Defending our right to protest and reclaim these streets

by Jamie Klingler

Defending our right to protest and reclaim these streets

by Jamie Klingler
Jamie Klingler
Case Owner
Organiser of “Reclaim These Streets”
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Jamie Klingler
Case Owner
Organiser of “Reclaim These Streets”
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Latest: April 12, 2022

Metropolitan Police refused permission to appeal by the High Court

The High Court has today refused the application of the Metropolitan Police for permission to appeal last month’s ruling in favour of Reclaim These Streets. In a thorough analysis, the court ha…

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Help us expose the police ban on our vigil for Sarah Everard as unlawful and secure protest rights for the future.


The world faces two pandemics. The first, Covid-19, dominates the headlines. The second, violence against women and girls, rarely does. But for many women and girls, the murder of Sarah Everard and the identity of the arrested suspect – a serving police officer - were a turning point. That’s what inspired us to form #ReclaimTheseStreets and organise a peaceful, respectful vigil for Sarah to help raise the profile of the urgent, wider debate.  

The Metropolitan Police thought it a good use of their resources to silence us. We had no choice but to fight back. And we are still fighting. But in order to keep going, we need your help. 

We have a strong judicial review test case ready to take forward. If we succeed, a precedent will be set, not only for policing in Covid times, but for meaningful respect to be shown for protest rights whenever the police are exercising their powers.

And if ever such a precedent were needed, it is now - Parliament is contemplating giving the police even more powers to control protest under the Police, Crime, Sentencing and Courts Bill. 

To take our case to the next stage of the legal process – at which the Court will decide whether our case should have ‘permission to proceed’ - we urgently need to raise £20,000. Please help us by donating now. 

What the case is about

Our case started as an urgent claim for a declaration clarifying the law on protest during lockdown, including on vigils like the one we had planned. The police had warned everyone involved in organizing it could be fined £10,000, arrested, or both. The High Court was asked to review the Police’s stance. 

We were successful in that urgent claim – or so we thought. The court ruled #ReclaimTheseStreets’ view of the law was right – the vigil could be lawful and the police couldn’t. But within hours of the judgment, while discussions between Reclaim these Streets and officers were ongoing, a police press release was issued again proclaiming the vigil illegal. Police couldn’t ban all forms of protest because that would breach human rights law

Facing fines and arrest, #ReclaimTheseStreets stopped organizing the vigil. When many chose to gather anyway, forcible arrests were made and the police were widely criticised.

Weeks on, we are still aghast at the fact that women weren’t permitted to come together lawfully and peacefully to mourn the loss of life, allegedly at the hands of a serving police officer.  

Now, because the case is ongoing, we have the opportunity to greatly reinforce the legal protection for our – and everyone’s - human right to protest, regardless of variants or lockdowns. And just as importantly, if the police are given more power by Parliament, the precedent we hope to set will help hold them back from abusing those powers to suppress peaceful protest. 

Why we need to take this case forward

#ReclaimTheseStreets’ legal case is still live and it remains vitally important. If the Police cannot be held accountable for suppressing an organized, safe, peaceful vigil on the issue of violence against women and girls in the immediate aftermath of a murder where a police officer is the suspected perpetrator, then when can there be accountability? And what meaningful protest rights are there for anyone?

On the merits of the case, we have been advised that the likelihood is that we should win, though that isn’t a certainty.  We have recently received hundreds of pages of documents from the Metropolitan Police which, if anything, reinforce our case against them that the decision to ban the vigil was not about women’s safety or preventing the spread of Covid. 

The vigil is in the past, but the case still matters hugely. People like Karen Reissmann, the NHS nurse who was fined £10,000 for protesting a 1% pay rise, could have fines reversed if our case sets a legal precedent.  

Enshrining our right to protest in law is critical especially if there were to be another lockdown.  They removed the exemption for the right to protest once and can do it again.  When we were initially seeking our right to be confirmed by the court, Harriet Harman wrote to Cressida Dick that not only was the protest legal, but she would be attending. 

Why we need to raise more funds

The money we initially raised has been used up preparing the case for the first hearing, enabling our lawyers (who have been acting on reduced rates) to support us in meetings, demand disclosure from the police and reformulate the claim once we had their documents. 

To make progress, we need more funds now. We will apply for the courts to cap costs--- but that still means that we ultimately need to secure up to £120,000 in order to pursue this case. 

