All England Law Reports/2008/Volume 2 /Haw and another v City of Westminster Magistrates' Court - [2008] 2 All ER 326
[2008] 2 All ER 326
Haw and another v City of Westminster Magistrates' Court
[2007] EWHC 2960 (Admin)
DIVISIONAL COURT
THOMAS LJ AND GROSS J
28 NOVEMBER, 12 DECEMBER 2007
Contempt of court - Appeal - Jurisdiction - Appeal to High Court from any order or decision of a court in exercise of jurisdiction to punish for contempt - Appeal to Crown Court from magistrates' court exercising power to punish for contempt - Persons convicted of contempt in magistrates' court - Whether appeal lying to Crown Court - Whether concurrent appeal lying to High Court - Whether appeal by way of case stated or judicial review available - Administration of Justice Act 1960, s 13 - Magistrates' Courts Act 1980, s 108, 111 - Contempt of Court Act 1981, s 12(5).
H and T were convicted in a magistrates' court of contempt of court contrary to s 12a of the Contempt of Court Act 1981. They appealed to the Crown Court on the grounds that their actions had not amounted to contempt. Section 12(5) provided that certain provisions of the Magistrates' Courts Act 1980, including s 108b (appeal to the Crown Court), applied in relation to an order under s 12 of the 1981 Act 'as they apply in relation to sentence on conviction or finding of guilty of an offence'. However, observations had been made in an earlier judicial review to the effect that the jurisdiction of the Crown Court in the context of s 12 of the 1981 Act was limited to hearing an appeal against the penalty imposed and did not extend to hearing an appeal against the actual finding of contempt by the justices. H and T therefore also filed a notice of appeal to the Administrative Court under s 13c of the Administration of Justice Act 1960 which provided that an appeal lay to the High Court from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court from any inferior court not specified in s 13; magistrates' courts were not so specified. Directions were given for the issue of jurisdiction to be determined by the Administrative Court. The court therefore considered (i) whether an appeal lay to the Crown Court under s 12(5) of the 1981 Act; (ii) whether an appeal lay to the High Court under s 13 of the 1960 Act; and (iii) whether an appeal lay by way of case stated under s 111d of the 1980 Act or by way of an application for judicial review. Under s 111 any person who was a party to any proceeding before a magistrates' court could question the proceeding on the ground that it was wrong in law or was in excess of jurisdiction by applying to the justices to state a case for the
[2008] 2 All ER 326 at 327
opinion of the High Court on the question of law or jurisdiction involved and under sub-s (4) on the making of such an application any right of the applicant to appeal against the decision to the Crown Court ceased.
a Section 12, so far as material, is set out at [6], [7]. below
b Section 108, so far as material, is set out at [7], below
c Section 13, so far as material, is set out at [32], below
d Section 111, so far as material, provides: '(1) Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved; but a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court . . . (4) On the making of an application under this section in respect of a decision any right of the applicant to appeal against the decision to the Crown Court shall cease.'
Held - (1) An appeal lay to the Crown Court from a conviction or a sentence under s 12 of the 1981 Act at the magistrates' court. The clear legislative intent had been to provide such a right of appeal and there was no good reason why it should not have been provided. The only other possible right of appeal on conviction was to the High Court under s 13 of the 1960 Act; Parliament would have known that an appeal at the Crown Court was conducted by a form of complete rehearing in which the prosecutor called his witnesses, the defendant called his witnesses and the Crown Court judge, sitting with magistrates, made a completely fresh determination on the evidence they heard and not by the form of rehearing usual in the higher courts so that an appeal to the Crown Court was a far more suitable form of appeal than an appeal to the High Court. Moreover, Parliament would no doubt have had regard to the efficient use of resources. It was probable that by inadvertence the draftsman might have omitted to give effect to the intended purpose of s 12(5) and the court was entitled to correct the error. In the instant case, as appeal to the Crown Court had been the route that H and T had originally intended to take, their appeal should therefore be listed at the Crown Court (see [17], [24]-[30], [42], below); Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42 and Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109 applied; dictum of May LJ in R v Havant Justices, ex p Palmer (1985) 149 JP 609 disapproved.
(2) There was no right of appeal against a conviction or sentence under s 12 of the 1981 Act to the High Court under s 13 of the 1960 Act. The provisions of s 12(5) of the 1981 Act, being specific provisions with regard to the right to punish created under s 12(1) had been intended by Parliament to apply in place of the very general provisions of s 13 of the 1960 Act. Parliament could not have intended two concurrent rights of appeal (see [34], [36], [37], [42], below).
(3) An appeal to the High Court lay by way of case stated and proceedings for judicial review could be brought where appropriate. The terms of s 111 of the 1980 Act were wide enough to encompass an appeal by way of case stated under s 12 of the 1981 Act and there was no reason why that route of appeal could not lie in a case where it was appropriate. There could be cases where the issue that arose was a question of whether, on the facts found, the magistrates' court had been entitled to make a finding of contempt. The route of using a case stated appeal to the High Court lay happily with the route of appeal to the Crown Court in ordinary criminal cases as s 111(4) made express provision that on the making of an application for a case stated, any right of appeal to the Crown Court ceased. An application for judicial review on a conviction for contempt would cause no difficulty; the grounds upon which judicial review of the decision of the magistrates' court could be advanced were limited and controlled by the well-known limitations on that form of review (see [39]-[42], below).
Notes
For contempt of court: appeal from order, see 9(1) Halsbury's Laws (4th edn reissue) paras 512-517 and for the right of appeal from magistrates' courts, see 11(4) Halsbury's Laws (4th edn) (2006 reissue) para 1980.
For the Administration of Justice Act 1960, s 13, see 11(2) Halsbury's Statutes (4th edn) (2006 reissue) 151.
[2008] 2 All ER 326 at 328
For the Magistrates' Courts Act 1980, ss 108, 111, see 11(2) Halsbury's Statutes (4th edn) (2006 reissue) 540, 543.
For the Contempt of Court Act 1981, s 12, see 11(2) Halsbury's Statutes (4th edn) (2006 reissue) 698.
Cases referred to in judgment
Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642, [2003] 1 All ER (Comm) 140, [2003] 1 WLR 577.
EI Du Pont De Nemours & Co v ST Dupont [2003] EWCA Civ 1368, [2004] IP & T 559, [2006] 1 WLR 2793.
Hooker, Re [1993] COD 190, DC.
Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109, [2000] 1 WLR 586, HL.
Jones v Wrotham Park Settled Estates [1979] 1 All ER 286, [1980] AC 74, [1979] 2 WLR 132, HL.
Lane v Gloucester Magistrates' Court [2006] EWHC 3198 (Admin), DC.
Linnett v Coles [1986] 3 All ER 652, [1987] QB 555, [1986] 3 WLR 843, CA.
Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42, [1993] AC 593, [1992] 3 WLR 1032, HL.
R v Havant Justices, ex p Palmer (1985) 149 JP 609, DC.
R v Pateley Bridge Justices, ex p Percy [1994] COD 453, DC.
R v Serumaga [2005] EWCA Crim 370, [2005] 2 All ER 160, [2005] 1 WLR 3366.
R v Tamworth Magistrates' Court, ex p Walsh [1994] COD 277, DC.
Tanfern Ltd v Cameron-MacDonald [2000] 2 All ER 801, [2000] 1 WLR 1311, CA.
Directions
Brian Haw and Barbara Tucker were convicted of contempt of court contrary to s 12 of the Contempt of Court Act 1981 at the City of Westminster Magistrates' Court by District Judge Daphne Wickham on 29 March 2007. On 12 April 2007 they appealed against conviction to the Crown Court at Southwark and also filed a notice of appeal to the High Court on 18 June 2007. Directions were given for the issue of jurisdiction to be determined by the High Court. The facts are set out in the judgment of the court.
Guy Vassall-Adams (instructed by Bindman & Parters) for Mr Haw.
Ms Tucker appeared in person.
Catrin Evans (instructed by Treasury Solicitor) for the magistrates' court.
