England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2006

Lord Justice Waller :

Introduction

1. These are four related appeals by way of case stated. The first and second appellants were charged together and convicted of an offence contrary to s.132(1)(b) of the Serious Organised Crime and Police Act 2005 ("the Act"). The charge read:

"Stephen Blum and Aqil Shaer (and others) on Monday 1^st August 2005, at Parliament Square SW1 took part in a demonstration in a public place, namely Parliament Square SW1, which is a designated area for the purposes of the Act, where authorisation had not been given in accordance with s.134(2) of the Act."

2. The first and second appellants were each found guilty of the offence by District Judge (Magistrates' Court) Nicholas Evans at the Bow Street Magistrates' Court on 11^th January 2006. Blum was conditionally discharged for twelve months. Shaer was fined.
3. The third appellant, Maya Evans, was charged as follows:-

"On 25/10/2005 within the jurisdiction of the Central Criminal Court, took part in an unauthorised demonstration in a public place in a designated area, namely Whitehall SW1, contrary to s.132(1)(b) of the Serious Organised Crime and Police Act 2005."

4. The fourth appellant was charged with organising an unauthorised demonstration contrary to s.132(1)(a) of the Act, the charge stating that:-

"On the 25^th October 2005, within the jurisdiction of the Central Criminal Court, you organised an unauthorised demonstration in public place in a designated area, namely Whitehall junction with Richmond Terrace SW1."

5. Maya Evans was convicted on 7^th December 2005 at Bow Street Magistrates' Courts by District Judge (Magistrates' Court) Tubbs. Milan Rai was convicted at Bow Street Magistrates' Court on 16^th March 2006 by District Judge Evans.
6. Thus it is that in three of the cases the offence with which the appellant was charged was taking part in a demonstration in a designated area, when authorisation for the demonstration had not been given in accordance with s.134(2). In the fourth case, that of Milan Rai, the offence consisted of organising such a demonstration contrary to s.132(1)(a).
7. The offences committed by Mr Blum and Mr Shaer occurred in Parliament Square on 1^st August 2005, the day on which the relevant provisions of the Act came into force. Each of them participated in a demonstration by the "Stop the War Coalition" against the provisions of the Act. Each of them knew that the Act made the demonstration unlawful unless prior authorisation was obtained. During the demonstration the police specifically warned the demonstrators, including Mr Blum and Mr Shaer, that participation in the demonstration was unlawful, giving them an opportunity to desist.
8. The offence committed by Miss Evans occurred in Whitehall, opposite Downing Street, on 25^th October 2005. She read out the names of British soldiers who had been killed in Iraq, while the other participant in the demonstration, Mr Rai, read out the names of Iraqi citizens who had died in the conflict. Miss Evans was aware that authorisation for the demonstration was required, and was aware that it had neither been sought nor given. The police attended at the demonstration and warned Miss Evans and Mr Rai that they would be arrested and charged if they continued. The police withdrew to enable the participants to stop the demonstration. They chose to continue.
9. The demonstrations were peaceful and good-humoured. All behaved in a peaceful and orderly way throughout. The demonstrations were as much as anything a demonstration against the requirement that authorisation should have been required in order to demonstrate in Parliament Square and/or in Whitehall.

The Legislation

10. S.132(1) of the Act states:-

"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 . . . is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under s.134(2)."

11. 'Designated area' is defined by s.132(7)(a) by reference to an order made under s.138. S.138 empowers the Secretary of State to make an order specifying an area as a designated area, so long as it does not extend more than one kilometre from Parliament Square. An order has been made under the powers conferred by s.138. The Serious Organised Crime and Police Act 2005 (Designated Area) Order 2005, SI No 1537, identified the designated area, which includes Parliament Square and Whitehall, where the demonstrations took place.
12. S.133 requires a person seeking authorisation for a demonstration in the designated area to give written notice to that effect to the Commissioner of Police of the Metropolis.
13. S.134 addresses the giving of authorisations for demonstrations in the designated area. It provides:-

"The Commissioner must give authorisation for the demonstration to which the notice relates."

14. It follows there can be no question of the Commissioner refusing authorisation for a demonstration in the designated area. What, however, the Commissioner may do is make the granting of authorisation subject to conditions. Sub-sections 3 and 4 provide in that regard as follows:-

"(3) In giving authorisation, the Commissioner may impose on the persons organising or taking part in the demonstrations 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."