Our immediate, initial target is £20,000 within 10 days – partly to protect us against any claim the police may make for costs; partly to enable our lawyers to respond to the police’s defence. If we raise this, we will be able to take the case to permission stage – where a High Court Judge decides if there is an arguable case. 

Anything you can donate now will help this to be decided in the High Court, expose the police’s abuse of their powers and protect everyone’s protest rights for the future. 

Update 8

Jamie Klingler

April 12, 2022

Metropolitan Police refused permission to appeal by the High Court

The High Court has today refused the application of the Metropolitan Police for permission to appeal last month’s ruling in favour of Reclaim These Streets. In a thorough analysis, the court has held that none of their grounds of appeal has a reasonable prospect of success, and there is no other compelling reason for an appeal to be heard.

The court noted that the police’s case was not properly pleaded, but analysed it as comprising three main grounds:

  1. Incorrect identification of the decision under challenge
  2. Errors in relation to ‘reasonable excuse’
  3. Failure to apply s31(2A) of the Senior Courts Act 1981

In relation to the first point, the court has concluded that there is ‘no merit’ in the police’s argument that the only relevant decision was the refusal of DAC Connors to give the Claimants an assurance that they would not be prosecuted.

On the second point, the court held that the Defendant’s arguments are for the most part ‘hopeless attempts to challenge reasoned factual conclusions’, and ‘lack coherence and fail to address the court’s reasoning as a whole’.

The court dismissed the submissions of the police on the final issue as simply reiterating the same arguments that had already been dismissed.

The police may apply again for permission to appeal directly to the Court of Appeal, but may well hesitate in light of today's emphatic ruling.

Reclaim These Streets said: 

"We are glad that the court has confirmed that the police’s application to appeal was completely misguided. The police acted with total disregard for our fundamental rights last March, and the court has resoundingly recognised this.

We call on the Commissioner finally to accept that the way that we were treated was wrong, and not to attempt any further appeal against this clear and carefully reasoned decision. It is time to stop wasting public funds on fighting a hopeless battle against women’s right to protest, and focus instead on what can be done to improve women’s safety on the streets."

Theodora Middleton and John Halford of Bindmans LLP act for the Claimants. Tom Hickman QC of Blackstone Chambers, and Adam Wagner and Pippa Woodrow of Doughty Street Chambers, are instructed as Counsel.  

Update 7

Jamie Klingler

March 11, 2022

We won!

Today’s judgment is a victory for women.

Last March, women’s voices were silenced. Today’s judgment conclusively shows that the police were wrong to silence us. The decisions and actions by the Met Police in the run up to the planned vigil for Sarah Everard last year were unlawful, and the judgment sets a powerful precedent for protest rights.

We came together, one year and one day ago, to organise a vigil on Clapham Common because Sarah Everard went missing from our neighbourhood. We felt sad and afraid. We were angry that women still weren’t safe and we were tired of the burden to stay safe always weighing on our shoulders. We organised it because as women we needed a space to stand together in solidarity, grief and defiance. And above all we organised it because it’s wrong that women face violence and harassment every single day.

We couldn’t have imagined the far-reaching implications of our decision to organise, and certainly never imagined we would be here in the High Court a year later – but we couldn’t stand by in the face of the Met Police’s determination to prevent women from exercising their human right to protest.

We feel vindicated by today’s judgment. This case exposes the Metropolitan Police’s total disregard for women’s human rights to assembly and expression. It shows that the Met Police’s decision-making was flawed at every single step of the process. They got the law wrong last March, and the interim judgment from Justice Holgate said as such.

But rather than change their approach they dug in their heels, closed ranks and got the law wrong again. In the words of Lord Justice Warby, the MPS decisions and communications were “legally mistaken”, “simplistic”, “misinformed” and “misleading”.

The implications of this judgment should reverberate widely.

We hope that as Parliament considers giving the police greater powers to curb protests, in the Police, Courts, Sentencing and Crime Bill, that this ruling reminds everyone the importance of upholding our human rights. We believe it sets an important precedent for future protests and the way they are policed.

We hope that those who face greater barriers to accessing justice can benefit from the precedents that today’s ruling set on protest rights – because in pursuing this case we have learnt just how difficult and expensive it is to access justice and hold our institutions to account. We know we are lucky to have been able to take this case all the way to the High Court - a privilege not afforded to many. We thank our amazing legal team, and we are especially grateful to everyone who contributed to our legal fundraiser.

And we hope that the police learn some important lessons. And if the police appeal this decision, we think it would further erode women’s trust in the force. Instead of wasting taxpayers’ money on an appeal, we hope that they will invest the funds in measures that tackle misogyny and keep women in London safe. 

