Leigh & Others v Metropolitan Police [2021] EWHC 661 (Admin)

Leigh and Others v Metropolitan Police [2021] EWHC 661 (Admin) concerned an urgent application for interim declarations in advance of a proposed vigil for Sarah Everard, in which Mr Justice Holgate clarified the interaction between COVID-19 regulations and the rights to freedom of expression and peaceful assembly under Articles 10 and 11 of the European Convention on Human Rights, but declined to grant the relief sought.

The claimants, Ms Jessica Leigh, Ms Anna Birley, Ms Henna Shah and Ms Jamie Klingler, were organisers of Reclaim These Streets, an informal group seeking to hold a static, socially distanced, hour-long vigil on Clapham Common on 13 March 2021 in memory of Sarah Everard and to raise awareness of threats faced by women. Two of the claimants were local councillors and the event had the support of the local council. The organisers had liaised with local police officers and understood initially that the reaction was positive, with no objection in principle. A meeting was arranged for 12 March to discuss arrangements. However, on the afternoon of 12 March the defendant Metropolitan Police changed its position, informing the claimants that the vigil would be illegal under the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, that the police’s hands were tied by the regulations, and that organisers could be liable to £10,000 fixed penalty notices and arrest for offences under the Serious Crime Act 2007.

The application concerned Schedule 3A to the 2020 Regulations, which set out restrictions applicable in Tier 4 areas. Paragraph 4 prohibited participation in outdoor gatherings of more than two people. Paragraph 5 prohibited holding or being involved in holding a relevant gathering of more than 30 persons. Unlike the position for Tier 3 areas, there was no exception in Tier 4 areas for gatherings for the purposes of protest. Regulation 10(1) provided that a person committed an offence if, without reasonable excuse, he or she contravened a Tier 4 restriction. Regulation 9 conferred enforcement powers on the police, including powers to direct gatherings to disperse and to remove persons from gatherings. Regulation 11 gave power to issue fixed penalty notices.

The claimants sought three interim declarations: first, that Schedule 3A, insofar as it prohibited outdoor gatherings, was subject to the right to protest protected by the Human Rights Act 1998; secondly, that the Metropolitan Police Service’s policy prohibiting all protests irrespective of specific circumstances was erroneous in law; and thirdly, that persons exercising their right to protest in a reasonable manner would have a reasonable excuse for gathering under the schedule. The claimants relied on a Metropolitan Police document entitled “Gold Strategy Op PIMA”, version 9, dated 6 January 2021, which at paragraph 1.4 stated that under national lockdown regulations gatherings for the purposes of protest were not exempt, that there were more risks associated with large groups given a virus variant that would transmit much more easily, and that there was a clear need for enforcement action to deal with any large groups. The claimants emphasised that this document made no reference to Articles 10 and 11.

Mr Justice Holgate referred to the decision of the Court of Appeal in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, in which the Court of Appeal had considered the compatibility of an earlier version of the regulations with the Human Rights Act. At paragraphs 101 to 106 the Court of Appeal rejected a submission that the regulations were inconsistent with Article 11 rights to peaceful assembly and association, on the basis that the regulations provided a general defence of reasonable excuse. The judge held that it was clear, at least for the purposes of the application, that the same reasoning applied to Regulation 10(1) of the 2020 Regulations. The expression “without reasonable excuse” was the means by which effect was given to Articles 10 and 11 in this legislation, but this necessarily focused attention on the particular facts of a given case in the event of an alleged breach.

Mr Justice Holgate also relied on DPP v Ziegler [2020] QB 253, which concerned a similar provision applying where a person was accused of obstructing a public highway without lawful excuse. The Court of Appeal in Dolan had accepted that the two expressions were to be equated. The Divisional Court in Ziegler gave a helpful rubric setting out questions to be considered when Articles 10 or 11 were applied in the context of section 137 of the Highways Act 1980. The judge held that there was no real dispute that this approach was also applicable to the interaction between Articles 10 and 11 and Regulation 10(1) of the 2020 Regulations. It was relevant to consider whether a person was exercising rights given by Articles 10 or 11, whether a public authority would be interfering with those rights by enforcing the regulations, the legitimacy of the aim of the regulations (here the protection of public health), and whether the interference was necessary to achieve that aim, giving rise to a proportionality exercise.

Mr Hickman QC for the claimants correctly accepted that, leaving aside the facts of this case, the restrictions in the 2020 Regulations were capable of being applied to protests or demonstrations in general, and that it was possible that the outcome of applying the relevant tests in relation to Articles 10 and 11 was that a particular protest or demonstration should not go ahead. That was a matter to be considered in the circumstances of each case. He submitted, correctly, that it was inappropriate to treat the 2020 Regulations as if they gave rise to a blanket prohibition on gatherings for protest, because that would fail to give effect to the law as laid down by the Court of Appeal in Dolan on the way in which the Regulations were to be read and applied compatibly with Articles 10 and 11.

