The Mayor of London (Greater London Authority) v Haw & Ors [2011] EWHC 585 (QB)

[2011] EWHC 585 (QB)Case No TLQ/10/0977
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/03/2011
Before
MR JUSTICE WYN WILLIAMS
Between
THE MAYOR OF LONDONClaimantBRIAN HAW (1) BARBARA TUCKER (2) and CHARITY SWEET (3)Defendants
David Forsdick (instructed by Eversheds) for ClaimantMartin Westgate QC (instructed by Birnberg Pierce & Partners) for First DefendantThe Second Defendant appeared in person for in person for The Third Defendant did not appear and was not representedHearing Hearing date: 28 February 2011
Judgment

The relevant background and facts which are undisputed

[1]In or about June 2001 the First Defendant began a protest on a pavement on the east side of Parliament Square Gardens (“PSG”). He did so in order to register his disapproval of the policy adopted by the government of the day towards the régime in Iraq and the effect of that policy upon Iraqi citizens. The protest was in the nature of a vigil; the First Defendant remained on the pavement continuously, leaving only to attend to such things as going to the toilet. From the outset he slept on some kind of bed which was positioned on the pavement.[2]The pavement is part of a highway for which Westminster City Council is the highway authority. In 2002 the Council brought proceedings against the First Defendant in which it sought an injunction to restrain him from obstructing the pavement. The claim was unsuccessful – see the judgment of Gray J in Westminster City Council v Haw[2002] EWHC 2071 QB.[3]At the time of the hearing before Gray J the undisputed facts were that the First Defendant had maintained his vigil continuously between June 2001 and October 2002. Throughout this period he had slept on some kind of bed which was positioned on the pavement. The bed had encroached into the width of the pavement by approximately two feet. The Defendant had also displayed placards; the position of the placards was not static and some placards would, from time to time, be placed upon the grass which formed part of PSG. It is not clear from the judgment whether or not the First Defendant had pitched a tent on the pavement at any material time but that seems very probable given that the protest had been conducted throughout the winter of 2001/2002.[4]The First Defendant has maintained his protest either upon the pavement adjoining PSG or on PSG itself since 2002 to the present time. Over time the purpose of the protest has evolved; it has been described most recently by those acting for the First Defendant as a vigil to highlight the illegality and brutality of war.[5]In July 2005 Part 4 of the Serious Organised Crime and Police Act 2005 came into force. Section 138 of the Act permitted the Secretary of State to specify a designated area in and around Parliament Square. Section 132 made it a criminal offence for any person to organise or participate in a demonstration in or on a public place within the designated area unless authorisation for the demonstration had been given in accordance with section 134(2). The person entrusted to give such an authorisation was the Metropolitan Police Commissioner. If he decided to grant an authorisation he was entitled to impose conditions.[6]At some point which is not particularised in the evidence the First Defendant must have applied to the Commissioner for authorisation for his protest. Authorisation was given which was subject to conditions. Litigation ensued about those conditions which was resolved in favour of the First Defendant. In consequence in about 2007 the authorisation of the First Defendant’s demonstration was made subject to a new set of conditions. So far as relevant they were as follows:- “1. The area of the site associated with your demonstration will not exceed 3 metres in width, 3 metres in height and 1 metre in depth. All articles associated with the demonstration must at all times be contained within these dimensions. This size condition only applies to the articles associated with your demonstration and not to persons participating in it, or to any banner or placard carried or held aloft by those or other persons. 2. If the numbers taking part in your demonstration are to exceed 20 in total, including yourself, you must, where reasonably practicable, give 6 clear days’ notice of this fact to the operations officer at Charing Cross Police Station. Where it is not reasonably practicable to give 6 clear days’ notice, then give notice as soon as it is, and in any event not less than 24 hours before numbers are to increase above 20. If requested by a police officer in uniform, you must confirm whether persons present are part of your demonstration or not.” The documents setting out those conditions made it clear that nothing in the authorisation granted under the 2005 Act authorised “any breach of local byelaws as determined by Westminster City Council or the Greater London Authority.”[7]As from about September 2009 and at various times before that the First Defendant has positioned one tent at least and probably more upon PSG. The photographic evidence produced at the hearing before me demonstrates that there are currently a total of 5 tents or tent-like structures on the grass of PSG and that there is also what appears to be a tarpaulin cover straddling part of the pavement and a section of the grass. It is probable that the First and Second Defendant occupy one tent each and that the remainder are under their control; one or more of the tents is used from time to time by persons who wish to join in their protest. The photographic evidence also shows 2 tents on the pavement almost immediately in front of the tents on PSG. These tents probably belong to the First Defendant.[8]The Second Defendant alleges that she joined the First Defendant’s protest in December 2005. There is no suggestion in the evidence before me that this contention is incorrect and this judgment proceeds on that basis. Since joining the protest the Second Defendant has also maintained it day in day out. The strong likelihood is that she has protested in much the same way and for essentially the same reasons as the First Defendant.