The issues

15. Before the District Judges all appellants contended first that s.132(1)(a) and (b) were not compatible with Articles 10 and 11 of the European Convention on Human Rights (Freedom of Expression and Freedom of Assembly) as applied by the Human Rights Act 1998 (HRA 1998). That led them to argue either that the sub-sections should be subject to a proviso and read down, pursuant to s.3 of the Human Rights Act 1998, or alternatively simply that it was unlawful to convict the appellants under s.6(1) of the HRA 1998. In the case of Milan Rai, there was clearly taken a further point which was that it was an abuse of process to prosecute, having regard to the infringement of Mr Rai's rights under Articles 10 and 11. Thus, in addition to the questions raised in the other three cases District Judge Evans raised in that case the question "Was the court right to have refused the application by the appellants to have the proceedings stayed as an abuse of process?". Mr Pannick QC took no point that this third question had not been specifically raised in the other cases and was prepared to treat them as though it had.
16. In all cases the District Judges rejected the arguments of the appellants, holding that the sections were compliant with the Convention on Human Rights and holding that there was no infringement of the appellants' rights. Furthermore, in none of the cases were the District Judges persuaded to stay the proceedings.
17. Before the Divisional Court the appellants no longer contended that s.132(1)(a) and (b) were incompatible with Articles 10 and 11. That is an important concession. They no longer argue that any part of the sections should be read down, pursuant to the court's obligation under s.3 of the HRA 1998. The point which is argued on appeal is that the decision of the police to arrest, of the CPS to prosecute and the decision of the court to convict has interfered with important convention rights and thus had to be justified under convention law. The submission in simple terms is that the State, in its various public authority guises (police, CPS, courts) must be able to justify the necessity to act on the individual facts of each case. Thus, it is submitted that the questions that arise in each case are – was the arrest, detention, prosecution and conviction of the appellant strictly necessary? Was each necessary and proportionate for the achievement of legitimate aims, or was it heavy-handed and unnecessary? It is further submitted that no consideration was given to that question of justification by the District Judges in the individual cases, and that the convictions should be quashed for that reason also.

European Convention on Human Rights

18. The appellants are complaining about restrictions on the right to demonstrate and Article 11 is the relevant provision of the convention. Mr Thornton QC did not seek to suggest that Article 10 added anything in the circumstances of this case. Thus, I will quote, simply, Article 11:-

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

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, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or other administration of the State."

19. Mr Thornton, in seeking to make good his submission that in these cases the police, the CPS and the courts should have looked not just at the failure to get authorisation, but should also have looked at the conduct of the demonstrators on these days, took us to many authorities concerned with public order offences. Those authorities stress, as hardly needs stressing, the fundamental rights conferred on demonstrators and protestors under Article 11. They stress the need of the state to justify interference with those fundamental rights. But it seems to me that, since each of the appellants was charged simply with a failure to obtain authorisation, the starting point is to consider the proper attitude to an authorisation procedure. On that aspect we were referred to Ziliberberg v Moldova Application no. 61821/00 of 4^th May 2004. At page 11 the judgment reads as follows:-

"The present case resembles the Ezelin case in that there were no reprehensible acts committed by the applicant. At the same time it is distinguishable in that the demonstration in the present case was not authorised in accordance with the law, as it was in the Ezelin case. The applicant does not dispute that the organisers of the demonstration did not apply for an authorisation.

As such the right to freedom of assembly covers both private meetings and meetings in public thoroughfares. Where the latter 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 (Rassemblement Jurassien v Switzerland, no. 8191/78, Commission decision of 10 October 1978, DR 17, p 119).

The Court notes that the applicant admitted having actively participated in the demonstration in his written statement given to the police and during the proceedings before the Central District Court.

As noted above, 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. The impossibility to impose such sanctions would render illusory the power of the State to require authorisation. It appears that in the present case, the State imposed a sanction on the applicant strictly for his failure to comply with the prohibition on participation in unauthorised demonstrations.

The Court further notes that the penalty imposed on the applicant was at the lower end of the scale of penalties given in Article 174(1)(4). It appears to be heavy relative to applicant's revenue; however, it does not appear to be disproportionate to the legitimate aim pursued.

