JESSICA LEIGH v THE COMMISSIONER OF POLICE OF THE METROPOLIS

Restrictions on public gatherings do not create an automatic criminal prohibition where the regulations make absence of a reasonable excuse an element of the offence. A protest may constitute a reasonable excuse through the lawful exercise of Convention rights, depending on the circumstances. Before exercising enforcement powers that interfere with Articles 10 and 11, the police must undertake a fact-specific proportionality assessment. That includes reasonable steps to inform themselves about current health risks, the importance and nature of the protest, its location, likely attendance, effects on others, and proposed precautions. Consistency requires application of those legal principles to each case; it does not justify treating all protests as invariably unlawful.

The claimants organised a proposed vigil on Clapham Common following the disappearance and murder of Sarah Everard. London was subject to Tier 4 Covid-19 restrictions, under which large public gatherings were prohibited and protest was not an express exception. The claimants alleged that six communications and decisions by the Metropolitan Police chilled their rights to freedom of expression and peaceful assembly under Articles 10 and 11 of the Convention.

The central questions were whether those decisions interfered with the Convention rights, whether they were prescribed by law, and whether relief had to be withheld under section 31(2A) of the Senior Courts Act 1981.

1. Interference. The six decisions, comprising statements at meetings, two pre-action responses and a press statement, each had a deterrent or chilling effect on the claimants’ Articles 10 and 11 rights and materially contributed to the cancellation of the vigil.
2. Legal framework. A person contravening the Tier 4 restrictions is not automatically guilty of an offence. Under Regulation 10, absence of reasonable excuse is an ingredient which the prosecution must prove. A lawful exercise of Convention rights may supply that excuse, following the fact-specific proportionality approach in DPP v Ziegler and Dolan. The omission of an express protest exception in Tier 4 was a legislative steer towards giving greater weight to public health, but did not remove the need for individual assessment.
3. Police duty. No enforcement decision could lawfully be made without some assessment of health risk and proportionality. The police had to take reasonable steps to inform themselves about relevant considerations under the Tameside duty. They could not treat the health risk as fixed by the Regulations, disregard the importance of the cause, or rely on consistency as a reason to apply a blanket approach.
4. Application. The first four decisions treated the proposed vigil as inevitably unlawful or criminal and failed to engage with reasonable excuse and the relevant proportionality factors. After the interim judgment clarified the law, the final two decisions still failed to conduct a tailored assessment or engage properly with proposed precautions. All six decisions were therefore unlawful.
5. Relief. The court granted declaratory relief in appropriate terms and awarded no damages. Relief was not barred by section 31(2A): it was not highly likely that the outcome would have been substantially the same had lawful decisions been made.

The judgment records an earlier interim judgment by Holgate J on 12 March 2021, which clarified that the Regulations could not be treated as imposing a blanket prohibition on protest and that a fact-specific proportionality assessment was required.