On 11 March 2022, judgment was handed down in the judicial review brought by Reclaim These Streets against the Metropolitan Police’s handling of a proposed vigil in memory of Sarah Everard and in opposition to violence against women (R (Leigh and others) v Commissioner of Police of the Metropolis [2022] EWHC 527 (Admin)). The High Court found that the Metropolitan Police repeatedly violated the four organisers’ human rights to freedom of expression and freedom to assemble by preventing them from organising the vigil.

Reclaim These Streets sought to organise a vigil in the wake of Sarah Everard’s disappearance, to express their collective grief and anger, and to campaign for changes in attitudes and responses to violence against women. Their plans were thwarted by the decisions and actions of the Metropolitan Police, who threatened the women with fines and prosecution if the event went ahead. (A spontaneous event nonetheless took place, without the involvement of Reclaim These Streets, with the heavy-handed police response drawing widespread condemnation.)

A year on, the High Court has held that the police acted unlawfully in preventing Reclaim These Streets from organising the vigil, because they failed to give proper consideration to rights to freedom of expression and assembly, protected under articles 10 and 11 of the European Convention on Human Rights (ECHR).

Warby LJ and Holgate J confirmed that a person would have a ‘reasonable excuse’1Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 SI No 1374 reg 10. for participating in a gathering such as the vigil if interfering with their conduct would be a breach of their protected ECHR rights. Whether a particular interference is a breach of human rights must be decided on a case-by-case basis, to determine whether or not the interference is proportionate. In the context of the pandemic, this balancing exercise is likely to include consideration of the public health risk at the time and any mitigating measures taken by the protestors (masks, social distancing, etc), in addition to the factors that should normally guide proportionate policing of protests.

The police did not conduct this assessment. The court analysed six decisions made by the police in the run-up to the proposed vigil, each of which had a chilling effect on the claimants’ plans, and concluded that each was unlawful. At every stage, the police acted on the basis of a fundamental misunderstanding of the law, as they did not appreciate their duty to consider the proportionality of restricting the claimants’ activities. It seems a safe assumption that the same fundamental misunderstanding infected the policing of the event that did go ahead.

The approach of the police in this case was far from unique. The pandemic saw systemic over-policing of protest, from the break-up of a two-person protest against Volkswagen in connection with the Uighur genocide to the issuance of a £10,000 fixed penalty notice to a nurse protesting the derisory pay rise offered to NHS workers. This judgment is a vindication not just for Reclaim These Streets, but for many others who found themselves facing criminal sanctions for exercising their fundamental rights to protest during the pandemic.

The principles in this case are not new, but this decision is an important and timely reminder that the police may not enforce the law in a way that contravenes protected ECHR rights. As the Police, Crime, Sentencing and Courts Bill makes its way through parliament, this case should serve as a warning to forces across the country that they remain duty-bound to respect the rights of protestors, and to legislators of the risks of leaving the defence of those rights in the hands of the police.