CEDH · CASELAW;REPORTS;ENG — 9 avril 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                           FIRST   CHAMBER                      Application No. 24838/94             Helen Steel, Rebecca Lush, Andrea Needham,                 David Polden & Christopher Cole                               against                         the United Kingdom                      REPORT OF THE COMMISSION                      (adopted on 9 April 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-60) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-31). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 32-60). . . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 61-189). . . . . . . . . . . . . . . . . . . . 11        A.    Complaints declared admissible           (para. 61). . . . . . . . . . . . . . . . . . . . 11        B.    Points at issue           (para. 62). . . . . . . . . . . . . . . . . . . . 11        C.    As regards Article 6 para. 2 of the Convention:           the first applicant           (paras. 63-72). . . . . . . . . . . . . . . . . . 12             CONCLUSION           (para. 72). . . . . . . . . . . . . . . . . . . . 13        D.    As regards Article 6 para. 3 (a) and (b) of the           Convention: the first and second applicants           (paras. 73-87). . . . . . . . . . . . . . . . . . 13             CONCLUSION           (para. 87). . . . . . . . . . . . . . . . . . . . 15        E.    As regards Article 6 para. 3 (c) and Article 6 para. 1           of the Convention: the second applicant           (paras. 88-97). . . . . . . . . . . . . . . . . . 15             CONCLUSION           (para. 97). . . . . . . . . . . . . . . . . . . . 16                          TABLE OF CONTENTS                                                             Page        F.    As regards Article 5 para. 1 of the Convention:           the initial detention of all applicants           (paras. 98-107) . . . . . . . . . . . . . . . . . 16             CONCLUSION           (para. 107) . . . . . . . . . . . . . . . . . . . 18        G.    As regards Article 5 para. 1 of the Convention:           the later detention of the first and second applicants           (paras. 108-120). . . . . . . . . . . . . . . . . 18             CONCLUSION           (para. 120) . . . . . . . . . . . . . . . . . . . 20        H.    As regards Article 5 para. 3 of the Convention:           all applicants           (paras. 121-126). . . . . . . . . . . . . . . . . 20             CONCLUSION           (para. 126) . . . . . . . . . . . . . . . . . . . 21        I.    As regards Article 5 para. 5 of the Convention:           the initial detention of all applicants           (paras. 127-131). . . . . . . . . . . . . . . . . 21             CONCLUSION           (para. 131) . . . . . . . . . . . . . . . . . . . 21        J.    As regards Article 5 para. 5 of the Convention:           the second detention of the first and second applicants           (paras. 132-135). . . . . . . . . . . . . . . . . 21             CONCLUSION           (para. 135) . . . . . . . . . . . . . . . . . . . 22        K.    As regards Article 10 of the Convention:           the first and second applicants           (paras. 136-163). . . . . . . . . . . . . . . . . 22             CONCLUSION           (para. 163) . . . . . . . . . . . . . . . . . . . 27        L.    As regards Article 10 of the Convention:           the third, fourth and fifth applicants           (paras. 164-171). . . . . . . . . . . . . . . . . 27             CONCLUSION           (para. 171) . . . . . . . . . . . . . . . . . . . 28        M.    As regards Article 11 of the Convention:           all applicants           (paras. 172-173). . . . . . . . . . . . . . . . . 28             CONCLUSION           (para. 173) . . . . . . . . . . . . . . . . . . . 28                          TABLE OF CONTENTS                                                             Page        N.    As regards Article 13 of the Convention:           the first and second applicants           (paras. 174-177). . . . . . . . . . . . . . . . . 28             CONCLUSION           (para. 177) . . . . . . . . . . . . . . . . . . . 29        O.    Recapitulation           (paras. 178-189). . . . . . . . . . . . . . . . . 29   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 30   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicants are British citizens, resident in England. The first applicant was born in 1965 and resides in London. The second applicant was born in 1973 and resides in Warsash, Hampshire. The third, fourth and fifth applicants were born in 1965, 1940 and 1963 respectively and all reside in London.   They were represented before the Commission by Mr. Philip Leach of Liberty, London.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by their agent, Ms. Susan Dickson of the Foreign and Commonwealth Office, London.   4.    