NICOL and SELVANAYAGAM v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32213/96
by Laura NICOL and Diane SELVANAYAGAM
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 11 January 2001 as a Chamber composed of

MrG. Ress, President,
MrA. Pastor Ridruejo,
MrL. Caflisch,
MrJ. Makarczyk,
SirNicolas Bratza,
MrV. Butkevych,
MrJ. Hedigan, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 8 May 1996 and registered on 10 July 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are British citizens, born on 8 June 1976 and 28 January 1969 respectively and living in County Durham and Newcastle-upon-Tyne respectively. They are represented before the Court by Mr Kevin Kerrigan, a solicitor from the University of Northumbria Student Law Office.

A.The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants were both participants in an anti-fishing protest that took place on the morning of Saturday 28 May 1994. The applicants, along with five other protestors, attended a fishing competition taking place in Albert Park, a public park in Middlesborough. There were approximately thirty to forty anglers fishing around a lake. The intention of the applicants was to effect a "sabotage" of the angling match by preventing fish from being caught, or reducing the number of fish caught, and raising public awareness of cruelty to fish. The applicants approached some of the anglers and explained that they were not there to cause any damage or violence but that they intended to frighten fish away from the hooks to prevent the fish being caught. The applicants threw twigs in the water close to the hooks to disturb the surface of the water, whilst other protestors sounded horns to create noise in order to frighten the fish. The applicants contend that no violence or threats of violence against the persons or property of the anglers took place. The Government contend that the applicants threw sticks at the anglers’ lines, creating the risk of damage to property.

Police officers arrived at the scene and told the applicants to cease their behaviour. When the applicants refused they were arrested, along with two other protestors, for "breach of the peace". The arrests took place at 12.25 p.m. and the applicants were taken to Middlesborough police station arriving at 12.40 p.m.. Detention was authorised, the reason stated on the custody record being to, "allow a period of calming, and to determine method of processing". The applicants were charged between 4 p.m. and 4.15 p.m. of the same day with "Breach of the Peace".The charge read as follows:

"That you on Saturday 28 May 1994 at Middlesborough in the County of Cleveland in a certain place namely Albert Park, were guilty of conduct whereby a breach of the peace was likely to be occasioned.

Contrary to Common Law."

The applicants were then detained at the police station. This detention was justified on the following grounds:

"Bail denied to prevent the prisoner from disrupting the fishing event tomorrow, also one scheduled for June. To appear at the next available court, TMC [Teeside Magistrates' Court] AM 30.5.94.."

The applicants appeared before Teeside Magistrates' Court at 12 p.m. on 30 May 1994. The magistrates adjourned the case and the applicants were released.

The applicants appeared before the court on 26 September 1994 for a full hearing. The court found the charge of "breach of the peace" proved against the applicants and proposed to bind them over. The first applicant was invited to agree to be bound over in the sum of £100 to keep the peace and be of good behaviour for a period of 2 years. The second applicant was invited to agree to be bound over in the sum of £75 to keep the peace and be of good behaviour for a period of 2 years.

Both applicants refused to be bound over, stating they were not guilty of a breach of the peace. After two brief adjournments the magistrates committed the first applicant (then aged 18) to a Young Offender Institution for 21 days, under the provisions of section 9 of the Criminal Justice Act 1982. The second applicant was committed to prison for 21 days, under section 115 of the Magistrates' Courts Act 1980.

The applicants appealed against the decision of the court by way of case stated. In the stated case, the justices found that the conduct of the applicants would clearly have disrupted and interfered with the lawful activities of the anglers involved in the competition, that their conduct was intended to prevent that lawful conduct, and that the consequences of the applicants’ conduct would almost certainly have been a breach of the peace, as it was likely that some or all of the anglers would resort to forceful means of restraining the applicants, which in turn would have resulted in acts of violence. In the Divisional Court, on 10 November 1995, Lord Justice Simon Brown stated:

“… Before the court can properly find that the natural consequence of lawful conduct by a defendant would, if persisted in, be to provoke another to violence, it should, it seems to me, be satisfied that in all the circumstances it is the defendant who is acting unreasonably rather than the other person. ... Putting it another way, the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.”.

