CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 septembre 1998

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margin-bottom:12pt; text-align:justify; font-size:12pt } .s39C0B46E { width:53.66pt; display:inline-block } .s892A53F7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:12pt; text-align:justify; font-size:12pt } .s8913EA0E { width:283.5pt; display:inline-block } .sF1D05512 { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-after:avoid; font-size:14pt } .s63B44408 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:12pt } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 }         CASE OF STEEL AND OTHERS v. THE UNITED KINGDOM   (67/1997/851/1058)                       JUDGMENT   STRASBOURG     23 September 1998       In the case of Steel and Others v. the United Kingdom [1] , The European Court of Human Rights, sitting, in accordance with Article   43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A [2] , as a Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   Thór Vilhjálmsson ,   Mr   F. Gölcüklü ,   Mr   N. Valticos ,   Mrs   E. Palm ,   Sir   John Freeland ,   Mr   J. Makarczyk ,   Mr   K. Jungwiert ,   Mr   T. Pantiru , and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 22 May and 25 August 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 9 July 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 24838/94) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article   25 by five British nationals, Ms Helen Steel, Ms Rebecca Lush, Ms   Andrea Needham, Mr David Polden and Mr Christopher Cole, on 31   May 1994. The Commission’s request referred to Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 5, 6, 10, 11 and 13 of the Convention. 2.     In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule   30). 3.     The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 27   August 1997, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr N. Valticos, Mrs E. Palm, Mr   J.   Makarczyk, Mr K. Jungwiert and Mr T. Pantiru (Article 43 in fine of the Convention and Rule 21 § 5). 4.     As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the United Kingdom Government (“the Government”), the applicants’ lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and   38). Pursuant to the order made in consequence, the Registrar received the Government’s and the applicants’ memorials on 11 March 1998. 5.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 18 May 1998. The Court had held a preparatory meeting beforehand.   There appeared before the Court: (a)   for the Government Mr   M. Eaton , Foreign and Commonwealth Office,   Agent , Mr   R. Singh , Barrister-at-Law,   Counsel , Mr   S. Bramley , Home Office, Ms   C. Stewart , Home Office,   Advisers ; (b)   for the Commission Mrs   J. Liddy ,   Delegate ; (c)   for the applicants Mr   E. Fitzgerald QC, Barrister-at-Law, Mr   K. Starmer , Barrister-at-Law, Mr   M. Fords , Barrister-at-Law,   Counsel , Mr   P. Leach , Legal Officer, Liberty,   Solicitor . The Court heard addresses by Mrs Liddy, Mr Fitzgerald and Mr Singh. AS TO THE FACTS I.   the circumstances of the case A.   First applicant 6.     The first applicant, Ms Helen Steel, was born in 1965 and lives in London. 7.     On 22 August 1992, together with approximately sixty others, she took part in a protest against a grouse shoot on Wheeldale Moor, Yorkshire. During the morning, the protesters attempted to obstruct and distract those taking part in the shoot. At midday the shooting party broke for lunch and did not recommence until approximately 1.45 p.m., when the police arrived and an officer began warning the protesters, through a public address system, to stop their behaviour. The protesters ignored this request and the police made a total of thirteen arrests. 8.     Ms Steel was arrested by a police officer at approximately 2 p.m. for “breach of the peace” (see paragraphs 25–29 below). 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 firing. 9.     She was taken to a police vehicle where she was detained until about 3.15 p.m., when she was transferred to a prison van. At approximately 7.15   p.m. she was taken to Whitby police station. Upon review, her continued detention there was authorised at 11 p.m. “to prevent any further breach of the peace” and subsequently, at 6.25 a.m. on 23 August, “in order to place her before the court later [that] morning”. In total she was detained for approximately forty-four hours. 10.     At 12.56 a.m. on 23 August 1992 she was cautioned and charged. The charge-sheet stated: “That you did on Saturday 22 August 1992 at Wheeldale Beck in the Parish of Sefton behaved [ sic ] in a manner whereby a breach of the peace was occasioned. The complaint of PC 676 Dougall of North Yorkshire Police who applies for an order requiring that you enter into a recognizance with or without sureties to keep the peace. Pursuant to section 115 of the Magistrates’ Courts Act 1980 [“the 1980 Act” – see paragraphs 32–33 below].” At 9.40 a.m. on 24 August 1992, she 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 of the Public Order Act 1986 (“the 1986 Act” – see paragraph   30 below). 11.     She attended court on the morning of 24 August 1992 and was released on conditional bail, the condition being that she was not to attend any game shoot in North Yorkshire during the period of remand. 