John Affleck v The Royal Borough of Windsor and Maidenhead

Neutral Citation Number: [2026] EWHC 1137 (Admin) Case No: AC-2025-LON-002219 IN THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/05/2026 Before: MR JUSTICE MACDONALD – – – – – – – – – – – – – – – – – – – – – Between : MR JOHN AFFLECK Claimant – and – THE ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD Defendant – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Mr James Gray (instructed by Direct Access) for the Claimant Mr Jeremy Ogilvie-Harris (instructed by Legal Services) for the Defendant Hearing dates: 7 May 2026 – – – – – – – – – – – – – – – – – – – – – Approved Judgment This judgment was handed down remotely at 10.30am on 15 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ……………………….. MR JUSTICE MACDONALD Mr Justice MacDonald: INTRODUCTION

1. The Claimant seeks permission to apply for judicial review of the decision of the Defendant dated 21 July 2023 whereby the Defendant determined that the Claimant was not permitted to ask an oral supplementary question at a Council meeting on 25 July 2023. The Claimant contends that this decision breached his right to freedom of expression under Art 10 of the European Convention on Human Rights and Fundamental Freedoms (hereafter “the ECHR”). The Defendant resists the application on the basis that the claim was brought out of time and on the basis that, in any event, the claim is not arguable.

2. In addition to the bundle prepared by the Defendant for the renewal hearing, the court has had the benefit of Skeleton Arguments from Mr James Gray of counsel, on behalf of the Claimant, and Mr Jeremy Ogilvie-Harris of counsel, on behalf of the Defendant. They each supplemented their written arguments by way of oral submissions. BACKGROUND

3. The Claimant was, sadly, subjected to sexual abuse as a child. He asserts that one of his abusers was a man called Denham Gilbart-Smith, who was employed as a warden at Greenfields children’s home, in which the Claimant was accommodated. The home was owned by Berkshire County Council, the predecessor local authority to the Defendant. Central to understanding the context in which the Claimant’s claim for judicial review arises is a settlement agreement signed between Berkshire County Council and Denham Gilbart-Smith following civil claims in negligence being brought against Berkshire County Council as a result of the historic sex abuse at Greenfields during the late 1960s and early 1970s, including the claim of the Claimant. Denham Gilbart-Smith was joined as a Part 20 Defendant to the proceedings.

4. When the claims were settled, including that of the Claimant, Denham Gilbart-Smith agreed to pay damages in full and final settlement of the claims and any future claims. The settlement was embodied in a settlement agreement. That settlement agreement contained a confidentiality clause stating that “the terms of the settlement” (as distinct from the facts giving rise to the settlement) must not be disclosed without the consent of the parties or the permission of the court.

5. The Claimant holds the firm belief that the settlement agreement “gagged” the prosecution witnesses at Denham Gilbart-Smith’s criminal trial for rape in 2010, resulting in his acquittal of charges of rape, gross indecency and indecent assault. He further believes that this is evidence of a criminal conspiracy between Berkshire County Council and Denham Gilbart-Smith to protect Denham Gilbart-Smith’s identity. Correspondence in the bundle tends to refute that view. It shows that the CPS made an application for disclosure of all documentation from the civil claims during the criminal proceedings against Denham Gilbart-Smith, and that the Crown Court Judge determined what of that documentation was relevant and would be disclosed during the criminal trial. Documentation made the subject of the disclosure order made by the Crown Court in the criminal proceedings was disclosed by the Defendant into those proceedings.

6. At the conclusion of the criminal trial in 2010, the Claimant poured petrol over Denham Gilbart-Smith in the courtroom and brandished a lighter. This resulted in the Claimant being convicted of contempt, for which he received a twelve-month custodial sentence.

