Last week the High Court handed down its judgment on the high profile judicial review brought against the Commissioner of Police for the Metropolis by a number of activists and politicians who support Extinction Rebellion (XR), the environmental pressure movement.
The decision challenged was that of Superintendent Duncan McMillan taken on 14 October 2019 to impose a condition on the “Extinction Rebellion Autumn Uprising” (XRAU) that any assembly linked to the XRAU must “cease their protest(s) within London (MPS & City of London Police Areas)…” by 9pm that evening (the “Condition”). The Condition was subsequently removed on 18 October 2019.
The matter was dealt with by the Court at an expedited hearing, which addressed preliminary issues regarding standing and permission and the substantive questions of i) whether there was power to impose the Condition (pursuant to section 14(1) of the Public Order Act 1986), ii) if so, whether the Condition was so uncertain in its effect that it was unlawful and iii) what relief, if any, ought to be granted.
Who can bring the claim? A ‘critical’ examination by the High Court
It was common ground that the Third, Fourth and Seventh Claimants had standing to bring the claim, being two individuals who had been arrested for breaching the Condition and one organiser for an XR group who facilitated the removal of ‘lost and found items’ from Trafalgar Square following the imposition of the Condition.
However, the question arose as to whether the rest of the Claimants met the usual test of having “sufficient interest in the matter…” to apply for judicial review of the decision. This is a case specific test and, in the circumstances where there were other Claimants who did have standing and could address the substantive issues, the Court noted it will “examine more critically” the claims of others claiming standing.
The importance of ensuring that those who bring claims for judicial review are limited to those best placed to bring the claim was emphasised in the Judgment, not least because of the potential for additional claimants to increase the costs of the litigation. This serves as an important reminder to claimants considering launching or joining ‘public interest’ judicial review claims. On the facts, there was no evidence that this second group of Claimants had been deterred from protesting and the Court found they did not have a sufficient interest to bring the claim.
Was XRAU a ‘public assembly’? Interpreting section 14(1)
The Court found that the XRAU was not a ‘public assembly’ at which Superintendent McMillan was present and therefore it followed that there was no power to impose the Condition under section 14(1) of the 1986 Act. Both sides relied on a ‘natural interpretation’ of the relevant provision but in its judgment, the Court focused on surrounding wording in the 1986 Act and relevant definitions to reach its conclusion. The assisting provisions that the Court considered included references to the ‘senior police officer’ being present “at the scene” and an ‘assembly’ taking place at a location to which the public has access and “is wholly or partly open to the air”, as opposed to a series of separate locations, as was the case with the relevant XRAU gatherings.
In light of the above finding, the Court considered it was not necessary to go on and decide whether the Condition was sufficiently certain so as to be lawful. It therefore quashed the original decision to impose the Condition on the basis that there had been no power to impose it.