Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 24838/94

Helen Steel, Rebecca Lush, Andrea Needham,

David Polden & Christopher Cole

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 9 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-60) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-31). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 32-60). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 61-189). . . . . . . . . . . . . . . . . . . . 11

A. Complaints declared admissible

(para. 61). . . . . . . . . . . . . . . . . . . . 11

B. Points at issue

(para. 62). . . . . . . . . . . . . . . . . . . . 11

C. As regards Article 6 para. 2 of the Convention:

the first applicant

(paras. 63-72). . . . . . . . . . . . . . . . . . 12

CONCLUSION

(para. 72). . . . . . . . . . . . . . . . . . . . 13

D. As regards Article 6 para. 3 (a) and (b) of the

Convention: the first and second applicants

(paras. 73-87). . . . . . . . . . . . . . . . . . 13

CONCLUSION

(para. 87). . . . . . . . . . . . . . . . . . . . 15

E. As regards Article 6 para. 3 (c) and Article 6 para. 1

of the Convention: the second applicant

(paras. 88-97). . . . . . . . . . . . . . . . . . 15

CONCLUSION

(para. 97). . . . . . . . . . . . . . . . . . . . 16

TABLE OF CONTENTS

Page

F. As regards Article 5 para. 1 of the Convention:

the initial detention of all applicants

(paras. 98-107) . . . . . . . . . . . . . . . . . 16

CONCLUSION

(para. 107) . . . . . . . . . . . . . . . . . . . 18

G. As regards Article 5 para. 1 of the Convention:

the later detention of the first and second applicants

(paras. 108-120). . . . . . . . . . . . . . . . . 18

CONCLUSION

(para. 120) . . . . . . . . . . . . . . . . . . . 20

H. As regards Article 5 para. 3 of the Convention:

all applicants

(paras. 121-126). . . . . . . . . . . . . . . . . 20

CONCLUSION

(para. 126) . . . . . . . . . . . . . . . . . . . 21

I. As regards Article 5 para. 5 of the Convention:

the initial detention of all applicants

(paras. 127-131). . . . . . . . . . . . . . . . . 21

CONCLUSION

(para. 131) . . . . . . . . . . . . . . . . . . . 21

J. As regards Article 5 para. 5 of the Convention:

the second detention of the first and second applicants

(paras. 132-135). . . . . . . . . . . . . . . . . 21

CONCLUSION

(para. 135) . . . . . . . . . . . . . . . . . . . 22

K. As regards Article 10 of the Convention:

the first and second applicants

(paras. 136-163). . . . . . . . . . . . . . . . . 22

CONCLUSION

(para. 163) . . . . . . . . . . . . . . . . . . . 27

L. As regards Article 10 of the Convention:

the third, fourth and fifth applicants

(paras. 164-171). . . . . . . . . . . . . . . . . 27

CONCLUSION

(para. 171) . . . . . . . . . . . . . . . . . . . 28

M. As regards Article 11 of the Convention:

all applicants

(paras. 172-173). . . . . . . . . . . . . . . . . 28

CONCLUSION

(para. 173) . . . . . . . . . . . . . . . . . . . 28

TABLE OF CONTENTS

Page

N. As regards Article 13 of the Convention:

the first and second applicants

(paras. 174-177). . . . . . . . . . . . . . . . . 28

CONCLUSION

(para. 177) . . . . . . . . . . . . . . . . . . . 29

O. Recapitulation

(paras. 178-189). . . . . . . . . . . . . . . . . 29

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 30

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicants are British citizens, resident in England. The

first applicant was born in 1965 and resides in London. The second

applicant was born in 1973 and resides in Warsash, Hampshire. The

third, fourth and fifth applicants were born in 1965, 1940 and 1963

respectively and all reside in London. They were represented before

the Commission by Mr. Philip Leach of Liberty, London.

3. The application is directed against the United Kingdom. The

respondent Government were represented by their agent,

Ms. Susan Dickson of the Foreign and Commonwealth Office, London.

4. The case concerns the applicants' detention for breach of the

peace and, in the case of the first and second applicants, their

subsequent detention after refusing to agree to be "bound over". The

applicants invoke Articles 5, 6, 10, 11 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 31 May 1994 and registered on

8 August 1994.

6. On 11 January 1995 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 9 May 1995, after

an extension of the time-limit fixed for this purpose. The applicants

replied on 11 August 1995 after two extensions of the time-limit. On

24 October 1995, the Commission (First Chamber) granted the applicants

legal aid for the representation of their case.

8. On 26 June 1996 the Commission declared the application

admissible in so far as it related to the first to fifth applicants and

inadmissible in so far as it related to the sixth applicant.

9. The text of the Commission's decision on admissibility was sent

to the parties on 9 July 1996. They were invited to submit such further

information or observations on the merits as they wished and also to

submit further information in respect of one aspect of the case The

Government submitted their observations on 27 September 1996 and the

applicants submitted theirs on 30 September 1996.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

12. The text of this Report was adopted on 9 April 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

The first applicant

16. On 22 August 1992 the first applicant took part in a protest

against a grouse shoot. The shoot, which commenced at about 9.30 a.m.,

was attended by approximately 60 protestors. During the morning

session, the protestors shouted at those taking part in the shoot and

attempted to obstruct and distract those carrying guns. At midday the

shooting party broke for lunch and did not recommence until the police

arrived at approximately 1.45 p.m.

17. When the police arrived, an officer used a public address system

to warn protestors to stop their behaviour. The protestors continued

to engage in the same activities and consequently the police made a

total of 13 arrests.

18. The first applicant was arrested by a police officer at

approximately 2 p.m. 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

taking shots. She was taken to a police vehicle where she was

detained until about 3.15 p.m. At 3.15 p.m. she was transferred to a

"prison van" and was subsequently taken to the police station at

approximately 7.15 p.m.

19. The Police Custody record gives "breach of the peace" as the

reason for the applicant's arrest and states that her detention was

authorised, "to prevent any further breach of the peace". The record

states that she was charged at 12.56 a.m. on 23 August 1992 with breach

of the peace pursuant to Section 115 of the Magistrates Court Act 1980.

The charge stated: "That you did on Saturday 22 August 1992 at

Wheeldale Beck in the parish of Egton behave in a manner whereby a

breach of the peace was occasioned".

20. At 9.40 a.m. on 24 August 1992 the applicant 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 (1) of the Public Order Act 1986.

She attended court the same morning and was released on conditional

bail (after approximately 44 hours detention), the condition being that

she was not to attend any game shoot in North Yorkshire during the

period of remand.

21. The first applicant'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 whether the complaint related

to the behaviour in the morning or the afternoon.

22. On 1 December 1993 the Teeside Crown Court heard the first

applicant's appeal, by way of rehearing. As a result of this appeal,

she was fined £70.00 for the Section 5 offence, and ordered to agree

to be bound over for 12 months in the sum of £100.00 in respect of the

breach of the peace. She refused to be bound over, and was committed

to prison for 28 days.

The second applicant

23. On 15 September 1993 the second applicant took part in a protest

against the building of a new motorway, the M11, in London. During the

course of that day a group of approximately 20 to 25 protestors entered

onto a construction site in Wanstead, London E11. The protestors

climbed into trees which were to be felled and also onto some of the

stationery machinery. The second applicant stood in front of a "JCB"

digger, underneath the "bucket" of the vehicle, in order to prevent the

driver from working. The protestors were removed by security guards.

None of the protestors offered any resistance to such removal and there

were no incidences of violence.

24. At approximately 4.15 p.m. on 15 September 1993, the second

applicant was arrested by a police officer 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 was that her

"conduct on 15 September 1993 at Cambridge Park, Wanstead, was likely

to provoke a disturbance of the peace ...". She was kept in custody

until 9.40 a.m. the following day, because of a belief that she would

cause a further breach of the peace if released.

