CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)