The case concerns the applicants' detention for breach of the peace and, in the case of the first and second applicants, their subsequent detention after refusing to agree to be "bound over".   The applicants invoke Articles 5, 6, 10, 11 and 13 of the Convention.   B.    The proceedings   5.    The application was introduced on 31 May 1994 and registered on 8 August 1994.   6.    On 11 January 1995 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 9 May 1995, after an extension of the time-limit fixed for this purpose.   The applicants replied on 11 August 1995 after two extensions of the time-limit.   On 24 October 1995, the Commission (First Chamber) granted the applicants legal aid for the representation of their case.   8.    On 26 June 1996 the Commission declared the application admissible in so far as it related to the first to fifth applicants and inadmissible in so far as it related to the sixth applicant.   9.    The text of the Commission's decision on admissibility was sent to the parties on 9 July 1996. They were invited to submit such further information or observations on the merits as they wished and also to submit further information in respect of one aspect of the case   The Government submitted their observations on 27 September 1996 and the applicants submitted theirs on 30 September 1996.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs. M. HION           Mr.   R. NICOLINI   12.   The text of this Report was adopted on 9 April 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case        The first applicant   16.   On 22 August 1992 the first applicant took part in a protest against a grouse shoot.   The shoot, which commenced at about 9.30 a.m., was attended by approximately 60 protestors.   During the morning session, the protestors shouted at those taking part in the shoot and attempted to obstruct and distract those carrying guns.   At midday the shooting party broke for lunch and did not recommence until the police arrived at approximately 1.45 p.m.   17.   When the police arrived, an officer used a public address system to warn protestors to stop their behaviour. The protestors continued to engage in the same activities and consequently the police made a total of 13 arrests.   18.   The first applicant was arrested by a police officer at approximately 2 p.m.   According to the police she was intentionally impeding the progress of a member of the shoot, by walking in front of him as he lifted his shotgun to take aim, thus preventing him from taking shots.    She was taken to a police vehicle where she was detained until about 3.15 p.m.   At 3.15 p.m. she was transferred to a "prison van" and was subsequently taken to the police station at approximately 7.15 p.m.   19.   The Police Custody record gives "breach of the peace" as the reason for the applicant's arrest and states that her detention was authorised, "to prevent any further breach of the peace".   The record states that she was charged at 12.56 a.m. on 23 August 1992 with breach of the peace pursuant to Section 115 of the Magistrates Court Act 1980. The charge stated: "That you did on Saturday 22 August 1992 at Wheeldale Beck in the parish of Egton behave in a manner whereby a breach of the peace was occasioned".   20.   At 9.40 a.m. on 24 August 1992 the applicant was further charged with using "threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress", contrary to Section 5 (1) of the Public Order Act 1986. She attended court the same morning and was released on conditional bail (after approximately 44 hours detention), the condition being that she was not to attend any game shoot in North Yorkshire during the period of remand.   21.   The first applicant's trial took place before the Whitby Magistrates' Court between 15 and 20 February 1993.   She was acquitted on the Section 5 charge relating to the morning of 22 August 1992, and convicted on the Section 5 charge relating to the afternoon of the same day.   The magistrates found the complaint regarding the alleged breach of the peace proved, but did not specify whether the complaint related to the behaviour in the morning or the afternoon.   22.   On 1 December 1993 the Teeside Crown Court heard the first applicant's appeal, by way of rehearing.   As a result of this appeal, she was fined £70.00 for the Section 5 offence, and ordered to agree to be bound over for 12 months in the sum of £100.00 in respect of the breach of the peace.   She refused to be bound over, and was committed to prison for 28 days.        The second applicant   23.   On 15 September 1993 the second applicant took part in a protest against the building of a new motorway, the M11, in London.   During the course of that day a group of approximately 20 to 25 protestors entered onto a construction site in Wanstead, London E11.   The protestors climbed into trees which were to be felled and also onto some of the stationery machinery.   