25. She appeared before Redbridge Magistrates' Court on the morning

of 16 September 1993 (after approximately 17 hours detention), to

answer an allegation that she had engaged in conduct likely to provoke

a disturbance of the peace. The proceedings were adjourned to

14 December 1993 and the second applicant was released.

26. On 14 December 1993 the allegation of conduct likely to cause a

breach of the peace, brought under Section 115 of the Magistrates Court

Act 1980, was found to have been made out. The second applicant was

ordered to agree to be bound over for twelve months to keep the peace

and be of good behaviour in the sum of £100. She refused to be bound

over and was committed to prison for seven days. The second applicant

was represented at this hearing by a barrister acting pro bono.

27. On 23 December 1993 the second applicant applied to the

magistrates for them to state a case to the High Court. They replied

on 24 December that under Section 114 of the Magistrates' Courts Act

1980 they would require a recognizance of £500.00 that the applicant

would prosecute an appeal without delay and an agreement that the

second applicant would submit to judgment and pay any costs ordered by

the High Court. After correspondence between Liberty on behalf of the

second applicant and the clerk to the court, in which it was pointed

out that the second applicant was in receipt of income support (of

£34.80 per week), the magistrates agreed to reduce the recognizance to

£400.00. The magistrates agreed that the application to state a case

could remain pending whilst the second applicant applied for legal aid.

Legal aid was refused on 11 January 1994 and the second applicant's

appeal to the Area Committee was heard on 16 March 1994 and dismissed

on 19 March 1994. The appeal was dismissed for the following reasons:

"having regard to the fact that you rejected opportunities

to appeal that were available to you at the time and which

would have avoided your imprisonment. The Committee were

also in doubt as to the extent of the likely ultimate

benefit to you which you can achieve by way of case

stated."

The third, fourth and fifth applicants

28. On 20 January 1994 at approximately 8 a.m. the third, fourth and

fifth applicants attended the Queen Elizabeth Conference Centre in

Westminster, London where the "Fighter Helicopter II" Conference was

being held. They were protesting 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".

29. At approximately 8.25 a.m. these three applicants were arrested

by police officers. The third applicant was holding a banner and the

fourth and fifth applicants were distributing leaflets. All three

applicants were taken to Charing Cross Police Station where the custody

record for each of the applicants records the "circumstances" (the word

"charges" having been deleted) as:

"Breach of the peace, common law.

On 20 January 1994 at ... 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."

30. At approximately 10.40 a.m. the third, fourth and fifth

applicants were taken to Bow Street Magistrates' Court where they were

detained in a cell. At approximately 3.45 p.m. the three applicants

were brought before the magistrates who adjourned matters due to lack

of time until 25 February 1994. The applicants were then released from

custody. They had been detained for approximately seven hours.

31. On 25 February 1994, no evidence was called and the proceedings

against the third, fourth and fifth applicants were withdrawn.

B. Relevant domestic law

BREACH OF THE PEACE

32. Breach of the peace is a common law concept of great antiquity.

It was recently defined by the High Court in R v. Howell [1982] 1 QB

416 at 427. A breach of the peace was held to occur:

"... 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."

33. Subsequent to the domestic proceedings in the present application

there has been a further definition by the domestic courts of "breach

of the peace". In Nicol and Selvanayagam v. Director of Public

Prosecutions (1996) JP 155, at p. 163 (see No. 32213/96, pending before

the Commission) Simon Brown LJ stated:

34. "... the court would surely not find a Section 115 [of the

Magistrates' Courts Act 1980] complaint [i.e. 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."

35. 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] AC 546 at p. 565). The Police and

Criminal Evidence Act 1984 (Sections 17 (6) and 25 (6)) preserved the

common law powers to arrest for breach of the peace.

BINDING OVER ORDERS

36. A binding over order may be imposed by a magistrates' court on

any person appearing before it. Magistrates have power to "bind over"

under the Magistrates Courts Act 1980, under common law and under the

Justices of the Peace Act 1361.

Binding over under the Magistrates Courts Act 1980

37. Section 115 of the Magistrates Courts Act 1980 ("the 1980 Act")

creates a statutory procedure whereby a person may be brought to a

magistrates' court, when the only objective of the complainant is to

have the respondent bound over.

Section 115

"(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 in 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."

38. Under this statutory procedure, the magistrates cannot make a

binding over order until the hearing is concluded and they are

satisfied that the respondent should be bound over.

39. For a person to be bound over to keep the peace, it is not

necessary for the court to find that a breach of the peace has actually

occurred but only that the conduct complained of was likely to cause

a breach of the peace (R. v. Morpeth Ward Justices, ex parte Ward

(1992) 95 Cr App Rep 215).

40. The magistrates must be satisfied both that the defendant's past

conduct gave rise to a situation whereby the peace was or was likely

to be breached and also that, unless bound over, there is a real risk

of his similarly conducting himself in the future. 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 (R. v. Aubrey Fletcher, ex parte

Thompson [1969] 1 WLR 872 and Percy v. DPP - unreported

6 December 1994).

41. The statutory procedure is begun by complaint, as are all civil

proceedings initiated in the magistrates' court. Nevertheless the

proceedings have been described as analogous to criminal proceedings.

It has traditionally been 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 the above noted case of Nicol and Selvanayagam

v. DPP (1996) JP 155, Simon Brown, L. J. 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."

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

42. In addition to the above statutory procedure magistrates have

powers to bind over at common law and under the Justices of the Peace

Act 1361 ("the 1361 Act").

43. Justices of the Peace Act 1361

"First, that in every County of England shall be assigned

for the Keeping of the Peace, one Lord, and with him three

or four of the most worthy in the County, with some learned

in the Law, and they shall have Power to ...

... and to take and arrest all those that they may find by

Indictment, or by Suspicion, and to put them in Prison: and

to take of all them that be [not] of good Fame, where they

shall be found, sufficient surety and Mainprise of their

good Behaviour towards the King and his People ..."

44. Under these powers no offence need be proved. At any stage in

proceedings before magistrates any of the participants in the

proceedings (defendant/complainant/witness) may be bound over, if the

magistrates consider that the person's conduct is such that there might

be a breach of the peace in the future, or that his behaviour was

contra bonos mores (contrary to a good way of life).

45. When a court makes a binding over order under common law or the

1361 Act, there is no requirement that the facts, on which the court

relies as justification of its decision, should be proved by admissible

evidence.

46. The powers derived from common law and the 1361 Act may be

exercised before the conclusion of criminal proceedings or during

proceedings started by complaint (including during proceedings for

statutory breach of the peace). Likewise under these powers a

defendant may be bound over for the duration of an adjournment, after

withdrawal of a case against him by the prosecution who offer no

evidence, and upon acquittal.

The nature of a binding over order

47. An order binding a person over to keep the peace and/or to be of

good behaviour, requires that person to enter into a "recognizance" (an

undertaking or bond secured by a sum of money fixed by the court), to

keep the peace and/or to be of good behaviour for a specified period.

If he does not consent to enter into a recognisance then the court may

commit him to prison forthwith. However if he agrees to enter into the

recognizance, but subsequently, during the specified period, behaves

in a way so as to breach the order, he forfeits the sum of the

recognizance, or a lesser sum at the magistrates' discretion.

48. If the binding over order is made pursuant to Section 115 of the

1980 Act, then refusal to accept such order can result in up to

six months imprisonment or until the person concerned "sooner complies

with the order". However, in respect of failure to comply with other

binding over orders, there is no limit to the term of imprisonment.

Contra bones mores

49. A person whose behaviour has been "contra bones mores" can also

be bound over to be of good behaviour where there is reason to believe

there might be a repetition of the conduct complained of. "Contra

bones mores" was defined by Glidewell LJ in Hughes v. Holley (1988) 86

Cr App R 130 as:

"conduct which has the property of being wrong rather than

right in the judgment of the vast majority of contemporary

fellow citizens".

Appeals

50. An order of the magistrates to require a person to enter into a

recognizance to keep the peace and/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 Magistrates' Court Act 1980, 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.

JUDICIAL IMMUNITY

51. The Justices of the Peace Act 1979 ("the 1979 Act") - as amended

by the Courts and Legal Services Act 1990 ("the 1990 Act") - provides

under Section 44 (as amended by Section 108 (2) of the 1990 Act), that

no action shall lie against any magistrate in respect of any act or

omission in the execution of his duty which fell within his

jurisdiction. Section 45 of the 1979 Act (as amended by Section 108 (3)

of the 1990 Act), states that an action shall lie against a magistrate

in respect of any act or omission in purported execution of his duty

which is not within his jurisdiction, but only if it is proved he acted

in bad faith.

