NICOL and SELVANAYAGAM v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza;Simon Brown
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. 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. 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) 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)). 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). 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). 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. 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. 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. ” 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.”