City of London v Samede & Ors  EWHC 34 (QB) (18 January 2012)
The England and Wales High Court upheld claims brought by the City of London Corporation for possession of highway and other open land in the churchyard of St Paul's Cathedral, London, where the defendants, part of the Occupy protest movement, had set up a protest camp. Lindblom J held that this was a "lawful and justified" interference with the defendants' rights of freedom of expression and association under articles 10 and 11 of the European Convention on Human Rights.
On 15 and 16 October 2011, the defendants set up a protest camp in St Paul's Churchyard. The camp was comprised of a large number of tents (between 150 and 200 at the time of the hearing), many of them used as overnight accommodation, and several larger tents used for other purposes including information, food preparation and first aid facilities.
On 16 November 2011 the City served a notice on the camp requiring the removal of all tents and other structures by 6pm on 17 November 2011. The protesters did not comply with this notice. Following failed negotiations between the parties, on 30 November 2011, the City served an enforcement notice on the occupiers of the camp under the Town and Country Planning Act 1990.
The protest camp occupied two distinct types of land: highway land, vested in the City by the Highways Act 1980, and open land owned by the Church. It is notable that while there were no vehicular rights over the highway land, there were public rights over the land (which is a major pedestrian thoroughfare and intersection).
The City claimed possession of the highway and open land, and sought injunctions mandating the removal of the tents and other structures in the camp. The defendants opposed the City's claims on the basis that this form of protest was essential to the exercise of their rights under articles 10 and 11 of the Convention.
The City did not dispute that the defendants' rights under articles 10 and 11 of the Convention were engaged, but contended that the removal of the tents would amount to a justified interference with those rights under sections 10(2) and 11(2) of the Convention. Lindblom J agreed and granted the relief sought.
His Honour held that for an interference with article 10 and 11 Convention rights to be justified, the interference must be rationally connected to one of the legitimate aims specified in articles 10(2) and 11(2) of the Convention. It must be convincingly demonstrated that the interference meets a pressing social need and is proportionate. Action will not be proportionate unless it is the least intrusive means necessary to achieve the aim. In deciding that the orders sought by the City constituted a justifiable interference with the defendants' rights under articles 10 and 11 of the Convention, his Honour stated:
Freedom of speech – including political speech – is an indispensable, indeed defining freedom in a democracy. Nobody could say it was not. (…) However, counsel have not been able to point to any case decided either in the domestic context or by the Strasbourg court in which a large protest camp on the public highway has been included within the legitimate extent of the rights in articles 10 and 11.
Lindblom J found that there were a number of powerful considerations pointing to an outcome in favour of the City:
- the extent and duration of the obstruction of the highway and the public nuisance inherent in that obstruction;
- the effect of the camp on the article 9 Convention rights (freedom of religion) of worshippers in the cathedral;
- the effect on visits to the cathedral (there was evidence to show that visits had dropped by 40% since the protest camp was set up); and
- private nuisance caused to the Church.
Indeed, his Honour stated that each of the above considerations taken separately would warrant the relief sought and that adding the considerations together, there was an "unusually persuasive case on the positive side of the balance". His Honour concluded that:
[t]he proposed interference with the defendants' rights under articles 10 and 11 is, I accept, the least intrusive way in which to meet the pressing social need, and strikes a fair balance between the needs of the community and the individuals concerned so as not to impose an excessive burden on them. Withholding relief at this stage would plainly be wrong. The freedoms and rights of others, the interests of public health and public safety and the prevention of disorder and crime, and the need to protect the environment of this part of the City of London all demand the remedy which the court's orders will bring.
We note that Lindblom J's decision is subject to proceedings in the Court of Appeal seeking leave to appeal. No decision has been made as at the date of this case summary.
Relevance to the Victorian Charter
As with the Convention, the Victorian Charter also protects the right to freedom of expression (section 15) which is subject to "lawful restrictions" (section 15(3)), and the right to freedom of association (section 16). These provisions are also subject to "such reasonable limits as can be demonstrably justified" under section 7(2).
Lindblom J's analysis in this decision of what may constitute a "lawful and justified" interference with the rights to freedom of expression and association may inform the approach taken by Australian courts in interpreting the ambit of those rights in the Victorian Charter and undertaking the difficult balancing exercise of weighing the rights against countervailing policy considerations.
The decision can be found online at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/cityoflondon-v-samede.pdf
Diana Kuitkowski is a Lawyer at Allens Arthur Robinson