Accordingly the Court concludes that the complaint under Article 11 of the Convention is manifestly ill-founded."

20. The court in that case recognised that the applicant had been convicted for his participation in the demonstration and that there was undoubtedly an interference with the applicant's freedom of assembly within the meaning of Article 11 by virtue of the requirement to obtain authorisation. That interference would give rise to a breach of Article 11 unless it was "prescribed by law", it pursued one or more legitimate aims as defined in paragraph 2 of Article 11, and was "necessary in a democratic society". It is in that context that the court ruled as it did in the quotation which I have set out above.
21. What appears from the quotation is first that an authorisation procedure is normally compliant with the requirements of Article 11(1). Furthermore, the judgment reasons, if the issue in the case relates simply to enforcing that authorisation procedure, that process will also be Article 11-compliant, otherwise "the impossibility to impose . . . sanctions would render illusory the power of the state to require authorisation". Whether the court was saying strictly that there would be compliance with Article 11(1) or whether it was saying that the imposition of sanctions to compel compliance with the authorisation procedure was clearly justifiable under Article 11(2) is not absolutely clear. But, as it seems to me, the judgment would certainly support the view that the imposition of sanctions pursues a legitimate aim, i.e. enforcement of the authorisation procedure and was "necessary in a democratic society" for that purpose. The reasoning is, in my view, compelling.
22. How then does Mr Thornton seek to distinguish Ziliberberg? He concentrates on the fact that a demonstration was taking place and then goes to those authorities dealing with the importance of the right to demonstrate under Article 11. He particularly cited the following authorities:-

(i) Plattform Arzte fur Leben v Austria (1988) 13 ER 204. In this case the association had given notice and obtained authorisation to demonstrate. The case was concerned with the obligation of the state to ensure that a demonstration could take place. Paragraph 32 of the judgment states:-

"The participants must however be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate.

Genuine, effective freedom of peaceful assembly cannot therefore be reduced to a mere duty on the part of the state not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11. . . . Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals if need be."

The ultimate conclusion was that there was no arguable claim that Article 11 had been violated and it was on that basis that the court found that there had been no infringement of Article 13, which was the main subject of the decision. It was not a case concerned simply with enforcement of an authorisation procedure.

(ii) Ezelin v France (1991) 14 EHRR 362: in this case a demonstration had been duly authorised but an avocat was disciplined for not dissociating himself from reprehensible actions. The court emphasised that "prior notice had been given of the demonstration in question and that it was not prohibited." (see para 41). The court held that in penalising the avocat there had been a breach of Article 11, saying:-

"The court considers, however, that the freedom to take part in a peaceful assembly – in this instance a demonstration that had not be prohibited – it is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.

In short, the sanction complained of however minimal does not appear to have been "necessary in a democratic society". It accordingly contravened Article 11."

Again, this case was not concerned with the enforcement of an authorisation procedure.

(ii) G v The Federal Republic of Germany (App No 13079/87) decision of 6 March 1989: In this case G was charged with a public order offence. He had been convicted of attempted coercion under s.240 of the German Criminal Code. The conduct complained of was taking place during a demonstration which had not been authorised. In its conclusions relating to the complaint under Article 11 the Commission ruled that although G was acting illegally, since the demonstration was unauthorised,

"The Commission finds that the right to freedom of peaceful assembly is one of the foundations of a democratic society . . . and should not be interpreted restrictively. The applicant and the other demonstrators had not been actively violent in the course of the sit-ins concerned. The Commission accepts that the applicants' conviction under s.240 of the Criminal Code interfered with his right under Article 11, para 1, needs to be justified as a restriction prescribed by law unnecessary in a democratic society for one of the purposes set out in Article 11 para 2 of the Convention."

The Commission on the facts held the complaint inadmissible:-

"Balancing the public interest in the prevention of disorder and the interest of the applicant and the other demonstrators in choosing the particular form of a sit-in the applicants' conviction for the criminal offence of unlawful coercion does not appear disproportionate to the aims pursued."

The case was concerned with prosecution for a public order offence and not simply with the enforcement of an authorisation procedure.