Update 6

Jamie Klingler

Jan. 26, 2022

Detailed Court report and a huge thank you

The full hearing in our challenge against the Metropolitan Police’s handling of the planned #ReclaimTheseStreets vigil following the tragic death of Sarah Everard took place on 19 and 20 January 2022. The key developments are: 

  • our case was put very powerfully over the two day hearing; 

  • the Police made some extraordinary arguments at the hearing including that when we and others were told our planned vigil was unlawful they had not made their minds up that crimes would be committed by us as organizers and attendees; and

  • judgment was ‘reserved’ (the Court will think about its decision further then write up a judgment)  and we will update you as soon as it is available.  

Bringing this important challenge was made possible by all those who supported us so thank you. We are hugely grateful for all your support. You can still contribute to our fighting fund which is being fundraised on CrowdJustice.

The hearing 

The hearing took place at the Royal Courts of Justice in front of Lord Justice Warby and Mr. Justice Holgate.  

We were represented by Tom Hickman QC who was supported by barristers Pippa Woodrow and Adam Wagner along with our solicitors John Halford and Theodora Middleton and their colleague Hannah Cheesebrough

The written submissions our lawyers filed before the hearing which set out our case in detail can be read here, and here are the submissions the police made. 

How our case was argued

The first day of the hearing was largely dedicated to our case, with Tom Hickman QC making submissions on our behalf. He opened with an overview of our case explaining that we were bringing a challenge under the Human Rights Act against the Metropolitan Police for deterring us from organizing a vigil in memory of Sarah Everard at Clapham Common on 13 March 2021.

Mr. Hickman explained that the Police had made clear to us that in their view the vigil was prohibited by law and as such the Police would not only offer no assistance in its organization but in fact repeatedly warned us not to organise the vigil, expressly informing us that continuing to do so would expose us to potential penalties such as a Fixed Penalty Notice of up to £10k each or prosecution. 

Mr. Hickman argued that in the circumstances citizens such as ourselves had no realistic option but to stop organizing the vigil. Our case is therefore that the unwavering stance adopted by the Police that the vigil was unlawful represents a significant interference with our rights to freedom of expression and freedom of assembly and association. 

Both judges were extremely engaged and intervened regularly with a series of questions. For instance, they challenged Mr. Hickman on whether we did not proceed because the Police were unable to offer an assurance that no enforcement action would be taken in association with the vigil. Mr. Hickman emphasized that the Police in fact went beyond simply not offering an assurance, which was not the central issue in the case, instead actively telling us that our actions would expose us to penalties including substantial fines. 

Mr. Hickman took the Court through the evidence which included internal police correspondence and contemporaneous records such as operational logs. This evidence demonstrated that the Police position was consistently that all large gatherings were inevitably unlawful, even if for the purposes of protest. 

He argued that in reaching and maintaining this position the Police failed to properly consider whether we might have had a reasonable excuse for organizing a gathering of the nature proposed. He argued that the police erroneously only considered the issue of reasonable excuse at the enforcement stage when they should properly have been considering it when determining if there would be unlawful conduct in the first place. He contended that the Police failed to consider whether it would actually be necessary and proportionate to restrict or prevent the vigil on public health grounds, where despite making various claims about the health risk, the Police had not actually carried out any assessment of the public health risk of the proposed vigil. 

He also argued that by not properly taking account of our fundamental rights the actions taken by the Police were not prescribed by law and as such the interference with our rights was unlawful. 

Mr. Hickman noted that an act can only be unlawful if it is a civil wrong or a criminal offence and highlighted that the holding of such a gathering was neither when the person in question had a reasonable excuse, something the Police ought to properly consider before the enforcement stage. Yet the Police regularly characterized the proposed vigil as unlawful. 

Mr. Hickman refuted the Police’s assertion that officers had been drawing a technical distinction between contravention of the Regulations and a criminal offence. He pointed out that any person hearing a police officer referring to conduct as unlawful, as the Commissioner herself did, would understandably assume they meant it was a criminal offence. He further noted that the suggestion they meant anything else begged the question of whether they were being sufficiently transparent to ensure the law was clear and precise so as to enable people to understand their rights and obligations under it. 

In his submissions Mr. Hickman drew the Court’s attention to case law such as Dolan and Ziegler which emphasize the importance of freedom of expression in a democratic country and highlight the need for any restrictions on such rights to be necessary and proportionate. 