Judgment was reserved.
12 December 2007. The following judgment of the court was delivered.
THOMAS LJ.
[1]
This is the judgment of the court.
THE JURISDICTIONAL ISSUE TO BE DETERMINED
[2]
On 29 March 2007 the appellants, Mr Brian Haw and Ms Barbara Tucker, were convicted of contempt of court contrary to s 12 of the Contempt of Court Act 1981 at the City of Westminster Magistrates' Court by District Judge Daphne Wickham. Mr Haw was fined £250 and Ms Tucker £50. Both were ordered to pay costs of £50. The case against them was that on 26 March 2007 they had wilfully interrupted proceedings in the face of the court.
[2008] 2 All ER 326 at 329
[3]
On 12 April 2007 the appellants appealed to the Southwark Crown Court on the grounds that their actions on 26 March did not amount to contempt of court, either in fact or in law.
[4]
The question was immediately raised at Southwark Crown Court as to whether an appeal lay to that court on the issue of conviction. As we shall endeavour to explain, in the light of some observations in a previous decision of this court and the lack of any authoritative decision, there is a debated issue as to the correct route of appeal for a person convicted and sentenced in a magistrates' court under s 12 of the 1981 Act. The appellants also filed a notice of appeal to this court on 18 June 2007; directions were subsequently given for the issue of jurisdiction to be determined by this court; if it was determined that this court had jurisdiction, then this court should determine whether the appeal was by way of rehearing or review. It is accepted, on all sides, that the appellants acted in time for whichever route of appeal is appropriate.
[5]
There are, in essence, three possibilities, which we will consider in turn:
(i) an appeal to the Crown Court under s 12(5) of the 1981 Act;
(ii) an appeal to the Administrative Court under s 13 of the Administration of Justice Act 1960;
(iii) an appeal by way of case stated or an application for judicial review to the Administrative Court.
(i) WHAT APPEAL LIES TO THE CROWN COURT?
(a) The statutory provisions: s 12 of the 1981 Act
[6]
Prior to the 1981 Act, the magistrates' courts had no power to punish for contempt in the face of the court. They only had power to order a person to leave the court, to punish disobedience to their orders and to punish recalcitrant witnesses. The power to punish for contempt in the face of the court was given by s 12 of the 1981 Act which provides (as amended):
'(1) A magistrates' court has jurisdiction under this section to deal with any person who--(a) wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or (b) wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2) In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding £2,500, or both.'
[7]
The right of appeal was provided by sub-s (5) of s 12 in the following terms (as amended):
'Section 135 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on fines in respect of young persons) and the following provisions of the Magistrates' Courts Act 1980 apply in relation to an order under this section as they apply in relation to a sentence on conviction or finding of guilty of an offence; and those provisions of the Magistrates' Courts Act 1980 are sections 75 to 91 (enforcement); section 108 (appeal to Crown Court);
[2008] 2 All ER 326 at 330
section 136 (overnight detention in default of payment); and section 142(1) (power to rectify mistakes).'
Section 108 of the Magistrates' Courts Act 1980 provides by sub-s (1) as follows:
'A person convicted by a magistrates' court may appeal to the Crown Court--(a) if he pleaded guilty, against his sentence; (b) if he did not, against the conviction or sentence.'
[8]
An appeal at the Crown Court takes place by way of a complete rehearing of the matter in accordance with long-standing customary practice: s 79 of the Supreme Court Act 1981. The prosecutor calls his witnesses, the defendant calls his witnesses and the judge of the Crown Court, sitting with magistrates (usually two), makes a determination completely afresh on the evidence they hear.
[9]
It might have been thought that there was nothing exceptional in providing a simple route of appeal of this kind to the Crown Court as that is the ordinary route of appeal for convictions in the magistrates' courts and the only route where factual issues relating to the conviction are in issue. At first blush that would appear to be the natural meaning of s 12(5), not least given the cross reference to s 108 of the 1980 Act and the scope of that section. Indeed it is clear that this view is a view commonly held: in Lane v Gloucester Magistrates' Court [2006] EWHC 3198 (Admin) at [5] this court stated:
'The Administrative Court office wrote to Mr Lane on 22 November, almost a week ago, pointing out that the right of appeal against orders made under s 12 of the 1981 Act consists of a right of appeal to the Crown Court under s 108 of the 1980 Act, not to this court. That is indeed the position. Section 12(5) of the 1981 Act states that s 108 applies to an order under s 12 and in its turn s 108 creates a right of appeal to the Crown Court. No right of appeal to this court, whether by case stated or in any other form, is created. However, what is possible in these circumstances is to seek permission to begin judicial review proceedings. They are not excluded by any statutory provision. Judicial review may lie if something has gone wrong with the decision-making process, but, as we have explained to Mr Lane this afternoon, it does not provide a means of challenging a decision on its merits which appears to form at least part of what Mr Lane seeks.'
[10]
Unfortunately, however, the position is not so simple, largely because of some observations made in this court in R v Havant Justices, ex p Palmer (1985) 149 JP 609. The observations (which were expressed by the judge who made them as unnecessary to the decision in that case) pointed to a different interpretation of s 12(5); it was said that s 12(5) was confined to appeals against sentence only and not to appeals against conviction.
[11]
The correctness of those observations is challenged by counsel for Mr Haw, Mr Guy Vassall-Adams. Miss Catrin Evans who has appeared on behalf of the respondent, instructed by the Treasury Solicitor, has put forward before the court the arguments to the contrary; she has done so in effect as an amicus, as the respondent has taken the position that it is neutral on this issue. We must record our immense indebtedness to them both for the very diligent research they have carried out and for the excellence and clarity of the arguments they have advanced.
[2008] 2 All ER 326 at 331
(b) The legislative history of s 12
[12]
Before dealing with the correctness of the observations made in Ex p Palmer, it is, we think, necessary to set out the background to the legislation.
[13]
In December 1974 a committee under the chairmanship of Phillimore LJ reported on Contempt of Court (Cmnd 5794). At para 25 of that report it was pointed out that magistrates' courts in England and Wales had no power to punish disruptive conduct in court, and that there had been recent instances of such conduct. At para 36 they recommended that as magistrates' courts dealt with about 98% of all criminal cases in England and Wales, those courts should be given powers to deal with contempt in the face of the court similar to those enjoyed by the county court. At para 37 they concluded:
'As in the case of superior courts, there should be the safeguard of an appeal which would need to be swift in the case of a custodial sentence. We recommend that appeals should lie to the nearest Crown Court, and that arrangements should be made for dealing with them expeditiously.'
[14]
It was not until 1980 that a Bill was brought forward to implement those proposals. The provisions with regard to magistrates' courts were modelled on powers that had been given to the county courts on their creation in 1846 and were then contained in cl 11 of the Bill. On the second reading of the Bill on 19 December 1980 the then Lord Chancellor (Lord Hailsham of Saint Marylebone) outlined the purpose of that clause:
'Clause 11 confers powers on magistrates to punish disruption or contempt in the face of the court and allows appeal up to the Crown Court, as indeed appeals to the Crown Court are universally allowed from magistrates. This follows paragraph 36 of the Phillimore Report but with rather heavier sanctions after six years than Phillimore then recommended.'
[15]
Clause 11 was considered at the committee stage on 20 January 1981. At that stage the paragraph in the Bill relating to appeals from the magistrates' court read in the following terms:
'The foregoing provision of this section shall have effect as if enacted in the Magistrates' Courts Act 1980; and for the purposes of section 108 of that Act (appeal to Crown Court) an order under this section shall be treated as an order made on conviction.'
[16]
Lord Renton pointed out that the draftsmanship did not comply with the report of the Renton Committee on the Preparation of Legislation (Cmnd 6053 (1975)), as it was, in his view, a flagrant example of a non-textual amendment to the 1980 Act when there should have been a textual amendment to that consolidating Act. The Lord Chancellor, in response, accepted the point. He, however, made clear, as concern had been expressed that magistrates might too hastily use the powers under the provision, that there should be--
'an appeal by way of re-hearing to the Crown Court if someone suffered any penalties under the preceding provisions [of the clause]. However, I shall of course refer what my noble friend said to the draftsman. He is one of the most experienced draftsmen in the business, so my noble friend can be sure that the point will be taken and examined in very safe hands, better than mine.'
