Can Extinction Rebellion Protesters Claim Compensation?

This week the High Court found that London’s Metropolitan Police acted unlawfully when dealing with the October 2019 Extinction Rebellion protests.

Does this mean that arrested Extinction Rebellion protesters can claim compensation?

Read what Kevin Donoghue, a solicitor who specialises in civil actions against the police, thinks here.

 

Solicitor Kevin Donoghue considers if Extinction Rebellion protesters can claim compensation.
Kevin Donoghue, solicitor, considers if Extinction Rebellion protesters can claim compensation following a recent court ruling.

By Kevin Donoghue, solicitor

On 6 November 2019 the High Court issued a damning judgment in the case of The Queen on the application of Baroness Jenny Jones and others v The Commissioner of Police for the Metropolis. (Read it here.)

The Court found that London’s Metropolitan Police acted unlawfully when the officer in charge imposed a ban on Extinction Rebellion’s protest in October 2019. Lord Justice Dingemans and Mr Justice Chamberlain said:

We have held that the decision to impose the condition was unlawful because Superintendent McMillan had no power to impose it under section 14(1) of the 1986 Act.

As a result, the Court ordered that:

Superintendent McMillan’s decision to impose the condition on 14 October 2019 will be quashed.

This decision opens the door to protesters bringing civil actions against the police for false imprisonment (and other things) if they were detained by the police during the protest ban period (14-18 October).

What is Extinction Rebellion?

In 2018, activists started Extinction Rebellion (or “XR” for short), an international non-violent civil disobedience movement. XR is pushing governments to declare a climate and ecological emergency. Concerned with the climate crisis and carbon emissions, organisers say they have groups taking action in dozens of countries.

What Happened in London in October?

Extinction Rebellion organised the “Extinction Rebellion Autumn Uprising” (“XRAU”) to take place in London between Monday 7- Saturday 19 October 2019.

The protests were to take place in multiple sites across London. Organisers hoped that they would inconvenience the public to force politicians to engage with XR and its aims.

Superintendent McMillan, Bronze Commander for Contingencies at the Metropolitan Police, deemed XRAU “an assembly” that “may result in serious disruption to the life of the community” for the purposes of s.14(1) of the Public Order Act 1986.

Accordingly, at 7pm on 14 October, he imposed a “condition” stating:

“Any assembly linked to the Extinction Rebellion “Autumn Uprising” (publicised as being from 7th October to 19th October at 1800 hours) must now cease their protest(s) within London (MPS & City of London Police Areas) by 2100 hours 14th October 2019.”

During this period XR protesters were arrested in purported breach of the condition, including two of the Claimants in the court case.

The police removed the condition at 5:30pm on Friday 18 October.

Why Did the Court Find Against the Metropolitan Police?

The Justices found that Superintendent McMillan erred in law by imposing a condition under s.14(1) of the Public Order Act 1986 when he had no right to do so. The Act states:

14 Imposing conditions on public assemblies.

(1)If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—

(a)it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b)the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,

he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.

 

The Court found that XRAU, which consisted of many separate gatherings, was not a single “public assembly” within the meaning of the Act. It said:

“a public assembly” must be in a particular location to which the public or any section of the public has access, which is wholly or partly open to the air, and which location can be fairly described as a “scene”.

The Judges also found that Superintendent McMillan, the Bronze Commander, was not the most senior officer at the “scene”. This is because the police said in the condition that it applied to the whole of the London.

The Court summarised the position as:

In our judgment a public assembly in section 14 must be in a location to which the public or any section of the public has access, which is wholly or partly open to the air, and which can be fairly described as a scene. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, are not one public assembly within the meaning of section 14(1) of the 1986 Act. This means that Superintendent McMillan purported to impose a condition not only on those public assemblies already in existence but also on intended future assemblies yet to be held. The XRAU intended to be held from 14 to 19 October 2019 was not a public assembly in the presence of Superintendent McMillan on 14 October 2019. Therefore the decision to impose the condition was unlawful because there was no power to impose it under section 14(1) of the 1986 Act.

As a result, the Justices found against the Metropolitan Police.

False Imprisonment Claims for Extinction Rebellion Protesters

The Court in the Extinction Rebellion London protest case was careful not to get drawn into the wider implications of the police’s unlawful actions. In particular, it said:

We should make it clear that we are not concerned in this case with the lawfulness of the arrests of any individuals or the merits of the prosecution or proposed prosecutions of any individuals.

This means that, despite this ruling, protesters will have to prove their claims for false imprisonment in full.

To do that they will have to meet the strict legal criteria which you can read about on our False Imprisonment Claims Explained page.

Claimants will have to prove that

  1. they were detained, and
  2. that there was no lawful authority to justify detention.

