R (Barda) v Mayor of London (2015) EWHC 3584 (Admin) concerned Byelaws made by the Greater London Authority with respect to erecting and maintaining fencing around Parliament Square Garden (“PSG”), and their compatibility with Article 10 (freedom of expression) and Article 11 (freedom of association) of the European Convention of Human Rights.

Garnham J said, at paragraphs 90 and 91, that it follows from the authorities that place, manner and form of assembly and expression of views may be important in determining whether there has been an infringement. However, they are not necessarily so. The caselaw is certainly not authority for the proposition that a protester’s choice of place and form must always be respected. The authorities responsible for PSG must not always accommodate a protest in precisely the form the protester prefers.  The Court must take account of the form, place and mode of the protest along with all the surrounding circumstances in deciding whether the actions of the State constitute a real interference with the exercise of the rights.

The Judge found that there was an interference. The question therefore was whether that interference was justified.

The scope of the GLA’s powers to manage and regulate PSG was broad. Those powers were more than sufficient to permit the erection of fences as a means of managing and regulating the use of PSG.  The interference also pursued a legitimate aim. The fact that the aims changed over time and sometimes covered more than one objective was nothing to the point. The care and maintenance of the physical space, the prevention of disorder, the protection of the rights of others (both those who also wanted to protest and those who simply wanted to enjoy the amenity of the gardens) are all legitimate aims. Those were genuine aims of the GLA at various points during the history.  All of that meant that the critical question was whether the interference was proportionate.

The burden of proof of justification was on the Defendant. This was not a Wednesbury challenge where a degree of deference was due to the decision maker. The Court has to put itself in the position of the GLA at each material stage and ask whether the GLA have satisfied the Court that their response was proportionate given what they knew at the time. It would not be correct to take into account what has become known since the decision being considered, but which could not have been known at the time.

The Judge addressed five issues that were relevant to justification: first, the extent of the interference; second, prior restraint; third, prior authorisation; fourth statutory sanctions and controls; and fifth public liability insurance.

As to the first, although there was an interference, it was far from total. There was some interference with rights of expression and assembly, but that interference was limited.

As to the second, the fencing did amount to a form of prior restraint. However, this was partial restraint.

Third, it is not a breach of Articles 10 or 11 to require prior authorisation for demonstrations or protests.

At paragraph 107, Garnham J said:-

“Those organising demonstrations, “as actors in the democratic process”, should respect the rules governing conduct of demonstrations by complying with the regulations in force. A failure to do so demonstrates a disregard of the rights and freedoms of others and of the need to manage those competing rights sensibly if they are to be enjoyed to the greatest extent possible. Of course the Convention imposes obligations on contracting states not individuals, but if the individual does not play his part a greater latitude must be allowed to the state in the way it responds.”

At paragraph 108, Garnham J said:-

“Failure to obtain authorisation will not negate the rights under Articles 10 and 11. However, in my judgment, it will be relevant in judging the proportionality of the State’s response.”

As to the fourth point, statutory sanctions, the Judge said that the corollary of the State’s entitlement to require prior authorisation was the right of the State to impose sanctions if that authorisation is not obtained. Sanctions were not limited to those provided by the Police Reform and Social Responsibility Act 2011.  That Act does not establish an exclusive scheme for responding to demonstrations in PPSG. The power for the GLA to make Byelaws governing the management and regulation of PSG remains. The Judge also made observations in relation to public liability insurance; and concluded that justification was established.  He said:-

“123.     In my judgment, of central significance in this case was the measured and graduated approach adopted by GLA to the threats of periodic occupation of PSG. Alternative responses, including polite requests, then removals, then arrest and prosecution of individual protesters, were tried without success. The Square was roped off, then part of it was fenced off, then most of it was fenced off. When the likelihood of occupation diminished then the fencing came down.

124. The response waxed as the threat to the Square increased and waned as it subsided. In my judgment, it was the very definition of a proportionate response.”