7. The Defendant secured a copy of the settlement agreement on 7 March 2022 from the solicitors for the former insurers for Berkshire County Council. The solicitors for the former insurers assured the Defendant that the confidentiality clause did not prevent disclosure of any information during the criminal trial of Denham Gilbart-Smith. On 11 May 2022, the Chief Executive of the Defendant wrote to the Claimant offering him the opportunity to inspect the settlement agreement between Denham Gilbart-Smith and Berkshire County Council, notwithstanding that this potentially placed the Defendant in breach of the terms of that agreement.

8. On 24 January 2023, the Defendant’s Monitoring Officer, Emma Duncan, and the Defendant’s Head of Law and Governance, Elaine Fiona Browne, held a meeting with the Claimant to allow him to inspect the agreement signed between Berkshire County Council and Denham Gilbart-Smith. As I make reference to below, the Defendant contends that whilst the meeting commenced cordially, after a short period of time the Claimant became agitated and aggressive.

9. Article C9 of Part 2 of the Council’s Constitution dated 24 May 2023 provides for members of public to ask questions of the Leader of the Council or Cabinet Members at ordinary meetings of the Council. By Art C9.4. of the Constitution, a member of the public is required first to submit the question in writing or by email to the Head of Governance no later than midday, seven clear working days before the day of the meeting. Pursuant to Art C9.8. of the Constitution, the Member who is to provide the response is required to do so in writing to be published in the agenda. By Art C9.9. the member of the public who has asked the question is entitled to submit a supplementary question without notice to the Member during the Council meeting.

10. The right of members of the public to participate in ordinary meetings of the Council is subject to Art 3.5 of Part 1B, which provides that members of the public must not be “be violent, abusive or threatening to Councillors or Officers”.

11. On 14 July 2023, the Claimant submitted a written question to the Council for the Council meeting on 25 July 2023. The Claimant’s written question was as follows: “For sixteen years the Conservative Council have supressed details of the 24/11/2006 Greenfield NDA. Will the new Lib Dem leader of the council agree to commission a review, into how contracts came to be signed that legal (sic) protect an individual the council have compensated over a dozen children as young as nine for being raped by?”

12. On 14 July 2023 the Defendant agreed to respond to the Claimant's question during a full Council meeting scheduled for 25 July 2023. The question was published on the Council's website and included in the public document pack.

13. On 21 July 2023 the Defendant decided that the Claimant was not permitted to ask an oral supplementary question at a Council meeting on 25 July 2023. By an email dated 21 July 2023, the Claimant was told that he was not permitted to ask an oral supplementary question at the Council meeting. That email stated as follows: “The Authority has a duty of care to protect its staff from harm. Because of your conduct, the Authority deems it a risk that if you were to be allowed onto council premises, that you may try to intimidate or harm members of staff. For that reason, I have advised this Authority to prevent you from both coming into Maidenhead Town Hall and other council premises where formal meetings are held and from participating in Full Council, Cabinet and other Committee meetings going forward.”

