Occupy London: Is it possible to protest too much?

I have just finished reading Mr Justice Lindblom’s judgment handed down yesterday in The Mayor, Commonalty and Citizens of the City of London – v- Samede and others [2012] EWHC 34 (QB) dispute. 

It is easy to forget that for all the media coverage of anti-capitalism, tent heat detectors and Vivienne Westwood’s support, this case when distilled is simply a claim for possession of land. 

The judge considers in detail the laudable motivations of the Occupy London protestors but ultimately,   concludes that all the necessary ingredients of a sound claim for possession of highway are present – that the Occupy London protestors entered and remained on the land without the consent of the City of London Corporation as highway authority. 

As expected he analyses the protestors’ rights under the Human Rights Act 1998, of freedom of expression (article 10), freedom of assembly (article 11) and weighs these up against the right to worship (freedom of conscience, article 9) and the rights of the public to go about their daily business.  On balance, Mr Justice Lindblom concludes that permanent occupation of the highway went too far.  Possession is ordered.

Counsel for the protestors remain determined to carve out a right to permanently protest, and so there is currently no prospect of the City of London in practice reclaiming the highway.  The defendants will appeal, likely arguing that proportionality under the Human Rights Act does not require eviction of the St Paul’s encampment, but that the judge should have considered a reduced presence, less tents, limited hours.  I am not sure how this fits in with the claim for possession which obliges the court to order possession of the whole if the case is made out.  I am concerned as to the time this may take.  

Having exhausted the English appeals system, the case could then go to Europe.  At last count the European Court of Human Rights had a backlog of approximately 155,000 cases, meaning that non-priority cases will not be heard until 2022.  There must also be a concern about the cost of ongoing challenges to the City of London Corporation.  Theirs is public money. In contrast, the Occupy Bristol protestors vacated voluntarily having made their point in order to avoid wasting taxpayers’ money.

Ultimately this whole affair reinforces my view that if you are faced with people occupying your land – be you a private landowner or a local authority the position is unsatisfactory. Currently the law consists of a patchwork of civil remedies and criminal penalties.  They are often unwieldy, applied inconsistently and are slow and expensive.

The government has recently finished its consultation on the options for dealing with squatters on private land and has concluded that it will introduce a new criminal offence of squatting in residential buildings.  This will not be extended to non-residential buildings, primarily, I believe, to avoid criminalising protests on private land.  Protestors on private land do not have the protection of the Human Rights Act.  The landowners have civil law remedies.  The police also have powers under various pieces of legislation to deal with aggravated trespass, trespassory assembly and trespass on designated areas. 

In the case of the Occupy London protest, their originally target had been the London Stock Exchange, which is located in the privately-owned Paternoster Square.  The owners of the square were able to get an injunction against the protestors barring them from accessing Paternoster Square. 

The remedies available to private landowners seem suddenly to be relatively straightforward – although expensive.  Consider, for instance the Camp for Climate Action in 2009 that targeted coal fired power stations in Kent both by land and the Medway River. This drained the combined resources of various energy companies and of the Kent police, utilising a combination of private injunction, court enforcement officers and the police.  When compared to the efforts required by the Mayor of London to clear Parliament Square and the City of London Corporation to deal with the St Pauls protest, however, the effort seems slight.

What of our public spaces, of our national monuments in the year of the Diamond Jubilee and the Olympics when the world’s attention is focussed on London?  The age of lengthy residential protest is with us.  I believe that it is time to reform the laws and to introduce a more straightforward mechanism that is cheaper and quicker to police. It is perfectly possible to do this, whilst at the same time preserving the right to protest.

Caroline DeLaney is a partner and head of real estate disputes at Kingsley Napley LLP.