[2008] 2 All ER 326 at 332
[17]
It appears from the researches of counsel that it was as a result of this amendment that the clause emerged in its present form. We have set the history out, because we are of the view that, if the provision has an ambiguity, there can be no doubt that the clear legislative intent was to provide a right of appeal to the Crown Court against conviction and sentence as applied generally in the case of conviction at a magistrates' court.
(c) The decision in Ex p Palmer
[18]
It is against that background that we turn to consider the observations on s 12(5) in Ex p Palmer. Palmer was a witness to proceedings before a magistrates' court. Whilst he and the defendant were waiting in the foyer outside the court for the magistrates to consider their decision Palmer threatened the defendant. The magistrates assumed jurisdiction, decided that by threatening the defendant Palmer was in contempt of court under s 12 of the 1981 Act and fined him £100. Palmer appealed against the finding of contempt and the fine to the Crown Court. The Crown Court judge decided he had no jurisdiction to hear the appeal. Palmer then sought a judicial review of the decision of the magistrates and of the judge. The applicant was represented by counsel and an amicus was instructed to put the contrary argument. The substantial judgment was given by the then May LJ, Nolan J merely adding a short judgment agreeing.
[19]
The then May LJ found that the conduct of Palmer was not on the facts a contempt within s 12(1)(a) as his conduct was not an 'insult'. That was, as the judge recognised, sufficient to dispose of the case. The judge none the less continued to express, first of all, a view on s 12(5) of the Act (at 612-613):
'In those circumstances as again will be readily apparent, it becomes unnecessary for this court to express any final opinion on the decision of the learned circuit Judge at Portsmouth that he had no jurisdiction to hear the appeal by the applicant against the magistrates' decision. However, well appreciating that any views which I now express may well hereafter be said to be obiter, having had the benefit of extensive argument on the point and also because it is perhaps a more important one than the one with which I have already dealt, I do propose to express a view upon it. Mr Foskett [counsel for Palmer] drew our attention to what at first sight appears to be the somewhat unhappy wording of s 12(5) of the 1981 Act, particularly the phrase "in relation to a sentence on conviction or finding of guilty of an offence". At first reading, one might be forgiven for expecting either the word "to" or "a" before the words "finding of guilty of an offence", but neither is there and for my part I think that it is not for the reason put forward in his submissions by Mr Foskett. By s 59 of the Children and Young Persons Act 1933 it was provided that the words "conviction" and "sentence" were to cease to be used in relation to children and young persons dealt with summarily and any reference in any enactment passed before or after the commencement of that Act should in the case of a child or a young person be construed as including a reference to that person being found guilty of an offence, a finding of guilty, or an order made upon such a finding. A child or young person, therefore, is not to be convicted; he or she is to be found guilty of an offence. It is for this reason, Mr Foskett submits, that one finds the word "conviction" and the phrase "finding of guilty of an offence" side by side in subs (5). For my part, I accept that submission and that then leads one to the proper construction of that subsection. The relevant section of the Magistrates' Courts Act 1980 in the instant case of those referred to in s 12(5)
[2008] 2 All ER 326 at 333
of the 1981 Act is s 108, which provides for a right of appeal to the Crown Court for a person convicted by magistrates - if he pleaded guilty, against sentence; if he did not, against the conviction or sentence. But s 12(5) of the 1981 Act merely refers to an "order" under s 12 and applies s 108 of the Act of the previous year to that order only as it applies "in relation to a sentence on conviction or finding of guilty of an offence." Thus, in my opinion, the jurisdiction of a Crown Court in this context is limited to hearing an appeal against the penalty imposed by magistrates for the contempt which they have found to have been committed: there is no jurisdiction in a Crown Court to hear an appeal by a person against the actual finding of contempt by justices under s 12(1) of the Contempt of Court Act 1981. Thus, in my judgment, in the instant case the learned circuit Judge was wholly right to decline jurisdiction in so far as the appeal against the finding of contempt was concerned, although had he been minded to and had the applicant been prepared to proceed on that limited basis, he did, in my judgment, have jurisdiction in respect of penalty.'
The judge went on to deal with s 13 of the 1960 Act, but it is convenient to deal with that part of his judgment when we turn to consider the jurisdiction of the High Court under s 13 of that Act at [31] and following, below.
[20]
The observations which we have set out have been criticised as unduly narrow: see The Law of Contempt by Professors Lowe and Sufrin (3rd edn, 1996) p 516; as questionable: see: Contempt of Court by Professor CJ Miller (2000) p 129 (para 3-105); and as somewhat restrictive in Arlidge, Eady and Smith on Contempt (3rd edn, 2005) p 1022 (para 13-129). As can be seen from the passage we have cited, the approach of the court was not to adopt a purposive construction to s 12(5) but rather to look at it syntactically by reference to s 59 of the Children and Young Persons Act 1933. Section 59 of that Act, as it stood in 1985, read:
'(1) The words "conviction" and "sentence" shall cease to be used in relation to children and young persons dealt with summarily and any reference in any enactment whether passed before or after the commencement of this Act to a person convicted, a conviction or a sentence shall, in the case of a child or young person, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding, as the case may be . . .'
First it can be noted that s 59 of the Act uses the term 'found guilty of an offence, a finding of guilt or an order made upon such a finding' and not the term in s 12(5) 'finding of guilty of an offence'. The wording of s 12(5) therefore does not track the wording of s 59 of the 1933 Act. The summary of the provisions of s 59 by the then May LJ is therefore mistaken in so far as he summarises the section as referring to 'a finding of guilty'. Those are the words used in s 12(5) but not in s 59.
[21]
Furthermore, as the late Professor Sir John Smith pointed out in his commentary on the report of this decision in [1985] Crim LR 658, the draftsman did not, if the intention was to deal with the position of children and young persons, need to use words such as 'or finding of guilty of an offence' to deal with the position of children and young persons because s 59 makes it clear that the word 'conviction' is to be read in any Act, whether passed before or after the commencement of the 1933 Act, as including a reference to a child or young
[2008] 2 All ER 326 at 334
person found guilty of an offence, finding of guilt or an order made upon such a finding.
[22]
Thus, we think that it is highly unlikely, for both of these reasons that the draftsman of s 12(5) intended to refer to s 59 of the 1933 Act. Thus the first premise of the then May LJ's approach to construction on a syntactical basis cannot be sustained.
[23]
The judge also based his view on the use of the term 'order' as only referring to s 12(2), both because of the use of the terms 'order' (which is used in s 12(2) and not in s 12(1)) and the words which then qualify the term 'order'. However the term 'order' is used in s 12(2) as a reference to only one of the sentences that can be passed; the term 'order' is not used in relation to the other sentences that can be passed. Moreover an 'order' of the court would ordinarily specify both the conviction and the sentence and would not ordinarily be read as restricted to sentence; this is the case, for example, in the form specified for use in contempt in the High Court (Civil Procedure Form R8). Furthermore we do not consider that the qualifying words after order need be read in the very narrow and restrictive sense set out by the then May LJ.
(d) Our conclusion
[24]
In his commentary, the late Professor Sir John Smith concluded (p 659):
'All this suggests that some mishap has occurred in the drafting but exactly what it was is difficult to say. The result is unfortunate. There seems to be no good reason why the person convicted (or found guilty) under the section should have no right of appeal against the conviction (or finding) as well as against sentence (or any order made on conviction).'
We agree that there can be no good reason why a person convicted under s 12 should not have a right of appeal against conviction as well as against sentence.