14. In its amended defence, and the witness statement of Elaine Fiona Browne, the Defendant relies on a number of incidents it contends made it necessary for the Defendant to prohibit the Claimant from asking an oral question at the meeting on 25 July 2023 and from attending the Town Hall and other premises of the Defendant where formal meetings were held “in order to protect its staff and councillors from harm.” Those incidents are particularised as follows: i) During a meeting in January 2022 the Claimant submitted two questions for an Extraordinary Council meeting on 8 February 2022. At that meeting the Claimant became agitated and was asked to leave by Councillor John Bowden and Monitoring Officer, Emma Duncan. The Claimant recorded the meeting and placed an annotated video on YouTube, which was offensive. ii) The Claimant attended a council meeting on 22 February 2022 to receive the answers to written questions he had received in advance and ask a supplementary question. During the meeting, the Claimant became agitated and aggressive. iii) On 3 March 2022 the Claimant sent emails to a number of councillors and members of staff that caused them to feel upset, distressed and threatened by the allegations contained in the emails. His email to counsellor Carroll stated as follows: “If you continue to adopt this amoral corrupt stance of protecting this paedophile, I guarantee it will have severe legal ramifications for you both as a public officer and private individual… To your detriment, your insidious replies are now a matter of public record which I will use as evidence should I need to issue criminal proceedings against you for corruption in a public office, which incidentally carries a maximum sentence of life in prison…If you persist in these Machiavellian manoeuvres, I will show you no mercy whatsoever and you will find the full weight of the mainstream media, social media and the law creating a sever (sic) negative impact not only on your political career but on all of the good results that RBWM and their employees have worked hard to achieve over many years for the greater good of the community. I sincerely hope we can work together to achieve my main aim of bringing this corrupt NDA into the public domain and then moving on ….” His separate email to the Chief Executive and councillors read as follows: “I hereby in the event of you failing to assist me Councillor Bowden, accuse you of having the moral compass of a paedophile and charge you with corruption in a public office. Councillor Bowden take heed, if you fail to take my claims seriously or you pay me lip service, if the police do not prosecute you, I will take out a private criminal prosecution against you and if found guilty your maximum sentence is life in prison. Write me off as a loony or a crank at your peril, you have absolutely no idea who my main backer is and what financial resources are at my disposal, but you will find out to your regret, if you don’t stand up and be counted as an honest, upright, moral public officer.” In a further email to the Leader of the Council, Councillor Johnson, sent on 3 March 2023, the Claimant stated as follows: “Be warned, you are not dealing with a dysfunctional kid from the local paedo home that will be seen but not heard. I am very well connected and have an extremely well-known and very influential backer with unlimited financial resources available to assist me in achieving my goal.” and “If you very unwisely continue to ignore my valid concerns and fail to investigate my claims in the same way an external investigator would conduct an enquiry, you will leave me with no other option than to pursue you legally, when you will find yourself in a fight you willnot win, according to constitutional and legal legislation, which you are bound to abide by in public office…If you fail to act on the content of this email with honesty and integrity, I promise the day you receive this email, will be a day in your life you will never forget and will regret for eternity.” iv) On 26 April 2022, the Claimant attended a full Council meeting and became aggressive, shouted at the Chief Executive and walked behind councillors to place booklets in front of them, which they found intimidating. v) On 24 January 2023 and as I have described, having undertaken significant work to locate the settlement agreement at the centre of the Claimant’s concerns, having tried by failed to locate Denham Gilbart-Smith to seek his consent and having invited the Claimant to view the settlement document, the Defendant’s Monitoring Officer, Emma Duncan, and the Defendant’s Head of Law and Governance, Elaine Fiona Browne, held a meeting with the Claimant to allow him to inspect the settlement agreement. Ms Duncan and Ms Browne tried to explain the rationale of the agreement to the Claimant and to explain that the agreement related to the civil claim only and it did not result in information being withheld from the subsequent criminal trial of Denham Gilbart-Smith. Whilst the meeting commenced cordially, after a short period of time the Claimant became agitated and aggressive. vi) On 14 April 2023, the Defendant became aware that the Claimant had recorded the meeting of 24 January 2023 and posted an edited version of the meeting on YouTube. The edited version implied that Emma Duncan and Elaine Fiona Browne were lying, corrupt and part of a “Paedophile Protection Programme.” On the Claimant’s website he stated: “I visited RBWM HQ where I filmed RBWM’s two most senior lawyers tell lie after lie after lie. One of the lawyers, I suspect not wanting to be identified with her criminality, even gave a false name.” vii) The Defendant requested that YouTube remove the video from its platform. Whilst on 18 April 2023 the Defendant received confirmation that YouTube had blocked the Claimant’s video as being in violation of its rules, on 12 May 2023 the Defendant became aware that the Claimant had uploaded the video to an alternative platform called Rumble. viii) On 20 April 2023, the Claimant attended a Place and Overview Scrutiny Meeting and handed out leaflets that were defamatory, alleging that Councillor Johnson “advocates transparency, whilst fighting to keep the RBWM Paedophile Protection Programme a closely guarded secret” and inviting Councillor Johnson to sue him for defamation if that allegation was untrue.

