This was the question troubling the legal minds of the Chancery Division in Court 68 of the RCJ yesterday.
The background to this starts, really, with Camp Bling and the Southend protestors who successfully prevented the council from building a road through a site of historic importance. In April 2009 the council promised not to go ahead with their road widening scheme, and the camp was abandoned.
In true Private Eye style, the council then transferred their road widening to another area, this time intending to remove the beautiful old trees that were in the way of progress and planting instead a three-lane monstrosity. The camp reawakened and moved to the new site, establishing Camp Cuckoo. With £5 million burning a hole in their pockets, the council are keen to get rid of their hippie infestation and get on with the road, so took them to court in pursuit of a possession order.
On the legal side of things, the council are entitled to their possession order. The question, put succinctly by the judge (Master Eyres) was this: Is there occupation going on, and is it legally - not morally, not politically, but legally - permitted?
There is no single definition of occupation. It's easy in a squatting case: occupation means living in the property. It's almost easy in a travellers' case: occupation there means putting your caravan on the land and living there. With Camp Cuckoo, the protestors are living in tents. Is that occupation? Probably. How about if they turn up and sit in a tree? Is it unlawful to occupy a tree? Hmm, said Master Eyres, "it may be." What about walking the dog, asked one of the named defendants. We didn't really get an answer to that.
What of the fact that the protest is happening on public land? The defendants have a legal right to protest, and they have a right to use public land to do so. They have a right to use the public land but not to occupy it, which takes us back to the definition of occupation.
So the legal victory goes to the council, who duly got the possession order over the land.
The moral and political victory, however, doesn't. The council have behaved appallingly, it transpired in court. They named twelve individuals as defendants and then the thirteenth was "persons unknown." Of the twelve named individuals, nine have never occupied the land and one is a cat. Yes, that's right, a cat. The cat was unable to be present for the hearing, but was represented by a picture.
How did this happen? Well, the council has old scores to settle from Camp Bling, say the defendants. The various people named have been active in other campaigns and have managed to annoy the council. They simply picked the twelve who have been the biggest nuisance to them (the cat had been named in a press release and the council obviously didn't realise he wasn't human) and named them in a fit of petty vindictiveness. The inclusion of the cat shows quite clearly that the person who wrote the list of defendants didn't bother to find out who was actually at the camp, but rather wanted to settle old scores. The individual who did the naming was in court. She didn't offer an explanation for this, but the message comes through as though in neon: do not piss off Southend Borough Council or they will use their power to make your life difficult. Nice.
One of the defendants who does occupy the land spoke of harassment from the council, who send recycling trucks up and down the road by the camp to create a deliberate disturbance and disrupt the protestors' sleep. Another complained that the council had provided an article to the Southend Echo saying that Anna Waite (who is in charge of transport and by default the road widening scheme) had received death threats, and had explicitly linked Camp Cuckoo to these death threats, which were actually nothing to do with the camp but appear to be the work of a sole, anonymous Mr Angry. The council put this article into the court documents, possibly as evidence to support their contention that they expected the removal of the protestors to turn nasty. (This claim, incidentally, is risible: the protestors are not teen anarchists; a large number of them are retired.)
The council had also failed to comply with protocol. They gave the defendants only three (rather than the usual five) days notice, which left them with no time to seek legal advice or to think about settling the claim outside court. Moreover, the notice was not served on them, but simply hung on a fence. As I heard this my mind flashed to history lessons and the Tolpuddle Martyrs. It's quite wrong, in my view, that in 2010 a court allows service by fence.
Had the protestors had sufficient notice, they might have been able to take advice on their position, which was that legally they had little case. They could then have agreed to concede the case and vacated the hearing date. As it was, they attended court - and in a twist of legal absurdity, despite most of them not actually being occupiers of the land, that made them parties to the claim and liable to costs. It seems that Counsel for the claimants had bypassed the usual etiquette of speaking to the other side before the case was heard to see if there was any common ground. This isn't a rule by any means, but it's polite, and had he done so, he would probably have found that the case settled. What a pity that he chose not to do so.
It was clear from the reaction of the defendants that they had no idea that it was possible to vacate a court hearing by mutual consent. Nor did they know that if they were named as defendants, it would be possible to be removed from that list by speaking to the council in advance. All of them described the court date as a "summons" - no doubt because they were listed as "defendants" - and had supposed that, as with the criminal courts, failure to attend would lead to a warrant being issued for their arrest. You can't phone the police and ask them to drop a prosecution if you agree to do some probation - why should anybody other than a lawyer know that you can do the equivalent in a civil court?
By this time, the judge was beginning to look bored, and having explained that they were liable to costs as defendants, proceeded to make the costs order "as sought." Which includes the cat.
As one of the defendants remarked, the cat won't be able to pay any costs but might perhaps do a spot of community service mousing.
Had I been the judge I would have accepted that the defendants attended in good faith, that they were improperly served with the claim, and I would not have made that costs order. I was itching to write a little list of submissions they could make on costs, leave the spectators' seating, run to the front and pass it to them, but spectators interfering in court proceedings is quite definitely verboten.
This case has been a good illustration to me of the flaws in the civil justice system. It is simply unreasonable to expect unrepresented defendants to show the sort of familiarity with the civil procedure rules that it takes lawyers years to learn. Unequal weighting is a problem: the most erudite defendant will struggle to put a case against an experienced barrister. In criminal courts there is a witness support service, replete with helpful ladies and myriad leaflets. Where's that at the Royal Courts of Justice?
The system as it is at present inherently unfair to those who can't afford (and in this case don't have time to get) really good legal advice. That access to justice should be so dependent on affordability is woefully medieval.
- Is it unlawful to occupy a tree?