The appeal failed and leave to appeal to the House of Lords was refused.

B.Relevant domestic law and practice

1.Breach of the peace

(a) Definition

Breach of the peace – which does not constitute a criminal offence (R. v. County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670) – is a common-law concept of great antiquity. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981:

“A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated…” (p. 426)

He continued:

“We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427)

In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others:

“The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392)

An extract from the judgment of the Divisional Court in the present case, is included in the “circumstances of the case”, above.

(b) Arrest for breach of the peace

A person may be arrested without warrant by exercise of the common law power of arrest, for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace (Albert v Lavin [1982] Appeal Cases 546 at p. 565). This power was preserved by the Police and Criminal Evidence Act 1984 (sections 17(6) and 25(6)).

2.Binding over

Magistrates have powers to “bind over” under the Magistrates’ Courts Act 1980 (“the 1980 Act”), under common law and under the Justices of the Peace Act 1361 (“the 1361 Act”).

A binding-over order requires the person bound over to enter into a “recognizance”, or undertaking secured by a sum of money fixed by the court, to keep the peace or be of good behaviour for a specified period of time. If he or she refuses to consent to the order, the court may commit him or her to prison, for up to six months in the case of an order made under the 1980 Act or for an unlimited period in respect of orders made under the 1361 Act or common law. If an order is made but breached within the specified time period, the person bound over forfeits the sum of the recognizance. A binding-over order is not a criminal conviction (R. v. County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670).

(a) Binding over at common law and under the Justices of the Peace Act 1361

In addition to the statutory procedure under the 1980 Act described in the case of Steel and Others, magistrates have powers to bind over at common law and under the 1361 Act. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores. It is not open to the justices to attach specific conditions to a binding-over order (Ayu [1959] 43 Criminal Appeal Reports 31; Goodlad v. Chief Constable of South Yorkshire [1979] Criminal Law Review 51).

(b) Appeals

An order of the magistrates to require a person to enter into a recognizance to keep the peace or to be of good behaviour can be appealed either to the High Court or the Crown Court. An appeal to the High Court is limited to questions of law, and proceeds by way of “case stated”. An appeal to the Crown Court, under the Magistrates’ Courts (Appeals from Binding-Over Orders) Act 1956, section 1, proceeds as a rehearing of all issues of fact and law.

(c) The Law Commission’s Report on Binding Over

In response to a request by the Lord Chancellor to examine binding-over powers, the Law Commission (the statutory law reform body for England and Wales) published in February 1994 its report entitled “Binding Over”, in which it found that:

“We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour. These objections are, in summary, that the conduct which can be the ground for a binding-over order is too vaguely defined; that binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous; that orders which restrain a subject’s freedom can be made without the discharge of the criminal, or indeed any clearly defined, burden of proof; and that witnesses, complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them.” (Law Commission Report no. 222)

The Law Commission recommended abolition of the power to bind over.

3.Criminal Justice Act 1982

Section 9 of the Criminal Justice Act 1982 concerns the detention of persons aged 18 to 20 for default or contempt. A refusal to enter into a recognizance to keep the peace by a person ordered to do so by a Magistrates’ Court acting under the Magistrates Court Act 1980 s. 115 is a “kindred offence” for the purposes of this section, and accordingly a person aged 18 who refuses to enter a recognizance may properly be committed to custody under this section: Howley v Oxford, 81 Cr. App. R. 246, DC.

