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
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