England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
District Judge Purdy
City of Westminster Magistrates Court

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/08/2007

Lord Phillips CJ :

This is the judgment of the court

Introduction

1. This is an adjourned hearing of an appeal by way of case stated by the Director of Public Prosecutions against a decision of District Judge Purdy in the City of Westminster Magistrates Court on 22 January 2007. The judge ruled that there was no case for the Respondent, Brian Haw, to answer on a charge of knowingly failing to comply with a condition imposed under section 134 of the Serious Organised Crime and Police Act 2005 ('SOCA') in respect of a demonstration in Parliament Square. The hearing before us was adjourned because Mr Haw had not been served with relevant documents in time to give them proper consideration.
2. There had been listed before us at the same time an application by Mr Haw for permission to apply for judicial review to challenge the decision taken by the police to impose those conditions. Initially it was not clear whether Mr Haw wished to pursue that application. His stance was that he wished at least to keep it alive. We directed that, if he wished to pursue, it he should do so after we have dealt with the case stated and on a different occasion.
3. The issues raised by the case stated are as follows:

i) Whether the statutory powers available to the Commissioner of Police under section 134 of SOCA can be exercised by a subordinate on his behalf;

ii) Whether the conditions imposed on Mr Haw were ultra vires, or incompatible with Articles 10 and 11 of the European Convention on Human Rights ('ECHR'), as unreasonable or insufficiently clear.

Background

4. Mr Haw has been conducting a permanent demonstration in Parliament Square against the Government's policy on Iraq since 2 June 2001. At one time he occupied a site opposite the entrance to the House of Commons of some 44 metres in width. This was encumbered with placards, tents and other objects. Mr Haw is a peaceable man and no one has ever suggested that he himself poses any form of threat to security. The concern is, however, that his demonstration so close to Parliament might be used as cover for some form of terrorist attack.
5. On 7 April 2005 SOCA received royal assent. Sections 132 to 138 deal specifically with demonstrations in the vicinity of Parliament. They provide for a system of notices and authorisation, subject to conditions, for such demonstrations. Where an unauthorised demonstration is carried on or a condition is not complied with an offence is committed. These provisions came into force on 1 July 2005.
6. Mr Haw brought proceedings for judicial review in which he submitted that these provisions had no application to his demonstration as it was already in existence when they came into effect. On May 2006 the Court of Appeal ruled against this submission in R (Haw) v Secretary of State for the Home Department [2006] EWCA Civ 532. A general challenge to sections 132 to 138 of SOCA as an infringement of Article 11 of the ECHR was made in appeals by way of case stated brought by four other demonstrators. This also failed: Blum and others v Secretary of State for the Home Department [2006] EWHC 3209 (Admin).

The statutory provisions:

7. S.132(1) of SOCA provides:

"'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).'

Under section 133(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 ("the Commissioner"). The notice must be given, if reasonably practicable, not less than 6 clear days before the day on which the demonstration is to start or, 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: section 133(2).

The notice, which must contain information relating to the date, time, place, duration etc of the demonstration etc, must be given by delivery to a police station in the metropolitan police district or by post by recorded delivery to such a police station: section 133(5)."

8. Section 134 provides, so far as relevant:

"134 Authorisation of demonstrations in designated area

(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.

(7) Each person who takes part in or organises a demonstration in the designated area is guilty of an offence if –

(a) he knowingly fails to comply with a condition imposed under subsection (3) which is applicable to him (except where it is varied under section 135), or

(b) he knows or he should have known that the demonstration is carried on otherwise than in accordance with the particulars set out in the authorisation by virtue of subsection (5).

(8) It is a defence for a person accused of an offence under subsection (7) to show-

(a) (in paragraph (a) case) that the failure to comply, or

(b) (in paragraph (b) case) that the divergence from the particulars,

Arose from circumstances beyond his control, or from something done with the agreement, or by the direction of a police officer.

(9) The notice required by subsection (6) may be sent by post to the person who gave the notice under section 133 at the address stated in that notice pursuant to subsection (4)(e) of that section.