[9]These proceedings were commenced by a claim form issued 26 May 2010. The claim form named three specific Defendants, the First and Second Defendant and a woman called Rebecca Hall; “persons unknown” were also named as Defendants. Shortly thereafter the proceedings were amended so that a total of 19 persons were named as Defendants and the persons unknown were defined to mean “persons entering or remaining without the consent of the Greater London Authority of the Mayor of London at land known as Parliament Square Gardens in connection with the democracy village protest.” In the proceedings the Claimant sought an order for possession of PSG against all Defendants. He also sought mandatory and restraining injunctions; the mandatory injunction required named Defendants (including the First and Second Defendant) to dismantle and remove from PSG all tents and other structures erected thereon; the restraining injunction prevented the Defendants from returning to PSG with any such tents or structures.[10]Following a trial lasting many days Griffith Williams J granted an order for possession of PSG (as defined on a plan attached to his order) against all Defendants save for two. Further, the judge granted injunctions against the First and Second Defendant compelling them to dismantle and remove from a defined area of PSG all tents and other structures and restraining them from bringing on to PSG any tent or similar structure except in accordance with any permission granted by or on behalf of the Claimant.[11]The First and Second Defendant appealed to the Court of Appeal. Other Defendants also appealed. Nearly all of the Defendants were unsuccessful; however the appeals of the First and Second Defendant and that of one other woman succeeded.[12]The Court of Appeal reached a number of conclusions. Those which are most pertinent to the issue before me are as follows. First, the Claimant had the right to claim possession against any person occupying PSG without his consent. Second, he had an obligation to enforce that right. Third, at all material times, the First and Second Defendant were trespassers on PSG; they had no right to be there. Fourth, their only possible defence to the claims brought by the Claimant was that the grant of the possession order and the grant of the injunction were disproportionate interferences with their rights under Articles 10 and 11 ECHR. Fifth, Griffith Williams J did not make any findings of fact as to the effect of making an order for possession or granting an injunction against the First and Second Defendant upon their ability to maintain their demonstration or on their rights under Articles 10 and 11. Accordingly, sixth, and “with considerable hesitation”, the court concluded that the question of whether it was proportionate to make an order for possession and to grant an injunction against the First and Second Defendant should be remitted for reconsideration by the High Court.[13]In due course an order remitting the issue of the proportionality of making the orders was promulgated. As is clear, therefore, the issue before me is strictly confined; the issue for my determination is whether or not it is proportionate to make a possession order or grant an injunction against the First and Second Defendant.[14]The First Defendant was not present at the hearing. He has lung cancer and he is currently undergoing treatment. His witness statements, prepared for the hearing before Griffith Williams J, stood as his evidence before me. He had given oral evidence at that trial; some of that evidence is recorded in the judgment of Griffith Williams J. The Second Defendant gave evidence on oath. The Claimant relied upon the written and oral evidence of Mr. Simon Grinter, a senior employee of Greater London Authority.[15]Paragraph 148 of the judgment of Griffith Williams J is in the following terms:- “In the case of the Second Defendant (Mr Haw) I have concluded that he has displayed such intransigence in the face of the clearest evidence that the Claimant has not agreed to his occupation of any part of the grassed area, that the injunction is necessary. The history of some of the proceedings taken against him over the years, lends support for that conclusion. But I have reached this conclusion, not without considerable hesitation, because I am concerned about the evidence of his health and I cannot ignore that he has been allowed to demonstrate on the pavement area for so many years and so it may be arguable that the use by him of a small part of the grassy area for a personal tent will not prejudice the rights of others. As the terms of the injunction make it clear that he can continue to use a tent or similar structure provided he has the permission of the Mayor, I would expect the Mayor not to enforce the injunction against him until his application for permission has been considered…..”[16]On 30 June 2010 the First Defendant's solicitors wrote to Mr Grinter seeking permission for the retention of two tents on PSG. One tent was for the First Defendant; the second tent was for use by the Second Defendant. A pro forma application form was completed which made it clear that the First Defendant wished to remain on PSG for an “ongoing round the clock demonstration” which would be “24 hours 7 days a week.” The time of departure from PSG was described as “not applicable” and the purpose of the demonstration was described as “Ongoing Peace Campaign: a constant vigil to highlight the illegality and brutality of war.” The letter from the First Defendant's solicitors contained detailed reasons in support of the application. They were a) the fact that the First Defendant was disabled; to require him to sleep on the pavement instead of the grass in such circumstances would be harsh and unreasonable and in breach of statutory duties under s 19(3), 21 and 21(B) of the Disability Discrimination Act 1995; b) the First Defendant had been subject to violent attacks by members of the public when sleeping on the pavement; there were “far fewer such attacks” when he was sleeping on the grass; c) sleeping on the pavement exposed the First Defendant to much more severe traffic noise and fumes than sleeping on the grass as well as an enhanced risk of injury by a vehicle mounting the pavement or shedding its load; d) the effect of preventing the First and Second Defendants from using the grass for their tents might well be to end the “round-the-clock” demonstration; e) there is considerable popular support for the First Defendant's continuing demonstration; to take steps that might effectively terminate his demonstration like preventing him from continuing to pitch the two tents would be widely seen as heavy-handed and possibly partisan.