12.     Ms Steel’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 what behaviour of the applicant justified this conclusion or whether the complaint related to the morning or the afternoon. 13.     Ms Steel appealed. Her appeal was heard by way of rehearing on 1   December 1993 by the Teesside Crown Court, which upheld the magistrates’ findings, imposed a fine of 70 pounds sterling (GBP) for the section 5 offence, and, in respect of the breach of the peace, ordered the applicant to agree to be bound over for twelve months in the sum of GBP   100 (see paragraph 31 below). Ms Steel refused to be bound over, and was committed to prison for twenty-eight days. B.     Second applicant 14.     The second applicant, Ms Rebecca Lush, was born in 1973 and lives in Warsash, Hampshire. 15.       On 15 September 1993, she took part in a protest against the building of an extension to the M11 motorway in Wanstead, London. During the course of that day a group of twenty to twenty-five protesters repeatedly broke into a construction site, where they climbed into trees which were to be felled and onto some of the stationary machinery. On each occasion they were removed by security guards. The protesters did not offer any resistance and there were no incidents of violence or damage to machinery. 16.     Ms Lush was arrested at approximately 4.15 p.m. while standing under the “bucket” of a “JCB” digger, 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-sheet states: “Arrested as a person whose conduct on 15 September 1993 at Cambridge Park, Wanstead, was likely to provoke a disturbance of the peace to be brought before a Justice of the Peace or Magistrate to be dealt with according to law.” She was kept in custody until 9.40 a.m. the following day (approximately seventeen hours’ detention), on the grounds that if released she would cause a further breach of the peace. 17.     She appeared before Redbridge Magistrates’ Court on the morning of 16 September 1993 to answer an allegation that she had engaged in conduct likely to provoke a disturbance of the peace. The proceedings were adjourned and she was released. 18.     The proceedings resumed on 14 December 1993, when the allegation of conduct likely to cause a breach of the peace, brought under section 115 of the 1980 Act, was found to have been made out. Ms Lush was ordered to agree to be bound over for twelve months to keep the peace and be of good behaviour in the sum of GBP 100. She refused to be bound over and was committed to prison for seven days. 19.     On 23 December 1993 Ms Lush requested the magistrates to state a case to the High Court (see paragraph 36 below). The magistrates replied on 24 December that under section 114 of the 1980 Act they would require a recognizance of GBP 500 that the applicant would prosecute the appeal without delay, submit to judgment and pay any costs ordered by the High Court. After correspondence between Ms Lush’s representatives and the clerk of the court concerning the applicant’s means, the magistrates agreed to reduce the recognizance to GBP 400. However, Ms Lush was unable to continue with the appeal since her application for legal aid was refused. C.   Third, fourth and fifth applicants 20.     Ms Andrea Needham, born in 1965, Mr David Polden, born in 1940, and Mr Christopher Cole, born in 1963, all live in London. 21.     On 20 January 1994, at approximately 8 a.m., they attended the Queen Elizabeth Conference Centre in Westminster, London, where the “Fighter Helicopter II” Conference was being held, in order to protest with three others 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.” 22.     At approximately 8.25 a.m. the three applicants were arrested by police officers. Ms Needham was holding a banner and Mr Polden and Mr   Cole were distributing leaflets. All three applicants were taken to Charing Cross police station where the custody record for each states the “circumstances” (the word “charges” having been deleted) as: “Breach of the peace, common law. On 20 January 1994 at Queen Elizabeth Conference Centre, Victoria Street, London   SW1, 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.” 23.     At approximately 10.40 a.m. the applicants were taken to Bow Street Magistrates’ Court where they were detained in a cell. They were brought before the magistrates at 3.45 p.m., having been detained for approximately seven hours. The magistrates adjourned the matters due to lack of time and the applicants were released. 24.     On 25 February 1994, when the proceedings were resumed, the prosecution decided not to call any evidence and the magistrates dismissed the case against the applicants. ii.   relevant domestic law and practice A.   Breach of the peace 1.   Definition 25.     Breach of the peace – which does not constitute a criminal offence ( R. v. County Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 260) – is a common-law concept dating back to the tenth century. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981: “A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated…” (p.   426) He continued: “We are emboldened to say that there is likely to be a breach of the peace 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.” (p. 427) 26.     