An hour-long static protest – dubbed ‘Reclaim These Streets’ – on Clapham Common has been planned for tomorrow night, in the area where the 33-year-old marketing executive was last seen alive.
But the event was plunged into doubt on Thursday night when Met Police officers said the mass gathering would fall foul of coronavirus restrictions and should not take place.
The organisers, Jessica Leigh, Anna Birley, Henna Shah, and Jamie Klinger, went to the High Court on Friday, asking a judge to declare that the police force had failed to consider the rights to freedom or expression and protest when opposing the vigil.
Mr Justice Holgate refused to make the declaration but said he hopes the emergency court hearing had helped to “clarify” the laws around policing of protests during the pandemic.
He said the vigil organisers and their solicitors may have further talks with the police about the legality of the vigil, but added: “That’s not a matter on which the court should comment”.
The judge was also at pains to point out he had only been asked to consider a declaration on the law, rather than grant an injunction against the police or rule on the legality of the vigil.
In the aftermath of the ruling vigil organisers said they were in discussions with the Met Police about how it could go ahead safely. However, a statement from the force appeared to say the event cannot go ahead and people should stay at home.
Commander Catherine Roper, the Met’s lead for community engagement, said: “Today’s ruling in the High Court has confirmed that the Metropolitan Police may conclude that attendance at a large gathering could be unlawful. In light of this ruling, our message to those who were looking to attend vigils in London this weekend, including at Clapham Common, is stay at home or find a lawful and safer way to express your views.”
It comes as a serving Met Police officer has been charged with the murder and kidnap of Ms Everard , whose remains were discovered in woodland in Kent after her disappearance on March 3.
The vigil was organised this week, winning the backing of Lambeth Council but coming across opposition from the Met Police who insisted it would be unlawfully and claiming “our hands are tied” due to coronavirus regulations.
Organisers say they were warned they could face £10,000 penalties for going ahead with the event, as well as the threat of criminal prosecution.
Tom Hickman QC, representing the vigil leaders, argued police officers did not appear to have considered European Convention on Human Rights articles 10 and 11 when coming to their decision.
“The reason we are here is the Metropolitan Police have said to my client this gathering can’t go ahead because gatherings are prohibited under the all-tiers regulations”, he said.
“They say their hands are tied, any gatherings of people are prohibited by the regulations and it’s not up to them to make an assessment whether it would be reasonable, or necessary, and a legitimate exercise of individual rights under article 10 and 11 of the ECHR.
“We say as matter of law that position is wrong. We ask the court in this hearing to grant an interim declaration of what the correct legal position is, to require the police to think again about whether this demonstration is in fact a legitimate exercise of convention rights of the people participating in it.
“My understanding is the position of the Metropolitan Police Service is that it’s not a matter for them to conduct an assessment to ask themselves whether preventing this gathering would prevent people from exercising their protected convention rights.”
Describing the planned protest, Mr Hickman said: “One of the characteristics is it would be socially distanced. It is risk-assessed, there’s been a risk assessment, it’s proposed to be organised in a responsible manner and co-ordinated with the council and the police.
“It would be marshalled, the protest or vigil itself is going to be static. It will be masked and there will be masks available for anyone who doesn’t have them. Arrangements will be made to ensure it is being conducted in a Covid secure manner. And critical to all of this is it’s going to be outside.”
The vigil organisers wanted a statement from the court declaring that the Met Police has a “policy prohibiting all protests irrespective of the specific circumstances”, and saying this “erroneous”.
But George Thomas, lawyer for the Met, insisted that policy did not exist and argued the officers did not need to think again as they had already considered human rights protections when saying the vigil could not take place.
“The worthiness of the cause is not a matter for the court”, he said, “but it’s fair that the Metropolitan Police puts on record it has every sympathy with the underlying cause and those wishing to have a vigil tomorrow.
“But in the context of the coronavirus crisis the country is currently in, it is not appropriate for the police to allow such a large scale gathering to take place.”
He argued the vigil was “very clearly not an event that the regulations, on the face of it, permit”, adding: “The police say we are not in a position to allow a gathering significantly in excess of two people to take place, and we will need to enforce the restrictions.”
In a tweet shortly after the ruling, Pippa Woodrow – one of the barristers representing the claimants – said: “Ball is now in the Met’s court to confirm how the events can go ahead in a way that is proportionate and safe.”
Another barrister for the claimants, Adam Wagner, tweeted: “At 3pm today, every police force in England was saying protest could never be lawful under Covid regulations.
“The position now, because of the ruling, is protest can in principle be lawful and it is up to the police to assess the proportionality.
In a tweet, Reclaim These Streets said: “We are really pleased with the outcome from this judgment. The Met conceded we are right on the law and protest is not banned per se.
“We are now in discussions with the Met to confirm how the event can proceed in a way that is proportionate and safe – our number one priority.”
In a statement released after the hearing the group said: “”We were always aware of the challenges of organising a Covid-secure vigil, but safety has been the top priority from the beginning.
“We proactively reached out to the relevant authorities to ensure that the event could take place safely and legally and we are delighted that Mr Justice Holgate has recognised this and found this to be true.
“This is vindication for all those women who have been devastated by the death of Sarah Everard, who simply want to come together to share their grief and solidarity.
“The Metropolitan Police did not engage with us and said that any kind of protest would be illegal.
“We are pleased that the judge spelled out in a detailed ruling that the law does not prevent the police from permitting and facilitating protest in all circumstances.
“The law is now clear that it is up to the police to conduct a proportionality assessment (on) the circumstances of each case.
“The judge has made clear that the police must make their own decision about whether the protest can go ahead and that must include a proportionality balancing exercise.”
The statement added: “We are working with (Lambeth) Council, who remain wholly supportive.
“We call on the police to act within the law now and confirm that they will work with us to ensure that the protest can go ahead within the context of the overwhelming public response to Sarah Everard’s death.”
Following the High Court decision, the Metropolitan Police said large gatherings could “risk undoing all the hard work to reduce the (Covid) infection rate” and urged people to stay at home rather than attend a vigil.
Commander Catherine Roper, the Met’s lead for community engagement, said: “ Like everyone across London, I have been deeply saddened and shocked by the death ofSarah Everard. My heart goes out to her family, friends and everyone who hadthe joy to know her.
“No woman in London should be unsafe on London’s streets and I understand the strength offeeling that has grown following Sarah’s disappearance. As a woman and a policeofficer, I want nothing more than for women to feel safe and protected by thepolice.
“But weneed to be clear. Our city is still in a battle with Covid-19 with peoplecontinuing to be infected and sadly losing their lives. Only a few weeks agoour NHS was at breaking point, we cannot risk undoing all the hard work toreduce the infection rate.
“Today’sruling in the High Court has confirmed that the Metropolitan Police mayconclude that attendance at a large gathering could be unlawful. In light ofthis ruling, our message to those who were looking to attend vigils in Londonthis weekend, including at Clapham Common, is stay at home or find a lawful andsafer way to express your views.
“Iunderstand this ruling will be a disappointment to those hoping to expresstheir strength of feeling, but I ask women and allies across London to find a safe alternative way to express their views.
“Throughout the pandemic, we have consistently enforced the Covid regulations and have madedifficult decisions during a range of gatherings on issues about which peoplehave felt very strongly. Our hope has always been that people stick to theCovid rules, taking enforcement action is always a last resort.
“We continue to speak with the organisers of the vigil in Clapham and other gatherings in across London in light of this judgement and will explain the rules and urge people to stay at home.
“We will have anumber of officers on duty in communities throughout London during the course of this weekend.”