High Court: Metropolitan Police Unlawfully Interfered with Planned Sarah Everard Vigil

Leigh v Commissioner for the Police of the Metropolis [2022] EWHC 527 (Admin).

On the 11th March 2022, the High Court gave its answer to the challenge brought by Reclaim These Streets against the Metropolitan Police (“MPS”) for its handling of the Sarah Everard vigil. In deciding against the MPS, the High Court has buttressed the fundamental rights to expression and assembly. The judgment confirms the need to conduct a proportionality assessment when interfering with qualified Convention rights applies to police operational decision-making, not just when deciding whether to prosecute or convict.

Background

The tragic circumstances of the challenge are well-known. On the 3rd of March, Sarah Everard, a 33-year-old marketing executive, was kidnapped and murdered by a serving officer of the Parliamentary and Diplomatic Protection branch of the Metropolitan Police. The campaign group Reclaim These Streets planned to hold country-wide vigils on the 13th March. However, following several days of communicating with the Metropolitan Police, the group concluded that they would have to cancel the planned vigil at Clapham Common. This was because the Metropolitan Police could not guarantee the attendees would not be subjected to enforcement on the basis of the Covid regulations. The position of the Metropolitan Police was made clear in a press statement published on the 12th March:

“... the High Court has confirmed that the Metropolitan Police may conclude that attendance at a large gathering could be unlawful. In light of this ruling our message to those who were looking to attend vigils in London this weekend, is to stay at home or find a lawful and safer way to express your views.”

The claimants argued that the officers “adopted an interpretation of the Regulations that was legally wrong as it categorised the proposed vigil as “unlawful”, meaning criminal, merely because it contravened the restrictions on gatherings” (paragraph 4 of the judgment). On this basis, they further argued that the police (1) ignored the possibility that the fundamental rights to freedom of expression and freedom of assembly “might have provided a ‘reasonable excuse’ for contravening those restrictions on this occasion”, and (2) that the police had “failed to carry out the fact-specific proportionality assessment which they were duty-bound to conduct in order to reach a decision on that point”. Accordingly, the Metropolitan Police had unlawfully interfered with their Articles 10 and 11 ECHR rights by preventing, or at least discouraging, them from organising the vigil, doing so on grounds that were not “prescribed by law” (paragraph 4).

Against this, the defendant argued that “all her officers did was to point to the legal restrictions and the possibility that there might be enforcement action, depending on how things turned out”. She further argued that the real nature of the claimants’ complaint was that the police refused to “provide them with an assurance that they would not face enforcement action if the vigil went ahead”, and that the “police had no duty to provide such an assurance” (paragraph 6).

Judgment

The High Court upheld the claim. Firstly, it identified the decisions that were being challenged. The challenged decisions consisted of statements made in meetings, in letters, and in a press statement, to the effect that the Covid-19 Regulations meant that the vigil would be unlawful (paragraphs 71 to 73). This in itself is an interesting point. It demonstrates that the statements made by public officials in the course of meetings, and in letters and press statements, can be subject to judicial review on the basis that they have had a “chilling effect” on the exercise of fundamental rights.

Next, the High Court found that those decisions had indeed interfered with their rights; they had had a “chilling effect”, contributing causally to the cancellation of the vigil (paragraphs 74-76). The question was whether such interference was unlawful. The Court found that the MPS failed to perform legal duty to consider whether the claimants might have a reasonable excuse for holding the vigil, or to conduct the fact-specific proportionality assessment required in order to discharge that duty (paras 77-102).

Comment

Interferences with qualified fundamental rights, such as freedom of assembly and speech, can be justified and therefore lawful. For such an interference to be lawful, it must be (a) prescribed by law, (b) made pursuant to a legitimate aim, (b) necessary in a democratic society, and (c) proportionate. The court did not assess the aims, necessity or proportionality of the MPS’s decisions. Instead, the case turned on whether the interference was prescribed by law, the first element of the test for lawful interference.

The Court concluded that the interference was not prescribed by law. The interference, therefore, could not be justified, and was unlawful. It found that the police had misunderstood the law and their duties under the law, and had accordingly communicated that misunderstanding of the law to the claimants. This communication had “chilled” the claimants from exercising their Convention rights: they were “induced [into] exercising self-restraint for fear of future investigation or prosecution” (paragraph 9).

