Owen Greenhall, a pupil barrister at Garden Court Chambers and an Executive Committee member of the Haldane Society of Socialist Lawyers, spoke about protestor occupations on 19 June during Law on Trial at Birkbeck, University of London.

1. Owen Greenhall

2. ‘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’
(Laws LJ, Tabernacle v SSD [2009] EWCA Civ 23)

3. Criminal Law
 Aggravated trespass
 Obstruction of the highway
 Public order powers (POA 1986)
 Adverse occupation of residential premises
(s7 CLA 1977)
 Squatters Shield (s6 CLA 1977)
 LASPO 2012

4. Civil Law
 Possession Orders & IPOs
 Injunctions

5. Defending possession claims
(a) Occupier not a trespasser
(b) Claimant lacks immediate right to
possession
(c) Procedural failures (Sun Street)
(d) Public law/Human Rights Act defences.

6. HRA Defences: Public auth.
Are human rights defences possible?
Can you rely on Article 10 and 11?

7. HRA Defences: Public auth.
Lord Neuberger:
‘save possibly in very unusual and clear
circumstances, Article 11, and Article 10, should
be capable of being invoked to enable the
merits of the particular case to be considered’.
(Hall v Mayor of London [2010] EWCA Civ 817)

8. Human Rights
 Scope of Art 11 (Cisse v France)
 Location (OSCE guidelines)
 Manner and Form (Tabernacle)
 Obstruction (DPP v Jones, Samede)

9. 3 Issues
 1) Art 10/11 in Private Possession Claims
 2) Rule in McPhail v Persons Unknown
 3) Expansion of Parliament Square rules
through by-laws.

10. Private possession claims

11. Private possession claims
Appleby v UK (2003):
“Where.. the bar on access to property has the
effect of preventing any effective exercise of
freedom of expression or it can be said that the
essence of the right has been destroyed… a
positive obligation could arise for the State to
protect the enjoyment of the Convention rights
by regulating property rights.”

12. Private possession claims
The Ultimate Balancing Test:
“where the values under the two articles are in
conflict, an intense focus on the comparative
importance of the specific rights being claimed
in the individual case is necessary ...the
justifications for interfering with or restricting
each right must be taken into account.. the
proportionality test must be applied to each.”
(Lord Steyn, Re S [2004] UKHL 47)

13. Rule in McPhail
 Kay v Lambeth LBC [2006] McPhail ‘must be
relaxed… in order to comply with article 8’
(Lord Bingham).
 Boyland & Son Ltd v Rand [2006] EWCA Civ
1860
 Pinnock [2010]: ‘if domestic law justifies an
outright order for possession, the effect of
article 8 may, albeit in exceptional
circumstances, justify… granting an extended
order for possession’ (Lord Neuberger)

14. Parliament Square Rules
 Police Reform and Social Responsibility Act
2011
 Prohibited activities:
i) Operating amplified noise equipment
ii) Putting up tents
iii) Placing, keeping in place or using sleeping
equipment
 Authorised officers (directions, seizure)

15. Parliament Square Rules
 City of Westminster Byelaws (2012)
 Trafalgar Square Byelaws (30.3.2012)
 R(Gallestegui) v Westminster City Council
[2012] EWHC 1123 (Admin)