AS TO THE ADMISSIBILITY OF
26258/07 and 26255/07
by Milan RAI and Maya EVANS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 17 November 2009 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above applications lodged on 19 June 2007,
Having deliberated, decides as follows:
The first applicant is Milan Rai. He was born in 1965 and is represented by Mr J. Welch, a solicitor with Liberty, a non-governmental civil liberties organisation based London. The second applicant is Ms Maya Evans. She is represented by Mr M. Schwartz of Bindmans Solicitors, London. Both are British nationals and live in East Sussex.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the cases
On 25 October 2005 the first applicant participated in a demonstration, which he had organised, in Whitehall opposite Downing Street, a “designated area” within the meaning of section 138 of the Serious Organised Crime and Police Act 2005 (“the 2005 Act”). The second applicant also participated in it.
Prior to 25 October 2005 the first applicant had informed the police orally that the demonstration was going to be held, he gave the time, date and place of the demonstration and (politely) informed the police that an authorisation would not be sought. He had also posted information the day before the demonstration on a website confirming that it was not authorised so that the risk of arrest was high and that, in fact, he had been informed by the police that he would be arrested under the 2005 Act. The second applicant was also aware prior to the relevant date that authorisation had not been sought so that demonstrating in that area would be an offence. The High Court later noted that the demonstration was just as much a demonstration against the requirement for an authorisation under the 2005 Act as against the Iraqi conflict. The Magistrates’ Court (in its case stated to the High Court in the first applicant’s case) noted police evidence to the effect that, had authorisation been sought, no conditions would have attached to it.
At the demonstration, the first applicant read out names of Iraqi citizens killed in the Iraqi conflict and the second applicant read out names of British soldiers killed in that conflict. Placards were displayed about the Iraq conflict and a bell was rung at regular intervals. The applicants behaved in a peaceful and orderly manner throughout. The police attended at the demonstration and warned the applicants that they would be arrested and charged if they continued given the lack of an authorisation. The police then withdrew to enable the applicants to stop the demonstration. They chose to continue.
The first and second applicants were therefore arrested, detained in the police station for a number of hours and charged: the first applicant for having organised an unauthorised demonstration in a designated area contrary to section 132(1)(a) of the 2005 Act and the second for having participated in the same demonstration contrary to section 132 (1)(b) of that Act. It appears that both were granted police bail: the documents submitted do not indicate that bail was subject to any conditions (apart from appearing before the Magistrates’ Court on the relevant date).
Before the Magistrates’ Court the applicants argued that section 132(1) (a) and (b) of the 2005 Act were not compatible with Articles 10 and 11 of the Convention. Unless those provisions were interpreted compatibly with those Articles, their convictions would be unlawful. The Magistrates’ Court found that the relevant sections were necessary and proportionate restrictions of the applicant’s rights under Articles 10 and 11. In any event, additional words could not be read into the sections as that would run counter to legislative intent. The convictions would not therefore be unlawful under section 6 of the Human Rights Act 1998. The applicants were convicted as charged on 7 December 2005 and 16 March 2006, respectively. The first applicant was sentenced to a fine of 350 pounds sterling (GBP) and ordered to contribute to prosecution costs in the sum of GBP150 and the second applicant was sentenced to a conditional discharge of 12 months and to contribute to costs in the sum of GBP100.
The applicants appealed by way of a case stated to the High Court. They conceded that section 132(1)(a) and (b) was not incompatible with Articles 10 and 11 of the Convention but argued that the relevant State actors (the police, the Crown Prosecution Service and the courts) should have been required to justify the necessity to act (arrest, prosecute and convict) on the facts of each individual case. Accordingly, those authorities should have looked not merely at whether there was an authorisation but also at the later peaceful conduct of the actual demonstration. Since the Magistrates’ Court had not considered the justification for their conviction along those lines, their arrest, prosecution and conviction were contrary to their Convention rights.