The Police’s misconstruction of the law was that the claimants would be acting unlawfully by organising the vigil. As such, they would be exposed to criminal sanction under the Covid-19 regulations then in force. Unlike previous versions of the regulations, at that point in time the relevant regulations did not contain a specific exemption for protests.

There are two aspects to the Police’s misunderstanding of the law, substantive and procedural. Regarding the first, the Police were substantively mistaken as to the state of the law as it stood at the time. They did not recognise (nor did they consider) that the claimants had the benefit of the “reasonable excuse” of exercising their Convention rights. Only a few months earlier, in December 2020, the Court of Appeal in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 had confirmed that such a defence was available. The MPS were also mistaken in believing that the regulations created a blanket ban on all gatherings, regardless of the purpose of the gathering.

The MPS's decisions had also been procedurally unlawful. For one, the Police had failed to take into account many of the proportionality factors that needed to be considered to make a decision as to the lawfulness of interfering with Convention rights. The Supreme Court confirmed and elaborated on this procedural principle in DPP v Ziegler [2021] UKSC 23. The Police claimed that their refusal to do so was justified; to have done otherwise, they argued, would have been at odds with equal treatment and consistency. However, the High Court confirmed that assessing the importance of the cause at stake, and deciding to give it more or less weight, is not favouritism (paragraph 94). Such an assessment is central to conducting proportionality analysis for interferences with Articles 10 and 11. The key point is that an interference with Convention rights will not be “prescribed by law”, and therefore not lawful, if it has not been the subject of a full proportionality assessment. As the Court noted at paragraph 78, “no enforcement decision can lawfully be made without a proportionality assessment”.

One of the consequences of this case is that, subject to subsequent decisions of the Court of Appeal and Supreme Court, it seems the Ziegler test for proportionality binds the police at the operational level. Ziegler established the importance of assessing the Convention-compatibility of prosecutions and convictions. It appears, as a consequence of this decision, the Police will need to conduct a proportionality assessment, most likely using the factors set out by Lords Hamblen and Stephens JJSC at paragraphs 71 to 78 of Ziegler, when making operational decisions that would, or may, interfere with qualified HRA rights.

Three features of the judgment stand out. Firstly, a proportionality assessment would need to be more than a cursory consideration of the state of the law (or the assumption that the police operation in question was compatible because it was authorised by statute or statutory instrument). Secondly, it is clear that “exercising one’s Convention rights” now falls under the umbrella of the “reasonable excuse” defence. This is relevant for the offences in the Police, Crime, Sentencing and Courts Bill. Finally, the Court has confirmed that the Police must consider the stakes that underpin a gathering or protest. The Police will need to consider whether the protest or gathering in issue (i.e. a vigil) concerns a matter of public interest and concern or addresses an important matter of public policy. Interference with one's right to protest is more likely to be lawful if one is protesting the range of choices at one's workplace cafeteria than if one is protesting against the presence of a statue of a slave owner in one's neighbourhood.

Whipping Up Moral Panic: The "Modern Slavery" Defence

On Thursday 24th February 2022, the Daily Mail published a particularly egregious article on the issue of the ‘modern slavery defence’ in criminal trials.

Section 45 of the Modern Slavery Act 2015 introduced a statutory defence in criminal trials for the victims of trafficking and modern slavery. This provision reflects the commitment of the UK to tackling modern slavery.

The article cites an anonymous Government source, who complains that ‘[m]odern slavery has become the de facto excuse in all kinds of criminal cases’. The source goes on to explain that ‘[w]e now expect the legislation to be reformed’.

The article is a seriously confused piece of writing. It concedes that there may be ‘genuine victims’, before in the same breath whipping up a moral panic about excusing criminals. Black Box decided to put together this piece in response to the misleading content of the article. Three issues leapt out at us.