The second applicant stood in front of a   "JCB" digger, underneath the "bucket" of the vehicle, in order to prevent the driver from working.   The protestors were removed by security guards. None of the protestors offered any resistance to such removal and there were no incidences of violence.   24.   At approximately 4.15 p.m. on 15 September 1993, the second applicant was arrested by a police officer for conduct, "likely to provoke a disturbance of the peace".   She was taken to Ilford Police Station, where she was charged at 5.30 p.m.   The charge was that her "conduct on 15 September 1993 at Cambridge Park, Wanstead, was likely to provoke a disturbance of the peace ...".   She was kept in custody until 9.40 a.m. the following day, because of a belief that she would cause a further breach of the peace if released.   25.   She appeared before Redbridge Magistrates' Court on the morning of 16 September 1993 (after approximately 17 hours detention), to answer an allegation that she had engaged in conduct likely to provoke a disturbance of the peace.   The proceedings were adjourned to 14 December 1993 and the second applicant was released.   26.   On 14 December 1993 the allegation of conduct likely to cause a breach of the peace, brought under Section 115 of the Magistrates Court Act 1980, was found to have been made out.   The second applicant was ordered to agree to be bound over for twelve months to keep the peace and be of good behaviour in the sum of £100.   She refused to be bound over and was committed to prison for seven days.   The second applicant was represented at this hearing by a barrister acting pro bono.   27.   On 23 December 1993 the second applicant applied to the magistrates for them to state a case to the High Court.   They replied on 24 December that under Section 114 of the Magistrates' Courts Act 1980 they would require a recognizance of £500.00 that the applicant would prosecute an appeal without delay and an agreement that the second applicant would submit to judgment and pay any costs ordered by the High Court.   After correspondence between Liberty on behalf of the second applicant and the clerk to the court, in which it was pointed out that the second applicant was in receipt of income support (of £34.80 per week), the magistrates agreed to reduce the recognizance to £400.00.   The magistrates agreed that the application to state a case could remain pending whilst the second applicant applied for legal aid. Legal aid was refused on 11 January 1994 and the second applicant's appeal to the Area Committee was heard on 16 March 1994 and dismissed on 19 March 1994.   The appeal was dismissed for the following reasons:        "having regard to the fact that you rejected opportunities      to appeal that were available to you at the time and which      would have avoided your imprisonment.   The Committee were      also in doubt as to the extent of the likely ultimate      benefit to you which you can achieve by way of case      stated."        The third, fourth and fifth applicants   28.   On 20 January 1994 at approximately 8 a.m. the third, fourth and fifth applicants attended the Queen Elizabeth Conference Centre in Westminster, London where the "Fighter Helicopter II" Conference was being held.   They were protesting against the sale of fighter helicopters.   The protest took the form of handing out leaflets and holding up banners saying: "Work for Peace and not War".   29.   At approximately 8.25 a.m. these three applicants were arrested by police officers. The third applicant was holding a banner and the fourth and fifth applicants were distributing leaflets.   All three applicants were taken to Charing Cross Police Station where the custody record for each of the applicants records the "circumstances" (the word "charges" having been deleted) as:        "Breach of the peace, common law.        On 20 January 1994 at ... constituted or was likely to      provoke a disturbance of the peace to be brought before a      justice of the peace to be dealt with according to law.      Contrary to common law."   30.   At approximately 10.40 a.m. the third, fourth and fifth applicants were taken to Bow Street Magistrates' Court where they were detained in a cell.   At approximately 3.45 p.m. the three applicants were brought before the magistrates who adjourned matters due to lack of time until 25 February 1994.   The applicants were then released from custody.   They had been detained for approximately seven hours.   31.   On 25 February 1994, no evidence was called and the proceedings against the third, fourth and fifth applicants were withdrawn.   B.    Relevant domestic law        BREACH OF THE PEACE   32.   Breach of the peace is a common law concept of great antiquity. It was recently defined by the High Court in R v. Howell [1982] 1 QB 416 at 427.   