At 7:00 p.m. on 14 October 2019 Superintendent Duncan McMillan of the Metropolitan Police tweeted the following on the official Met Police Twitter account:
‘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.’
Superintendent Miller had been designated as Gold Commander in relation to Extinction Rebellion’s Autumn Uprising. Superintendent Miller purported to exercise a power to impose conditions under Section 14 of the Public Order Act 1986.
A number of Claimants, some of whom had been arrested for breaching the imposed condition, issued a claim for a judicial review of this decision.
The challenge was on two main grounds: that there was no power to impose such a condition; and in any event the condition was too vague to be enforceable.
The High Court made the following rulings:
- Only the Claimants whom had been arrested had standing to bring the challenge.
- The condition was unlawful as Superintendent Miller had no power to impose it.
- In view of the finding of unlawfulness there was no need to consider the second ground.
The court made its decision on the following basis.
Section 14 allows the most senior police officer on the scene to impose conditions on a public assembly.
A public assembly within the meaning of the Act can only take place in a public, not private space.
“London” contains both public and private spaces.
Superintendent Miller could be not the most senior officer “at the scene” if the scene was designated as the whole of London; he has a number of superiors.
The Public Order Act does contain provisions to impose conditions on “public processions” (plural) and “trespassory assemblies” (plural); but there is no matching provision for a public assembly; which the Act refers to in the singular. As a matter of construction, a number of separate protests can not be ‘a public assembly’ (singular).
The court acknowledged that there were provisions in the Act that could possibly have achieved the same result; but declined to comment further.