In October 1981, in a differently constituted Court of Appeal giving judgment in R. v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board ([1982] Queen’s Bench Reports 458), which concerned a protest against the construction of a nuclear power station, Lord   Denning, Master of the Rolls, defined “breach of the peace” more broadly, as follows: “There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace.” (p. 471) 27.     In a subsequent case before the Divisional Court ( Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell, rather than ex parte Central Electricity Generating Board , in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others: “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.” (p.   1392) 28.     In another case before the Divisional Court, Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] Justice of the Peace Reports 155), Lord Justice Simon Brown stated: “… the court would surely not find a [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.” (p. 163) 2.   Arrest for breach of the peace 29.     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] Appeal Cases 546 at 565). This power was preserved by the Police and Criminal Evidence Act 1984 (sections 17(6) and 25(6)). B.     Section 5 of the Public Order Act 1986 30.     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 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. C.   Binding over 31.     Magistrates have powers to “bind over” under the Magistrates’ Courts Act 1980 (“the 1980 Act”), under common law and under the Justices of the Peace Act 1361 (“the 1361 Act”). A binding over order requires the person bound over to enter into a “recognizance”, or undertaking secured by a sum of money fixed by the court, to keep the peace or be of good behaviour for a specified period of time. If he or she refuses to consent to the order, the court may commit him or her to prison, for up to six months in the case of an order made under the 1980 Act or for an unlimited period in respect of orders made under the 1361 Act or common law. If an order is made but breached within the specified time period, the person bound over forfeits the sum of the recognizance. A binding-over order is not a criminal conviction ( R. v. London Quarter Sessions, ex parte Metropolitan Police Commissioner [1940] 1 King’s Bench Reports 670). 1.   Binding over under the Magistrates’ Courts Act 1980 32.     Section 115 of the 1980 Act provides: “(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 into 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.” 33.     The procedure under section 115 of the 1980 Act is begun by laying a formal complaint, usually by a police officer. Before the magistrates can make an order they must be satisfied, on the basis of admissible evidence, that (1) the defendant’s conduct caused a breach of the peace or was likely to cause one ( R. v. Morpeth Ward Justices, ex parte Ward [1992] 95   Criminal Appeal Reports 215); and (2) unless the order is made, there is a real risk that the defendant will cause a further breach of the peace in the future. 34.     Although a binding-over order is not a criminal conviction, these proceedings have been described as analogous to criminal proceedings. In the past it was 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 Nicol and Selvanayagam v. DPP (cited above), Lord Justice Simon Brown 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.” 2.   Binding over at common law and under the Justices of the Peace Act   1361 35.     In addition to the above statutory procedure, magistrates have powers to bind over at common law and under the 1361 Act. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings (for example, a witness, acquitted defendant or a defendant who has not yet been acquitted or convicted), if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores (“conduct which has the property of being wrong rather than right in the judgment of the vast majority of contemporary fellow citizens” ( per Lord Justice Glidewell in Hughes v. Holley [1988] 86 Criminal Appeal Reports   130). 3.   Appeals 36.     An 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, under section 114 of the 1980 Act, 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.         4.   The Law Commission’s report on binding over 37.     In response to a request by the Lord Chancellor to examine binding-over powers, the Law Commission (the statutory law-reform body for England and Wales) published in February 1994 its report entitled “Binding Over”, in which it found that: “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.” (Law Commission Report no. 222, §   6.27) The Law Commission therefore recommended abolition of the power to bind over. D.   Immunity of magistrates from civil proceedings 38.     Under section 108 of the Courts and Legal Services Act 1990, a civil action, for example for false imprisonment, may lie against a magistrate in respect of any act or omission in the purported execution of his or her duty only if it can be proved that he or she acted both in bad faith and in excess of jurisdiction. PROCEEDINGS BEFORE THE COMMISSION 39.     