DPP v Haw

JurisdictionEngland & Wales
JudgeDistrict Judge Purdy,City of Westminster Magistrates Court
Judgment Date06 August 2007
Neutral Citation[2007] EWHC 1931 (Admin)
Docket NumberCase No: CO/3990/2007
CourtQueen's Bench Division (Administrative Court)
Date06 August 2007
Between
Director of Public Prosecutions
Appellant
and
Brian Haw
Respondent

[2007] EWHC 1931 (Admin)

district Judge Purdy

city of Westminster Magistrates Court

Before: The Lord Chief Justice of England and Wales and

the Honourable Mr Justice Griffith Williams

Case No: CO/3990/2007

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

Mr H. Keith and Miss C. Dobbin (instructed by DPP) for the Appellant

Mr C. Sheldon (advocate of the court) instructed by the Attorney General

Mr Brian Haw appeared in person

Hearing dates : 4 th and 27th July 2007

Judgement

Lord Phillips CJ :

This is the judgment of the court

Introduction

1

This is an adjourned hearing of an appeal by way of case stated by the Director of Public Prosecutions against a decision of District Judge Purdy in the City of Westminster Magistrates Court on 22 January 2007. The judge ruled that there was no case for the Respondent, Brian Haw, to answer on a charge of knowingly failing to comply with a condition imposed under section 134 of the Serious Organised Crime and Police Act 2005 ('SOCA') in respect of a demonstration in Parliament Square. The hearing before us was adjourned because Mr Haw had not been served with relevant documents in time to give them proper consideration.

2

There had been listed before us at the same time an application by Mr Haw for permission to apply for judicial review to challenge the decision taken by the police to impose those conditions. Initially it was not clear whether Mr Haw wished to pursue that application. His stance was that he wished at least to keep it alive. We directed that, if he wished to pursue, it he should do so after we have dealt with the case stated and on a different occasion.

3

The issues raised by the case stated are as follows:

i) Whether the statutory powers available to the Commissioner of Police under section 134 of SOCA can be exercised by a subordinate on his behalf;

ii) Whether the conditions imposed on Mr Haw were ultra vires, or incompatible with Articles 10 and 11 of the European Convention on Human Rights ('ECHR'), as unreasonable or insufficiently clear.

Background

4

Mr Haw has been conducting a permanent demonstration in Parliament Square against the Government's policy on Iraq since 2 June 2001. At one time he occupied a site opposite the entrance to the House of Commons of some 44 metres in width. This was encumbered with placards, tents and other objects. Mr Haw is a peaceable man and no one has ever suggested that he himself poses any form of threat to security. The concern is, however, that his demonstration so close to Parliament might be used as cover for some form of terrorist attack.

5

On 7 April 2005 SOCA received royal assent. Sections 132 to 138 deal specifically with demonstrations in the vicinity of Parliament. They provide for a system of notices and authorisation, subject to conditions, for such demonstrations. Where an unauthorised demonstration is carried on or a condition is not complied with an offence is committed. These provisions came into force on 1 July 2005.

6

Mr Haw brought proceedings for judicial review in which he submitted that these provisions had no application to his demonstration as it was already in existence when they came into effect. On May 2006 the Court of Appeal ruled against this submission in R (Haw) v Secretary of State for the Home Department [2006] EWCA Civ 532. A general challenge to sections 132 to 138 of SOCA as an infringement of Article 11 of the ECHR was made in appeals by way of case stated brought by four other demonstrators. This also failed: Blum and others v Secretary of State for the Home Department [2006] EWHC 3209 (Admin).

The statutory provisions:

7

S.132(1) of SOCA provides:

"'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).'

Under section 133(1) a person seeking authorisation for a demonstration in the designated area must give written notice to that effect to the Commissioner of Police of the Metropolis ("the Commissioner"). The notice must be given, if reasonably practicable, not less than 6 clear days before the day on which the demonstration is to start or, if that is not reasonably practicable, then as soon as it is, and in any event not less than 24 hours before the time the demonstration is to start: section 133(2).

The notice, which must contain information relating to the date, time, place, duration etc of the demonstration etc, must be given by delivery to a police station in the metropolitan police district or by post by recorded delivery to such a police station: section 133(5)."

8

Section 134 provides, so far as relevant:

"134 Authorisation of demonstrations in designated area

(1) This section applies if a notice complying with the requirements of section 133 is received at a police station in the metropolitan police district by the time specified in section 133(2).

(2) The Commissioner must give authorisation for the demonstration to which the notice relates.

(3) In giving authorisation, the Commissioner may impose on the persons organising or taking part in the demonstration 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.

(5) The authorisation must specify the particulars of the demonstration given in the notice under section 133 pursuant to subsection (4) of that section, with any modifications made necessary by any condition imposed under subsection (3) of this section.

(6) The Commissioner must give notice in writing of –

(a) the authorisation,

(b) any conditions imposed under subsection (3), and

(c) the particulars mentioned in subsection (5),

to the person who gave the notice under section 133.

(7) Each person who takes part in or organises a demonstration in the designated area is guilty of an offence if –

(a) he knowingly fails to comply with a condition imposed under subsection (3) which is applicable to him (except where it is varied under section 135), or

(b) he knows or he should have known that the demonstration is carried on otherwise than in accordance with the particulars set out in the authorisation by virtue of subsection (5).

(8) It is a defence for a person accused of an offence under subsection (7) to show—

(a) (in paragraph (a) case) that the failure to comply, or

(b) (in paragraph (b) case) that the divergence from the particulars,

Arose from circumstances beyond his control, or from something done with the agreement, or by the direction of a police officer.

(9) The notice required by subsection (6) may be sent by post to the person who gave the notice under section 133 at the address stated in that notice pursuant to subsection (4)(e) of that section.

(10) If the person to whom the notice required by subsection (6) is to be given has agreed, it may be sent to him by email or by facsimile transmission at the address or number notified by him for the purpose to the Commissioner (and a notice so sent is 'in writing' for the purposes of that subsection). "

9

Section 135 provides:

"135 Supplementary directions

(1) This section applies if the senior police officer reasonably believes that it is necessary, in order to prevent any of the things mentioned in paragraphs (a) to (g) of subsection (3) of section 134—

(a) to impose additional conditions on those taking part in or organising a demonstration authorised under that section, or

(b) to vary any condition imposed under that subsection or under paragraph (a) (including such a condition as varied under subsection (2)).

(2) The senior police office may give directions to those taking in or organising the demonstration imposing such additional conditions or varying any such condition already imposed.

(3) A person taking part in or organising the demonstration who knowingly fails to comply with a condition which is applicable to him and which is imposed or varied by a direction under this section is guilty of an offence.

(4) It is a defence for him to show that the failure to comply arose from circumstances beyond his control.

(5) In this section, 'the senior police officer' means the most senior in rank of the police officers present at the scene (or any one of them if there are more than one of the same rank)."

The Conditions

10

An Order specifying the designated area, including Parliament Square, was made by the Secretary of State on 8 June 2005. It came into force on 1 July 2005.

11

The Commissioner of Metropolitan Police signed an undated document under which he gave notice that he delegated his functions under section 134 of SOCA to an officer of the rank of...

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