Student sit-ins are not acts of trespass
The lack of case law on occupations leaves students vulnerable to draconian prosecution under the law of possession
Sophie Khan guardian.co.uk, Monday 6 December 2010 16.30 GMT Article history
Universities have been taken by surprise by the extent of the protests against tuition fees over the past few weeks, and the biggest surprise of all has been the growth of the student sit-in. Sit-ins such as the ones at University College London and the School of Oriental and African Studies are redefining the arguments around the rights of freedom of expression and assembly.
The debate is being fought out in the courts as possession claims (normally employed against trespassers) become the weapon of choice against the student occupations. Although Soas and Cambridge have possession orders, the universities have no immediate plans to evict the occupying students and have, in effect, recognised their right to protest. Paul Mason's report for Newsnight last week illustrated the peaceful nature of the occupation at the Brunei Suite at Soas, which is now in its second week, and his description of the "Zen-like calm" of the occupation goes some way to dispel the horror stories being told by the universities in court.
Student occupation, by its very nature, attracts the protection of the rights enshrined by Article 10 and 11 of the European convention on human rights, and these should be given the importance they deserve against with the university's claims for possession – which seem to be based on hypothetical scenarios rather than facts.
The lack of case law on this specific type of occupation is leaving the student occupiers exposed to the harsh law of possession. Without the will of the courts to distinguish the use of this power against them, students will have to fight their corner in court as well. The lines between the right of assembly and trespass are being blurred by these claims and we need to resist the classification of the "student occupation" as a trespass before their right to protest is curtailed.
As the number of student sit-ins rises, it is important that the courts establish definitive tests before they are applied against student occupiers. I acknowledge that seeking a balance between the rights of freedom of expression and assembly and those of property owners is not straightforward, and that a point in law would be made should the courts uphold the students' rights. But the argument that the courts must interject when there is inequality of arms must not be forgotten. Given the draconian nature of the possession claim, we need to allow all arguments to be made before judgments are reached.
The students are vowing to continue their protest with a fourth national protest on the eve of the Commons vote on tuition fees on Wednesday. Students' voices need to be heard both inside courts and outside them.
http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/06/student-protests-sit-ins-are-not-trespass
Tuesday 7 December 2010
Solicitors Journal - Occupied Minds
Occupied minds
6 December 2010
Main Page Content:By Sophie Khan
Judges must not allow possession orders to trespass on the legality of student sit-ins, argues Sophie Khan
As the wave of student protests rips across the country, it seems the police are not the only ones raising their game against the students. On 24 November, the School of Oriental and African Studies (SOAS) made a claim for possession of property against ‘persons unknown’, including students of the SOAS. The order sought possession of the Brunei Suite, a facility room which had been occupied by the students since 22 November.
The students had organised a sit-in to protest against the coalition government’s proposals to cut university budgets and raise tuition fees, forming part of a larger, on-going protest by students across the country. The demonstration was peaceful and those involved were careful not to interfere with the proper functioning or activities of the university.
Although the students were exercising their article 10 and 11 rights during the sit-in, the claim for possession was granted to the university on 25 November by Henderson J who was presiding over the case. He relied heavily on the case of Appleby and Others v United Kingdom [2003] 37 EHRR 783 in support of his judgment for possession.
Striking a fair balance
In that case the applicants who lived in Washington, Tyne and Wear had been campaigning against a plan to build on the only public playing field near Washington town centre. The applicants in March and April 1998 tried to set up a small stall in The Galleries, a shopping mall that had become the effective town centre.
The private company that had recently bought up most of the shopping area from the government had refused them permission to collect signatures for their petition. They relied on the rights of article 10 and 11 of the ECHR on the bases that the shopping mall was a quasi-public space in which individuals could claim the right to exercise freedom of expression and assembly in a reasonable manner.
Although the majority judgment in that case recognised the importance of their rights, it stated that they were not unlimited and that the property rights of the owner of the shopping centre had to be taken into consideration. However, the dissenting opinion of Judge Maruste recognised the importance of wider considerations when striking a fair balance between the competing rights.
Maruste J said: “The old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society.” If wider considerations were to be taken into account, then the contemporaneous student protests would add weight to a defence against a claim for possession against an occupied room which otherwise would not be viable.
Grass roots
The use of possession claims by the SOAS is unprecedented and at worst could be an abuse of process because of the draconian nature of the order, which does not allow for proportionality to feature in the argument against. And, although the SOAS was the first university to claim possession against occupying students, it will not be the last – at the time of writing Cambridge University had obtained an interim injunction against a student occupying the Old Schools building.
