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

Articles 10 and 11 protect expressive assemblies and protests, including on public land. They do not ordinarily justify an indefinite and exclusive protest camp which trespasses, breaches domestic law, substantially obstructs a highway, and seriously interferes with the rights of others.

Proportionality requires a fact-sensitive balance. Relevant matters include the domestic-law breaches, the importance of the location, duration, extent of occupation, and interference with property, public and Convention rights. A court must not assess the merits of the protesters’ views, although their political character may be relevant with limited weight. A less intrusive order requires a specific and workable alternative.

The City sought possession and injunctive relief to remove the Occupy camp from St Paul’s Churchyard and to prevent tents being erected on adjoining land. The camp had occupied highway land owned by the City and land owned by the Church since October 2011.

Lindblom J granted possession, injunctions and declarations in favour of the City: [2012] EWHC 34 (QB). He held that the camp had no domestic-law defence, unreasonably obstructed the highway, breached planning control, and that the interference with Articles 10 and 11 was justified and proportionate.

The named defendants and other camp occupants sought permission to appeal. The central issue was whether the orders ending the camp, or their scope, unjustifiably interfered with rights of expression and assembly under the European Convention on Human Rights.

1. Permission to appeal was refused. Lindblom J was plainly entitled to grant possession, injunctions and declarations. None of the proposed grounds gave a reasonable prospect of showing that his proportionality assessment was wrong.

2. Articles 10 and 11 were engaged. The camp was a means of expressing, disseminating and debating political views, and Article 11 protects static public assemblies as well as processions. That conclusion did not decide the proportionality issue.

3. The court identified a fact-sensitive proportionality assessment for a protest camp. It includes the extent of domestic-law breach; the importance of the particular location; duration; the degree of occupation; and actual interference with the property, public and Convention rights of others. The court must not adjudicate upon the merits of the protest. The political character of the views may be considered, but it cannot override the other factors.

4. On the findings below, the camp had for about three months trespassed, substantially obstructed the highway, breached planning control, interfered with access to worship at the Cathedral, and caused public-health, nuisance and commercial effects. Its occupation was continuous, exclusive and likely to continue indefinitely. Those facts were materially different from the short or limited demonstrations in the Strasbourg authorities and from the periodic camp considered in Tabernacle v Secretary of State for Defence, [2009] EWCA Civ 23. They strongly justified the interference.

5. A court may in an appropriate case consider whether a less intrusive order is available. However, a defendant seeking such an alternative must advance a specific and workable arrangement that materially reduces the breaches of law and others’ rights while interfering less with Convention rights. No such proposal was made here.

The court also gave non-ratio guidance that comparable cases should ordinarily be capable of more expeditious determination, with proportionate case management of evidence about the protesters’ views.

• Court of Appeal (Civil Division): refused permission to appeal and left the orders of Lindblom J undisturbed: [2012] EWCA Civ 160.
• High Court of Justice: Lindblom J granted possession orders, injunctions and declarations requiring removal of the camp and restraining further tents on the relevant land: [2012] EWHC 34 (QB).