#OccupyLSX and Freemanry

Occupy London Stock Exchange have lost their appeal against the decision to turf them out of the churchyard of St. Paul’s.

I haven’t read the judgment in its entirety, but thought I’d pick up on one specific aspect.

At paragraphs 29-31:

  1. With the exception of Ms Samede, the defendants making the present applications are seeking to set aside all the orders made by Lindblom J, on the basis that they contend that the Judge ought not to have found for the City at all, but should have dismissed the claim and allowed the Camp to continue in place. It is convenient to deal first with one or two rather esoteric arguments raised by Mr Randle-Jolliffe.
  2. First, he challenged the judgment on the ground that it did not apply to him, as a ‘Magna Carta heir’. But that is a concept unknown to the law. He also says that his ‘Magna Carta rights’ would be breached by execution of the orders. But only chapters 1, 9 and 29 of Magna Carta (1297 version) survive. Chapter 29, with its requirement that the state proceeds according to the law, and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England, but it has no bearing on the arguments in this case. Somewhat ironically, the other two chapters concern the rights of the Church and the City of London, and cannot help the defendants. Mr Randle-Jolliffe also invokes ‘constitutional and superior law issues’ which, he alleges, prevail over statutory, common law, and human rights law. Again that is simply wrong – at least in a court of law.
  3. Another ground he raised was the contention that the City had no locus standi to bring the proceedings ‘as the current Mayoral position has been previously usurped by the Guilds and Aldermen in Contravention of the City of London’s 1215 Royal Charter’. We do not understand that point, not least because both the Lord Mayor and the Aldermen and Guilds (through the Commonalty and Citizens) are included in the claimants.

This is yet another case in which Freeman ideas have been decisively rejected by a court.  Another reasonably high-profile case is Doncaster MBC v Watson and Haigh [2011] EWHC B15 (Fam).  At the lower end of things, the courts are alive to their existence and prepared to take robust action to prevent it wasting their time.

The problem I have, and it may be because I’m feeling charitable, is that I genuinely don’t understand how, by their own logic, Freemanry is supposed to work.

Set aside the massive conceptual problems the idea has.  Let’s concede arguendo that the Freemen are right and that the institutions we call courts aren’t really courts but commercial operations, and that they do not recognise the supremacy of Magna Carta, “common law” and other superior forms of law.  Let’s also suggest for the moment that statutes really do require consent to be binding, and the “courts” are fundamentally wrong in suggesting otherwise.  Let’s assume all of that for the moment.

The problem I have in understanding this is that, even if this were all to be correct, I cannot see how it advances their goals one bit.  Freeman tactics and techniques are used, not in the support of principle, but as a straightforward practical tool.  It’s used to evade: being bound by injunctions; eviction; parking tickets; criminal prosecutions and debts.  These are primarily practical matters.  The Freeman ideas are not used on the strength of their moral philosophy or legal analysis, but because they offer you a quick fix.  In short, Freemanism is about providing something that works.

But it’s manifestly obvious that, even if the Freeman analysis of the law sketched above is correct, it is entirely ineffective in practice.  Even if you refuse to recognise the moral or legal authority of the courts, it cannot be denied that they have real, practical power.  Indeed, Freemen tend to refer to these institutions as “de facto courts”.  These courts do not recognise the validity of Freeman principles and arguments.  Any such argument advanced before them is going to fall entirely flat and be entirely unsuccessful.

Why, then, persist?  If your goal is to take a stand on a matter of principle, fair enough.  But this isn’t where Freeman arguments are deployed.  They are used like any other legal argument: to achieve a practical outcome in your favour.  Yet they stand zero chance of achieving that if we discount any nuisance effect it might have.  Freemen go to court to win, but even on their own analysis, the fora in which they use their arguments will not accept them, making loss inevitable.

I can’t be the only one thinking this.

UPDATE: Paul Randle-Joliffe, one of the litigants in this case, has got in touch to ask me to point out that the ideas sketched out, after the quote from the judgment, as a summary of Freeman legal analysis do not represent the submissions he made before the Court of Appeal.