[25]
Leaving aside for a moment the legislative history we have set out, it is clear that Parliament must have known that the only other possible right of appeal on conviction was to the High Court under s 13 of the 1960 Act. Parliament would have known that such a right of appeal would present difficulties; there are no transcripts of the proceedings in the magistrates' courts as neither the reasons for the judgment of the court nor the evidence is recorded or transcribed. Thus if the High Court was to hear an appeal on conviction, there would be no transcript of the judgment and no complete record of the evidence; the court would have to rely on the notes of the clerk. Furthermore, Parliament would have known that the ordinary route of appeal on a conviction by a magistrates' court was to the Crown Court; it appears from the researches of counsel that there are no summary offences from which there is no right of appeal to the Crown Court. Although it may be debateable whether a conviction for contempt under s 12 is a conviction for a criminal offence (see for example the discussion in Arlidge, Eady and Smith on Contempt (3rd edn, 2005) p 1022 (para 13-129)), a conviction under s 12 carries some of the indicia of a criminal offence (as it is recorded on the Police National Computer). Parliament would have known that an appeal at the Crown Court was conducted by the form of complete rehearing to which we have referred at [8], above, and not the form of rehearing usual in the higher courts; it was therefore a far more suitable form of appeal than an appeal to the High Court. Moreover, Parliament would no doubt have had regard to the efficient use of resources; where an offence carried a maximum term of imprisonment of one month, there would be no good
[2008] 2 All ER 326 at 335
reason why the time of a judge of the High Court would be taken up in an appeal from such a decision when appeals on decisions where penalties could be up to six months were heard by judges and magistrates at the Crown Court. It is difficult therefore to think of any reason why Parliament may have considered a right of appeal to the Crown Court would have been appropriate in the case of sentence and inappropriate in the case of conviction. Indeed, even without consideration of the legislative history of s 12 of the 1981 Act, everything points to the fact that Parliament must have intended there be a right of appeal on conviction as well as sentence.
[26]
We are, however, also entitled to take into account the legislative background in accordance with the decision in Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42, [1993] AC 593. The provision is ambiguous; there are ministerial statements as to the intention; those statements are clear, as we have set out.
[27]
It seems to us, therefore, that taking into account the materials we have set out, and attempting to give the section a purposive construction, s 108 applies not only to a sentence on conviction but also to the conviction; we think the words can be so read.
[28]
However, as the then May LJ pointed out, if that had been the intention of Parliament, would one not have expected an indefinite article before the words 'finding of guilty of an offence'? In the absence of such an indefinite article, it was not, in his view, permissible to construe s 12(5) in the way we think is correct. We do not agree for the reasons we have given. But even if he was right, we consider that this is one of those cases where there has been a drafting error which we are entitled to correct in accordance with the principles set out in Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109, [2000] 1 WLR 586. In a speech with which all of the other members of the House agreed, Lord Nicholls of Birkenhead set out ([2000] 2 All ER 109 at 115, [2000] 1 WLR 586 at 592) the circumstances in which a court could correct a drafting error:
'I freely acknowledge that this interpretation of s 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross' admirable opuscule, Statutory Interpretation (3rd edn, 1995) pp 93-105. He comments (p 103):
"In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role."
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of
[2008] 2 All ER 326 at 336
the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation (see per Lord Diplock in Jones v Wrotham Park Settled Estates [1979] 1 All ER 286 at 289, [1980] AC 74 at 105-106). In the present case these three conditions are fulfilled.'
[29]
It is clear from what we have set out what the intended purpose of s 12(5) was; it is probable that, by inadvertence, the draftsman may have omitted to give effect to that purpose; if Parliament had noticed the error, the indefinite article would have been inserted. We do not believe that in correcting an error in this way we are in any sense crossing the boundary between construction and legislation.
[30]
For those reasons, therefore, we consider that there is a route of appeal to the Crown Court whether it be against conviction or sentence. As that was the route of appeal that the appellants originally intended to take, their appeal should be listed as soon as practicable at Southwark Crown Court in accordance with directions to be given by that court.
(2) Does an appeal lie to the High Court under s 13(1)?
[31]
As we have indicated, there is the view that a right of appeal in cases such as this lies to this court under s 13 of the 1960 Act. In Re Hooker [1993] COD 190, this court considered an appeal under this section without the issue of jurisdiction being argued.
[32]
The material provisions of s 13 are the following:
'(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.
(2) An appeal under this section shall lie in any case at the instance of the defendant and, in the case of an application for committal or attachment, at the instance of the applicant; and the appeal shall lie--(a) from an order or decision of any inferior court not referred to in the next following paragraphs, to . . . the High Court; (b) . . .
(5) In this section "court" includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of a court in the exercise of jurisdiction to punish for contempt of court include references--(a) to an order or decision of the High Court, the Crown Court or a county court under any enactment enabling that court to deal with an offence as if it were contempt of court; (b) to an order or decision of a county court, or of any court having the powers of a county court, under section 14, 92 or 118 of the County Courts Act 1984; (c) to an order or decision of a magistrates' court under subsection (3) of section 63 of the Magistrates' Courts Act 1980,
[2008] 2 All ER 326 at 337
but do not include references to orders under section five of the Debtors Act 1869, or under any provision of the Magistrates' Courts Act 1980, or the County Courts Act 1984, except those referred to in paragraphs (b) and (c) of this subsection and except sections 38 and 142 of the last mentioned Act so far as those sections confer jurisdiction in respect of contempt of court.'
[33]
The other paragraphs of sub-s (2) do not refer to the magistrates' courts and the subsection therefore provides, on its face a right of appeal to the High Court, provided the power of the magistrates' courts is a power within sub-s (5). It was suggested before us that the power of the magistrates' court under s 12 of the 1981 Act might not fall within sub-s (5) as it was not expressly referred to therein. However, it seems to us clear that the words 'in the exercise of jurisdiction to punish for contempt of court include references' are merely words that illustrate and are not exhaustive. Thus, on the face of s 13, there is a right of appeal to the High Court which by reason of the provisions of s 64 of the Access to Justice Act 1999 would be heard by a single judge.
[34]
However, it would appear strange if Parliament had intended a concurrent right of appeal under this section. In Arlidge, Eady and Smith on Contempt (3rd edn, 2005) p 1022, the editors state at para 13-130 the following:
'There remains some doubt, therefore, as to the circumstances in which it is appropriate to go to the Crown Court, or to the High Court for judicial review or to the High Court by way of appeal under s.13 of the 1960 Act. The answer may be that s.13 does not apply to the exercise of the jurisdiction under s.12 of the Contempt of Court Act 1981 at all, for the reason that it is a specific statutory jurisdiction which is, although analogous to the contempt jurisdiction, not in fact to be so classified.'
[35]
In Ex p Palmer the then May LJ made the following further observation in relation to the relationship between s 12 and s 13 (at 613):
'If that provision [s 13 of the 1960 Act] operated or was held to operate in relation to situations covered by s 12 of the 1981 Act, the position would be this. Parliament with one hand would have given by subs (5) of s 12 of the 1981 Act a right of appeal, albeit limited to the extent that I have indicated, but then would have taken it away again with its other hand by virtue of the second half of subs (1) of s 13 of the 1960 Act. In my judgment, that cannot have been the intention of parliament and cannot be a proper construction to put on s 13(1) of the Administration of Justice Act 1960, in the circumstances which obtained in the instant case.'
[36]
It seems to us, therefore, on ordinary principles of statutory construction that the provisions of s 12(5) of the 1981 Act, being specific provisions with regard to the right to punish created under s 12(1) of that Act, were intended by Parliament to apply in place of the very general provisions of s 13 of the 1960 Act. Although this section of the 1960 Act was intended to provide a general right of appeal, at the time it was enacted the magistrates' courts had no power to deal with contempt in the face of the court and Parliament therefore could not have contemplated providing a route of appeal by s 13. It is clear from the ministerial statement by the then Lord Chancellor (Viscount Kilmuir) introducing the Bill on the second reading on 24 March 1960 that cl 13 of the Bill was intended to deal with general rights of appeal for contempt as it then existed. The editors of
[2008] 2 All ER 326 at 338
Arlidge, Eady and Smith on Contempt (3rd edn, 2005) p 732 (para 10-119) have taken a similar view:
'Another way of putting the point would be on the basis of generalia non specialibus derogant; that is to say, that the specific provisions of s.12(5), however poorly drafted they may be, must be taken to have priority over those of the earlier, more general provisions.'