[17]Mr Grinter replied on 7 July 2010. He replied on behalf of the Claimant although his reply makes it clear that the Claimant, personally, considered whether or not to grant the application which had been made. Under the heading “decision” the following appears:- “The Mayor has carefully considered your client’s request. Permission is refused for the following reasons:- 1. The Mayor recognises the provision of an encampment of indefinite duration and its location near to Parliament are considered by Mr Haw and Mrs Tucker to be intrinsic features of the protest; 2. However, notwithstanding the existing camp protest on the pavement the Mayor considers that PSG is an entirely unsuitable location for a prolonged camp protest;(1) the effect of the establishment of a camp on PSG from September 2009 has been to change the use of the green area from an open space for the use of the public to a small camp site;(2) PSG is open space available for public use, surrounded by iconic listed buildings and adjoining a World Heritage site is a patently unsuitable location for camping (particularly long term camping) whether as part of a protest or otherwise. The Mayor considers that camping here is incompatible with the function, lawful use and character of this important space and thereby causes substantial harm to the public interest;(3) the Mayor considers that the extension of camping from the pavement onto PSG significantly exacerbates the harm which is caused by the pavement protest;(4) it is inconceivable that planning permission or other regulatory approval would be permitted for a change of use to camping in this location and the Mayor considers that this further demonstrates the intrinsic unsuitability of the location for camping;(5) the public are effectively excluded from that (albeit small) area for use of it for their lawful activities indefinitely. The Mayor considers that this is a disbenefit of the proposed indefinite camp. He does not consider that he use his powers to permit one or two people to take possession indefinitely of a part of this important public space;(6) camping on this lawn necessarily and inevitably causes harm to it as shown in difference between the photographs in 2005/6 before Mr Haw started camping on PSG and the more recent position;(7) there is no suitable infrastructure in terms of sanitation or running water. Whilst this applies to the pavement too, the Mayor considers that it would be inappropriate to authorise a camping use without the necessary infrastructure in place because he considers that to do so is inconsistent with his statutory function and in particular with the management of PSG;(8) the Mayor does not consider that he should allow the pavement camp to become a precedent for long term camping on PSG because such a precedent would further seriously harm this highly important public space. Past evidence indicates that the presence of tents encourages others to believe it is permissible to camp on PSG;(9) the Mayor considers that any prolonged camping on PSG is inconsistent with the proper management of it. It is thus the Mayor’s position that, absent exceptional circumstances, he will not grant permission for any prolonged camping on PSG because to do so would be inconsistent with the proper management of PSG and would be inconsistent with the proper care, control, management and regulation of PSG with his duty to keep PSG in good order and condition. Having: (1) taken into account: (a) the circumstances relied on by Mr Haw and Mrs Tucker above and in particular Mr Haw’s medical condition and the risk of physical attack; and (b) the impacts of the pavement camp; and (2) directed himself that he should only refuse position if there is a pressing social need to do so the Mayor is satisfied that there will be such a serious adverse impact on PSG and the public interest by virtue of granting permission that there is a pressing social need to refuse permission. The Mayor does not consider that Haw’s and Mrs Tucker’s Articles 10 and 11 human rights will be inappropriately interfered with if they are not permitted to camp on PSG as they may continue to conduct their peace campaign on part of the Westminster pavement adjacent to PSG.”

Having:

[18]On 9 July 2010 the First Defendant's solicitors sought a reconsideration of the Claimant's decision. Under the heading “History of camping on PSG” the solicitors wrote:
“Mr Haw slept on PSG (both with and without a tent) on numerous occasions prior to 2006 without any steps being taken to remove him. Mr Haw and Mrs Tucker then had tents on PSG from 2006 to late 2007, a period of nearly a year. They were moved to the pavement in 2007 not because there was any general objection to them but for the specific reason that their tents were thought to be inappropriate during the ceremony for the inauguration of the statue of Nelson Mandela. On a rough calculation it appears to us that Brian Haw’s and Barbara Tucker’s tents had been on PSG for – at the very least – periods totalling some two years, and probably longer. This is also relevant to your concern that Mr Haw's presence, even with permission, may encourage others to come without permission. Despite Mr Haw's long presence, for most of the time that his tents have been on PSG this is not led other persons to attempt to pitch tents there.”