(10) If the person to whom the notice required by subsection (6) is to be given has agreed, it may be sent to him by email or by facsimile transmission at the address or number notified by him for the purpose to the Commissioner (and a notice so sent is 'in writing' for the purposes of that subsection). "

9. Section 135 provides:

"135 Supplementary directions

(1) This section applies if the senior police officer reasonably believes that it is necessary, in order to prevent any of the things mentioned in paragraphs (a) to (g) of subsection (3) of section 134—

(a) to impose additional conditions on those taking part in or organising a demonstration authorised under that section, or

(b) to vary any condition imposed under that subsection or under paragraph (a) (including such a condition as varied under subsection (2)).

(2) The senior police office may give directions to those taking in or organising the demonstration imposing such additional conditions or varying any such condition already imposed.

(3) A person taking part in or organising the demonstration who knowingly fails to comply with a condition which is applicable to him and which is imposed or varied by a direction under this section is guilty of an offence.

(4) It is a defence for him to show that the failure to comply arose from circumstances beyond his control.

(5) In this section, 'the senior police officer' means the most senior in rank of the police officers present at the scene (or any one of them if there are more than one of the same rank)."

The Conditions

10. An Order specifying the designated area, including Parliament Square, was made by the Secretary of State on 8 June 2005. It came into force on 1 July 2005.
11. The Commissioner of Metropolitan Police signed an undated document under which he gave notice that he delegated his functions under section 134 of SOCA to an officer of the rank of Superintendent or above.
12. On 8 May 2006 Mr Haw's solicitors wrote to Charing Cross Police Station (for the attention of Superintendent Bonner) seeking authorisation to continue his demonstration, for the most part on his own but stating that from time to time he would be 'joined by others'.
13. On 9 May 2006 Superintendent Peter Terry purported to authorise the demonstration to continue subject to conditions imposed under section 134(3)
14. The conditions were as follows:

"1. The site associated with your demonstration (including banners, placards etc) will not exceed 3 metres in width, 3 metres in height and 1 metre in depth.

2. The site should at no time prevent pedestrian movement along the footway.

3. Your property (including banners, placards etc) must be supervised at all time with diligence and care, in a manner that ensures that nothing can be added to your protest site without your immediate knowledge.

4. You must not use articles in connection with your demonstration that can conceal or contain other items.

5. You must maintain your site in a manner that allows any person present to tell at a glance that no suspicious items are present.

6. If members involved in your demonstration are to exceed 20 in total you must give six clear days notice to the operations officer at Charing Cross Police Station.

7. If requested by a police officer in uniform you must confirm whether persons present are part of your demonstration or not."

15. After representations by Mr Haw's solicitors in relation to these conditions, three of them were varied as follows:

"3. your property (including banners, placards etc) must be supervised at all time with diligence and care, in a manner that ensures that nothing can be added to your protest site without your immediate knowledge, or the immediate knowledge of a person nominated by you to care for your property whilst you are not able to do so.

4. You must not use articles in connection with your demonstration that would allow others to conceal items within them.

6. If the numbers involved in your demonstration are to exceed 20 in total you must, where reasonably practicable, give six clear days notice of this fact to the operations office at Charing Cross Police Station. When it is not reasonably practicable to give six clear days notice, then give notice as soon as it is, and in any event no less than twenty four hours before numbers are to increase to above twenty."

The proceedings

16. On 18 May 2006 a summons was issued against Mr Haw for breach of the conditions imposed under SOCA alleging that he knowingly failed to comply with the conditions contrary to s134(7)(a) in that he:

(a) organised the demonstration on a site which exceeded 3 metres in width, 3 metres in height and 1 metre in depth.

(b) failed to supervise the site of the demonstration and the property thereon at all times with diligence and care, in a manner that ensured that nothing could be added to the site without his immediate knowledge, or in the immediate knowledge of a person nominated by him to care for the property whilst he was unable to do so.

(c) used articles in connection with his demonstration that would allow others to conceal items within them

(d) failed to maintain his site in a manner that allowed any person present to tell at a glance whether or not suspicious items were present thereon.

The summons was supported by a witness statement of Paul Reilly claiming that Mr Haw was in breach of the width restriction condition 1, and of conditions 4 and 5 in that the area behind the display was covered in disused placards, boxes and sheeting. On 23 May 2006 police attended the site and removed a number of items on the ground that this was necessary to achieve compliance with the conditions.