(iii) Stankov v Bulgaria (29225/95) Judgment of 2 October 2001. This case concerned an association which wished to organise celebrations to commemorate historical events of importance for Macedonians in Bulgaria, but was an association which was thought by the State of Bulgaria to advocate national and ethnic hatred. The court in Bulgaria had ruled that it was dangerous for the territorial integrity of Bulgaria and had refused registration. Furthermore, the association had sought authority to meet at various sites and that authorisation had always been refused. Ultimately, the ruling of the court relating to possible breaches of Article 11 was to the following effect. First the court recognised that Article 11 only protected the right to "peaceful assembly" but was of the view that the organisation of the prohibited meetings did not have violent intentions. (see para 78). It thus held that Article 11 was applicable and the question was whether the interference could be justified under Article 11(2). Was the interference "prescribed by law"? Was the aim legitimate? Was the interference "necessary in a democratic society"?

23. That case, like the others, was not concerned with proceedings which had been brought simply to enforce an authorisation procedure. It was concerned with a demonstration that was unauthorised but the charges related to activity during the demonstration, i.e. a public order offence.
24. Finally, Mr Thornton referred us to Ciraklar v Turkey Application No 19601/92, decision of 19 January 1995: this case was concerned with a demonstration for which no authorisation had been obtained. C was charged with participating in an illegal demonstration, violently resisting police orders and distributing separatist propaganda. The applicant and thirty other defendants were found guilty of "participating in a demonstration on a public highway without first obtaining authorisation, contrary to law no. 2911 on demonstrations and of violently resisting orders of the police who were there to disperse the demonstrators." The ruling of the Commission was as follows:-

"The Commission recalls in this regard that everyone intending to organise a peaceful demonstration has the right to freedom of peaceful assembly. The concept of "peaceful" does not, however, include a demonstration in which the organisers and participants intend to use violence, resulting in public disorder (see certain authorities, including G v Germany supra.) The Commission further recalls that a requirement for authorisation of gatherings on the public highway does not in theory constitute interference with the essence of the right (see Rassemblement Jurassien v Switzerland 17 DR 93, [a decision of the Commission relied on in Ziliberberg, see the quotation above.])

The Commission observes that in the instant case the applicant participated in a gathering on the public highway which was held without first obtaining the necessary authorisation and in breach of the relevant domestic legislation. It also notes that the applicant, along with other demonstrators, disobeyed orders from the police to disperse and, furthermore, used violence against the police.

In the circumstances the Commission considers that in this case the dispersal, with the assistance of the police, of the gathering in question, and the arrest and conviction of a number of demonstrators, including the applicant, were measures prescribed by law constituting measures necessary in a democratic society for the prevention of public disorder within the meaning of Article 11 para 2 of the Convention."

25. Mr Thornton suggests that Ciraklar is authority for the proposition that even where the state is seeking to enforce an authorisation procedure the court will examine the circumstances of the demonstration in order to decide whether there has been a breach of Article 11. In my view Ciraklar is not authority for any such proposition. It is far from clear whether, if C had been prosecuted simply for failure to obtain authorisation, there would have been any question of examining the circumstances of the demonstration in order to see whether a prosecution was justified. It certainly, as it seems to me, is not a decision inconsistent with Ziliberberg or with the reasoning in Ziliberberg.
26. Mr Thornton then took us to various authorities from this jurisdiction. He referred us to Percy v DPP [2001] EWHC Admin 1125, Hammond v DPP [2004] EWHC 69 Admin, and Dehal v CPS [2005] EWHC Admin 2154. He suggested that these authorities supported the view that, where Article 11 was engaged, the authorities of the state whether it be the police, in considering whether to arrest, or the CPS in considering whether to prosecute, or the courts in considering whether to convict, were bound to consider whether the arrest, the prosecution or the conviction could be justified by reference to Article 11(2). The high watermark of the support he suggested he obtained from the authorities was in Dehal and two paragraphs of Moses J's ruling in that case were relied on:-

"9.There has been and could be no challenge to the finding as to the appellant's intention, but that does not help in any way as to the proportionality of the criminal prosecution. Nor does the fact that the notice was not objectively reasonable. The court had earlier, apparently, found that there was no basis for the allegation being made against the Temple. What was needed was not merely a conclusion, namely that the prosecution was a proportionate response, but a careful analysis of the reasons why it was necessary to being a criminal prosecution at all. In order to justify one of the essential foundations of democratic society the prosecution must demonstrate that it is being brought in pursuit of a legitimate aim, namely the protection of society against violence and that a criminal prosecution is the only method necessary to achieve that aim. The court must carefully consider those considerations and set out their findings as to why they have reached their conclusion. So much is well-settled. Indeed, in Hammond v Director of Public Prosecutions [2004] EWHC 69 Admin, which was cited, the careful questions the justices posed to themselves in that case and their answers are set out at paragraph 19 of that decision.