[19]The letter of 9 July 2010 ends with what are described as alternatives. I quote:- “If you are not prepared to reconsider your decision on the application of 30 June 2010 we would modify the application to ask you to permit it on either of the following bases:(1) We note your concern about the grass. This has never been expressed previously in relation to Mr Haw. However in order to meet this concern Mr Haw will be prepared to move the tents at such intervals as are reasonably necessary to ensure that there is no damage to the grass. There would then also be no area – even as small as the area of a tent – from which any part of the public is indefinitely excluded;(2) You consider that prolonged camping to be inconsistent with the proper management of PSG. While we do not accept this, in order to meet your concern Mr Haw would ask that an alternative for a permission limited to 6 months. This is a shorter period than either the period which had been on PSG since September 2009 or the period when they were on PSG in 2006/2007;(3) If you are absolutely not prepared to allow tents, we would ask that you permit Mr Haw's demonstration to intrude from the pavement on PSG for a distance of 3 feet from the stone kerb. This reflects the use which Mr Haw's made of this area adjacent to the pavement which Mr Haw always makes, as illustrated in the 2006 photograph, and must surely be regarded as reasonable. This use would however be prevented, without GLA permission, by the terms of the injunction which you have obtained.”[20]There was no immediate reply to this letter. However, on 11 August 2010 Mr Grinter replied in the following terms:- “As you were aware, your letter of 9 July 2010 was handed by you to our solicitors, Eversheds LLP, during the hearing of this court before the Court of Appeal on 9 July 2010. Subsequently, the Court of Appeal gave judgment on 16 July 2010. The Court of Appeal, as you are also aware, ordered that the issue as to whether it was proportionate to grant an order for possession and an injunction against your client, Mr Haw and Mrs Tucker should be remitted back to the High Court for re-determination on an expedited basis. The matter is due to be heard on the first open date after 24 September 2010 and in the interim (and until the matter is finally re-determined by the High Court) your client can retain his two tents on Parliament Square Gardens. As part of the directions agreed with you in the remitted action, your client is due to provide medical evidence to us by 27 August 2010. We are therefore of the view that it is only proper and sensible that we leave the re-consideration of our decision until after we have received the medical evidence and had a chance properly to review it and raise and receive answers to any questions in relation to it.”[21]Under cover of a letter dated 1 September 2010 the First Defendant's solicitors provided a medical report from a consultant orthopaedic surgeon, Mr SJS Lam. In that section of the report which describes the First Defendant's complaint Mr Lam records that the First Defendant suffers from constant pain in the bottom of his spine which is made worse when he is sitting, lying down or walking up steps. The First Defendant also told the doctor that it is necessary for him to use crutches when walking and that he could not walk long distances although he had walked from 126 Harley Street to 10 Harley Street on the day of his examination – a distance of about 500 yards.[22]Mr Lam’s examination of the First Defendant led him to conclude that he is suffering from multiple degenerative changes throughout his lower dorsal and upper lumbar spine and other abnormalities of the spine which are visible on x-ray examination. According to Mr Lam the First Defendant does not demonstrate any specific tenderness in any part of his spine but he nonetheless concludes “that anyone with a back like this would under normal circumstances and in the majority of cases find it more comfortable to lie on a softer surface rather than on concrete.”[23]On 7 September 2010 the Claimant's solicitors posed a number of questions for Mr Lam to answer. The answers were provided in a letter dated 10 September 2010. In summary Mr Lam confirms that there is no medical reason why the First Defendant could not sleep on a mattress or camp bed – irrespective of where the mattress or camp bed is placed and that, on a commonsense basis, sleeping on a camp bed or mattress would ease the back pain associated with lying down. Whether the First Defendant slept on a hard surface or a softer surface is immaterial to the condition of his back i.e. the sleeping on a harder rather than softer surface would not cause any deterioration in the First Defendant's condition. Mr Lam’s view, essentially, is that sleeping on a softer surface would likely be more comfortable for the First Defendant but there is no compelling medical reason why he could not sleep on a hard surface.[24]On 15 February 2011 Westminster City Council commenced proceedings against 11 named persons (including the First and Second Claimant) and unnamed persons who have “placed ……structures/items on the footpath in the central island of Parliament Square.” In the proceedings the Council allege that all the persons sued are obstructing the pavement adjoining PSG. The Council seeks injunctive relief essentially requiring the persons sued to remove all structures from the pavement.[25]At the time of the hearing before me there was no real indication of the speed with which these proceedings will be prosecuted. It seems very likely, however, that the proceedings will be contested. There was some evidence which suggests that the Claimant will assist Westminster City Council in the prosecution of its claim. The witness statements of Mr Grinter had been served by the Council as part of its case.

The law

[26]Article 10(1) ECHR provides that everyone has the right to freedom of expression. However, Article 10(2) provides that the exercise of this freedom “since it carries with it duties and responsibilities, may be subject to such ….restrictions as are prescribed by law and are necessary in a democratic society….for the protection of the reputation or rights of others.” Article 11(1) provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others. Article 11(2) provides that “no restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society….for the protection of the rights and freedom of others.”[27]Counsel agree upon the essential legal principles which are crucial to my decision. I take them, virtually verbatim, from paragraphs 19 to 21 of the skeleton argument presented on behalf of the First Defendant by Mr Westgate QC.[28]Freedom of speech, particularly political speech is one of the essential foundations of a democratic society and any restrictions must be closely scrutinised (see e.g. Handyside v UK[1976] 1 EHRR 737 at para 49 and R (Laporte) v CC Gloucestershire)[2007] 2AC 105 at paras 36 and 37). Similar principles apply to Article 11.[29]The protection of Article 10 applies to the means of expression as well as to content (Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23). In some cases, but not all, restrictions on the mode of expression may be more easily justified but often the distinction is not a real one (ibid para 35).[30]The state may have positive duties to facilitate freedom of speech. This is linked to a recognition that areas open to the public should be available for accommodating freedom of expression (see Appleby v UK [2003] 37 EHRR 38).[31]In order for an interference to be justified:• It must be rationally connected to one of the legitimate aims specified in Articles 10(2) and 11(2).• The interference must meet a pressing social need and must be proportionate (see e.g. Handyside v UK above at paras 48 and 49). This must be “convincingly established”.• Action will not be proportionate unless it is the least intrusive means necessary to achieve the aim and even if it is, then it must still strike a fair balance between the needs of the community and the individual so as not to impose an excessive burden on the individual. See albeit in a different context De Freitus v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands & Housing [2007] [1999] 1AC 69, 80.• A decision whether or not interference is proportionate must be made on the facts of the individual case. It will not ordinarily be proportionate to apply a blanket policy, nor may threshold criteria be set that are so high that they prevent any proper balancing of the competing interests. Dixon v United Kingdom [2008] 46 EHRR 41 at para 82.[32]The decision whether or not the interference is proportionate is a matter for the court to assess. The court will give due weight to the balance that has been struck by the decision-maker (here the Mayor) but does not have to identify any error in approach before reaching a different decision. The justifications for deference of this kind are variously described as being that the decision-maker has particular expertise or for reasons of democratic accountability (see e.g. Belfast City Council v Miss BehavinLtd [2007] 1WLR 1420 at paras 37, 46). Deference must be applied with caution in a case like the present. It is in the nature of free speech that it may be unpopular and need the protection afforded by a direct judgment of the court.[33]It also seems to me that I must judge the issue of proportionality upon the facts as they exist now. I must also focus very sharply on the reasons put forward for curtailing the right of the First and Second Defendant to express their beliefs in public (see paragraph 43 of the judgment of Lord Neuberger MR inthe Court of Appeal).

