The Mayor Commonalty and Citizens of London v Samede (St Paul's Churchyard Camp Representative) & Ors  EWCA Civ 160 (22 February 2012) Summary
In the High Court of England and Wales, Lindblom J made orders in favour of the City of London (the City) against the defendants, part of the Occupy protest movement, for possession of a highway and other open land in the churchyard of St Paul's Cathedral, London, where the defendants had set up a protest camp.
The defendants sought leave to appeal to the Court of Appeal. The Court held that permission to appeal should be refused, for the reasons described below.
In summary, the City claimed possession of the highway and open land which was being occupied by the defendants, 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 of freedom of expression and association under Articles 10 and 11 of the European Convention on Human Rights.
Lindblom J made orders for possession in respect of the two areas of land owned by the City and granted an injunction requiring the defendants to remove all tents from the land at St Paul's churchyard. His Honour refused permission to appeal, however the defendants then applied for permission to the Court of Appeal.
Engagement of Article 10 and 11 rights
First, their Honours considered whether or not it was clear that the City was correct in conceding that Articles 10 and 11 of the Convention were engaged. Their Honours held that it was and referred to jurisprudence of the European Court of Human Rights in support of this conclusion.
Further, the Court observed that domestic law was also consistent with the view that state authorities have a positive duty to take steps to ensure that lawful public demonstrations can take place. In particular, relevant authorities included the dicta of Lord Bingham in R (Laporte) v Chief Constable of Gloucestershire Constabulary  2 AC 105 and the Court of Appeal’s decision in Hall and Others  1 WLR 504.
Argument that the judge should have dismissed the City's claim
The defendants sought to set aside Lindblom J's judgment on the basis that his Honour ought not to have found for the City at all, but should have dismissed the claim and allowed the camp to continue in place.
Their Honours noted at  that "as the Judge recognised, the answer to the question which he identified at the start of his judgment is inevitably fact-sensitive, and will normally depend on a number of factors". Relevantly, their Honours proceeded to identify those factors as including:
the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public.
Their Honours upheld Lindblom J's findings, stating that the "essential point" in this case was that while the protesters' Article 10 and 11 rights were undoubtedly engaged, it was "very difficult" to see how they could ever prevail over the will of the landowner, when they are:
continuously and exclusively occupying public land, breaching not just the owner's property rights and certain statutory provisions, but significantly interfering with the public and Convention rights of others and causing other problems (connected with health, nuisance and the like).
Could more limited orders have been made?
One of the applicants contended that Lindblom J should have made an order which was less intrusive of the defendants' Convention rights.
The Court of Appeal observed that this argument was problematic because only one possible alternative to maintaining the camp in its current state was put to Lindblom J. While the Court was prepared to assume that, in some cases, a court may have a duty to investigate whether a less intrusive order was available, their Honours held that this could not have required Lindblom J to do more than to raise the issue with the defendants, stating at  that:
If they were then to persuade him to make any less intrusive order than he did, they would have had to come up with a specific arrangement which i) would be workable in practice, ii) would not give rise, at least to anything like the same degree, as the breaches of statutory provisions and other peoples’ rights, as the current state of affairs, and iii) would be less intrusive of the defendants’ Convention rights as orders made by the Judge.
Their Honours held that as the defendants had not put forward a proposal which satisfied any of those criteria to Lindblom J, it was not open to his Honour to make any such less intrusive order. In any event, the Court stated that it was "very sceptical" as to whether any such proposal could have been realistically put forward in this case.
The Court noted that, while this judgment was a decision refusing leave to appeal, their Honours considered that it may be cited as an authority, stating that:
in future cases of this nature (where the facts involve a demonstration which involves not merely occupying public land, but doing so for more than a short period and in a way which is not only a breach of statute but substantially interferes with the rights of others), it should be possible for the hearing to be disposed of at first instance more quickly than in the present case.
Relevance to the Victorian Charter
As with the Convention, the Victorian Charter 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).
While this case was only a decision refusing leave to appeal, it is likely that the Court of Appeal's judgment (along with Lindblom J's decision at first instance) may inform the approach taken by Australian courts in cases with similar facts involving the rights of freedom, expression and association.
The decision can be found online at: http://www.judiciary.gov.uk/media/judgments/2012/cityoflondon-v-samede-appeal
Madeleine Ellicott is a lawyer with Allens Arthur Robinson.