Mr. Hickman highlighted that the purpose of the proposed vigil was to channel our grief at Sarah’s passing and reclaim a space to provoke change by coming together in numbers to build solidarity in the context of the deeply disturbing and upsetting events that were being reported. He pointed out that this could not have been achieved in the same way via, say, an online event, highlighting that we always wanted to organise the vigil in a COVID-safe way with the cooperation of the Local Council who were supportive without reservation, and the Police, who were in our view, not supportive.  

Mr. Hickman referred to various meetings we had with the Police during which we were told that the vigil could not go ahead because the Police’s “hands were tied by the Regulations”. A position which we say did not change even after the Court’s 12 March ruling on the matter after which the Police said they remained “in the same position as before”. Mr. Hickman spoke of how during one of our meetings with the Police they issued a public statement that made clear the vigil could not go ahead, despite the fact the meeting was ongoing. 

Mr. Hickman drew attention to what he described as quite an extraordinary thing for the Police to have said, namely that if we had been confident that the Police were wrong we had the option to continue organizing the vigil and contest the validity of any Fixed Penalty Notice, in the first instance by not paying it. He pointed out that citizens tend to follow the advice of the Police. 

Fundamentally, Mr. Hickman argued that what the Police should have done was to have a policy which reflected that whilst there was no express exemption for protest under the relevant Regulations, protest was not automatically unlawful. It should have recognized that people would have a reasonable excuse to protest unless it could be shown that it was necessary and proportionate in the interests of public health to restrict those rights. In making such an assessment safety measures, such as those we proposed, would need to be considered. However, the Police apparently took the view that the decision on whether it was proportionate to impose restrictions on our rights had already been taken by Parliament when imposing the restrictions on large gatherings, an assessment the Police treated as determinative. Mr. Hickman maintained that the Police nevertheless have a duty to take such steps as are reasonable to keep themselves informed and should have consulted health partners and devised a policy on appropriate measures to be kept under review.  He emphasized that the Police could not rightfully rely on the Regulations themselves and assume that nothing had changed in the several months before the relevant events. 

Mr. Hickman emphasized the point that by the Police considering proportionality at the enforcement stage having already determined the conduct was unlawful this had a worrying chilling effect on the conduct of protestors. 

The judges questioned Mr. Hickman on the practicality of the Police conducting a balancing of rights exercise in advance. In response Mr. Hickman pointed out that such a question is academic as the Police failed to even attempt such an assessment. Mr. Hickman explained that had the Police conducted such an exercise, it is possible that they may have taken the same view that restricting the vigil was proportionate; but in reality, they reached that decision unlawfully, and there is no way for the Court to know at this stage what the outcome would have been if they had taken the decision in a lawful way. 

Whilst Mr. Hickman acknowledged that the Police cannot discriminate between causes when it comes to policing protests, he argued that this does not remove their obligation to make judgement calls about the precise nature of the individual gatherings proposed and the specific risks associated with them, particularly when the Police themselves recognized that some form of protest would likely go ahead in any event.  

Mr. Hickman drew the Court’s attention to evidence of a threat assessment conducted by the Police concluding that the biggest threat posed by the vigil was to confidence in policing. Mr. Hickman went on to question how, if in the Police’s submission they could not take a view on the legality of the vigil in advance, they were able to publicly state that it would be unlawful in advance. He drew attention to the video of the Commissioner stating the vigil would be unlawful which was recorded the day prior to the proposed vigil. Mr. Hickman emphasized that anyone who listened to such a statement would reasonably draw the conclusion that participation in the gathering would amount to a criminal offence. 

Mr. Hickman submitted to the Court that it was simply not possible for the Police to properly exercise their enforcement functions in relation to a protest without considering if it was necessary and proportionate in the interests of public health to restrict the gathering; a question they could not answer without having made reasonable efforts to assess the public health risks. He acknowledged that this was an unusual function for the police but stressed that the pandemic has thrust the Police into an unusual position and if they cannot assess the risks, they should not be actively stopping people from exercising their human rights. 

The Police’s defence of their actions  

The lead barrister for the Police, Ms. Monica Carss-Frisk QC, then addressed the Court. Ms. Carss-Frisk started by addressing the distinction the Police drew between an act being unlawful in the sense it is contrary to the Regulations as opposed to being a criminal offence. She argued that when police officers referred to the vigil as being “unlawful” they did not necessarily mean criminal, rather they meant not permitted by the Regulations. 

