CASE OF APPLEBY AND OTHERS v. THE UNITED KINGDOM
No violation of Art. 10;No violation of Art. 11;No violation of Art. 13
Matti Pellonpää;Nicolas Bratza
10. The first, second and third applicants were born in 1952, 1966 and 1947 respectively and live in Washington (Tyne and Wear), where the fourth applicant, an environmental group set up by the applicants, is also based. 11. The new town centre of Washington is known as “the Galleries” and is located within an area now owned by Postel Properties Limited (“Postel”), a private company. This town centre was originally built by the Washington Development Corporation (“the Corporation”), a body set up by the government of the United Kingdom pursuant to an Act of Parliament to build the “new” centre. The centre was sold to Postel on 30 December 1987. 12. The Galleries, as owned by Postel at the relevant time, comprised a shopping mall (with two hypermarkets and major shops), the surrounding car parks with spaces for approximately 3,000 cars and walkways. Public services were also available in the vicinity. However, the freehold of the careers’ office and the public library was owned by the Council, the social services office and health centre were leased to the Council by the Secretary of State and the freehold of the police station was held on behalf of Northumbria Police Authority. There was a post office within the Galleries and also the offices of the housing department, leased to the Council by Postel. 13. Around September 1997 the Council gave outline planning permission to the City of Sunderland College to build on a part of Princess Anne Park in Washington known as the Arena. The Arena is the only playing field in the vicinity of Washington town centre which is available for use by the local community. The first to third applicants, together with other concerned residents, formed the fourth applicant to campaign against the college’s proposal and to persuade the Council not to grant the college permission to build on the field. 14. On or around 14 March 1998 the first applicant, together with her husband and son, set up two stands at the entrance of the shopping mall in the Galleries, displaying posters alerting the public to the likely loss of the open space and seeking signatures to present to the Council on behalf of Washington First Forum. Security guards employed by Postel would not let the first applicant or her assistants continue to collect signatures on any land or premises owned by Postel. The applicants had to remove their stands and stop collecting signatures. 15. The manager of one of the hypermarkets gave the applicants permission to set up stands within that store in March 1998, allowing them to transmit their message and to collect signatures, albeit from a reduced number of people. However, the same permission was not granted in April 1998 when the applicants wanted to collect signatures for a further petition. 16. On 10 April 1998 the third applicant, as acting chair of Washington First Forum, wrote to the manager of the Galleries asking for permission to set up a stand and to canvass views from the public either inside the mall itself or in the adjacent car parks and offered to pay to be allowed to do so. In his reply of 14 April 1998, the manager of the Galleries refused access. His letter read as follows: “... the Galleries is unique in as much as although it is the Town Centre, it is also privately owned. The owner’s stance on all political and religious issues, is one of strict neutrality and I am charged with applying this philosophy. I am therefore obliged to refuse permission for you to carry out a petition within the Galleries or the adjacent car parks.” 17. On 19 April 1998 the third applicant wrote again to the manager of the Galleries, asking him to reconsider his decision. His letter remained unanswered. 18. The fourth applicant continued to try and reach the public by setting up stands by the roadside on public footpaths and going to the old town centre at Concord which, however, is visited by a much smaller number of Washington residents. 19. The deadline for letters of representation to the Council regarding the building works was 1 May 1998. On 30 April 1998 the applicants submitted the 3,200 letters of representation they had obtained. 20. The fourth applicant has produced a list of associations and others which were given permission to carry out collections, set up stands and displays within the Galleries. These included: the Salvation Army (collection before Christmas), local school choirs (carol-singing and collection before Christmas), the Stop Smoking Campaign (advertising display and handing out of nicotine patches), the Blood Transfusion Service (blood collection), the Royal British Legion (collection for Armistice Day), various photographers (advertising and taking of photographs) and British Gas (staffed advertising display). 21. From 31 January to 6 March 2001, Sunderland Council ran a consultation campaign under the banner “Your Council, Your Choice”, informing the local residents of three leadership choices for the future of the Council and were allowed to use the Galleries for this purpose. This was a statutory consultation exercise carried out under section 25 of the Local Government Act 2000, which required local authorities to draw up proposals for the operation of “executive arrangements” and consult local electors before sending them to the Secretary of State. Some 8,500 people were reported as having responded to the survey. 