Victory for claimants in Sarah Everard vigil case 14 March 2022 by Shaheen Rahman
Leigh & Ors v (1) The Commissioner of Police of the Metropolis and (2) Secretary of State for Health and Social Care (Interested Party)  EWHC 527
A year after the kidnap, rape and murder of Sarah Everard by serving Metropolitan Police officer Wayne Couzens, the Divisional Court has given its judgment on the MPS response to the proposed vigil for Ms Everard organised by #ReclaimTheseStreets on Clapham Common, near where she was last seen alive.
The aim of the vigil was to highlight risks to women’s safety and to campaign for a change in attitudes and responses to violence against women. However, it was at a time when Regulations imposed during the Covid-19 pandemic prohibited a gathering of more than 30 persons in a public outdoor place in a Tier 4 area such as London.
MPS would not sanction the plan for the vigil and it was cancelled (as discussed here). The Claimants alleged that this was because the Met had unlawfully thwarted the plan. The Court agreed.
The judgment is a comprehensive victory for the Claimants, hailed by them as a “victory for women” and an “absolute vindication”. It is also a landmark decision in the context of debate as to the impact of the Covid regulations on the fundamental rights and freedoms enshrined in primary legislation pursuant to the HRA. It contains a granular analysis of the requirements of the proportionality assessment to be undertaken in such cases. It has particular resonance given controversial changes to the way police are able to control protests currently being debated in parliament as part of the Police, Crime, Sentencing and Courts Bill.
Per Warby LJ: • The Court rejected the MPS defence that it had never actually made any decision that the vigil would be unlawful and had merely declined to give any reassurance that the organisers of the vigil would not face any action.
• The Claimants reasonably interpreted what they had been told as an indication that the vigil was unlawful and that organising it would inevitably be a criminal offence that would lead to a fine or prosecution.
• A series of decisions were taken by MPS which amounted to an interference with the Claimants’ Convention rights. This had a chilling effect on their right to freedom of expression under Article 10 and right to freedom of peaceful assembly under Article 11.
• Each decision had a material causal contribution to the decision to cancel the vigil.
• There had been an obligation to engage with a fact sensitive proportionality assessment regarding the planned vigil. Notwithstanding that this was a ‘somewhat onerous’ task, the practical burden of this had been ‘considerably overstated’.
• DPP v Ziegler  QB 253 had held that such an assessment could include consideration of (1) the nature and extent of any potential breach of domestic law; (2) whether the views giving rise to the protest relate to ‘very important issues’ and whether they are ‘views which many would see as being of considerable breadth, depth and relevance’; (3) the importance of the location, which could have symbolic force; (4) the extent to which the protest would interfere with the rights of others; (5) the likely duration of the protest; (6) prior notification to, and co-operation with, the police; and (7) the nature of any precautions proposed or considered.
• Further, the court accepted the submissions of the Interested Party that having regard to Ziegler and the challenge to the emergency Covid regulations considered in Dolan v Secretary of State for Health  EWCA 1605 the following factors would be relevant to the proportionality assessment: (1) the deterioration in the public health picture that led to the Tier 4 Regulations; (2) the legislative decision that the exceptions for protest contained in Schedules 1 to 3 of the All Tiers Regulations should not apply to Schedule 3A and Tier 4 areas; (3) the importance of the subject-matter, and how close it was to the core of the right; (4) the numbers due to take part; (5) the importance of the precise location; (6) the existence or otherwise of a robust risk assessment; (7) the nature of any proposed precautions; (8) the likelihood of assembly taking place in any event; and (9) the potential effects on the rights of others.
• An officer deciding whether to charge an individual with an offence would have to consider the prospect of making the court sure that there was no reasonable excuse for holding the gathering or – put another way – that a conviction would be a necessary and proportionate measure in pursuit of the aim of protecting public health. Therefore the Claimants were right to submit that the MPS had a public law duty to take reasonable steps to inform themselves about relevant considerations (the “Tameside” duty).