This is also the view of Professor CJ Miller in Contempt of Court (2000) at para 3.105, fn 414.
[37]
We consider for the reasons we have set out above that Parliament cannot have intended to create a right of appeal to the High Court by way of rehearing; nor can Parliament have intended two concurrent rights of appeal, as that would only lead to confusion. In our view therefore the provisions of s 12(5) of the 1981 Act apply to appeals under s 12 of that Act and there is no right of appeal under s 13 of the 1960 Act.
[38]
As we have reached the view that there is no right of appeal under s 13 of the 1960 Act, it is not necessary for us to consider how a court would control the scope and manner of the appeal. We have not therefore considered the scope of the powers under CPR Pt 52 nor the powers under s 13(3) of the Act (see Linnett v Coles [1986] 3 All ER 652, [1987] QB 555; R v Serumaga [2005] EWCA Crim 370, [2005] 2 All ER 160, [2005] 1 WLR 3366) nor the nature of any such appeal and whether it would have been by way of review or re-hearing (see for example EI Du Pont De Nemours & Co v ST Dupont [2003] EWCA Civ 1368, [2004] IP & T 559, [2006] 1 WLR 2793; Tanfern Ltd v Cameron-MacDonald [2000] 2 All ER 801, [2000] 1 WLR 1311; Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642, [2003] 1 All ER (Comm) 140, [2003] 1 WLR 577). We would merely observe that the draftsmen of CPR Pt 52 probably (and rightly) did not have in the forefront of their considerations appeals from the magistrates' courts on contempt.
(3) Appeals by way of case stated and applications for judicial review
[39]
The conclusions which we have set out in the preceding paragraphs do not, in our view, in any way affect the two other ways in which a decision of a magistrates' court on a contempt issue can be brought before this court.
[40]
Section 111 of the 1980 Act provides for a case to be stated by the magistrates' court; its terms are wide enough to encompass an appeal by way of case stated under s 12 of the 1981 Act and there is no reason why this route of appeal cannot lie in a case where it is appropriate. Plainly there can be cases where the issue that arises is a question of whether on the facts found the magistrates' court was entitled to make a finding of contempt. The route of using a case stated appeal to this court lies happily with the route of appeal to the Crown Court in ordinary criminal cases, as s 111(4) makes express provision that on the making of an application for a case stated, any right of appeal to the Crown Court ceases.
[41]
Nor do we see any difficulties with an application for judicial review of a conviction for contempt: this court has considered such application as for example in R v Tamworth Magistrates' Court, ex p Walsh [1994] COD 277; R v Pateley Bridge Justices, ex p Percy [1994] COD 453. The grounds upon which judicial review of the decision of the magistrates' court may be advanced are limited and controlled by the well-known limitations on this form of review.
[2008] 2 All ER 326 at 339
CONCLUSION
[42]
Our conclusion therefore on the points can be summarised as follows:
(i) An appeal lies to the Crown Court from a conviction or a sentence under s 12 of the 1981 Act at the magistrates' court.
(ii) There is no right of appeal against a conviction or sentence under s 12 of the 1981 Act to the High Court under s 13 of the 1960 Act.
(iii) An appeal to the High Court lies by way of case stated and proceedings for judicial review can be brought where appropriate.
Directions accordingly.
Dilys Tausz Barrister.
The New Law Journal/2007 Volume 157/Issue 7300, December/Articles/Delegation's what you need - 157 NLJ 1709
New Law Journal
157 NLJ 1709
7 December 2007
Delegation's what you need
Features
Cover Story
Dr Nicholas Dobson
is head of local and public law at Pinsent Masons
© Reed Elsevier (UK) Ltd 2007
Nicholas Dobson looks at how far officers in the public sector can delegate their powers
Delegatus non potest delegare: roughly translated, this means if something's been delegated to you, you cannot delegate further. However, the maxim does not bind to the extent that there is express or implied authority to delegate and if the rule were to be applied with punctilious rigour, public administration would seize up.
In the public sector, the position is different depending upon the nature of the body in question. Central government powers, for example, are conferred either by statute, Royal Prerogative or a combination of both. Local authority powers arise entirely from statute, either expressly or by implication.
When considering whether discharge of a particular duty or responsibility is required to be executed personally by an office holder or whether it is capable of delegation--and if so when, how and to what extent--it is necessary to look at the nature, context and circumstances of the particular measure.
This article will consider the decision of the Divisional Court in DPP v Haw [2007] EWHC 1931 (Admin), [2007] All ER (D) 29 (Aug) and will then look at some particular local authority delegation issues.
Brian Haw's Demonstration
Brian Haw has been demonstrating in Parliament Square against the government's policy on Iraq since June 2001. At issue in DPP v Haw was the lawfulness of conditions purportedly imposed upon him under the Serious Organised Crime and Police Act 2005 (SOCPA 2005), s 134.
Under SOCPA 2005, s 132 it is an offence for an unauthorised demonstration to take place in a designated place. A person seeking such authorisation must give written notice to that effect to the commissioner of police of the metropolis. Under SOCPA 2005, s 134 it is the commissioner who "must give authorisation for the demonstration to which the notice relates" and in so doing, the commissioner may impose such specified conditions as in his "reasonable opinion" are necessary for the purpose of preventing various matters detailed in s 134(3). Following an application on behalf of Haw, a police superintendent purported to authorise the demonstration to continue subject to conditions. One of the issues before the Divisional Court was whether or not the statutory powers available to the commissioner could be exercised by a subordinate on his behalf.
At first instance, the judge had held that the commissioner could not delegate as he had purported to do save within the powers available under the Police Act 1996 (PA 1996), ie to the deputy commissioner or one of the five assistant commissioners. However, the Divisional Court held that in the circumstances the powers under SOCPA 2005, s 134 could be exercised by a subordinate on behalf of the commissioner.
Carltona Principle
The core principle in such matters derives from the Court of Appeal's ruling in Carltona Ltd v Works Comrs [1943] 2 All ER 560 that the functions given to ministers are so multifarious that no minister could ever personally attend to them. Consequently, the duties and powers conferred upon ministers are normally exercised under their authority by responsible officials of the relevant department of state. However, constitutionally, the decision of such officials is the decision of the minister for which the minister is accountable to Parliament. As Lord Greene indicated in Carltona:
"The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."
In Haw, the Divisional Court considered that there is scope for further refinement of the Carltona principle, ie that the devolution of a minister's powers should be subject to a requirement that the seniority of the official exercising a power should be of an appropriate level having regard to the nature of the power in question. However, what was currently at issue was whether the Carltona principle could be applied not to a minister, but to the commissioner.
Statutory Implication
In considering this, the Divisional Court noted the comments of Lord Justice Laws in R (Lainton) v Chief Constable of the Greater Manchester Police [2000] 1 Pol LR 67, apparently based upon statutory implication rather than the Carltona principle:
"Where the exercise of a discretionary power is entrusted to a named officer... another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally."
* * * * * *
Key Points
· The maxim delegatus non potest delegare will not bind to the extent that there is express or implied authority to delegate.
· The Carltona principle--where duties and powers conferred upon ministers are normally exercised under their authority by responsible officials of the relevant department of state--is applicable outside central government.
· Where a statutory power is conferred upon a statutory officer, whether that officer has the power to delegate depends upon the interpretation of the relevant statute(s).
· There is scope for further refinement of the Carltona principle, ie the devolution of a minister's powers should be subject to a requirement that the seniority of the official exercising a power should be of an appropriate level having regard to the nature of the power in question.
· Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate in the absence of express or implied provisions to the contrary.
· Local authority delegations should be exercised with care in accordance with statutory authority and the precise terms of the delegation.
