FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44306/98 by Eileen APPLEBY and Others against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 15 October 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 1 September 1998,

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

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

Having regard to the parties’ oral submissions at the hearing on 15 October 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants are Mary Eileen Appleby, a British citizen born in 1952, Pamela Beresford, a British citizen born in 1966, Robert Alphonsus Duggan, an Irish citizen born in 1947, and an environmental group (of which the first to third applicants are all members) known as Washington First Forum, based in Washington, Tyne and Wear. They are represented before the Court by Mr J. Welch, the legal director of Liberty, London.

A. The circumstances of the case

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

The first to third applicants live in the town of Washington in Tyne and Wear, England. The new town centre of Washington is known as the Galleries and is located within an area now owned by Postel Properties Limited (“Postel”), a private company. This town centre was originally built by the Washington Development Corporation (“the Corporation”), a body set up by the government of the United Kingdom pursuant to an Act of Parliament to build the “new” centre. The centre was sold to Postel on 30 December 1987.

The Galleries, as owned by Postel at the relevant time, comprised a shopping mall (with two hypermarkets and major shops), the surrounding car parks with spaces for approximately 3,000 cars and walkways. Public services were also available in this vicinity. However, the freehold of the careers’ office and the public library was owned by the Council, the social services office and health centre were leased to the Council by the Secretary of State and the freehold of the police station was held on behalf of Northumbria Police Authority. There was a post office and the offices for the housing department within the area owned by Postel.

In about September 1997, the Council gave outline planning permission to the City of Sunderland College (“the College”) to build on part of the Princess Anne Park in Washington, known as the Arena. The Arena is the only playing field in the vicinity of Washington town centre which is available for use by the local community. The first to third applicants, together with other concerned residents, formed the fourth applicant to campaign against the College’s proposal and to persuade the Council not to grant the College permission to build on the field.

On or about 14 March 1998, the first applicant, together with her husband and son, set up two stands in the entrance of the shopping mall in the Galleries, displaying posters alerting the public to the likely loss of the open space and seeking signatures to present to the Council on behalf of Washington First Forum. Security guards employed by Postel would not allow the first applicant or her assistants to continue to collect signatures on any land or premises owned by Postel. The applicants had to remove their stands and stop collecting signatures.

The manager of the one of the hypermarkets gave the applicants permission to set up stands within that store in March 1998, allowing them to transmit their message and collect signatures, albeit from a reduced number of persons. However this permission was not granted in April 1998 when the applicants wished to collect signatures for a further petition.

On 10 April 1998 the third applicant, as acting chair of Washington First Forum, wrote to the manager of the Galleries to ask for permission to set up a stall and to canvass views from the public either in the mall or in the adjacent car parks and offered to make a payment to be able to do so. On 14 April 1998 the manager of the Galleries replied and refused access. The letter stated:

“... the Galleries is unique in as much as although it is the Town Centre, it is also privately owned.

The owner’s stance on all political and religious issues, is one of strict neutrality and I am charged with applying this philosophy.

I am therefore obliged to refuse permission for you to carry out a petition within the Galleries or the adjacent car parks.”

On 19 April 1998, the third applicant wrote again to the manager of the Galleries asking him to reconsider his decision. The applicants have received no response to this letter.

The fourth applicant has continued to seek access to the public by setting up stalls by the side of the road on public footpaths and visiting the old town centre at Concord, which however was visited by a much smaller percentage of the residents of Washington.

The deadline for letters of representation to the Council regarding the building works was 1 May 1998. The applicants submitted the 3,200 letters of representation they had obtained on 30 April 1998.

The applicant has provided a list of organisations which have been allowed to carry out collections, set up stalls and displays within the Galleries, including the Salvation Army (collection before Christmas), local school choirs (carol-singing and collection before Christmas), Stop Smoking Campaign (advertising display handing out nicotine patches), Blood Transfusion Service (blood collection), Royal British Legion (collection for Armistice Day), various photographers (advertising and taking photographs) and British Gas (staffed advertising display).

From 31 January to 6 March 2001, Sunderland Council ran a consultation campaign “Your Council, Your Choice” informing the local residents of three leadership choices for the future of the Council and were allowed to use the Galleries for this purpose. This was a statutory consultation  exercise under section 25 of the Local Government Act 2000, which required local authorities to draw up proposals for the operation of “executive arrangements” and consult local electors before sending them to the Secretary of State. Some 8,500 people were reported as responding to the survey issued.