By judgment dated 20 December 2006, the High Court dismissed the applicants’ appeals (and the appeals of two others, Blum and Others v Director of Public Prosecutions [20061 EWHC 3209 (Admin)). It noted that the only charge against the applicants was demonstrating without an authorisation. The High Court considered that the reasoning in the case of Ziliberberg v. Moldova (no. 61821/00, 4 may 2004) was compelling. Nothing in the other Convention or domestic jurisprudence opened to the High Court undermined that reasoning. Those Convention and domestic cases rather raised various public order, safety and security issues (Plattform “Ärzte für das Leben” v. Austria, 21 June 1988, Series A no. 139; Ezelin v. France, 26 April 1991, Series A no. 202; and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001 IX, as well as G. v. the Federal Republic of Germany, no. 13079/87, Commission decision of 6 March 1989, 60 Decisions and Reports (“DR”), 256; and Çiraklar v. Turkey, No. 19601/92, Commission Decision of 28 October 1998, 80-B DR 46). Accordingly, once it was accepted that the section requiring the authorisation was compatible with Article 10 and 11 (as the applicants did), the High Court was not required to look at the nature of the activity actually pursued thereafter without authorisation in order to determine whether a sanction should be imposed. Once an authorisation procedure was Article 11 compliant, Parliament was entitled to impose sanctions for a failure to obtain authorisations. The High Court refused to certify a point of law of general public importance for the House of Lords.
B. Relevant domestic law and practice
Section 132 of the 2005 Act is entitled “Demonstrating without authorisation in designated area” and reads as follows:
“(1) Any person who–
(a) organises a demonstration in a public place in the designated area, or
(b) takes part in a demonstration in a public place in the designated area, or
(c) carries on a demonstration by himself in a public place in the designated area,
is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under section 134(2).
(2) It is a defence for a person accused of an offence under subsection (1) to show that he reasonably believed that authorisation had been given.
(3) Subsection (1) does not apply if the demonstration is–
(a) a public procession of which notice is required to be given under ... section 11 of the Public Order Act 1986 (c. 64), or of which ... notice is not required to be given, or
(b) a public procession for the purposes of section 12 or 13 of [the Public order Act 1986].
(7) In this section and in sections 133 to 136–
(a) “the designated area” means the area specified in an order under section 138,
(b) “public place” means any highway or any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission,
(c) references to any person organising a demonstration include a person participating in its organisation,
(d) references to any person organising a demonstration do not include a person carrying on a demonstration by himself,
(e) references to any person or persons taking part in a demonstration (except in subsection (1) of this section) include a person carrying on a demonstration by himself.”
Section 133 is entitled “Notice of demonstrations in designated area” and reads as follows:
“(1) A person seeking authorisation for a demonstration in the designated area must give written notice to that effect to the Commissioner of Police of the Metropolis (referred to in this section and section 134 as "the Commissioner").
(2) The notice must be given–
(a) if reasonably practicable, not less than 6 clear days before the day on which the demonstration is to start, or
(b) if that is not reasonably practicable, then as soon as it is, and in any event not less than 24 hours before the time the demonstration is to start.
(3) The notice must be given–
(a) if the demonstration is to be carried on by more than one person, by any of the persons organising it,
(b) if it is to be carried on by a person by himself, by that person.
(4) The notice must state–
(a) the date and time when the demonstration is to start,
(b) the place where it is to be carried on,
(c) how long it is to last,
(d) whether it is to be carried on by a person by himself or not,
(e) the name and address of the person giving the notice.
(5) A notice under this section must be given by–
(a) delivering it to a police station in the metropolitan police district, or
(b) sending it by post by recorded delivery to such a police station.
(6) Section 7 of the Interpretation Act 1978 (c. 30) (under which service of a document is deemed to have been effected at the time it would be delivered in the ordinary course of post) does not apply to a notice under this section.
Section 134 is entitled “Authorisation of demonstrations in designated area” and reads as follows:
“(1) This section applies if a notice complying with the requirements of section 133 is received at a police station in the metropolitan police district by the time specified in section 133(2).
(2) The Commissioner must give authorisation for the demonstration to which the notice relates.
(3) In giving authorisation, the Commissioner may impose on the persons organising or taking part in the demonstration such conditions specified in the authorisation and relating to the demonstration as in the Commissioner’s reasonable opinion are necessary for the purpose of preventing any of the following–
(a) hindrance to any person wishing to enter or leave the Palace of Westminster,
(b) hindrance to the proper operation of Parliament,
(c) serious public disorder,
(d) serious damage to property,
(e) disruption to the life of the community,
(f) a security risk in any part of the designated area,
(g) risk to the safety of members of the public (including any taking part in the demonstration).
(4) The conditions may, in particular, impose requirements as to–
(a) the place where the demonstration may, or may not, be carried on,
(b) the times at which it may be carried on,
(c) the period during which it may be carried on,
(d) the number of persons who may take part in it,
(e) the number and size of banners or placards used,
(f) maximum permissible noise levels.
