CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 juillet 2001

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Ress , President ,   Mr   A. Pastor Ridruejo ,   Mr   L. Caflisch ,   Mr   J. Makarczyk ,   Sir   Nicolas Bratza ,   Mr   V. Butkevych ,   Mr   J. Hedigan ,   judges , and Mr V. Berger , Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 15 March 1995 and registered on 5 July 1995, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Juliet Imogen McBride, is a United Kingdom national, born in 1949 and living in Southampton. She is represented before the Court by Ms   M. Cunneen of Liberty, London. The respondent Government are represented by Ms R. Mandal, Foreign and Commonwealth Office, London. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 5 September 1993 the applicant attended a demonstration organised by the Campaign Against the Arms Trade ("CAAT") in Aldershot. The demonstration had been arranged to coincide with an arms fair for the procurement of sales of arms and weapons at a military base about 10-15 minutes walk from the site of the demonstration. The applicant, who is not a member of CAAT, attended this demonstration to show her support. Shortly after 10.40 a.m. she left the site accompanied by a friend. The applicant and her friend were about to walk up a footpath but were told by a policeman not to proceed along the footpath as he believed it to be military land. The applicant then proceeded, with her friend, to walk along the road which led to the arms fair. A woman police constable told them that they could not go down that road as it was military land. The applicant replied that that road was a public highway. She was told that if she continued she would be arrested for breach of the peace. The applicant’s friend turned back and the applicant continued alone. The applicant was arrested by the woman police constable at 10.52 a.m. The custody record log states: "... 11.10 During demonstration prisoner was warned to stay away from certain areas of military land. She refused and was arrested to prevent a breach of the peace and for causing an obstruction. Detention authorised until such time as it is unlikely that a breach of the peace will occur and to obtain evidence by questioning and to preserve and secure evidence through other enquiries." The applicant was detained until 12.25 p.m. when she was released without charge. She subsequently brought a civil action for wrongful arrest against the Chief Constable of Hampshire. The case was dismissed on 22 November 1994, the judge finding, inter alia , as follows: "... It is common ground that the plaintiff was told more than once that she would be arrested for breach of the peace. The ‘whole tenor’ of the defence evidence was that this arose from a fear of contact between the demonstrators and those attending the exhibition, leading to a confrontation which sadly occurs that when those with strong views come up against those who practice what they find utterly offensive. Nor do I see in WPC Drake’s cross-examination anything to suggest that WPC Drake had not carried out the arrest on the basis of apprehending a risk of a breach of the peace involving violence. The plaintiff had expressed an intention to proceed in the direction of the arms fair. It seems to me to make no difference that the plaintiff claims, as may well be the case, to be a lady of pleasant disposition, self-disciplined and with no wish to damage property or indulge in violence. In the judgment of the police arrest was appropriate. By definition, the police have to make judgments as to whether violence would occur. To WPC Drake, all the indications were that the precise purpose why her colleagues were on duty was about to be thwarted, giving rise to a risk of a violent confrontation which it was wished to avoid. Nor do I accept that it was incumbent upon WPC Drake to enter into more detailed explanation of her basis for apprehending a breach of the peace. I bear in mind that the plaintiff’s clear stance was that she was going along Wellesley Road, and that she was not to be deterred short of arrest... The authorities clearly show that the possibility of a breach of the peace must be ‘real’ and it must be sufficiently close in proximity in time and place. There must be an anticipation of violence in the immediate future or a real risk of it occurring... I am reminded of everything I said earlier about the background. There was a high degree of security. The basis of the police operation was to keep the groups apart. Experience sadly shows that violent confrontations can take place... It seems to me that to ask who would apprehend a risk of violence from the nature of the characteristics of the plaintiff confuses the plaintiff personality to those known to her with the position as it would appear to the police at the time. They had not means of knowing whether the plaintiff was peaceful or not... It was entirely reasonable to proceed on the basis that the groups should be kept apart. Only arrest was an option for the police once the plaintiff had made clear her intention. In my judgment the risk of a violent confrontation was a very real one. The plaintiff was determined to proceed up Wellesley Road. Mr Ford urges that the plaintiff’s evidence was not clear as to her intention, and I accept this as far as she felt she was being restrained from using a public highway. I do not accept that she was unaware [where the exhibition was], nor that she had a mixed purpose [in continuing]... My finding is that there was a very real, a high risk of violence. There was nothing in place or distance to suggest that [the breach of the peace] was not in sufficient proximity in place and time. It seems to me entirely coincidental whether [the applicant] was arrested 5, 10 or 15 minutes from the arms fair, given that she had openly expressed an intention to proceed in that direction. The relevance of the decision not to allow demonstrators to go on military land is that this was a decision to keep the groups apart, an operational requirement in the context of stopping demonstrators approaching close to the exhibition. I see nothing in the defendants’ evidence to suggest that WPC Drake considered an irrelevant or improper matter, or that she failed to consider all relevant circumstances. Therefore I am persuaded that there was a reasonable and probable cause for arrest, and the case is dismissed..." The applicant was advised not to appeal: Counsel accepted that there was some prospect of an appeal court concluding that the risk of violence in the case was not sufficiently "real" to warrant arrest, but underlined that the test of whether there was a "real possibility" of violence inevitably leaves a great deal of discretion to the judge. He pointed out that unlike the case of Percy ( Percy v. DPP , see below), those who might have responded to the applicant’s acts were not confined to trained personnel, and there was therefore every likelihood of an appeal judge taking the view that the trial judge was the person best placed to assess the factual context of the events. B.     Relevant domestic law and practice 1.   Definition of breach of the peace 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) 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) 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) 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 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)). COMPLAINTS The applicant alleges violation of Articles 5, 10 and 11 of the Convention. In her observations filed in the light of the Court’s Steel and Others v. the United Kingdom judgment (23 September 1998, Reports 1998-VII), she claims that, contrary to Article 5 § 1 (c), there was no intention to bring her before a Court. She further claims that her arrest and detention were serious interferences with her freedom of expression and freedom of assembly and association, because she was wholly prevented from pursuing a completely peaceful demonstration. THE LAW 1.   The applicant alleges that her arrest and detention violated Article 5 § 1 (c) of the Convention since the police did not manifest an intention to bring her before a competent legal authority. Article 5 § 1 (c) provides: “1.     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: ...   (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;...” The Government denied that there had been any breach of Article 5 § 1. The Court recalls that in the Steel and Others v. the United Kingdom judgment of 23 September 1998, ( Reports 1998-VII, §§ 44-50) it held that breach of the peace must be regarded as a “offence” within the meaning of Article 5 § 1 (c), and that it is therefore permissible under that provision to arrest or detain a person with the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed a breach of the peace or when it is reasonably considered necessary to prevent his or her committing a breach of the peace. The present applicant was arrested at 10.52 a.m. after she left the site of a demonstration against arms sales and persisted in walking towards the arms fair despite police warnings. The national judge who considered the applicant’s claim for damages for wrongful arrest and false imprisonment found that “the risk of a violent confrontation was a very real one” had the applicant not been arrested. The applicant was detained for approximately one and a half hours and then released without charge. The Court notes that the police custody record stated that the applicant’s detention was authorised “until such time as it is unlikely that a breach of the peace will occur and to obtain evidence by questioning and to preserve and secure evidence through other enquiries”. The references to evidence indicate that, at the time that this entry in the custody record was completed, the police were investigating the applicant’s conduct and considering the possibility of court proceedings against her. The fact that in the event the decision was taken not to charge her or bring her before a court does not mean that the purpose of the detention was not in accordance with Article 5 § 1 (c) (see the Labita v. Italy judgment of 6 April 2000, § 155). In conclusion, it appears that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.   2.   In addition, the applicant claimed that her arrest and detention violated her rights under Articles 10 and 11 of the Convention which state:   Article 10 “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (...) 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Article 11 “ 1.     Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.     No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” The applicant emphasised that her acts of protest were entirely peaceful and that the interference with her rights of peaceful expression and assembly were disproportionate. In the above mentioned Steel and Others judgment (§ 96), the Court found, in connection with Article 10 of the Convention, that the applicant’s arrest for breach of the peace and detention pursued the legitimate aims of preventing disorder and protection of the rights of others. It considers that the measures taken against the present applicant pursued the same aims. In determining whether these measures were “necessary in a democratic society”, that is, proportionate to the aims pursued, the Court refers once again to the findings of the national judge that the applicant’s arrest had reasonable and probable cause and that there was “a very real, a high risk of violence”. Against that background, the Court does not find that it was disproportionate to arrest the applicant, remove her from the scene of the demonstration and detain her for approximately one and a half hours (see, mutatis mutandis , the Steel and Others judgment mentioned above, §§ 103-105 and 109). It follows that this part of the application must therefore also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court unanimously Declares the application inadmissible.   Vincent Berger   Georg Ress   Registrar   President