. . .

12. I repeat, the important factor upon which the Crown Court should have focused and upon which on its face it appears not to have focused is the justification for bringing any criminal prosecution at all. However insulting, however unjustified what the appellant said about the President of the Temple, a criminal prosecution was unlawful as a result of section 3 of the Human Rights Act and Article 10 unless and until it could be established that such a prosecution was necessary in order to prevent public disorder. There is no such finding or any justification whatever given in the case stated. In those circumstances, whether this case be meritorious or not, I am bound to allow the appeal. There was, in short, no basis found by the Crown Court for concluding that this prosecution was a proportionate response to his conduct. In those circumstances I would answer question 1 "No". It follows that question 2 must also be answered in the negative."

27. The difficulty for Mr Thornton, in my view, is that all three authorities were concerned with prosecutions for public order offences and offences where reasonableness could be a defence to the charge. For example, Dehal was concerned with s.4A(1) of the Public Order Act 1986, which provided by subsection (3) that it is a defence for the accused to prove . . . "(b) that his conduct was reasonable." Thus, consistently with s.3 of the Human Rights Act, the quality of the conduct could be read down so as to protect a defendant from infringement of their Article 11 rights and/or the Article 11 rights could dictate whether conduct on a particular occasion was reasonable.
28. The clearest recognition that this two-stage process is a correct interpretation of these authorities seems to me to come from the judgment of May LJ in Hammond. Paragraphs 21 and 22 are in the following terms:-

"21. It seems to me that the respects in which it is or may have been appropriate to bring these considerations into play are essentially twofold. It is, at one level, vital to ensure that if, in so far as Mr Hammond's freedom of expression was to be restricted, it was only to be restricted in a way which was compatible with Article 10. That, in my judgment, was capable of affecting the justices' consideration and being brought into play in two ways. The first I have already alluded to. In determining whether or not the sign in question was to be found to be insulting within the terms of the section of the 1986 Act, it seems to me that it should have been appropriate to have brought considerations relevant to Article 10 into play. "Insulting" is an ordinary English word but when one applies the facts of individual circumstances to the question of whether a sign was insulting there may, of course, be a variety of answers depending on the individual circumstances of the case. In determining whether a particular set of facts and circumstances should give rise to a finding that a sign of this kind was insulting, it seems to me that it would be appropriate to have Article 10 and its terms very much in mind.

22. Secondly, the statute itself requires that the person charged would have a defence if he were to prove that his conduct was reasonable and I understand Mr Tomlinson to accept that although an analysis of the application of Articles 9 and 10 of the Convention could give rise to what I think he would prefer -- that is to say a structured three-stage approach -- nevertheless, in practice the courts have not followed such an approach but have treated Convention considerations as arising when the reasonableness defence under section 5(3)(c) is considered. Mr Tomlinson is, I understand, content that the question can properly be dealt with when the reasonableness defence is being considered. He submits that a person's conduct will be reasonable if he is exercising Convention rights in circumstances in which an interference with that exercise would not be justified under Articles 9(2) or 10(2)."

29. It seems to me that nothing said in the above authorities relied on by Mr Thornton can cut across the reasoning in Ziliberberg. Once it is accepted that the sections requiring authorisation are compatible with Article 10 and Article 11, it simply cannot be a legitimate line of argument to say – "that may be so, but you must look at the activity taking place without authorisation, when considering whether there has been an infringement of Article 11 itself." Once an authorisation procedure is Article 11 compliant, Parliament must be entitled to impose sanctions where authorisation has not been obtained, otherwise the finding that the sections are compatible is illusory.
30. In my view these appeals must be dismissed.

Mr Justice Lloyd Jones : I agree.

LORD JUSTICE WALLER: For the reasons given in the judgments handed down this appeal will be dismissed. There will be no order for costs. There should be an order for legal aid taxation of the appellant's costs. We will not certify any point of public importance and thus do not grant permission to appeal to the House of Lords.