The lack of case law on this specific type of possession claim also creates problems for the occupying students. The sit-in could be classed as a quasi-trespass, as the students have the right to enter and remain but not to occupy. However, it is a peaceful protest carried out by students of the university, for the future of their university.
The uniqueness of the occupation therefore distinguishes it from other forms of trespass and could not be classed in the same league as the recent example in Mayor of London v Rebecca Hall [2010] EWHC 1613 Admin, the democracy village case, in which a group of protesters had set up camp in Parliament Square Gardens. In this judgment, Griffin J considered the following questions:
Can the claimant establish a right to possession?
Are the defendants in occupation of and trespassers on PSG?
Does the article 10 and/or article 11 right provide a defence and disentitle the claimant to possession?
Have the defendants breached the criminal law in the course of their occupation, and, if so, is this an exceptional case in which to grant an injunction in support of the criminal law and if so are injunctions a proportionate response to the aims of the mayor to regain control of the gardens for the benefit of others?
Should the court grant an injunction in the exercise of its discretion against any of the defendants?
Filling the gap
Many of these questions would not be applicable in sit-in cases, thereby creating a gap in the law where both the law of possession and the right of assembly do not reign.
The dissenting opinion of Maruste J in the case of Appleby could therefore be used as a starting point to fill that gap, but much work needs to be done on this area before definitive tests are established and applied against student occupiers.
Postscript:
Sophie Khan is a solicitor at Imran Khan & Partners and represented the SOAS sit-in students. Contact: sophiek@ikandp.co.uk
http://www.solicitorsjournal.com/story.asp?storycode=17388&encCode=2079109861BC8633923JTBS737226611
Solicitors Journal -Poor Quality
OPINION
Poor quality
29 November 2010
- Main Page Content:By Sophie Khan
The introduction of a quality assurance scheme in this delicate legal environment would be disastrous, warns Sophie Khan
On 15 November the Lord Chancellor, Ken Clarke, announced proposals to cut £350m from the legal aid budget “to ensure that legal aid is provided to the poorest and is preserved for the future”. The future coincidently was also the theme of the annual conference held by the Solicitors Association of Higher Court Advocates (SAHCA), ‘Advocacy 2020’ which was held
a few days before his announcement and was a platform for speakers and delegates alike to share their views on the highly controversial Quality Assurance Advocacy (QAA) scheme for criminal advocates, headed up by the Joint Advisory Group.
The scheme has sprung from the ideology that there is a ‘problem’ in the quality of criminal advocacy. I believe this ideology has come from the Bar and its futile attempt to maintain a closed-shop monopoly on advocacy for their self-preservation. This at a time when the prime minister has warned countries at the G20 of the impact of protectionism by currency manipulation; the Bar it seems has not seen the parallels in its own actions towards solicitor-advocates and the dangers of undermining fellow legal professionals.
The proposed legal aid cuts also bring with them the message that the legal market is in a delicate state and that any manipulation by legal players could damage the long-term provisions of legal services by legal professionals.
The advance of the alternative business structure will be a real and formidable challenger to the legal profession and the unwelcome restrictions that could be imposed by the introduction of the QAA scheme on criminal advocates from traditional firms and chambers may play into the hands of these businesses and place all advocates at a disadvantage as it is likely the costs of advocacy will be tightly controlled by these organisations.
Driving force
It is the question of ‘costs’ that is the driving force behind this non-evidential scheme; although barristers are still routinely instructed in final hearings and trials, they are rarely instructed from the beginning of the case, and solicitors, with or without higher rights, have now taken a lead role in advocacy up to that stage. The growing stream of solicitor-advocates who appear for clients at the trial and the higher courts are also seen to encroach on brief fees which in the past would have been shelled out to barristers in large doses.
The Bar will, however, never admit that their motivation for a quality assurance scheme is anything but their desire to maintain advocacy. But this cannot be true, especially as there has never been any quality assurance scheme in the past 300 years since the time of William Garrow who instigated the present adversarial system, appearing as advocate for disadvantaged defendants at the Old Bailey.
No evidence
The lack of evidence-based research also questions the need for a quality assurance scheme as apart from the outspoken remarks by two or three judges which have been reported in the press about solicitor-advocates. There has not been a widespread cry by judges as to the quality of the advocacy heard before them. This could be because the judiciary is not there to assess the quality of the advocacy, but to judge the case. The independent and unique role played by the judiciary should not be tarnished by imposing conditions on judges to ‘traffic light’ advocates’ performances as this could have serious consequences to the integrity of the judge and may lead to accusations of bias and discrimination against them causing irreparable damage to the image of our justice system.
Judicial intervention is therefore not the way, but that does not mean that there should not be a scheme to maintain the quality of advocacy in our courts. All legal professionals already have a duty to ensure that they have the requisite skills and experience when advising and representing clients and any quality assurance scheme should take that on board.