· Local authority "proper officers" have statutory authority to sign statutory documents on behalf of their authorities. The signature may be a facsimile and is deemed to have been duly given until the contrary is proved. Another suitably authorised officer can sign pp the proper officer.
* * * * * *
In Haw the Divisional Court took the view that:
"Where a statutory power is conferred on an officer who is himself the creature of statute, whether that officer has the power to delegate must depend upon the interpretation of the relevant statute or statutes. Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate. In such circumstances there will be a presumption, where additional statutory powers and duties are conferred, that there is a power to delegate unless the statute conferring them, expressly or by implication, provides to the contrary."
The court felt this was indistinguishable from a case in which the Carltona principle applies. It noted that provisions in PA 1996 permitted delegation of the powers and duties of the commissioner in circumstances where, having regard to the nature of those powers and duties, there would not be an implicit power to delegate. However, the court felt that these do not exclude the possibility of delegation to other officers where, having regard to the nature of the powers and duties, a power to delegate is implicit. On the contrary, having regard to the statutory role of the commissioner, it would be expected that Parliament, when conferring powers to be exercised by the Metropolitan Police, would confer them on the commissioner and then leave him to delegate the exercise of those powers as appropriate. So in this case it was plain that:
"Parliament cannot have intended that the Commissioner should determine the conditions himself."
Local Authority Delegations
Local authorities have, in the Local Government Act 1972 (LGA 1972), s 101 specific statutory power to arrange for the discharge of their functions to a committee, subcommittee or an officer of the authority or to any other local authority. This power is subject to any express provision within LGA 1972 or any subsequent Act.
However, under the Local Government Act 2000 (LGA 2000), Pt II, many local authority functions are discharged by local authority executives. These are defined in LGA 2000, s 11 and usually consist of groups of councillors appointed in accordance with that section (cabinets) with either a leader elected by the authority or a directly elected mayor.
LGA 2000, s 13(2) provides that subject to specified exceptions any function not specified in the Local Authorities (Functions and Responsibilities) (England) Regulations (SI 2000/2853) is to be the responsibility of the council's executive. In England, LGA 2000, s 14 enables arrangements for the discharge of functions by the executive itself, another member/members of the executive, a committee/committees of the executive or by an officer/officers of the council.
Authorities will consequently have in place schemes of delegation for both authority functions under s 101 and those conducted on the authority's behalf under executive arrangements. Common and legal sense dictate that these are followed carefully. But those purporting to discharge particular functions may frequently be hazy or ignorant of the authority for their actions and the detailed provisions governing them.
Scope of Powers
A case in point was the decision in R (Selter Associates Limited) v Leicestershire County Council [2005] EWHC 2615 (Admin), [2005] All ER (D) 236 (Oct) which concerned the purported making of a temporary road traffic prohibition order under the Road Traffic Regulation Act 1984, s 14.
This power had been delegated to the council's director of highways, transportation and waste management, subject to the concurrence of the council's chief executive. According to the council's assistant head of legal services, the chief executive had delegated these powers to the council solicitor under the scheme of delegation and she in turn had delegated her powers to the officer in her department who made the order in question.
Mr Justice Walker said that one difficulty with this was that (assuming that it was open to the chief executive to delegate the requisite concurrence and that he did so delegate):
"One would have expected the council to have produced some evidence that an individual had applied his or her mind to the question: should I concur in the making of this order on behalf of the chief executive on the basis that making this order is a proper exercise of discretion, not merely in the legal sense, but on the merits?"
The court, however, noted that there was nothing to suggest that anybody performed that function. Walker J could understand that there will be an officer who identifies the relevant legal questions, drafts the order and if satisfied that a checklist of legal requirements have been met, arranges for the order to be published, signed by the county solicitor. However:
"It would be very surprising indeed if such a person had delegated powers to consider whether, as a matter of discretion, the order was one which should or should not be made. There is no suggestion that there was anything in the checklist along those lines, and I would be very surprised indeed if there were."
The task of preparing and processing road traffic and footpath diversion orders was "a completely different task from the important role of considering whether the chief executive's approval should be given to what is proposed". Consequently, the court quashed the order.
As Lord Justice Pill said in R (Carlton- Conway) v Harrow London Borough Council [2002] EWCA Civ 927, [2005] All ER (D) 79 (Jun):
"Where powers are delegated to a single individual the scope of those powers must be considered carefully. However, judges are there to regulate the lawfulness of executive decisions and not to interfere unwarrantedly with the arrangements for making them."
Construction
Clearly the nature and scope of any delegation must be a matter of construction of the particular measure. However, the law does recognise that one senior individual cannot do everything personally. In local government there are mature statutory and administrative provisions which appear to have been sensibly construed by the courts. But it is equally clear that those who operate delegations in haste and are careless as to their precise terms may repent at leisure.
The New Law Journal/2007 Volume 157/Issue 7275, June/Articles/The bigger picture - 157 NLJ 764
New Law Journal
157 NLJ 764
1 June 2007
The bigger picture
Features
Public Law
Adam Clemens
is a barrister at Seven Bedford Row. E-mail: aclemens@7br.co.uk
© Reed Elsevier (UK) Ltd 2007
Adam Clemens looks at the courts' approach to balancing a person's right to demonstrate with the powers of the police to stop them
* * * * * *
In Brief
· Art 10 and 11 rights now have the recognition they deserve. Courts will not tolerate mere lip service to them.
· Police forces must operate, in planning the policing of demonstrations, from a starting point that lawful demonstration must be facilitated.
· Failure to operate on this basis will strengthen human rights attacks on policing methods, particularly on issues of proportionality.
· The Northern Ireland policing model deserves close attention.
* * * * * *
It's a pretty safe bet that public demonstrations--from animal rights to Iraq--will increase. Policing of demonstrations will, inevitably, come in for closer scrutiny because Art 10 and 11 rights (freedom of expression and peaceful assembly) under the European Convention on Human Rights (the Convention) now have proper recognition. Any failure by police forces to realise the strengths and the implications of those rights--and their obligation to facilitate lawful protest--will lead to ineffective planning, and tortured arguments being taken on appeal when plans break down and civil actions or judicial reviews rain down. In April, the police failed on an Art 2 (right to life) Convention point in Van Colle v Chief Constable of the Hertfordshire Police [2007] EWCA Civ 325, [2007] All ER (D) 190 (Apr) in which the defendant in criminal allegations carried out his threat to kill Giles Van Colle, the main prosecution witness against him. Damages were reduced from £50,000 to £25,000.
Scope
This article looks at Brian Haw's demonstration in Parliament Square and the special regime in the designated area created by the Serious Organised Crime and Police Act 2005 (SOCPA 2005), and wider policing issues in light of R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, [2007] 2 All ER 529 which examined the right of the private citizen to demonstrate against government policy and the powers of the police to curtail that right. Austin v Metropolitan Police Commissioner [2005] EWHC 480 (QB), [2005] All ER (D) 402 (Mar) will be heard fairly soon in the Court of Appeal. That case involves the 2001 anti-capitalist May Day demonstrations in which bystanders were caught up in cordons, together with demonstrators. It will focus on Art 5 (right to liberty).
A Good Way Forward?
It is a trite observation that not every eventuality can be planned for, but the Northern Ireland model of using legal advisers in planning policing strategies, and having them present in gold command during the demonstration, could have application here. For judicial review practitioners, there is a spin off benefit from the Haw case on how Parliamentary intention might be got at without having to resort to essentially academic Pepper v Hart [1992] UKHL 3, [1993] 1 All ER 42 arguments.
Analysis--Haw
In R (Haw) v Secretary of State for the Home Department [2006] EWCA Civ 532, [2006] 3 All ER 428 the Court of Appeal, reversing the Divisional Court, ruled that SOCPA 2005, s 132--on any view shabbily drafted--does apply to Haw's demonstration. It is shabbily drafted because it applies, on its face, only to demonstrations that start after SOCPA 2005 came into force on 1 August 2005. It was common ground that Haw had demonstrated continuously since June 2001. The Divisional Court, (Mr Justice Simon dissenting) agreed with Haw that he was not caught by s 132 and that a statutory instrument/commencement order introduced (in part) to deal with the elementary drafting flaw, did not "rescue" the position for the defendants. He therefore did not need to seek authorisation for his continuing demonstration.
