CASE OF STEEL AND OTHERS v. THE UNITED KINGDOM
Not necessary to examine Art. 5-3;Not necessary to examine Art. 6-2;Not necessary to examine Art. 6-3-b;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 11;Not necessary to examine Art. 13;No violation of Art. 5-1 (first applicant);No violation of Art. 5-1 (second applicant);Violation of Art. 5-1 (third, fourth and fifth applicant);No violation of Art. 5-1 (first and second applicant);No violation of Art. 5-5;No violation of Art. 6-3-a;No violation of Art. 10 (first applicant);No violation of Art. 10 (second applicant);Violation of Art. 10 (third, fourth and fifth applicants);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
John Freeland;N. Valticos;Simon Brown
6. The first applicant, Ms Helen Steel, was born in 1965 and lives in London. 7. On 22 August 1992, together with approximately sixty others, she took part in a protest against a grouse shoot on Wheeldale Moor, Yorkshire. During the morning, the protesters attempted to obstruct and distract those taking part in the shoot. At midday the shooting party broke for lunch and did not recommence until approximately 1.45 p.m., when the police arrived and an officer began warning the protesters, through a public address system, to stop their behaviour. The protesters ignored this request and the police made a total of thirteen arrests. 8. Ms Steel was arrested by a police officer at approximately 2 p.m. for “breach of the peace” (see paragraphs 25–29 below). According to the police she was intentionally impeding the progress of a member of the shoot by walking in front of him as he lifted his shotgun to take aim, thus preventing him from firing. 9. She was taken to a police vehicle where she was detained until about 3.15 p.m., when she was transferred to a prison van. At approximately 7.15 p.m. she was taken to Whitby police station. Upon review, her continued detention there was authorised at 11 p.m. “to prevent any further breach of the peace” and subsequently, at 6.25 a.m. on 23 August, “in order to place her before the court later [that] morning”. In total she was detained for approximately forty-four hours. 10. At 12.56 a.m. on 23 August 1992 she was cautioned and charged. The charge-sheet stated: “That you did on Saturday 22 August 1992 at Wheeldale Beck in the Parish of Sefton behaved [sic] in a manner whereby a breach of the peace was occasioned. The complaint of PC 676 Dougall of North Yorkshire Police who applies for an order requiring that you enter into a recognizance with or without sureties to keep the peace. Pursuant to section 115 of the Magistrates’ Courts Act 1980 [“the 1980 Act” – see paragraphs 32–33 below].” At 9.40 a.m. on 24 August 1992, she was further charged with using “threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress”, contrary to section 5 of the Public Order Act 1986 (“the 1986 Act” – see paragraph 30 below). 11. She attended court on the morning of 24 August 1992 and was released on conditional bail, the condition being that she was not to attend any game shoot in North Yorkshire during the period of remand. 12. Ms Steel’s trial took place before the Whitby Magistrates’ Court between 15 and 20 February 1993. She was acquitted on the section 5 charge relating to the morning of 22 August 1992, and convicted on the section 5 charge relating to the afternoon of the same day. The magistrates found the complaint regarding the alleged breach of the peace proved but did not specify what behaviour of the applicant justified this conclusion or whether the complaint related to the morning or the afternoon. 13. Ms Steel appealed. Her appeal was heard by way of rehearing on 1 December 1993 by the Teesside Crown Court, which upheld the magistrates’ findings, imposed a fine of 70 pounds sterling (GBP) for the section 5 offence, and, in respect of the breach of the peace, ordered the applicant to agree to be bound over for twelve months in the sum of GBP 100 (see paragraph 31 below). Ms Steel refused to be bound over, and was committed to prison for twenty-eight days. 14. The second applicant, Ms Rebecca Lush, was born in 1973 and lives in Warsash, Hampshire. 15. On 15 September 1993, she took part in a protest against the building of an extension to the M11 motorway in Wanstead, London. During the course of that day a group of twenty to twenty-five protesters repeatedly broke into a construction site, where they climbed into trees which were to be felled and onto some of the stationary machinery. On each occasion they were removed by security guards. The protesters did not offer any resistance and there were no incidents of violence or damage to machinery. 16. Ms Lush was arrested at approximately 4.15 p.m. while standing under the “bucket” of a “JCB” digger, for conduct “likely to provoke a disturbance of the peace”. She was taken to Ilford police station where she was charged at 5.30 p.m. The charge-sheet states: “Arrested as a person whose conduct on 15 September 1993 at Cambridge Park, Wanstead, was likely to provoke a disturbance of the peace to be brought before a Justice of the Peace or Magistrate to be dealt with according to law.” She was kept in custody until 9.40 a.m. the following day (approximately seventeen hours’ detention), on the grounds that if released she would cause a further breach of the peace. 17. She appeared before Redbridge Magistrates’ Court on the morning of 16 September 1993 to answer an allegation that she had engaged in conduct likely to provoke a disturbance of the peace. The proceedings were adjourned and she was released. 18. The proceedings resumed on 14 December 1993, when the allegation of conduct likely to cause a breach of the peace, brought under section 115 of the 1980 Act, was found to have been made out. Ms Lush was ordered to agree to be bound over for twelve months to keep the peace and be of good behaviour in the sum of GBP 100. She refused to be bound over and was committed to prison for seven days. 19. On 23 December 1993 Ms Lush requested the magistrates to state a case to the High Court (see paragraph 36 below). The magistrates replied on 24 December that under section 114 of the 1980 Act they would require a recognizance of GBP 500 that the applicant would prosecute the appeal without delay, submit to judgment and pay any costs ordered by the High Court. After correspondence between Ms Lush’s representatives and the clerk of the court concerning the applicant’s means, the magistrates agreed to reduce the recognizance to GBP 400. However, Ms Lush was unable to continue with the appeal since her application for legal aid was refused. 20. Ms Andrea Needham, born in 1965, Mr David Polden, born in 1940, and Mr Christopher Cole, born in 1963, all live in London. 21. On 20 January 1994, at approximately 8 a.m., they attended the Queen Elizabeth Conference Centre in Westminster, London, where the “Fighter Helicopter II” Conference was being held, in order to protest with three others against the sale of fighter helicopters. The protest took the form of handing out leaflets and holding up banners saying: “Work for Peace and not War.” 22. At approximately 8.25 a.m. the three applicants were arrested by police officers. Ms Needham was holding a banner and Mr Polden and Mr Cole were distributing leaflets. All three applicants were taken to Charing Cross police station where the custody record for each states the “circumstances” (the word “charges” having been deleted) as: “Breach of the peace, common law. On 20 January 1994 at Queen Elizabeth Conference Centre, Victoria Street, London SW1, constituted or was likely to provoke a disturbance of the peace to be brought before a Justice of the Peace to be dealt with according to law. Contrary to common law.” 23. At approximately 10.40 a.m. the applicants were taken to Bow Street Magistrates’ Court where they were detained in a cell. They were brought before the magistrates at 3.45 p.m., having been detained for approximately seven hours. The magistrates adjourned the matters due to lack of time and the applicants were released. 24. On 25 February 1994, when the proceedings were resumed, the prosecution decided not to call any evidence and the magistrates dismissed the case against the applicants. 25. Breach of the peace – which does not constitute a criminal offence (R. v. County Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 260) – is a common-law concept dating back to the tenth century. 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) 26. In October 1981, in a differently constituted Court of Appeal giving judgment in R. v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board ([1982] Queen’s Bench Reports 458), which concerned a protest against the construction of a nuclear power station, Lord Denning, Master of the Rolls, defined “breach of the peace” more broadly, as follows: “There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace.” (p. 471) 27. 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, rather than ex parte Central Electricity Generating Board, 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) 28. In another case before the Divisional Court, Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] Justice of the Peace Reports 155), Lord Justice Simon Brown stated: “… 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.” (p. 163) 29. 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 565). This power was preserved by the Police and Criminal Evidence Act 1984 (sections 17(6) and 25(6)). 30. Section 5 of the Public Order Act 1986 (“the 1986 Act”) creates the offence of threatening, abusive, insulting or disorderly conduct likely to harass, alarm or distress others. It is triable before magistrates and punishable by fine. It is a defence to a charge under section 5 for the accused to show that the behaviour in question was reasonable in the circumstances. 31. 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. London Quarter Sessions, ex parte Metropolitan Police Commissioner [1940] 1 King’s Bench Reports 670). 32. Section 115 of the 1980 Act provides: “(1) The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint. (…) (3) If any person ordered by a magistrates’ court under subsection (1) above to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour fails to comply with the order, the court may commit him to custody for a period not exceeding 6 months or until he sooner complies with the order.” 33. The procedure under section 115 of the 1980 Act is begun by laying a formal complaint, usually by a police officer. Before the magistrates can make an order they must be satisfied, on the basis of admissible evidence, that (1) the defendant’s conduct caused a breach of the peace or was likely to cause one (R. v. Morpeth Ward Justices, ex parte Ward [1992] 95 Criminal Appeal Reports 215); and (2) unless the order is made, there is a real risk that the defendant will cause a further breach of the peace in the future. 34. Although a binding-over order is not a criminal conviction, these proceedings have been described as analogous to criminal proceedings. In the past it was unclear whether the court should apply the criminal or the civil standard of proof when deciding whether facts exist which warrant a binding-over order at the conclusion of the proceedings. However, in Nicol and Selvanayagam v. DPP (cited above), Lord Justice Simon Brown stated: “It is common ground that, although no criminal conviction results from finding such a complaint proved, the criminal standard of proof applies to the procedure.” 35. In addition to the above statutory procedure, 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 (for example, a witness, acquitted defendant or a defendant who has not yet been acquitted or convicted), 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 (“conduct which has the property of being wrong rather than right in the judgment of the vast majority of contemporary fellow citizens” (per Lord Justice Glidewell in Hughes v. Holley [1988] 86 Criminal Appeal Reports 130). 36. 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”. Before stating a case, the magistrates may, under section 114 of the 1980 Act, require the appellant to enter into a recognizance to pursue the appeal and to pay costs. 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. 37. 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, § 6.27) The Law Commission therefore recommended abolition of the power to bind over. 38. Under section 108 of the Courts and Legal Services Act 1990, a civil action, for example for false imprisonment, may lie against a magistrate in respect of any act or omission in the purported execution of his or her duty only if it can be proved that he or she acted both in bad faith and in excess of jurisdiction.