Disputes of fact

[34]One of the factual issues in this case relates to the length of time over which the First Defendant has maintained his protest from any part of PSG and/or pitched a tent or tents on PSG. An investigation of that issue is, inevitably, hampered by the fact that the First Defendant was unable to give oral evidence.[35]The First Defendant’s witness statements are not very informative. He says in a witness statement dated 2 June 2010 that he has slept in a tent “on the grass of PSG over many years while conducting [his] demonstration.” In his statement of 15 June 2010 the First Defendant says that when his protest began on 2 June 2001 he slept on the rough ground on the edge of PSG for 2 weeks until removed but then he then returned to the grassed area “for the whole of the time [he had] been here.” In paragraph 71 of his judgment Griffith Williams J summarised the oral evidence given to him by the First Defendant on this issue.[36]In the letter of July 9 2010 referred to in paragraph 18 above, the First Defendant’s solicitor sets out the periods during which the Claimant has pitched a tent on PSG and suggests that the total period of time when tents have been so pitched is about 2 years and “probably longer”.[37]The Claimant has produced a certain amount of relevant documentation. On the basis of the documentation, Mr Forsdick, on behalf of the Claimant, invites me to reach the following conclusions. First, when the First Defendant's protest began in 2001 it was conducted exclusively from the pavement. There is no reference to the First Defendant sleeping or camping on PSG in the judgment of Gray J. Second, there is no reliable evidence of a change in that position until at least 2006. Third, although the First Defendant and others did move on to PSG in 2006/2007 and pitch tents this was brought to an end in October 2007. Fourth, there is no evidence of occupation of PSG by the First Defendant at any time between October 2007 and September 2009. Fifth, the First Defendant has maintained his protest from PSG since September 2009 to the present and pitched tents upon the grass although, of course, the First Defendant has not been present, personally, upon PSG since his illness was diagnosed and/or treatment began.[38]The witness statements of the Second Defendant do not touch upon the period in which either the First Defendant or she has maintained a protest from PSG. The Second Defendant's oral evidence did not relate to that issue and she was asked no questions about it by Mr Forsdick. It is common ground that she has been in occupation of PSG during the same periods as the First Defendant has occupied PSG (since December 2005) but there is no suggestion that her occupation of PSG has been more extensive than the First Defendant's occupation.[39]The probability is that the history of occupation by PSG is broadly as is suggested on behalf of the Claimant. There may have been occasions other than those conceded by the Claimant when the First and/or Second Defendant went on to parts of PSG but the probability is that the Defendant’s protest was maintained from PSG, mainly, for some months in 2006 and 2007 and after September 2009. It is certainly probable that it was in these periods that tents were pitched on PSG. I am fortified in that conclusion, of course, because that is what is said, essentially, in the letter of 9 July 2010 written by the First Defendant’s solicitor.[40]Much of the written evidence of the Second Defendant and the focus of her oral evidence concentrated upon one of the persons protesting under the banner of “Democracy Village”. The Second Defendant was adamant that the “Democracy Village” protest was instigated or orchestrated by a woman called Maria Gallestegui whom she maintains was or is an agent provocateur engaged by either the Claimant or the police or both to foment activities which would have the effect of discrediting the protest of the First and Second Defendant. There is no possibility that I can determine whether that is so upon the information before me. Certainly, I am not prepared to proceed on the basis that Maria Gallestegui was or is an agent provocateur simply upon the assertion of the Second Defendant even allowing for the fact that her assertion is supported in the later witness statements of the First Defendant. In reaching my conclusion about the proportionality of making the orders which are sought by the Claimant I ignore this part of the Defendants’ case.[41]Save in relation to those matters canvassed in paragraphs 34 to 39 above, the Claimant is content that such factual issues as are relevant to the issue for my determination and not expressly agreed should be resolved on the basis of the First Defendant’s evidence.