B. Relevant domestic law and practice

At common law, a private property owner may, in certain circumstances, be presumed to have extended an implied invitation to members of the public to come onto his land for lawful purposes. This covers commercial premises, such as shops, theatres and restaurants as well as private premises (e.g. there is a presumption that a house owner authorises people to come up the path to his front door to deliver letters or newspapers or for political canvassing. Any implied invitation may be revoked at will. A private person’s ability to eject people from his land is generally unfettered and he does not have to justify his conduct or comply with any test of reasonableness.

In the case of CIN Properties Ltd v. Rawlins [1995] 2 EGLR 130), where the applicants (young men) were barred from a shopping centre in Wellingborough as the private company owner CIN considered that their behaviour was a nuisance, the Court of Appeal held that CIN had the right to determine any licence which the applicants might have had to enter the Centre. In giving judgment, Lord Phillips found that the local authority had not entered into any walkways agreement with the company within the meaning of section 18(1) of the Highways Act 1971 (later replaced by section 35 of the Highways Act 1980) which would have dedicated the walkways or footpaths as public rights of way and which would have given the local council the power to issue bye-laws regulating use of those rights of way. Nor was there any basis for finding an equitable licence. He also considered case-law from North America concerning the applicants’ arguments for the finding of some kind of public right:

“Of more obvious relevance are two North American cases. In Uston v. Resorts International Inc. (1982) N.J. 445A.2D 370, the Supreme Court of New Jersey laid down as a general proposition that when property owners open their premises - in that case a gaming casino - to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably but, on the contrary, have a duty not to act in an arbitrary or discriminatory manner towards persons who come on their premises. However, that decision was based upon a previous decision of the same court in State v. Schmid (1980) N.J. 423A 2d 615, which clearly turned upon the constitutional freedoms of the First Amendment. The general proposition cited above has no application in English law.

The case of Harrison v. Carswell (1975) 62 D.L.R. (3d.) 68 in the Supreme Court of Canada, concerned the right of an employee of a tenant in a shopping centre to picket her employer in the centre, against the wishes of the owner of the centre. The majority of the Supreme Court held that she had no such right and that the owner of the centre had sufficient control or possession of the common areas to enable it to invoke the remedy of trespass. However, Laskin C.J.C., in a strong dissenting judgment held that since a shopping centre was freely accessible to the public, the public did not enter under a revocable licence subject only to the owner’s whim. He said that the case involved a search for an appropriate legal framework for new social facts and:–

“If it was necessary to categorize the legal situation which, in my view, arises upon the opening of a shopping centre, with public areas of the kind I have mentioned (at least where the opening is not accompanied by  an announced limitation on the classes of public entrants), I would say that the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity. Such a view reconciles both the interests of the shopping centre owner and of members of the public, doing violence to neither and recognizing the mutual or reciprocal commercial interests of shopping centre owner, business tenants and members of the public upon which the shopping centre is based.”

I have already said that this was a dissenting judgment. Nevertheless counsel [for the applicants] submitted that we should apply it in the present case. I accept that courts may have to be ready to adapt the law to new social facts where necessary. However there is no such necessity where Parliament has already made adequate provision for the new social facts in question as it has here by section 18 of the Highways Act 1971 and section 35 of the Highways Act 1980. ( Harrison v. Carswell makes no mention of any similar legislation in Canada.) Where Parliament has legislated and the Council, as representing the public, chooses not to invoke the machinery which the statute provides, it is not for the courts to intervene.

I would allow this appeal... on the basis that CIN, had the right, subject only to the issue under section 20 of the Race Relations Act 1976, to determine any licence the [applicants] may have had to enter the Centre.

COMPLAINTS

The applicants complain that there has been a violation of their rights under Articles 10, 11 and 13 of the Convention. They complain that they have been inhibited from meeting in their town centre to impart information and ideas about the proposed building plans.

THE LAW

The applicants complain that they have been prevented from meeting in the town centre and imparting information to the public in violation of their rights under Articles 10 and 11 of the Convention and that they have no remedy for this violation as required by Article 13 of the Convention.

Article 10 of the Convention provides as relevant:

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

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 11 of the Convention provides as relevant:

“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others ...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] 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.”

