Occupy Movement refused permission to appeal over St Paul's eviction ruling

The Court of Appeal has today refused members of the Occupy movement and other defendants permission to appeal their prospective eviction from the protest camp outside St Paul’s Cathedral.

Mr Justice Lindblom ruled in the High Court last month that the factors for granting relief “easily” outweighed those against. The judge also said the City of London Corporation had “undoubtedly” established a pressing social need not to permit the camp to remain at the cathedral. The camp has been in place since 15 October 2011.

Handing down the Court of Appeal’s judgment, the Master of the Rolls, Lord Neuberger, said Articles 10 and 11 of the European Convention on Human Rights (the rights to freedom of expression and to freedom of assembly) were engaged in the case – “i.e. the defendants can invoke their rights under those provisions of the Convention in relation to the maintenance of the camp”.

However, the Court rejected arguments put forward by all bar one of the defendants that Mr Justice Lindblom should have dismissed the City of London’s claim.

The Court of Appeal also dismissed claims that the orders made by the High Court judge were too extreme and should have been less intrusive of the defendants’ Convention rights.

The Master of the Rolls said the court was prepared to assume that in some cases, a court might have a duty to investigate whether a less intrusive order could be made. However, he pointed out that this point had been taken by the defendants and “justifiably rejected” by the judge.

Lord Neuberger said this duty could not have required a judge to do more than raise the issue with the defendants. “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 arrangements 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 the orders made by the judge,” he added.

The Master of the Rolls said the defendants did not put forward a proposal which satisfied any of these criteria, whether to Mr Justice Lindblom or to the Court of Appeal. “In our view, it was not open to the Judge, and it would not be open to the Court of Appeal to make any such less intrusive order,” he said.

Had such a proposal been made, the Court of Appeal would had to consider whether it was capable of doing so, and if it had been, whether permission to appeal should have been granted and the case sent back to Mr Justice Lindblom.

But Lord Neuberger added that the Court of Appeal was “very sceptical” as to whether any such proposal could realistically have been put forward (“which may well explain why it has not happened”).

“It is not merely that the tents appear to be an integral part of the message (to use a compendious word) which the Occupy Movement is seeking to maintain through the medium of the Camp, and it is impossible to see how they could remain in Saint Paul’s churchyard,” he said. “It is also that we think it unlikely that any scheme which satisfied the second and third of the three requirements would have much prospect of satisfying the first.”

In the concluding remarks, Lord Neuberger said: “There is no chance that any of the criticism raised by each of the defendants, or even all of those criticisms taken together, could persuade an appellate court that his decision was wrong….

“[In] a very clear and careful judgment, Linblom J reached a conclusion which, to put it at its very lowest, he was plainly entitled to reach. Indeed, as Mr Forsdick put it on behalf of the City, this was, on the Judge’s findings of fact and analysis of the issues, not a marginal case.”

Lord Neuberger said this case and that of Hall [2011] 1 WLR 504 now provided guidance available for first instance judges faced with cases of a similar nature.

The Master of the Rolls acknowledged that each case turns on its facts, and where rights under the European Convention on Human Rights are engaged, case law indicated that the court must examine the facts under a particularly sharp focus.

“Nonetheless, 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 not only is in 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 or in Hall [2010] EWHC 1613,” he said.

Lord Neuberger pointed out that a significant amount of court time was taken up by the defendant protesters explaining to the court the views they were seeking to promote.

“In strict principle, little if any court time need be taken up with such evidence,” he said. “The contents of those views should not be in dispute, and….they are very unlikely to be of much significance to the legal issues involved.”

The Master of the Rolls accepted that a judge would not want to be thought to be muzzling defendants, who want to explain their passionately held views. He also acknowledged that it had been “informative and thought-provoking to hear those views” in this case.

But he added that while it would be wrong to suggest that in every case such evidence should be excluded, a judge should be ready to exercise available case management powers to ensure that hearings of this sort of case do not take up a disproportionate amount of court time.

Lord Neuberger said he recognised that it was one thing for the Court of Appeal to make that sort of observation about a hypothetical future claim, and that it can be quite another thing for a trial judge, faced with a difficult actual claim, to comply with it.

“Nonetheless, with the benefit of the guidance given in two first instance judgments and two judgments of the Court of Appeal (and the Strasbourg and domestic decisions referred to), it is not unreasonable to hope that future cases of this sort will be capable of being disposed of more expeditiously.”

The City of London said it would now take enforcement action to remove tents and equipment from the site.

Stuart Fraser, the authority’s Policy Chairman, said: “We welcome the Court of Appeal ruling. Everyone has had their day in court and the courts have backed our application to remove tents and equipment from St Paul’s.

“Peaceful protest is a democratic right but the camp is clearly in breach of highway and planning law. I would call on protesters to comply with the decision of the courts and remove their tents and equipment voluntarily right away.”

In a statement, John Cooper QC, counsel to some of the defendants, said his clients were disappointed that “in accordance with the strict interpretation of domestic law, they had not prevailed today.”

He added: “They do not regret one second of the chance afforded to them to make their case and challenge the approach of the Corporation and the Church.

“My clients will now be urgently considering their next legal steps with their legal team and will, we anticipate, be bringing their case to the European Court of Human Rights to give that Court the opportunity to consider the state of public protest law in Britain.”

Philip Hoult