(5) The authorisation must specify the particulars of the demonstration given in the notice under section 133 pursuant to subsection (4) of that section, with any modifications made necessary by any condition imposed under subsection (3) of this section.
(6) The Commissioner must give notice in writing of–
(a) the authorisation,
(b) any conditions imposed under subsection (3), and
(c) the particulars mentioned in subsection (5),
to the person who gave the notice under section 133.”
Section 136 is entitled “Offences under sections 132 to 135: penalties” and reads, in so far as relevant, as follows:
“(1) A person guilty of an offence under section 132(1)(a) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine not exceeding level 4 on the standard scale, or to both.
(2) A person guilty of an offence under section 132(1)(b) or (c) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”
Section 138 is entitled “The designated area” and provides as follows:
“(1) The Secretary of State may by order specify an area as the designated area for the purposes of sections 132 to 137.
(2) The area may be specified by description, by reference to a map or in any other way.
(3) No point in the area so specified may be more than one kilometre in a straight line from the point nearest to it in Parliament Square.”
By the Serious Crime and Police Act 2005 (Designated Area) Order 2005, the Secretary of State defined, pursuant to section 138 of the 2005 Act, an area of London surrounding Parliament and Downing Street as constituting a “designated area” for the purposes of the 2005 Act. The text of the Order and a map attached to it delineated the precise area.
The applicants argued that their arrest, police detention, charges and conviction were unjustified interferences with their rights to assemble and protest peacefully on matters of important political concern in a public place in violation of Articles 10 and 11 of the Convention. No individualised consideration was given as to whether the individual facts of their cases required them to be prosecuted and punished.
The applicants complained about a violation of their rights under Articles 10 and 11 of the Convention because their arrest, police detention, charging and convictions for demonstrating without an authorisation took place without any individual consideration of the facts of their cases and, notably, of the fact that the demonstration was, in fact, peaceful.
Article 10 reads, in so far as relevant, as follows:
“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. ...
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, ....”
Article 11, in so far as relevant, reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, ...
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others. ...”
1. The applicants’ submissions
The applicants argued that they had demonstrated peacefully on a matter of public interest so that the demonstration was a legitimate exercise of their right of peaceful protest, drawn both from the right to freedom of expression and of peaceful assembly. While domestic common and statute law (the Public Order Act 1986, “the 1986 Act”) recognised the right of peaceful protest more as a right to be tolerated as long as no obviously wrongful act was done, the Convention rights were considered fundamental to a free and democratic society and, consequently, were to be protected positively. Any restrictions had to be narrow and merited special scrutiny.
The applicants noted that they were convicted, respectively, for organising and participating in an unauthorised demonstration contrary to the 2005 Act. They referred to conditions attaching to bail which prevented further protests. While these interferences were “prescribed by law” and pursued a “legitimate aim” (section 134(3)(a)-(g) of the 2005 Act), they were not proportionate to the legitimate aim pursued. While the domestic legislator and courts had a certain margin of appreciation, European supervision of such interferences with their Convention rights was strict.
The applicants maintained that a just balance required that peaceful demonstrators who had committed no “reprehensible act” were not discouraged or deterred from expressing their opinions publicly on matters of public concern, regardless of whether the demonstration was unauthorised, and certainly not by punitive measures (Ezelin v. France, cited above, at § 59). A mere failure to request authorisation did not constitute “reprehensible behaviour” and so could not be restricted compatibly with Articles 10 or 11 (G. v. the Federal Republic of Germany, cited above, at p. 263). In Steel and Others v. the United Kingdom (23 September 1998, § 105, Reports of Judgments and Decisions 1998 VII) the Court distinguished between conduct which risked injury and disorder (reprehensible conduct to be restricted) and conduct which did not import those risks (and was not to be restricted). In the present case, the applicants did not commit reprehensible conduct such as to justify restriction. The demonstration concerned a matter of public interest; it was small, peaceful, without incident and non-obstructive and it did not breach or risk breaching the criminal law; it did not touch upon one of the sensitive factors listed in section 134(3)(a)-(g) of the 2005 Act; and the police had advance notice.