In their application to the Commission (no. 24838/94) of 31 May 1994, the applicants complained, under Article 5 of the Convention, that the concept of breach of the peace and the power to bind over were not sufficiently clearly defined for their detention to be “prescribed by law”; that their detention did not fall into any of the categories set out in Article 5 § 1 of the Convention; and that, because of the immunity of magistrates from civil proceedings, they had been denied a right to compensation in breach of Article 5 § 5. They alleged that there had been violations of Article 6 § 3 (a) in that inadequate details of the accusations had been provided to the first and second applicants, and of Article 6 § 2 in that breach of the peace did not have to be proved beyond reasonable doubt. They also complained of violations of Articles 10 and 11, arising from the uncertainty inherent in the concept of breach of the peace and the power to bind over and the disproportionality of the restrictions on their freedom to protest. Finally, the first and second applicants alleged a violation of Article   13 in connection with their refusal to be bound over. 40.     The Commission (First Chamber) declared the application admissible on 26 June 1996. In its report of 9 April 1997 (Article 31), it expressed the unanimous opinion that there had been no violation of Article   5 §§ 1, 3 or 5; that there had been no violation of Article 6 §§ 1, 2 or 3; that there had been no violation of Article 10 as regarded the first and second applicants, but that there had been a violation of Article 10 as regarded the third, fourth and fifth applicants; that it was not necessary to examine separately the complaint under Article 11; and that there had been no violation of Article   13. The full text of the Commission’s opinion is reproduced as an annex to this judgment [3] . FINAL SUBMISSIONS TO THE COURT 41.     In their memorial and at the hearing, the Government asked the Court to find that there had been no violation of the Convention in this case. The applicants asked the Court to find violations of Articles 5 §§ 1 and 5, 6 § 3 (a), 10, 11 and 13 of the Convention, and to award them just satisfaction under Article 50. AS TO THE LAW i.   scope of the case before the court 42.     Before the Commission the applicants raised a number of complaints under Articles 5 § 3, 6 § 2 and 6 § 3 (b) and (c) of the Convention (see paragraph 39 above). 43.     These complaints were not pursued before the Court, which sees no reason to consider them of its own motion (see, for example, the Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, p. 680, § 52). ii.   alleged violation of article 5 § 1 of the convention 44.     The applicants alleged that all their arrests and initial periods in police detention, and the later detention of the first and second applicants following their refusal to be bound over, violated Article 5 § 1 of the Convention, which states (as relevant): “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)     the lawful detention of a person after conviction by a competent court; (b)     the lawful arrest or detention of a person for non ‑ compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …” 45.     The Court must consider whether the deprivations of liberty suffered by the applicants fell within one of the exceptions permitted under Article 5 § 1 and were “lawful”, including whether they complied with “a procedure prescribed by law”. In this connection, it will examine, first, the arrests and pre-trial detention of each applicant and, secondly, the detention of the first and second applicants following their refusal to be bound over. A.   Arrests and initial detention of each applicant 1.   Ground of detention under Article 5 § 1 46.     It was not disputed before the Court that breach of the peace amounted to a “criminal offence” for the purposes of the Convention, and that the applicants’ arrests and detention before being brought to the magistrates’ courts fell within the scope of sub-paragraph (c) of Article 5 §   1. Further or in the alternative, the Government submitted that these initial periods of detention had been permissible under Article 5 § 1 (b), since the obligation to keep the peace was specific and prescribed by law. 47.     The Court recalls that each applicant was arrested for acting in a manner which allegedly caused or was likely to cause a breach of the peace and detained until he or she could be brought before a magistrates’ court. 48.     Breach of the peace is not classed as a criminal offence under English law (see paragraph 25 above). However, the Court observes that the duty to keep the peace is in the nature of a public duty; the police have powers to arrest any person who has breached the peace or who they reasonably fear will breach the peace; and the magistrates may commit to prison any person who refuses to be bound over not to breach the peace where there is evidence beyond reasonable doubt that his or her conduct caused or was likely to cause a breach of the peace and that he or she would otherwise cause a breach of the peace in the future (see paragraphs 33–34 above). 49.     Bearing in mind the nature of the proceedings in question and the penalty at stake, the Court considers that breach of the peace must be regarded as an “offence” within the meaning of Article 5 § 1 (c) (see, mutatis mutandis , the Benham v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 756, § 56). 50.     The Court therefore finds that each applicant was arrested and detained with the purpose of bringing him or her before the competent legal authority on suspicion of having committed an “offence” or because it was considered necessary to prevent the commission of an “offence”. It will consider whether this suspicion was “reasonable” below, in connection with the issue of lawfulness (see paragraphs 58–64). 2.   Lawfulness of the arrests and initial detention 51.     The Government submitted that the applicants’ arrests and initial detention complied with a well-established common-law power of arrest in respect of actual or reasonably apprehended breaches of the peace which had been preserved by the Police and Criminal Evidence Act 1984 (see paragraph 29 above). The conditions in which this power of arrest might be exercised had been clarified by the national courts in the cases of Howell , Percy and Nicol (see paragraphs 25–28 above) with the result that the law was sufficiently certain and precise. At the hearing before the Court, in respect of the detention of the third, fourth and fifth applicants, the Government pointed out that if the police officers’ belief that these applicants’ actions had been likely to cause a breach of the peace had lacked objective justification, it would have been open to the applicants to challenge the legality of their arrests in the domestic courts. Since they had failed to take such proceedings, it had to be presumed that their arrests had been objectively justified. 52.     The applicants contended that their arrests and initial periods of detention had not been “lawful”, since the concept of breach of the peace and the attendant powers of arrest were insufficiently certain under English law. First, they submitted that if, as appeared from the national case-law (see paragraph 27 above), an individual committed a breach of the peace when he or she behaved in a manner the natural consequence of which was that others would react violently, it was difficult to judge the extent to which one could engage in protest activity, in the presence of those who might be annoyed, without causing a breach of the peace. Secondly, the power to arrest whenever there were reasonable grounds for apprehending that a breach of the peace was about to take place granted too wide a discretion to the police. Thirdly, there had been conflicting decisions at Court of Appeal level as to the definition of breach of the peace (see paragraphs 25–26 above). 53.     The Commission found that there had been no violation of Article 5 § 1 since the arrests and initial detention had not been arbitrary and there had been no suggestion of any lack of conformity with domestic law. 54.     The Court recalls that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 stipulate not only full compliance with the procedural and substantive rules of national law, but also that any deprivation of liberty be consistent with the purpose of Article   5 and not arbitrary (see the above-mentioned Benham judgment, pp.   752–53, § 40). In addition, given the importance of personal liberty, it is essential that the applicable national law meet the standard of “lawfulness” set by the Convention, which requires that all law, whether written or unwritten, be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see the S.W. v. the United Kingdom judgment of 22 November 1995, Series A no.   335-B, pp. 41–42, §§ 35–36, and, mutatis mutandis , the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p.   31, § 49, and the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1017, § 49). 55.     In this connection, the Court observes that the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence (see paragraphs 25–28 above). It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace (see paragraph 29 above). Accordingly, the Court considers that the relevant legal rules provided sufficient guidance and were formulated with the degree of precision required by the Convention (see, for example, the Larissis and Others v. Greece judgment of 24 February 1998, Reports 1998-I, p.   377, §   34). 56.     When considering whether the arrest and detention of each applicant was carried out in accordance with English law, the Court recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since failure to comply with domestic law entails a breach of Article 5 § 1, the Court can and should exercise a certain power of review in this matter (see the above-mentioned Benham judgment, p.   753, § 41). 57.     The Court has already noted that under English law there is a power to arrest an individual for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace. It will therefore examine the circumstances of each applicant’s arrest to determine whether one of these criteria applied. (a)   First and second applicants 58.     The Court recalls that the first applicant was arrested during a protest at a grouse shoot. During the morning, protesters had taken steps to disrupt the shoot. In the early afternoon, Ms Steel was arrested as she walked in front of a person who was armed with a gun, thus preventing him from firing (see paragraphs 7–8 above). 59.     The second applicant was arrested while she stood under the bucket of a mechanical digger, towards the end of a day during which twenty to twenty-five protesters had repeatedly obstructed the work of road-builders (see paragraphs 15–16 above). 60.     The Court notes that the national courts that dealt with these cases were satisfied that each applicant had caused or had been likely to cause a breach of the peace (see paragraphs 12–13, 18 and 33 above). The Court, having itself examined the evidence before it, finds no reason to doubt that the police were justified in fearing that these applicants’ behaviour, if persisted in, might provoke others to violence. It follows that the arrests and initial detention of the first and second applicants complied with English law. Moreover, there is no evidence to suggest that these deprivations of liberty were arbitrary. 61.     In conclusion, there has been no violation of Article 5 § 1 in respect of the arrests and initial detention of the first and second applicants.   (b)   Third, fourth and fifth applicants 62.     Turning to Ms Needham, Mr Polden and Mr Cole, the Court recalls that they were arrested outside a conference centre where they had been handing out leaflets and holding up banners protesting at the sale of weapons. They were subsequently detained for approximately seven hours before being released on bail (see paragraphs 21–22 above). 63.     The Court notes that there is no ruling of a national court on the question whether the arrests and detention of these applicants accorded with English law, since the prosecution decided to withdraw the allegations of breach of the peace from the magistrates (see paragraph 24 above) and since the applicants did not bring any civil claim for false imprisonment against the police. It observes that the Government have not raised any preliminary objection in respect of this omission by the applicants, and, in the absence of such a plea, it is not necessary for the Court to consider whether the complaint should have been declared inadmissible for non-exhaustion of domestic remedies (see the Olsson v. Sweden (no. 1) judgment of 24   March   1988, Series A no. 130, p. 28, § 56, and the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no.   246-A, p. 23, § 46). 64.     Having itself considered the evidence available to it relating to the arrests of these three applicants, the Court sees no reason to regard their protest as other than entirely peaceful. It does not find any indication that they significantly obstructed or attempted to obstruct those attending the conference, or took any other action likely to provoke these others to violence. Indeed, it would not appear that there was anything in their behaviour which could have justified the police in fearing that a breach of the peace was likely to be caused. For this reason, in the absence of any national decision on the question, the Court is not satisfied that their arrests and subsequent detention for seven hours complied with English law so as to be “lawful” within the meaning of Article 5 § 1. 65.     It follows that there has been a violation of Article 5 § 1 in respect of the third, fourth and fifth applicants. B.     Detention of the first and second applicants following their refusal to be bound over 1.   Categorisation under Article 5 § 1 66.     The Government contended that the detention of the first and second applicants following their refusal to be bound over fell within the scope of Article 5 § 1 (a), since an order to be bound over, requiring a finding by a court that the accused had committed a breach of the peace, was analogous to a criminal conviction. Further or in the alternative, the detention fell under Article 5 § 1 (b), since the applicants were committed to prison as a result of their refusal to comply with the orders that they enter into recognizances to keep the peace. 67.     The applicants considered that the power to bind over to keep the peace operated in the nature of a criminal sanction. However, they disputed that the detention of Ms Steel and Ms Lush for refusing to be bound over could be justified under Article 5 § 1 (b) since, in their submission, a requirement in general terms “to keep the peace” was not sufficiently concrete and specific to amount to an “obligation prescribed by law”. 68.     The Commission found that, although it could be said that the first and second applicants had been “convict[ed] by a competent court”, Article   5 § 1 (a) required a causal connection between conviction and detention which, arguably, had been broken in the present cases, since it was not the magistrates’ finding that the applicants had committed breaches of the peace which led to their detention, but rather their refusal to enter into recognizances. In any case, the detention was in accordance with Article 5 §   1 (b). 69.     The Court recalls that, in proceedings under section 115 of the 1980 Act (see paragraphs 10 and 32 above), the first applicant was ordered by the Teesside Crown Court to agree to be bound over to keep the peace and be of good behaviour for a period of twelve months, subject to