Debbie Hicks, R (on the application of) v Westminster Magistrates' Court

A conviction for breaching an emergency prohibition on public gatherings may be compatible with Articles 10 and 11 ECHR even where the gathering is a protest. The statutory defence of reasonable excuse requires a fact-specific proportionality assessment. The fact that later regulations created conditional protest exceptions does not establish that an earlier, stricter prohibition was unlawful. In assessing proportionality, the court may consider the public-health conditions, the size and location of the gathering, the precautions taken, and the graduated enforcement regime, including directions and fixed penalty notices. Where police action was proportionate, a resulting conviction will ordinarily also be proportionate. A challenge to factual findings about means is not generally suitable for an appeal by case stated or judicial review where alternative statutory appeal routes exist.

The claimant attended a large protest in Hyde Park during the first Covid-19 lockdown. She was directed to leave under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and was issued a fixed penalty notice after refusing to do so. She did not pay and was convicted of contravening regulation 7. The magistrates’ court refused to state a case, certifying the application as frivolous.

On judicial review, the parties agreed that the court should determine whether the conviction or sentence disclosed an error of law. The central issues were the compatibility of the gathering prohibition with Articles 10 and 11 ECHR, the proportionality of the enforcement action and conviction, and the legality of the approach to sentencing based on the claimant’s means.

1. Claim dismissed. The court considered the compatibility of the Regulations before addressing the conviction and sentence.
2. The argument that regulation 7 was not sufficiently foreseeable because it prohibited gatherings subject only to a defence of reasonable excuse was rejected. The proportionality of an interference with Convention rights is inherently fact-specific and cannot be exhaustively defined in advance. The later introduction of conditional exceptions for protests reflected a different legislative judgment based on different evidence; it did not demonstrate that the earlier prohibition was unlawful. Dolan, relying on the Divisional Court’s reasoning in Ziegler, bound the court on the proportionality of the prohibition. The Supreme Court had affirmed the fact-specific approach in Ziegler. The interference was prescribed by law, including because the Regulations provided graduated enforcement powers before conviction.
3. The judge’s proportionality assessment was correct in substance. Relevant general factors included the early stage of the pandemic, the absence of a vaccine, the serious risk to hospitals, the size and central London location of the protest, likely public-transport travel, and the absence of precautions. The absence of masks was not relied upon because there was no legal requirement or consistent public-health guidance requiring them at the time. Relevant case-specific factors included the claimant’s opportunity to protest before intervention, the initial direction to leave, and the subsequent availability of a modest fixed penalty notice.
4. The conviction was a separate interference with Convention rights, but it was proportionate for the same reasons. The fixed penalty regime contributed to the proportionality of the system, but could not operate if recipients could refuse payment without consequence.
5. The sentencing challenge was not determined. The dispute about the claimant’s weekly income was factual rather than a question of law or jurisdiction. The appropriate routes were an application under section 127 of the Sentencing Act 2020 or an appeal to the Crown Court under section 108(1)(b) of the Magistrates Courts Act 1980.

• Westminster Magistrates’ Court: convicted the claimant of contravening regulation 7 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and imposed a fine, costs and victim surcharge. The judge refused to state a case.
• High Court (King's Bench Division): dismissed the judicial review claim. Permission had initially been refused on the papers but was granted after an oral hearing before Murray J.