FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39013/02
by Caroline LUCAS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 18 March 2003 as a Chamber composed of
MrM. Pellonpää, President,
SirNicolas Bratza,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 29 October 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Caroline Lucas, is a United Kingdom national, who was born in 1960 and lives in London. She is represented before the Court by Mr J. Welch, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 February 2001, the applicant participated in a demonstration at the Faslane naval base in Scotland against the decision of the British Government to retain the Trident nuclear submarine. The applicant and a number of other protesters sat in the public road leading to the naval base. The police told the group to move and warned them that if they failed to do so, they would be committing a breach of the peace. The applicant was then warned personally by two police constables that she would be arrested if she did not move from the road. The applicant refused to move and was arrested for committing a breach of the peace. She was detained for about four hours in a police van and was then taken to a police station and charged with the offence of breach of the peace.
On 26 November 2001, the applicant was tried and convicted in the District Court of committing a breach of the peace and was fined 150 pounds sterling (GBP). According to the definition of the offence of breach of the peace in Smith v. Donnelly (2001 Scottish Law Times 1007), the prosecution were required to show that the applicant’s conduct would be genuinely alarming and disturbing to any reasonable person. There was some disagreement as to whether there had been cars attempting to enter the naval base at the time when the applicant and others were sitting in the road. The applicant and one of the policemen who arrested her stated that they did not see any cars waiting to enter the base while the other policeman and a witness gave evidence that there were a number of vehicles waiting and unable to enter the base. It was undisputed that there had been a peaceful atmosphere at the demonstration and no violence or threat of violence.
The Justice of the Peace of the District Court considered that the applicant’s actions caused traffic to be disrupted, that her actions were intended to cause such disruption and that she failed to desist when requested. He noted that the applicant was warned twice by the police. The Justice of the Peace went on to find that the applicant’s conduct in being part of a large protest intending to block the public road would be alarming or seriously disturbing to any reasonable person in the particular circumstances. He stated that the applicant’s conduct in disrupting traffic could reasonably have been expected to cause any person who observed it, including car drivers, to be alarmed, upset or annoyed and provoke a disturbance. The Justice of the Peace reasoned that the issue of whether the applicant’s behaviour was disorderly could not be considered in isolation but should be considered in the context of the charge as a whole.
The applicant applied to the High Court for leave to appeal against the conviction of 26 November 2001. On 12 February 2002, a single judge of the High Court refused leave to appeal and informed the applicant of this by letter dated 21 February 2002. The grounds for refusal were that the actions of the applicant in actually obstructing traffic and failing to cease to do so when requested by the police, were sufficient to entitle the court to find a breach of the peace. On 2 May 2002, the full High Court refused the renewed application for leave to appeal on the same grounds as the single judge and this decision was communicated to the applicant by letter dated 9 May 2002.
B. Relevant domestic law
Scottish criminal law is largely based on common law, including the offence of breach of the peace which is therefore not defined in any legislation. The definition of the offence of breach of the peace has in practice been given a wide and flexible interpretation. In general, the offence covers all behaviour which causes or is likely to cause fear, alarm, upset or annoyance. In the case of Montgomery v. McLeod (1977), it was stated:
“There is no limit to the kind of conduct which may give rise to a charge of breach of the peace. All that is required is that there must be some conduct such as to excite the reasonable apprehension to which we have drawn attention, or such as to create disturbance and alarm to the lieges in fact.” (liege meaning citizen)
In Young v. Heatley (1959), the High Court recognised the breadth of the definition that has been given to breach of the peace in Scottish law:
“Breach of the peace, however, is an offence the limits of which have never been sharply defined. It is so largely in each case a question of circumstances and of degree.”
The definition of the offence was most recently discussed in Smith v. Donnelly (2001) Scottish Law Times 1007. The High Court stated that:
“... what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community ...”
It considered that something substantially greater than mere irritation is involved and that a reasonable apprehension of disturbance to the public peace is required. It went on to conclude that:
“What is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person.”
The court pointed out that where there was no evidence of actual alarm, the conduct of the defendant must be “flagrant” in order to justify a conviction. It quoted from the earlier case of Young v. Heatly (1959) Scottish Law Times 250, in which the judge stated that:
“I consider that a very special case requires to be made out by the prosecution if a conviction for breach of the peace is to follow in the absence of such evidence of alarm or annoyance. For then the nature of the conduct giving rise to the offence must be so flagrant as to entitle the Court to draw the necessary inference from the conduct itself.”
It stated that a refusal to co-operate with police, even if forcefully stated, “is not likely to be sufficient in itself to justify a conviction”. It also considered whether the offence of breach of the peace was sufficiently well-defined in Scottish law to fulfil the requirement of certainty in Article 7 of the Convention and found that the essential constituents of the offence were capable of being ascertained.