Hampering needs
The current CPD system allows associations such as the SAHCA to provide courses which are voluntary, accredited by the Solicitors Regulation Authority and attract high-calibre individuals, to include figures from the judiciary to provide training to an ever-growing membership of solicitor-advocates.
It should therefore be down to organisations such as SAHCA, which have a track record of providing high-quality training, to run any quality assurance scheme that comes into existence rather than a new, foreign body which may not be able to meet the needs of the advocates and may even hamper them while it struggles to establishes itself in this volatile legal environment.
So the jury is out for the future of advocacy, at least until next year.
Postscript: Sophie Khan is a solicitor at Imran Khan & Partners and a member of the Solicitors Association of Higher Court Advocates
Poor quality
29 November 2010
- Main Page Content:By Sophie Khan
The introduction of a quality assurance scheme in this delicate legal environment would be disastrous, warns Sophie Khan
On 15 November the Lord Chancellor, Ken Clarke, announced proposals to cut £350m from the legal aid budget “to ensure that legal aid is provided to the poorest and is preserved for the future”. The future coincidently was also the theme of the annual conference held by the Solicitors Association of Higher Court Advocates (SAHCA), ‘Advocacy 2020’ which was held
a few days before his announcement and was a platform for speakers and delegates alike to share their views on the highly controversial Quality Assurance Advocacy (QAA) scheme for criminal advocates, headed up by the Joint Advisory Group.
The scheme has sprung from the ideology that there is a ‘problem’ in the quality of criminal advocacy. I believe this ideology has come from the Bar and its futile attempt to maintain a closed-shop monopoly on advocacy for their self-preservation. This at a time when the prime minister has warned countries at the G20 of the impact of protectionism by currency manipulation; the Bar it seems has not seen the parallels in its own actions towards solicitor-advocates and the dangers of undermining fellow legal professionals.
The proposed legal aid cuts also bring with them the message that the legal market is in a delicate state and that any manipulation by legal players could damage the long-term provisions of legal services by legal professionals.
The advance of the alternative business structure will be a real and formidable challenger to the legal profession and the unwelcome restrictions that could be imposed by the introduction of the QAA scheme on criminal advocates from traditional firms and chambers may play into the hands of these businesses and place all advocates at a disadvantage as it is likely the costs of advocacy will be tightly controlled by these organisations.
Driving force
It is the question of ‘costs’ that is the driving force behind this non-evidential scheme; although barristers are still routinely instructed in final hearings and trials, they are rarely instructed from the beginning of the case, and solicitors, with or without higher rights, have now taken a lead role in advocacy up to that stage. The growing stream of solicitor-advocates who appear for clients at the trial and the higher courts are also seen to encroach on brief fees which in the past would have been shelled out to barristers in large doses.
The Bar will, however, never admit that their motivation for a quality assurance scheme is anything but their desire to maintain advocacy. But this cannot be true, especially as there has never been any quality assurance scheme in the past 300 years since the time of William Garrow who instigated the present adversarial system, appearing as advocate for disadvantaged defendants at the Old Bailey.
No evidence
The lack of evidence-based research also questions the need for a quality assurance scheme as apart from the outspoken remarks by two or three judges which have been reported in the press about solicitor-advocates. There has not been a widespread cry by judges as to the quality of the advocacy heard before them. This could be because the judiciary is not there to assess the quality of the advocacy, but to judge the case. The independent and unique role played by the judiciary should not be tarnished by imposing conditions on judges to ‘traffic light’ advocates’ performances as this could have serious consequences to the integrity of the judge and may lead to accusations of bias and discrimination against them causing irreparable damage to the image of our justice system.
Judicial intervention is therefore not the way, but that does not mean that there should not be a scheme to maintain the quality of advocacy in our courts. All legal professionals already have a duty to ensure that they have the requisite skills and experience when advising and representing clients and any quality assurance scheme should take that on board.
Hampering needs
The current CPD system allows associations such as the SAHCA to provide courses which are voluntary, accredited by the Solicitors Regulation Authority and attract high-calibre individuals, to include figures from the judiciary to provide training to an ever-growing membership of solicitor-advocates.
It should therefore be down to organisations such as SAHCA, which have a track record of providing high-quality training, to run any quality assurance scheme that comes into existence rather than a new, foreign body which may not be able to meet the needs of the advocates and may even hamper them while it struggles to establishes itself in this volatile legal environment.
So the jury is out for the future of advocacy, at least until next year.
Postscript: Sophie Khan is a solicitor at Imran Khan & Partners and a member of the Solicitors Association of Higher Court Advocates
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