Section 9 provides as follows:

“9.(1)In any case where, but for section 1(1)above, a court would have power-

(a) to commit a person under 21 but not less than 18 years of age to prison for default in payment of a fine or any other sum of money; or

(b) to make an order fixing a term of imprisonment in the event of such a default by such a person to prison for contempt of court or any kindred offence,

the court shall have power, subject to section 1(5) above, to commit him to be detained under this section or, as the case may be, to make an order fixing a term of detention under this section in the event of default, for a term not exceeding the term of imprisonment. ”

4.Police and Criminal Evidence Act (PACE) 1984

The normal position under domestic law for persons charged with criminal offences is set out in section 38(1) of PACE. At the time of the applicants’ detention it provided as follows:

“Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall order his release from police detention, either on bail or without bail, unless

(a) if the person arrested is not an arrested juvenile-

(i) his name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address;

(ii) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection or to prevent him from causing physical injury to any other person or from causing loss of or damage to property; or

(iii) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail or that his detention is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence;

(b) if he is an arrested juvenile-

(i) any of the requirements of paragraph (a) above is satisfied; or

(ii) the custody officer has reasonable grounds for believing that he ought to be detained for his own interests.”

COMPLAINTS

The applicants complain about the detention authorised by the police between the 28 and 30 May 1994 and the 21 day detention ordered by the magistrates' court. The applicants complain that these periods of detention did not come within a Convention reason and were not in accordance with a procedure prescribed by law as required by Article 5 § 1. Further the applicants complain that, in breach of Article 5 § 5, they had no enforceable right to compensation for their alleged wrongful detention. 

The applicants allege that being bound over amounted to a restriction which was in violation of their freedoms under Articles 10 and 11 of the Convention, and that the restrictions imposed on them were neither prescribed by law nor necessary under Articles 10 or 11. 

The applicants further complain of a lack of an effective remedy, in breach of Article 13 of the Convention.

THE LAW

1.The applicants allege that their arrest and initial detention violated Article 5 § 1 of the Convention, which states, as relevant:

“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:

(a)  the lawful detention of a person after conviction by a competent court;

(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

…”

The Government submit that the applicants’ initial arrest and detention were in conformity with Article 5 § 1. In particular, they contend that the detention was compatible with Article 5 § 1(c) or, in the alternative, with Article 5 § 1(b). The applicants contend that the detention was a violation of Article 5 of the Convention; in particular, they claim that there was no reason to detain them for as long as they were detained: there was in fact no fishing competition on the following day, and so the reason given for detaining them was not valid. Even if the police were entitled to think that there was a fishing competition, it would have been over by 4 p.m. on the Sunday, and they should have released the applicants then. The applicants also contend that, if breach of the peace is considered to be an “offence”, then the provisions of ordinary domestic criminal law (in particular those relating to bail under the Police and Criminal Evidence Act 1984 (“PACE”)) should apply.

The Court recalls that in its Steel and Others v. the United Kingdom judgment (judgment of 23 September 1998, Reports of Judgments and Decisions, 1998-VII), it found that the initial arrest and detention of the first and second applicants - in circumstances where the national courts were satisfied that each applicant had caused or had been likely to cause a breach of the peace - was compatible with Article 5 § 1(c) of the Convention on the grounds that (i) the “criminal offence” of breach of the peace was involved (p. 2734, §§ 49, 50); (ii) the concept of breach of the peace complied with Convention requirements of lawfulness (p. 2735, §§ 54, 55); (iii) the police could reasonably fear that the applicants’ behaviour might provoke others to violence and there was no evidence to suggest that the deprivations of liberty were arbitrary (p. 2736, § 60). The Court found that each of those applicants (and the other three) was detained “for the purpose of bringing him or her before the competent legal authority on suspicion of having committed an ‘offence’ or because it was considered necessary to prevent the commission of an ‘offence’” (p. 2734, § 50).