Ms. Carss-Frisk submitted that “unlawful” simply meant that an act was contrary to the law and therefore a breach of the Regulations was unlawful, even if not necessarily criminal. Ms. Carss-Frisk explained that when officers described the vigil as “unlawful”, they were not ruling out the possibility that the claimants or other participants may have a reasonable excuse.

Whilst accepting that if someone had a reasonable excuse for not complying with the Regulations, they would not be guilty of an offence, Ms. Carss-Frisk maintained it was not wrong for the police to attach the label “unlawful” to an act that breached the Regulations. She sought to rely on legislation such as the Housing Act 2004 to demonstrate that there can be a duty imposed whereby criminal liability is separate from unlawful conduct. 

The judges queried what the Commissioner meant when she said the vigil would be unlawful, to which Ms. Carss-Frisk clarified she meant it would be in contravention of the Regulations. The judges challenged her as to whether the reasonable ordinary viewer would have understood the Commissioner to mean “in contravention” rather than illegal, and Ms. Carss-Frisk confirmed it was her submission that they would have. She later argued that the video of the Commissioner was not relevant as it was only broadcast after we had decided to cancel the vigil. 

Ms. Carss-Frisk drew the Court’s attention to the fact that there was no express protection for protest under the Tier 4 Regulations, as there had been under previous Regulations.  She acknowledged that this did not mean the Police didn’t have to take reasonable excuse into account but argued it was right to place some consideration on the express exception for protest having been removed. 

Ms. Carss-Frisk noted that the Regulations talk about a gathering which takes place and suggested that this meant that you are not involved in holding a gathering unless a gathering actually takes place. She stressed this point in order to highlight that the Police need to know the size of the gathering in order to decide whether someone has a reasonable excuse or whether an offence is committed. Something she said they could only know once the gathering was underway or had taken place. 

Ms. Carss-Frisk maintained that the Police recognized that the question of whether conduct amounted to a criminal offence included consideration of reasonable excuse. She quoted a senior officer as saying that it would ultimately be for the Court to decide if an individual’s excuse for contravening the Regulations was reasonable, as a blanket acceptance of the rights to freedom of expression and association as a reasonable excuse would be inappropriate. 

Ms. Carss-Frisk emphasized that the Police did not consider that any participation in a gathering in contravention of the Regulations was automatically an offence and recognized the need to consider rights on a case-by-case basis. She argued that the sheer scale of the vigil as proposed meant that our rights would not outweigh public health risks so organization and attendance would potentially be an offence. 

Ms. Carss-Frisk suggested that we did not proceed with the vigil simply because the Police were not prepared to give an assurance that we as organizers, and attendees, would not face enforcement action. She explained that the Police’s position was that the circumstances needed to be considered on the day. 

There were numerous references to there being ways we could have expressed our rights that did not involve a gathering, such as an online event or a transient rather than static vigil where people remained within their household groups but wore a particular colour.

Ms. Carss-Frisk maintained that the Police did not take a decision to prohibit the vigil, rather they decided that an assurance could not be given that potential criminal liabilities would not be enforced.  She stressed that the Police’s view that there was a very real safety concern and the gathering may breach the Regulations and lead to criminal liability, was an entirely reasonable and proportionate view to adopt.

Ms. Carss-Frisk stated that this case was not about the transparency of the Police’s communication but rather whether they misdirected themselves on the law. The judges queried what that meant the position would be if officers had correctly analyzed the law but then said something completely contradictory. Ms. Carss-Frisk maintained that the question was whether the interference with our rights was in accordance with the law or not, so the important thing was misdirection rather than communication. 

Ms. Carss-Frisk emphasized the core aspect of the Police’s case which was that whilst they had conducted a balancing exercise of our rights and reasonable excuse, they could not give an assurance in the midst of the pandemic that a gathering which in their view was so clearly in breach of the Regulations would not lead to enforcement action. She reiterated that the restrictions having been brought in by Parliament on expert advice was an important factor and that expecting the Police to assess the risk of virus transmission for every event they police would make their already extremely difficult position in policing COVID Regulations even more difficult, if not in fact impossible.  

Attention was drawn to the assertion that we may not have had effective control over attendees and would therefore not have been in a position to enforce safety measures.  Ms. Carss-Frisk emphasized that the Regulations were regularly reviewed by the Government and drew attention to there being surge testing in the Wandsworth area for the South African variant. Ms. Carss-Frisk concluded that there was therefore no fair or legal basis on which to criticize the Police as there was no legal obligation on them to do more than they did to work out the likely effect of the vigil. 

