The University of Birmingham v Persons Unknown & Anor

Possession proceedings against persons unknown require evidence of reasonable efforts to identify those in possession. The court may adjourn where defendants genuinely dispute the claim on substantial grounds.

Students with a contractual or implied licence to use university land may have an arguable defence based on Human Rights Act 1998 rights and statutory duties protecting lawful speech and assembly. The assessment requires a fact-sensitive balance, including the purpose of the protest, its effectiveness, the character and exclusivity of the land, and the interference caused. Peaceful occupation of grassed areas may differ materially from occupation of teaching or administrative buildings. Criminal conduct may terminate any licence and remove the protection of those rights.

The University sought possession under CPR Part 55 against persons unknown occupying protest camps on university land at Green Heart and Chancellor’s Court, Edgbaston. The protesters were mainly alleged to be students protesting about Gaza and making demands concerning the University’s investments, affiliations and support for Palestinian educational infrastructure.

The University contended that the occupants were trespassers and that Articles 10 and 11 of the ECHR and the statutory duties under the Education Act 1986 and Higher Education (Freedom of Speech) Act 2023 provided no arguable defence. The court considered identification, the scope of possession proceedings, students’ possible licence to use university land, and whether peaceful protest could constitute a defence.

1. Procedural requirements. The University had not shown that it had made reasonable efforts to identify students who had occupied the camps for several weeks. The claim against persons unknown was therefore arguable. The claim relating to Green Heart also lacked sufficient evidence of a substantial risk of public disturbance or serious harm justifying High Court determination. The wider application was adjourned under CPR Part 55.
2. Human rights and private land. Articles 10 and 11 do not create a general right to protest on private land. However, Appleby v United Kingdom and Director of Public Prosecutions v Cuciurean required a balance between Convention rights and property rights. Relevant matters included the protesters’ connection with the land, the person or institution they sought to persuade, the effectiveness of alternative protest methods, the character and exclusivity of the occupation, and the degree of interference with university activities.
3. University duties. The Education Act 1986 and Higher Education (Freedom of Speech) Act 2023 required reasonably practicable steps to protect lawful speech and assembly and to prevent premises being denied because of opinions. The assessment had to be evidence-based, weighing options, costs, risks, benefits and competing rights. The University had not shown that allowing peaceful occupation of Green Heart was impracticable. The students therefore had an arguable defence.
4. Licence and trespass. The student contract and university regulations arguably gave students a licence to enter and use university land for legitimate university-related purposes. Whether remaining in the camps constituted trespass depended on the contract, regulations, statutory duties and validity of the notices to quit.
5. Chancellor’s Court and orders. The evidence of indelible paint vandalism, intimidation and possible criminal conduct at Chancellor’s Court justified possession against all persons unknown there, including students and staff. Criminal conduct could terminate any licence and would not attract protection under the Convention or the Education Acts. Possession was also ordered against non-students and non-staff across the Edgbaston campus. No possession order was made against students at Green Heart, and the claim concerning the other campuses was not justified on the evidence then available.

First-instance decision. The judgment records no prior decision in the present proceedings.