26 comments ↓

#1 Paul Randle-Jolliffe on 03.16.12 at 1:52 am

Can i ask on what basis you have assumed that I advanced a “Freeman on the Land” type argument, because I did not as so your assumption entirely misrepresents matters you have have properly looked at and your comments have no bearing on the issues raised at all.

I suppose you can be forgiven given that the Master of the Rolls himself misrepresents as well I never even tried to “First, he challenged the judgment on the ground that it did not apply to him.” that is pure invention.

#2 Ben on 03.16.12 at 9:43 am

Hi Paul,

First, it’s in the nature of the paragraphs of the judgment quoted above. If that is an accurate representation of your arguments, it’s fair to describe them as falling into the same category of legal analysis as that represented by the Freemen of the Land groups and associated entities.

Second, the accusation that the MR misrepresented your argument and lied is a very serious one and I’m not going to believe it absent any credible evidence.

Third, Scrapper Duncan’s account of the legal proceedings would support this view.

Fourth, your own website quotes Magna Carta, with the word “Freeman” very prominently. You make it clear that you base your arguments on Magna Cara, which is enough to classify your case as falling into the Freeman camp.

#3 Kris on 03.16.12 at 9:49 am

@Ben I think that just about sums it up – so goodnight, Paul, and goodluck.

#4 Paul Randle-Jolliffe on 03.16.12 at 10:50 am

It is not really accurate, for a start there is more than one type of freeman and I am not of the freeman on the land camp, for instance the citizens of the city of london are the freeman of the city are another but I am not one of those, there are at least two other types, second my argument was based upon statutes of which 1297 magna carta is one, using statute in legal argument is something freeman on the land dont do, I quote the statute on my website, none of which is any evidence I am of the Freeman on the Land camp.

I have not said that MR lied but I do say he misrepresented and yes it is very serious, to give you some of my concern where he says to the effect of hierdom is not known to law, take a look at where it is clearly written into statute http://www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/I Hier is written three times so the MR is clearly in error.

You would of course need to know on what basis I claimed that right as an Hier rather than assuming and what the argument around that was and why. The MR misrepresents me by putting words in I have not said as you and Duncan have based upon presumption not fact. Mr Duncan is subject to a Bar Standards Complaint as he has breached the code for barristers, I would suggest you are close to doing the same by ascribing attributes or positions to me that I do no hold.

I would note that his post on your site is libelous and you should remove it along with all other posts that might malign or ascribe ascribe matters or beliefs to me personally including yours that are not about legal argument regarding the case.

Lastly I will deal with the MR in the appropriate fashion through the proper process of law.

#5 Paul Randle-Jolliffe on 03.16.12 at 10:52 am

I had a simple conclusion the MR’s judgement, he needs remedial English lessons!

#6 Ben on 03.16.12 at 11:09 am

1. The term “freeman” here is used as a catch-all to describe all arguments of that genus, not just strict membership of the Freemen of the Land group.

2. The fact that the word “heir” appears in the document does not support any wider construction of being a “Magna Carta Heir” that disapplies the law as you suggest. No basis could be put forward to support any such construction.

3. Your raising the heirdom issue contradicts your earlier claim that you made no such argument. Either you made the argument or you didn’t. If you did, then MR is not misrepresenting your position.

4. I can find no evidence of there being a BSB complaint against Duncan. The suggestion is defamatory and, unless you can substantiate it, I suggest you withdraw it.

5. Ditto claims of professional misconduct against me. That’s a very serious allegation and utterly baseless.

6. I can see nothing on the face of Duncan’s blog that is actionable. Unless you provide me with some reasons why it is is defamatory I will not remove the link.

7. In any event, the ascribing of views to you is not by me, but by the Court of Appeal, whose judgment I have cut and pasted. Accordingly, it is covered by privilege and is not defamatory.

#7 kris on 03.16.12 at 11:44 am

Well, if you’re not a Freeman “of the Land” and not of the “City”, then may we ask, what type of Freeman you are?

In any event, I am struggling to understand how an apparant believer in the Magna Carta would suggest that Ben, a living man, be subject to the jurisdiction of the BSB when the Magna Carta provides he should be judged by a jury of his peers.

#8 Paul Randle-Jolliffe on 03.16.12 at 1:10 pm

There are at least three types: Honorary Freemen, On a roll (or what might be called registered freemen), and ones like myself who are hereditary who may or may not be on a roll.