Ms. Carss-Frisk employed the case of Pretty to highlight the importance of the Police being in possession of all the facts before taking action. She argued it was wrong in principle and certainly wrong in this case for the Police to give an assurance not to enforce without the full facts which could only be known on the day. 

Ms. Carss-Frisk concluded the case for the Police by saying that if the Court found that something was wrong in their decision making process it was in their view highly likely that the outcome would not have been substantially different even absent such flaws. She submitted that this meant that the court should not grant us any relief (which would include a declaration that our rights were breached) even if they did find that the Police’s decision-making was flawed. She confirmed that the relevant test is not whether the outcome would have been the same but whether it would have been substantially different, in support of which she argued that it was likely the Police would still not have given an assurance and would still have discouraged people from attending. She explained and dismissed our argument that the violation of our rights would not have arisen which is in and of itself a substantially different outcome. 

The barrister for the Secretary of State for Health, who are an Interested Party in the case, then spoke briefly on the point about the interpretation of the word “unlawful”. 

Our reply 

Mr Hickman then replied to the Police’s defence. In his reply Mr. Hickman emphasized that the evidence clearly shows that the Police in our view erroneously thought the stage at which consideration of proportionality came in was the enforcement stage. Mr. Hickman argued that it is clear that reasonable excuse and proportionality are not important merely to how fast and furiously the Police enforce, but are important to whether an individual has actually contravened the law in the first place. 

Mr. Hickman spoke of the Police having taken a decision on 11 March when they told us that their “hands were tied by the Regulations” which they refused to deviate from and consistently communicated to us and the general public. Mr. Hickman refuted Ms. Carss-Frisk’s suggestion that this case was all about the refusal of the Police to provide an assurance, he described this characterization as simply wrong and a red herring. He explained that all of the Police’s actions were predicated on the foundation that large gatherings weren’t lawful and it is that foundation that we are seeking to challenge. 

Mr. Hickman again argued that the Police’s claim they could not prejudge the lawfulness of the vigil in advance rings entirely hollow as the Police repeatedly told us that the vigil would be unlawful and they would be entitled to take enforcement action. He pointed out that in order to make such statements the Police must have formed a view as to the lawfulness of the vigil. He accepted that the exact circumstances of the vigil could not be envisaged but explained that we went to the police to explain the event we wanted to organise and the Police could have provided a steer as to how they might consider such an event lawful. 

Mr. Hickman pointed out that when they are actively expressing a view the Police have to make a lawful assessment of what the law is, particularly where human rights are concerned as by discouraging people from acting the Police have a chilling effect on protest. Mr. Hickman distinguished the vigil from other large gatherings such as house parties, saying the latter aren’t as important as people are not exercising fundamental rights but where such rights are engaged the Police need to go through proper due process to restrict them. 

Mr. Hickman queried the distinction drawn by Police between conduct which is unlawful and that which is in contravention of the regulations. He submitted that this distinction was unsustainable as had the Police being drawing such a distinction, they had no business preventing a protest on the grounds of it being unlawful if it was merely a contravention of a tier restriction. He further argued that had the Police been employing terminology in this way it would render their statements misleading and over-deter people from participating. Mr. Hickman drew attention to us being told that if we continued organizing the vigil we would be liable to Fixed Penalty Notices and prosecution, clearly referring to the commission of offences. 

Mr. Hickman concluded that in all of their inconsistent communications the Police were making the simple point that in their view organizing the vigil was a criminal offence. 

The judges thanked the barristers and their solicitors and formally reserved their judgment. 


 



Update 5

Jamie Klingler

Jan. 17, 2022

Summary of our case for this week in high court

Later this week, on Wednesday 19 and Thursday 20 January, the Divisional Court (which has two judges and hears the most serious and important cases) will consider our judicial review (the hearing has been pushed back by a day to allow the judges more reading time). We will be publishing our legal arguments in full very shortly, hopefully ahead of the hearing. In the meantime, though, here is a summary of the case our legal team will put to the Court.

We are bringing a claim under Human Rights Act 1998 (“HRA”) by judicial review procedure for a declaration and just satisfaction under section 8 of the HRA. Specifically, we are asking the Court to rule on the breach of our rights under Article 10 and 11 – the right to freedom of speech and assembly.  

