Ultimately, the Court of Appeal confirmed that the possession orders and injunctions, effectively removing the demonstrators from the site and forbidding their return was, in the circumstances, proportionate, but this case heralds a string of cases to come before the appellate courts defining the limits of proportionality in public protest cases.

The defendants/appellants set up a protest camp in St Paul’s churchyard on 15 October 2011. Somewhat ironically, they did not intend to take this area, but instead had resolved to occupy the centre of capitalism, as they saw it, the London Stock Exchange, hence their original title, ‘Occupy LSX’. It was only after the Metropolitan Police ‘kettled’ them in front of St Paul’s that the occupiers thought that it would be a good place to set up camp.

In fact, from a political point of view, it has turned out to be a far more striking statement than any occupation of the London Stock Exchange could ever have achieved and marked the beginning of a national debate bringing into question the historic and cultural roles of the Church and the country’s most powerful financial institutions. In many respects, ‘Occupy’ usurped the functions of conventional politicians who continue to be confused as to how they should treat this new form of public expression, and one could not help but detect a touch of resentment in their statements that the public voice, rather than the elected Establishment, was setting the agenda.

So, perhaps, it was with a collective sigh of relief from the politicians, the City and indeed the Church, who provided the Corporation with a significant amount of evidence to defeat ‘Occupy’ in court, that the case was brought before Mr Justice Lindblom just before Christmas.

The atmosphere during the five days leading up to the Christmas break could not have been more Dickensian. A crowded courtroom, populated with witnesses from the City and the Church, resolutely informing the court that this mixed bag of people inhabiting the churchyard of the great Cathedral should be removed. On 30 December 2011, I introduced a reading of ‘A Christmas Carol’ on the steps of St Paul’s, with eminent actors such as Tim Pigott-Smith reading Scrooge and the analogy was complete.

The High Court hearing lasted five days and allowed the defendants to challenge the very heart of Corporation thinking. The legal argument focused upon the limits to the right of lawful assembly and protest on the highway, a question the trial judge accepted was of “fundamental importance”. The issue was whether those limits extend to the indefinite occupation of highway land by an encampment of protestors who assert that this form of protest is essential to the exercise of their Article 10 and 11 ECRH rights of freedom of expression and lawful assembly, when the land occupied is, as was put by the judge, “a prominent place in the heart of the Metropolis, beside a Cathedral of national and international importance”.

Allied to this was the claimants’ case that the Cathedral was visited each year by thousands of people, many of which come to exercise their right under Article 9 of the Convention, to worship as they choose.

In short, the City sought an injunction requiring the occupiers to remove their tents and, consequently, the claimants argued for possession. The City did not dispute the defendants’ rights under Article 10 and 11, however, they argued, ultimately successfully, that the removal of the tents would amount to a justifiable interference with them.  The defendants raised fundamental objections to this standpoint.

In terms, they maintained, should citizens be denied the exercise of their rights of assembly and protest by the operation of national law governing the use of the highway and the control of the development of the land then this ran in conflict with the tranche of European jurisprudence establishing the essentials of human rights.

Furthermore, how should the court deal with the new phenomena of the peaceful protest but ‘semi-permanent’ occupation of civic spaces to highlight issues of political concern where the occupation is the very nature of the protest?  The trial judge made his decision, as he was obliged to do, upon existing law. As such, there was no doubt that a highway authority has a duty to assert and protect the rights of the public to the use and enjoyment of the highway, in accordance with the Highways Act 1980 section 130. It is an offence under section 137 of that Act wilfully to obstruct the ‘free passage along the highway’.

Similarly, subject to Articles 10 and 11, it was held that the defendants have no arguable right to occupy, control or take possession of highway land from the City as highway authority.  The court was also inclined to accept the evidence of the City, somewhat confusingly supplied by and with the blessing of the Cathedral, that the Article 9 right to worship had been violated by the occupiers. One could debate and perhaps one should, the quality of evidence provided to the court and it is important to remember that the Civil Procedure Rules are far more relaxed about the admission of hearsay evidence and evidence that cannot be challenged at first hand than their criminal counterpart.

One wonders in passing, what a jury would have made of all this. But from a legal perspective, this would, of course be fanciful.  Importantly, the occupation sought to persuade the court that the eviction and complete clearing of the site was not proportionate to the problems that needed to be addressed and in particular the maintenance of the defendants’ Convention rights.

The crux of the failure of this argument in the High Court was that the requirements of the highways authority and highway law was deemed to prevail over the Convention. Furthermore, the law of property and development was deemed as determinative of the issues, in effect trumping the ECHR. This position will be challenged in a number of cases coming before the appellate courts. Part of the appellants’ approach will be to develop the dicta in A v Secretary of State for the Home Department [2005] AC 68 in which Lord Bingham at paragraph 44 suggests that the power of the Court of Appeal to consider proportionality appeals is wider than their conventional parameters and allows them to consider issues of proportionality even if it is conceded that the judge at first instance got the law right.

The law of public protest still has a long way to go and the law is instinctively inclined towards ownership. This is an inclination developed in the canons of English law since the Great Plague of 1348; maybe it will take a few more years to shake, but no one doubts that this case has started what might be a long journey, and the Master of the Rolls court was but its latest stop.

Professor John Cooper QC
25 Bedford Row