The two issues raised by the Local Government Election Petition in Baxter v Fear [2015] EWHC 3136 (QB) were described by the Court as “important and novel”.  The Petition concerned the Kinson South Ward of Bournemouth Borough Council.  The problems arose owing to a printing error.  “Books” or batches of ballot papers were printed and assembled in advance of election day. Whilst the cover of the Kinson South ballot books showed the correct information for that Ward, the ballot papers inside were for Kinson North; and vice-versa.  This problem affected each of the nine polling stations in both Wards.  Once the problem was identified prompt steps were taken to address it.  By mid-morning all polling stations in Kinson North and Kinson South had been issued with the correct ballot papers.  By then some electors provided with the wrong ballot papers had placed them in a Kinson South ballot box.  Some, but not all, of these returned later, and completed correct ballot papers. The total number of electors affected in one way or the other by the ballot paper error to the extent that they were effectively disenfranchised was 115.

The first issue arose under Section 48(1) (b) of the Representation of the People Act 1983.  No local government election shall be declared invalid by reason of any act or omission of the Returning Officer if it appears that the act or omission did not affect the result.  In a three member ward the gap between the second and third candidates who had been elected and the petitioner was less than 115.  It was unlikely however that the 115 affected electors would have voted in such a way as to lift the petitioner to third place.

The first issue was whether a statistical or psephological approach was appropriate, whether it was permissible for the Court to undertake an inferential analysis of how disenfranchised voters would or might have voted.  There was no decided authority which directly answered the question.  The Court answered it in the negative.  Jay J, with whom Wilkie J agreed, said:-

“27. … By enacting section 48 of the 1983 Act, Parliament cannot be treated as somehow empowering the judicial arm of Government to peer into the voting booth, whether by drawing informed, probabilistic inferences or otherwise.

28. This conclusion supports the delicate constitutional balance which clearly exists in this domain, and achieves practical and legal certainty. … there would in principle be no constraint on the type of evidence the court might receive: e.g. psephological (on a micro or macro level), geographical and behavioural.  In my view, it seems obvious that Parliament could not have intended to mandate such a potentially far-reaching, penetrating and invidious level of inquiry by the judiciary.”

“31. There are many situations where courts are prepared to draw inferences from evidence of a statistical nature, … However, in those domains the policy considerations are rather different, not least because no quasi-constitutional issues arise. … Voting behaviour can be extremely unpredictable across a Ward, and may depend on factors about which it is difficult to be precise. Ultimately, the policy of section 48(1) is that an investigation of likely voting behaviour is tantamount to an exercise in pure speculation, and must be avoided.

32. This Petition must succeed on the basis that it appears to the Court that the acts and omissions for which the Fourth Respondent is responsible, effectively disenfranchising 115 electors, affected the result of the election of the Second and Third Respondents.”

The second issue was whether the ballots of the returning electors should have been included.  The legal backdrop to this issue was the relevant provisions of the Local Elections (Principal Areas) (England and Wales) Rules 2006 [2006 S.I. No. 3304] (“LEPAR”), in particular Rules 15, 16, 33 and 35 of Schedule 3. LEPAR contains a specific and detailed set of mandatory rules governing the method of poll, the form of the ballot paper, the questions to be put to voters, and the voting procedure. A number of the breaches of LEPAR were perpetrated by the Returning Officer, comprising issuing an erroneous or invalid ballot paper to 76 electors, failing to issue a ballot paper to the 160 electors who applied to vote during the interregnum, and issuing the 56 returning electors with a second ballot paper.  The first two of these were common ground.  It was the third that needed to be addressed.  The Court held that the second ballot papers should not have been issued. Jay J said:-

“44.  … LEPAR contains no mechanism for correcting errors once the ballot paper has been folded and placed into the ballot box. This is treated by the rules as a legally irrevocable act – at least until the poll closes and the ballots are scrutinised.

45. … there is no provision in LEPAR for errors of any sort to be corrected by the delivery of a second ballot paper to the voter. Indeed, the tenor of Rules 33(l)(b) and 35(l)(c) is to the contrary effect, because these provisions are predicated on there being one vote, not two. …

46. The upshot is that LEPAR, properly construed and applied, leaves no room for discretionary decision-making by returning officers, let alone for “self-help” remedies which entail ascertaining who has voted incorrectly, and then making contact with them. However well-intentioned, what happened here had the tendency to undermine rather than to safeguard the integrity and secrecy of the whole voting process: the philosophy of LEPAR is to regulate and constrain contact between presiding officers (or their agents) and voters, and to postpone dealing with errors and irregularities until after the closing of the polls.

47. … the consequence … is that voters only had one bite at the metaphorical cherry in circumstances where they could have no responsibility for the initial printing error. …”