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AS TO THE ADMISSIBILITY OF

Application No. 25594/94

by Joseph HASHMAN and Wanda HARRUP

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 August 1994 by

Joseph HASHMAN and Wanda HARRUP against the United Kingdom and

registered on 7 November 1994 under file No. 25594/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

9 May 1995 and the observations in reply submitted by the

applicants on 27 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are United Kingdom citizens and live in

Shaftesbury, Dorset. They are represented before the Commission by

Mr. J.R.S. Bate, solicitor, of Messrs. Buglear Bate, Woking.

The facts of the application, as they have been submitted by the

parties, may be summarised as follows.

(i) The particular circumstances of the case

On 3 March 1993 the applicants blew a hunting horn and engaged

in halloaing with the intention of disrupting the activities of the

Portman Hunt. A complaint was made to the Gillingham magistrates that

the applicants should be required to enter into a recognizance with or

without sureties and keep the peace and be of good behaviour pursuant

to the Justices of the Peace Act 1361.

The applicants were bound over to keep the peace and be of good

behaviour in the sum of £100 for 12 months on 7 September 1993. They

appealed to the Crown Court, which heard their appeals on 22 April 1994

at Dorchester.

The Crown Court, comprising a Crown Court judge and two

magistrates, found that the applicants had not committed any breach of

the peace, and that their conduct had not been likely to occasion a

breach of the peace. It found the following facts:

"(a) On 3rd March, 1993, Edward Lycett Green, a joint Master of the

Portman Hunt, saw the [applicants] in the environs of the Ranston

Estate, and heard the sound of a hunting horn being blown from

that position. Later, at about 1.15pm, he saw the [applicants']

car on Iwerne Hill and again heard the sound of a hunting horn

being blown. On that occasion he also heard [the second

applicant] halloing. Some hounds were drawn towards the

[applicants], and hunt staff had to be deployed to recover them.

(b) At about 1.45pm, a solitary hound ran out of Rolf's Wood along

the Higher Shaftesbury Road. It suddenly, and for no apparent

reason, ran across the road and was killed by a lorry travelling

in the direction of Blandford Forum.

(c) At about 3.45pm, [the first applicant] stated to a police

constable that he had been blowing a hunting horn, but nowhere

near where the hound was killed. The police officer seized the

hunting horn.

(d) Iwerne Hill is about a mile from where the hound was killed, and,

at the time of its death, it was travelling away from the hunt

and away from Iwerne Hill.

(e) On their own admissions each [applicant] was a hunt saboteur.

[The first applicant] admitted that he had blown the horn and

[the second applicant] that she shouted at hounds. Their object

was to distract hounds from hunting and killing foxes.

(f) An expert, a Mr. A. Downes, told us that he had observed hunts

for many years and had frequently seen hounds running loose on

the road away from the main pack. In his opinion, this caused

danger to hounds and to other users of the road."

On the basis of these facts, the Crown Court was of the opinion

that:

"(a) The [applicants'] behaviour had been a deliberate attempt to

interfere with the Portman Hunt and to take hounds out of the

control of the huntsman and the whippers-in.

(b) That in this respect the actions of the [applicants] were

unlawful, and had exposed hounds to danger.

(c) That there had been no violence or threats of violence on this

occasion, so that it could not be said that any breach of the

peace had been committed or threatened.

(d) That the [applicants] would repeat their behaviour unless it were

checked by the sanction of a bind over.

(e) That the [applicants] conduct had been contra bonos mores."

The court continued that the power to bind over to keep the peace

and be of good behaviour was wider than the power of arrest, and could

be exercised whenever it could be proved that there had been a breach

of the peace or conduct contra bonos mores. It noted that neither the

Law Commission's report on Binding Over nor the European Convention was

part of domestic law.

The Crown Court judge agreed to state a case to the High Court,

but legal aid for the case stated was refused on 5 August 1994 and the

applicants' appeals against the decisions were dismissed on

19 September 1994.

(ii) Relevant domestic law and practice

a. Breach of the peace and conduct contra bonos mores

Breach of the peace is a common law concept. It was recently

defined by the High Court in R. v. Howell [1982] 1 QB 416. A breach of

the peace was held to occur:

"... where there is an act done or threatened to be done which

either harms a person, or in his presence his property, or is

likely to cause such harm, or which puts someone in fear of such

harm being done ..."