We had called for the vigil following the disappearance and murder of Sarah Everard. It was to be held for Ms Everard and for all women who feel unsafe, who go missing from streets, or who face the fear of violence every day. It was intended to raise awareness and provoke change in attitudes towards and understanding of the pervasiveness of threats faced by women. It was intended to allow women’s voices—which are too often silenced in society—to be heard by politicians, policy makers and the police authorities through a collective expression grief and anger at the fate of Ms Everard and of other women in society. Above all, the event we sought to organise was about collective physical presence of women coming together to feel safe, supported, and to reclaim public space for Ms Everard and other women who have lost their lives or been the victims of violence.

We had set about organising the vigil on Clapham Common in a responsible manner with the support of Lambeth Council and we told the Police what we had planned. It was our first priority to ensure that the gathering—which everyone acknowledged would occur in some form—could be managed safely. Amongst us are women with significant experience of managing large events as well as elected officials experienced in working with police and local authorities. Extensive measures were proposed, facilitated by the local Council, to reduce risk of coronavirus transmission, and we also made clear they were flexible and open to considering any proposals or recommendations from the Police as to how to maximise health and safety.

The Police showed no interest in any of this, however.

The Police made it clear that in their view the vigil would be an unlawful gathering under The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (“the Regulations”) and that they would consider enforcement action against the us as organisers, including by fining each of us up to £10,000, as well as action against attendees.

Our claim was originally commenced on an urgent basis before the vigil was due to take place, seeking interim declaratory relief. The Court did not grant that remedy, but it did make it clear the Police needed to properly balance our and others’ rights against their policing aims, which were to avoid Covid transmission. We expected constructive discussions to follow, but soon after the judgment, while we were in a meeting with the police, they issued a statement saying the vigil we were organising to take place on Clapham Common on Saturday 13 March 2021 was not lawful and warning people they should not attend.


Given their stance in meetings and in their statement, we decided we could not proceed with the vigil.  

It is now clear that the Police were acting pursuant to an established policy and/or practice that gatherings were prohibited and that there was no exception for protest. But neither the MPS policy nor officers’ actions on 11-12 March 2021 reflected the fact that the Court of Appeal in R (Dolan) v Secretary of State for Health [2020] EWCA Civ 1605 had held that where people participated in gatherings in the exercise of their Article 10 or 11 rights they may have a “reasonable excuse” under the Regulations.

Whether persons participating in protected gatherings would have a reasonable excuse would depend upon the necessity and proportionality of restricting a gathering, measures taken to reduce risks and engage responsibly with relevant authorities including the police.

It followed from Dolan that if the Police were to enforce the prohibition on gatherings contained in the Regulations against protests, and if the Police were to issue warnings to organisers and attendees about criminal sanctions (as they did to us), then the Police had to reach a rational and informed view as to whether or not the organisers of a protest could claim to have a reasonable excuse, which in turn required them to consider the public health risks and the steps taken by the organisers to mitigate such risks. 

However, the Police admit they did not do this. They say officers were entitled to proceed on the basis that Parliament had assessed the risk to public health to be such as to require the restrictions contained in the Regulations, and that Parliament had struck the balance for the purposes of Articles 10/11 .

That, however, is wrong in law because, as Dolan held, the prohibition on gatherings and the absence of an exception for protest does not determine whether or not gatherings represent a lawful exercise of Article 10 and 11 rights. That balance is not struck by the general prohibition on gatherings (most of which gatherings will not be protected gatherings but social and other forms of gatherings).

The evidence in our case shows nonetheless that the Police failed to discharge the responsibilities they have in a democratic society in the context of the exercise of Article 10 and 11 rights – to facilitate peaceful protest. Rather than starting from the premise that the vigil represented an important exercise of individual rights to freedom of expression and association and seeking to facilitate the lawful exercise of those rights, they adopted the stance that the proposed gathering was unlawful and that they should actively deter those organising it and attending it from doing so.

We therefore ask the Court to make a declaration that our rights under Articles 10 and 11 of the HRA were breached. It we succeed, this will set an important precedent – not only on policing during the pandemic, but also on the importance of the police not using high level decisions Parliament has made as reason to evade their human rights responsibilities. This is especially important now, given the proposed extension of police powers under the Police, Crime, Sentencing and Courts Bill. Government Bill. We also claim modest damages under section 8 of the HRA which we will donate to a charity concerned with violence against women.

 


 

Update 4

Jamie Klingler

Jan. 11, 2022

Written submissions to the court

The full version of our written submissions to the court can be found here: https://www.bindmans.com/uploads/files/documents/Leigh_Skeleton_24_Dec_2021_.pdf

Update 3

Jamie Klingler

Jan. 5, 2022

Getting ready for the full hearing!

