The Mayor of London (on behalf of the Greater London Authority) v Brian Haw, Barbara Tucker & Charity Sweet  EWHC 585 (17 March 2011) Summary
In The Mayor of London v Haw & Ors, the UK High Court considered whether the granting of particular orders and injunctions would be a disproportionate interference to various protestors' rights under arts 10 and 11 of the European Convention on Human Rights. Having closely considered the particular facts and circumstances of the various protestors, the Court concluded that the orders and injunctions were not disproportionate.
In 2001, Brian Haw commenced a protest against the UK Government's decision to invade Iraq and the ensuing war. The protest was initially held on a pavement of Parliament Square Gardens (PSG) in London. Haw maintained his vigil continuously between June 2001 and October 2002.
In July 2005, Part 4 of the Serious Organised Crime & Police Act 2005 came into force. Section 138 of the Act made it a criminal offence for any person to organise or participate in a demonstration in or on a public place, within a designated area, unless authorised by the Metropolitan Police Commissioner. Haw applied for authorisation to continue his protest, which was granted, subject to conditions. In late 2005, Barbara Tucker also joined the protest. From around September 2009 (and at various times before), Haw and Tucker erected tents at the PSG on a section of grass. Other protestors did similarly.
On 26 May 2010, the Mayor of London (on behalf of the Greater London Authority), commenced proceedings against Haw, Tucker, Rebecca Hall (Hall) and 16 other "persons unknown", seeking orders for possession of PSG against all 19 defendants, mandatory injunctions requiring the defendants to dismantle and remove all tents from the grass area and restraining injunctions preventing the defendants from returning to PSG with any tents. The Court granted those orders for possession and the injunctions.
Haw and Tucker appealed to the Court of Appeal. Other defendants also appealed. Nearly all defendants were unsuccessful, except for Haw, Tucker and Hall. Most relevantly, the Court of Appeal concluded that the only possible defence the trio had was whether the possession order and injunctions were a disproportionate interference to their rights under arts 10 and 11 of the ECHR. With "considerable hesitation", the Court of Appeal said that question should be remitted to the High Court for consideration.
The High Court ultimately concluded that it was proportionate to make the possession orders and to grant the injunctions against Haw, Tucker and Hall.
Justice Williams noted that art 10(1) of the ECHR "provides that everyone has the right to freedom of expression", but also noted that art 10(2) provides that this freedom "carries duties and responsibilities...and restrictions to protect the rights of others". His Honour also noted that art 11(1) provides that "everyone has the right to freedom of peaceful assembly and to freedom of association with others", but that art 11(2) states that no restriction shall be placed on these rights "other than those prescribed by law and necessary in a democratic society".
His Honour noted that for an interference with these rights and freedoms to be justified, it must be rationally connected to a legitimate aim, they must be proportionate, there must be a pressing social need, it must be the least intrusive means to achieve the aim and finally, that such decisions will always turn on the facts of a particular case.
The issue for the High Court to consider was the medical evidence produced by Haw that being removed from the grass of the PSG to the pavement would impact negatively on his health (he has lung cancer and a serious back condition) and his safety (increased risk from passing cars on the pavement and the risk of assault from passers-by). The argument put by Haw was that moving him to the pavement would impact on his ability to carry out his protest effectively and could even result in it coming to an end. Haw and Tucker also argued that their art 10 and 11 rights should supersede the Mayor's rights because their protest had endured for a long period of time and that their impact on the PSG was minimal. Hall did not appear at, or participate in, the appeal.
Firstly, His Honour relied heavily on the comments of Lord Neuberger in the Court of Appeal decision, where he said, "Even if his (Haw) ability to maintain his pitch is, albeit indirectly under challenge, it might well be stretching his art 10 rights too far to say that he should be entitled, particularly after having done so for so long, to maintain his demonstration in the precise location of his choice..." Secondly, His Honour found that Haw's medical evidence did not assist his case because "there is no medical reason why Haw cannot sleep on the pavement if he wishes to maintain a round-the-clock presence". Tucker did not advance any medical evidence to support her case. Thirdly, His Honour rejected the general safety issues concerning the pavement. Finally, His Honour concluded that "the Claimant has established that the Defendants' activities taken either individually or cumulatively do constitute an interference with the rights of others and there is a pressing social need which justifies the making of the orders".
Relevance to the Victorian Charter
The Victorian Charter contains provisions mirroring arts 10 and 11. Section 15 states that "Every person has the right to hold an opinion without interference". However, similar to art 10(2), that right is not absolute as s 15(3) states that “special duties and responsibilities” are attached to that right and that "lawful restrictions" may apply to protect others' rights and to protect "national security, public order, public health or public morality". Further, se 16 states, "Every person has the right of peaceful assembly. Every person has the right to freedom of association with others, including the right to form and join trade unions". In the event that a claimant in Victoria were to invoke ss 15 and 16 in support of his/her right to protest, the decision in The Mayor of London v Haw & Ors would certainly provide guidance, but is very likely to turn on the facts of the particular case.
The decision is at http://www.bailii.org/ew/cases/EWHC/QB/2011/585.html.
Daniel Creasey is Senior Associate & Pro Bono Coordinator with DLA Phillips Fox