The position is the same in the present case. Applying the same numbered points as above, (i) the applicants were accused of breaching the peace, which is to be classified as a criminal offence for Convention purposes. (ii) Breach of the peace is sufficiently well defined to comply with Convention requirements of lawfulness. The judgment in the present case confirmed the pre-existing law that provocative disorderly behaviour likely to have the natural consequence of causing violence constituted a breach of the peace, even if the violence would be to the person concerned. The specific test which was enunciated, whereby it was necessary to have regard to the lawfulness and reasonableness of all concerned in order to determine whether the person concerned had breached the peace, did not affect the general position. (iii) The police could reasonably fear that the applicants’ behaviour might provoke others to violence, and there was no evidence to suggest that the deprivations of liberty were arbitrary. In particular, with regard to the applicants’ suggestion that PACE should have applied, the Court notes that the argument gives rise to no contention that the detention was in breach of domestic law, and the fact that a specific provision of domestic law does not apply cannot of itself give rise to problems under the Convention. The initial detention was to prevent the applicants from committing an offence; as regards the period of detention after the fishing match on the following day - or throughout the period subsequent to the initial fishing competition if there was none on the second day - the applicants were clearly being detained for the purpose of bringing them before the competent legal authority on suspicion of having committed an “offence”.

It follows that the applicants’ initial arrest and detention were compatible with Article 5 § 1 (c) of the Convention, that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected within the meaning of Article 35 § 4.

2.The applicants also contend that the 21-day period of their subsequent detention was in violation of Article 5.

Again the Court recalls its Steel and Others v. the United Kingdom judgment. In that case, the Court found that the detention of the first and second applicants for refusing to agree to be bound over fell within the provisions of Article 5 § 1(b) of the Convention as (i) the applicants had been detained for non-compliance with the order of a court (p. 2738, § 69); (ii) the national law was defined with sufficient certainty, and the orders themselves were specific enough properly to be described as “lawful order[s] of a court” (p. 2739, § 76), and (iii) there was no evidence of a failure to comply with domestic law (p. 2740, § 77).

Again, the position is the same in the present case. (i) The applicants were detained for refusing to agree to be bound over; (ii) the national law was of the same certainty as that in Steel and Others, and (iii) there is no evidence of a failure to comply with domestic law.

It follows that the applicants’ detention after refusing to be bound over was compatible with Article 5 § 1 (b) of the Convention, that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected within the meaning of Article 35 § 4.

3.The applicants also allege a violation of Article 5 § 5 of the Convention, which provides as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court recalls that a finding of a violation of Article 5 § 5 of the Convention depends on a finding of a contravention of one of the other provisions of Article 5 (see, for example, the Steel and Others judgment, p. 2740, § 81). There has been no such contravention in the present case, and so Article 5 § 5 is not applicable.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and that it must be rejected pursuant to Article 35 § 4.

4.The applicants complained that the measures taken against them violated their right to freedom of expression under Article 10 of the Convention which provides as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 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.”

The Government submit that the arrest and detention were necessary for the prevention of disorder and/or for the protection of others and that likewise the detention following the applicants’ refusal to be bound over pursued a legitimate aim and was necessary and proportionate. In connection with necessity and proportionality, they contend that the applicants’ protest was not “peaceful”, and that the three weeks’ imprisonment was a permissible restriction on their freedom of expression.

The applicants seek to distinguish themselves from the applicants Ms Steel and Ms Lush, in the above-mentioned Steel and Others v. the United Kingdom case, on the basis that their conduct, unlike the actions of Ms Steel and Ms Lush who respectively walked in front of loaded weapons and lay beneath earth moving equipment, did not give rise to any immediate or serious risk of personal injury. Further the applicants contend that their situation is to be distinguished from the cases of Ms Steel and Ms Lush as they did not actively obstruct the lawful conduct of the anglers. The applicants submit that in all the circumstances it was disproportionate to detain them for 2 days pending the hearing in the Magistrates’ Court. The applicants further submit that the sentence of 21 days imposed by the magistrates’ court was a disproportionate response to the conduct of the applicants, particularly bearing in mind the peaceful nature of their protest activities. The applicants further allege that the Magistrates could have ordered them to be bound over without their consent and enforced the fine if the order was breached, rather than imposing a custodial sentence.