The rival submissions

[42]Mr Westgate QC submits that it is not a proportionate response to the First Defendant’s activities on PSG to make an order for possession against him or grant the injunctions sought. He makes that submission on two alternative bases; he says first that if the orders sought are granted there is a substantial risk that the First Defendant's protest conducted from the pavement will come to an end or at the very least the First Defendant will have to face an unreasonable choice between placing himself at risk and ending the protest; second he submits that even if the pavement protest continues unaffected by the orders sought they are still disproportionate because there is an insufficient justification for the interference with his rights under Articles 10 and 11 EHCR. No pressing social need can be demonstrated which would justify the interference.[43]Mr Westgate QC submits that the pavement protest will be put at risk or the First Defendant will face an unreasonable choice about whether or not to continue his protest because if the Claimant is forced to protest from the pavement alone he will be at increased risk of serious injury or even worse from motor vehicles travelling in Parliament Square and from members of the public who are antagonistic towards him. Even if this is not the case, Mr Westgate QC submits that the orders sought are disproportionate because the First Defendant has maintained a protest from PSG and pitched a tent or tents upon PSG for a very significant period of time and the Claimant simply cannot demonstrate the necessary justification for interfering with his rights under Articles 10 and 11. In particular the Claimant cannot demonstrate that the interference with the First Defendant's rights under Articles 10 and 11 can be justified by the need to protect the rights of others. In this context he points to the fact that the First Defendant occupies a very small part of PSG and even if the Second Defendant’s occupation is also taken into account as being part and parcel of his protest the reality is that a very small proportion of the whole of PSG is taken up with tents and other items. In those circumstances, submits Mr Westgate QC, the effect upon the rights of other members of the public is very small.[44]Mr Westgate QC submits that the weakness of the Claimant's case on proportionality is well demonstrated by Mr Grinter’s letter of 7 July 2010. Although that letter was written to provide reasons why the Claimant was not prepared to grant permission to the First Defendant to retain two tents upon PSG indefinitely it serves as a useful basis for judging whether it is proportionate to grant the order sought in these proceedings. The letter falls well short, submits, Mr. Westgate QC of provided a reasoned justification for the interference with the First Defendant’s rights under Article 10 and 11.[45]The Second Defendant also submits that the orders sought against her should not be granted since to make the orders would be a disproportionate response to her activities on PSG. Her main point on proportionality is that her activities do not cause any harm; further no pressing social need can be demonstrated for the making of the orders. Essentially, the Second Defendant takes the stance that her rights under Article 10 and 11 should trump the Claimant’s right to possession of PSG.[46]As against the First Defendant Mr Forsdick’s submissions proceed primarily on the basis that the orders sought by the Claimant have no impact on the pavement protest which he has maintained since 2001. As long ago as 2002 Gray J concluded that the Claimant's activities upon the pavement did not constitute an obstruction of the highway. Griffith Williams J approached the case against the First Defendant on the basis that his pavement protest was lawful (see his judgment at paragraphs 4 and 119) and that approach was not criticised in the Court of Appeal. On that basis, Mr Forsdick submits that there is no interference with the substance of the First Defendant's rights under Article 10 and Article 11. The First Defendant’s protest is authorised under the 2005 Act and he is able to maintain it effectively from the pavement. In consequence any interference with his convention rights is limited to prohibiting him from exercising his rights from a precise location.[47]However, Mr Forsdick also submits that the grant of the order sought is justified whether or not the pavement protest continues. The interference with the Defendants’ rights under Article 10 and Article 11 is justified. He submits that the reasons provided by the Claimant for refusing permission to retain tents on PSG (the letter of 7 July 2010) constitute sound reasons for concluding that the grant of a possession order and the injunctions sought would be proportionate.[48]Mr Forsdick also invites me to have at the forefront of my mind what he calls the core issue which led the Court of Appeal to remit the issue of proportionality. He submits that that core issue was the effect of Mr Haw's medical condition on the proportionality of the orders sought. On this matter, submits Mr Forsdick, the medical evidence is clear. There is no medical justification for the refusal of the orders sought.

Discussion

[49]Inevitably my starting point is the judgment of Lord Neuberger MR in the Court of Appeal – a judgment with which Arden LJ and Stanley Burnton LJ agreed. Paragraphs 68 and 69 of the judgment are in the following terms:- “68. With considerable hesitation, I have reached the conclusion that the question of whether it was proportionate to make an order for possession and to grant an injunction against Mr Haw should be remitted for re-consideration by the High Court. Although the case against him was weaker than that against the Democracy Village defendants, for the reasons already mentioned, it was still a strong case in the sense that he had no defence to the claims for possession or an injunction other than the argument based on Articles 10 and 11. In addition, in an important aspect, his argument based on those Articles is weaker than that of the other defendants: the orders are not intended to interfere with his desire to continue with his demonstration in Parliament Square. However, he argues that they would make it more difficult, even medically very difficult, for him to do so, because he will have to pitch his tent on the pavement. 69. I entertain very significant doubts whether Mr Haw would be able to persuade a judge that he should be able to maintain a tent on the grassed area of PSG, even if he establishes that, for medical or other reasons, his being prevented from doing so would render it significantly harder for him to maintain his demonstration on the pavement facing the Houses of Parliament. His right to express his views is not being challenged, and it is by no means clear that, if he had to sleep elsewhere, he would be precluded from maintaining his pitch where it is. Even if his ability to maintain his pitch is, albeit indirectly, under challenge, it might well be stretching his Article 10 rights too far to say that he should be entitled, particularly after having done so for so long, to maintain his demonstration in the precise location of his choice, by trespassing on adjoining public property. However, I think he is entitled to have his case decided on the basis of the medical and other evidence he wishes to put before the court, and to have a reasoned judgment on the issue.”