• That duty could not be discharged by merely noting the purpose of the Regulations. The seriousness of any health risk had to be considered and balanced against the rights engaged. MPS were not entitled to ignore altogether the question of what available evidence might show about the gravity of the current public health risks. Their better argument was that the onus of establishing a breach of the Tameside duty was a heavy one – see the judgment of the Court of Appeal in R (Balajigari) v Secretary of State for the Home Department  EWCA Civ 673. • The court therefore had to consider each decision under challenge and whether it was in accordance with the duties identified above. The starting point was what was said or written to the Claimants in the context of the other contemporary records, bearing in mind these were not carefully drafted decision letters and were at times made under pressure and had been the subject of further explanation in the officers’ witness statements
• The MPS argued that when officers referred to the proposed vigil as being “unlawful” they did not mean that it would be criminal, but that it would meet the threshold requirement of contravening the Tier 4 restrictions, so that holding it might turn out to be an offence or justify a fine. That argument was rejected. It was “incorrect and misleading” to describe conduct as “unlawful” simply because it amounts to an act restricted by the regulations. The context of the discussion about whether the Claimants and others would be liable to criminal prosecution or a fine was relevant. Moreover on occasion officers described the proposed vigil as “illegal” or “a breach of legislation”. • Upon consideration of what was said in its wider evidential context the court remained of the view that none of the decisions taken were in accordance with the Regulations. Indeed, they were legally misinformed, as was the national policing guidance that had been issued at the time. MPS should not have proceeded initially on the basis that there was no exception for protest, with only passing reference to the requirement of there being no reasonable excuse and no reflection of Ziegler and Dolan principles.
• Later decision-making reflected the same “simplistic approach” though addressing some of the Dolan principles. MPS misstated the legal position in asserting that reasonable excuse was “a defence … which it is for the individual to establish”. In fact, absence of reasonable excuse is an ingredient of the offence and to succeed in a prosecution the state would have to establish to the criminal standard that there was no such excuse. Further, MPS were incorrect to say that the possibility that Article 10 or 11 might justify the holding of a restricted gathering only falls for consideration “at the point of enforcement by way of criminal sanction”. It was for the law enforcement agencies to consider these issues for themselves before exercising the powers conferred upon them.
• MPS were wrong to refuse to take into account the nature of the Claimant’s cause in the name of equal treatment and “consistency”. As Ziegler showed, it was incumbent upon law enforcement bodies to evaluate the “cause” at stake in a protest and it may be that greater weight must be given to some causes than to others.
• On this issue, Holgate J added in his judgment,
that although the law does not expect the police to engage in choosing between different viewpoints or to approve or disapprove of a particular viewpoint […] it does expect the police to distinguish between on the one hand, a musical event, a party or some other form of entertainment and on the other, the making of a serious protest or an act of commemoration. Furthermore, in this latter category the nature of the issues raised are capable of being an important factor. Here, there could be no real dispute that the vigil concerned matters of considerable public importance. In addition, they were directly linked to the proposed location. Of course, such factors are not themselves “trump cards” in a proportionality assessment. But they are factors which should be evaluated by the decision-maker in that assessment, so that they may properly be weighed in the balance with all other factors, whether for or against enforcement.
• MPS were also wrong to refuse to consider whether, in the particular circumstances of the case, the enforcement of the restrictions would be necessary and proportionate in pursuit of the legitimate aim of protecting health.
• Although there was the superficial appearance of a decision on the particular facts as to whether there was a reasonable excuse for the gathering, “it was in reality a blanket decision.”
• Whilst MPS modified their position following a hearing before Holgate J in advance of the planned vigil, they failed to reflect thereafter his judgment that made clear that the burden on the issue of reasonable excuse lay on the state and that any decision about this vigil would need to involve a tailored proportionality assessment. The terms of their draft press statement did not accurately reflect the judgment, or the applicable law and indicated a a pre-determined view about what the outcome of any further decision-making would be: “There is nothing to indicate that the importance of the cause had been factored in, and every reason to believe it had been deliberately left out of account.” The final version still failed to accurately reflect the law as stated in the judgment. An MPS log entry recorded that the judge had “supported police”, which was not an accurate reflection. There remained no evidence that MPS had in mind the need to consider the Ziegler factors or to have addressed the fact that some form of vigil was inevitable and the Claimants had put in place some proposed mitigations.
• Per Holgate J:
Against the background of what had taken place prior to the High Court hearing, the police failed to engage properly with the claimants on the issue of appropriate measures to mitigate health risks of the public attending a vigil on Clapham Common and then to assess the residual risk taking such measures into account.
• The Claimants were accordingly granted declaratory relief. The court rejected the Defendant’s contention that relief should be refused on the basis of s31 of the Senior Courts Act 1981, i.e. that it was highly likely that the outcome would not have been different if the conduct complained of had not occurred. Here, the actual outcome was the Claimants’ decision to abandon the vigil. It was possible that this would have happened anyway if the Defendant’s officers had taken lawful decisions rather than the unlawful ones they did take, but the court was not persuaded that this was highly likely. Indeed, the policing plan following the cancellation MPS anticipated a short and peaceful event such that those who came to lay flowers and pay their respects could in all the circumstances have had a reasonable excuse for contravening the restrictions.
• The court declined to award damages – this judgment, coupled with an appropriate declaration that the defendant’s decisions were unlawful, was sufficient to afford the Claimants just satisfaction.