IN THE CITY OF LONDON MAGISTRATES’ COURT
- v -
EXTINCTION REBELLION Defendants
DEFENCE SKELETON ARGUMENT:
SECTION 14(5) PUBLIC ORDER ACT 1986
1. The Defendant faces a charge of Knowingly Failing to Comply with Condition(s) imposed Under Section 14 of the Public Order Act 1986 (‘POA 1986’) contrary to s14(5) POA 1986.
2. This skeleton argument is served on behalf of the Defendant. It addresses the legal issues arising in relation to the charge in general terms. Further factual and legal matters will be addressed in oral submissions.
BACKGROUND AND SUMMARY
3. The Defendant’s presence at the scene is not in dispute.
4. It is clear that at the time of the alleged offence, the Defendant was participating in a peaceful protest exercising rights to freedom of expression and assembly as protected under the common law and Articles 10 and 11 of the European Convention on Human Rights (‘ECHR’).
5. It is the Prosecution case that conditions imposed on the assembly were lawfully imposed under Section 14(1)(a) POA 1986 and that the Defendant knowingly failed to comply with such conditions.
6. The Crown are put to strict proof of all elements of the offence not specifically admitted. In particular, the Defence require the Prosecution to prove:
i) That the Defendant knew of specific terms and nature of the conditions imposed under s14(1)(a) POA 1986.
ii) That any conditions imposed under s14(1)(a) POA 1986 were lawful.
iii) That the Defendant’s actions were not justified under the defence of necessity.
7. In summary, the Defendants’ case is that, based on research, knowledge and discussions with others, they genuinely believed that:
i) Climate change is already causing widespread loss of life, injury to health, and damage to homes, livelihoods and property, as well as to the means of the human race to sustain itself.
ii) Continued further development of fossil fuels will cause widespread destruction, and unimaginable harm and suffering in the UK and worldwide to humans and other species, as demonstrated by scientific evidence, including peerreviewed science and reports by the UK Government and international organisations.
iii) Evidence shows that, without urgent and radical change and governmental intervention, the temperature of the planet will reach a “tipping point” of 1.52°C, such that the effects of global warming will become irreversible. A report by the UN’s Intergovernmental Panel on Climate Change found that that point is likely to be crossed by 2030 at current rates of emissions. The evidence shows that unless immediate action is taken, it will be too late to prevent the irreversible warming, with devastating consequences.
8. By taking action on the date of arrest:
i) The Defendant’s actions were a lawful and legitimate exercise of freedom of expression, as protected under the common law and Articles 10 and 11 ECHR; and,
ii) The Defendant acted to protect themselves and others from a greater evil. As such, Ds’ actions were reasonable, necessary and proportionate in light of the severity of the immediate risk, and inevitable consequences of inaction to prevent the consequences of manmade climate change.
9. Section 14 POA 1986 states (insofar as is relevant):
14 Imposing conditions on public assemblies.
(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do, he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.
(2) In subsection (1) “the senior police officer” means—
(a) in relation to an assembly being held, the most senior in rank of the police officers present at the scene, and
(b) in relation to an assembly intended to be held, the chief officer of police.
(3) A direction given by a chief officer of police by virtue of subsection (2)(b) shall be given in writing.
... (5) A person who takes part in a public assembly and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.
... (9) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
10. Section 14 POA 1986 does not confer a power to ban an assembly outright but merely to impose conditions in accordance with s14(1) (Austin and Saxby v Commissioner of Police of the Metropolis  EWCA Civ 989 at ).
11. The mental element of the offence requires:
i) knowledge of the specific conditions that were imposed under s14 POA
ii) knowledge that such conditions were imposed under s14 POA 1986; and,
iii) deliberate failure to comply with the conditions imposed.
LEGALITY OF S14 CONDITIONS
12. In order to establish liability for an offence under s14(5) POA 1986, the Prosecution are required to prove that the conditions imposed under s14(1) are lawful. As Ouseley J stated in James v DPP  EWHC 3296 (Admin):
“It is necessarily implicit in s14(5) that the direction containing the conditions must be lawful. Acquittal would follow, if it were not” (at ).
13. In order to prove that a direction under s14(1) is lawful the following, inter alia, must be established by the Prosecution to the criminal standard:
i) the direction under s14(1) was made by the senior officer at the scene;
ii) the officer making the direction believed that the assembly may result in serious disruption to the life of the community and such belief was based on reasonable grounds;
iii) the officer making the direction believed that the conditions were necessary to prevent such disruption and that such belief was based on reasonable grounds (see James at ); and,
iv) the conditions imposed must constitute a proportionate interference with the rights to freedom of assembly and association as protected under Articles 10 and 11 ECHR.
FREEDOM OF SPEECH – ARTICLES 10 AND 11 ECHR
14. Articles 10 and 11 of the European Convention on Human Rights state:
Article 10 – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11 – Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
15. Taken together Articles 10 and 11 protect the right to protest.
16. Under Section 3 of the Human Rights Act 1998 (‘HRA 1998’) the Court is required to ‘read and give effect’ to primary and subordinate legislation in a way which is compatible with convention rights. Under Section 6(1) HRA 1998: ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Public authorities clearly include the police.
