Holmes v Merseyside Police [2018] EWHC 1026 (QB)

“LABOUR PARTY CONFERENCE NOTICE TO MERSEYSIDE POLICE 1. Notice is hereby given to the Merseyside Police for and on behalf of Homes and Communities Agency (HCA) Landowner hereafter known as “The Company” in connection with the holding of the Labour Party Conference at the Arena & Conference Centre at Liverpool (ACCL) on 25 – 29 September 2011, inclusive. 2. The Company is the owner of the land shown delineated blue/green on the attached plan. 3. The Company allows access onto the said land by persons for the purpose of access to premises and facilities situated on the land and for quiet enjoyment and would not give express or implied consent for any persons to enter the land for non-peaceful purposes and in particular in order to conduct any protest or demonstration. Consequently, The Company considers that any persons who are on the land, and who are conducting any protest or demonstration, to be trespassing and in particular, if those persons act in any intimidating manner, or cause any obstruction, or intend or attempt to disrupt any peaceful or lawful activity of others on the land. Signed J A Sloan (for and on behalf of The Company) (Kings Waterfront Estates Site Facilities Manager). Dated 18 September 2011.”

“there were no grounds on which the said officers could have reasonably suspected that the Claimant had committed the offences for which he was arrested or other lawful authority for his arrest and/or there were no grounds on which the relevant officers could have reasonably have believed his arrest was necessary for one of the reasons set out in Section 24 (5) of the Police and Criminal Evidence Act 1984.” 19. Although the principal cause of action is for false arrest, aggravated damages are claimed by reference to the interference with the Claimant’s right protected under Article 10 and Article 11 ECHR. In response, the Defendant asserts that the arrests were lawful because PC Mackey had reasonable grounds to suspect and did so suspect that the offence of obstructing a constable in the execution of his duty had been committed by the Claimant. Similarly the Defendant pleads reasonable suspicion of breach of the peace and aggravated trespass. It is pleaded: “7 c) iv) in each case PC Mackey had reasonable grounds to believe and did so believe that the Claimant’s arrest was necessary: - (1) For the prompt and effective investigation of the offences or the conduct of the Claimant and (2) To prevent the Claimant from committing an offence against public decency namely shouting so loudly that he was spitting involuntarily and causing alarm because members of the public going about their normal business could not reasonably be expected to avoid the Claimant.”

“Is it now your case that if your initial removal on 26 September 2011 was in breach of your rights under Article 10 of the European Convention on Human Rights that everything that followed was unlawful but if your initial removal on 26 September 2011 was not in breach of your rights under Article 10 then everything that followed was lawful?” 23. To this the Claimant responded: “Hypothetical question! It has always been my case that my initial removal was in breach of Article 10 ECHR, it was also criminal assault. I was removed by force I was not arrested.”

“I mostly agree with all the statements, they’re basically the same as my witness statement and Particulars of Claim. But Mackey, Ditchfield and McHugh are key witnesses, they actually saw what happened and attended Operation Escudo and can possibly shed light on the underlying evidence as set out in David Caleb’s letter to the IPCC (Independent Police Complaints Commission) dated 21 October 2013 but I can agree Kirsopp, Astbury and Murray.”

“Our client has no convictions for violence against persons or damage to property. Accordingly we’re limiting the appeal to the following: - 1) It has now been made palpably clear from the response contained in the letter of 12 September 2013 that our client was singled out and, frankly, discriminated against by being required to leave an area at the same time as a considerable number of others who were also protesting about different matters were permitted to remain. It is also quite clear that this arose from, as a result of Operation ‘Escudo’ and it is submitted that the basis for this, given our client’s background, was entirely misconceived.”

“This will be a matter for Civil Court in due course. However, it is again inappropriate that our client’s arrest was due to his aggressive behaviour when all he was doing was to draw to the attention of people that he was being dealt with in breach of Article 10 of the European Convention of Human Rights.” 1) It has now been made palpably clear from the response contained in the letter of 12 September 2013 that our client was singled out and, frankly, discriminated against by being required to leave an area at the same time as a considerable number of others who were also protesting about different matters were permitted to remain. It is also quite clear that this arose from, as a result of Operation ‘Escudo’ and it is submitted that the basis for this, given our client’s background, was entirely misconceived.”

“13 What the documents provided by the Claimant seemed to show was that the essence of his case was that his rights of freedom of expression under Article 10 of the European Convention on Human Rights had been breached and that everything stemmed from that. It appeared, therefore, that there was a single question for determination, that being whether the Claimant’s Article 10 rights had been breached. The purpose of the questions was to confirm this and to elicit from the Claimant exactly how he was putting his claim. 14 The answers seemed to confirm that the Claimant’s case is that his initial removal was in breach of Article 10 and that all flows from that fact. … 15 The answers seem to accept that there was an area for demonstrations of which the Claimant was aware. But he considered the areas unsuitable for his purposes. He does not accept that the private proprietors of the land could have prevented him from protesting there as he wanted to. He states that the area has public access. 16 The evidence makes it clear that the land was private land and that the landowners had excluded from their land those who wished to protest. … 17 The fact that the Claimant did not like the provisions that had been made for him, and others, to exercise their Article 10 rights while preserving the rights of the private landowner does not give him cause of action. He was able to exercise those rights but not in the way that he wanted to. Accordingly he has no claim arising out of a denial of his Article 10 rights.”

