The Mayor Commonalty and Citizens of London v Samede (St Paul's Churchyard Camp Representative) & Ors

Expression and assembly rights protect peaceful protest on public land, including its chosen manner and form. Whether removal of a protest camp is proportionate requires a fact-sensitive assessment. Relevant considerations include breaches of domestic law, the importance of the location, duration, occupation and interference with others’ rights. Continuous and exclusive occupation lasting months, accompanied by statutory breaches and substantial interference with public and religious rights, can justify removal. Courts must avoid judging the merits or popularity of protesters’ views. Their general political character may carry some weight. A proposed less intrusive order must be workable, substantially reduce unlawful interference and interfere less with protest rights. Courts need not devise arrangements where protesters supply no proposal meeting those requirements.

The City of London owned most of the highway land occupied by an encampment in St Paul’s Cathedral churchyard. The remaining occupied land belonged to the Church. The occupiers used the camp to express political and economic views, educate the public and promote debate. The City sought possession of its land and injunctions requiring removal of tents and preventing their erection on adjoining land. It relied on ownership, highway obstruction and breaches of planning control.

Following a five-day hearing, Lindblom J granted possession, injunctive relief and declarations in [2012] EWHC 34 (QB). He found that the interference with the occupiers’ Convention rights was necessary and proportionate. After he refused permission to appeal, representative defendant Tammy Samede and defendants George Barda and Daniel Ashman applied to the Court of Appeal. Paul Randle-Jolliffe and Stephen Moore were added as parties after making submissions. The applications challenged removal of the camp, the absence of less intrusive orders and, in Mr Moore’s case, alleged non-service of the claim form.

All applications for permission to appeal were refused. None of the criticisms, separately or together, offered a prospect of establishing that the judge’s decision was wrong. The possession orders, injunctions and declarations remained in place.

1. Articles 10 and 11 of the European Convention on Human Rights were engaged. The camp disseminated opinions through activities, publications and speeches. Its size and location contributed to that expression. The chosen manner and form of protest could matter, as illustrated by Tabernacle v Secretary of State for Defence. Whether the protesters could also invoke Article 9 was unnecessary to decide because it could add nothing material to their claims: [24]–[28].

2. Proportionality depended on the facts. Relevant factors included domestic illegality, the importance of the precise location, duration, the extent of occupation and actual interference with others’ property, public and Convention rights. The statutory enforcement framework was one of several relevant considerations. Courts must avoid adjudicating on the merits or popularity of the protest. The general character of political and economic expression could carry weight, but could neither override other considerations nor ordinarily carry particularly great weight: [32]; [39]–[41].

3. The camp had occupied the churchyard for months, obstructed passage and access to worship, breached planning control and caused public health and business problems. The substantial, continuing interference differed materially from the brief and cooperative demonstration in Sergey Kuznetsov v Russia and the intermittent, longstanding camp without interference with third-party rights in Tabernacle v Secretary of State for Defence. The orders permitted protest elsewhere. Consistently with Mayor of London (on behalf of the Greater London Authority) v Hall and others, there were powerful grounds for removal: [42]–[49].

4. A less intrusive arrangement had to be workable, avoid anything like the existing degree of statutory breaches and interference with others’ rights, and interfere less with the defendants’ Convention rights. No qualifying proposal was presented at either level. Whether a court must investigate alternatives of its own initiative was left open. Even assuming such a duty, it required no more than raising the issue with the defendants: [51]–[55].

5. Whether temporary sleeping facilities for formerly homeless people engaged Article 8 was also left open. Any such relatively weak rights could not reverse the balance. Reliance on surviving chapters of Magna Carta supplied no defence, and the challenge to the City’s standing failed: [30]–[31]; [50].

6. The disputed service issue did not justify permission for Mr Moore. He had seen the papers, understood the claims and had no reasonable prospect of successfully defending a rehearing. Future courts should scrutinise the facts closely while using case management powers to limit disproportionate evidence about protesters’ views. This judgment could be cited as authority despite refusing permission to appeal: [56]–[65].

• Court of Appeal (Civil Division): In [2012] EWCA Civ 160 , all five defendants’ applications for permission to appeal were refused. The High Court’s orders remained in place.
• High Court: Lindblom J delivered judgment on 18 January 2012 in [2012] EWHC 34 (QB) , following a five-day hearing. He subsequently granted possession, injunctions requiring removal of tents and preventing further tents on specified land, and declarations permitting removal. He refused permission to appeal.