17. In R (Laporte) v Chief Constable of Gloucestershire Constabulary  UKHL 55, the House of Lords underscored that the HRA 1998, giving effect to Articles 10 and 11 ECHR, represented a “constitutional shift” in the approach to freedom of expression and assembly (per Lord Bingham at , Lord Carswell at  and Lord Brown at ). PreHRA 1998 cases on limitations to the right to protest must therefore be treated with caution.
18. As the courts have repeatedly made clear, direct action protests, including lock ons, occupations of land and other activities which are capable of being disruptive to others, fall within the scope of Articles 10 and 11. In Hashman and Harrup v United Kingdom (1999) 30 EHRR 241 the court stated: “It is true that the protest took the form of physically impeding the activities of which the applicants disapproved, but the Court considers nonetheless that they constituted expressions of opinion within the meaning of Article 10... The measures taken against the applicants were, therefore, interferences with their right to freedom of expression.” (at )
19. This was confirmed domestically in R v Roberts & Others  EWCA Crim 2739 which concerned the deliberate blocking of a major road for a period of 3 days. The Court of Appeal stated: “there is no doubt that direct action protests fall within the scope of articles 10 and 11...“ (at ).
20. While Articles 10 and 11 are not unqualified rights, they may only be limited in strictly circumscribed circumstances set out in Articles 10(2) and 11(2). Any interference must therefore be:
i) prescribed by law;
ii) necessary in a democratic society; and
iii) proportionate to the legitimate aim pursued.
21. What is ‘necessary in a democratic society’, means more than ‘admissible’, ‘useful’, ‘reasonable or desirable’ (Handyside v United Kingdom (1976) 1 EHRR
737 at ).
22. At common law, any order imposing a criminal sanction is required to be drafted with sufficient precision and clarity that those subject to it are able to understand precisely what is and is not prohibited under the order (see, in the context of an injunction, AG v Punch Ltd  1 AC 1046 (HL) at ).
23. A police power which interferes with a qualified convention right such as Article 10/11 must be exercised ‘in accordance with law’ in order to be proportionate. Where police directions that engage the fundamental rights of freedom of speech lack clarity, they will not have sufficient certainty for the interference with the Article 10/11 Rights of those affected to be ‘in accordance with law’. In Gillan v United Kingdom (2010) 50 EHRR 45 the Court stated:
“The Court recalls its well established caselaw that the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual if need be with appropriate advice to regulate his conduct (S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008...)” (at ).
24. It is recognised in the Strasbourg caselaw that even minor and temporary measures which do not directly interfere with the exercise of freedom of expression can nonetheless be disproportionate where the imposition of the measure has a ‘chilling effect’ on peaceful protest In Christian Democratic People's Party v Moldova (2007) 45 E.H.R.R. 13, the ECtHR ruled:
“The temporary nature of the ban [on public meetings] is not of a decisive importance in considering the proportionality of the measure, since even a temporary ban could reasonably have a ‘chilling effect’” (at ).
25. In Cumhuriyet Vakfi and Others v Turkey (Application no. 28255/07), the ECtHR considered an injunction restricting freedom of expression that was passed in ‘very general and unqualified terms’ where there was a ‘lack of clarity’ about the prohibitions. It held that ‘the ambiguity surrounding the interim injunction fell foul of the principle of legal certainty’. The Court concluded that the ‘lack of certainty may have also had a general chilling effect’ on freedom of speech.
26. These principles have been reflected in domestic jurisprudence where injunctions limiting ‘slow walking’ have been struck down for lack of sufficient clarity (Boyd & Others v INEOS Upstream Ltd  EWCA Civ 515 at ).
27. The following principles are relevant to the factspecific assessment of the necessity and proportionality of any restriction on Articles 10 and 11 ECHR in the context of a public protest:
i) Any restrictions on a defendant's Article 10 and 11 rights must be ‘narrowly construed’ and ‘convincingly established’ (Sunday Times v United Kingdom . (No 2)  14 EHRR 229).
ii) Where the expression in question “relates to “a debate on a matter of general concern and constitutes political... expression... a high level of protection of the right to freedom of expression is required under Article 10” (Lindon and others v France (2008) 46 EHRR 35 at )).
iii) Article 10 covers not only the substance of what is expressed but also the means of expressing it. For example, in Tabernacle v Secretary of State for Defence  EWCA Civ 23 a byelaw prohibiting a 'peace camp' was found to be unlawful despite the fact that those taking part could have protested in other ways.
iv) Protests that cause inconvenience to others are nevertheless protected (as per Laws LJ in Tabernacle v SSD):
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.” (at ).
v) This is reflected in the ECHR case law. In Kuznetsov v Russia (application No 10877/04) the Court stated:
“As a general principle, the Court reiterates that any demonstration in a public place inevitably causes a certain level of disruption to ordinary life, including disruption of traffic, and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance” (at ).
vi) Significant weight should be given to the chosen location of a demonstration (Hall v Mayor of London  EWCA Civ 817). In that case, the location of the demonstration outside Parliament was a significantfactor in assessing the reasonableness of any attempt to prevent the demonstration from continuing.
vii) The priority to be given to the chosen location of a demonstration is emphasised in the OSCE Guidelines on Freedom of Peaceful Assembly (2010):
“In particular, the state should always seek to facilitate public assemblies at the organizers’ preferred location, where this is a public place that is ordinarily accessible to the public” (para 19)
“Public assemblies are held to convey a message to a particular target person, group or organization. Therefore as a general rule, assemblies should be facilitated within ‘sight and sound’ of their target audience” (para 3.5)
viii) Lockon protests restricting access to sites are capable of being lawful, even when they last over seven hours (R v. Biggs, unreported, Blackpool Magistrates’ Court, 3 November 2017).