A barrister or pupil even would be subject to the royal franchise charter of the bar council and its code (rules) of which the BSB is the arbiter and sanctioner of any breaches. You join a club and have its benefits but you also are subject to its rules.

http://www.barstandardsboard.org.uk/regulatory-requirements/the-code-of-conduct/the-code-of-conduct/part-vii-conduct-of-work-by-practising-barristers/

710.2 Advertising or promotion must not:

(a) be inaccurate or likely to mislead; (applicable)

(b) be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute; (applicable)

(c) make direct comparisons in terms of quality with or criticisms of other identifiable persons (whether they be barristers or members of any other profession); (applicable)

(d) include statements about the barrister’s success rate; (not applicable)

(e) indicate or imply any willingness to accept instructions or any intention to restrict the persons from whom instructions may be accepted otherwise than in accordance with this Code; (not applicable)

(f) be so frequent or obtrusive as to cause annoyance to those to whom it is directed. (applicable)

#9 Paul Randle-Jolliffe on 03.16.12 at 1:32 pm

@ Ben your points

1. The term “freeman” here is used as a catch-all to describe all arguments of that genus, not just strict membership of the Freemen of the Land group.

But you ascribe things that are specific to “freeman on the land” in direct relation to me without any knowledge or reference to the applications and evidence I presented this is direcly misleading.

2. The fact that the word “heir” appears in the document does not support any wider construction of being a “Magna Carta Heir” that disapplies the law as you suggest. No basis could be put forward to support any such construction.

I made no such submission or suggestion that the law disapplies, the MR is in error and misleads in this regard.

3. Your raising the heirdom issue contradicts your earlier claim that you made no such argument. Either you made the argument or you didn’t. If you did, then MR is not misrepresenting your position.

I made no such argument that any statute does not apply to me as mentioned above, not about hierdom.

4. I can find no evidence of there being a BSB complaint against Duncan. The suggestion is defamatory and, unless you can substantiate it, I suggest you withdraw it.

It was posted earlier this week. I will not withdraw it as it is a fact, but the complaint has not been determined.

5. Ditto claims of professional misconduct against me. That’s a very serious allegation and utterly baseless.

I have suggested you might be in breach of the code:

710.2 Advertising or promotion must not:

(a) be inaccurate or likely to mislead;

(b) be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(c) make direct comparisons in terms of quality with or criticisms of other identifiable persons (whether they be barristers or members of any other profession);

6. I can see nothing on the face of Duncan’s blog that is actionable. Unless you provide me with some reasons why it is is defamatory I will not remove the link.

710.2 Advertising or promotion must not: etc

He implies I am dangerous by saying these people on your blog and he was not at the appeal hearing and did not see my application

Plus

http://blog.scrapperduncan.com/2012/02/29/beware-of-paul-randle-joliffe-if-you-seek-legal-advice-he-is-a-woo-merchant/

7. In any event, the ascribing of views to you is not by me, but by the Court of Appeal, whose judgment I have cut and pasted. Accordingly, it is covered by privilege and is not defamatory.

#10 Paul Randle-Jolliffe on 03.16.12 at 1:41 pm

7. In any event, the ascribing of views to you is not by me, but by the Court of Appeal, whose judgment I have cut and pasted. Accordingly, it is covered by privilege and is not defamatory.

This court did not say this, you did “Let’s concede arguendo that the Freemen are right and that the institutions we call courts aren’t really courts but commercial operations, and that they do not recognise the supremacy of Magna Carta, “common law” and other superior forms of law. Let’s also suggest for the moment that statutes really do require consent to be binding, and the “courts” are fundamentally wrong in suggesting otherwise. Let’s assume all of that for the moment.

The problem I have in understanding this is that, even if this were all to be correct, I cannot see how it advances their goals one bit. Freeman tactics and techniques are used, not in the support of principle, but as a straightforward practical tool. It’s used to evade: being bound by injunctions; eviction; parking tickets; criminal prosecutions and debts. ”

I have never expounded such views so discussing them in context of the judgement, errors in that or not, is highly misleading, you have presumed to much.

