Blum v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller:,Mr Justice Lloyd Jones |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWHC 3209 (Admin) |
| Docket Number | Case No: CO/2218/2006, CO/2849/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2006 |
[2006] EWHC 3209 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President Of The Court Of Appeal, Civil Division and
Mr Justice Lloyd Jones
Case No: CO/2218/2006, CO/2849/2006
CO/2894/2006 AND CO/5557/2006
Peter Thornton QC and Julian Knowles (instructed by (1) Hickman & Rose, (2) Imran Khan & Ptners, (3) Bindman & Ptners, (4) Liberty) for the Appellants
David Pannick QC and David Pievsky (instructed by Treasury Solicitors) for the Respondents
Introduction
These are four related appeals by way of case stated. The first and second appellants were charged together and convicted of an offence contrary to s.132(1)(b) of the Serious Organised Crime and Police Act 2005 ("the Act"). The charge read:
"Stephen Blum and Aqil Shaer (and others) on Monday 1 st August 2005, at Parliament Square SW1 took part in a demonstration in a public place, namely Parliament Square SW1, which is a designated area for the purposes of the Act, where authorisation had not been given in accordance with s.134(2) of the Act."
The first and second appellants were each found guilty of the offence by District Judge (Magistrates' Court) Nicholas Evans at the Bow Street Magistrates' Court on 11 th January 2006. Blum was conditionally discharged for twelve months. Shaer was fined.
The third appellant, Maya Evans, was charged as follows:-
"On 25/10/2005 within the jurisdiction of the Central Criminal Court, took part in an unauthorised demonstration in a public place in a designated area, namely Whitehall SW1, contrary to s.132(1)(b) of the Serious Organised Crime and Police Act 2005."
The fourth appellant was charged with organising an unauthorised demonstration contrary to s.132(1)(a) of the Act, the charge stating that:-
"On the 25 th October 2005, within the jurisdiction of the Central Criminal Court, you organised an unauthorised demonstration in public place in a designated area, namely Whitehall junction with Richmond Terrace SW1."
Maya Evans was convicted on 7 th December 2005 at Bow Street Magistrates' Courts by District Judge (Magistrates' Court) Tubbs. Milan Rai was convicted at Bow Street Magistrates' Court on 16 th March 2006 by District Judge Evans.
Thus it is that in three of the cases the offence with which the appellant was charged was taking part in a demonstration in a designated area, when authorisation for the demonstration had not been given in accordance with s.134(2). In the fourth case, that of Milan Rai, the offence consisted of organising such a demonstration contrary to s.132(1)(a).
The offences committed by Mr Blum and Mr Shaer occurred in Parliament Square on 1 st August 2005, the day on which the relevant provisions of the Act came into force. Each of them participated in a demonstration by the "Stop the War Coalition" against the provisions of the Act. Each of them knew that the Act made the demonstration unlawful unless prior authorisation was obtained. During the demonstration the police specifically warned the demonstrators, including Mr Blum and Mr Shaer, that participation in the demonstration was unlawful, giving them an opportunity to desist.
The offence committed by Miss Evans occurred in Whitehall, opposite Downing Street, on 25 th October 2005. She read out the names of British soldiers who had been killed in Iraq, while the other participant in the demonstration, Mr Rai, read out the names of Iraqi citizens who had died in the conflict. Miss Evans was aware that authorisation for the demonstration was required, and was aware that it had neither been sought nor given. The police attended at the demonstration and warned Miss Evans and Mr Rai that they would be arrested and charged if they continued. The police withdrew to enable the participants to stop the demonstration. They chose to continue.
The demonstrations were peaceful and good-humoured. All behaved in a peaceful and orderly way throughout. The demonstrations were as much as anything a demonstration against the requirement that authorisation should have been required in order to demonstrate in Parliament Square and/or in Whitehall.
The Legislation
S.132(1) of the Act states:-
"Any person who (a) organises a demonstration in a public place in the designated area or (b) takes part in a demonstration in a public place in the designated area … is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under s.134(2)."
