Leigh & Ors v Commissioner of The Police of The Metropolis & Anor

Coronavirus gathering restrictions must be read and applied compatibly with Articles 10 and 11. The expression “without reasonable excuse” in Regulation 10(1) is the statutory mechanism giving effect to those rights. Whether a gathering or protest is protected depends on the particular facts and requires an assessment of the rights engaged, interference, legitimate aim, necessity and proportionality. The Regulations do not create a blanket prohibition on protest, but compatibility does not mean that every protest conducted reasonably is lawful. A protest may still be prohibited after the statutory restrictions and Convention rights are considered. Interim declarations should not be framed in terms that oversimplify or predetermine that analysis.

The claimants sought urgent interim declarations concerning a proposed vigil on Clapham Common. They contended that the police had treated the coronavirus regulations as imposing a blanket prohibition on protests and that the regulations had to be applied compatibly with Articles 10 and 11.

The application concerned the legal framework, rather than a challenge to any concluded police decision about the vigil or an injunction regulating police action at the event. The court considered the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, particularly Tier 4 restrictions in Schedule 3A, alongside the reasoning in R (on the application of Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 and DPP v Ziegler [2020] QB 253.

1. Interim relief refused. The court declined all the proposed interim declarations.
2. The reasoning in R (on the application of Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 applied to Regulation 10(1) of the 2020 Regulations. The words “without reasonable excuse” give effect to Articles 10 and 11. Whether a person has a reasonable excuse depends on the particular facts of the alleged breach.
3. The approach identified in DPP v Ziegler [2020] QB 253 also applies. The court must consider whether Articles 10 or 11 are engaged, whether enforcement would interfere with those rights, whether the Regulations pursue a legitimate aim, whether enforcement is necessary to achieve that aim, and the resulting proportionality assessment. Protection of public health is the relevant aim.
4. The Regulations are capable of applying to protests and demonstrations. They do not amount to a blanket prohibition, because the statutory scheme must be read compatibly with Articles 10 and 11. Equally, compatibility does not establish that every protest conducted in a reasonable manner has a reasonable excuse. In an individual case, lawful application of the Regulations may result in the protest not being permitted to proceed.
5. A declaration that Schedule 3A was subject to the right to protest was unnecessary because the law had already been clearly stated in Dolan and Ziegler. A proposed declaration that reasonable conduct automatically constituted a reasonable excuse was inaccurate and potentially misleading. The court also declined to declare that the Metropolitan Police had an unlawful blanket policy, since the issue had been raised at short notice and the material before the court did not establish the existence or legal effect of such a policy.
6. The legality of the proposed vigil and any police decision concerning it were not before the court. No suitable decision had been identified for judicial review. The interim relief sought was therefore refused.