710.2 Advertising or promotion must not:

(a) be inaccurate or likely to mislead; (applicable)

(b) be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute; (applicable)

(c) make direct comparisons in terms of quality with or criticisms of other identifiable persons (whether they be barristers or members of any other profession); (applicable)

#11 Ben on 03.16.12 at 2:27 pm

There are numerous points here.

First, rule 710 only applies to practising barristers. I am not a practising barrister. I’m a first six pupil and therefore do not meet the test under rule 201(a) as I do not supply legal services. Consequently the provision does not apply to me.

Even if it did, this website is not advertising or promotion. It’s semi-anonymous and is not in connection with any legal practice I might have. In fact, it barely covers the area of law I work in. In any event, if it were, I would not be in breach of the provisions:

710.2 (a) – this is in terms of misdescribing oneself. It applies to how I describe myself, not you.

(b) Criticism of a view expressed by a party in litigation as described in a judgment is not going to bring the profession into disrepute. Lawyers expressing opinions on the law is not a disreputable activity.

(c) This is about comparative advertising, not criticism of a legal argument. It doesn’t apply here.

(f) That is to do with mass mailshots, bombarding emails and so on. I do almost zero marketing for this blog and so this provision is not engaged.

Turning to your other criticisms:

1. This is not in direct relation to you. First of all, I do not name you; second the emphasis of the post shifts to a general discussion of “Freeman” (in the catch-all sense) ideas; third the positions articulated are not attributed to you; fourth the tense is plural, so it clearly cannot be in direct reference to you.

2. You have missed my point here. I’m saying that there is no possibility of advancing an argument that there is such a legal concept as a “Magna Carta heir”.

3. You should read paragraph 30 of Neuberger MR’s judgment more closely. That is not how he characterises your submissions.

4. It is not on the BSB website and you are providing no evidence other than a bare assertion. I’m not going to believe it unless you back your claim up with evidence.

5. See above on r. 702. It doesn’t apply to me, this blog isn’t advertising or promotion, and even if it was I still wouldn’t be in breach.

6. See the above points. That is a separate post, and again appears to have defences of justification, fair comment etc. You have not explained why this, or the earlier posts mentioned, are defamatory in the legal sense. I am happy to deal with it if you explain your complaint, but I am not in the habit of removing content on the basis of the bare assertion that something is defamatory because you don’t like it. Unless you explain the factual and legal basis on which you say it is defamatory, I’m not removing it.

7. As stated above, the focus shifted at that point from your submissions to a more general point. You were not the focus of this story, just a hook into a wider argument on a collection of views encapsulated in the term “Freeman”, into which your submissions fit.

#12 Paul Randle-Jolliffe on 03.16.12 at 3:48 pm

If you can make it clear that the propositions you then discuss are not ones I have propounded then I would be happy.

I am not happy about Ducan’s “dangerous” though which is on another of your posts, this has very definite defamatory implications as it references me.

I would be happy to provide you with a copy of my complaint, I am not a liar and you have no evidence I have not and you could always check with the BSB.

#13 Ben on 03.16.12 at 4:03 pm

I think it is manifestly clear that the propositions discussed are not the same ones you ran before the court, but if it will make you happy I will append an update.

The “dangerous” paragraph is logically distinct from the reference to you. In any event, running arguments that are as legally unsound as that, and offering services to members of the public on that basis, do pose a danger to members of the public. The remark is, in my view, subject to defences of fair comment and/or justification.

I did check with the BSB. No hearing is listed for the complaint. In any event if it is I’ll follow it.

#14 Paul Randle-Jolliffe on 03.16.12 at 4:34 pm

What I might do as an individual personally and what I do as a service are quit distinct and such comments like dangerous and woo are professional and personally damaging, there is no evidence that I pose a danger, and I am lawfully able to do what I do and I could if you like invite several hundred people to provide references that assert the opposite.

I have helped a lot of people over the years.

To assert that I might be dangerous and defaming me on an assumptions is not good practice apart from leaving onesel

The BSB have received the complaint.

#15 Ben on 03.16.12 at 4:45 pm

Except that in both cases you are providing legal services, and it is a fair inference that how you conducted yourself in the OccupyLSX litigation was in similar fashion to how you do it otherwise.