17. The hearing took place before District Judge Purdy between 11 and 13 December 2006. Evidence for the prosecution was given by Superintendent Terry and Chief Inspector Robinson. Two video tapes were played to the judge and photographs of the site of Mr Haw's demonstration were placed before him. On 2 May 2007 he gave his decision. The summary of his conclusions and the questions that he stated for the decision of this court were as follows:

"3. In short I held that the power to delegate a statutory duty as in Carltona v Commissioner of Works [1943] 2 AER 560 did not apply holding that demonstrations in the 'vicinity of Parliament' cannot be delegated applying inter alia Lord Hailsham, LC, in R v Chief Constable of North Wales ex. P Evans [1982] 1 WLR 155 HL. Additionally R v Chief Constable of Greater Manchester ex. p. Lainton [2000] 1. R. C. 1324 per Laws LJ, at paragraph 28 'regard must be had to the public interest in seeing that the Chief Officer deals with matters of special substance' and R v Chief Constable of the West Midlands ex.p. Birmingham Justices [2002] EWHC 1087 (Admin).

4. In addition, upon the evidence …. I found that the conditions imposed, taken together, as they were intended to be applied in order to regulate a permanent demonstration, lacked clarity such as that they were not workable. I came to that conclusion following the evidence in cross examination of several police officers who had such varying opinions as to the meaning of the conditions that I felt driven to conclude it was therefore impossible to expect Brian Haw to keep within these conditions and held that they were not 'prescribed by law' per Article 11 of the Convention.

5. Questions

(1) Whether the statutory power available to 'the Commissioner of Police of the Metropolis' (per Section 133) to impose conditions on demonstrations, as set out in Section 134 of The Serious Organised Crime and Police Act 2005, can be delegated applying the principles in Carltona v Commissioners of Works [1943] 2 AER 560 or only as permitted by Sections 9A-9F of the Police Act 1996?

(2) Whether the conditions imposed on Brian Haw by letters dated 9^th and 15^th May 2006 were ultra vires section 134(3) of the Serious Organised Crime and Police Act 2005 and/or incompatible with Articles 10 and 11 of the European Convention on Human Rights as enshrined in Schedule 1 of the Human Rights Act 1998 as they lacked clarity so as not to be 'prescribed by law'?"

Can the Commissioner's powers be exercised by a subordinate?

18. After reviewing authority to which we shall refer the judge reached the following conclusion on this issue:

"The current state of the law on delegation seems to come down to assessing the 'statutory purpose' (supra) and 'the public interest in seeing that the Chief Officer deals with matters of special substance" (supra). Such considerations must come ahead of administrative concerns. These provisions deal not just with demonstrations but those directly related to Parliamentary protest something right at the heart of a democracy. Accordingly, applying those legal principles, I conclude that the Commissioner cannot delegate as he purported to do save within the powers available under The Police Act 1996 i.e. Deputy Commissioner or one of the five Assistant Commissioners. I hold that the submission of no case succeeds on this ground as Supt. Terry had no power to impose any conditions."

19. Mr Keith for the Crown did not challenge the test formulated by the judge. He submitted, however, that the judge failed properly to apply that test. Section 134 did not involve a decision whether to authorise or to refuse to authorise demonstrations. Authorisation was mandatory. The decision related simply to the imposition of appropriate conditions. These were pre-eminently matters that one would expect to be dealt with by subordinates. The judge was wrong to conclude that they were 'matters of special substance'. This was underlined by the fact that section 135(1) expressly provided that the senior police officer present might add to or vary the existing conditions.
20. The issue of law raised is not an easy one and, being aware that Mr Haw had not sought to be represented by a lawyer we asked the Attorney General to nominate an advocate to the court to assist us. In this role, Mr Clive Sheldon made his submissions at the first hearing. They were restricted to the first question.
21. Mr Haw initially took objection to Mr Sheldon's participaion, stating that he had not asked for the assistance of an advocate and did not wish to have his interests represented by a man whom he had not even met. We explained, however that Mr Sheldon was present at the request of the Court and was not representing Mr Haw. At the end of Mr Sheldon' submissions Mr Haw appeared grateful for them. He made no relevant submissions in relation to the first question himself. We also are grateful for the submissions of Mr Sheldon.
22. Mr Sheldon submitted that the answer to the first question in the case stated is that delegation is permitted only as provided by sections 9A-F of the Police Act 1996. Those sections, inserted in 1999, give the Commissioner of Police for the Metropolis power to delegate to the Deputy Commissioner of Police for the Metropolis and to an Assistant Commissioner of Police for the Metropolis.
23. The Judge placed some reliance on R (Chief Constable of the West Midlands) v Birmingham Justices. That decision applied the Carltona principle to the powers of a Chief Constable. Mr Sheldon submitted that this case was in conflict with other authority and was wrongly decided.
24. The Carltona principle was enunciated at page 563 of the report of that case:

"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."

25. The Carltona principle received consideration from both the Court of Appeal and the House of Lords in R v Secretary of State for Home Affairs, ex parte Oladehinde [1991] 1 AC 254. At issue in that case was whether the Home Secretary had validly authorised immigration officers to exercise his statutory powers in relation to the deportation of aliens who had not complied with the conditions under which they had been permitted to enter the country. The Divisional Court, Woolf LJ and Pill J, held that he had not. The Court of Appeal allowed the Home Secretary's appeal. Giving the judgment of the Court, Lord Donaldson MR made the following observations at p. 282:

"Woolf L.J. held, ante, pp 264H-265A, that the Carltona principle should be regarded 'as an implication which is read into a statute in the absence of any clear contrary indication by Parliament that the implication is not to apply.' In this we think that he must be mistaken, because it applies equally where the minister's powers are derived otherwise than from a statute: e.g. from prerogative powers. We think that the better view is that this is a common law constitutional power, but one which is capable of being negatived or confined by express statutory provisions, as has been achieved in sections 13(5), 14(3) and 15(4) of the Act by the use of the words 'and not by a person acting under his authority' or by clearly necessary implication. However, so far as implication is concerned, we would expect any challenge to be mounted upon the possibly broader basis that the decision to devolve authority was Wednesbury unreasonable with, if appropriate, a submission that it involved a contravention of the rules of natural justice or of fairness. Thus we have no doubt that the courts would strike down a decision to authorise a prison governor to deal, on behalf of the Secretary of State, with petitions by prisoners complaining of the conduct of that governor. We hasten to add that no such decision has ever been taken. Consistently with his approach, we think that the present decision needs to be reviews with the possibility of Wednesbury irrationality clearly in mind."

26. At p. 283 Lord Donaldson added this:

"It is certainly true that the Home Office and Home Office ministers have not used language which was as precise as it might have been. Thus both Mr Renton in his parliamentary answer in the House of Commons on 20 December 1988 and Mr. Mawer, the Principal Private Secretary to the Secretary of State, responding to a request for information from the Immigration Appeal Tribunal, spoke of "delegation" of powers, although it is quite clear that what they were describing was authority to act on behalf of the Secretary of State. This is something different from delegation. The Civil servant concerned acts not as the delegate, but as the alter ego of the Secretary of State. 'Devolution' might be a better word."

27. In the leading speech in the House of Lords, which dismissed an appeal against the decision of the Court of Appeal, Lord Griffiths added little about the Carltona principle, albeit that he adopted the terminology used by Lord Donaldson. Thus he said at p. 300:

"It is obvious that the Secretary of State cannot personally take every decision to deport an immigrant who is in breach of his condition of entry or who is an overstayer. The decision must be taken by a person of suitable seniority in the Home Office for whom the Home Secretary accepts responsibility. The devolution of responsibility was recognised as a practical necessity in the administration of government by the Court of Appeal in Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560 and has come to be known as the Carltona principle."

28. Lord Griffiths added at p. 303:

"It is well recognised that when a statute places a duty on a minister it may generally be exercised by a member of his department for whom he accepts responsibility: this is the Carltona principle. Parliament can of course limit the minister's power to devolve or delegate the decision and require him to exercise it in person."