A breach of the peace was held to occur:        "... whenever harm is actually done or is likely to be done      to a person or in his presence to his property or a person      is in fear of being so harmed through an assault, an      affray, a riot, unlawful assembly or other disturbance."   33.   Subsequent to the domestic proceedings in the present application there has been a further definition by the domestic courts of "breach of the peace".   In Nicol and Selvanayagam v. Director of Public Prosecutions (1996) JP 155, at p. 163 (see No. 32213/96, pending before the Commission) Simon Brown LJ stated:   34.   "... the court would surely not find a Section 115 [of the      Magistrates' Courts Act 1980] complaint [i.e. breach of the      peace] proved if any violence likely to have been provoked      on the part of others would be not merely unlawful but      wholly unreasonable - as of course, it would be if the      defendant's conduct was not merely lawful but such as in no      material way interfered with the other's rights.   A      fortiori, if the defendant was properly exercising his own      basic rights, whether of assembly, demonstration or free      speech."   35.   A person may be arrested without warrant by exercise of the common law power of arrest, for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace (Albert v. Lavin [1982] AC 546 at p. 565).   The Police and Criminal Evidence Act 1984 (Sections 17 (6) and 25 (6)) preserved the common law powers to arrest for breach of the peace.        BINDING OVER ORDERS   36.   A binding over order may be imposed by a magistrates' court on any person appearing before it. Magistrates have power to "bind over" under the Magistrates Courts Act 1980, under common law and under the Justices of the Peace Act 1361.   Binding over under the Magistrates Courts Act 1980   37.   Section 115 of the Magistrates Courts Act 1980 ("the 1980 Act") creates a statutory procedure whereby a person may be brought to a magistrates' court, when the only objective of the complainant is to have the respondent bound over.        Section 115        "(1)   The power of a magistrates' court on the complaint of      any person to adjudge any other person to enter into a      recognizance, with or without sureties, to keep the peace      or to be of good behaviour towards the complainant shall be      exercised by order on complaint.      ...      (3)   If any person ordered by a magistrates' court under      subsection (1) above to enter in a recognizance, with or      without sureties, to keep the peace or to be of good      behaviour fails to comply with the order, the court may      commit him to custody for a period not exceeding 6 months      or until he sooner complies with the order."   38.   Under this statutory procedure, the magistrates cannot make a binding over order until the hearing is concluded and they are satisfied that the respondent should be bound over.   39.   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   but only that   the conduct complained of was likely to cause a breach of the peace (R. v. Morpeth Ward Justices, ex parte Ward (1992) 95 Cr App Rep 215).   40.   The magistrates must be satisfied both that the defendant's past conduct gave rise to a situation whereby the peace was or was likely to be breached and also that, unless bound over, there is a real risk of his similarly conducting himself in the future.   The conduct in question does not itself have to be disorderly or a breach of the criminal law.   It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established (R. v. Aubrey Fletcher, ex parte Thompson [1969] 1 WLR 872 and Percy v. DPP - unreported 6 December 1994).   41.   The statutory procedure is begun by complaint, as are all civil proceedings initiated in the magistrates' court.   Nevertheless the proceedings have been described as analogous to criminal proceedings. It has traditionally been unclear whether the court should apply the criminal or the civil standard of proof when deciding whether facts exist which warrant a binding over order at the conclusion of the proceedings.   However in the above noted case of Nicol and Selvanayagam v. DPP (1996) JP 155, Simon Brown, L. J. stated:        "It is common ground that, although no criminal conviction      results from finding such a complaint proved, the criminal      standard of proof applies to the procedure."   Binding over at common law and under the Justices of the Peace Act 1361   42.   In addition to the above statutory procedure magistrates have powers to bind over at common law and under the Justices of the Peace Act 1361 ("the 1361 Act").   43.   Justices of the Peace Act 1361        "First, that in every County of England shall be assigned      for the Keeping of the Peace, one Lord, and with him three      or four of the most worthy in the County, with some learned      in the Law, and they shall have Power to ...        ... and to take and arrest all those that they may find by      Indictment, or by Suspicion, and to put them in Prison: and      to take of all them that be [not] of good Fame, where they      shall be found, sufficient surety and Mainprise of their      good Behaviour towards the King and his People ..."   44.   Under these powers no offence need be proved. At any stage in proceedings before magistrates any of the participants in the proceedings (defendant/complainant/witness) may be bound over, if the magistrates consider that the person's conduct is such that there might be a breach of the peace in the future, or that his behaviour was contra bonos mores (contrary to a good way of life).   45.   When a court makes a binding over order under common law or the 1361 Act, there is no requirement that the facts, on which the court relies as justification of its decision, should be proved by admissible evidence.   46.   The powers derived from common law and the 1361 Act may be exercised before the conclusion of criminal proceedings or during proceedings started by complaint (including during proceedings for statutory breach of the peace).   Likewise under these powers a defendant may be bound over for the duration of an adjournment, after withdrawal of a case against him by the prosecution who offer no evidence, and upon acquittal.   The nature of a binding over order   47.   An order binding a person over to keep the peace and/or to be of good behaviour, requires that person to enter into a "recognizance" (an undertaking or bond 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. If he does not consent to enter into a recognisance then the court may commit him to prison forthwith.   However if he agrees to enter into the recognizance, but subsequently, during the specified period, behaves in a way so as to breach the order, he forfeits the sum of the recognizance, or a lesser sum at the magistrates' discretion.   48.   If the binding over order is made pursuant to Section 115 of the 1980 Act, then refusal to accept such order can result in up to six months imprisonment or until the person concerned "sooner complies with the order".   However, in respect of failure to comply with other binding over orders, there is no limit to the term of imprisonment.   Contra bones mores   49.   A person whose behaviour has been "contra bones mores" can also be bound over to be of good behaviour where there is reason to believe there might be a repetition of the conduct complained of.   "Contra bones mores" was defined by Glidewell LJ in Hughes v. Holley (1988) 86 Cr App R 130 as:        "conduct which has the property of being wrong rather than      right in the judgment of the vast majority of contemporary      fellow citizens".   Appeals   50.   An order of the magistrates to require a person to enter into a recognizance to keep the peace and/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, under Section 114 of the Magistrates' Court Act 1980, require the appellant to enter into a recognizance to pursue the appeal and to pay costs.   An appeal to the Crown Court, under the Magistrates' Courts (Appeals from Binding Over Orders) Act 1956 Section 1, proceeds as a rehearing of all issues of fact and law.        JUDICIAL IMMUNITY   51.   The Justices of the Peace Act 1979 ("the 1979 Act") - as amended by the Courts and Legal Services Act 1990 ("the 1990 Act") - provides under Section 44 (as amended by Section 108 (2) of the 1990 Act), that no action shall lie against any magistrate in respect of any act or omission in the execution of his duty which fell within his jurisdiction. Section 45 of the 1979 Act (as amended by Section 108 (3) of the 1990 Act), states   that an action shall lie against a magistrate in respect of any act or omission in purported execution of his duty which is not within his jurisdiction, but only if it is proved he acted in bad faith.        LEGAL AID   52.   The "Green Form" scheme provides two hours' worth of help from a solicitor, and can include preparation for a court case, but does not provide for representation. An extension of the costs limit can be granted by the Legal Aid Board. Assistance by way of Representation ("ABWOR") enables the court, in limited circumstances, to appoint a solicitor, who happens to be within the court precincts, to represent a party who would not otherwise be represented.   The appointment may be made either of the court's own motion or on application by a solicitor. The court is under no obligation to advise a party of the possibility of an appointment.   53.   Where proceedings are brought under Section 115 of the Magistrates' Courts Act 1980, criminal legal aid is available.   54.   There is a right of appeal to the Crown Court against an order requiring a person to enter into a recognizance to keep the peace or to be of good behaviour: see Magistrates Courts (appeals from Binding Over Orders) Act 1956, Section 1 (1).   The Crown Court is always competent to grant representation in respect of proceedings before it: Legal Aid Act 1988, Section 20 (2).   