11th March 2022
The ‘Reclaim these Streets’ decision was handed down by the High Court today.
In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.
The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.
First, the court placed the police decision-making under anxious scrutiny.
This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.
This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.
Second, and just as refreshing, the court took the legal right to freedom of expression – under Article 10 of the ECHR – seriously.
This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.
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This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.
Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.
Well done to all who were involved.
We did it!!!!!! @ReclaimTS pic.twitter.com/EHGAD0N47U
— Jamie Klingler (@jamieklingler) March 11, 2022
The incredible women behind today's @ReclaimTS victory!❤@jamieklingler, @hennassh, @annamayb, @Jess_Leigh ✊⚡ pic.twitter.com/OcBrnJCZAc
— DeborahFrances-White (@DeborahFW) March 11, 2022
https://twitter.com/davidallengreen/status/1502252517631135752
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“This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.”
Dare I detect a degree of scepticism with the nodding-along approach?
It is indeed an excellent judgment, upholding the right of citizens to hold demonstrations and requiring the police to conduct a proper risk assessment rather than a blanket policy. Of course, the decision to forbid the demonstration is not directly relevant to the “unofficial” vigil that subsequently took place and which was controversial because of the arrests made – I have heard some commentators blame Cressida Dick personally for the way the police handled the vigil. As Warby says: “These events were not organised by the claimants and this aspect of the matter has only tangential relevance to the issues in this case”. Unfortunately when I see news reports, even on the BBC, they report on the victory in court, explain that there was a subsequent vigil and say that the police were “criticised” for their handling of that vigil, implying that they were criticised by the judges who have just given this judgment, which is not true.
I am one of the crowdfunders of Reclaim the Streets, and I’m delighted we won the case. And yet, it is not enough. There are no consequences for police officers and politicians who abuse our rights. Other than mild embarrassment, will any Met Police officer suffer consequences for chilling and stifling protest rights through the whole of the Covid period? Will any politician face even embarrassment for writing and voting for rules which did not include an exemption for political protest?
The last two years have shown that governments can trample on human rights, cause genuine and serious harm for prolonged periods, and then suffer no consequences. The average person is not going to risk arrest and vilification in the hope that a court will later rule in their favour. They will stay home and not protest. The government and police have successfully deterred many political protests and the fact that they have lost a court case a year later doesn’t change that.
It’s not just protest rights either. Think about the extraordinarily restrictive travel rules in 2021 which at one point banned emigration, even though a person who leaves the country permanently won’t bring the virus back here. Some poor Romanians got arrested for the crime of trying to go home. But did any politician face any consequences for this gross overreach? Hell no.
I don’t know what the solution is. But a country where politicians can trample on people’s rights for years at a time, then shrug and say ‘oops’ when a court belatedly says some restriction was invalid is not a country I want to live in.
A politician who restrict rights or civil liberties absent a sound reason does indeed deserve to lose their seat at the earliest available opportunity. But while I agree with much of what you write, in this case I think you may be cherry-picking facts to suit your argument.
Covid-19 is an equal-opportunity viral infection. It doesn’t care who you are, your political affiliations or your views on privacy or freedoms when it attempts to infect you.
If you really want to protest against government over-reach during the Covid Pandemic, there are far better targets for your energy:
– How about the fact that the government’s “track and trace” solution, which they insisted on continuing with despite offers of solutions from Google and Apple, was pursued because their solution had far more intrusive surveillance capabilities?
– How about the fact that the government invested hundreds of millions of pounds of our taxes in no-bid contracts with companies that had little or no history in the medical sector? I read one report citing a contract valued at over £600 million to a no-bid supplier.
– How about the fact that Covid has a “Special Attack Mode” – when it is carried on to an aircraft by an infected passenger, a place where air is recirculated thanks to the need for a pressurised cabin, a perfect location for transmission – yet the government failed to warn people adequately?
– Or that Covid also loves trains – for more-or-less the same reason [trains aren’t pressurised, obviously]. Look at the infections over time on a map of the UK and see how the main train commuter routes out of London were “rat runs” for the virus.
So yes, you are entirely correct to suggest that we should be completely dissatisfied with the performance of this government throughout the Covid pandemic. It’s just that I think the reasons you cite are mis-placed.
Thanks to the UK government’s derisory response, failure to act with sufficient haste or decisiveness, the UK has one of the highest per-capita mortality rates of any country in the world. *That* is something we should be infuriated about. Being asked to stay at home for our collective safety? Not so much.