22. At common law, a private property owner may, in certain circumstances, be presumed to have extended an implied invitation to members of the public to come onto his land for lawful purposes. This is the case with commercial premises, such as shops, theatres and restaurants, as well as private premises (for example, there is a presumption that a house owner authorises people to come up the path to his front door to deliver letters or newspapers or for political canvassing). Any implied invitation may be revoked at will. A private person’s ability to eject people from his land is generally unfettered and he does not have to justify his conduct or comply with any test of reasonableness. 23. In CIN Properties Ltd v. Rawlins ([1995] 2 EGLR (Estates Gazette Law Reports) 130), where the applicants (young men) were barred from a shopping centre in Wellingborough as the private company owner CIN considered that their behaviour was a nuisance, the Court of Appeal held that CIN had the right to determine any licence which the applicants might have had to enter the centre. In giving judgment, Lord Phillips found that the local authority had not entered into any walkways agreement with the company within the meaning of section 18(1) of the Highways Act 1971 (later replaced by section 35 of the Highways Act 1980) which would have dedicated the walkways or footpaths as public rights of way and which would have given the local council the power to issue by-laws regulating the use of those rights of way. Nor was there any basis for finding an equitable licence. He also considered case-law from North America concerning the applicants’ arguments for the finding of some kind of public right: “Of more obvious relevance are two North American cases. In Uston v. Resorts International Inc. (1982) N.J. 445A.2d 370, the Supreme Court of New Jersey laid down as a general proposition that when property owners open their premises – in that case a gaming casino – to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably but, on the contrary, have a duty not to act in an arbitrary or discriminatory manner towards persons who come on their premises. However, that decision was based upon a previous decision of the same court in State v. Schmid (1980) N.J. 423A 2d 615, which clearly turned upon the constitutional freedoms of the First Amendment. The general proposition cited above has no application in English law. The case of Harrison v. Carswell (1975) 62 D.L.R. 3d 68 in the Supreme Court of Canada concerned the right of an employee of a tenant in a shopping centre to picket her employer in the centre, against the wishes of the owner of the centre. The majority of the Supreme Court held that she had no such right and that the owner of the centre had sufficient control or possession of the common areas to enable it to invoke the remedy of trespass. However, Laskin C.J.C., in a strong dissenting judgment held that since a shopping centre was freely accessible to the public, the public did not enter under a revocable licence subject only to the owner’s whim. He said that the case involved a search for an appropriate legal framework for new social facts and – ’If it was necessary to categorise the legal situation which, in my view, arises upon the opening of a shopping centre, with public areas of the kind I have mentioned (at least where the opening is not accompanied by an announced limitation on the classes of public entrants), I would say that the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity. Such a view reconciles both the interests of the shopping centre owner and of members of the public, doing violence to neither and recognising the mutual or reciprocal commercial interests of shopping centre owner, business tenants and members of the public upon which the shopping centre is based.’ I have already said that this was a dissenting judgment. Nevertheless counsel [for the applicants] submitted that we should apply it in the present case. I accept that courts may have to be ready to adapt the law to new social facts where necessary. However there is no such necessity where Parliament has already made adequate provision for the new social facts in question as it has here by section 18 of the Highways Act 1971 and section 35 of the Highways Act 1980. (Harrison v. Carswell makes no mention of any similar legislation in Canada.) Where Parliament has legislated and the Council, as representing the public, chooses not to invoke the machinery which the statute provides, it is not for the courts to intervene. I would allow this appeal ... on the basis that CIN had the right, subject only to the issue under section 20 of the Race Relations Act 1976, to determine any licence the [applicants] may have had to enter the Centre.” 24. The parties have referred to case-law from the United States and Canada. 25. The First Amendment to the Federal Constitution protects freedom of speech and peaceful assembly. 