15. The Defendant further relies on what it contends are extracts from the Claimant’s website that demonstrate the Claimant has a history of violence and uses violence to achieve his objectives. In particular, the Defendant relies on the incident in which the Claimant poured petrol over Denham Gilbart-Smith and brandished a lighter in the Crown Court at the end of the criminal trial.

16. Following the email of 21 July 2023 informing the Claimant that he was not permitted to ask an oral supplementary question at a Council meeting, the Defendant republished the agenda for the meeting, which excluded the Claimant’s written question and in its place included the words “Following legal advice this has been removed from the agenda.” The Defendant further informed the Claimant that he would be permitted to ask a written supplementary question in response to the written answer in the agenda. The Defendant further points to the fact that it had taken steps, by way of the meeting with the Claimant on 24 January 2023, to provide the Claimant with information relating to the settlement agreement. With respect to the written questions, the email of 21 July 2023 stated as follows: “I will provide a written response to the question you have submitted to Full Council question and will also provide a written response to the supplementary question you are entitled to ask, which must also be in writing.”

17. The Claimant contends that the version of document dated 21 July 2023 containing the paragraph quoted above concerning written answers was not sent to him. He relies on a statement from Andrew Francis Hill, who describes himself in his statement as “a senior journalist at a national broadcaster”. Mr Hill claims to have been sent by the Claimant a version of the document dated 21 July 2023 that did not contain the paragraph quoted above. Whilst Mr Hill states that a copy of that document is exhibited to his statement, it is not, although a version of the document dated 21 July 2023 without the relevant paragraph is exhibited to the Claimant’s Skeleton Argument.

18. The Claimant further contends that, in any event, written questions and replies were not provided for in the Defendant’s Constitution, did not arise as the Claimant’s original written question, on which the supplementary oral question was dependent, was withdrawn from consideration and that a written mechanism was inadequate in circumstances where participation in a council meeting is not merely a request for information, but an exercise of the right to impart information and engage in public democratic discourse within a structured meeting. The Claimant further contends that, having regard to the principle of proportionality, the Defendant could have agreed to allow the Claimant to participate in the council meeting by way of a video link.

19. With respect to the latter point, the statement of Mr Hill contends that he advised the Claimant that remote attendance was available and suggested that he make such a request. Mr Hill further contends that the request was not facilitated by the Defendant. There is an email exhibited to the Claimant’s Skeleton Argument dated 25 July 2023 and timed at 11.56hrs in which the Claimant requests a Zoom link “in case I am unable to attend tonight’s meeting”. On 25 July 2023, the Claimant tried to attend the Council’s premises but was not permitted by the Defendant’s wardens and facility officers to enter or to ask an oral supplementary question.

20. On 11 August 2023, the Council indicated that it was willing to review its decision after three months (i.e. after 11 November 2023) subject to the Claimant providing various “assurances” as to his conduct. It is not clear on the face of the papers, however, what the current position is as regards the Claimant’s attendance at meetings of the council.

21. With respect to the procedural history, on 3 January 2024, the Claimant filed a claim form at the County Court at Winchester. The Claimant’s Particulars of Claim were set out in the Claim Form. The Claim Form alleged that that the Council’s refusal to permit the Claimant to ask an oral supplementary question at a meeting of the full council on 25 July 2023 breached his right to freedom of expression under Art 10 of the ECHR. The Claimant sought a declaration to that effect and his costs.

22. On 13 June 2024, Deputy District Judge Gardener considered the Defendant’s application to strike out the Particulars of Claim under rules 3.4(2)(a) and (b) of the Civil Procedure Rules 1998 (hereafter “the CPR”) and dismiss the claim, because the claim should have been brought as a judicial review and/or Art 10 of the ECHR did not protect a right to ask an oral question to the Council, or to amend the Defendant’s defence and award summary judgment. Whilst Deputy District Judge Gardener accepted that the Claimant’s claim was a purely public law claim and should have been brought by judicial review, he did not strike out the claim. Rather, he transferred the claim to the Administrative Court, extended the time limit for the Claimant to file a judicial review claim form and gave directions.