#ReclaimTheseStreets – Getting ready for the full hearing!


As the Government contemplates further Covid restrictions and increasing police powers through the Police, Crime Sentencing and Courts Bill, defending the right to protest in public on issues like the scale of horrific violence against women and girls is of ever-increasing importance. 

Against that backdrop, our test case challenge against the Metropolitan Police’s handling of the planned #ReclaimTheseStreets vigil following the tragic death of Sarah Everard is now headed for a full hearing in the Administrative Court, which is currently listed for the 18 and 19 January 2022. 

Preparing for the upcoming hearing is a very busy time for work on this case so please do contribute to our fighting fund which we are still fundraising for on CrowdJustice

The hearing

The hearing is currently expected to take place in-person in the Royal Courts of Justice on the Strand (and the Court room will be publicized the afternoon before). However, owing to the current guidance on social distancing we are not encouraging supporter attendance at the hearing. 

Before the hearing

  • Our lawyers have prepared filed and served our written submissions so that you can see how the case will be argued – you can read them here; 

  • If the Police consent, we will publish their submissions too; and 

  • We will keep you updated on developments and let you know if, for any reason, the hearing will not proceed (which is not very likely). 

During the hearing

  • The parties’ representatives will introduce themselves; 

  • The Judge will deal with any procedural applications that have not already been decided; 

  • Then our lead barrister Tom Hickman QC will open the case (supported by barristers Pippa Woodrow and Adam Wagner along with our solicitors John Halford and Theodora Middleton and their colleague Hannah Cheesebrough) – this will take up most, possibly all of the 18 January; 

  • The Police’s lead barrister, Monica Carss-Frisk QC, will then respond, supported by their team;

  • There may be evidence from witnesses including the Claimants and police officers if the court decides that would be of assistance;

  • We will then reply to the Police’s submissions; and 

  • The Judge will then thank everyone and close the hearing (though sometimes written submissions are sent afterwards, with the Court’s permission). 

The Judge will then decide the case. It is likely we will have a decision in February or March. 

As mentioned above, our CrowdJustice fundraising campaign remains open so please do contribute a little more if you can. Thank you for your ongoing support. 

Update 2

Jamie Klingler

Sept. 27, 2021

The High Court will hear our challenge to the criminalisation of our vigil

We are delighted to confirm the High Court has set dates  in January of 2022 for the full hearing of our judicial review of Met Police decisions on whether we and many other women could lawfully gather to mourn Sarah Everard and express our solidarity and frustration over the ineffectual policing of violence against women and girls. Remarkably, the Met maintains that our and others’ human rights were sufficiently respected when they pronounced the vigil to be illegal. Only last week, the Met posted a Tweet confirming they still believe protest was effectively banned at the time by law.

 

At the hearing, we are ready to expose the lack of any meaningful consideration of women’s human rights to demonstrate in the police’s plans – and a wholly cavalier approach to risk assessment.

 

We hope to set a clear, compelling precedent for protest rights at a time when they are under attack – not just because of the way protest was policed during the lockdowns, but through the proposed extension of police powers in the Police, Crime, Sentencing and Courts Bill.

 

We continue to raise money through CrowdJustice for our fighting fund for the case and would greatly appreciate any further contributions you can make. Click here to help.

Update 1

Jamie Klingler

July 9, 2021

Major milestone – the High Court orders that our case can continue

Today we received the welcome news that the court has granted permission for our case to proceed. This means we have overcome the first hurdle and there will be a full hearing at the High Court.


We argue that the decisions made by the Metropolitan Police which stopped the Reclaim These Streets vigil were wrong in law and a breach of human rights. Today, the judge has ordered that our claim should be considered by the court on all grounds. We are one step closer to holding the police accountable for suppressing a peaceful, respectful vigil for Sarah Everard and all women and girls who experience violence.


This is a very positive development and we want to thank you for all your support which has made this possible.

 

What next?


There will be a two day hearing at the High Court, probably in the next few months. We will update you with the date as soon as it is available.


We will now apply to court to cap costs to limit our liability for the government's legal costs. The more we can raise the better the chances are of the court deciding to cap costs.


If fighting to protect our human right to protest still matters to you, please contribute what you can. Any donations to the campaign, however small, would be extremely welcome.


Thank you again for your help. We will continue to keep you updated as our case progresses.

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