In other cases where there was no evidence of actual alarm, Scottish courts have found a breach of the peace if the conduct was likely to lead to a disturbance (Wilson v. Brown (1982) Scottish Law Times 361), the acts were calculated to cause alarm or annoyance (Raffaeli v. Heatly (1949) Scottish Law Times 284), the conduct was such as to excite reasonable apprehension that mischief might ensue (McDougall v. Dochree (1992) Scottish Law Times 624) or that there was a reasonable expectation of fear and alarm (Grogan v. Heywood (1999) Scottish Criminal Case Reports 705). In all of these cases, the courts emphasised that there was a genuine likelihood of alarm, distress or violence.
The penalty for the offence of breach of the peace is dependent on the court which hears the case. The maximum penalty is life imprisonment following a conviction or indictment in the High Court. According to statistics from 1998, the majority (76%) of persons convicted of breach of the peace by a Justice of the Peace in the District Court received a fine.
Under Scottish common law, the police have the power to arrest an individual for causing a breach of the peace or where it is reasonably apprehended that he/she is likely to cause a breach of the peace.
COMPLAINTS
The applicant complains under Article 5 of the Convention that her detention by the police on 12 February 2001 was unlawful. The applicant alleges that the evidence offered by the prosecution did not establish that she was guilty of the offence of breach of the peace and that the Justice of the Peace was not entitled to find that her conduct would have been genuinely alarming and disturbing to a reasonable person as required by domestic law. The applicant claims, inter alia, that there was no evidence of actual alarm and that her conduct was not “flagrant” as required by the dictum of the High Court in Smith v. Donnelly ((2001) Scottish Law Reports 1007).
Further the applicant complains under Articles 10 and 11 of the Convention that since her arrest and detention were not in accordance with domestic law, the interference with her rights under Articles 10 and 11 was not justified under the terms of those provisions since it was not prescribed by law. Alternatively, the applicant complains under Articles 10 and 11 that none of the justifications in the second paragraphs of these provisions were applicable to her arrest, detention and conviction which constituted an interference with her rights. In addition, the applicant claims that even if one of the justifications applied, the interference was not necessary in a democratic society and was not proportional.
THE LAW
A. Article 5 § 1 of the Convention
The applicant complains that her detention on 12 February 2001 was unlawful since her conduct did not fall within the definition of the offence of breach of the peace established in Smith v. Donnelly ((2001) Scottish Law Reports 1007).
Article 5 § 1(c) of the Convention provides that:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;” ...
In Steel and Others v. the United Kingdom (judgment of 23 September 1998, Reports 1998-VII), the Court found a violation of Article 5 where three applicants were distributing leaflets and holding a banner outside a conference centre and were arrested and detained on the grounds that their behaviour constituted a breach of the peace. The Court considered that the detention fell within Article 5 § 1(c) and held that three requirements must be met in order for the arrests and detention to be “lawful” and “in accordance with a procedure prescribed by law” (at § 54):
(i) the applicable national law must meet the standard of “lawfulness” set by the Convention, which requires that all law be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (according, inter alia, to S.W. v the United Kingdom, judgment of 22 November 1995, Series A no. 335-B, pp. 41-42, §§ 35-36);
(ii) there must be full compliance with the procedural and substantive rules of national law;
(iii) the deprivation of liberty must be consistent with the purpose of Article 5 and not arbitrary (according to Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, pp. 752-53, § 40).
It should be noted that in Steel it was English and not Scottish law which was at issue. The Court found that the legal rules relevant to the offence of breach of the peace provided sufficient guidance and were formulated with the necessary degree of precision. However, the Court went on to find that the arrest and detention of three of the applicants constituted a violation of Article 5 § 1 since it did not comply with English law. The Court held that the applicants had not taken any action, the natural consequence of which would be to provoke others to violence, as required under domestic law and that there was nothing in their behaviour which could have justified the police in fearing that a breach of the peace was likely to be caused.
In the present case, Scottish law stipulated that a breach of the peace would be committed if the conduct involved presented as “genuinely alarming and disturbing, in its context, to any reasonable person”. It falls for the Court to determine firstly whether this definition is sufficiently precise to allow the citizen to foresee the consequences that a given action may entail. The Court notes that in previous cases it has found that a standard of “reasonable foreseeability” is sufficient (Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A, no. 30, p. 31, § 49) and that the development of criminal offences at common law did not disclose a violation of Article 7 as long as any interpretation remained within the bounds of reasonable foreseeability (the aforementioned judgment in S.W. v. the United Kingdom at § 36, and C.R. v. the United Kingdom, judgment of 22 November 1995, Series A no. 335-C, § 34). In the case of Hashman and Harrup v. the United Kingdom (judgment of 25 November 1999, ECHR 1999-VII), the Court found that an order which bound over the applicants to keep the peace and not to behave contra bonos mores violated the requirement in Article 10 that interference with freedom of expression be “prescribed by law”. The Court held that the concept of behaviour contra bonos mores (behaviour which is “wrong rather than right in the judgment of the majority of contemporary fellow citizens”) did not have a sufficiently objective element and was not precise enough to allow the applicants to know what behaviour was prohibited (at §§ 38-40).