I am not convinced that the comments are defamatory and you have not at any point particularised the allegations of what, precisely, is defamatory. Calling you “dangerous” is, in my view, fair comment rather than defamation. You offer legal services without any qualification or licence to do so, and from what I have seen so far, you have done nothing to dispel the notion that your understanding of English law is suspect at best. You have advanced nothing to suggest that this is anything other than fair comment.

As to the BSB complaint against Duncan, I can only take your word for it as I have absolutely no other evidence to support what you say. Nor would a copy of the complaint change that situation.

#16 Sean Jones on 03.16.12 at 5:42 pm

Paul

Since there seems to be a dispute as to what was and was not argued in the Occupy case, can I suggest you put your skeleton up online and post a link here so that those of us who are interested can take a look?

Sean

#17 Jacky Bafoot on 03.16.12 at 5:54 pm

I would very much like to read the full case transcripts as recorded in the courtroom if they were in much detail of the case, other than the above summery blog of the case. I’d find it most interesting to browse through.

#18 Ben on 03.16.12 at 6:28 pm

@Sean: Yes, that looks like a very good way of addressing this.

#19 Paul Randle-Jolliffe on 03.31.12 at 6:47 am

There are no transcripts as far as I am aware.

#20 Paul Randle-Jolliffe on 04.17.12 at 4:30 am

The issue here is you have picked up on Duncan Roys presumption and obsession focused on an issue regarding freeman on the land that had no bearing in the case.

My appeal grounds were

Issues for the Court

This application for leave to appeal is based upon the appellant’s verbal application to appeal as a person unknown and as some one directly affected by the judgement in court and refusal by the judge on point one below. (No written refusal was given)

GROUNDS

1. The judge erred in saying that “it is up to the government to decide….how the city of London is governed” (Para 7 of the Summary of the judgement.)

2. The Judge did not properly consider the Magna Carta issues and rights as they directly affect the appellant as a Magna Carta heir and in conjunction with other co-defendants’s Magna Carta rights.

3. The Judge erred and did not properly consider the significant constitutional and superior law issues raised in the case and the rights to remedy same. Instead the Judge focused only on lesser Law and Acts which prejudiced the rights and privileges of the Appellant and other occupiers as well as the interests of those beyond the camp who also have those rights.

4. The Judge erred in that he did not properly consider if the Mayor of the City of London had the lawful right to bring the action and to claim rights under common law in that action as the current Mayoral position has been previously usurped by the Guilds and Alderman in contravention of the City of London’s 1215 Royal Charter – granted by King John.

5. The City of London did not consider and the Judge erred in that he did not consider the rights of rough sleepers at St Paul’s including those that have been there for up to ten years along with their need to use bedding.
The Judge erred in that he could have considered a reduced camp but omitted consideration.

6. The Judges decision was therefore in regard to all the above did not properly consider proportionality and fairness under the wider body of law, but limited himself to consideration under narrower statutes, giving the appearance of bias.

Also included was much evidence covering breaches: of charter, equity and trust, criminal law ie crimes (by city of London banks and in family law) and academic argument regrading issues to do with private ownership of public space that have not be considered in law yet and more. He addressed none of these in his refusal of leave to appeal.

I also cited case law, statutes and authorities.

I presented evidence from city of Londons own publications that Lord Mayors of the City of London have not be by due process properly elected. The Lord Mayor could not properly bring an action.

The MR needs remedial English lessons or he fudged it.

To quote Blackstone from his Commentaries on the Laws of England.

“And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a Negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti [instantly] a freeman.”

This comes originally from the 1100′s but the case reffered to was much later and more recently in the press by david cameron

“First, by the great charter of liberties, which was obtained, sword in hand, form king John; and afterwards, with some alterations, confirmed in parliament by king Henry the third, his son. Which charter contained very few new grants; but, as sir Edward Coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum [confirming charter], whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; ”

http://www.guardian.co.uk/law/2012/jan/25/david-cameron-reform-european-court

The prime minister will make clear that the court should focus on such violations, and will say Britain has a long and exemplary record on human rights. “Human rights is a cause that runs deep in the British heart and long in British history.

“In the 13th century, Magna Carta set down specific rights for citizens, including the right to freedom from unlawful detention. “In the 17th century, the petition of right gave new authority to parliament; and the Bill of Rights set limits on the power of the monarchy. By the 18th century it was said that this spirit of liberty is so deeply implanted in our constitution, and rooted in our very soil, that a slave the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes instantly a freeman.

It was that same spirit that led to the abolition of slavery, that drove the battle against tyranny in two world wars and that inspired Winston Churchill to promise that the end of the ‘world struggle’ would see the enthronement of human rights.

“These beliefs have animated the British people for centuries – and they animate us today.”

THEY ANIMATE ME BUT NOT THE MASTER OF THE ROLLS!!

This is not over as far as this judgement by the MR is concerned.

#21 Paul Randle-Jolliffe on 04.17.12 at 4:33 am

Sorry this bit was more Blackstone and not Cameron

“First, by the great charter of liberties, which was obtained, sword in hand, form king John; and afterwards, with some alterations, confirmed in parliament by king Henry the third, his son. Which charter contained very few new grants; but, as sir Edward Coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum [confirming charter], whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; ”

#22 Ben on 04.19.12 at 8:45 am

That rather suggests the Master of the Rolls got your arguments spot on.

#23 Paul Randle-Jolliffe on 04.23.12 at 7:27 pm

Not really and I don’t understand how you work that out he ignored whole sections

1. I did not say in any way whatsoever that the judgement did not apply to me, the MR invented that entirely! why else would I be appealing?

2. The MR did not read the evidence on the illegitimacy of the Lord Mayor but to elaborate a bit from CoLs own records, and there are more.

The LM is Elected by the Court of Aldermen following nomination by the Livery at Common Hall, from the list of Aldermen, who have served the Office of Sheriff.

Common Hall is the electoral body consisting solely of liverymen.

http://217.154.230.218/NR/rdonlyres/20F89B51-17E9-413B-84FC-D5587E17F96F/0/AU_CG_lordmayor.pdf

London Metropolitan Archives
CHARTERS
IDENTITY STATEMENT
Reference code(s): COL/CH
Held at: London Metropolitan Archive
Charters of the City of London with related papers, 1067-1980
Name of creator(s): Corporation of London

The City of London has no charter of incorporation, and rights and privileges were granted by the Crown to the citizens under numerous titles – to the barons of London, to the mayor and citizens, or simply to the citizens – which titles were recited and confirmed in a charter of 1608 as names of incorporation. (many later charters simply confirm and elaborate on ancient customs and liberties.)

Extract: charter granting the citizens the right to choose their mayor, 1215. (may 1215 in fact it is a short charter.)

ELECTED BY THE CITIZENS, AKA BARONS, AKA FREEMAN AND NOT JUST THE LIVERYMEN AND ALDERMAN!

Further I made more than to points of appeal, for instance he did not deal with any of this section.

GROUNDS 6.

1) The judge erred as he did not properly consider that the camp could have been given a fixed period with a review for a much reduced footprint to balance the rights of the protestors and of others.
2) The question the appeal raises is how the rules of trespass should be interpreted in public space. The principle set out the 1765 decision of Entick v Carrington that ‘our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave’ has characterized as ‘absolutist dogma’ by Professor Kevin Gray at Cambridge.
3) The City has alleged that it is entitled to possession to Areas 1 and 3. It has not produced ownership documents. Ownership is assumed by Judge Lindblom from the fact that s. 263 of the 1980 Highways Act ‘vests in the authority who are for the time being the highway authority for the highway’. If, as Justice Lindblom suggests, questions of highway management are irrelevant to the grant of an order for possession and are based solely on principles of property law, then the City need to demonstrate their ownership of the property. He states that: ‘The City would be entitled to an order for possession of Area 1 even if there were no unreasonable obstruction of the highway’. Yet this elision between ‘vests’ and ‘owns’ requires further investigation if it is to ground a right of exclusion that is rooted in the 1765 decision of Entick v Carrington.
4) Indeed, the land around St Paul’s Cathedral has long been used as public property and public space. Yet these terms – public property and public space – appear to carry no legal weight. They have been obscured in a system that treats local authority and other public institutional owners as property as simply equivalent to private owners. When Justice Lindblom states that the gardens are ‘public open space’ (para 30) he gives this no legal protection. Public space is treated as private property.
5) In his judgment, Justice Lindblom supports Mr Forsdick’s submission that ‘as a basic proposition, that there is no arguable right to occupy, control or take possession of highway land from the highway authority. The statutory framework in the 1980 Act is a carefully framed scheme under which control and possession is vested in the highway authority – here the City – to ensure the protection of highway rights. That statutory scheme, and the highway rights it protects, are wholly inconsistent with third parties occupying, controlling and taking possession of the highway. Far from there being any common law right to do that, the decision of the House of Lords in DPP v. Jones confirms that there is not’ (para 101).
6) Yet this mixes very different currents of law. An order for possession, under CPR Part 55 is based on principles of ownership draws on principles of property law. Stopping a highway obstruction sounds in public law. To draw on DPP v Jones as support for an order for possession is questionable. Here the House of Lords allowed an appeal against a criminal conviction against holding trespassary assemblies, contrary to section 14B(2) of the Act of the Public Order Act 1986.
7) The Highways Act 1980 does not refer to the concept of possession in this sense. It is concerned with maintaining the flow of the highway. And as the judgment makes clear, Occupy have consistently worked with the police and other authorities to facilitate this. We find no evidence of the obstruction that Mr. Wilkinson (the sole witness for this purpose in Justice Lindblom’s judgment) suggests.
8) Fundamentally, it is for the highest courts in the land to determine whether these public spaces should be treated as the private property of public or private corporations. What are the duties of public property owners? Are they distinguishable from private law property owners? These are crucial questions for the courts to consider.
9) In terms of obstruction, it is clear that obstructions are also caused by the decisions by the Church and the City to close parts of the Cathedral grounds (including the Cathedral gardens, Area 2, and encroaching onto the pavement for the renovation of the Festival Gardens). Justice Lindblom accepts these causes of obstruction noting that ‘Because Paternoster Square and the churchyard gardens have been closed the flows of pedestrians normally using them are, at least in part, funnelled into the part of the highway occupied by the camp’ (137). The congestion has been caused by the Occupy movement, the Church, the City and the private owners of Paternoster Square. The moral responsibility for any personal inconvenience is shared.
10) Articulating the ability of property owners to close their property, even if these are said to be ‘public spaces’ without redress raises the question of what the public obligations of property owners are if they own large swathes of our cities or iconic sites. As Antonia Layard, a Senior Lecturer at Cardiff Law School has argued, these decisions often draw on ‘unstated assumptions of the delineation of autonomy entailed in the conventional property ownership model. Yet there is no logical inevitability that the law of property and the law of space or place should coincide in this respect. While place and space may differ, they are not wholly separate; a demarcation between urban space and private places raises profound questions’.
11) The courts need to address the principles that underlie the ability of property owners to evict trespassers at will, even if they are not causing an obstruction. There are almost no local businesses surrounding St. Paul’s. The shops and restaurants are predominantly part of large commercial chains. Those that are “local” businesses have indeed benefited from the passing trade from the camp This commodification of city centres is facilitated by the unchallenged principles of private property ownership where historic urban cores become assets on balance sheets rather than diverse, vibrant public spaces. These are questions we urge the Court to address.

#24 Ben on 04.23.12 at 9:34 pm

Er, yes he did. He addressed them at length in the rest of his judgment. There is no requirement to respond to absolutely every single point you raise, especially if it’s not relevant.

#25 Ben on 04.29.12 at 9:22 am

The last two comments have been deleted. This is not a place for obtaining or giving legal advice.

#26 Scrapper Duncan on 05.28.12 at 9:43 pm

For what it is worth, Paul Randle-Jolliffe did make a complaint against me to the Bar Standards Board, which decided that it was not worthy of investigation and dismissed it without further reference to me. I’ve published the BSB’s rejection of Mr Randle-Jolliffe’s complaint here:

http://blog.scrapperduncan.com/2012/05/03/complaint-by-paul-randle-jolliffe-against-a-barrister-dismissed/

Mr Randle-Jolliffe has also threatened me with libel proceedings. He specifically asked me whether I would accept service by email. I agreed to this on the basis that he use an address I set up specifically for him. To date, no emails have been received by that address.

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