29. It seems to us that there is scope for further refinement of the Carltona principle. There is a case for saying, as Lord Griffiths observed, that the devolution of a Minister's powers should be subject to a requirement that the seniority of the official exercising a power should be of an appropriate level having regard to the nature of the power in question. No such issue arises in the present case, however. What is in issue is whether the Carltona principle can be applied, not to a Minister, but to the Commissioner of Police for the Metropolis.
30. In R (Lainton) v Chief Constable of the Greater Manchester Police [2000] 1 Pol LR 67 regulations made pursuant to the Police Act 1996 provided that the probationary period of a police constable could be extended by the Chief Constable. An issue arose as to whether this power could be exercised by an Assistant Chief Constable, or whether it could only be exercised by the Chief Constable himself. The Court of Appeal held that this was a power that could validly be delegated to an Assistant Chief Constable. In the leading judgment Laws LJ said this at pp 71-2:

"At first instance, and in this court, both parties accepted the correctness of the following passage, taken from p366 of de Smith, Woolf & Jowell on Judicial Review of Administrative Actions [5^th ed, 1995]:

'Where the exercise of a discretionary power is entrusted to a named officer- e.g a chief officer of police, a medical officer of health or an inspector – another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally'

24. I, too, would accept this as a statement of the law as it currently stands; and as it seems to me broadly to march with what was said by Steyn LJ (as he then was) in Curtin [1994] Admin LR 657 at 666C-E:

'One must not elevate the idea of delectus personae which is sometimes called the presumption of deliberate selection to become an independent normative principle. It is a principle of statutory construction which will readily give way to indications of contrary intent, and here everybody knows, and the legislature must have known, that no all the individuals would necessarily be known to the majority of council members. In these circumstances, the presumption of deliberate selection must give way to a consideration of the practical realities of the exercise of a power to delegate.'

25. It is true that Lord Steyn there, in speaking of the idea or perception of delectus personae, was dealing with a concept somewhat narrower than a general power to delegate, but the reference to practical reality in broad terms supports what is said in de Smith, Woolf & Jowell. Of course, as I understand Mr Hunt to acknowledge, if the language of the provision in question in any particular case demonstrates that no delegation was intended by the legislator, that would be the end of the matter. Here, it is accepted that there can be delegation of the power to dispense with the services of a probationer constable under reg 15(1). That is the express effect of the decision in their Lordships' House in R v Chief Constable of North Wales Police e.p Evans [1982] 1 WLR 1125. I would refer to but not cite passages from the speech of Lord Hailsham at 1161F-G and Lord Bridge at 1165C-D. It is true to say that this decision of the House of Lords must be taken to have been in the mind of the legislator when the 1995 regulations were made."

31. In Lainton no mention was made of the Carltona principle. The possibility of delegation appears to have been based upon statutory implication. In the Birmingham Justices case the application of the Carltona principle to a Chief Constable received detailed consideration by Sedley LJ, sitting in the Divisional Court. The issue was the extent of the power of a Chief Constable to delegate his statutory function of making applications for anti-social behaviour orders. Sedley LJ expressed the following views:

"9. Although the Carltona case is frequently cited as a source of the 'alter ego' doctrine, it can be seen that Lord Greene's reasoning is not predicated on this. It is predicated on the proposition that the departmental head is responsible for things done under his authority. The relevance of the alter ego doctrine is that Crown servants were at that time taken in law to hold their positions by grace and not by contact, so that the minister was first among equals, not an employer with servants or a principal with agents. His implied power to delegate functions depended, therefore, on two things: the conferment of a power in terms which implicitly permitted their delegation and the existence of persons to whom he could delegate them without parting with ultimate responsibility.

10. A Chief Constable similarly is not the employer of the officers under his or her command but is legally answerable for them. The Carltona principle appears to apply readily in such a situation, with two well-established qualifications. One is that some functions are such that they cannot, consistently with the statutory purpose, be delegated at all: see R v Chief Constable of Greater Manchester, ex parte Lainton (C.A. 28 March 2000, unreported), paragraph 28. The other is that delegation has to be to somebody suitable. As Carltona demonstates, who is suitable is primarily for the office-holder to decide. Today, however, it is clear that an improper delegation will be a matter for the courts, at least where the discharge of a statutory office is in issue."

