Baroness Jenny Jones & Others v The Commissioner of Police for the Metropolis [2019] EWHC 2957 (Admin)
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Baroness Jenny Jones & Others v The Commissioner of Police for the Metropolis [2019] EWHC 2957 (Admin) was a claim in the Divisional Court (Lord Justice Dingemans and Mr Justice Chamberlain) in which the court quashed a condition imposed under section 14(1) of the Public Order Act 1986 on Extinction Rebellion protests in October 2019.
Seven claimants – comprising politicians, activists and journalists who supported Extinction Rebellion – challenged a condition imposed by Superintendent McMillan on 14 October 2019 purporting to require that “[a]ny assembly linked to the Extinction Rebellion ‘Autumn Uprising’… must now cease their protest(s) within London… by 2100 hours 14th October 2019.” The Extinction Rebellion Autumn Uprising (“XRAU”) was intended to run from 7 to 19 October 2019, comprising many individual gatherings at distinct locations within the Metropolitan and City of London police areas, co-ordinated under the Extinction Rebellion umbrella to cause disruption and draw attention to climate change. Two claimants (Ms Chowns and Mr Monbiot) had been arrested for breach of the condition, and Mr Alnutt had been directly affected by having to move “lost and found items” from protest sites. The condition had been removed on 18 October 2019, but both parties agreed the court should determine the proper interpretation of section 14(1).
The evidence showed that Extinction Rebellion’s October Rebellion Action Design document stated its intention to take “police resources to a breaking point” by co-ordinated actions. Documents published on Extinction Rebellion’s website identified 12 locations in central London for protests, with distinct events scheduled on different days across the two-week period. On 8 October, Superintendent McMillan had imposed an earlier condition directing that any assembly linked to XRAU wishing to continue must go to Trafalgar Square. That condition’s legality was not challenged. However, protests continued using tactics of evasion and regrouping at different locations. By 14 October, Bank junction had been closed all day causing serious disruption, and Extinction Rebellion was announcing intentions to target the London Underground. An online communication that evening advised protestors to adopt “be water” tactics: “crowds split up into fast moving groups… gather at particular spots… until the police response building then… move to a new disruptive site.” In those circumstances, Superintendent McMillan imposed the challenged condition at 1900 hours. It was common ground that he could reasonably conclude XRAU “may result in serious disruption to the life of the community.”
The Commissioner contended that XRAU constituted a single “public assembly” within section 14(1), being co-ordinated and publicised by Extinction Rebellion despite occurring at multiple locations. Mr Skelt argued the various gatherings were sufficiently linked to constitute one assembly. The claimants, represented by Ms Kaufmann QC, submitted that there were plainly many separate public assemblies at various distinct locations separated by time and distance, and that section 14(1) did not permit a blanket condition prohibiting future intended assemblies across an entire metropolitan area.
The court held that the Commissioner’s interpretation was inconsistent with the language of section 14 and the wider statutory scheme. Section 14(2)(a) defined “the senior police officer” in relation to an assembly being held as “the most senior in rank of the police officers present at the scene.” That reference to “the scene” showed there must be a particular location, not a series of different scenes across the Metropolitan and City of London police areas. Section 16 defined “public assembly” as “an assembly of 2 or more persons in a public place which is wholly or partly open to the air.” The phrase “a public place” implied a location of which it was coherent to ask whether it was wholly or partly open to the air, not a series of separate locations. “A public place” was defined as a place “to which the public or any section of the public has access,” which plainly could not include the whole Metropolitan and City of London areas because that would encompass many private houses. The court took account of the reasoning in R (Jukes) v Director of Public Prosecutions [2013] EWHC 195 (Admin) at [17], where the Divisional Court held that the reference to “the scene” in section 12 (concerning processions) referred to a particular scene, with the result that the procession must be a particular procession. By parity of reasoning, the assembly referred to in section 14 must be a particular assembly.