26. The United States Supreme Court has accepted a general right of access to certain types of public places, such as streets and parks, known as “public fora” for the exercise of free speech (Hague v. Committee for Industrial Organisation, 307 U.S. (United States: Supreme Court Reports) 496 (1939)). In Marsh v. Alabama (326 U.S. 501, 66 S.Ct. (Supreme Court Reporter) 276, 90 L.Ed. (United States Supreme Court Reports, Lawyers’ Edition) 265 (1946)), the Supreme Court also held that a privately owned corporate town (a company town) having all the characteristics of other municipalities was subject to the First Amendment rights of free speech and peaceable assembly. It has found that the First Amendment does not require access to privately owned properties, such as shopping centres, on the basis that there has to be “State action” (a degree of State involvement) for the amendment to apply (see, for example, Hudgens v. NLRB, 424 U.S. 507 (1976)). 27. The United States Supreme Court has taken the position that the First Amendment does not prevent a private shopping-centre owner from prohibiting distribution on its premises of leaflets unrelated to its own operations (Lloyd Corp. v. Tanner, 47 U.S. 551, 92 S.Ct. 2219, 33 L.Ed. 2d 131 (1972)). This did not however prevent State constitutional provisions from adopting more expansive liberties than the Federal Constitution to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping centre to which the public was invited and this did not violate the property rights of the shopping-centre owner so long as any restriction did not amount to taking without compensation or contravene any other federal constitutional provisions (Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 64 L.Ed. 2d 741, 100 S.Ct. 2035 (1980)). 28. Some State courts have found that a right of access to shopping centres could be derived from provisions in their State constitutions according to which individuals could initiate legislation by gathering a certain number of signatures in a petition or individuals could stand for office by gathering a certain number of signatures (see, for example, Batchelder v. Allied Stores Int’l, N.E. (West’s North Eastern Reporter) 2d 590 (Massachussetts, 1983); Lloyd Corp. v. Whiffen, 849 P. (West’s Pacific Reporter) 2d 446, 453-54 (Oregon, 1993); Southcenter Joint Venture v. National Democratic Policy Comm., 780 P. 2d 1282 (Washington, 1989)). Some cases found State obligations arising due to State involvement, for example, Bock v. Westminster Mall Co., 819 P. 2d 55 (Colorado, 1991) (the shopping centre was a State actor because of financial participation of public authorities in its development and the active presence of government agencies in the common areas), and Jamestown v. Beneda, 477 N.W. (West’s North Western Reporter) 2d 830 (North Dakota, 1991) (where the shopping centre was owned by a public body, although leased to a private developer). 29. Other cases cited as indicating a right to reasonable access to property under State private law were State v. Shack, 277 A. (West’s Atlantic Reporter) 2d 369 (New Jersey, 1971), where the court ruled that under New Jersey property law ownership of real property did not include the right to bar access to governmental services available to migrant workers, in this case a publicly funded non-profit lawyer attempting to advise migrant workers; Uston v. Resorts International, 445 A. 2d 370 (New Jersey, 1982), a New Jersey case concerning casinos where the court held that when property owners open their premises to the general public in pursuit of their own property interests they have no right to exclude people unreasonably (although it was acknowledged that the private law of most States did not require a right of reasonable access to privately owned property, p. 374); and Streetwatch v. National Railroad Passenger Corp., 875 F. Supp. (West’s Federal Supplement) 1055 (Southern District of New York, 1995) concerning the ejection of homeless people from a railway station. 30. States in which courts ruled that free speech provisions in their constitutions did not apply to privately owned shopping centres included Arizona (Fiesta Mall Venture v. Mecham Recall Comm., 767 P. 2d 719 (Court of Appeals, 1989)); Connecticut (Cologne v. Westfarms Assocs, 469 A. 2d 1201 (1984)); Georgia (Citizens for Ethical Gov’t v. Gwinnet Place Assoc., 392 S.E. (West’s South Eastern Reporter) 2d 8 (1990)); Michigan (Woodland v. Michigan Citizens Lobby, 378 N.W. 2d 337 (1985)); Minnesota (State of Minnesota v. Wicklund et al., 7 April 1998 (Court of Appeals)); North Carolina (State of North Carolina v. Felmet, 273 S.E. 2d 708 (1981)); Ohio (Eastwood Mall v. Slanco, 626 N.E. 2d 59 (1994)); Pennsylvania (Western Pa Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 515 A. 2d 1331 (1986)); South Carolina (Charleston Joint Venture v. McPherson, 417 S.E. 2d 544 (1992)); Washington (Southcenter Joint Venture v. National Democratic Policy Comm., cited above; and Wisconsin (Jacobs v. Major, 407 N.W. 2d 832 (1987)). 31. Prior to the entry into force of the Canadian Charter of Rights and Freedoms, the Canadian Supreme Court had taken the view that the owner of a shopping centre could exclude protesters (Harrison v. Carswell, 62 D.L.R. (Dominion Law Reports) 3d 68 (1975)). After the Charter entered into force, a lower court held that the right to free speech applied in privately owned shopping centres (R. v. Layton, 38 C.C.C. (Canadian Criminal Cases) 3d 550 (1986) (Provincial Court, Judicial District of York, Ontario)). However, an individual judge of the Canadian Supreme Court has since expressed the opposite view, stating obiter that the Charter does not confer a right to use private property as a forum of expression (McLachlin J, Committee for Cth of Can. v. Canada [1991] 1 SCR (Canada Supreme Court Reports) 139, 228).