32. Sedley LJ then considered Nelms v Roe [1970] 1 WLR 4. In that case Lord Parker CJ adopted the route of implied delegated authority to hold valid the exercise of a statutory power to sign an information, conferred on the Metropolitan Police Commissioner, by a police inspector who had been authorised by a superintendent. The Court expressly declined to apply the Carltona principle to the Commissioner of the Metropolitan Police. As to this, Sedley LJ commented:

"With all possible respect, I do not consider that we are required to adopt this reasoning. As has been seen, the Carltona principle, which binds this court, does not depend upon on the peculiar status of civil servants as the alter ego of their minister. It is sufficiently ample to allow a Chief Constable to discharge functions of the kind we are concerned with through an officer for whom he or she is answerable. To fall back instead on implied delegation and sub-delegation is capable of appearing to be a ratification by the court of an accomplished fact and to beg the question of power to delegate."

33. As Lord Donaldson pointed out, the Carltona principle can apply to the exercise of prerogative powers that are not conferred by statute. Where powers are conferred on a Minister by statute, the Carltona principle will apply to those powers unless the statute, expressly or by implication, provides to the contrary. Where a statutory power is conferred on an officer who is himself the creature of statute, whether that officer has the power to delegate must depend upon the interpretation of the relevant statute or statutes. Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate. In such circumstances there will be a presumption, where additional statutory powers and duties are conferred, that there is a power to delegate unless the statute conferring them, expressly or by implication, provides to the contrary. Such a situation is, in practice, indistinguishable from one in which the Carltona principle applies. Thus whether Sedley LJ was correct as a matter of legal theory would seem to be of only academic significance.
34. Section 9A of the Police Act 1996 provides that the metropolitan police force shall be under the direction and control of the Commissioner of Police of the Metropolis. Section 9C makes provision for the powers and duties of the Commissioner of Police of the Metropolis to be performed, in specified circumstances, by the Deputy Commissioner of Police for the Metropolis. Section 9F provides that an Assistant Commissioner of Police may exercise any of the powers and duties of the Commissioner of Police for the Metropolis with the consent of the Commissioner. These general provisions permit delegation of the powers and duties of the Commissioner in circumstances where, having regard to the nature of those powers and duties, there would not be an implicit power to delegate. They do not, however, exclude the possibility of delegation to persons other than the Deputy or an Assistant Commissioner where, having regard to the nature of the powers and duties, a power to delegate is implicit. On the contrary, having regard to the statutory role of the Commissioner, one would expect Parliament, when conferring powers to be exercised by the Metropolitan Police, to confer them on the Commissioner and to leave him to delegate the exercise of those powers as appropriate.

Conclusions in relation to the first question

35. Whether to authorise a demonstration under section 134 is not discretionary; it is mandatory provided that the requisite notice has been given. The discretion conferred by that section is restricted to determining the conditions to be specified in the authorisation, which must be such as 'in the Commissioner's reasonable opinion' are necessary for the purpose of preventing the matters specified in the section. This sets the standard for any judicial review, a standard which, so it seems to us, equates to that of proportionality when considering the justification for restrictions on freedom of expression and freedom of assembly permitted by Articles 10 and 11 of the ECHR. The question remains as to whether the Commissioner must himself determine the conditions or whether this is something that he is entitled to delegate.
36. When the practicalities are considered it is plain that Parliament cannot have intended that the Commissioner should determine the conditions himself. Evidence was given to the judge that, at the time of the hearing, there were 1200 to 1300 demonstration applications in the vicinity of Charing Cross Station alone. Determining the appropriate conditions is a technical matter, depending on the precise location and nature of the demonstration that is planned. The Commissioner cannot have been intended himself to determine, for instance, the number and size of banners or placards to be used at each demonstration.
37. For these reasons we differ from the conclusion of District Judge Purdy that the subject matter of the conditions was such as to preclude delegation by the Commissioner of their determination.

Were the conditions ultra vires or incompatible with Articles 10 and 11 of the ECHR?