'Designated area' is defined by s.132(7)(a) by reference to an order made under s.138. S.138 empowers the Secretary of State to make an order specifying an area as a designated area, so long as it does not extend more than one kilometre from Parliament Square. An order has been made under the powers conferred by s.138. The Serious Organised Crime and Police Act 2005 (Designated Area) Order 2005, SI No 1537, identified the designated area, which includes Parliament Square and Whitehall, where the demonstrations took place.
S.133 requires a person seeking authorisation for a demonstration in the designated area to give written notice to that effect to the Commissioner of Police of the Metropolis.
S.134 addresses the giving of authorisations for demonstrations in the designated area. It provides:-
"The Commissioner must give authorisation for the demonstration to which the notice relates."
It follows there can be no question of the Commissioner refusing authorisation for a demonstration in the designated area. What, however, the Commissioner may do is make the granting of authorisation subject to conditions. Sub-sections 3 and 4 provide in that regard as follows:-
"(3) In giving authorisation, the Commissioner may impose on the persons organising or taking part in the demonstrations such conditions specified in the authorisation and relating to the demonstration as in the Commissioner's reasonable opinion are necessary for the purpose of preventing any of the following –
(a) hindrance to any person wishing to enter or leave the Palace of Westminster,
(b) hindrance to the proper operation of Parliament,
(c) serious public disorder,
(d) serious damage to property
(e) disruption to the life of the community,
(f) a security risk in any part of the designated area,
(g) risk to the safety of members of the public (including any taking part in the demonstration).
(4) The conditions may, in particular, impose requirements as to –
(a) the place where the demonstration may, or may not, be carried on,
(b) the times at which it may be carried on,
(c) the period during which it may be carried on,
(d) the number of persons who may take part in it,
(e) the number and size of banners or placards used,
(f) maximum permissible noise levels."
The issues
Before the District Judges all appellants contended first that s.132(1)(a) and (b) were not compatible with Articles 10 and 11 of the European Convention on Human Rights (Freedom of Expression and Freedom of Assembly) as applied by the Human Rights Act 1998 ( HRA 1998). That led them to argue either that the sub-sections should be subject to a proviso and read down, pursuant to s.3 of the Human Rights Act 1998, or alternatively simply that it was unlawful to convict the appellants under s.6(1) of the HRA 1998. In the case of Milan Rai, there was clearly taken a further point which was that it was an abuse of process to prosecute, having regard to the infringement of Mr Rai's rights under Articles 10 and 11. Thus, in addition to the questions raised in the other three cases District Judge Evans raised in that case the question "Was the court right to have refused the application by the appellants to have the proceedings stayed as an abuse of process?". Mr Pannick QC took no point that this third question had not been specifically raised in the other cases and was prepared to treat them as though it had.
In all cases the District Judges rejected the arguments of the appellants, holding that the sections were compliant with the Convention on Human Rights and holding that there was no infringement of the appellants' rights. Furthermore, in none of the cases were the District Judges persuaded to stay the proceedings.
Before the Divisional Court the appellants no longer contended that s.132(1)(a) and (b) were incompatible with Articles 10 and 11. That is an important concession. They no longer argue that any part of the sections should be read down, pursuant to the court's obligation under s.3 of the HRA 1998. The point which is argued on appeal is that the decision of the police to arrest, of the CPS to prosecute and the decision of the court to convict has interfered with important convention rights and thus had to be justified under convention law. The submission in simple terms is that the State, in its various public authority guises (police, CPS, courts) must be able to justify the necessity to act on the individual facts of each case. Thus, it is submitted that the questions that arise in each case are – was the arrest, detention, prosecution and conviction of the appellant strictly necessary? Was each necessary and proportionate for the achievement of legitimate aims, or was it heavy-handed and unnecessary? It is further submitted that no consideration was given to that question of justification by the District Judges in the individual cases, and that the...
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