Kim Vincent v The Chief Constable of Kent Police [2026] EWHC 769 (KB)

[2026] EWHC 769 (KB)Case No KA-2024-000248
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 st March 2026
Before
THE HONORABLE MR JUSTICE KIMBLIN
Between
MISS KIM VINCENTAppellantTHE CHIEF CONSTABLE OF KENT POLICERespondent
Richard Clayton KC (instructed by Express Solicitors) for AppellantMark Ley-Morgan (instructed by Weightmans LLP) for RespondentHearing Hearing date: 23 rd March 2026
Approved JudgmentThis judgment was handed down remotely at 2.30 pm on Tuesday 31 st March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
[1]In the night, on 26th April 2019, the Appellant, Miss Kim Vincent, was at the port in Ramsgate (‘the Port’). She was a part of a protest against the export of live animals. Kent Police were in attendance, including Inspector McNeil. The Inspector pushed the Appellant, who fell to the floor and was injured. The focus of this case is on what happened during 40 seconds on that night, the reasons for the Inspector’s actions and the Appellant’s qualified rights to assemble with others to object and to voice her views.[2]The appellant issued a claim form on 3rd May 2022, pleading battery or negligence. At trial, she amended her claim to include human rights breaches, which give rise to the issues in this appeal.[3]The trial on liability, quantum being agreed, was heard by HHJ Brown at the Canterbury County Court on 22-24 October 2024. The Judge gave her judgment on 15th November 2024. Sheldon J. refused permission to appeal by his order dated 23rd May 2025. Upon renewal, Obi J. granted permission to appeal by her order dated 28th October 2025.[4]The issues for decision in this appeal are:(1) Whether the Judge gave effect to the purpose and scope of the rights to freedom of expression and assembly;(2) Whether the Judge conflated the principle of proportionality with reasonableness.

[2] The Policy Decision & The Standard Briefing

[5]The amendment to the Particulars of Claim, made on the first day of the trial, pleaded the terms of two of the Defendant’s documents which related to protest against the export of live animals. The Policy Decision was pleaded in this way:
“(a) An assessment of different risks presented by the protests. The risks were overwhelmingly assessed as low, with: i) No known or believed risks to the general public; ii) Members of KAALE usually of retirement age and not intent on disorder, but instead taking part in peaceful protest; iii) KAALE and other activists had responded negatively to water bottles occasionally being thrown at lorry cabs; iv) The mood to Police Protest Liaison Officers was generally good; v) History showing that interaction with protesters was unlikely to result in serious violence or disorder, most verbal interaction contesting police involvement and perception of bias; vi) The only reference to any arrests being made at the protests was on 08.11.2018, more than 6 months before the Appellant was injured; (b) Provision for negotiation with members of KAALE, including agreement of areas of protest and sit-down protest; (c) The Defendant would take reasonable steps to protect those wanting to exercise their rights peacefully, and protesters’ rights; (d) A recognition that the vast majority of protesters exercised their rights peacefully, whilst acknowledging that passions could run high and that officers had to exercise judgement in relation to minor breaches of law; (e) A direction that language or comments intended to antagonise the protest groups would not be tolerated.”
[6]The Standard Briefing was pleaded as being:
“(a) An assessment of the risk of disorder and disruption was low; (b) An assessment of the risk to drivers as low; (c) Identified as a Gold Strategic Objective the facilitation of peaceful protest; (d) Identified the policing style in the Silver Tactical Plan as including; i) Seeking to nurture the principle of policing by consent; ii) Policing in an engaging, open, friendly and fair manner; iii) Treating all people with dignity; iv) Proactively meeting, greeting, talking and listening to members of the public; v) Building relationships, trust and support from the public; vi) Informing of what is considered acceptable behaviour of peaceful protest, and that police are there to facilitate both peaceful protest and lawful trade; vii) A five-step appeal: 1. Simple Appeal – Ask to comply 2. Reasoned Appeal – Explain request 3. Personal Appeal – Explain implication 4. Final Appeal - ‘Is there anything I can reasonably say or do to make you co-operate?’ 5. Action – Proportionate Force used (e) That the approach of the briefing required of commanders a level of tolerance around minor breaches of the law; (f) That any action taken by police would be proportionate, legal, accountable, necessary, least intrusive and ethical.”
[7]The Appellant’s case before the Judge was that the use of force was not consistent with these ‘policies’. The force which was used was not a proportionate means of achieving the aim of facilitating the lawful trade, namely the transport of live animals. Before me, no submissions were made in respect of these policies.[8]The Judge records that the Defendant did not accept that the Bank Mellat approach (see below at paragraph 53) was applicable to the facts of a case such as this, which is dealing with a dynamic situation and with the instinctive and necessary reaction of an officer to the particular circumstances. The considerations in Bank Mellat would potentially have application in other situations where Article 10 or 11 rights were being exercised, such as when a preacher was to be arrested for the views that he was expressing, but not to a case such as this on the Defendant’s case.[9]The Defendant did not accept that the Appellant was in fact exercising her Article 10 or 11 rights at the time when she was pushed by Inspector McNeil, or, if she was, the push did not interfere with those rights, or if it did, it was justified.