[50]As is acknowledged by Mr Westgate QC, the medical evidence of Mr. Lam, of itself, does not assist the First Defendant's case that the making of the orders sought would be disproportionate. There is no medical reason why the First Defendant cannot sleep on the pavement if he wishes to maintain a round-the-clock presence in and around Parliament Square assuming as I must for these purposes that the he recovers sufficiently from the illness which has afflicted him since the autumn of last year so as to make it feasible for him to return to his full-time protest. He can sleep on some form of bed or mattress if he chooses to do so.[51]Apart from the medical evidence from Mr Lam no further evidence has been forthcoming on behalf of the First Defendant since the hearing before the Court of Appeal. Further, although the Second Defendant gave oral evidence before me she said nothing new except that she expressed a willingness to pay for any damage that might be caused to the grass of PSG at the end of her protest. However, I did not take that evidence from her as an acceptance that she would bring her protest to an end any time soon. Her case is that her Article 10 and 11 rights can be vindicated only if she is in a position to camp upon PSG and maintain her round-the-clock protest indefinitely. In these circumstances, the views of Lord Neuberger are an important guide upon whether it is proportionate to make the orders sought.[52]It is clear that Lord Neuberger MR considered that the First Defendant (and at least by implication the Second Defendant) would have an uphill task in persuading a court that it was disproportionate to make an order for possession and to grant the injunctions sought even on the basis that he was able to adduce helpful medical evidence. Obviously, therefore, the First Defendant's task is made that much more difficult in the absence of supporting medical evidence. Since the Second Defendant has never advanced any kind of medical reason why she should be permitted to camp indefinitely on PSG her position on proportionality can be no better, at the very least, than that of the First Defendant.[53]I do not accept that the Defendants would face a greater risk of harm should their protest be confined to the pavement. Obviously the pavement adjoins the highway whereas the Defendants’ chosen location on PSG is separated from the highway by the pavement. In my judgment, however, the prospect that a vehicle would mount the pavement sufficiently to cause harm to the Defendants but not stray from the highway sufficiently to harm them if they were upon their chosen location on PSG is remote. Further, any person minded to attack either the First Defendant or the Second Defendant is surely not deterred by having to walk, literally, a few steps from the pavement to their chosen location. I also reject the suggestion that the Defendants are likely to be adversely affected by traffic fumes and noise to a greater extent if they conduct their protest from the pavement as opposed to their chosen location upon PSG.[54]I understand why Mr Westgate QC submits that the First Defendant's occupation of PSG interferes with the rights of other members of the public to a very small extent. Many activities can take place on PSG completely unhindered by the Defendants’ protest. Further, the land occupied by the Defendants is a very small proportion of the grass covering PSG. That said, the land occupied is greater in area than that which is permitted by the relevant condition currently attached to the authorisation granted by the Commissioner of the Metropolitan Police to the First Defendant to demonstrate in Parliament Square. The reality is that the First Defendant has probably been in breach of his authorisation ever since his occupation of PSG restarted in 2009. While the Second Defendant is authorised to demonstrate in the sense that the First Defendant can be joined by up to 20 people at any one time that does not mean she has any right to join with him in occupying a larger area than he is permitted to occupy. In any event, of course, the authorisation from the Commissioner does not entitle either Defendant to pitch camp on PSG or to demonstrate from PSG without the consent of the Claimant – consent which successive Mayors have refused to give.[55]The Court of Appeal proceeded on the basis that the pavement protest was not the subject of challenge in these proceedings. That is still the case. Mr. Forsdick has made no submissions to me which could be taken as a challenge to the First Defendant’s right or for that matter the Second Defendant’s right to demonstrate from the pavement. All that said, it does not seem to me that I can determine this case without acknowledging the possibility that Westminster City Council may succeed in the claim which it has recently issued. The probability is that the proportionality of making orders against the Defendants in those proceedings will be a key issue. While the First Defendant was able to persuade Gray J that it was disproportionate or unreasonable to grant an injunction against him in 2002 it does not necessarily follow from that that he will be able to defend the new proceedings successfully. In these circumstances it does not seem to me to be right to proceed as if the proceedings brought by Westminster City Council do not exist. It seems to me that I must acknowledge the possibility that relief may be obtained by Westminster City Council which will interfere with the Defendants’ Convention rights albeit it is not possible to predict whether that will be the case or predict the extent of any relief granted.[56]I turn, therefore, to the stark issue – on all the known relevant facts and in the light of all the relevant considerations has the Claimant established that the Defendants’ activities (either individually or cumulatively) on PSG interfere with the rights of other members of the public and that the orders sought meet a pressing social need.[57]In my judgment, the Claimant has established that the Defendants’ activities taken either individually or cumulatively do constitute an interference with the rights of others and there is a pressing social need which justifies the making of the orders. I reach that conclusion essentially for the reasons which are set out in the letter of 7 July 2010 when the Claimant refused to grant the First Defendant permission for carrying on his protest indefinitely in its current form at PSG (which reasons were also articulated in the written and oral evidence of Mr Grinter). I use the word essentially in the preceding sentence because part of the Claimant’s reasoning in the letter of 7 July 2010 was that “...Mr Haw’s and Ms Tucker’s Articles 10 and 11 human rights will not be inappropriately interfered with if they are not permitted to camp on PSG as they may continue to conduct their peace campaign on part of the Westminster pavement adjacent to PSG.” While that may have been a reasonable assumption to make in July 2010 that is not a safe assumption now. In my judgment, however, even acknowledging the risk that orders will be made against the Defendants in the proceedings brought by Westminster City Council which will have the effect of curtailing the exercise of the Convention rights of the Defendants I am persuaded that the letter provides cogent reasons which justify the conclusion that the Claimant is entitled to relief in these proceedings.