The Court Of Appeal's Focus
The Court of Appeal focused more on the bigger picture and the implications for policing demonstrations in the designated area if SOCPA 2005 did not apply to his demonstration. If his demonstration were exempt, people who joined his demonstration might similarly be exempt. Equally--and it was a factor that "much influenced" the Court of Appeal--SOCPA 2005 specifically disapplies the Public Order Act 1986 (POA 1986), s 14 which allows for the imposition of conditions on public assemblies. The Home Secretary's primary point was that Parliament cannot have intended that Haw's demonstration--potentially swollen to unmanageable levels by others--be outside the control of both SOCPA 2005 and POA 1986.
As a result, Haw was required to give notice of his demonstration and conditions were imposed, aimed primarily at restricting its size. It was always accepted that Haw, in himself, posed no security threat, but that his demonstration could be taken advantage of by terrorists who might use it to conceal explosive devices
In February 2007, the House of Lords refused Haw's petition. That is not the end of it though because Haw was prosecuted for (allegedly) breaching the conditions imposed. In January 2007 at the City of Westminster Magistrates' Court, District Judge Purdy upheld a submission of no case on the basis that:
· the commissioner cannot lawfully delegate the imposition of conditions to an officer with a rank of superintendent in reliance on the delegation principle in Carltona v Commissioner of Works [1943] 2 All ER 560; and
· the conditions lacked sufficient clarity so as to be "prescribed by law".
The case is heading for the Divisional Court on a case stated; date as yet unknown.
Press Attention
The application of SOCPA 2005 on the ground is often ridiculed in the press. Why (it is asked) must the man impersonating Charlie Chaplin from his silent period give notice of a demonstration in which he holds a placard reading "not aloud" and has a piece of paper on him--only to be found by the police--which says "no comment"? All sharp stuff, but the police can only play the hand they are dealt. The implication of some press attention is that SOCPA 2005 prevents demonstrations. It does not. Section 134(2) says the commissioner must authorise demonstrations for which notice is given. Setting sensible and proportionate conditions is often not an easy task.
TIP
A useful spin off for practitioners which emerges from Haw goes to the issue of how to get at Parliamentary intention. It was a consistent theme on behalf of Haw that the court could and should not have recourse to Parliamentary material because there was no ambiguity on the face of SOCPA 2005, s 132 to permit that route or examination in Pepper v Hart terms. The Court of Appeal rejected that and preferred a purposive approach in an attempt to answer the "puzzle" about why Parliament should have wished to control demonstrations which started after SOCPA 2005 came into force, but not those before. The court applied the approach suggested by Lord Nicholls in R v Secretary of State for the Environment, ex parte Spath Holme [2000] UKHL 61, [2001] 1 All ER 195 which is not reliant on the subjective intention of a minister, but on the wider objective concept of what must have been intended.
Recognition Of Art 10 And 11 Rights
In Laporte, Lord Bingham said: "The approach of the English common law to freedom of expression and assembly was hesitant and negative, permitting that which was not prohibited" [at para 34]. Not any more. While Art 10 and 11 rights are not absolute they are of fundamental importance in a democratic society. In Huntingdon Life Sciences v Stop Huntingdon Animal Cruelty (SHAC) [2007] EWHC 522 (QB), [2007] All ER (D) 506 (Mar), Mr Justice Holland reminded himself that "as a matter of general principle, the 'bottom line' was SHAC's entitlement to engage in lawful protest, unfettered save for good reason".
Laporte--Analysis
In March 2003, a demonstration was planned by a group called Gloucestershire Weapons Inspectors at the Fairford RAF base from where American B-52s were beginning to fly sorties against Iraq. Proper notice was given. The Gloucestershire police started planning at an early stage. Rather than using POA 1986, s 13 to ban the march, s 12 conditions were imposed and a command structure established. The claimant got on one of three buses at Euston. The group, numbering about 120, was diverse. It included people of varying ages, a legal observer and a female member of the Campaign for Nuclear Disarmament aged 76. The progress of the coaches was monitored by the police. Chief Superintendent Lambert recorded in his log that intelligence suggested that the coaches contained members of the Wombles (a hardcore activist anarchist group). The coaches were to be stopped, searched, and--if offending articles were found--turned around and sent back to London. He directed that the occupants were not to be arrested--assuming no arrests were justifiable for discrete offences--for breach of the peace because a breach of the peace was not imminent.
The coaches were intercepted near Fairford. Searches turned up some dust and face masks, three crash helmets, hoods, five hard hats, overalls, scarves, a can of red spray paint, two pairs of scissors and a safety flare. In the luggage compartment on one coach, police found five polycarbonate homemade shields. All items were seized, some owners identified and some questioned. There was little if any inquiry about the passengers' intentions and affiliations. Three designated speakers were allowed on to Fairford. One passenger was arrested for incitement. Eight Wombles were identified. Chief Superintendent Lambert ordered that the coaches be returned to London.
On a judicial review of the decision to turn the coaches around, Chief Superintendent Lambert reasoned that, if allowed to proceed, and based on the history of the Wombles and the articles seized, there would have been a breach of the peace when the coaches arrived. He said he could not discount the risk that some peaceful protestors would be caught up, but it was impossible to say who had brought the (offending) articles onto the coaches. The House of Lords, while feeling it unnecessary to consider Art 5 detention, unanimously found that the claimant's Art 10 and 11 rights had been breached. By taking action when no breach of the peace was even in the offing, it impacted on the sheep as well as the goats. The action in turning the coaches round was not prescribed by law, was not necessary and was not proportionate.
Proportionality
The decision in Laporte has to be right. Arguments that Chief Superintendent Lambert's decision on breach of the peace and imminence was reasonable, and governed by some general test of reasonableness, were laboured at best, and misconceived at worst. Lord Bingham regarded the concept as "uncertain and undefined". Apart from the inherent contradiction between the contemporaneous log and the evidence in the judicial review on the issue of imminence of the breach of the peace it is hard to see how the decision to turn back a significant number of protestors actually came to be made.
The decision, taken on the spot in the exigency of the moment and in a fast-moving exercise, deserved respect, but it did not stand up. True, the police are in an invidious position. What would have happened if the coaches had arrived and all hell had broken loose? The cry would have been: Why did you not turn them back? However, once the march was deemed controllable, arguments that actions were proportionate, at least in the sense that they might root out the hardcore activists but have a collateral--and unfortunate--impact on the genuine protestor, are not viable.
A Way Forward?
The marching season in Northern Ireland (3000+ marches) has resulted in a highly evolved approach. The fundamental right to protest is at the forefront of any plans. Leading human rights lawyers are intimately involved in the planning and are present in the control room during the actual marches, but do not advise on the day or influence the actual decisions made. Far from leading to more defensive policing--in the sense that decisions can be scrutinised there and then--it is claimed (with no reason to doubt it) that it leads to more open and effective policing. It is a model well worth a look.
All England Reporter/2007/August/*Director of Public Prosecutions v Haw - [2007] All ER (D) 29 (Aug)
[2007] All ER (D) 29 (Aug)
*Director of Public Prosecutions v Haw
[2007] EWHC 1931 (Admin)
Queen's Bench Division (Divisional Court)
Lord Phillips CJ and Griffith Williams J
6 August 2007
Public order - Demonstration - Conditions imposed on demonstration - Defendant organising protest in Parliament Square - Failure to comply with conditions - Whether statutory powers available to Commissioner of Police exercisable by subordinate - Whether conditions imposed on defendant's protest unlawful - Serious Organised Crime and Police Act 2005, s 134.