Causation

The keystone of the UK’s anti-slavery strategy is the National Referral Mechanism (“NRM”). Suspected victims are referred to the NRM by the relevant local authority, youth offending team, or the police. The Single Competent Authority (part of the Home Office) first issues a Reasonable Grounds Decision. This is then followed by a Conclusive Grounds Decision as to the victim status of the individual in question. A positive decision opens the door to various forms of support.

The article presents, without critical comment or analysis, a set of statistics that are clearly intended to alarm its readers. It notes that in 2020 there were 10,613 NRM referrals, up from 6,982 in 2018. These numbers are set against the thrust of the piece: ‘criminals using modern slavery defence as an excuse’. The implication we are meant to draw is that NRM referrals are rising because more dangerous criminals are having their criminality excused by this ‘bleeding-heart’ liberal scheme.

What is striking about this is the complete lack of intellectual curiosity as to why NRM referrals might be rising and credulity towards an anonymous source’s characterisation of the regime. The article does not consider, for instance, the possibility that referrals are rising because: (a) more police forces and public authorities are familiar with the mechanism; and (b) knowledge and recognition of the signs of modern slavery and trafficking are more widely known now than they were at the start of the decade. Put more simply, if the Government creates a mechanism for solving a social problem, and that mechanism includes a means of identifying and quantifying that problem (and the scale of that problem was not previously fully known) – then, yes, you will see increased reporting of the issue.

Stigmatising Victims of Modern Slavery

Besides this issue, the Daily Mail’s article represents a threat to the efforts that have been made to de-stigmatise victims of modern slavery. Victims of modern slavery are, too often, victims with considerable trauma and histories of physical, sexual, and psychological abuse.

Our CEO, Dr Grace Robinson, has conducted research around modern slavery. Her findings are stark. Children are disproportionately victims of criminal exploitation, as are vulnerable adults. The latter group include those who have drug dependencies, mental health issues, disabilities, the elderly, and those struggling financially and emotionally. Criminal organisations have developed tactics to exploit such individuals, such as encouraging the purchase of drugs on credit to trap drug users in debt bondage. Dr Robinson has found that, in almost all criminal exploitation cases she has come across, young people are either exploited due to having a debt for cannabis or were introduced to exploiters through their dependency on cannabis. In the case of females, perpretators of criminal exploitation often enter into intimate relationships with victims, controlling them through emotional abuse, sexual violence, and allowing other perpetrators to sexually abuse them. The research is clear: in criminal organisations, sexual abuse and criminal exploitation often go hand in hand.

Victims in such circumstances are, unsurprisingly, all too often coerced into committing acts that amount to criminal offences. This is part and parcel of their exploitation. The task of modern slavery professionals, and the criminal justice system, is to identify those who have entered the system as exploited victims as opposed to exploiters. This is not always easy. The victims of criminal exploitation might themselves be involved in the exploitation of other victims. This is compounded by the fact that there is no such thing as the ‘perfect victim’. Potential victims of modern slavery can be uncooperative or hostile to authorities, often due to a fear of being perceived as a ‘snitch’ or not being believed and protected. Again, such reluctance to engage with public authorities accompanies the coercion and exploitation of such individuals. For all the clear cut cases, there are many shades of grey.

What is clear, however, is that the populist panic-mongering seen in this Daily Mail article does not help. The criminal justice system, which has had its funding slashed in the last decade, needs proper resourcing. The Government needs to increase the density of public and NGO support surrounding modern slavery, identifying victims before they fall through the net, and effectively caring for and protecting them when they have been exploited. What victims do not need is a knee-jerk tightening of the s.45 modern slavery defence, the effect of which would see the criminalisation and punishing of victims for the circumstances of their exploitation. If anything else, it is a profoundly inhumane view of the problem.

Getting the Law Wrong

Sadly, Black Box is unsurprised to see poor journalistic coverage of the British criminal justice system. Such misreporting is all too common. Nonetheless, it is still striking to come across an article that fails to provide any independent corroboration or challenge to the Government line, and that fails to conduct the bare modicum of legal research. A basic and cursory glance at the current state of the law would have revealed to the Mail Online the important recent cases of Brecani and DS.