“9… He then indicated that he felt and believed and it was his case that he had been discriminated against during 2011, he had been singled out by the police as a potential troublemaker, so to speak, and they had targeted him completely wrongly, and effectively his arrest on all three occasions was part of a discriminatory plot against him. I suggested to Mr Holmes that he was alleging in a common sense and a lay sort of way that he was a victim of a conspiracy to have him arrested and to have him detained and to prevent him exercising his ordinary rights. He indicated and clearly and firmly indicated to me that such was his case, and I record that later during the hearing Mr Wells had a note to that effect and showed it to the Claimant in which the claimant, Mr Holmes, agreed that such was in fact at the heart and the essence of his claim. 10. He also indicated that the fact of this plot could be seen because there had been police planning in relation to the Labour Party conference and that planning known as Operation Escudo included him as a target, so to speak. He then agreed with me that contention and that basis of putting the case of him as the victim of a conspiracy to target him and to discriminate against him was not set out in his Particulars of Claim. As I say, he accepted that observation but indicated that such conspiracy only emerged when witness statements had been later disclosed during the course of the present action, and particularly when a witness statement from Assistant Chief Constable Ahmet had been disclosed by the Defendant.”

“12. I asked Mr Holmes to give me more specific details as regards each of the essential points made above. As regards his allegation that the original arrest was wrongful, he argues that Article 10 of the European Convention on Human Rights grants the right of freedom of expression (which I accept) and he submits that includes a right to protest and to express and hold a wide range of opinions without fear or favour. He complained that the designated protesting area (for want of a better phrase), the area where those who wished to go and demonstrate in any form could go, was not fit for purpose because it was an area that could be avoided by those entering the conference centre. He also drew to my attention to a case reported in the Guardian newspaper, which concerned a homosexual couple who were refused admission to a hotel because they were in fact gay. Thus he contends that the use of this particular designated protest area infringed Article 10, whereby his subsequent arrest for wanting to protest somewhere else was unlawful because in fact it constituted an infringement of his Article 10 rights.”

“6. First, the defendant, through his counsel, Mr Wells, has put certain questions to the claimant to try and ascertain precisely how he, the claimant, puts his case. I have read those questions and I have read the answers, and the fundamental interpretation and the obvious reading of the answers is that the real gravamen of the claimant’s case is that his original arrest was in breach of Article 10. His original arrest was wrongful because he was not being permitted to exercise his rights to protest, demonstrate, lobby, and that was because the designated lobbying area failed to comply with Article 10. But most importantly, he indicates that in essence everything flows from that original arrest and seems to substantially limit the extent to which the subsequent matters are pertinent.”

“Where however the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights.”

“21. … In the circumstances, therefore, where a proper area had been set aside for such activity and the police sought to move any demonstrator or protestor to that area, if that protester then sought to return to the private property to continue his or her protest, such would in my judgment constitute a breach of sections 68 and 69 of the Criminal Justice and Public Order Act 1994, and the police would be entitled to arrest. That is what happened in this case. It seems to me and in my judgment Appleby is wholly determinative of this matter.”

“Before I conclude this judgment, I go back to something I mentioned quite early on in the judgment, and that relates to how the claimant, Mr Holmes, fundamentally seeks to put this case. Although he resiled or appeared to resile from some points when he first made submissions he quite clearly accepted, as I have already indicated, that he sought to argue that he was the subject of a conspiracy in which he was being discriminated against because he was being targeted by the police. That is something that is not pleaded, and when Mr Holmes seeks to argue that it is not pleaded because he was not aware of that contention until the statement of Assistant Chief Constable Ahmet, that contention is, with the greatest respect to Mr Holmes, untrue. The first paragraph in that letter of October 21 2013 predates his Particulars of Claim by two years, and that epitomises the argument that he is essentially seeking to put forward.”

“Thus the Claimant was unlawfully removed from his place of demonstration. Therefore the actions of the police amounted to an assault/battery, they had no right to prevent his return and therefore no basis to arrest him.”

“The “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 (1) (c). The court agrees with the Commission and the government that having a ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as reasonable will however depend on the all the circumstances.”

“It is part of the obligations and duties of a police constable to take all steps which reasonably appear to him to be necessary for preventing crime”

“That concession appears to us to be well founded as otherwise the officer would have an unfettered discretion as to how to act. Mr Ratliff urged that the officer in giving a direction to the appellant to move in the belief that the appellant was obstructing lawful passage along the highway was taking steps which reasonably appeared to her to be necessary for preventing crime. Accordingly what she did was lawful and it was a direction in the execution of her duty. The fact that she had formed the view that the obstruction was taking place on public land rather than private land did not affect the position. In addition, the fact that the officer had given the wrong reason for her direction did not mean that the officer was no longer acting in the execution of her duty.”

“26. In order for the offence of obstruction to be committed, therefore, the officer must be engaging in a course of conduct designed to further a proper policing purpose of the kind described by Lord Parker CJ in Rice v Connolly. The officer must be acting in good faith attempting to achieve that purpose. The conduct must be lawful. Where it involves the use of force for the prevention of crime or the making of an arrest the use of force will be lawful only if it is reasonable.”

“It was sufficient for the officer to have taken steps which reasonably appeared to her to be necessary for preventing crime.”