Many of the examples you cite are of the government’s notorious incompetence and casual attitude to following procedures – not the overbearing nature of restrictions.
On the latter point, even if one accepts that delaying the spread of the virus is a desirable aim – which, for the early stages of the pandemic, was perhaps arguable – it is striking that other countries managed to achieve much the same effect (limiting the R value) with a much less severe impact on basic liberties.
For example, we were just about the only country in Europe or even the western world to have hotel quarantine (officially, it is still on the books – there are just no “red list” countries). And even as late into the pandemic as March 2021, we were persisting with restrictions on (relatively small) outdoor gatherings – despite the fact that it became clear very early on in the pandemic that outdoor spread was limited.
If you compare the Blavatnik Government Response Tracker indices for different countries, side-by-side with death rates and other indicators, it’s clear that there is a very weak correlation between onerous restrictions and deaths for example. Of course, that is only a small part of the picture, and to fully assess things you would need to look at other factors such as economic impacts, the state of the health service before, during and afterwards, mental health and many more.
In truth, it will probably never be possible to definitively say that any one country got it all right, and another got it all wrong. But there was certainly a tendency for unnecessarily onerous restrictions here, in line with the government’s generally populist stance. The contemporary scrapping of restrictions is largely attributable to political expediency, rather than the government’s advisors’ advice.
The commentary remarks on “nodding along by judges at police conduct”. Possibly judges hearing both sides arguments are more aware that journalists (and even legal bloggers!) of the difficulties the police face. The demonstrators have a right to free expression. Whether the police response is a lawful interference with that right is a judgement of proportionality.
The local area police commander has to decide in advance and very rapidly how to police a demonstration. He or she will have to take decisions on incomplete information. Any lawyer advising the officer will have the same difficulties. And they are expected to make the proportionality judgment correctly!
The Supreme Court in Zeigler set out a “non exhaustive” list of questions. Factors include
(1) the nature and extent of any potential breach of domestic law and
(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’”. In this context it is worth recalling that the Strasbourg cases reveal a hierarchy of kinds of speech, such that (for instance) hate speech or other kinds of criminal speech carry little if any weight, but especial weight is given to expression on political topics, where there is little scope for legitimate interference.
(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
A court comes to the same question months later, when questions about how many attend and how well behaved they were are certain. And when there have been months of press commentary on the outcome. But is hardly surprising the fairer courts do give the police a margin of latitude and allow for mistakes.
The small shoots of judicial support for freedom of expression are indeed welcome. But to turn on the police is aiming at the wrong target
I have published this comment with reluctance – as the ‘you don’t understand the police’ line is sooooo irksome. It is a defence the police (and those sympathetic to the police) too often use to deflect any criticism. Indeed, I think I can recall it being used for every single police outrage over the last twenty years. It is the way the police deflect criticism, not meet it.
This response might carry slightly more weight if the judgment of the court in this case had not made it abundantly clear that, repeatedly, the police made no meaningful attempt to balance the various factors that you have outlined. However difficult that job may truly be, they didn’t even try.
Initially, they plainly indicated that the proposed event would necessarily be unlawful, illegal, or a breach of the legislation, and the organisers and participants would be liable to prosecution. In the later correspondence, they relied on College of Policing guidance that was incorrect and misleading, and got the law badly wrong by (i) putting the onus on the organisers to show they would have a reasonable excuse as a defence (rather than explaining as an ingredient of the offence why beyond reasonable doubt there there could be no reasonable excuse), and (ii) refusing to consider whether the police were acting in a reasonable and proportionate manner (rather than being unreasonable and heavy-handed).
Even after a High Court judge had considered an urgent application the day before the proposed event, and indicated the factors that are relevant, the immediately following police decision appeared to be pre-determined, did not take account of the factors the judge had outlined, and still indicated that any gathering would necessarily be unlawful.
It is extraordinary how dozens and dozens of police can be assembled at short notice, with helmets and other equipment, to suppress peaceful protest, but how long it takes to decide whether or not a bloke having drinks or a cake with dozens of his mates, with or without his wife and infant child, is attending a necessary work event. So difficult to make proportionate decisions, isn’t it.
Every time it seems like the Met might have reached rock bottom there is something else. Just imagine, strip searching a 15 year old girl at school, without an appropriate adult being present, including requiring her to remove her period products, because a teacher said they could smell cannabis? This been part of the law and guidance for literally decades. Do none of these people have their own daughters or sisters?