England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		30 November 2007

1. LORD JUSTICE THOMAS: There is before the court an appeal by way of case stated from the decision of District Judge Nicholas Evans, sitting at Westminster Magistrates' Court, on 22 February 2006.
2. When this case was called on for hearing today the appellant Mrs Barbara Tucker was not present. We adjourned the matter for a short while to see if she would be available. It is now over half-an-hour since the case was listed. This appellant knows this building. She appeared before us and made representations in a case earlier this week to deal with a completely different issue. There is no means of getting hold of her as she lists her address as the Peace Camp, Parliament Square and has provided no telephonic, e.mail or other means of communication.
3. We are dealing with this matter having had the very considerable benefit of help from the respondent, through Mr Hall of counsel, but without argument. For the reasons that will follow we propose to state our conclusions very briefly as this is not a case that has been argued and therefore cannot, apart from answering the questions posed by the magistrate, make any elucidation on the law if any were needed.
4. The appellant was charged that on 20 December 2005, within the jurisdiction of the Central Criminal Court, carried on unauthorised demonstration by herself in a public place in a designated area, namely Parliament Square. The judge set out the facts at paragraph 3:

"3 I found the following facts:

The appellant created a tastefully pink sequinned cloth banner bearing the words 'I am not the Serious Organised Criminal' and wore it when she came to Parliament Square on 19 December last. Just prior to setting off from home she e.mailed the Commissioner of the Metropolitan Police, at his e.mail address as advertised on his website, to tell him of her intention to demonstrate but had not received any reply. Unfortunately she did not bring a copy of that communication to court. On arrival at Parliament Square, for the first time, she met Mr Brian Haw. They spoke and found they had many shared views. The appellant decided to return to Parliament Square the next day. Overnight she added the words 'No permits' to her banner. She returned on 20 December and was standing on the pavement, wearing her banner, in front of Mr Haw's display of placards. She was approached by PC Ahmed and confirmed she did not have authorisation and would not stop demonstrating. She was given 15 minutes to reflect, with a warning that she would be arrested if she continued to remain; she did not move. She was approached again, after the 15 minutes, and it was suggested to her that if she took her banner off then the officers would not deal with her as an unauthorised demonstrator and she would not be arrested. She was given another 5 minutes. She declined to remove the banner or to stop demonstrating or to leave the designated area and so was arrested. Throughout the appellant behaved in a peaceful and orderly manner.

She told me, and Mr Brian Haw gave evidence on her behalf to like effect, that he had invited her to join him in his demonstration. Had I accepted this evidence (which I did not) it would have been argued that the allegation that she had 'carried on an unauthorised demonstration by herself ..... ' could not have been made out, and further more (in my view incorrectly) that it would provide a defence by saying that as Mr Haw is safe from prosecution anyone who joins him is also safe. I formed the view that the appellant's evidence on this point was not credible. She told me that her banner was not solely relevant to her wish to protest against the new law (requiring the obtaining of authorisation before demonstrating within the designated area) but also what she called her 'multi-dimensional' views relating, for example, to her opposition to what is happening in Iraq. I found her evidence on this topic disingenuous. I was satisfied she was there to demonstrate by herself in opposition to the provisions requiring prior authorisation in the new Act (ss 132-138 SOCPA 2005). The addition by her to her banner of the words 'No permits' the night before reinforced that view. She was carrying on an unauthorised demonstration by herself within the designated area."

5. The learned district judge heard arguments on matters arising out of the Human Rights Convention. After the conclusion of argument he found that the appellant was guilty of the offence charged. He fined her £100 with £100 costs and ordered that the banner she had been using in Parliament Square be forfeited. The questions he posed were:

"Was it lawful under section 6 (1) HRA to convict the appellant?

Or put another way

Is section 132 (1) (c) SOCPA compatible with Articles 10 and 11 ECHR, and, if not, can it be read and given effect, as required by section 3 HRA, in a way that is compatible with those articles?"

6. The issues that Mrs Tucker wished to raise were issues that this court has considered on two previous occasions. The first, and lengthier, occasion was in Blum and Others v Director of Public Prosecution [2006] EWHC 3209 Admin; and, much more briefly, Director of Public Prosecutions v Haw [2007] EWHC 1931 Admin Essentially the question relates to Sections 132, 133, 134 of the Serious Organised Crime and Police Act 2005 which deals with the obtaining of permission to conduct demonstrations in designated areas - for this purpose that includes Parliament Square - and the offence that is committed if permission is not obtained. There have been contentions raised in both those cases that the provisions of the Serious Organised Crime and Police Act should be read down in the light of Articles 10 and 11 of the European Convention on Human Rights.
7. In Blum this court came to the clear conclusion that the offence with which this appellant is charged was one that lay in circumstances where permission had not been obtained from the Commissioner. That is the identical point to the point that the appellant wishes to raise in this case. The court carefully considered the jurisprudence of the Strasbourg Court and reached the conclusion which I have summarised. In Haw the Lord Chief Justice, in giving the judgment of the court, observed:

"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. [I]n May 2006 the Court of Appeal ruled against this submission in R (Haw) v Secretary of State for the Home Department ..... 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 ..... "

8. It is right to point out that in Blum very experienced counsel, instructed on behalf of numerous persons including Liberty, made a concession in relation to the applicability of Articles 10 and 11 in relation to Section 132 and abandoned an argument that the section should be read down. That concession is not made in this case. However it seems to me - having carefully considered the matter, the submissions so far as they can be discerned that the appellant wishes to put forward and the assistance which this court has been given by Mr Hall to whom we are gratefully indebted - that concession was rightly made. I can see for my own part no reason for considering it to have been wrongly made.
9. Taking that view, as I do, and taking the view that the other points covered in the judgment in Blum are, in my respectful view, unarguably right, I can see in this court no basis for distinguishing the decision in Blum or for thinking the concession was wrongly made. Therefore this appeal must fail.
10. We can answer the question posed by the district judge by saying that he was right to reach the conclusion that he did.
11. MR JUSTICE GROSS: I agree.
12. MR HALL: I am instructed to apply for costs which would be costs of my preparation and attendance. The summary assessment of those would be four-and-a-half hours at £80 an hour for the preparation, that is £360, and £330 for today, making £690. I appreciate that it may be, in the event, difficult to obtain, but those are my instructions, and costs have been in incurred.
13. LORD JUSTICE THOMAS: We have no evidence at all about her previous history in relation to financial penalties.
14. MR HALL: A financial penalty was imposed of £100 for the offence and £100 costs.
15. LORD JUSTICE THOMAS: Has it been paid?
16. MR HALL: I do not know. Can I check?
17. LORD JUSTICE THOMAS: Courts should not make orders for costs in criminal cases unless there is some evidence of means of being able to pay. The last ting I want to do is to re-list this for that and have it back again. We are only throwing more costs away.
18. MR HALL: Yes. I can see that, but, on the other hand, litigation is not just a pleasure. It is something one should pay for if one incurs costs on the other side if you lose.
19. LORD JUSTICE THOMAS: One can only assume this that the learned stipendiary magistrate - or district judge in the Magistrates' Court - must have had some evidence as to her means when he made the assessment that she could pay £100 towards the costs before him and £100 fine. Therefore we could infer that she could stand an order for £200. I do not see how else we can - in accordance with our duty - deal with the matter.
20. MR HALL: Yes.
21. LORD JUSTICE THOMAS: So we will make an order for £200 on that basis.