The notion of conduct contra bonos mores was discussed in Hughes

v. Holley ((1988) 86 Cr App Rep 130). In that case, which concerned

a binding over for "kerb crawling", the Divisional Court found that

"contra bonos mores" meant "contrary to a good way of life ... [and]

"contra bonos mores" is conduct which has the property of being wrong

rather than right in the judgment of the majority of contemporary

fellow citizens".

b. Binding over orders

i. Powers of the court

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

any person appearing before it.

The order takes the form of a requirement that the person

concerned "enter into a recognizance" - that is, give an undertaking

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. No additional

conditions may be imposed. If the undertaking is refused, and Section

115 of the Magistrates' Court Act 1980 applies, the court may impose

a term of imprisonment of up to six months or until the undertaking is

made. Under the common law powers, which still exist, there is no

limit to the term of imprisonment.

ii. Grounds for order

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 (R. v. Morpeth Ward Justices, ex parte Ward (1992) 95 Cr App

Rep 215). An "apprehended" breach of the peace is sufficient, i.e. a

finding that there is a risk of a future breach of the peace, including

a risk that the conduct of the person concerned, even if not itself a

breach of the peace, will cause others to commit one (R. v. Aubrey-

Fletcher, ex parte Thompson [1969] 1 WLR 872; ex parte Benjamin, loc.

cit.).

The power to bind a person over to be of good behaviour is

independent of breach of the peace and may be exercised in a wide

variety of circumstances. Judicial practice continues to reflect the

influence of Blackstone, who in the 18th century wrote:

"...a man may be bound to his good behaviour for causes of

scandal, contra bonos mores as well as contra pacem... or for

words tending to scandalise the government, or in abuse of the

officers of justice... Thus also a justice may bind over...

persons whose misbehaviour may reasonably bring them within

the... words of the [1361 Act] as persons not of good fame"

(Commentaries on the Law of England, vol. iv, p. 256).

Neither type of binding over requires that the person concerned

be shown to have committed an act which is criminal or otherwise

intrinsically unlawful.

iii. Procedure

A binding over order is not a criminal conviction (R. v. London

Quarter Sessions, ex parte Metropolitan Police Commissioner [1948] 1

KB 670). The statutory complaint procedure is classified as part of the

civil rather than criminal jurisdiction of a magistrates' court. There

have been acknowledgements that proceedings leading to binding over are

"analogous" to criminal proceedings (Everett v. Ribbands [1952] 1 All

ER 823) or "quasi-criminal".

iv. Consequences of breach

Where a person fails to keep the peace or to be of good behaviour

in breach of a binding over order, the magistrates may "estreat" the

recognizance, i.e. order forfeiture of all or part of the sum in which

the person was bound over (1980 Act, Section 120). No other penalty may

be imposed.

v. Appeals

A order of the magistrates to require a person to enter into a

recognizance to keep the peace or to be of good behaviour can be

appealed either to the High Court or the Crown Court. An appeal to the

High Court is limited to questions of law and proceeds by way of "case

stated". Before stating a case, the magistrates may require the

appellant to enter into a recognizance to pursue the appeal and to pay

costs. An appeal to the Crown Court proceeds as a de novo hearing of

all issues of fact and law.

The powers of the Crown Court and High Court on a successful

appeal include reversing or varying the magistrates' decision but do

not extend to the award of compensation.

An appeal to the High Court from a magistrates' court or the

Crown Court is covered by the civil legal aid scheme.

c. The 1994 Report of the Law Commission

In response to a request by the Lord Chancellor to examine

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

Act 1986. The Report recommended abolition of the power to bind over.

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 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 where a

coercive sanction (i.e. imprisonment for refusal) is in prospect.

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 estreatment. It was observed that these matters create particular

difficulty for participants in protest activity (e.g. ex parte Ward,

(1992) 95 Cr App Rep 215, referred to above), which concerned a

demonstration against pheasant shooting).

The Law Commission was concerned that insofar as binding over

orders, especially binding over orders on contra bonos mores grounds,

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.

COMPLAINTS

The applicants, referring to the Law Commission's report on

Binding Over, allege violation of Articles 5, 10 and 11 of the

Convention.

In connection with Article 5 of the Convention, they consider

that they are at risk of being detained for behaviour which is not

unlawful in domestic terms and which detention could not be justified

under any of the sub-paragraphs of Article 5 para. 1.

Under Articles 10 and 11 of the Convention, they allege that

binding over powers are so vague that they cannot be "laws" within the

meaning of the Convention, and that the notion of "contra bonos mores"

is so wide that a person who has given an undertaking to be of good

behaviour - under pain of imprisonment if he refuses to make the

undertaking - cannot be expected to know how to regulate his conduct.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 August 1994 and registered

on 7 November 1994.

On 11 January 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 9 May

1995. The applicants replied on 27 June 1995.

On 4 July 1995 the Commission granted the applicants legal aid.

THE LAW

1. The applicants allege that they are at risk of being detained for

behaviour which is not unlawful in domestic terms and which detention

could not be justified under any of the sub-paragraphs of Article 5

para. 1 (Art. 5-1). They allege violation of Article 5 (Art. 5) of the

Convention, which provides, so far as relevant, as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases ..."

Article 5 (Art. 5) of the Convention guarantees the right of an

individual not to be deprived of his liberty except in specified

circumstances. In proclaiming the "right to liberty", Article 5 para.

1 (Art. 5-1) is contemplating the physical liberty of an individual:

its aim is to ensure that no one should be deprived of this liberty in

an arbitrary fashion (Eur. Court H.R., Guzzardi judgment of 6 November

1980, Series A no. 39, p. 33, para. 92).

The applicants have not been detained at all in connection with

the matters at issue in the present application. There is therefore

no deprivation of liberty for the Commission to examine. Moreover,

there was no risk of the applicants being detained for non-compliance

with the binding over order: even if they had behaved contrary to the

order during the 12 months of its currency, the court could only have

estreated their recognizances, that is, in effect, ordered payment of

the £100. Possible arrest for failure to appear before the court would

have been a deprivation of liberty for that purpose, and not as a

sanction for the behaviour which was found to be contra bonos mores.

Accordingly, there is no factual basis for consideration by the

Commission of the applicants' complaints under Article 5 (Art. 5) of

the Convention. It follows that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicants also allege violations of Articles 10 and 11

(Art. 10, 11) of the Convention.

In connection with Article 10 (Art. 10) of the Convention, the

Government submit that the concepts of breach of the peace and contra

bonos mores as judicially defined are both compatible with the

requirements of Article 10 (Art. 10) of the Convention, and that

contemporary opinion in a free and democratic society which is party

to the Convention is unlikely to regard legitimate and peaceful

expression of ideas as being contra bonos mores. The Government liken

the notion to that of a statement which is defamatory, that is, one

which would lower a person's reputation in the eyes of right-minded

people in society. They accept that a finding of contra bonos mores

is not a conviction for a criminal offence under domestic law, but

consider the difference immaterial for the purposes of Article 10

(Art. 10). The Government underline that the only circumstances in

which the applicants could forfeit their recognizances are if they

breached the binding over order: that is a lawful order of a competent

court, and it is unlawful under domestic law to breach it. The

Government therefore submit that there is no risk that the applicants

face for exercising their right to freedom of expression in Article 10

(Art. 10).

The applicants disagree with the Government. They refer in

particular to the findings of the Law Commission, and underline that

the Law Commission was considerably stronger in its condemnation of the

concept of contra bonos mores than of the notion of breach of the

peace. They point to the very real danger of magistrates, who are

untrained laymen, adjudging conduct contra bonos mores when they

subjectively disapprove of it. They do not accept that an order not

to act contra bonos mores can be a formality which is prescribed by

law, because it does not state what behaviour is not permitted, and add

that it is impossible to know what may trigger breach proceedings: it

may well be behaviour which is not even a civil tort.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The

Commission concludes, therefore, that the application is not manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicants' complaints under Article 5

(Art. 5) of the Convention;

DECLARES ADMISSIBLE, without prejudging the merits, the remainder

of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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HASHMAN AND HARRUP v. THE UNITED KINGDOM

HASHMAN AND HARRUP v. THE UNITED KINGDOM

LEXI