TOM BENNETT & Ors v DIRECTOR OF PUBLIC PROSECUTIONS

A condition imposed under section 14 of the Public Order Act 1986 must be interpreted objectively from its language and relevant context. Subjective understandings and directions concerning different assemblies do not determine its meaning. Where the statutory test for imposing a condition is satisfied, proportionality under articles 10 and 11 of the ECHR is established. A section 14 condition may direct an assembly to continue at another place outside the scene of the original assembly, provided the new location is a place where the assembly can reasonably continue and the condition is necessary and proportionate. A condition is void for uncertainty only where it has no sensible or ascertainable meaning or cannot be applied with certainty.

The appellants appealed by way of case stated against the Crown Court’s dismissal of their appeals against convictions for knowingly failing to comply with a condition imposed under sections 14(1) and 14(5) of the Public Order Act 1986. The condition required persons wishing to continue an Extinction Rebellion assembly on Waterloo Bridge to move to Marble Arch.

The Crown Court found that the condition was reasonably necessary and proportionate to prevent serious disruption, was sufficiently clear, did not prohibit future assemblies, and could lawfully require relocation outside the scene of the original assembly. The High Court considered those conclusions and the scope of section 14.

1. Appeal dismissed. Each question in the Case Stated was answered “No”. On a case stated appeal, the High Court was confined to the facts found below. Challenges to factual findings were limited to cases involving no supporting evidence or irrationality.
2. The Direction was to be construed objectively according to its language and context. The subjective interpretations of the appellants and the police officer were irrelevant. Directions concerning other assemblies elsewhere in London were not part of the context. The Direction clearly applied to those assembling on Waterloo Bridge and required them, if they wished to continue their assembly, to move to Marble Arch. It did not prohibit future assemblies.
3. The Crown Court’s proportionality conclusion was open to it on the accepted evidence. The senior officer had considered less intrusive options, including limiting the protest’s duration, reopening part of the bridge, moving it nearby and arresting protesters for obstruction. The stringent statutory test under section 14, once satisfied, established compliance with the ECHR proportionality standard: James v Director of Public Prosecutions [2016] 1 WLR 2118.
4. The Direction was not legally uncertain. A statutory condition is void for uncertainty only if it has no sensible or ascertainable meaning, or is incapable of certain application. Where possible, ambiguous wording should be given a reasonable and valid meaning: Percy v Hall [1997] QB 924 (CA). Cuadrilla Bowland Limited v Persons Unknown [2020] EWCA Civ 9; [2020] 4 WLR 29 did not support reliance on subjective understandings.
5. Section 14 permits conditions as to the place at which an assembly may be held or continue. The destination need not be within the same “scene” as the original assembly. Jones [2019] EWHC 2957 (Admin); [2020] 1 WLR 519 concerned the officer’s statutory relationship to the scene and did not impose such a limitation. The new place had to be one where the assembly could in fact and reasonably continue, having regard to the importance of protest in a prominent location. Marble Arch satisfied that requirement.

• High Court (Queen’s Bench Division), Divisional Court: dismissed the appeal by way of case stated and answered each question “No”, affirming the Crown Court’s conclusions.
• Crown Court at Southwark: on 30 April 2021, dismissed the appellants’ appeals against their Magistrates’ Court convictions.