The court rejected the Commissioner’s submission that “the scene” could be Lambeth police station simply because that was where Superintendent McMillan was co-ordinating the response to XRAU. There was no “scene” there within the meaning of the Act. If the public assembly included the whole Metropolitan and City of London police areas, it was plain that Superintendent McMillan, although senior, was not the most senior police officer present across that entire area. A further difficulty with the Commissioner’s interpretation was that it would enable police to prohibit intended future gatherings (provided they were sufficiently linked to current gatherings), yet both the 1985 White Paper which preceded the 1986 Act and section 14(1) itself made clear there was no power to prohibit, rather than merely impose conditions upon, gatherings not yet begun. The White Paper had stated at paragraph 5.6 that conditions would be limited to “location, numbers and duration” and that police would not be able to prevent a demonstration from going ahead on the planned date and time.
The court also emphasised a striking contrast in language between sections 12(1) and 14(1) (conferring power to impose conditions on “any public assembly” and “any public procession”) and sections 13 and 14A (conferring power to prohibit “all public processions” or “all trespassory assemblies” within a specified area). Where Parliament wished to confer power to impose conditions on all processions or all assemblies of a certain kind, it said so in terms. The section 14A power to impose a prospective area-wide ban on assemblies was confined to trespassory assemblies, could be exercised only by the chief officer of police with the Secretary of State’s consent, and was subject to temporal and geographical limits (maximum four days and five‑mile radius). The Commissioner’s interpretation would permit section 14(1) to be used to impose a prospective area-wide ban on all public gatherings provided they could be grouped under the umbrella of a single “assembly,” exercisable by a police officer of any rank (provided the most senior present at “the scene”) without the Secretary of State’s consent and without temporal or geographical restrictions.
The court held that a public assembly in section 14 must be in a location to which the public or any section of the public has access, which is wholly or partly open to the air, and which can be fairly described as a scene. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, are not one public assembly within the meaning of section 14(1). Superintendent McMillan purported to impose a condition not only on public assemblies already in existence but also on intended future assemblies yet to be held. The XRAU intended to be held from 14 to 19 October 2019 was not a public assembly in the presence of Superintendent McMillan on 14 October 2019. Therefore the decision to impose the condition was unlawful because there was no power to impose it under section 14(1).
On standing, the court held that the third, fourth and seventh claimants had sufficient interest because Ms Chowns and Mr Monbiot had been arrested for breach of the condition and Mr Alnutt was an organiser directly affected by it. The first, second, fifth and sixth claimants did not have standing. Although they were supporters of Extinction Rebellion, there was no evidence they had been deterred from protesting, and other claimants were better placed to bring the claim. The court granted permission to the three claimants with standing and refused it to the others. On the certainty of the condition, the court found it unnecessary to decide whether the phrases “any assembly linked to” XRAU and “must now cease their protest” were sufficiently certain, because the condition was framed as it was only because Superintendent McMillan wrongly believed XRAU was a single assembly on which he had power to impose conditions.
In short, the court quashed the condition imposed on 14 October 2019 because separate Extinction Rebellion gatherings at distinct locations across London over a two-week period did not constitute a single “public assembly” within section 14(1) of the Public Order Act 1986, and Superintendent McMillan therefore had no power to impose the blanket condition he purported to make.
Ors v Metropolitan Police Commissioner eg, Hubbard v Pitt [1976] QB 142
McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277
Shayler [2002] UKHL 11, [2002] 2 WLR 754, [2003] 1 AC 247
Redmond-Bate v Director of Public Prosecutions [2000] HRLR 249
Kamara v Director of Public Prosecutions [1974] AC 104
Director of Public Prosecutions v Jones [2002] EWHC 110 (Admin)
Austin and Saxby v The Commissioner of Police of the Metropolis [2005] EWHC 480 (QB)
R (on the application of Moos and Another) v The Commissioner of Police of the Metropolis [2011] EWHC 957 (Admin)
Van EL and Jukes v Director Of Public Prosecutions [2013] EWHC 195 (Admin)
R (Brehony) v Chief Constable of Greater Manchester [2005] EWHC 640
Jones & Ors [2006] UKHL 16, [2007] 1 AC 136, [2006] 2 All ER 741, [2006] 2 WLR 772, [2006] 2 CrAppR 9, [2006] ACD 52
Austin and Another v Commissioner of the Metropolis [2009] UKHL 5
Roberts, Blevins and Loizou [2018] EWCA Crim 2739, [2019] 1 WLR 2577
Summary