LEGAL AID

52. The "Green Form" scheme provides two hours' worth of help from

a solicitor, and can include preparation for a court case, but does not

provide for representation. An extension of the costs limit can be

granted by the Legal Aid Board. Assistance by way of Representation

("ABWOR") enables the court, in limited circumstances, to appoint a

solicitor, who happens to be within the court precincts, to represent

a party who would not otherwise be represented. The appointment may

be made either of the court's own motion or on application by a

solicitor. The court is under no obligation to advise a party of the

possibility of an appointment.

53. Where proceedings are brought under Section 115 of the

Magistrates' Courts Act 1980, criminal legal aid is available.

54. There is a right of appeal to the Crown Court against an order

requiring a person to enter into a recognizance to keep the peace or

to be of good behaviour: see Magistrates Courts (appeals from Binding

Over Orders) Act 1956, Section 1 (1). The Crown Court is always

competent to grant representation in respect of proceedings before it:

Legal Aid Act 1988, Section 20 (2). If there is instead an appeal by

way of case stated to the High Court, that court too has power to grant

legal aid, although (since that court is a civil court) the relevant

provisions are to be found in Part IV of the 1988 Act which deals with

civil legal aid.

RELEVANT CRIMINAL OFFENCES

55. 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 is 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.

THE 1994 REPORT OF THE LAW COMMISSION

56. In response to a request by the Lord Chancellor to examine

binding over powers, the Law Commission published, in February 1994,

its report entitled "Binding Over" ("the Report"). The Report concluded

that various substantive and procedural aspects of binding over were

objectionable in principle and that the areas in which the power was

of practical utility had largely been brought within the scope of

substantive criminal law, inter alia by Section 5 of the 1986 Act. The

Report recommended abolition of the power to bind over.

57. The Law Commission was concerned at the lack of certainty

associated with binding over (Report, paras. 4.16 - 4.34, 4.38). In

relation to the grounds for making an order, the Law Commission felt

that the breadth of operation of the concept of "apprehended" breach

of the peace and the vagueness of the contra bonos mores conception of

"good behaviour," fell short of the standards of certainty required by

natural justice. Orders based on those concepts, requiring a person

to "keep the peace" or to "be of good behaviour", gave insufficient

indication to the person bound over as to the conduct to be avoided in

order to be safe from entreatment. It was observed that these matters

create particular difficulty for participants in protest activity.

58. The Law Commission examined the compatibility of present law and

practice with the Convention (Report, Part V). Given the "civil"

classification of binding over, it saw difficulty in regarding arrest

and detention, with a view to production of a person before the

magistrates for binding over, as "bringing him before the competent

legal authority on reasonable suspicion of having committed an offence"

within Article 5 para. 1 (c), a problem compounded in the case of

"apprehended" breach of the peace where no actual unlawful conduct is

alleged to have occurred. The Law Commission doubted whether

imprisonment for refusal to be bound over could be regarded as non-

compliance with an "obligation prescribed by law" within Article 5

para. 1 (b), given the generality of the obligation, common to all

members of society, to keep the peace or be of good behaviour.

59. The Law Commission felt that an arrest or binding over order made

on the basis of breach of the peace might, and an order made on contra

bonos mores grounds would, infringe the principle of certainty as

stated in, for example, Eur. Court HR, Sunday Times v. the United

Kingdom judgment of 26 April 1979, Series A no. 30, and thus fail to

meet the various requirements of "lawfulness" found in Article 5

para. 1 (b) and (c). It was similarly concerned that insofar as such

measures were invoked against participants in protest activity or

expression of unpopular views, the consequent interference with rights

of freedom of expression or association might fail to meet the

"prescribed by law" requirement of paragraph 2 of Articles 10 and 11.

60. On the procedural side, the Law Commission found that the binding

over jurisdiction under common law or the 1361 Act had "an inherent

potential for unfairness" (Report, para. 4.49). In the light of the

penal characteristics of binding over, the Law Commission thought it

"unwise to assume" that binding over proceedings would not be regarded

as criminal in the context of Article 6 and questioned whether the

procedure following binding over under common law or the 1361 Act,

particularly where invoked against an acquitted defendant or a witness,

afforded "adequate time and facilities" as required by Article 6

para. 3 (b) (Report, paras. 5.16 - 5.18).

61. The Law Commission's views were summarised as follows (Report,

para. 6.27):

"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."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

62. The Commission has declared admissible the complaints of the

first to fifth applicants regarding their detention for breach of the

peace and, and in the case of the first and second applicants, their

complaints concerning their subsequent detention after refusing to

agree to orders to be "bound over".

B. Points at issue

63. The issues to be determined in the present case are:

- whether in relation to the first applicant there has been

a breach of Article 6 para. 2 (Art. 6-2) of the Convention;

- whether in relation to the first and second applicants

there has been a breach of Article 6 para. 3 (a) (Art. 6-3-a)

or (b) (Art. 6-3-b) of the Convention;

- whether in relation to the second applicant there has been

a breach of Article 6 para. 3 (c) (Art. 6-3-c) and Article 6

para. 1 (Art. 6-1) of the Convention;

- whether the arrests and initial detention of all applicants

for alleged breach of the peace constituted a violation of

Article 5 para. 1 (Art. 5-1) of the Convention;

- whether the second detention of the first and second

applicants for refusing to agree to be bound over constituted a

violation of Article 5 para. 1 (Art. 5-1) of the Convention;

- whether the arrests and initial detention of all the

applicants constituted a violation of Article 5 para. 3

(Art. 5-3) of the Convention;

- whether there has been a violation of Article 5 para. 5

(Art. 5-5) of the Convention in respect of all of the applicants'

lack of an enforceable right to compensation with regard to their

initial arrests and detention;

- whether there has been a violation of Article 5 para. 5

(Art. 5-5) of the Convention in respect of the first and second

applicants' lack of an enforceable right to compensation with

regard to their second detention after their refusal to agree to

be bound over;

- whether there has been a breach of Article 10 (Art. 10)

vention in respect of all of the applicants;

- whether there has been a violation of Article 11 (Art. 11)

vention in respect of all of the applicants, and

- whether there has been a violation of Article 13 (Ar. 13)

of the Convention in respect of all of the applicants.

C. As regards Article 6 para. 2 (Art. 6-2) of the Convention:

the first applicant

64. Article 6 para. 2 (Art. 6-2) of the Convention provides as

follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

65. The first applicant claims that proceedings for breach of the

peace do not have to be proven beyond reasonable doubt and that this

offends against the presumption of innocence under Article 6 para. 2

(Art. 6-2) of the Convention.

66. The Commission must first ascertain whether a "criminal offence"

covers proceedings in which an allegation of breaching the peace is

made.

67. The Commission recalls that the notion of "criminal offence" is

an autonomous concept (Eur. Court HR, Engel v. the Netherlands judgment

of 23 November 1976, Series A no. 22, p. 34, para. 81). In order to

determine whether an offence qualifies as "criminal" for the purposes

of the Convention, it is first necessary to ascertain whether or not

the provision defining the offence belongs, in the legal system of the

respondent State, to criminal law; next the "very nature of the

offence" and the degree of severity of the penalty risked must be

considered (see Eur. Court HR, Schmautzer v. Austria judgment of

23 October 1995, Series A no. 328, p. 13, para. 27, see also the

above-mentioned Engel v. the Netherlands judgment, p. 35, para. 82).