[3] The Judge’s Findings and Conclusions

The Judge made detailed and carefully expressed findings as follows.

[11]On 26th April 2019 at approximately 23:30, the Appellant was at Nethercourt Roundabout, Ramsgate, Kent, attending a protest against live animal exports organised by Kent Action Against Live Exports Lorries (KAALE) which habitually carried livestock for overseas slaughter.[12]During the years of such protest, protesters had behaved in a way that caused a risk of injury, or even death, to themselves, police officers or lorry drivers. Kent Police had attempted to address those risks in a number of ways, which included engagement with relevant parties, including those who were identified as organising protests. The Appellant had received a letter from the Police to warn her of the risks which were being caused. The Police’s key concern was to keep protesters out of the path of moving lorries, save during the tolerated two-minute sit down protest. Tolerating obstruction of the highway for a limited period of time, before then requiring protesters to move, was judged by the Police to be an appropriate way of discharging the difficult and conflicting responsibilities. The Police’s proper and legitimate aim and purpose in balancing their duty to facilitate the exercise by protesters of their Article 11 and Article 10 rights to gather together and to express their views publicly, alongside their parallel duty to facilitate the lawful trade of the haulage operators, a two-minute sit down protest by the protesters was normally permitted by the Police in the course of such operations.[13]The Judge found that this was a step that was reasonable and appropriate for Kent Police to take because it enabled protesters to manifest their beliefs about live animal exports. It was likely to reduce the risk of protesters taking more dangerous action, because they had had the opportunity to interfere, at least to some extent, with the progress of the lorry with its live cargo, but it was limited in its scope and, therefore, in its ability to cause delay or disruption to the lorry for an extended period of time. Some obstruction of the highway, and thus delay to the progress of the lorry, was tolerated by Kent Police, the length and degree of obstruction permitted had properly and reasonably to be kept within reasonable limits to facilitate lawful trade and to keep the lorry driver safe, and having regard to his onward journey.[14]It was also relevant to consider the impact on the welfare of the live cargo, as the animals were being exposed to noise from the shouting of abuse and lights from mobile phones.[15]On 26th April 2019, the lorry carrying the live sheep had been stopped by the actions of a protester. Then a number of protesters moved in front of the lorry, standing in the roadway, whilst others were surrounding the lorry and filming the sheep inside the trailers. The Judge found that a protester, who was not the Appellant, tampered with the air brakes. Those actions by the protesters meant that this particular lorry was stopped for about 30 minutes. The Judge considered that this was an important factor.[16]Although he did not apparently speak English and, therefore, he may not have understood the words used, the lorry driver would understandably have been frightened and frustrated by the situation with which he had to deal during that half hour period. Not only was he delayed for a significant period of time, without the Police clearing the route for him to proceed, but he had to leave the relative safety of his cab in order to deal with the sabotage to his brakes. When he got out of his cab he was surrounded by police officers for his own safety, but that would not have prevented the situation being extremely concerning for him. The anger being directed towards him by the Appellant and a large number of other protesters would have been obvious to him. Video Footage[17]I interpose here to set out the key events which are shown on the video footage because this is point at which it is particularly relevant to the events as they unfolded. There are two clips:(1) a nine-second-long section, ‘Footage A’, which shows the moments before, during and after Inspector McNeil used force against the Appellant;(2) ‘Footage F’ that also shows, from a different and wider angle, the use of force by the officer.[18]I viewed each video three times. I set out the Judge’s description of these events below. I agree with the Judge’s description as a fair account, by reference to my own viewings. I found Footage A of most benefit because it was closer to events, save that Footage F continued a little longer after the use of force. The description which follows is a composite impression of both recordings.[19]Footage A starts with a view of the driver, in the nearside driver’s seat of the lorry, obviously driving. There is repeated shouting of, “Evil bastard.” At this point the camera has moved around to the left and to a grey-haired woman.[20]Inspector McNeil, moves towards the woman from the left and a female shouting “Get off her” can be heard, then seen. The Appellant moves at speed from the left of the screen towards the officer and the woman. She is shouting “Get off her” again. The Inspector pushes the grey-haired woman away. He turns to where the Appellant is now physically very close to him, and possibly touching him. She appears angry and she is shouting her words in close proximity to his face. The officer pushes her away from him by quickly moving his arms from a bent position to an outstretched position, with his left hand in contact with the outer part of her right shoulder. His right hand cannot be seen given the angle. The Appellant’s body is at an angle to him when he does that. She is propelled backwards. Almost immediately, the grey-haired woman comes at the officer, who again pushes her away.[21]It appears to be about two to three seconds between the Appellant coming at speed towards Inspector McNeil and the officer pushing her. At the time she was pushed by Inspector McNeil it would appear that both the officer and the Appellant are in the roadway in front of the offside front of the cab of the lorry.[22]Immediately after the Appellant fell, the officers are then pushing other protesters as the lorry continues moving. An officer is caught by the offside front wheel of the lorry.[23]Between the Appellant falling and the lorry coming to a halt, the scene is one of great confusion. The Appellant remains lying on the road whilst other protesters come towards the officers, who repel them with their hands and arms, before the lorry stops following the incident with the officer and the wheel.[24]There is other footage from another officer’s body worn camera. The Judge records the Inspector warning a protester about using the word ‘cunt’. The Appellant is shown leaning forwards and shouting with her fist raised:
“He's an evil wanker. You are protecting an animal abuser. If he was raping children, you would not be huddling around him right now.”
The Appellant then asks an officer whether he found it funny. The tone of voice used by the Appellant was found by the Judge to be forceful and angry. The Judge found the atmosphere to be both visibly and audibly quite heated, with some protesters in an angry and agitated state. The Judge’s Conclusions[25]The Judge reached conclusions on the law and concluded on the facts separately. As to the law, the contentious paragraph of the judgment is:
“In judging what was reasonable, if the use of force has the effect of interfering with the exercise of a person’s ECHR rights, then the interference with those rights, and the justification and proportionality of the use of force in that context, is in my judgment part and parcel of the assessment of reasonableness. In the absence of a discrete claim for breach of the Human Rights Act, it is not a separate exercise. Rather, when considering the reasonableness of the officer’s belief, and the reasonableness of the use of force, the fact of and degree of any interference with an ECHR right are factors, in my judgment, that fall to be considered in deciding whether or not the Defendant has discharged the burden of proof on those questions.”

