Public protest, police powers and proportionality

In Leigh v Commissioner of Police of the Metropolis ([2022] EWHC 527 (Admin)), the High Court held that decisions made by the police that a vigil would be illegal because of public health restrictions during the pandemic were unlawful. The decision is important with respect to the balance between the enjoyment of human rights and social interests, and makes more worrying the government’s plans to reform the Human Rights Act.

Campaigners applied for judicial review of decisions of the police that led to the cancellation of a vigil they had planned to hold during the pandemic, prompted by the death of a woman murdered by a police officer a week earlier. The vigil was anticipated to be a peaceful, one-hour socially distanced event, outdoors, but under Sch.3A para.5 of the Health Protection (Coronavirus, Restrictions) Regulations 2020, there could be no gatherings of more than 30 persons. The police considered the vigil illegal, and the claimants maintained that the police had operated its policy without considering freedom of expression and assembly guaranteed by the ECHR. 

The High Court noted that the regulations entitled the police to take “such action as was necessary” to enforce a restriction, and should have started from the proposition that freedom of expression and assembly might provide a ‘reasonable excuse’ – contained in the regulations – for organising a gathering. The police should then have reached a rational and informed assessment as to whether the organisers had such an excuse, considering the public health risks and the steps taken to mitigate those risks. A person involved in an assembly that contravened the regulations would have a “reasonable excuse” where it would be a breach of Article 11 to prohibit or interfere with such involvement, and it was for police forces to undertake that analysis based on all the circumstances.

The Supreme Court decision in DPP v Ziegler [2021] UKSC 23 – a case involving lawful excuse for obstruction of the highway – made it clear that the police must engage with proportionality by conducting a risk assessment, even where it was onerous, as in the context of these regulations. Although the police were primarily concerned with public safety and public order, no enforcement decision could be made lawfully without such an assessment, and a blanket restriction on freedom of assembly was not justified solely on the basis that other forms of protest were permitted. An officer deciding to charge an individual with an offence under regulation 10 must ensure that a conviction would be a necessary and proportionate measure for protecting public health, and the seriousness of any health risk had to be balanced against the rights engaged. In this case, none of the decisions was in accordance with the regulations as the decision-making was legally misinformed, and there was no evidence that the police had carried out a case-specific proportionality assessment that took into account all the relevant Ziegler factors.

The ruling is a good example of why the present government wishes to rid domestic human rights law of the principles of the ECHR, in particular the tool of proportionality that allows the courts to address the balance between ECHR rights and the aim of any restriction. In this case, the police failed to consider the requirement of ‘reasonable excuse’, believing that they were the judges of that term and its application to the facts. As a result, they ignored the values of free speech and assembly, and the particular public interest in this vigil and the decision was in breach of ECHR rights. Lawmakers and the executive would naturally prefer to be left to their own devices in deciding the balance, but proportionality and other measures taken from the ECHR are vital in maintaining a human rights compliant legal order, and must remain part of the courts armoury in defending liberty.