However, the police could not, and the domestic courts did not, consider whether, given the peaceful nature of their demonstration, the interferences could be justified: their prosecution could only be based on the lack of an authorisation. The Court has always adopted a very fact-specific approach so that blanket bans on demonstrations are not accepted. The only reason such a ban was accepted by the former Commission (Rassemblement Jurassien v. Switzerland, no. 8191/78, Commission Decision of 10 October 1979, 17 DR p. 93 and Christians Against Racism and Fascism v. the United Kingdom Commission Decision of 16 July 1980, 21 DR p. 138) was because of the foreseeable danger of violence, which was later borne out on the facts. In addition, their convictions had an unacceptable deterrent effect.
Finally, the applicant highlighted certain restrictions introduced by the 2005 Act including the minimum notice period of 24 hours, the conditions which could be imposed on an authorisation; the sanctions imposed on them; and the fact that the 2005 Act substantially extended the controls laid down by the 1986 Act.
2. The Court’s assessment
The Court considers that, since the case concerns the applicants’ prosecution for a non-authorised demonstration, it is appropriate to examine it under Article 11, but it has done so in the light of Article 10 of the Convention (Ezelin v. France, cited above, at § 35; Bukta and Others v. Hungary, no. 25691/04, § 41, ECHR 2007 IX; and Galstyan v. Armenia, no. 26986/03, §§ 95-96, 15 November 2007).
The Court finds that the applicants’ prosecution (arrest, police detention, charging, convictions and sentences) for, respectively, organising and participating in, respectively, an unauthorised demonstration constituted an interference with their rights guaranteed by Article 11, those rights being guaranteed to persons organising as well as participating in a demonstration (Djavit An v. Turkey, no. 20652/92, § 56, ECHR 2003 III). The applicants mentioned conditions on their police bail preventing further demonstrations, but the material submitted gives no indication of any particular conditions imposed apart from the requirement to appear before the Magistrates’ Court on the relevant date.
Based as they were on section 132(1)(a) and (b) of the 2005 Act, those interferences were clearly “prescribed by law”. The applicants did not dispute this and both were aware prior to the relevant date that demonstrating in the intended location without an authorisation was unlawful. Having regard to the text of sections 132 and 134, the Court considers that the interferences pursued the legitimate aims of protecting national security and preventing disorder or crime (for example, Sławomir Skiba v. Poland (dec.), no. 10659/03, 7 July 2009): the applicants did not dispute this either.
However, the applicants considered the interferences disproportionate to those aims since their conviction concerned only a lack of authorisation and did not take into account the later peaceful nature of the demonstration.
The Court recalls that the Contracting States have a certain margin of appreciation in making the proportionality assessment under the second paragraph of Article 11. However, that goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, the Court being empowered to give the final ruling on whether a “restriction” is reconcilable with Convention rights. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they took. This does not mean that it has to confine itself to ascertaining whether the State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine, after having established that it pursued a “legitimate aim”, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (Gerger v. Turkey [GC], no. 24919/94, § 46, 8 July 1999 and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports 1998 I).
Moreover, the Court must make this assessment in light of Article 10: the protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association enshrined in Article 11 (Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 37, ECHR 1999-VIII). While the authorities were not reacting to the views expressed by the applicants, they were nevertheless prevented by the interferences from expressing those views in the manner they chose on a matter of public interest. It notes, in this respect, that Article 10 protects the means of expression, as well as its content (for example, Öztürk v. Turkey [GC], no. 22479/93, § 49, ECHR 1999 VI) and that there is little scope under that Article for restrictions on political speech or on debate on questions of public interest (Stankov and the United Macedonian Organisation Ilinden, cited above, at § 88).
The Court would agree with the High Court that the starting point of its assessment must be the above-cited decision of Ziliberberg v. Moldova which, like the present case, concerned solely the applicant’s prosecution for his participation in an unauthorised assembly. In the context of the proportionality of the restriction, the Court noted that:
“Where [meetings in public thoroughfares] are concerned, their subjection to an authorisation procedure does not normally encroach upon the essence of the right. Such a procedure is in keeping with the requirements of Article 11 § 1, if only in order that the authorities may be in a position to ensure the peaceful nature of a meeting, and accordingly does not as such constitute interference with the exercise of the right ...
... the requirement to obtain authorisation for a demonstration is not incompatible with Article 11 of the Convention. The Court considers that since States have the right to require authorisation, they must be able to apply sanctions to those who participate in demonstrations that do not comply with the requirement. ....”