If there is instead an appeal by way of case stated to the High Court, that court too has power to grant legal aid, although (since that court is a civil court) the relevant provisions are to be found in Part IV of the 1988 Act which deals with civil legal aid.        RELEVANT CRIMINAL OFFENCES   55.   Section 5 of the Public Order Act 1986 ("the 1986 Act") creates the offence of threatening, abusive, insulting or disorderly conduct likely to harass, alarm or distress others.   It is triable before magistrates and is punishable by fine. It is a defence to a charge under Section 5 for the accused to show that the behaviour in question was reasonable in the circumstances.        THE 1994 REPORT OF THE LAW COMMISSION   56.   In response to a request by the Lord Chancellor to examine binding over powers, the Law Commission published, in February 1994, 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 1986 Act.   The Report recommended abolition of the power to bind over.   57.   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 Law 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 by natural justice.   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 entreatment. It was observed that these matters create particular difficulty for participants in protest activity.   58.   The Law Commission examined the compatibility of present law and practice with the Convention (Report, Part V). Given the "civil" classification of binding over, it saw difficulty in regarding arrest and detention, with a view to production of a person before the magistrates for binding over, as "bringing him before the competent legal authority on reasonable suspicion of having committed an offence" within Article 5 para. 1 (c), a problem compounded in the case of "apprehended" breach of the peace where no actual unlawful conduct is alleged to have occurred. The Law Commission doubted whether imprisonment for refusal to be bound over could be regarded as non- compliance with an "obligation prescribed by law" within Article 5 para. 1 (b), given the generality of the obligation, common to all members of society, to keep the peace or be of good behaviour.   59.   The Law Commission felt that an arrest or binding over order made on the basis of breach of the peace might, and an order made on contra bonos mores grounds would, infringe the principle of certainty as stated in, for example, Eur. Court HR, Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, and thus fail to meet the various requirements of "lawfulness" found in Article 5 para. 1 (b) and (c).   It was similarly concerned that insofar as such measures 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.   60.   On the procedural side, the Law Commission found that the binding over jurisdiction under common law or the 1361 Act had "an inherent potential for unfairness" (Report, para. 4.49). In the light of the penal characteristics of binding over, the Law Commission thought it "unwise to assume" that binding over proceedings would not be regarded as criminal in the context of Article 6 and questioned whether the procedure following binding over under common law or the 1361 Act, particularly where invoked against an acquitted defendant or a witness, afforded "adequate time and facilities" as required by Article 6 para. 3 (b) (Report, paras. 5.16 - 5.18).   61.   The Law Commission's views were summarised as follows (Report, para. 6.27):        "We are satisfied that there are substantial objections of      principle to the retention of binding over to keep the      peace or to be of good behaviour.   These objections are, in      summary, that the conduct which can be the ground for a      binding over order is too vaguely defined; that binding      over orders when made are in terms which are too vague and      are therefore potentially oppressive; that the power to      imprison someone if he or she refuses to consent to be      bound over is anomalous; that orders which restrain a      subject's freedom can be made without the discharge of the      criminal, or indeed any clearly defined, burden of      proof;and that witnesses, complainants or even acquitted      defendants can be bound over without adequate prior      information of any charge or complaint against them."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   62.   The Commission has declared admissible the complaints of the first to fifth applicants regarding their detention for breach of the peace and, and in the case of the first and second applicants, their complaints concerning their subsequent detention after refusing to agree to orders to be "bound over".   B.    Points at issue   63.   