28. It is submitted that the Prosecution have failed to prove that the conditions imposed were a proportionate interference with the Defendant’s exercise of freedom of expression and association protected under Articles 10 and 11 ECHR.
29. Archbold (2019) cites the following definition of the defence of necessity (17 117):
“Stephen, Digest of the Criminal Law, p. 9, says that an act which would otherwise be a crime may in some cases be excused if the defendant can show:
(a) that it was done only in order to avoid consequences which could not otherwise be avoided and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil;
(b) that no more was done than was reasonably necessary for that purpose; and
(c) that the evil inflicted by it was not disproportionate to the evil avoided.”
30. This exposition of the defence of Necessity was approved by the Court of Appeal in In re A (Children) (Conjoined Twins: Surgical Separation)  Fam 147 at 240.
31. The modern elements of the defence of Duress of Circumstances (a subspecies of Necessity) were set out in the case of R v Martin (Colin) (1989) 88 Cr.App.R. 343, CA, by Simon Brown J (as he then was):
“First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the accused’s will from the wrongful threats or violence of another. Equally, however, it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called ‘duress of circumstances’. Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to the situation as the accused acted? If the answer to both these questions was yes then the ... defence of necessity would have been established” (at pp. 345–346, emphasis added)
32. From this extract, the following elements of the defence of Duress of Circumstances may be identified:
i) a defendant must genuinely believe that there is a threat of death or serious injury to persons;
ii) that belief must be reasonable; and
iii) the actions of the defendant must be a reasonable and proportionate response to the threat.
33. Where raised, the burden lies on the Crown to disprove a defence of Necessity.
34. There is no requirement that the threat be to persons closely connected to the defendant (i.e. members of his/her family or similar). Nor does the threat need to be to persons geographically proximate to the defendant. Nor must the threat be to persons that can be identified individually either by name or through description. As stated in Lord Advocate’s Reference No 1 of 2000 (2001) JC 143 at §§4445:
“...the existence of a prior relationship as a precondition of necessity has nothing to commend it... If one had to define ‘companion’ it would be anyone who could reasonably be foreseen to be in danger of harm if action were not taken to prevent the harmful event. There was considerable discussion whether the defence of necessity could be available where the place and person or persons under threat from the apprehended danger were remote from the locus of the allegedly malicious damage. We can see no reason in principle why the defence should not be so available. In the modern world many industrial processes have inherent in them the potential for mass destruction over a wide area surrounding a given plant. If a person damaged industrial plant to prevent a disaster which he reasonably believed to be imminent but which he could avoid by the actions taken, there is no compelling reason for excluding the defence of necessity solely on the grounds that persons at risk were remote from the plant provided they were within the reasonably foreseeable area of risk.”
35. There no requirement that the dangers giving rise to a defence of Necessity be absolutely immediate.
i) As stated by Lord Goff in F v West Berkshire Health Authority  2 AC 1:
“In truth, the relevance of an emergency is that it may give rise to a necessity to act in the interests of the assisted person, without first obtaining his consent. Emergency is however not the criterion or even a prerequisite; it is simply a frequent origin of the necessity which impels intervention. The principle is one of necessity, not of emergency.” (at 24)
ii) This principle was confirmed by Brooke LJ in In Re A:
“There are sound reasons for holding that the existence of an emergency in the normal sense of the word is not an essential prerequisite for the application of the doctrine of necessity. The principle is one of necessity, not emergency” (at 239)
36. Similarly, in R v Safi  EWCA Crim 1809, the court held that a defence of duress should have been left to the jury in a case of concerning the hijacking of a plane in Afghanistan which was transported first to Moscow and then to Stansted. The Court of Appeal considered and rejected the contention that by the time the plane reached Stansted any purported duress ceased to operate. It is clear that, provided there is a nexus between the act committed and the harm sought to be prevented, the degree of imminence of harm is a matter for the tribunal of fact to consider in assessing the reasonableness of the defendants actions.
37. In the present case, the Defendant acted out of necessity to protect the Defendant, the Defendant’s family and friends and others in the United Kingdom and all over the world who are currently suffering serious harm as a result of climate change, and who are at risk of further, devastating harm, death, and mass extinction, once the tipping point is passed. The Defendant’s actions were reasonable and proportionate in light of the severe consequences of inaction.
38. In light of the above, it is submitted that the Defendant is not guilty of the charge alleged.