The Court considers however that the definition of the offence of breach of the peace as stipulated in Smith v. Donnelly ((2001) Scottish Law Reports 1007) is sufficiently precise to provide reasonable foreseeability of the actions which may fall within the remit of the offence. The concept of breach of the peace has been clarified by the Scottish courts recently and in Smith v. Donnelly, the High Court, in formulating its definition, had regard to the requirement of certainty in the Convention. The Court notes that, in distinction to the concept of behaviour contra bonos mores, the test set down in Scottish law has the objective standard of the reasonable person. In Larissis and Others v. Greece (judgment of 24 February 1998, Reports 1998-I, p. 377, § 34) the Court stated that considering the need to avoid excessive rigidity and to keep pace with changing circumstances, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and considered that this in itself does not disclose a violation of the certainty required by the Convention (in relation to Article 7). With this in mind, the Court finds that the current definition is formulated with the degree of precision required by the Convention and it provides sufficient guidance to individuals as to the consequences of their actions.
Secondly, the Court must consider whether the detention of the applicant complied with national law. The Court recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since failure to comply with domestic law entails a breach of Article 5 § 1, the Court can and should exercise a certain power of review in this regard (according to the above-mentioned Steel and Benham judgments).
The applicant claims that her conduct could not fall within the definition of conduct which is “genuinely alarming and disturbing” to any reasonable person. The Court notes that, after a thorough examination of the facts and applicable law, the national courts found that the elements of the offence of breach of the peace had been made out in the applicant’s case. The Court sees no reason to doubt the assessment of the national courts that the applicant’s actions in sitting in a public road could be alarming or disturbing to a reasonable person. The applicant’s conduct either did or could have caused disruption to traffic on the road and could have posed a threat to the safety of the protesters and other road users. The Court further notes that the conduct of the applicant was significantly more serious than that in Steel and Others v. the United Kingdom, in which the applicants were handing out leaflets and holding a banner. Therefore, the Court finds that the applicant’s arrest and detention by the police was not unlawful according to the relevant domestic law.
Finally, the Court considers that the detention was consistent with the purpose of Article 5 and was not arbitrary. The applicant was warned twice before being arrested and was detained for approximately four hours before being charged and released which is not a disproportionately long period.
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Articles 10 and Article 11 of the Convention
The applicant complains that since her arrest and detention were unlawful under domestic law, there were also violations of Articles 10 and 11 since the interference with those rights was not “prescribed by law”.
Alternatively, the applicant complains that her detention and conviction for breach of the peace constitutes interference with her rights under Articles 10 and 11. She submits that this interference does not fall within any of the exceptions listed in the second paragraph of Articles 10 and 11 and that the interference was not necessary in a democratic society.
Article 10 of the Convention provides that:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11 of the Convention states that:
“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, of the police or of the administration of the State.”
Turning first to Article 10, the Court has previously held that protests can constitute expressions of opinion within the meaning of Article 10 and that the arrest and detention of protesters can constitute interference with the right to freedom of expression (see the above-mentioned Steel and Others v. the United Kingdom, § 92, and also Chorherr v. Austria, judgment of 25 August 1993, Series A, no. 266-B, p. 35, § 23). In order for interference to be justified under Article 10, it must:
(i) be prescribed by law;
(ii) pursue one of the legitimate aims listed in the second paragraph of that provision;
(iii) be necessary in a democratic society, that is, proportionate to the aim pursued.
The Court has found above, in relation to the complaint under Article 5, that the arrest and detention of the applicant were in accordance with domestic law and were therefore “prescribed by law”. Following from this, the Court also considers that the conviction of the applicant for the offence of breach of the peace was in accordance with national law. Contrary to the submissions of the applicant, the Court considers that the arrest, detention and conviction of the applicant may be regarded as pursuing the interests of public safety and/or for the prevention of disorder and therefore, that the interference with her rights pursued one or more of the aims listed in Article 10 § 2. Finally, the Court finds that the actions of the police in arresting and detaining and of the national court in convicting the applicant were proportionate to the legitimate aim pursued in view of the dangers posed by the applicant’s conduct in sitting in a public road and the interest in maintaining public order as well as the relatively minor penalty that was imposed.
Therefore, the Court concludes that any interference with the applicant’s rights under Article 10 was justified under the terms of that provision.
As regards the applicant’s complaints that her arrest, detention and conviction constituted an unjustified interference with her rights under Article 11, the Court considers that the demonstration in which the applicant participated falls within the terms of Article 11 since the organisers and participants intended to hold a peaceful assembly (see, for example, G. v. Federal Republic of Germany, no. 13079/87, Commission decision of 6 March 1989, Decisions and Reports 60, p. 256). While the arrest, detention and conviction of the applicant constituted interference with her right to freedom of assembly (ibid), the Court finds that the interference must be regarded as justified under the terms of Article 11 § 2. The same criteria for justification as listed above in the case of Article 10 also apply to Article 11 and the same conclusions apply in the present case.
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy