European Court of Human Rights
The applicants' principal complaints were that their arrests and detention for breaches of the peace had not been "prescribed by law" as required by Art.5(1) of the Convention and had amounted to disproportionate interferences with their right to freedom of expression in breach of Art.10. The applicants contended that their arrests and detention had not been "lawful" within the meaning of Art.5(1)(c). The first and second applicants were ordered to agree to be bound over to keep the peace and be of good behaviour. When they refused, they were committed to prison. The first and second applicants complained that they had not been given sufficient details of the allegations against them.
HELD: (1) The expression "lawful" required full compliance with domestic law and also that the applicable domestic law be formulated with sufficient precision to allow the citizen, if need be with legal advice. (2) The concept of breach of the peace had been clarified by the English courts to the extent that it was sufficiently established that a breach of the peace was committed only when a person caused harm, or appeared likely to cause harm, to persons or property or acted in a manner the natural consequence of which was to provoke others to violence. It was clear that English law allowed a person to be arrested if he or she caused a breach of the peace or was reasonably feared to be likely to cause one. (4) Under the Convention system the interpretation and application of domestic law was principally a task for the national courts. However, since failure to comply with domestic law entailed a breach of Art.5(1) of the Convention, the European Court of Human Rights could and should have exercised a power of review. (5) There was no cause to doubt that the police had been justified in fearing that the first and second applicants' behaviour, if persisted in, might provoke others to violence. However, it found that the protest of the third, fourth and fifth applicants had been entirely peaceful and did not involve any behaviour which could have justified the police in fearing that a breach of the peace was likely to be caused. (6) For this reason, in the absence of any national decision on the question, it found that the arrest of these three applicants and their detention for seven hours had not been lawful, either in terms of English law or Art.5(1) of the Convention. (7) There had been no violation of Art.5(1) of the Convention in respect of the arrest and initial detention of the first and second applicants, but there had been a violation in respect of the arrest and detention of the third, fourth and fifth applicants. (8) There had been no violation of Art.5(1) of the Convention in respect of the detention of the first and second applicants for refusing to be bound over. (9) The third, fourth and fifth applicants could have brought civil proceedings in the national courts against the police who arrested and detained them. There had, therefore, been no violation of Art.5(5) of the Convention. (10) The charge sheets given to the first and second applicant had contained enough information for the purposes of Art.6(3)(a) of the Convention. There had, therefore, been no breach of this provision. (11) Measures taken against Ms Steel, particularly the long periods of detention, amounted to serious interferences with the exercise of her right to freedom of expression. However, having regard to the dangers inherent in her chosen form of protest, the risk of disorder arising from the persistent obstruction of the shoot, and the likelihood of Ms Steel resuming her protest, it did not find that the actions of the police in arresting and detaining her for 44 hours before bringing her before the magistrates, or the court's decision to fine her £70 and order her to bound over to keep the peace and be of good behaviour for one year, were disproportionate. (12) It was legitimate for the national court to interpret Ms Steel's refusal to be bound over as a statement of her intention to continue with her protest activities despite its order requesting her to refrain from such behaviour. It was not disproportionate that the applicant was committed to prison, even for as long as 28 days. There was no violation of Art.10 of the Convention in respect of the first applicant. Applying the same reasoning, the measures taken in respect of Ms Lush had not been disproportionate. (13) There had also been a breach of Art.10. In any case, the arrests and detention of the third, fourth and fifth applicants had been disproportionate to the aim of preventing disorder or of protection of the rights of others. (14) The Court awarded £500 to each of the third, fourth and fifth applicants in respect of compensation for non-pecuniary damage, together with legal costs and expenses totalling £20,000.
LTL 1/10/98 : Times, October 1, 1998 : (1998) Crim LR 893 : 28 EHRR 603
Document No. AG0000826
(1999) 28 EHRR 603
EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 1950,ECHR ART.5(1),RIGHT TO A LIBERTY AND SECURI
William Meade (Senior Clerk)