Protests, human rights and criminal activity

When are university and other protests impermissible? When ‘a protest turns into a base camp for criminal activity’, said Ritchie J on 19 June 2024, giving judgment in University of Birmingham v Persons Unknown (1) and Mariyah Ali (2) [2024] EWHC 1529 (KB). And while concerning a university, this is also relevant to local government. 

The first defendant was a group of people occupying two areas of university grassland on the Edgbaston campus, namely, Green Heart (GH) and Chancellor’s Court (CC). The second defendant became so, having handed in a letter on behalf of students at the protest camps. The university sought possession against trespassers, described as unknown persons. The application was made under Part 5 of the Civil Procedure Rules (CPR) which provides for possession actions against trespassers who, by CPR 55.1(b), are ‘persons who entered or remained on the land without the consent of a person entitled to possession of that land’.

Ritchie J granted limited possession orders relating to non-students only, save for the CC area from which he ordered possession against all persons unknown for reasons set out in the judgment. The protests (self-designated as the ‘University of Birmingham Encampment Coalition for Palestine’) proclaimed that: ‘As the situation in Gaza escalates, so too does the global student movement towards establishing lasting peace and liberating Palestine’.

The university’s Code of Practice on Freedom of Speech indicates (among other things) that: ‘We are committed to securing freedom of speech within the law for all our members, staff, students and visiting speakers.’ But ‘the challenge for universities is to provide an environment which promotes and protects freedom of speech, while also identifying when the purported exercise of freedom of speech crosses a threshold and becomes unlawful’. The code also refers (among other things) to the Higher Education (Freedom of Speech) Act 2023 which requires higher education institutions to protect and promote the importance of freedom of speech within the law for staff, students, and visiting speakers, and the Human Rights Act 1998 (HRA) which, as the court noted, ‘enshrines’ the European Convention on Human Rights into UK law.

Ritchie J also referred to relevant statutory material: HRA and ECHR rights, including Article 10 (freedom of expression) which confers ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority’ and Article 11 (freedom of assembly and association). This gives everyone the right to freedom of peaceful assembly and freedom of association with others. Nevertheless, rights granted by both these articles are subject to such legal measures as are necessary in a democratic society for the prevention of disorder or crime, for the protection of health or morals, and for the protection of the rights of others.

The court also referred to section 43 of the Education Act 1986 (freedom of speech in universities, polytechnics and colleges) and the duty now in the Higher Education and Research Act 2017 to take steps to secure freedom of speech. The court therefore considered the university to be required to protect and uphold the students’ rights to freedom of speech and assembly and to take reasonably practicable steps to ensure that university premises were not denied to the students for those purposes. Among the caselaw considered was Appleby v United Kingdom [2003] 37 EHRR 38 (Appleby). This noted (at paragraph 40) that: ‘In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the convention.’

As to the instant proceedings, the court was concerned that the ‘claim for possession against persons unknown was really a claim for possession against persons who are known or should be known but the claimant has not sufficiently or adequately tried to identify them, which may give rise to enforcement difficulties. In respect of the GH camp, the court was not satisfied that there was sufficient evidence of a substantial risk of public disturbance or serious harm to persons or property which properly required determination by the High Court. There was also no evidence of a balancing exercise, per Appleby. Consequently, the defendants had an arguable case that they had licence to remain on GH and were not trespassers.

As to CC, videos displayed in court showed paint-spraying vandalism at a classic building next to CC and intimidation of the University’s Investment Committee by loud students. The paint sprayed was not water-washable and was difficult to remove. So different factors applied to CC. For, once a protest turns into a base camp for criminal activity the court had little doubt that the express or implied licence to use ceases to apply. The HRA provides no protection to criminals and those who encourage or cover up criminal activity and the education acts no longer assist the protesters who assist or are criminals. For the video material evidenced crimes or potential crimes. The intimidation of the Investment Committee was apparently carried out and/or encouraged by CC camp occupiers because the red paint vandalism was on buildings facing the CC camp.

Consequently, the CC camp occupants had no arguable defences and possession of the camp had been granted against persons unknown whether students or non-students. At the hearing, possession of the whole Edgbaston campus had been granted against all persons unknown who are neither students nor staff. For they were trespassers with no arguable defences.

So, while the rights conferred by articles 10 and 11 remain conspicuous, their qualifications (including prevention of disorder or crime) often appear less so.

Nicholas Dobson writes on local government, public law and governance