38. District Judge Purdy's findings in relation to this question were as follows:

"I have huge sympathy for Supt. Terry and clearly recall the ill concealed anguish with which he spoke of drafting and redrafting the conditions. Messrs Bindmans for Mr Brian Haw contributed to the process resulting in some amendments. Supt Terry's primary objective public safety concerns at an explosive device I find honest and reasonable. If conditions aimed at securing that aim, proportionate to a balance with the Defendant's right to protest, then that exercise, to my mind, cannot be fairly challenged. However, I fear he was struggling with describing the ever difficult elephant in the room resulting in conditions taken together which are not clear or workable. Mr MacDonald's cross examination of police witnesses was a master in demonstrating the absurdity of some conditions set against another. If Mr Keith, as Treasury Counsel, undoubtedly learned in the law, was forced to effectively abandon conditions 4 & 5 the Defence point is really made. Achieving clear unobjectionable conditions is not easy. When I invited, during submissions, Mr MacDonald to draft such conditions he visibly recoiled from the challenge. That does not, however, for the reasons just given detract from the fact these conditions as visited upon the Defendant, taken together lack clarity and cannot stand."

39. For these reasons the judge held that the conditions did not satisfy the requirements of the ECHR that they should be 'prescribed by law'.
40. Mr Haw had something to say in relation to this question. He submitted that his demonstration was directed against torture, murder and genocide. In these circumstances it was not reasonable to impose any conditions on the ambit of his demonstration. We do not accept that submission. The conditions were imposed, not with the object of frustrating or impeding Mr Haw's demonstration, but of ensuring that others could not use the demonstration as cover for terrorist activities. This was a perfectly reasonable and proportionate justification for imposing appropriate conditions.
41. Mr Haw did not limit his submissions to those that we have just considered. He had taken advantage of the first hearing to rail against a number of injustices that he claimed to have suffered, including the removal by the police of his property and physical violence that he claimed had been inflicted on him and his followers by the police. He returned to these themes on the renewed hearing. We attempted to explain to Mr Haw that these were not issues that arose on the case stated. The two issues that arose were issues on which he had been successful before the District Judge. As to this, Mr Haw replied that he had not had 'a proper trial' before the District Judge because the judge had ruled that there was no case to answer. After listening for at least half an hour to submissions that were irrelevant to the issues before us, despite repeated requests to Mr Haw to confine himself to relevant submissions, we directed him to bring his submissions to a close. He replied that the adjourned hearing had been listed for two hours, indicating that he intended to take full advantage of this. In these circumstances, after making sure that Miss Dobbin for the Crown did not wish to address further submissions, we left the court with Mr Haw still in full flood, reserving our judgment.
42. It is plain from the judgment that Mr MacDonald QC, who represented Mr Haw at the hearing before District Judge Purdy, had something of a field day when examining Superintendent Terry about the conditions. He succeeded in demonstrating to the satisfaction of the District Judge that the conditions were unworkable. If this was correct, the conditions were plainly neither reasonable nor did they satisfy the test of certainty that the Strasbourg Court requires when considering whether restrictions on Convention rights are 'according to law'.
43. Mr Keith sought to persuade us that he could successfully challenge the judge's conclusion in these proceedings, but failed to do so. The judge summarised the evidence given in relation to Mr Haw's demonstration in the course of his ruling, but it is not possible to found a submission that his conclusions were unreasonable on the basis of this summary. We are not in a position to differ from the conclusion of the judge who heard the evidence in relation to the second question in the case stated and, accordingly, must answer that question 'no'.
44. We would add this. The judge recorded that Mr Haw's solicitors had entered into discussions with Superintendent Terry in relation to the conditions, and that alterations were made in the light of these discussions. Mr Terry plainly attempted to accommodate Mr Haw's wishes, in so far as this could be done in a way that satisfied the needs of security. This cannot have been easy. The judge recorded:

"Conditions were imposed because, in the view of the police, Mr Brian Haw would not negotiate in any meaningful negotiations to meet their concerns. Supt. Terry said whenever I do speak to Brian Haw he stands and shouts at me".

45. The challenge made on behalf of Mr Haw to the practicality of the conditions imposed may mean that the police will be driven, in the interest of workability, to impose conditions on him that are simpler and more restrictive. Mr Haw has chosen for his demonstration a site that is particularly sensitive. He would be well advised to co-operate with the police in agreeing the conditions of such demonstration.
46. For the reasons that we have given the first question will be answered 'the power can be delegated' and the second question will be answered 'yes, by reason of lack of clarity'.