The Government’s submissions

The Government submit that at the relevant time the town centre was owned by a private company Postel and that it was Postel , in the exercise of its rights as property owner, which refused the applicants’ permission to use the Galleries for their activities. They argue that the Government in those circumstances cannot be regarded as bearing direct responsibility for any interference with the applicants’ exercise of their rights. The fact that the local authority had previously owned the land was irrelevant.

Insofar as the applicants claim that the State’s positive obligation to secure their rights is engaged, the Government acknowledge that positive obligations are capable of arising under Articles 10 and 11. However, they did not in the present case having regard to a number of factors. The alleged breach did not have a serious impact on the applicants who had many other opportunities to exercise their rights and used them to obtain thousands of signatures on their petition as a result. The burden imposed on the State by finding a positive obligation would also be a heavy one. Local authorities when selling land were not under any duty to enter into walkways agreements to render access areas subject to regulation by bye-law. The State’s ability to comply by entering into such agreements when selling State owned land would depend entirely on obtaining the co-operation of the private sector purchaser who might reasonably not want to allow any form of canvassing on his land and might feel that customers to commercial services would be deterred by political canvassers, religious activists, animal rights campaigners etc.

Furthermore a fair balance had been struck between the competing interests in this case. The applicants in their view only looked at one side of the balancing exercise, whereas legitimate objections could be taken by property owners if they were required to allow people to exercise their freedom of expression or assembly on their land, when means to exercise those rights were widely available on genuinely public land and in the media. As the facts of this case illustrate, the applicants could canvas support in public places, on the streets, in squares and common land, they could have canvassed from door to door or by post, write letters to the newspapers or appear on radio and television. The Government argue that it is not for the Court to prescribe the necessary content of domestic law by imposing some ill-defined concept of “quasi-public” land to which a test of reasonable access should be applied. That no problems arose from the balance struck in this case was shown by the fact that no serious controversy had arisen to date. The cases from the United States and Canada referred to by the applicants were not relevant as they dealt with different legal provisions and different factual situations, and in any event, did not show any predominant trend in requiring special regimes to attach to “quasi-public” land.

As concerned Article 13, the Government accept that, if contrary to their arguments, the State’s positive obligations are engaged and that there is an unjustified interference under Articles 10 or 11, there was no remedy available to the applicants under domestic law.

The applicants’ submissions

The applicants submit that the State was directly responsible for the interference with their freedom of expression and assembly as it was a public entity that built the Galleries on public land and a minister who approved the transfer into private ownership. The local authority could have required that the purchaser enter into a walkways agreement which would have extended bye-law protection to access ways but did not do so.

The applicants also argue that the State owed a positive obligation to secure the exercise of their rights within the Galleries. As the information and ideas which they wished to communicate were of a political nature, their expression was entitled to the greatest level of protection. Access to the town centre was essential for the exercise of those rights as it was the most effective way of communicating their ideas to the population, as was shown by the fact that the local authority itself used the Galleries to advocate a political proposal regarding the re-organisation of local government. The applicants however had been refused permission to use the Galleries for expression opposing local government action, showing that the private owner was not neutral in its decisions as to who should be given permission. The finding of an obligation would impose no significant financial burden on the State as it is merely under a duty to put in place a legal framework which provided effective protection for their rights of freedom of expression and peaceful assembly by balancing those rights against the rights of the property owner as already exists in a number of areas. They consider that no proper balance has been struck as protection is given to property owners who wield an absolute discretion as to access to their land and no regard given to individuals seeking to exercise their individual rights.

The applicants submit that it is for the State to decide how to remedy this shortcoming and that any purported definitional problems and difficulties of application can be resolved by carefully drafted legislation. A definition of “quasi-public” land could be proposed that excluded, for example, theatres. They also refer to case-law from other jurisdictions (in particular the United States) where concepts of reasonable access or limitations on arbitrary exclusion powers of landowners are being developed, inter alia , in the context of shopping malls and university campuses, which give an indication of how the State could approach the perceived problems.

Finally, the applicants submit that they have no remedy for the complaints, which disclose arguable claims of violations of provisions of the Convention. Domestic law provided at that time no remedy to test whether any interference with their rights was unlawful. The case-law of the English courts indicates that the owner of a shopping centre can give a bad reason, or no reason at all, for the exclusion of individuals from its land. No judicial review would lie against the decision of such a private body.

The Court’s assessment

Having regard to the applicants’ complaints and the parties’ submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Matti Pellonpää Registrar President