The issues to be determined in the present case are:        -     whether in relation to the first applicant there has been      a breach of Article 6 para. 2 (Art. 6-2) of the Convention;        -     whether in relation to the first and second applicants      there has been a breach of Article 6 para. 3 (a) (Art. 6-3-a)      or (b) (Art. 6-3-b) of the Convention;        -     whether in relation to the second applicant there has been      a breach of Article 6 para. 3 (c) (Art. 6-3-c) and Article 6      para. 1 (Art. 6-1) of the Convention;        -     whether the arrests and initial detention of all applicants      for alleged breach of the peace constituted a violation of      Article 5 para. 1 (Art. 5-1) of the Convention;        -     whether the second detention of the first and second      applicants for refusing to agree to be bound over constituted a      violation of Article 5 para. 1 (Art. 5-1) of the Convention;        -     whether the arrests and initial detention of all the      applicants constituted a violation of Article 5 para. 3      (Art. 5-3) of the Convention;        -     whether there has been a violation of Article 5 para. 5      (Art. 5-5) of the Convention in respect of all of the applicants'      lack of an enforceable right to compensation with regard to their      initial arrests and detention;        -     whether there has been a violation of Article 5 para. 5      (Art. 5-5) of the Convention in respect of the first and second      applicants' lack of an enforceable right to compensation with      regard to their second detention after their refusal to agree to      be bound over;        -     whether there has been a breach of Article 10 (Art. 10)      vention in respect of all of the applicants;        -     whether there has been a violation of Article 11 (Art. 11)      vention in respect of all of the applicants, and        -     whether there has been a violation of Article 13 (Ar. 13)      of the Convention in respect of all of the applicants.   C.    As regards Article 6 para. 2 (Art. 6-2) of the Convention:      the first applicant   64.   Article 6 para. 2 (Art. 6-2) of the Convention provides as follows:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."   65.   The first applicant claims that proceedings for breach of the peace do not have to be proven beyond reasonable doubt and that this offends against the presumption of innocence under Article 6 para. 2 (Art. 6-2) of the Convention.   66.   The Commission must first ascertain whether a "criminal offence" covers proceedings in which an allegation of breaching the peace is made.   67.   The Commission recalls that the notion of "criminal offence" is an autonomous concept (Eur. Court HR, Engel v. the Netherlands judgment of 23 November 1976, Series A no. 22, p. 34, para. 81).   In order to determine whether an offence qualifies as "criminal" for the purposes of the Convention, it is first necessary to ascertain whether or not the provision defining the offence belongs, in the legal system of the respondent State, to criminal law; next the "very nature of the offence" and the degree of severity of the penalty risked must be considered (see Eur. Court HR, Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328, p. 13, para. 27, see also the above-mentioned Engel v. the Netherlands judgment, p. 35, para. 82). The Commission notes that under the domestic legal system, breach of the peace is not a criminal offence and binding over is a civil procedure.   However, as the European Court of Human Rights has held:        "[T]here generally come within the ambit of the criminal      law offences that make their perpetrator liable to      penalties intended, inter alia, to be deterrent and usually      consisting of fines and of measures depriving the person of      his liberty... [The rule at issue] prescribes conduct of a      certain kind and makes the resultant requirement subject to      a sanction that is punitive... the general character of the      rule and the purpose of the penalty, being both deterrent      and punitive, suffice to show that the offence was, in      terms of Article 6 (Art. 6) of the Convention, criminal in      nature" (Eur. Court HR, Öztürk v. Germany judgment of      21 February 1994, Series A no. 73, p. 20, para. 53)."   68.   The proceedings brought against the first applicant for breaching the peace also display these characteristics: their deterrent nature is apparent from the way in which a person can be arrested for breach of the peace and subsequently bound over "to keep the peace or be of good behaviour", in which case no penalty will be enforced, and the punitive element derives from the fact that if a person does not agree to be bound over, he will be imprisoned (under the Section 115 procedure) for a period of up to 6 months.   69.   In these circumstances, the Commission considers the charge of breach of the peace to be a criminal offence and binding over proceedings to be "criminal" in nature, for the purposes of Article 6 (Art. 6) of the Convention.   70.   The applicant was thus entitled to the rights set out in Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention.   71.   Th