A pre-authorisation system not being, in principle, incompatible with Article 11, the Court went on in Ziliberberg to find that that system would be rendered “illusory” if Article 11 were to prohibit sanctions for a failure to obtain such authorisations.
The Ziliberberg decision was more recently applied in the cases of Oya Ataman v. Turkey (no. 74552/01, § 37, ECHR 2006 XIII), Bukta and Othersv. Turkey (cited above) and Balçık and Others v. Turkey (no. 25/02, 29 November 2007). Indeed the judgments in Oya Ataman (at §§ 38 and 39) and Balçık and Others (at § 49) added that associations and others organising demonstrations, as actors in the democratic process, should respect the rules governing that process by complying with the regulations in force. Having regard to the reasonable and calm manner in which the police ended the demonstration, it cannot be said that their intervention in the unlawful peaceful demonstration was so excessive as to render the impugned interferences disproportionate. This is in contrast to the above-cited cases of Oya Ataman (see § 43) and Balçık and Others (see § 53) in which the excessive conduct on the part of the national authorities led to the finding of a violation. A violation was also found in the Bukta and Others judgment. However, it was not possible for the applicants in that case to provide the required 3 days’ notice of a demonstration since they had only 1 days’ notice of the relevant political event against which they wished to demonstrate. The present applicants do not suggest they had insufficient time to apply for the authorisation and, given the subject matter of their demonstration (the ongoing British involvement in Iraq) and the evidence of their prior knowledge and planning, the time-limits set down in the 2005 Act did not constitute an obstacle to their freedom of assembly.
In addition, the Court considers that the Convention cases invoked by the applicants, before the domestic courts and this Court (all cited above), are equally distinguishable, concerning as they did restrictions for public order, safety and security reasons. The Ezelin case was already explicitly distinguished on this basis in the Ziliberberg decision. The Steel and Others judgment concerned applicants who had been charged with breach of the peace and public order offences. In G. v. the Federal Republic of Germany the applicant had been punished for his behaviour during the demonstration and in Çiraklar v. Turkey the charges against the applicant also concerned, inter alia, public order issues. The Plattform “Ärzte für das Leben” v. Austria case concerned the question whether the police had disregarded the applicant’s freedom of assembly by failing to take practical steps to ensure that its demonstrations passed off without any trouble.
Moreover, the Court does not agree with the applicants’ description of the pre-authorisation procedure as a “blanket ban” (Rai and Others v. the United Kingdom, no. 25522/94, Commission decision of 6 April 1995, DR 81-A, p. 146). In particular, the authorisation is required only as regards certain designated zones considered sensitive from a security point of view and, in the present case, in proximity to the Prime Minister’s office and residence. The authorisation must be accorded, although it may be subjected to conditions which are statutorily defined and which must be necessary in the “reasonable opinion” of the Commissioner of Police of the Metropolis to prevent defined risks of a public order, safety and security nature. Moreover, the domestic evidence was that it was unlikely that conditions would have been imposed given the nature of the demonstration the applicants proposed. Nor has it been demonstrated that the pre-authorisation requirement is, of itself, a deterrent on demonstrations as the applicants suggested: the deterrent is rather against unauthorised demonstrations which limitation is not a priori incompatible with Article 11. Furthermore, as it is not the Court’s role to examine domestic law in the abstract, it has not addressed the applicants’ reference to a general domestic evolution of controls on demonstrations since the 1986 Act.
Finally, the Court notes that the sanctions foreseen by section 136 of the 2005 Act are criminal and, as such, require particular justification. However, as noted above, the present sanctions concerned only unauthorised demonstrations in certain limited and security sensitive areas. The applicants continued with the demonstration on the day even after the police gave them an opportunity to disband without the imposition of any sanction. Moreover, the sanctions actually imposed were not severe. While the first applicant (charged with organising the demonstration) risked imprisonment and/or a fine, he was ordered to pay a fine at the lowest end of the statutory scale and to contribute a relatively small sum to prosecution costs. The second applicant (charged with participating) risked a fine but was simply conditionally discharged (no fine would be imposed if she refrained from participating in unauthorised demonstrations for 12 months) and to contribute a small sum to prosecution costs. Having regard to the above, the Court does not consider that the present sanctions, of themselves, rendered disproportionate the interference with the applicants’ rights.
Accordingly, the Court concludes that the interferences with the applicants’ rights cannot be considered to have been disproportionate. It follows that their complaints under Articles 10 and 11 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Lawrence Early Lech Garlicki