23. On 19 August 2024, Her Honour Judge Brownhill allowed the Defendant’s appeal against the order of Deputy District Judge Gardener and set that order aside insofar as it extended the time limit for filing the judicial review claim form and made directions for determination of the judicial review claim.

24. On 20 March 2026, Andrew Burns KC, sitting as a Deputy High Court Judge, ordered that the claim form, the amended defence and witness statement of Elaine Brown were to stand as the statement of facts and grounds and the summary grounds of resistance respectively. The Judge determined that the claim was not arguable, because Art 10 of the ECHR is a qualified right and the Defendant had grounds for restricting that qualified right. On 27 March 2026, the Claimant applied for a renewal hearing.

25. In the foregoing circumstances, and whilst the Claimant sought to widen the ambit of the claim in his written submissions to include the failure by the Defendant to provide an answer to the Claimant’s original written question and banning the Claimant from ever submitting another question, the ground for which permission is sought by the Claimant at this hearing is that set out in his claim form of 3 January 2024. Namely: “The Defendant’s refusal to allow the Claimant his question, either in person or via a remote video link constituted interference with the Claimant’s right to freedom of expression under Article 10 of the Convention.”

26. The Defendant submits that the court should refuse permission for judicial review for the following reasons: i) The claim was brought out of time, the decision having been made on 21 July 2023 and the claim having been issued on 3 January 2024; ii) The claim is not arguable for the reasons set out in the defence and in the decision of Andrew Burns KC sitting as a Deputy High Court Judge on 20 March 2026. LEGAL FRAMEWORK

27. For the Claimant to succeed in obtaining permission for judicial review, the court must be satisfied that there is an arguable ground for judicial review having a realistic prospect of success and that there is no discretionary or other bar to bringing the claim (see Sharma v Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780).

28. In this case, the Defendant relies on the discretionary bar of limitation, contending that Claimant’s claim was brought out of time. There is no dispute that the decision which is the subject of the claim was taken on 21 July 2023 and the claim was issued on 3 January 2024 and was therefore out of time.

29. Section 7(5) of the Human Rights Act 1998 provides for a one-year time limit. However, that limit is expressed to be “subject to any rule imposing a stricter time limit in relation to the procedure in question”. In the present context, s.31(6) and (7) of the Senior Courts Act 1981 state: “(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant— (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.”

30. The rule of court which has the effect of limiting the time within which an application for judicial review may be made is r. 54.5(1) of the CPR, which provides: “(1) The claim form must be filed – (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.”

31. There is a discretion to extend the time limit under rule 3.1(2)(a) of the CPR. It has long been recognised that public law claims are unlike ordinary civil litigation and require strict adherence to the time limit contained in the rules (see R v Institute of Charted Accountants in England and Wales ex p. Andreou (1996) 8 Admin LR 557). A litigant in person will be expected to comply with the CPR and may be penalised for not doing so (The Administrative Court Guide 2025, at paragraph 4.2.1).

32. In determining whether to extend time, the Court will consider all the circumstances, including whether an adequate explanation has been given for the delay, the importance of the issues, the prospects of success and whether an extension will cause substantial hardship or prejudice to the defendant or any other party or be detrimental to good administration (The Administrative Court Guide 2025, at paragraph 6.4.4.2).

33. With respect to the substantive principles relevant to the question of whether the Claimant has an arguable ground for judicial review having a realistic prospect of success, Art 10 of the ECHR provides as follows: “Article 10 Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

34. The right to freedom of expression under Art 10(1) of the ECHR is a qualified right in circumstances where, in the words of the Convention, the exercise of the right to freedom of speech “carries with it duties and responsibilities”. The qualifications permitted by Art 10(2) can be formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society to, inter alia, the protection of the reputation or rights of others. In this case, as noted, the Defendant’s Constitution provides that the right of members of the public to participate in ordinary meetings of the Council is subject to Art 3.5 of Part 1B, which provides that members of the public must not be “be violent, abusive or threatening to Councillors or Officers”.