In Brecani v R [2021] EWCA Civ 731 (19 May 2021), the Court of Appeal reduced the practical use of the s.45 ‘modern slavery’ defence by changing the status of the Conclusive Grounds Decision in criminal trials. The Conclusive Grounds Decision is no longer admissible as expert evidence ([54]). Defendants may seek to rely on the materials underpinning the Conclusive Grounds Decision, or otherwise engage a suitably qualified expert to give evidence. But the change in criminal procedure in Brecani reduces the evidence available for the s.45(4) defence and makes it a more impractical defence to run.

In DS [2020] EWCA Crim 285 (28 February 2020), the Court of Appeal also confirmed that deciding the facts as to the status of an individual as a victim of trafficking was “unquestionably”, and solely, for the jury ([40]). The trial judge had stayed the proceedings as an abuse of process in response to the Single Competent Authority reaching a positive Conclusive Grounds Decision. The Court of Appeal held that in doing so the trial judge had erred, and ordered that the proceedings be continued.

The Daily Mail’s article, however, conspicuously fails to mention any of this detail – a serious error, since its inclusion, even in basic form, would have provided nuance and balance to the anonymous Government source. Citing an unnamed source, whilst failing to provide any form of independent research, is an inexcusable lapse, which risks misleading the public about the operation of the criminal justice system. The Daily Mail's readers, and the public more generally, deserve to read fact-based and fair-minded commentary and analysis of the legal system.

Hostility to Sex or Gender: a new aggravating factor for sentencing?

This week the House of Lords voted in favour of an amendment to the Police, Crime, Sentencing and Courts Bill, which is currently working its way through Parliament. The amendment, clause 73, would make hostility or prejudice towards sex or gender an aggravating factor when determining sentence.

The Police, Crime, Sentencing and Courts Bill is, in many respects, a troubling piece of legislation. But this addition by the House of Lords is a welcome improvement to a flawed piece of legislation. It closes an otherwise unjustifiable gap in the law of sentencing.

To understand this gap, it is necessary to first explain how sentencing works under the Sentencing Code (implemented by the Sentencing Act 2020). The judge reaches the final sentence by way of a series of steps. The first step involves reaching a provisional sentence based on factors such as the culpability of the offender and the harm to the victim.

The second step is where this amendment would come into play. At the second step, the judge is required to consider the ‘seriousness’ of the offence. To do this, the judge must consider aggravating and mitigating factors. One aggravating factor to be considered by the judge is hostility to one of the characteristics listed in section 66 of the Sentencing Act 2020. An offence aggravated by hostility to one or more of these characteristics is to be treated as a more serious crime for the purpose of sentencing.

The types of hostility listed in section 66 are: racial hostility; religious hostility; hostility related to disability; hostility related to sexual orientation; and/or hostility related to transgender identity.

This policy of treating offences aggravated by hostility reflects the state’s interest in protecting individuals who possess characteristics that have historically been victimised. It is a manifestation of the modern democratic values of the country.

The absence of sex and gender from that list is unjustifiable and, bluntly, bizarre. Of course, the amendment would also make crimes aggravated by hostility to men aggravated offences for the purpose of sentencing. This is understandable, both from the perspective of making the legislation flexible but conceptually clear, as well as for equality purposes. But the practical, everyday application of this amendment will be in tackling crimes motivated by misogyny.

Society appears to be beginning to wake up to the issue of endemic misogyny. The high-profile murders of Sarah Everard and Sabina Nessa put the issue firmly at the centre of public discourse. Society is beginning to have a more serious conversation about the chronic issue of women’s safety and the feeling of being unsafe, from road-side harassment to spiking and injecting ‘date rape’ drugs, to physical violence and sexual assault.

None of this is to say that the criminal justice system, as it is currently constituted, is fit for dealing with offenders. Prison is too often the answer, and our prisons are overcrowded as a result. We need a sensible conversation about criminal justice policy in this country, one that moves away from tabloid sensationalism about offenders. But treating offences as more serious based on hostility to certain characteristics is not inconsistent with that position. It means society deems such conduct more repugnant for the fact of hostility and/or prejudice. If we are to have a policy of treating offences as more serious based on hostility to certain characteristics, it is only right that sex and gender are also included in the list of characteristics protected by the Sentencing Act 2020.