While the first part is usually straightforward and shifts the burden of proof onto the police to justify detention, the second may not be so clear.

Some protesters may have been arrested for other reasons. One of the XR protesters was arrested for both breach of the condition (now known to be unlawful) AND obstruction of a highway. The police may seek to rely on the obstruction charge alone to justify arrest.

Even without that complication, the court in a civil action against the police will consider the following issues:

  • Proving that the arresting officer had lawful authority, applying subjective and objective tests of reasonable suspicion
  • That the officer believed that the arrest was necessary, and that belief was reasonable,
  • That the arresting officer informed the subject of the fact and grounds for arrest as soon as practicable, and that
  • The arrest was lawful on public law (Wednesbury reasonableness) grounds.
  • Even after arrest, the continued detention can become unlawful. The burden is on the police to justify detention on a minute-by-minute basis.

And if an Extinction Rebellion protester proves false imprisonment, remedies vary in civil actions against the police depending on detention time, treatment, physical and psychological effects, and many other factors. You can read more about remedies in claims against the police here.

Bringing False Imprisonment Claims

So can Extinction Rebellion protesters claim compensation for false imprisonment? Some inexperienced commentators and lawyers may respond with an unequivocal “yes”. The smart answer should be “it depends”.

I recommend that those involved take legal advice from a specialist in civil actions against the police.

Legal Standing

A crucial factor for this case was “standing”. This is the legal right to be involved in court proceedings.

In the Extinction Rebellion London protest case seven claimants sought legal standing. But the Court found that only three of them had it. This is because they were arrested (in part for breach of the condition imposed by the Metropolitan Police which led to the litigation). The Court was keen to warn about the consequences of seeking standing where it may not exist, saying:

It might be noted that this does not make any practical difference to the outcome or relief that the Court will grant in this case. However it is important to remind parties of the need to ensure that those who bring claims for judicial review are limited to those best placed to bring the claim. This is because adding unnecessary Claimants is likely to increase the costs of the litigation, if only by requiring solicitors to send out extra reports on the litigation. It is also because parties to an action are in a distinct position, for example by receiving a confidential draft of the judgment at a time when it is circulated to the parties for typographical and other corrections before it is handed down in Court.

Dealing With Future Protests

The Extinction Rebellion judgment is interesting for its consideration of the October XRAU protest. The judges were careful in their comments and what issues they considered.

Notably the Court avoided making certain rulings and commented on things which might affect how the Metropolitan Police handle protests in future. For example,

It should be noted that in section 14 there is an express power to impose conditions on intended public assemblies, but this is a power which, in London, may be exercised only by the Commissioner or, if delegated under section 15, the Assistant Commissioner, so it is not relevant to this case. It might be noted that there is a power to set a condition as to the “maximum duration” of the public assembly, but it was common ground that the maximum duration could not be zero.

There is also an unanswered question in the judgment about the wording of police orders under the Public Order Act. The Court side-stepped the question about how the police should phrase them, saying:

The Claimants criticise the condition imposed in this case as uncertain in two respects: first, the words ‘[a]ny assembly linked to [XRAU]’ is too vague to enable anyone to know whether their planned demonstration will be caught; and secondly, the phrase ‘must now cease their protest’ makes it unclear what protestors have to do to avoid falling foul of the condition.

In the light of our conclusion on the first ground it is not necessary for us to determine this point, and we do not do so. This is because the condition was framed in the way it was because Superintendent McMillan wrongly believed that XRAU was “an assembly being held” on which he had power under section 14(1) to impose conditions. If he had correctly understood that a ‘public assembly’ referred to a single gathering of people in a particular place, the condition would have been framed differently and there is no reason to suppose it would have included the elements criticised by the Claimants.

These comments matter because, even though the Justices did not address the issues directly, they help the police understand how the courts interpret the law. Future s.14 Public Order Act conditions are more likely to be legally compliant if they take the hints.

Extensive Police Powers

No doubt the Metropolitan Police will reflect carefully on this judgment. They have been publicly shamed and will want to avoid a repeat. The Court noted that:

It was common ground that there are powers contained in the 1986 Act which might be lawfully used to control future protests deliberately designed to “take police resources to breaking point”, to use the words set out in the October Rebellion Action Design. However the extent and conditions for use of those powers are not issues before us in this claim and we say no more about them.

Perhaps the Court meant this as a word of warning to protesters about the extent of police powers. As I have previously written, the police are becoming increasingly militarised and aggressive, even resorting to unlawful methods, as some Extinction Rebellion protesters found.

Contact Kevin Donoghue for advice on suing the police by completing our online contact form or calling 08000 124 246.