Facts
The London Borough of Lambeth (“the Council”) brought a claim as freehold owners of Clapham Common (“the Common”). A small part of the Common was being occupied by individuals who had set up a camp. There were two groups involved. One was the Campaign for Truth and Justice, the other was “Lovedown”. The camp was first established on 18 June 2021. The Council’s case was that the camp established by the respondents was generating complaints from local residents and sought to recover possession. The first respondent, Colin Grant, established the Campaign for Truth and Justice. The respondents were not legally represented and appeared in person. It was the respondents’ case that as members of the Campaign for Truth and Justice, the occupants were immune from any form of law enforcement, and referred to “Clause 61 of Magna Carta 1215 and Article 7 of the Human Rights Act 1998”.

Submissions
For the Council, Mr Tempest submitted that it was clear that the respondents were trespassing and that the Council as a freeholder had the private law right to recover possession, and only if there was a public law defence could that right be defeated. Mr Tempest asserted that given that neither Magna Carta nor Article 7 European Convention on Human Rights (“ECHR”) was relevant, the only potential reason for refusing to grant possession would be to avoid a disproportionate interference with the rights of the occupiers under Articles 10 and/or 11 ECHR. If the respondents’ rights under Articles 10 and/or 11 were engaged, it would then be necessary to balance these rights against those of the Council and the wider public. Reference was made to the factors set out by Lord Neuberger in City of London Corporation v Samede [2012] EWCA Civ 160, [2012] PTSR 1624, [39], and recently endorsed in Director of Public Prosecutions v Ziegler [2021] UKSC 23, [71], as follows:

• The extent to which the continuation of the protest would breach domestic law.
• The importance of the precise location to the protestors.
• 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 right of others, including the property rights of the owners of the land, and the rights of any members of the public.

The first respondent relied on Article 7 ECHR, which he submitted was inspired by the principles underlying Article 61 of Magna Carta; the land being occupied had been seized as a partial remedy for the wrongs he claimed to have suffered at the hands of various emanations of the State and legal professionals, and if he were compensated for those wrongs, he would be prepared to return the land being occupied. Contrastingly, it was also the respondents’ case that, in occupying the Common, they were very much protesting, in particular, against the restrictive measures introduced to address the Covid-19 pandemic.

The court was alive to the fact that the government had announced the proposed easing of restrictions from 19 July 2021.

The Law
Articles 10 and 11 ECHR guarantee respectively the right to freedom of expression and the right to freedom of peaceful assembly and free association with others. In each case, a public authority may interfere with the right if the interference is “prescribed by law” and “necessary in a democratic society” for “the prevention of disorder or crime” or “the protection of the… rights of others” (Article 10) or “the protection of the rights and freedoms of others” (Article 11).

The Judgment
The court found that the Council was entitled to an order for possession, on the basis that even though the grant of the possession order sought would interfere with the Article 10 and 11 rights of the occupiers, the extent of the interference was limited, given that (i) they had already been able to express their views through continuous occupation of the site for the best part of a month; (ii) there was no evidence that the Common had any special significance to them; and (iii) an order for possession would not prevent them from continuing to express their views and engage with the public by means other than camping on the Common.

Against the interference with the respondents’ Article 10 and 11 rights, the court found it necessary to weigh the facts that the occupation: (i) interferes with important rights of the public to use and enjoy part of a public open space, which have been and are of special significance in the context of the Covid-19 pandemic; (ii) is in breach of byelaws made by a democratically accountable authority under powers conferred by Parliament; and (iii) is likely to make other users of the space understandably resentful and aggrieved and to undermine respect for the byelaws more generally. The court found that these matters taken together justified the conclusion that there is a “pressing social need” to make the possession order. The limited interference with the respondents’ Article 10 and 11 rights was found to be justifiable and proportionate.

The respondents did not invite the court to make any order other than one granting full possession forthwith, however, the court nonetheless considered, of its own motion, whether any lesser order would suffice, in accordance with the principles in Samede [2012] EWCA Civ 160, [2012] PTSR 1624 at [51]-[55]. The court subsequently considered whether to make an order permitting the occupation to continue until 19 July 2021 on the basis that the respondents might perceive its continuation to be unnecessary after that date. However, the court ultimately found that even if the planned relaxation of restrictions on 19 July 2021 went ahead as announced, there could be no certainty that any of the occupiers would ultimately take the view that it was unnecessary to continue the occupation after that date.

Summary by Patience Abladey, barrister, Trinity Chambers.

For the judgment, click here.