PUBLIC ORDER—DEMONSTRATION—CONDITIONS IMPOSED ON DEMONSTRATION

Queen’s Bench Division (Divisional Court)
Lord Phillips CJ and Griffith Williams J
6 August 2007

The statutory powers available to the commissioner of police under the Serious Organised Crime and Police Act 2005 (SOCPA 2005), s 134 can be exercised by a subordinate on his behalf; where the conditions imposed on a demonstration under SOCPA 2005 are unworkable, they will be found to be ultra vires or in breach of Arts 10 and 11 (rights to freedom of expression and assembly) of the European Convention on Human Rights (the Convention).

Harold Keith and Clair Dobbin (instructed by the Crown Prosecution Service) for the prosecution.
Clive Sheldon (instructed by the attorney general) appeared as advocate for the court.

The defendant had been conducting a permanent demonstration in Parliament Square against the government’s policy on Iraq since June 2001. No suggestion had been made at any time that he was any form of security threat. Concerns were raised, however, that his demonstration might be used as a cover for a terrorist attack. In April 2005, SOCPA 2005 received Royal Assent. Sections 132 to 138 dealt with demonstrations in the vicinity of Parliament. They provided for a system of notices and authorisation, subject to conditions, for such demonstrations.  Where an unauthorised demonstration was carried on, or a condition not complied with, an offence was committed. In May 2006, a summons was issued against the defendant, alleging that he had knowingly failed to comply with conditions imposed upon him, contrary to s 134(7)(a). In particular, it was said that he had organised the demonstration on a site which exceeded the prescribed size; that he had failed to supervise the site of the demonstration properly; that he had used articles in connection with his demonstration that would allow others to conceal items within them; and that he had failed to maintain his site in a manner that allowed any person present to tell at a glance whether or not suspicious items were present. The judge ruled that there was no case to answer, and the prosecution appealed by way of case stated. Two issues arose: (i) whether or not the statutory powers available to the commissioner of police under s 134 could be exercised by a subordinate on his behalf; and (ii) whether or not the conditions imposed upon the defendant were ultra vires, or incompatible with Arts 10 and 11 of the Convention, on the grounds that they were unreasonable or insufficiently clear.

LORD CHIEF JUSTICE PHILlIPS (giving the judgment of the court):

Section 134 provided, so far as relevant:

 “134 (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.”

Whether or not to authorise a demonstration under s 134 was not discretionary; it was mandatory provided that the requisite notice had been given. The discretion conferred by that section was restricted to determining the conditions to be specified in the authorisation, which had to be such as “in the Commissioner’s reasonable opinion” were necessary for the purpose of preventing the matters specified in the section. That set the standard for any judicial review, a standard which equated to that of proportionality when considering the justification for restrictions on freedom of expression and freedom of assembly permitted by Arts 10 and 11 of the Convention. The question remained about whether the commissioner himself had to determine the conditions, or whether that was something he was entitled to delegate.

When the practicalities were considered, it was plain that Parliament could not have intended that the commissioner should determine the conditions himself. Evidence was given to the judge that, at the time of the hearing, there were 1,200 to 1,300 demonstration applications in the vicinity of Charing Cross Station alone. Determining the appropriate conditions was a technical matter, depending on the precise location and nature of the demonstration that was planned. The commissioner could not have been intended himself to determine, for instance, the number and size of banners or placards to be used at each demonstration.

Accordingly, his lordship differed from the conclusion of the judge; that the subject matter of the conditions was such as to preclude delegation by the commissioner of their determination.

Whether or not the conditions were ultra vires or incompatible
The defendant submitted that his demonstration was directed against torture, murder and genocide. In those circumstances it was not reasonable to impose any conditions on the ambit of his demonstration. His lordship did not accept that submission. The conditions were imposed, not with the object of frustrating or impeding the defendant’s demonstration, but of ensuring that others could not use the demonstration as a cover for terrorist activities. That was a perfectly reasonable and proportionate justification for imposing appropriate conditions.

It was plain from the judgment that counsel who represented the defendant at the hearing before the judge had something of a field day when examining the police witnesses about the conditions. He had succeeded in demonstrating to the satisfaction of the judge that the conditions were unworkable. If that was correct, the conditions were plainly neither reasonable nor did they satisfy the test of certainty that the Strasbourg court required when considering whether or not restrictions on Convention rights were “according to law”.

The first question would therefore be answered “the power can be delegated” and the second question would be answered “yes, by reason of lack of clarity”.