The judge emphasised that the court was not being asked to grant an injunction against the police regarding the exercise of their powers on 13 March in relation to the proposed vigil, nor was the court being asked to make any ruling on the legality of that proposed event or on what the police might or might not do in relation to it. There was no decision by the defendant on those matters before the court for it to rule upon. The issues had arisen because of the change of stance on the part of the police and the perception that they considered their hands to be tied by the 2020 Regulations, so that for that reason the event could not take place. The claimants also relied upon the absence of any reference to Articles 10 and 11 in the policy document.

As to proposed declaration (a), the judge saw no need to make a formal declaration seeking to encapsulate the principle laid down by the Court of Appeal in Dolan and to apply it to the 2020 Regulations, because it was sufficient that the Court of Appeal had expressed the law in clear terms in Dolan, that was accompanied by the clear exposition of the law by the Divisional Court in Ziegler, and he had concluded that the reasoning in those decisions was applicable to Regulation 10(1) of the 2020 Regulations. There would be a danger in trying to encapsulate in an interim declaration what had been said more clearly by others in reserved judgments, and the draft had had to be prepared at short notice and under pressure.

As to proposed declaration (c), the judge considered that this was an attempt to express more particularly the Dolan principle by applying it to protests generally and in advance of any event being held. One concern was that it understated the law, in the sense that it gave the impression that someone participating in a protest would have a reasonable excuse for the purposes of Regulation 10(1) so long as they behaved in a reasonable manner. That was an incomplete analysis of the law. It assumed that a particular protest might take place at all once the Regulations were applied together with Articles 10 and 11. It was one possible and lawful outcome in a specific case that such a protest might not lawfully take place. The declaration would be inaccurate. In the particular context in which the case came before the court it would be particularly inappropriate to make an order which could end up as a piece of paper which members of the public, acting in good faith, might understand to be completely stating the legal position as it affected them. It would be misleading and lead to false expectations on the part of members of the public.

As to proposed declaration (b), which focused on the defendant’s policy, Mr Thomas for the defendant candidly and rightly accepted that if a police force had a policy which imposed a blanket prohibition on protest irrespective of specific circumstances and irrespective of the application of Articles 10 and 11, that would be unlawful. His contention was that the Metropolitan Police did not have such a policy. The judge considered this was not an issue on which it would be appropriate to comment authoritatively. The application had come on at very short notice and there had been only a short opportunity to look at part of one document. He took Mr Hickman’s point that the passages shown to the court did not mention Articles 10 and 11 and appeared to focus rather more on summarising what appeared in the Regulations. However, the requirements of the law had been clearly stated, particularly in Dolan and Ziegler, and he had sought to explain how they applied to these particular Regulations. He bore in mind the unequivocal statement which Mr Thomas had made on instructions. In these circumstances he did not think it appropriate for the court to go any further at this stage.

The judge observed that the defendant’s letter to the claimants’ solicitors on 12 March set out in very brief terms a view about how the law would apply to the proposed event on 13 March, but it would be inappropriate for him to comment on that. First, the issue as to whether the police were entitled to enforce the Regulations in relation to the event was not before the court. The current proceedings did not identify a particular decision on that aspect which was the subject of challenge. Secondly, it had not been shown that the letter did in fact represent a decision. Any decision would have been taken, if it had been taken, by the officer authorised to do so, a senior officer no doubt. The court did not know in what form any such decision might be expressed or taken. There was not yet before the court a suitable decision for the purposes of a challenge by judicial review. Given what had happened in the hearing, it might well be that there would be further communications between the claimants and their solicitors and the police to deal with the application of the Regulations and Articles 10 and 11 to the particular event, but that was not a matter upon which the court should comment.

In short, the application for interim declarations was refused, but Mr Justice Holgate clarified that the 2020 Regulations must be read and applied compatibly with Articles 10 and 11 through the reasonable excuse defence in Regulation 10(1), that a blanket prohibition on protest would be unlawful, but that whether a particular protest may lawfully take place depends on the application of the proportionality test to the specific circumstances of each case.

R (Dolan & Ors) v Secretary of State for Health And Social Care & Anor [2020] EWCA Civ 1605
Director of Public Prosecutions v Ziegler & Ors [2019] EWHC 71 (Admin), [2020] QB 253, [2019] 2 WLR 1451 , [2019] 1 CrAppR 32