Taking a stroll down Downing Street, oh wait...

[Banjaxed]

In the wake of the UK's political "plebgate" debacle, I found this article of interest (though highly likely to be boring and irrelevant to most) in terms of quirky legal issues.

In September 2012, Conservative Party Chief Whip Andrew Mitchell MP, who was using a bicycle, was allegedly threatened with arrest after he allegedly swore at police officers who asked him to leave Downing Street through the pedestrian gate rather than the main gate.

The official police log of the incident states that Mitchell said "Best you learn your fucking place. You don't run this fucking government ... You're fucking plebs." He is also alleged to have told the constable, "I'll have your fucking job for this."

What powers do the Downing Street police actually have?

Everyone has the common law right to use the public highway.

According to the law books, there is a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass the public highway without any let and hindrance.

And even now Downing Street remains part of the public highway. In principle, anyone – even the Conservative Chief Whip – has the legal right to pass up and down, and enter and exit, Downing Street without any obstruction or interrogation. Indeed, to obstruct the public highway is an offence under section 137 of the Highways Act 1980. And an attempt to physically stop a pedestrian without good reason would also be a trespass to that person, for which he or she can sue.

But in practice, of course, no person can freely use Downing Street. Iron gates have been in place since 1989 (and barriers were in place before then) and police officers are always at hand with firearms.

How is this legally possible? And what legal power, if any, was relied upon by the police officer in refusing to open the iron gates for Andrew Mitchell on his bicycle so that he could exit Downing Street?

The legal position is complicated.

First of all, Downing Street itself is not a designated area for the purposes of anti-terrorist legislation (and you see the relevant plan which shows that neither the public highway or the gates themselves are designated for the purpose). So there must be some other legal basis for permitting what would otherwise be an obstruction to the public highway.

Before 2005, the police at the gates of Downing Street appeared to have relied entirely on common law powers in respect of potential breaches of the peace to stop people exercising their right to enter Downing Street. Indeed in 1990, a minister said:

"Access to Downing street is controlled under police common law powers which allow them to take reasonable steps to preserve the peace and prevent threats to it."

This flimsy position (which was undoubtedly legally misconceived and unsustainable as a blanket position) was then formalised in 2008. According to attachments to this obscure web page of Westminster City Council, an Order was made to:

(a) prohibit vehicles and pedestrians from entering or proceeding in Downing Street at all times, except those authorised by the police;

(b) prohibit pedestrians from entering or proceeding in that area of the footway forming the boundary between Downing Street and Whitehall, except those authorised by the police; and

(c) allow the police, at their discretion, to prohibit pedestrians from entering or proceeding in certain parts of Whitehall adjacent to the Cabinet Office, the boundary with Downing Street and the Foreign & Commonwealth Office.

(You will notice that these powers refer to stopping people “entering or proceeding” on Downing Street, not exiting it as the hapless MP for Sutton Coldfield was then seeking to do, though this may be a moot point.)


Continued at The New Statesman website