The Court considers that the protest of the applicants amounted to an expression of opinion within the meaning of Article 10 (see the Chorherr v. Austria judgment of 25 August 1993, Series A no. 266-B, p. 35, § 23). The measures taken against the applicants were, therefore, interferences with their right to freedom of expression. It is thus necessary to consider whether such interference satisfied the requirements of Article 10 § 2 of the Convention.

As to the requirement that the interference be “prescribed by law”, the Court recalls that it has already found in connection with Article 5 § 1 of the Convention that the two periods of detention of the applicants were “lawful” under domestic law.

The Court further finds that the measures taken satisfied the requirements of accessibility and foreseeability, in that the principles governing arrest and detention for breach of the peace were sufficiently certain and that it was reasonably foreseeable that the actions of the applicants would be likely to cause a breach of the peace.

The Court considers that the applicants’ arrests and initial detention pursued the legitimate aim of preventing disorder and protecting the rights of others. As regards the detention ordered by the magistrates, the Court considers that the binding over orders themselves pursued the aims of preventing disorder and protecting the rights of others and that the committal following refusal to comply with these orders was intended not only to deter future breaches of the peace, but also pursued the aim under Article 10 § 2 of maintaining the authority of the judiciary (see the above-mentioned Steel and Others judgment, p. 2742, §§ 96, 97).

As to whether the interference was “necessary in a democratic society”, the applicants allege that the periods of detention by the police and the 21 day detention ordered by the magistrates were a disproportionate response to their peaceful protest. The Government contend that the protest was not peaceful.

The Court refers again to its Steel and Others judgment (pp. 2743 - 2745; §§ 101-109). It recognises that arrest, detention and subsequent imprisonment for 21 days amounts to a serious interference with the exercise of the right to freedom of expression. It further takes into account that the first applicant was a minor at the time of the offence. However, having regard to the risk of disorder arising from the persistent obstruction by the applicants of the fishermen as they attempted to carry out a lawful pastime, the Court does not find the action of the police in arresting the applicants and removing them from the scene of the demonstration to have been disproportionate. Given the perceived risk of the applicants returning to cause similar protest to anglers over the remainder of the weekend, whether at the same contest or elsewhere, the Court does not consider that detaining the applicants over the weekend and bringing them before a Magistrates Court by midday on the Monday was disproportionate in all the circumstances.

The applicants were detained for a period of 21 days because they refused to comply with the binding over order. The Court considers that it is a legitimate inference that there was a real risk that they would, unless inhibited by a bind over, conduct themselves similarly in the future. In the High Court on the applicants’ appeal by way of case stated, Lord Justice Simon Brown commented:

“Given the justices’ findings as to the applicants’ essential concern and motivation in all this, and given the lengths to which they were prepared to go, even despite police warnings, it seems to me that the only rational inference to draw is that they would, unless inhibited by bind over, conduct themselves similarly in the future. At the very least there was a real risk of this.”

In these circumstances and given the risk of such protest provoking disorder or violence from others, the Court does not find that the order to be bound over for two years with recognizances of £100 for the first and £75 for the second applicant was disproportionate. Neither, taking into account the legitimate aim established above, does the Court consider that imprisonment for 21 days for failure to agree to such order was disproportionate.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

5.The applicants also allege violation of Article 11 of the Convention, which provides:

“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.”

The Court considers that the Article 11 claims in the present case are substantially co-terminous with the claims under Article 10. Those claims have been declared inadmissible, and the same reasoning applies to the Article 11 matters.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

6.The applicants also allege a violation of Article 13 of the Convention.

The Court recalls that Article 13 applies where an applicant has an “arguable claim” of a violation of a substantive right under the Convention. The Court has above found that the applicants’ substantive claims are manifestly ill-founded or incompatible with the provisions of the Convention.

It follows that the Article 13 complaints too are inadmissible, and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Vincent BergerGeorg Ress
RegistrarPresident

 

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