The Judge then went on to conclude as follows.

[27]Inspector McNeil reasonably considered that the lorry driver’s state of mind, when he returned to his cab, would have been one of frustration and fear. Given the period that the lorry had already been delayed, the driver’s likely state of mind, it could not be guaranteed that the lorry driver would have behaved in an entirely cooperative way if the protesters attempted to continue to prevent his journey.[28]The Police needed to clear the roadway so that the lorry could proceed. The time between the protesters starting to move into the roadway ahead of the moving lorry until the Appellant fell was about 18 seconds in total. However, the time between Miss Vincent first shouting, “Get off her,” which would have been at about the point when Inspector McNeil would have first become aware of her moving towards him and the grey-haired woman at speed, is a couple of seconds at most.[29]The Inspector had very little time to assess and respond to the situation created by the Appellant’s actions. The scene had escalated quickly from the point when protesters had started to move in front of the lorry until the point when the Appellant confronted Inspector McNeil. Inspector McNeil reasonably considered it was necessary to use force to move the grey-haired lady from in front of the moving lorry for her own and his safety, and in order to allow the lorry to progress. He did not put her arm behind her back.[30]The Appellant moved at speed towards the Inspector, shouting. He had a second or two to react. He used a technique in which he had been trained, namely a palm strike which was effective in moving the Appellant away, and that was both a reasonable technique to use and he honestly believed it was so, but it was not excessive force. Rather, the Appellant fell backwards because the way in which he and the Appellant came together.[31]The lorry was very close to both the Inspector and the Appellant. The lorry driver may well have not been able to see them. It was only when a fellow officer’s foot was caught beneath the lorry’s wheel that the vehicle was brought to a halt.[32]There was ongoing disorder in front of a moving lorry with ongoing risk to officers and protesters that that situation created.[33]Viewed objectively, the protest was not peaceful. Extreme anger was directed towards the lorry driver and at police officers. Despite this, none of the police officers, including Inspector McNeil, retaliated or lost their professionalism.[34]The Police regulated the speed of lorries in an effort to improve safety. Protesters walked in front of lorries and surrounded them. The Police warned against this and attempted to prevent it by moving them away from the roadway, despite often being outnumbered by protesters.[35]This activity was filmed in order to record what protesters considered to be:(1) ill-treatment of animals;(2) heavy handed tactics of the Police, and(3) to create a particular narrative on social media, the objective reality of which was questioned by the Judge.[36]When she was pushed by the Inspector, the Appellant was not exercising her Article 10 rights, because her actions in seeking to interfere with his dealings with the grey-haired woman were not a manifestation of her right to freedom of expression. However, she was still exercising her Article 11 rights.[37]Insofar as his actions were an interference with her ECHR rights, the use of force on her by him was nonetheless justified and necessary in a democratic society and, having regard to all of the circumstances, it was a proportionate means of achieving a legitimate aim, namely of securing the safety of Inspector McNeil himself and of the protesters having regard to the proximity of the moving lorry, and of facilitating the lawful trade of the haulage company. [4] Law 38. The Rights

[4] Law

[38]Article 10 ECHR is the right to freedom of expression. It provides:
“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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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.”
[39]Article 11 ECHR is the right to freedom of assembly and association. It provides:
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
[40]Both of these rights appear in Schedule 1 to the Human Rights Act 1998. It is unlawful for a public authority to act in a way which is incompatible with a Convention right: s. 6(1) of the 1998 Act.[41]The issues in this case are a retrospective assessment of factual findings in respect of an event in 2019. That is the exercise which courts undertake in both civil and criminal jurisdictions. In other cases, these fundamental rights have been at issue prospectively, such as in challenges to policies and legislation, or with prospective effect based on current evidence, such applications for injunctions. The legal principles have developed from that range of contexts, and each is to be drawn upon as necessary. Fundamental Importance[42]The freedom to take part in peaceful assembly is of such importance that it cannot be restricted in any way so long as a person does not himself commit any reprehensible act on such an occasion: Ezelin v France [1991] 14 EHRR 362.[43]Freedom of expression is an essential foundation of democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment: Steel v United Kingdom 28 EHRR 603 at [101].[44]Likewise, freedom of assembly is also a fundamental right in a democratic society which is a foundation of democracy: Ziliberberg v Moldova [2004] (Application No 61821/00; unreported).[45]Reasonable and appropriate measures are to be taken to enable lawful demonstration to proceed peacefully: Plattform "Ärzte für das Leben" v Austria [1988] 13 EHRR 204 at [34].[46]Mr Clayton K.C., who appeared for the Appellant, drew my attention to the well-known dicta of Sedley L.J. in Redmond-Bate v Director of Public Prosecutions [2000] HRLR 249, decided just before most of the Human Rights Act 1998 was in force. Two women were preaching. They were arrested by an officer who feared a breach of the peace and prosecuted for obstructing him. At [21] Sedley L.J. was emphatic that freedom only to speak inoffensively is not worth having.[47]Likewise, Mr Clayton relied upon R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 A.C. 105. The House of Lords allowed an appeal in respect of those on a coach who were prevented from protesting at Fairford, in Gloucestershire which was to be used for operational sorties by American aircraft, against Iraq. Lord Bingham (C.J.) emphasised the fundamental importance of the Article 10 and 11 rights and did so in the context of the Strasbourg case law. Protest[48]There is no doubt that the right to freedom of expression and the right of peaceful assembly both extend to protesters: Secretary of State for Transport v Cuciurean [2022] 1 WLR 3847, per Lewison L.J., with whom Asplin and Edis L.L.J. agreed, at [30]:
“In Hashman and Harrup v United Kingdom (1999) 30 EHRR 241, for example, the European Court of Human Rights held that the activity of hunt saboteurs in disrupting a hunt by the blowing of hunting horns fell within the ambit of article 10 of the ECHR. In City of London Corp v Samede [2012] PTSR 1624 protesters who were part of the Occupy London movement set up a protest camp in the churchyard of St Pauls Cathedral. This court held that their activities fell within the ambit of both article 10 and also article 11.”
[49]Civil disobedience was defined as a public, non-violent, conscientious act contrary to law, done with the aim of bringing about change in the law or policies of the government. They are a form of protest, guided by principles of social good and addressed to other members of the community or political leaders: Cuadrilla Bowland Limited v Persons Unknown [2020] EWCA Civ 9; [2020] 4 WLR 29 per Leggatt L.J. as he then was. Interference and Proportionality[50]The right to protest has its limits even on the public highway. The Supreme Court drew attention to the long history of cases which held that it was necessary for the court to decide whether the activity being carried on in the highway was reasonable or not, in the context of the offence under s. 137(1) Highways Act 1980 of obstructing the highway: Re Abortion Services (Safe Access Zones) (NI) Bill [2023] UKSC 32; [2023] AC 505 at [23], per Lord Reed, giving the judgment of the court. The determination of the proportionality of an interference is not simply a fact-specific inquiry of the circumstances in each case. Questions of proportionality may be a matter of general principle. Rather, it involves the application, in a factual context, of a series of tests along with the relevant case law. Appeal courts carry out their own assessment of proportionality, adapted to the context of the appeal [28-33].[51]The exercise is to ask:(1) Is what the defendant did in exercise of one of the rights in Articles 10 or 11?(2) If so, is there an interference by a public authority with that right?(3) If there is an interference, is it prescribed by law?(4) If so, is the interference in pursuit of a legitimate aim as set out in paragraph 2 of Article 10 or Article 11, for example the protection of the rights of others?(5) If so, is the interference necessary in a democratic society to achieve that legitimate aim?[52]The well-known questions which arise from (5) above are:(1) Is the aim sufficiently important to justify interference with a fundamental right?;(2) Is there a rational connection between the means chosen and the aim in view?(3) Are there less restrictive alternative means available to achieve that aim?(4) Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others? I return to this topic in respect of Ground 2, below.[53]The Appellant relied upon Bank Mellat v HM Treasury (No. 2) [2013] UK Supreme Court 38 & 39, [2014] AC 700, 770-1 per Lord Sumption at [20], which the Judge cited at [130]: “The requirements of rationality and proportionality, as applied to decisions engaging the human rights of applicants, inevitably overlap. … the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine(i) whether its objective is sufficiently important to justify the limitation of a fundamental right;(ii) whether it is rationally connected to the objective;(iii) whether a less intrusive measure could have been used; and(iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.”.[54]Before the Judge, the Appellant relied upon Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546 at 29-31, per Lord Wilson, cited at [134] of the judgment. A promise or adopted practice by a public body is to be honoured unless there is a good reason not to. To do otherwise is unfair and inconsistent.

[5] Submissions

[55]Mr Clayton urged me to make my own assessment of the video footage. He relied on the judgment of Davies L.J., with whom Lady Carr (C.J.) and Dingemans L.J. agreed, in Afriyie v Commissioner of the City of London Police [2024] EWCA Civ 1269; [2024] 4 W.L.R 86. Davies L.J. accepted that the recordings of the incident which the appeal court could view put the court in a different position to the ordinary case. There, he was referred to the many dicta which make very clear that an appeal does not duplicate the trial judge’s role.[56]Mr Clayton took a realistic approach to this aspect of the case. He did not seek to extend this point to the live evidence which the Judge had heard, upon which submissions had been made and in which context the video evidence formed a part.[57]There were some criticisms of the judgment. The judgment is reasoned via points which did not arise from the evidence, he submitted. Two examples were given. First, the lorry driver had not given evidence, so it was not possible to say that he was in fear. Second, the impact on animals of them being delayed was not a subject on which any witness who was called could properly give evidence. I observed during the hearing that these points strayed outside of the grounds on which permission to appeal was given.[58]The thrust of Mr Clayton’s first submission on Ground 1 was that the Judge erred in law in failing to hold the purpose and effect of holding that the Appellant’s activities squarely fell within the scope of Articles 10 and 11. He developed that submission orally.[59]There were other means of addressing the situation which faced the Police and which were much less intrusive. Relying on Laporte, any prior restraint on freedom of expression calls for the most careful scrutiny.[60]As to proportionality, it was submitted that the Police did not take steps to try to contain the events which were unfolding. The actions which were taken were one-sided and partial. It was not enough to say that the lorry was moving forward and therefore nothing but the use of force would do. It would have been common sense to freeze the status quo.[61]Mr Clayton did not develop his second ground of appeal. He relied upon his skeleton argument. The Judge had erred in law in saying that “the justification and proportionality of the use of force in the [HRA] context, is in my judgment part and parcel of the assessment of reasonableness”. As Lord Steyn stressed in R(Daly) v Secretary of State for the Home Department [2001] 2 A.C. 532 at [26], there is a material difference between Wednesbury reasonableness and the more precise and sophisticated contours of the principle of proportionality.[62]Lord Steyn put the starting point as an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. He then qualified that by reference to:(1) the need sometimes to assess the balance struck, which goes beyond considering the range of reasonable responses;(2) this may involve questions of weight;(3) the question of whether the interference was really proportionate to the legitimate aim pursued.[63]As I understood the submission, the Judge erred because the case was not one of overlap but one in which a proportionality assessment could and should have been broader.[64]Mr Ley-Morgan, who appeared for the Respondent, supported the Judge. He drew attention to the Judge’s rejection of the Appellant’s account. The Judge found that the Appellant was obstructing the lorry. She approached the Inspector at speed. The Inspector reacted instinctively.[65]In this case, the force used upon the Appellant was not used in order to prevent her from exercising either of those rights. Force was used in order to prevent harm and to allow the lorry to proceed. The Appellant knew that the situation was dangerous and the Police needed to move her.[66]The context was very important and the Judge had heard from the witnesses about the build-up to the use of force which is central to the claim. The Appellant was obstructing the lorry and was acting unlawfully. The officer had to defend himself.[67]The Appellant could and should have exercised her Article 10 and 11 rights from a safe position that did not impede the movement of the lorry. Had she done so, those rights would not have been interfered with. As the trial judge found, prior to positioning herself in front of the moving lorry, there had been no attempt by any officer to prevent the Appellant from exercising her Article 10 and 11 rights, despite the abusive language and the fact that she was one of the protesters who caused the driver to feel frustration and fear. [6] Analysis Ground 1

[6] Analysis

[68]Did the Judge give effect to the purpose and scope of Articles 10 and 11? That is the first issue and question posed by Ground 1.[69]The substantive submissions before me took less than two hours. The skeleton arguments were straightforward. The hearing bundle was correctly limited to the judgment below, the pleadings and the documents generated by the appeal. The only evidence which I had was the video clips. I was therefore in a wholly different position to the trial judge who was much better placed to gauge the evidence before her.[70]Nevertheless, I accept Mr Clayton’s submission that I may reach my own understanding and conclusions about the events which are recorded on video, and I have done so. However, that material was the subject of contested oral evidence and submissions before the Judge on which she then made her detailed and comprehensive findings. None of those findings of fact are in issue by reason of the grounds of appeal for which permission was granted. Rather, the grounds of appeal seek to attack the analysis which was undertaken by the Judge when she came to consider the amended claim, and the associated proportionality arguments.[71]I also accept that an appellate court may reach its own and different opinion on the proportionality of a physical act such as use of force when the case turns wholly or very largely on video evidence. That was the result in Afriyie.[72]This is not a case in which I may properly divorce the video evidence from the rest of the case. I have reached my own understanding about the interactions between the Appellant and the Inspector immediately before and the time of the use of force. However, this court’s appellate function takes the rest of the Judge’s findings of fact as she found them. I have no reason to take an exceptional course and do otherwise. To the contrary, the Judge’s findings are amply and cogently supported by her observations on the evidence and her reasons for finding those facts.[73]During the hearing, I raised the Safe Access Zones case with counsel and invited their submissions on the points at 50 above. Accordingly, I have undertaken the proportionality assessment afresh, based on the video evidence and the Judge’s findings.[74]This is a protest case in which there was a long and settled history. The protest against the transportation and export of live animals for export was long standing. The pattern of protest was so well established that two documents had been generated by Kent Police which set out the parameters of how it would be policed. I received no submissions on those policies. They indicate low risks of disruption or disorder. They record that there has been a high level of understanding as between the three main actors: those protesting, the Police, and the lorry drivers.[75]These arrangements struck a balance between the competing objectives, interests and rights of the protesters, and the animal transporters. Sit-down protest was acknowledged as an element of the assembly and the expression of opinion. Officers were to show flexibility and use discretion in respect of minor breaches of the law, and they did so. It was not suggested to me that anybody objected to these arrangements.[76]But what happened on 26th April 2019 was not consistent with the history of the live animal protest at the Port. A lorry which contained sheep was deliberately disabled from moving by interference with its brakes. That was, in my judgement, a serious step which was not isolated from the related activity of the protesters around the lorry. This was not a situation in which a single protester took action alone, and the remainder of the protesters stayed on the sidelines. Rather, the video makes clear that many protesters surrounded the lorry and stood in front of it. The evidence was, and the Judge found, that the lorry driver had to be ‘bubbled’ by police in order for him to inspect and to rectify the air brakes on the lorry and then return to his cab. There was an aggressive and angry mood. The language which was directed towards the lorry driver was highly offensive to anyone who understood it. If the driver did not know the vocabulary because English was not his first language, he would still have understood what was meant, generally.[77]Once the driver returned to the cab and the lorry started to crawl forward, the situation was evidently dangerous because protesters remained in the immediate vicinity, including in front of, a large moving lorry. A flat-fronted cab does not provide visibility for the driver to see what is immediately forward of the vehicle. There was an obvious hazard which could result in injury. Indeed, there was such an injury to a police officer whose foot was caught by the moving lorry. That officer would not have been in such a position if it were not for the situation which had been generated.[78]Mr Ley-Morgan submitted that by this stage the Police had ceased to deal with a peaceful assembly within the meaning of Article 11 ECHR. The rights to express views were not being exercised within the duties and responsibilities with which Article 10 ECHR are qualified. In particular, the freedom of expression is qualified by the need to prevent disorder and to protect the rights of others.[79]On these issues, the Judge concluded that there was still an assembly within the meaning of Article 11, but that the Appellant was not using Article 10 rights because she was intervening in the Inspector’s attempt to usher the grey-haired lady from the path of the moving lorry (see paragraph 67 above).[80]I would not interfere with the Judge’s analysis and reasons in this regard. It shows that the Judge was giving careful and precise attention to the aspects of the right to protest which flow from these two articles of the ECHR: see Cuadrilla Bowland Ltd, above. Contrary to the first ground of appeal, the Judge was giving those rights the fundamental importance which correctly attaches to them.[81]The Appellant’s argument fails to engage with the reality of the situation and the circumstances which were presented to the Police in general and the Inspector in particular. It is not sufficient, as the Appellant does, to point to the rights to protest which derive from Articles 10 and 11 and to treat those rights as a trump card without grappling with the nature of the circumstances. The Judge did grapple with that balance correctly and I would dismiss Ground 1 for that reason.[82]Both in law and on the facts, this case is about Articles 10 and 11 as a coherent whole. It is a protest case, and this is an area of law and an area of public interest in which the key terms change in their scope and meaning with the perspective of the person using them. So, what is ‘protest’ for these purposes? As the Judge identified, events may occur which fall outside of the scope of rights, though the boundaries may be easier to identify in a particular case than to define.[83]The right to express views and opinions which are contentious, annoying or even offensive to another person or even a group of people is a right which is carefully protected. What is ‘annoying or offensive’ in this context? Is it annoying or offensive to condemn and berate a person who facilitates the transport of live animals for slaughter, or some other activity, because that is your passionately held view and thus not a protected right? No, those are views which Article 10 protects and if others find them to be annoying or offensive then that is freedom of expression which is worth having, as Sedley L.J. made vivid in Redmond-Bate.[84]Is it offensive to shout at a person that they are an ‘evil bastard’ or 'an ‘evil wanker’? That question answers itself and is not the fundamental freedom to which Article 10 applies. It is possible to communicate opposition or to promote an opinion without use of obviously abusive language. I note that the Policy Position at paragraph 5 (e) above is clear that language or comments intended to antagonise would not be tolerated. It is a misunderstanding of that right to take it to include a collateral right to be offensive in this way.[85]Similar considerations apply in respect of that aspect of protest which is peaceful assembly. The freedom is in respect of peaceful assembly, rather than freedom to use any means to disrupt, inhibit or interfere. But again, those legal limits are to be treated flexibly: Cuadrilla Bowland Ltd. The Policy Decision is an example of how to strike that balance.[86]The Judge’s conclusion as to the extent to which Articles 10 and 11 remained engaged was one which was properly open to her. On her findings, she could equally have found that the assembly was not peaceful and the actions, language and behaviour were, in the terms of Ezelin, ‘reprehensible’.[87]In my judgement, the Inspector’s actions were proportionate in that: i) the delay and disorder had been created by interference with the brakes of the lorry; ii) there was a right and a need for the lorry and its live cargo to make progress at the Port; iii) it was a rational purpose to enable the lorry to make progress after it had been deliberately stopped for half an hour; iv) the attitude, language, demeanour and actions of the Appellant will have provoked his defensive action; v) he was justified in pushing the Appellant away quickly, using a technique in which he had been trained.[88]Mr Clayton submitted that other and less intrusive means could have been used including ‘a freeze on the status quo’. I do not accept that submission. It does not deal with the facts that the lorry driver had started to move his vehicle, that he was entitled to do so and that there was a need to resolve the situation which protesters had brought about. This submission also misses out the asymmetric position into which the protesters put the Police. The actions and behaviour were well outside the sensible terms of the Policy Decision, were prima facie unlawful, were dangerous and caused actual injury to an officer. On the other hand, the police were required to, and did, act with restraint and professionalism to facilitate the competing rights as to protest and as to a lawful activity, as the Judge found.[89]Ground 1 fails.