The Commission notes that under the domestic legal system, breach of

the peace is not a criminal offence and binding over is a civil

procedure. However, as the European Court of Human Rights has held:

"[T]here generally come within the ambit of the criminal

law offences that make their perpetrator liable to

penalties intended, inter alia, to be deterrent and usually

consisting of fines and of measures depriving the person of

his liberty... [The rule at issue] prescribes conduct of a

certain kind and makes the resultant requirement subject to

a sanction that is punitive... the general character of the

rule and the purpose of the penalty, being both deterrent

and punitive, suffice to show that the offence was, in

terms of Article 6 (Art. 6) of the Convention, criminal in

nature" (Eur. Court HR, Öztürk v. Germany judgment of

21 February 1994, Series A no. 73, p. 20, para. 53)."

68. The proceedings brought against the first applicant for breaching

the peace also display these characteristics: their deterrent nature

is apparent from the way in which a person can be arrested for breach

of the peace and subsequently bound over "to keep the peace or be of

good behaviour", in which case no penalty will be enforced, and the

punitive element derives from the fact that if a person does not agree

to be bound over, he will be imprisoned (under the Section 115

procedure) for a period of up to 6 months.

69. In these circumstances, the Commission considers the charge of

breach of the peace to be a criminal offence and binding over

proceedings to be "criminal" in nature, for the purposes of Article 6

(Art. 6) of the Convention.

70. The applicant was thus entitled to the rights set out in

Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention.

71. The Commission notes that it is not clear whether, in domestic

law, the courts should apply the criminal standard of "beyond

reasonable doubt" or the civil one of "balance of probabilities", when

deciding whether facts exist which warrant a binding over order under

Section 115 of the 1980 Act. Article 6 para. 2 (Art. 6-2) of the

Convention does not, however, lay down any specific rights in relation

to the standard or burden of proof (see, as to burden of proof, Eur.

Court HR, Salabiaku v. France judgment of 7 October 1988, Series A

no. 141-A, pp. 14-18, paras. 26-30, and No. 15023/89, H v. the United

Kingdom, Dec. 4.4.90).

72. In the absence of any indication that the courts presumed the

first applicant guilty rather than innocent, the Commission finds no

indication of a violation of Article 6 para. 2 (Art. 6-2) of the

Convention.

CONCLUSION

73. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 2 (Art. 6-2) of the Convention as regards

the first applicant.

D. As regards Article 6 para. 3 (a) and (b) (Art. 6-3-a, 6-3-b) of

the Convention:

the first and second applicants

74. Article 6 (Art. 6) of the Convention provides, so far as

relevant:

"1. In the determination of ... any criminal charge

against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law. ...

3. Everyone charged with a criminal offence shall have

the following minimum rights:

a. to be informed promptly, in a language which he

understands and in detail of the nature and cause of the

accusation against him;

b. to have adequate time and facilities for the

preparation of his defence."

75. In their original application form, the applicants also made

reference to Article 6 para. 3 (d) and (e) (Art. 6-3-d, 6-3-e) of the

Convention. The applicants have made no allegations of fact in

connection with these provisions, and the Commission will not consider

them further.

The first applicant

76. The first applicant, on the assumption that breach of the peace

is a criminal charge, complains under Article 6 (Art. 6) of the

Convention. She alleges that the vague nature of the charges against

her, in particular the failure to specify whether her behaviour

amounting to a breach of the peace occurred in the morning or afternoon

of 22 August 1992, was in violation of Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention. She further complains under Article 6

para. 3 (b) (Art. 6-3-b) of the Convention, claiming that she was

unable to prepare a defence without knowing what aspect of her

behaviour was being complained about.

77. The Government submit that, as breach of the peace is not a

criminal offence and binding over proceedings are civil in nature,

Article 6 para. 3 (Art. 6-3) of the Convention is not applicable.

78. The Commission refers to its reasoning above in paras. 65 to 69,

where it concludes that breach of the peace is a criminal offence and

binding over proceedings are criminal in nature, for the purposes of

Article 6 (Art. 6) of the Convention, such that Article 6 para. 3

(Art. 6-3) is applicable.

79. The Commission recalls that in the Brozicek case, the European

Court of Human Rights found that the requirements of Article 6

para. 3 (a) (Art. 6-3-a) as to the content of a judicial notification

were met where the accused was informed of the offence with which he

was charged, the place and date thereof and the relevant statute (Eur.

Court HR, Brozicek v. Italy judgment of 19 December 1989, Series A

no. 167, p. 18, para. 42).

80. The first applicant was charged with breach of the peace soon

after midnight in the night of 22 to 23 August 1992. She was informed

at the same time of the charge, which included details of the date and

place of the alleged breach. Even if she was not given any details of

the charge before that point, the applicant was therefore aware, within

a period of just over 10 hours from her arrest, of the "nature and

cause of the accusation" against her.

81. As to the complaint that she was not informed whether her

behaviour amounting to a breach of the peace occurred in the morning

or afternoon, the Commission considers that under Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention, the information the applicant received

in the charge sheet was sufficient to comply with the requirements of

the provision. The Commission does not accept that the magistrates'

failure to specify whether the breach of the peace occurred in the

morning or the afternoon can affect the "time and facilities for the

preparation" the applicant's defence within the meaning of Article 6

para. 3 (b) (Art. 6-3-b) of the Convention.

82. The first applicant was therefore informed promptly of the nature

and cause of the accusation against her, and it has not been

established that she did not have adequate time and facilities for the

preparation of her defence.

The second applicant

83. The second applicant, too, complains that the vague nature of the

charges against her, which made no reference to specific acts, amounted

to a breach of Article 6 para. 3 (a) (Art. 6-3-a) of the Convention.

84. The Government repeat their comments made in relation to the

first applicant.

85. The Commission refers to its reasoning set out above in respect

of the first applicant (paras. 65 to 69) and for the same reasons

considers that the proceedings against the second applicant also

determined a "criminal charge" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, such that Article 6 para. 3 (a)

(Art. 6-3-a) applies.

86. The second applicant was informed of the reason for her arrest -

that is, "conduct likely to provoke a disturbance of the peace" - at

the time of the arrest. In the circumstances of the applicant's

arrest, this information was probably sufficient to satisfy the

requirements of Article 6 para. 3 (a) (Art. 6-3-a) of the Convention.

In any event, she was formally charged with a breach of the peace at

5.30 p.m. on the day of her arrest, and that charge included details

of the date and place of the alleged breach of the peace.

87. The second applicant was therefore informed promptly of the

nature and cause of the allegation against her.

CONCLUSION

88. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 3 (a) or (b) (Art. 6-3-a, 6-3-b) of the

Convention as regards the first and second applicants.

E. As regards Article 6 para. 3 (c) (Art. 6-3-c) and Article 6

para. 1 (Art. 6-1) of the Convention: the second applicant

89. Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides as

follows:

"Everyone charged with a criminal offence shall have the

following minimum rights:

...

c. to defend himself in person or through legal assistance

of his own choosing or, if he has not sufficient means to

pay for legal assistance, to be given it free when the

interests of justice so require;"

90. The second applicant alleges a violation of Article 6 para. 3 (c)

(Art. 6-3-c), stating that the denial of legal aid for her appeal and

the demand that she enter into a recognizance to pursue an appeal,

denied her access to appeal.

91. The Government state that legal aid was, as a matter of domestic

law, available and the question of whether legal aid should in fact be

granted in a given case, was within their margin of appreciation.

92. The Commission recalls that the guarantees of Article 6 para. 3

(Art. 6-3) are specific aspects of the right to a fair trial in

criminal proceedings, and that the manner in which these provisions are

to be applied to appeal proceedings depends on the special features of

the proceedings involved. Account must be taken of the entirety of the

proceedings conducted in the domestic legal order, and of the role of

the appellate court therein (Eur. Court HR, Granger v. the United

Kingdom judgment of 28 March 1980, Series A no. 174, p. 17, paras. 43

and 44).

93. In the present case, the second applicant sought legal aid to

appeal by way of "case stated". In an application for a case stated,

it is for the magistrates to "state a case" for the High Court, and it

was in respect of the stating of a case that the magistrates required

a recognizance from the applicant under Section 114 of the 1980 Act.

The reason for the failure of the applicant's appeal, however, was the

refusal of legal aid rather than the requirement of the recognizance,

and the Commission will concentrate on that refusal.

94. The Commission notes that the applicant was pursuing only one of

two possible avenues of appeal: it would have been open to her to apply

to the Crown Court for a re-hearing of the case (as did the first

applicant), and that appeal would have been an appeal of right, and not

dependant on the magistrates being prepared to state a case.

95. Further, there is no question in the present case that the

refusal of legal aid put the applicant at a disadvantage as compared

with the prosecution at a subsequent appeal: with the refusal of legal

aid, no case was ever stated, and there was no appeal. Moreover, there

was no question of the applicant avoiding imprisonment by the

application for a case to be stated, as the application was only made

on 23 December 1993, after the applicant had been released.

96. Thus whilst it is not the Commission's task to formulate its own

view of whether the Legal Aid Area Committee was correct in concluding

that the applicant's appeal should be dismissed (see the

above-mentioned Granger v. the United Kingdom judgment, p. 18,

para. 46), the Commission cannot help but note that the applicant did,

indeed, choose what appears to have been the least effective form of

appeal in her case, and that, given the state of the domestic law, she

was unlikely to benefit from an appeal by way of case stated.

97. Accordingly, it cannot be said in the present case that the

"interests of justice" required the applicant to be given legal aid to

pursue her application for a case to be stated, or that the applicant

was wrongly deprived of an appeal hearing.

CONCLUSION

98. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 3 (c) (Art. 6-3-c) and Article 6 para. 1

(Art. 6-1) of the Convention, taken together, as regards the second

applicant.

F. As regards Article 5 para. 1 (Art. 5-1) of the Convention:

the initial detention of all applicants

99. Article 5 para. 1 (Art. 5-1) provides, so far as relevant:

"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:

...

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 ..."

100. The applicants submit that the concept of "breach of the peace"

does not comply with the requirements of lawfulness under Article 5

para. 1 (Art. 5-1) of the Convention. They assert that "breach of the

peace" is too vague and ambiguous a concept, which confers upon public

officials a discretion which is insufficiently limited and structured

by the law. They further submit that arrest and detention for "breach

of the peace" do not come within any of the categories of lawful

detention under Article 5 para. 1 (Art. 5-1) of the Convention.

101. The Government submit that the concept of breach of the peace,

as developed by the courts according to the principles of common law,

is sufficiently certain to be lawful, in accordance with Article 5

para. 1 (Art. 5-1) of the Convention. They further assert that the

initial arrests and detention of all of the applicants for breach of

the peace, were justified under Article 5 para. 1 (b) and/or (c)

(Art. 5-1-b, 5-1-c) of the Convention.

102. The first issue to be determined is whether the applicants'

arrests and initial detention were "lawful", including whether they

complied with "a procedure prescribed by law". The Convention here

essentially refers back to national law and states the obligation to

conform to the substantive and procedural rules thereof, but it

requires, in addition, that any deprivation of liberty should be

consistent with the purpose of Article 5 (Art. 5), namely to protect

individuals from arbitrariness (see, for example, Eur. Court HR, Benham

v. the United Kingdom judgment of 10 June 1996, to be published in

Reports 1996, para. 40, with further references).

103. In connection with the question of whether the arrests and

detention of the applicants complied with the substantive and

procedural rules of national law, the Commission notes that under

domestic law a person may be arrested without warrant, either for

causing a breach of the peace or where it is reasonably apprehended

that he is likely to cause a breach of the peace. There has been no

suggestion in the present case that the applicants' arrest and initial

detention were not in conformity with domestic law.

104. As to the requirement that the detention must not be arbitrary,

a detention will be deemed "arbitrary" if it is not in conformity with

the purpose of Article 5 (Art. 5) (see, in connection with detention

under Article 5 para. 1 (e) (Art. 5-1-e), Eur. Court HR, Winterwerp

v. the Netherlands judgment of 24 October 1979, Series A no. 33,

pp. 17, 18, para. 39 and, in connection with detention under Article 5

para. 1 (d) (Art. 5-1-d), Eur. Court HR, Bouamar v. Belgium judgment

of 29 February 1988, Series A no. 129, p. 20, para. 50).

105. Under Article 5 para. 1 (c) (Art. 5-1-c), detention of a person

is permitted if effected "... for the purpose of bringing him before

the competent legal authority on reasonable suspicion of having

committed an offence".

106. The applicants were arrested in order to bring them before

magistrates (the "competent legal authority") on reasonable suspicion

of having committed a "breach of the peace". The Commission has above

(paras. 65 to 69) found that proceedings for breach of the peace are

proceedings which determine a "criminal offence" within the meaning of

Article 6 (Art. 6)of the Convention. In the same way, the Commission

also considers that "breach of the peace" is "an offence" within the

meaning of Article 5 para. 1 (c) (Art. 5-1-c).

107. It cannot therefore be said that the applicants' arrests and

initial detention were "arbitrary" within the meaning of the case-law

on Article 5 (Art. 5) of the Convention.

CONCLUSION

108. The Commission concludes, unanimously, that there has not been

a violation of Article 5 para. 1 (Art. 5-1) of the Convention as

regards the initial arrests and detention of all applicants.

G. As regards Article 5 para. 1 (Art. 5-1) of the Convention:

the later detention of the first and second applicants

109. Article 5 para. 1 (Art. 5-1) of the Convention provides, so far

as relevant:

"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:

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;"

110. The first and second applicants further complain, under Article 5

para. 1 (Art. 5-1), in relation to the periods of detention of 28 and

7 days which they served. They submit that the binding over orders,

to which they were ordered to agree, were too unspecific and general

to satisfy the requirement of "lawfulness" under Article 5 para. 1

(Art. 5-1) of the Convention. They further submit that imprisonment

for failing to agree to a binding over order does not satisfy any of

the categories of lawful detention set out in Article 5 para. 1

(Art. 5-1) of the Convention.

111. The Government submit that the binding over order was

sufficiently certain to comply with the requirements of lawfulness

under Article 5 para. 1 (Art. 5-1) of the Convention. Further the

Government submit that the first and second applicants' imprisonment,

after failing to agree to be bound over, was justified under Article 5

para. 1 (b) (Art. 5-1-b) of the Convention.

112. The Commission notes that both the first and second applicants

were bound over under the 1980 Act. This refers, at Section 115 (1),

to magistrates' powers, on complaint, to order a person:

"to enter into a recognizance, with or without sureties, to

keep the peace or to be of good behaviour towards the

complainant."

113. The Commission notes that the wording of the 1980 Act specifies

that the orders be either to keep the peace or to be of good behaviour

to the complainant. The binding over orders, to which the first and

second applicants were ordered to agree, were more general. The first

applicant was "bound over for 12 months in the sum of £100.00",

apparently with no further specification as to keeping the peace or

being of good behaviour to the complainant. The second applicant was

bound over to "keep the peace and be of good behaviour" for a period

of 12 months in the sum of £100.00, apparently without it being

specified that she be of good behaviour to the complainant.

114. The first and second applicants were both imprisoned after having

refused to be bound over. The Commission must therefore consider the

compatibility of the detention with Article 5 para. 1 (Art. 5-1) of the

Convention. The Commission will first turn to Article 5 para. 1 (a)

(Art. 5-1-a) of the Convention.

115. Article 5 para. 1 (a) (Art. 5-1-a) of the Convention permits

detention after conviction by a competent court. It could be said, in

Convention terms, that the applicants had been convicted - they both

had been found to have breached the peace, and the Commission has found

that those proceedings determined a "criminal charge" within the

meaning of Article 6 (Art. 6) of the Convention, and that the

applicants' initial detention was justified under Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention. For detention to be justified under

Article 5 para. 1 (a) (Art. 5-1-a), however, it is not sufficient for

the detention simply to follow the conviction in time: rather, there

must be a sufficient causal link between the conviction and the

detention (see, in a different context, Eur. Court HR, Weeks v. the

United Kingdom judgment of 2 March 1987, Series A no. 114, p. 23,

para. 42 with further references).

116. In the present case, the applicants' convictions did not bring

with them a sentence of imprisonment pursuant to which they were

detained. Rather, the immediate consequence of their having been found

to have breached the peace was an order, put at its narrowest, not to

do it again. In fact, the order must have gone further than that as

Section 115 (1) refers to recognizances "to keep the peace or to be of

good behaviour to the complainant". However, the applicants, for

whatever reasons, declined to enter into the recognizances ordered of

them - whatever the scope of those recognizances. The magistrates

thereupon ordered the respective terms of imprisonment, 28 days in the

case of the first applicant, and seven days in the case of the second

applicant.

117. The Commission considers that a question could arise as to

whether the intervention of the procedure by which the applicants were

ordered to enter into recognizances broke the causal link between the

applicants' conviction and their subsequent detention or whether on the

contrary, the subsequent detention was a power inherent in the court

once a person was convicted, but that this power could only be

exercised in circumstances where a person refused to agree to be bound

over. If the link is broken it might follow that Article 5 para. 1 (a)

(Art. 5-1-a) could not be invoked to justify the applicants' detention

after a breach of the peace had been established. However the

Commission finds it unnecessary to decide the point as it considers

that the subsequent detention is in any event in accordance with

Article 5 para. 1 (b) (Art. 5-1-b).

118. Article 5 para. 1 (b) (Art. 5-1-b) of the Convention authorises

"the lawful ... detention of a person for non-compliance with the

lawful order of a court ...". The Convention here essentially refers

back to national law, but in addition requires that any deprivation of

liberty should be consistent with the purpose of Article 5 (Art. 5),

namely to protect individuals from arbitrariness (see, also in the

context of Article 5 para. 1 (b) (Art. 5-1-b), the above-mentioned

Benham v. the United Kingdom judgment, para. 40).

119. The magistrates had power to order detention for refusal to be

bound over. The detention was therefore in accordance with a "lawful

order" under national law.

120. As to any arbitrariness, the Commission observes that the

applicants were initially ordered to agree to be bound over. It was

only on refusal to accept this order that the detention was ordered.

The applicants were given an opportunity to avoid detention by agreeing

to be bound over, and they chose to refuse this option. In these

circumstances the Commission does not consider that it can be said the

detention of the applicants after refusing to comply with a lawful

order of the court (to agree to be bound over) can be considered

arbitrary.

CONCLUSION

121. The Commission concludes, unanimously, that there has not been

a violation of Article 5 para. 1 (Art. 5-1) of the Convention as

regards the second detention of the first and second applicants.

H. As regards Article 5 para. 3 (Art. 5-3) of the Convention: all

applicants

122. Article 5 para. 3 (Art. 5-3) of the Convention provides:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) (Art. 5-1-c) of this Article

shall be brought promptly before a judge or other officer

authorised by law to exercise judicial power and shall be

entitled to trial within a reasonable time or to release

pending trial. Release may be conditioned by guarantees to

appear for trial."

123. The applicants complain that there was never an intention to

bring them before a court for trial for a criminal offence, but merely

an intention to initiate a civil binding over procedure. They submit

that in these circumstances there was a violation of Article 5 para. 3

(Art. 5-3) of the Convention.

124. The Government make no specific submissions in relation to

Article 5 para. 3 (Art. 5-3) of the Convention.

125. The Commission notes that the applicants make substantially the

same complaint under Article 5 para. 3 (Art. 5-3) of the Convention as

under Article 5 para. 1 (c) (Art. 5-1-c) in connection with the initial

arrests and detention, that is, they claim that the civil nature of the

binding over procedure means that there was no intention to bring them

before a court in connection with an "offence". They do not complain

that they were not brought before a magistrate "promptly".

126. The Commission notes that the applicants were all brought before

a magistrate on complaints of breach of the peace (albeit that the

complaints against the third to fifth applicants were later dropped).

Having found that the arrests and initial detention of the applicants

were in accordance with Article 5 para. 1 (c) (Art. 5-1-c), the

Commission finds that the applicants were arrested or detained in

accordance with the provisions of Article 5 para. 1 (c) (Art. 5-1-c),

and that they were brought before a judge, as required by Article 5

para. 3 (Art. 5-3) of the Convention.

CONCLUSION

127. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 3 (Art. 5-3) of the Convention.

I. As regards Article 5 para. 5 (Art. 5-5) of the Convention:

the initial detention of all applicants

128. Article 5 para. 5 (Art. 5-5) of the Convention provides:

"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."

129. The applicants accept that there is an enforceable right to

compensation had their arrests and initial detention been outside the

lawful authority conferred by the common law on police officers to make

an arrest for breach of the peace. However the applicants claim that,

on the assumption that their arrests and/or initial detention were in

breach of Article 5 para. 1 (Art. 5-1) of the Convention, they do not

have the enforceable right to compensation to which Article 5 para. 5

(Art. 5-5) entitles them.

130. The Government's primary submission is that as the arrests and

the initial detention were not themselves in breach of Article 5

para. 1 (Art. 5-1) there can be no breach of Article 5 para. 5

(Art. 5-5) of the Convention. Their alternative submission is that had

the arrests and initial detention been contrary to domestic law there

would have been an enforceable right to compensation, in conformity

with Article 5 para. 5 (Art. 5-5) of the Convention.

131. The Commission has found above (para. 107) that there is no

violation of Article 5 para. 1 (Art. 5-1) as regards the initial

arrests and detention of the applicants. It follows that there is no

violation of Article 5 para. 5 (Art. 5-5) of the Convention in this

respect.

CONCLUSION

132. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 5 (Art. 5-5) of the Convention as regards

the initial arrests and detention of all applicants.

J. As regards Article 5 para. 5 (Art. 5-5) of the Convention:

the second detention of the first and second applicants

133. With regard to their detention after refusal to agree to be bound

over, the first and second applicants refer to Sections 44 and 45 of

the Justices of the Peace Act 1979, as amended by Section 108 of the

Courts and Legal Services Act 1990. Under these provisions, no claim

for damages may be brought against any magistrate unless the person

bringing the claim can establish that the magistrate acted beyond his

jurisdiction and in bad faith. The applicants submit that (on the

assumption a breach of Article 5 para. 1 (Art. 5-1) is found), such a

restriction on compensation is in violation of Article 5 para. 5

(Art. 5-5) of the Convention.

134. The Government submit that there being no breach of Article 5

para. 1 (Art. 5-1) the problem does not arise. Their alternative

submission is that if the applicants had been able to establish that

magistrates had acted in excess of jurisdiction and in bad faith, then

they would have had a right to compensation.

135. The Commission has above (para. 120) found no violation of

Article 5 para. 1 (Art. 5-1) as regards the second detention of the

first and second applicants. It follows that there is no violation of

Article 5 para. 5 (Art. 5-5) of the Convention in this respect.

CONCLUSION

136. The Commission concludes unanimously, that there has not been a

violation of Article 5 para. 5 (Art. 5-5) of the Convention as regards

the second detention of the first and second applicants.

K. As regards Article 10 (Art. 10) of the Convention:

the first and second applicants

137. Article 10 (Art. 10) of the Convention provides:

"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 ...

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, ... for the prevention of disorder or crime, for

the protection of the reputation or rights of others ..."

138. The first and second applicants submit, as they did in connection

with Article 5 (Art. 5) of the Convention, that the definitions of

breach of the peace and binding over orders are insufficiently precise

under domestic law to comply with the requirement of "prescribed by

law" under Article 10 para. 2 (Art. 10-2) of the Convention.

139. The applicants further claim that the charge of breach of the

peace and the powers of binding over are not "necessary in a democratic

society," given that the Public Order Act 1986 adequately equips police

officers to deal with any situations of public disorder. They draw

attention to the fact that, under Section 5 of the 1986 Act, before a

police officer can arrest anyone, he must first warn that person that

if their conduct continues they may be arrested, further it is a

statutory defence for the person to prove that his conduct was

reasonable. A person charged with breach of the peace does not benefit

from such safeguards. They submit that the fact that a citizen can be

arrested and detained for breach of the peace, not because he is being

violent or threatening violence, but merely because his words or

behaviour, whilst not in themselves amounting to a criminal offence,

might provoke someone else to act in such a way, amounts to a violation

of the freedom of expression under Article 10 (Art. 10) of the

Convention.

140. The applicants regard the powers to deal with breach of the peace

and to bind over as disproportionate to any aim of Article 10

(Art. 10). With regard to the initial arrests and detention, the first

applicant was detained for approximately 44 hours, the second applicant

for approximately 17 hours. The applicants consider such periods

disproportionate to any legitimate aim that the government seeks to

establish. As regards the subsequent detention of the first and second

applicants for 28 days and seven days respectively, the applicants

consider this to be a disproportionate and unjustifiable sanction for

failing to agree to be bound over for 12 months in the sum of £100.

141. The Government submit that the concepts of breach of the peace

and binding over orders are sufficiently certain as to satisfy the

requirement of being "prescribed by law". They state that the powers

to deal with breach of the peace and to bind over are necessary,

proportionate and in accordance with Article 10 para. 2 (Art. 10-2),

as being in the interests of public safety and for the prevention of

disorder.

142. The Commission notes that the first and second applicants were

physically prevented from expressing themselves in their various

protests, by being arrested and taken away from the scene and being

detained for 44 and 17 hours respectively. They subsequently spent

periods of 28 and 7 days respectively in prison.

143. The Commission notes that the first and second applicant were

demonstrating not only by verbal protest or holding up placards and

distributing leaflets, but by physically impeding the activities

against which they were protesting. However the Commission recalls

that freedom of expression under Article 10 (Art. 10) goes beyond mere

speech (see Eur. Court HR, Vogt v. Germany judgment of 26 September

1985, Series A no. 323, p. 23, para. 44), and considers that the

applicants' protests were expressions of their disagreement with

certain activities, and as such fall within the ambit of Article 10

(Art. 10). The Commission finds there was a clear interference with

the applicants' freedom under Article 10 (Art. 10) of the Convention.

144. The interference is in breach of Article 10 (Art. 10) of the

Convention unless it was "prescribed by law", pursued one or more of

the legitimate aims set out in paragraph 2 of Article 10 (Art. 10-2)

and was "necessary in a democratic society" (see, for example, Eur.

Court HR, Chorherr v. Austria judgment of 25 August 1993, Series A

no. 266, p. 35, para. 23).

Prescribed by law

145. The applicants were subjected to arrest and detention for breach

of the peace and also detention for not complying with an order to

agree to be bound over. The Commission must thus examine whether both

the concept of "breach of the peace" and the procedure of "binding

over" satisfy the requirement under Article 10 para. 2 (Art. 10-2) of

being "prescribed by law".

146. Two requirements flow from the expression "prescribed by law"

(Eur. Court HR, Sunday Times v. the United Kingdom judgment of

26 April 1979, Series A no. 30, p. 31, para. 49, see also the above-

mentioned Chorherr v. Austria judgment, p. 36, para. 25). These

requirements are first that the law be adequately accessible to

citizens, and secondly that the law be formulated with sufficient

precision to enable the citizen to regulate his conduct and foresee

with reasonable certitude the consequences which a given action may

entail. The level of precision required depends to a considerable

degree on the content of the instrument, the field it is designed to

cover and the number and status of those to whom it is addressed

(see the above-mentioned Chorherr judgment, p. 36, para. 25, and, in

a different context, Eur. Court HR, Cantoni v. France judgment of

15 November 1996, to be published in Reports-1996, para. 35).

147. Breach of the peace, a common law concept, has been defined by

the High Court in R v. Howell [1982] 1 QB 416 at 427 as occurring:

"... 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."

148. The case law has also clarified that a breach of the peace can

occur when a person not only causes the breach but also when a person's

conduct is likely to provoke another to violence (see the

above-mentioned case of Nicol and Selvanayagam v. DPP).

149. In the light of its findings in connection with Articles 6

(Art. 6) and 5 para. 1 (c) (Art. 5-1-c) of the Convention (paras. 65

to 69 and 101 to 106 above), the Commission accepts that the concept

of "breach of the peace" is sufficiently certain to comply with the

notion of "prescribed by law" under Article 10 para. 2 (Art. 10-2).

150. The Commission must next consider whether the procedure of binding

over satisfies the requirement of being "prescribed by law" under

Article 10 para. 2 (Art. 10-2).

151. The Commission considers that the clear understanding of the

orders was to prevent the first and second applicants from continuing

the same or a similar behaviour that had given rise to the breach of

the peace. Taking into account the impossibility of absolute precision

in areas such as public order, the Commission considers that the

binding over procedure satisfies the test of "prescribed by law" under

Article 10 para. 2 (Art. 10-2) of the Convention.

Legitimate aim

152. Having regard to all the circumstances of the case, the

Commission sees no grounds for doubting that the arrest, binding over

and subsequent detention of the first and second applicants pursued at

least one of the legitimate aims referred to in Article 10 para. 2

(Art. 10-2), namely the prevention of disorder and/or the rights of

others.

Necessary in a democratic society

153. The Commission recalls that it was held in the Chorherr judgment

that in determining whether an interference was "necessary in a

democratic state":

"the Contracting States enjoy a certain margin of

appreciation in assessing whether and to what extent an

interference is necessary, but this margin goes hand in

hand with European supervision embracing both the

legislation and the decisions applying it; when carrying

out that supervision the Court must ascertain whether the

impugned measures are "proportionate to the legitimate aim

pursued", due regard being had to the importance of freedom

of expression in a democratic society ... That margin of

appreciation extends in particular to the choice of the

reasonable and appropriate mean to by used by the

authorities to ensure that lawful manifestations can take

place peacefully." (above mentioned Chorherr v. Austria

judgment, p. 37, para. 31)."

154. With regard to this test of proportionality the Commission will

consider the applicants in turn.

The first applicant

155. The Commission recalls that the first applicant had taken part

in a protest against a grouse shoot, and had stood in the way of

participants to prevent them taking shots. She was arrested and kept

in custody for approximately 44 hours prior to being brought before a

magistrate and then released. After the substantive hearing, the

complaint of breach of the peace was found proved and she was ordered

to agree to be bound over for a 12 month period in the sum of £100 due

to her protest at a grouse shoot. The refusal of the applicant to be

bound over led to a 28 day period of detention being ordered.

156. The Commission first notes that, when the applicant chose to

demonstrate against the grouse shoot, she must have been aware of the

possibility that her demonstration might lead to disturbances which

would result in the calling of the police and possible proceedings for

breach of the peace and/or other public order offences. The Commission

can well imagine that tempers - of demonstrators and participants in

the shoot - may become severely frayed on such an occasion, and the

removal of the applicant, even though it interfered with her freedom

to demonstrate, can, in itself, be seen as proportionate to the aim of

preventing disorder (see, in this connection, the above-mentioned

Chorherr v. Austria judgment, p. 37, para. 32).

157. The applicant, however, was not released once the grouse shoot

was over. Rather, she was detained for 44 hours before being brought

before a magistrate. The Commission acknowledges some disquiet as to

the proportionality of a detention of this length. However, the

Commission notes that the police had removed the applicant from a

potentially volatile situation, and that according to the charge record

the police feared the applicant might commit further breaches of the

peace if released, it is further noted in this respect that the

detention of the applicant spanned a weekend and it is reasonable to

assume that field sports, against which the applicant would possibly

protest, were likely to occur over the weekend. The Commission

considers that the detention of a person after involvement in a

potentially volatile situation can serve the legitimate purpose of

acting as a "cooling off" period and operate to ensure that the

detainee does not immediately seek to repeat the behaviour. The

Commission further notes that the applicant was brought before a

magistrate immediately after the weekend, on Monday morning, and

released. In the circumstances, the Commission considers that the

initial period of detention of the first applicant satisfies the test

of proportionality under Article 10 (Art. 10) of the Convention.

158. However, in addition to the detention from the applicant's arrest

to her appearance in court, when the applicant was brought to court on

the substantive charges, she was fined £70.00 in respect of the public

order offence under the Public Order Act 1986 and ordered to be bound

over for 12 months in the sum of £100.00 in respect of the breach of

the peace (the sum of £100 would only have been forfeited if she

breached the peace during the ensuing 12 months - she was not required

to deposit the £100). When she refused to agree to being bound over,

she was committed to prison for 28 days.

159. The first applicant had taken part in protests that went beyond

the handing out of leaflets or holding up of placards, to physically

obstructing the lawful activities of others. The Commission considers

that in the circumstances the binding over order imposed upon the

applicant (to keep the peace for 12 months in the sum of £100),

satisfied the test of proportionality. The first applicant was

imprisoned as she refused to agree to such a binding over order. The

Commission considers that it is a legitimate interpretation of such

refusal that the applicant was convinced of the rectitude of her

objections and protests to certain activities and that no court order

was going to impinge on her continued protest. The Commission

considers this to be analogous to someone who is imprisoned not

directly for an offence but for non-payment of a fine or refusal to

abide by an injunction, where the principle of the authority of the

judiciary becomes an important and independent justification for the

detention. The Commission thus considers the subsequent period of

detention satisfies the proportionality test, when viewed in the light

that detention was only ordered after the applicant had refused to

accept an appropriate and more lenient order.

The second applicant

160. The second applicant had taken part in a protest against the

building of a motorway, placing herself in front of machinery in order

to impede the engineering works. She was arrested and kept in custody

for approximately 17 hours, prior to being brought before a magistrate,

and was subsequently imprisoned for seven days, after refusing to agree

to be bound over.

161. In this instance, the Commission notes that, even though the

likelihood of immediate disorder was perhaps less than in the case of

the first applicant, the second applicant was also physically impeding

the lawful actions of others and was removed from the scene of her

protest.

162. The Commission refers to its reasoning above (para. 156) in

relation to the first applicant. The Commission considers that the

period of initial detention can be justified on the basis that it

served to prevent the applicant returning to the scene of protest and

recommencing her behaviour. Given the persistence of the applicant and

the high likelihood of her simply returning to the scene of protest if

released shortly after her arrest, the Commission considers it was not

inappropriate to allow a significant "cooling off" period. In the

circumstances, the Commission considers that the initial period of

detention of the second applicant satisfies the test of proportionality

under Article 10 (Art. 10) of the Convention.

163. The second applicant, too, was found to have behaved in a way

likely to cause a breach of the peace, and was ordered to agree to be

bound over in the sum of £100.00 for 12 months (the sum of £100 would

only have been forfeited if she breached the peace in the ensuing

12 months - she was not required to deposit the £100). The second

applicant refused to agree to be bound over and was consequently

detained for a period of seven days. This period was significantly

shorter than the subsequent detention of the first applicant, and a

fortiori, for the reasons as set out in para. 158 above, the Commission

considers the subsequent detention of the first applicant satisfies the

proportionality test, when viewed in the light that detention was only

ordered after the applicant had refused to accept an appropriate and

more lenient order.

CONCLUSION

164. The Commission concludes, unanimously, that there has not been

a violation of Article 10 (Art. 10) of the Convention as regards the

first and second applicants.

L. As regards Article 10 (Art. 10) of the Convention:

the third, fourth and fifth applicants

165. The third, fourth and fifth applicants make the same complaints

as the first and second applicants, save that they were not charged

with breach of the peace, and thus they confine their complaints to

their arrest and initial detention.

166. The Commission notes that each of the applicants was physically

prevented from expressing themselves in their protest, by being

arrested and taken away from the scene and being detained for

approximately seven hours. The Commission finds that the behaviour of

the authorities amounted to a clear interference with the applicants'

freedom of expression. This interference is in breach of Article 10

(Art. 10) unless it was "prescribed by law", pursued one or more of the

legitimate aims set out in paragraph 2 of Article 10 (Art. 10-2) and

was "necessary in a democratic society" (see the above-mentioned

Chorherr v. Austria judgment, p. 35, para. 23).

Prescribed by law

167. The Commission finds for the reasons set out above (paras. 144-

150) that the common law concept of "breach of the peace" was

compatible with the requirement of "prescribed by law" under Article 10

para. 2 (Art. 10-2) of the Convention.

Legitimate aim

168. Having regard to all the circumstances of the case, the

Commission also accepts that the arrests and detention of the third,

forth and fifth applicants pursued at least one of the legitimate aims

referred to in Article 10 para. 2 (Art. 10-2), namely the prevention

of disorder and/or the rights of others.

Whether the interference was "necessary in a democratic society"

169. The Commission again recalls the principles upon which

consideration of the necessity for an interference must be based

(para. 152 above), and notes that the third, fourth and fifth

applicants had taken part in a pacifist protest, that consisted of

holding banners and handing out leaflets outside a fighter helicopter

conference.

170. There has been no suggestion in the present case of any threat

to disorder at all, and indeed the Commission notes that no proceedings

were subsequently brought against the applicants, whether for criminal

offences or for breach of the peace.

171. The Commission recalls that States are under a duty to take

reasonable and appropriate measures to enable lawful demonstrations to

proceed peacefully (Eur. Court HR, Plattform "Ärzte für das Leben"

v. Austria judgment of 21 June 1988, Series A no. 139, p. 12,

para. 34). In the present case, the third, fourth and

fifth applicants' demonstration was wholly lawful, and there is no

indication whatever that they were engaging in conduct which could

justify removal from the scene of the demonstration and subsequent

detention for 7 hours.

CONCLUSION

172. The Commission concludes, unanimously, that there has been a

violation of Article 10 (Art. 10) of the Convention as regards the

third, fourth and fifth applicants.

M. As regards Article 11 (Art. 11) of the Convention: all applicants

173. The Commission considers that Article 10 is the lex specialis in

connection with the Article 11 (Art. 10+11) claims and thus finds it

unnecessary to examine separately whether there has been a violation

of Article 11 (Art. 11) of the Convention.

CONCLUSION

174. The Commission concludes, unanimously, that in the present case

it is unnecessary to examine separately whether there has been a

violation of Article 11 (Art. 11) of the Convention.

N. As regards Article 13 (Art. 13) of the Convention:

the first and second applicants

175. Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

176. The first and second applicants claim a violation of Article 13

(Art. 13) in relation to their lack of remedies in connection with

their detention for refusing to be bound over.

177. The Commission notes that the applicants' complaints of alleged

violation relate essentially to the state of United Kingdom law under

which binding orders are imposed and where failure to agree to such an

order results in a period of detention. Article 13 (Art. 13) cannot

however be interpreted as guaranteeing a remedy against, or judicial

review of, domestic law (whether legislative or based on judicially

developed common law) which is not considered to be in conformity with

the Convention (see Eur. Court HR, Lithgow and Others v. the United

Kingdom judgment of 8 July 1986, Series A no. 102, p. 74, para. 206).

CONCLUSION

178. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 13 (Art. 13) of the Convention.

O. Recapitulation

179. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 2 (Art. 6-2) of the Convention as regards

the first applicant (para. 72).

180. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 3 (a) or (b) (Art. 6-3-a, 6-3-b) of the

Convention as regards the first and second applicants (para. 87).

181. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 3 (c) (Art. 6-3-c) and Article 6 para. 1

(Art. 6-1) of the Convention, taken together, as regards the second

applicant (para. 97).

182. The Commission concludes, unanimously, that there has not been

a violation of Article 5 para. 1 (Art. 5-1) of the Convention as

regards the initial arrests and detention of all applicants

(para. 107).

183. The Commission concludes, unanimously, that there has not been

a violation of Article 5 para. 1 (Art. 5-1) of the Convention as

regards the second detention of the first and second applicants

(para. 120).

184. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 3 (Art. 5-3) of the Convention

(para. 126).

185. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 5 (Art. 5-5) of the Convention as regards

the initial arrests and detention of all applicants (para. 131).

186. The Commission concludes, unanimously, that there has not been

a violation of Article 5 para. 5 (Art. 5-5) of the Convention as

regards the second detention of the first and second applicants

(para. 135).

187. The Commission concludes, unanimously, that there has not been

a violation of Article 10 (Art. 10) of the Convention as regards the

first and second applicants (para. 163).

188. The Commission concludes, unanimously, that there has been a

violation of Article 10 (Art. 10) of the Convention as regards the

third, fourth and fifth applicants (para. 171).

189. The Commission concludes, unanimously, that in the present case

it is unnecessary to examine separately whether there has been a

violation of Article 11 (Art. 11) of the Convention (para. 173).

190. The Commission concludes, unanimously, that in the present case

there has been no violation of Article 13 (Art. 13) of the Convention

(para. 177).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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STEEL AND OTHERS v. THE UNITED KINGDOM

STEEL AND OTHERS v. THE UNITED KINGDOM