35. As properly acknowledged by Mr Ogilvie-Harris, political expression, including where a speaker seeks to criticise government actions, enjoys the highest degree of protection under Art 10 of the ECHR, given the role of political speech in a democracy (see R v BBC, ex p ProLife Alliance [2003] UKHL 23, [2004] 1 AC 185 at [6]). The court has a special responsibility to protect political speech (see R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at 126). This is also the position at common law, under which freedom of expression “attained the status of a constitutional right with attendant high normative force” (see McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 at 297F).

36. In this context, it has long been established that in a free democratic society those who hold office in government and who are responsible for public administration must always be open to criticism (see Hector v AG of Antigua [1990] 2 AC 312 at 318B-C). The limits of acceptable criticism of politicians and those responsible for public administration is wider than with respect to private persons. Again, this is the position not only under Art 10 of the ECHR, but at common law. In Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 574F, Lord Keith observed that: “It is of the highest public importance that a democratically elected government body, or indeed any government body, should be open to uninhibited public criticism. The threat of civil action for defamation must inevitably have an inhibiting effect on freedom of speech.” DISCUSSION

37. I am satisfied that the time for the filing of the Claimant’s claim form (as directed by the Deputy High Court Judge to stand as the Claimant’s statement of facts and grounds) be extended to 3 January 2024. I am further satisfied that the Claimant has demonstrated an arguable ground for judicial review having a realistic prospect of success. In the circumstances, I grant the Claimant permission. My reasons for so deciding are as follows.

38. There should be strict adherence to the time limits contained in the rules in the context of judicial review. It is the case that the Claimant issued his claim form outside the three-month time limit for doing so. I acknowledge that there is no application to extend the time limit before the court. The Claimant, as a litigant in person, is expected to comply with the CPR and may be penalised for not doing so.

39. Against this, however, it is clear that the Claimant thought a different route for claiming relief applied. Albeit incorrect, he issued that claim within the period applicable to it. The issues raised by the Claimant’s claim are of considerable importance, concerning as they do the question of freedom of political speech and the circumstances in which it may legitimately be circumscribed in light of the speaker’s conduct. In circumstances where the claim concerns political speech, the claim does raise broader issues of public interest. For the brief reasons set out below, I am satisfied that the Claimant has an arguable case with a realistic prospect of success. I do not consider that an extension will cause substantial hardship or prejudice to the defendant or any other party or be detrimental to good administration. In the circumstances, pursuant to rule 3.1(2)(a) of the CPR I extend the time limit for filing the Claimant’s claim form.

40. In circumstances where I am satisfied that permission for judicial review should be granted, I refrain from commenting in any detail regarding the Claimant’s claim.

41. I am satisfied that it is arguable, in the context of the very high level of protection afforded to political speech and having regard to the authorities on criticism of those who hold office and who are responsible for public administration, that the conduct of the Claimant in becoming agitated and aggressive in his speech at council meetings, of corresponding in extensive, pejorative and potentially defamatory terms with elected representatives and officials and of making serious allegations of misconduct against members of the council, was not sufficient justification for preventing him asking an oral question in person or remotely at the council meeting on 25 July 2023. It is, in my judgment, arguable with a realistic prospect of success that the Defendant’s refusal to allow the Claimant his supplementary oral question, in person or via a remote video link, constituted a disproportionate interference in the Claimant’s right to freedom of expression under Art

10. Accordingly, permission for judicial review is granted. CONCLUSION

42. For the reasons I have given, I extend time for the filing of the claim form to 3 January 2024 and grant the Claimant permission for judicial review. I will make directions for the substantive hearing of the Claimant’s claim and will ask counsel to draft an order accordingly for my approval.