Ground 2

[90]Did the Judge conflate the principle of proportionality with reasonableness?[91]Mr Clayton did not press this ground orally. I deal with it on the basis of the skeleton arguments. There is no complaint, nor could there be, that the Judge failed to accurately rehearse the law as it was put to her. She faithfully records the relevant principles and cites key passages from the authorities which were provided to her.[92]The criticism of the judgment, the key part of which I have set out at paragraph 25 above, is that the Judge’s assessment of reasonableness included the assessment which was required to address the proportionality principle.[93]Given the authorities that had been provided to the Judge, her conclusion was to be expected. Bank Mellat addresses reasonableness and proportionality as overlapping (see paragraph 53 above). This is essentially what the Judge concluded. That is not to suggest that protection of fundamental rights is sufficiently or lawfully secured by a reasonableness review; it is not: Safe Access Zones at [32].[94]The same position is arrived at via Daly. Lord Steyn put the starting point as an overlap between the ‘traditional grounds’ and the proportionality assessment. Most cases would be decided in the same way whichever approach is adopted. Again, I consider that this is what the Judge was saying in her conclusions on the law, which were not intended to be a seminar paper.[95]In my judgment, the correct approach is to look at what the Judge actually did and ask whether she addressed the classic formulation of the test to be found in the advice of the Privy Council, delivered by Lord Clyde, in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80, set out at paragraph 51 above.[96]The Judge reached conclusions, which I have upheld under Ground 1, which established that the fundamental rights were engaged. She acknowledged the inference with those rights and carefully examined the build up towards, and the circumstances of, the use of force by the Inspector. She asked herself whether that was justified and proportionate, given the associated facts which she had found. In terms of the questions at 51 and 52 above, to the extent that there was an interference with Article 10 and 11 rights, it was prescribed by law, for the necessary and legitimate aim of enabling the exercise of other rights which were sufficiently important and rationally connected to what was done. There was a fair balance, and other means were not reasonably available.[97]I am unable to identify any flaw in that process of reasoning and Ground 2 fails.

[7] Conclusion

[98]The appeal is dismissed.