[58]It is not sensible for me to attempt to summarise the crucial part of the letter which is set out in full at paragraph 17 above. It is essential that the passage is read as a whole. However, I highlight the following aspects. First the Defendants seek to exercise their Convention rights indefinitely in a manner and at a location of their choosing; while I acknowledge that following the letter of 7 July the First Defendant sought permission for a demonstration for a fixed duration this case has proceeded on the basis that both Defendants claim to be entitled to exercise their Convention rights indefinitely upon PSG. Second, PSG is not a suitable location for prolonged camping; such camping is incompatible with the function, lawful use and character of PSG and it is also inconsistent with the proper management of the area as a whole. Third, members of the public have been and would be precluded from using the area occupied; the area in question is the area nearest to an important entrance to the Houses of Parliament. The Defendants ought not to be permitted to occupy this area of land indefinitely when they are trespassers notwithstanding the fact that significant numbers of people may support the aims and objects of their protest. Fourth, the Defendants have exercised their Convention rights from this location since September 2009 and for a significant period of time in 2006/2007. That, on any view, amounts to a very substantial period of time during which the Defendants have exercised their rights entirely as they would wish. Fifth, there is no reasonable possibility that the Defendants would be authorised to carry on their protest in the manner in which they have done so since 2009.[59]It is also the case, as I have said, that the Defendants’ protest is carried on in a manner which is inconsistent with one of the conditions attached to the authorisation granted to the First Defendant by the Commissioner of the Metropolitan Police. The area occupied by the tents and tent like structures under their combined control is greater than that which is permitted. The signs are the area of PSG under their joint occupation is extending as time goes by. This is a further factor which persuades me that it is proportionate to grant relief in this case.[60]Should I grant the orders sought by the Claimant or are there other orders available which would be less intrusive but still cure the mischief which the Claimant seeks to prevent? In my judgment there are not save that I am persuaded that it is not necessary that the order for possession and the injunctions granted should extend to the kerb area as identified in paragraph 40 of the Skeleton Argument of Mr. Westgate QC. I accept entirely that this area has been an integral part of the pavement protest and while that protest continues the Defendants should be free to use the kerb as part of that protest as has been the case for several years. In the event that Westminster City Council succeeds in its claim the Claimant can apply in these proceedings for an order in relation to the kerb area if it thinks it appropriate; the order in this case will contain a “permission to apply” provision. In the event that Westminster fails in its litigation but the Claimant nonetheless considers that some pressing social need would be met if orders were made preventing the Defendants from using the kerb area, again an application can be made under the “permission to apply provision.”[61]I should also record that Mr. Westgate QC made oral submissions about certain provisions of the Equality Act 2010. He submits that the First Defendant is a person who is under a disability within the meaning given to that word in the 2010 Act. That being so, submits Mr Westgate QC, the Claimant is under a duty to make reasonable adjustments under section 20 of the 2010 Act. The duty under section 20 comprises the following three requirements:- “(3) The first requirement is a requirement, when a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid”[62]Mr Westgate QC does not suggest that sub-sections (4) or (5) have any relevance to these proceedings. However, he submits that sub-section (3) is in play. In my judgment, however, that submission is not well founded. No provision, criterion or practice on the part of the Claimant has been identified which puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.[63]The skeleton argument presented on behalf of the First Defendant does not deal with the disability discrimination point at all. In my judgment the likely reason for that is that Mr Westgate QC accepts that there is no real basis for the assertion that the Claimant has unlawfully discriminated against the First Defendant by virtue of the provisions of the 2010 Act.[64]At the commencement of the hearing the Second Defendant made an application to me that I should strike out this claim on the basis that its continuation following the judgment of the Court of Appeal constitutes an abuse of process. I declined to do so and gave short reasons in support of my decision. In summary, my reasons for refusing the application are these. First, the issue of proportionality has been remitted to this court by the Court of Appeal. It is my obligation to determine that issue unless circumstances come to light which justify taking the view that the continuation of the proceedings amounts to an abuse. In short, no circumstances have come to light since the decision of the Court of Appeal which would make it permissible for me to say that the continuation of these proceedings amount to an abuse of process. The Second Defendant's application is predicated upon the basis that the Claimant has not disclosed “a single shred of evidence” that she has been “unreasonable”. As is apparent from this judgment I have concluded that the Claimant has adduced substantial evidence which justifies the conclusion that the making of orders in this case is proportionate.[65]To repeat, therefore, and subject to the point made in paragraph 60 above, I propose to grant relief to the Claimant substantially in the form that it is claimed. No doubt the final form of an appropriate order can be the subject of short submissions at the handing down of this judgment.[66]Finally I should record that these proceedings are also brought against a third defendant, Charity Sweet. She has taken no part in these proceedings, so far as I am aware, since the hearing in the Court of Appeal. She did not appear at the hearing before me. Presumably, however, the Claimant wishes to obtain relief against her. Again, I can deal with this short, discrete issue at the handing down of this judgment.

Cited in 1 later judgment