Occupy and the Law: The Trial Continues

Now that the dust has settled upon the latest round of legal action between Occupy and those who seek to evict them from the site outside St Paul’s Cathedral, it is, perhaps, appropriate to take a moment in time to reflect upon the present position of the law and how it can help or hinder the exercise of public protest.

This article is not meant to be a political consideration of the aims and objectives of ‘Occupy’, there are many others who are far more qualified than I am to enter into this arena, and, in my view, for what it is worth, have positively pushed the cause of public debate and appreciation of the issues facing 21st century society into an exciting new dimension.

But enough, for now, of that. Where are we with the law post the Occupy litigation in the High Court just before Christmas and more recently before one of the most influential courts in the land, the Master of the Rolls Court earlier this year?

It is right to observe straight away, that whatever the preconceptions that some had before this process, the vast majority of those supporting and representing the Occupy case came out of both the High Court and the Court of Appeal with the feeling that they had, within the constraints of the law, been given a fair and open hearing. The Judges, like the lawyers, are constrained to work within the confines of the law and in the case of the Occupy case, much of that law had been enacted by Parliament, significantly, the Highways Act back in the early days of the Thatcher government in 1980. However much some might be frustrated by this, those are the rules by which the courts work, they are not courts of morals or political debating chambers. Had they been so, I am in no doubt that Occupy would have prevailed.

In my view, given all these constraints, I think that the courts, the legal system if you will, came out of this well. Do not misunderstand me, that is not to say the existing law should be similarly commended, but the genuine appreciation shown by Occupy to courts, the judges, the court staff and the lawyers reflected well not only upon them, but on Occupy, as a mature, rational and thoughtful entity.

Really, that, for me, was the most gratifying feature of the case. Before the trial started in the High Court on the 19th December last year sections of the media, the public and politicians were attempting to portray Occupy as reprehensible, irresponsible time wasters, it was, perhaps, the usual response by those who feel threatened to any new and challenging idea. Indeed, it is not new. During my 16 years as Chair of the League Against Cruel Sports and now as their President, those who continue to be opposed to the cruel practice of hunting with hounds are periodically labelled as ‘lefty oiks’, one of the more sanitised insults. It is in fact, a sign of weakness, both of argument and personality, when any debate descends into insults and infantile and simplistic labeling, and should consequently be dismissed or even be taken as flattering, but it is occasionally nice to have it completely dismantled before a court of law.

That is what we did in the Occupy hearings. I cannot say that those with closed minds will not wheel out the old insults, but I can predict with confidence that Occupy now has a wealth of judicial and legal comment attesting to the integrity and authority of the movement. If we achieved nothing else, that will prove invaluable in the time to come.

But, in my opinion, the hard letter of the law has also been challenged during these cases. Just what bodies such as the City, supported by the Church, and other powerful public and private bodies can do to frustrate and curtail a citizen’s right of public protest, freedom of speech and freedom of assembly has now, as a result of litigation like this, become one of the most exciting and developing areas of law in the first part of the 21st century.

The law says that, in extreme circumstances, these important human rights can be curtailed, but the vital and continuing legal question is how and at what stage?

Occupy thought that the courts have intervened too drachonianly at the request of the City and, in reality, the Church. The courts, in effect, gave the applicants everything that they wanted when all rights, on both sides, could have been proportionately protected. This is the legal question which will continue, I predict, to trouble the courts for some time to come.

At the time of writing this, I received a call from my client, Tammy Samede. She wanted to confirm our case conference upon future Occupy legal approaches. I was happy to confirm that conference.

John Cooper QC is a barrister specialising in human rights and criminal law. He was engaged as a legal advisor by Occupy London on day one of the occupation.