I agree.
46. LORD JUSTICE MOSES: Anything consequential?
47. MR BROWNHILL: No, my Lord.
48. LORD JUSTICE MOSES: You are not asking for costs?
49. MR PENNY: No.
50. MR BROWNHILL: Both claimants in this matter benefit from legal aid. Might I ask that they be given the normal assessment?
51. LORD JUSTICE MOSES: Yes. Thank you.