Abstract
Public order - Demonstration. The statutory powers available to the Commissioner of Police under s 134 of the Serious Organised Crime and Police Act 2005 could be exercised by a subordinate on his behalf. The conditions imposed under the Act on the defendant's protest in the instant case (on Parliament Square), however, were unlawful as they were too vague.
Digest
The defendant had been conducting a permanent demonstration in Parliament Square against the government's policy on Iraq since June 2001. At one time he occupied a site opposite the entrance to the House of Commons of some 44m in width. The site was encumbered with placards, tents and other objects. No suggestion had been made at any time that the defendant was any form of security threat. Concerns were raised, however, that his demonstration might be used as some sort of cover for a terrorist attack. In April 2005, the Serious Organised Crime and Police Act 2005 received royal assent. Sections 132 to 138 dealt with demonstrations in the vicinity of Parliament. They provided for a system of notices and authorisation, subject to conditions, for such demonstrations. Where an unauthorised demonstration was carried on or a condition not complied with, an offence was committed. The provisions came into force on 1 July 2005. The defendant brought proceedings for judicial review, in which he submitted that the provisions had no application to his demonstration as it was already in existence when they came into effect. The Court of Appeal rejected that submission (see [2006] All ER (D) 94 (May)). A general challenge to ss 132 to 138 as an infringement of art 11 of the European Convention on Human Rights was also rejected (see [2006] All ER (D) 303 (Dec)). In May 2006, a summons was issued against the defendant for breach of the conditions imposed under the Act, alleging that he had knowingly failed to comply with the conditions contrary to s 134(7)(a). In particular, it was said that he had organised the demonstration on a site which exceeded prescribed size, that he had failed to supervise the site of the demonstration properly, that he had used articles in connection with his demonstration that would allow others to conceal items within them, and that he had failed to maintain his site in a manner that allowed any person present to tell at a glance whether or not suspicious items were present thereon. The judge ruled that there was no case to answer, and the prosecution appealed by way of case stated.
Two issues arose for determination: (i) whether the statutory powers available to the Commissioner of Police under s 134 could be exercised by a subordinate on his behalf; and (ii) whether the conditions imposed upon the defendant were ultra vires, or incompatible with arts 10 and 11 of the European Convention on Human Rights on the grounds that they were unreasonable or insufficiently clear.
The court ruled:
The statutory powers available to the Commissioner of Police under s 134 could be exercised by a subordinate on his behalf.
It was plain that Parliament could not have intended that the Commissioner should determine the conditions himself. Determining the appropriate conditions was a technical matter, depending on the precise location and nature of the demonstration that was planned. The Commissioner could not have been intended himself to determine, for example, the number and size of banners or placards to be used at each demonstration.
The judge's conclusion that the conditions imposed upon the defendant in the instant case were not workable was not unreasonable and could not be interfered with.
The questions posed by the case stated would be answered (i) 'the power could be delegated' and (ii) 'yes, by reason of lack of clarity'.
Harold Keith and Clair Dobbin (instructed by the Crown Prosecution Service) for the prosecution.
Clive Sheldon (instructed by the Attorney-General) appeared as advocate for the court.
The defendant appeared in person.
James Wilson Barrister (NZ).
Judgment
[2007] EWHC 1931 (Admin)
DIVISIONAL COURT
6 AUGUST 2007
LORD PHILLIPS OF WORTH MATRAVERS CJ and MR JUSTICE GRIFFITH WILLIAMS
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
LORD PHILLIPS CJ:
This is the judgment of the court
Introduction
1. This is an adjourned hearing of an appeal by way of case stated by the Director of Public Prosecutions against a decision of District Judge Purdy in the City of Westminster Magistrates Court on 22 January 2007. The judge ruled that there was no case for the Respondent, Brian Haw, to answer on a charge of knowingly failing to comply with a condition imposed under section 134 of the Serious Organised Crime and Police Act 2005 ('SOCA') in respect of a demonstration in Parliament Square. The hearing before us was adjourned because Mr Haw had not been served with relevant documents in time to give them proper consideration.
2. There had been listed before us at the same time an application by Mr Haw for permission to apply for judicial review to challenge the decision taken by the police to impose those conditions. Initially it was not clear whether Mr Haw wished to pursue that application. His stance was that he wished at least to keep it alive. We directed that, if he wished to pursue, it he should do so after we have dealt with the case stated and on a different occasion.
3. The issues raised by the case stated are as follows:
i) Whether the statutory powers available to the Commissioner of Police under section 134 of SOCA can be exercised by a subordinate on his behalf;
ii) Whether the conditions imposed on Mr Haw were ultra vices, or incompatible with Articles 10 and 11 of the European Convention on Human Rights ('ECHR'), as unreasonable or insufficiently clear.
Background
4. Mr Haw has been conducting a permanent demonstration in Parliament Square against the Government's policy on Iraq since 2 June 2001. At one tin he occupied a site opposite the entrance to the House of Commons of some 44 metres in width. This was encumbered with placards, tents and other objects. Mr Haw is a peaceable man and no one has ever suggested that he himself poses any form of threat to security. The concern is, however, that his demonstration so close to Parliament might be used as cover for some form of terrorist attack.
5. On 7 April 2005 SOCA received royal assent. Sections 132 to 138 deal specifically with demonstrations in the vicinity of Parliament. They provide for a system of notices and authorisation, subject to conditions, for such demonstrations. Where an unauthorised demonstration is carried on or a condition is not complied with an offence is committed. These provisions came into force on 1 July 2005.
6. Mr Haw brought proceedings for judicial review in which he submitted that these provisions had no application to his demonstration as it was already in existence when they came into effect. On May 2006 the Court of Appeal ruled against this submission in R (Haw) v Secretary of State for the Home Department [2006] EWCA Civ 532. A general challenge to sections 132 to 138 of SOCA as an infringement of Article 11 of the ECHR was made in appeals by way of case stated brought by four other demonstrators. This also failed: Blum and others v Secretary of State for the Home Department [2006] EWHC 3209 (Admin).
The statutory provisions:
7. Section 132(1) of SOCA provides:
"'Any person who (a) organises a demonstration in a public place in the designated area or (b) takes part in a demonstration in a public place in the designated area... is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under s. 134(2).'
Under section 133(1) a person seeking authorisation for a demonstration in the designated area must give written notice to that effect to the Commissioner of Police of the Metropolis ("the Commissioner"). The notice must be given, if reasonably practicable, not less than 6 clear days before the day on which the demonstration is to start or, if that is not reasonably practicable, then as soon as it is, and in any event not less than 24 hours before the time the demonstration is to start: section 133(2).
The notice, which must contain information relating to the date, time, place, duration etc of the demonstration etc, must be given by delivery to a police station in the metropolitan police district or by post by recorded delivery to such a police station: section 133(5)."
8. Section 134 provides, so far as relevant:
"134 Authorisation of demonstrations in designated area
(1) This section applies if a notice complying with the requirements of section 133 is received at a police station in the metropolitan police district by the time specified in section 133(2).
(2) The Commissioner must give authorisation for the demonstration to which the notice relates.
(3) In giving authorisation, the Commissioner may impose on the persons organising or taking part in the demonstration such conditions specified in the authorisation and relating to the demonstration as in the Commissioner's reasonable opinion are necessary for the purpose of preventing any of the following-
(a) hindrance to any person wishing to enter or leave the Palace of Westminster,
(b) hindrance to the proper operation of Parliament,
(c) serious public disorder,
(d) serious damage to property,
(e) disruption to the life of the community,
(f) a security risk in any part of the designated area,
(g) risk to the safety of members of the public (including any taking part it. the demonstration).
(4) The conditions may, in particular, impose requirements as to -
(a) the place where the demonstration may, or may not, be carried on,
(b) the times at which it may be carried on,
(c) the period during which it may be carried on,
(d) the number of persons who may take part in it,
(e) the number and size of banners or placards used,
(f) maximum permissible noise levels.
(5) The authorisation must specify the particulars of the demonstration given in the notice under section 133 pursuant to subsection (4) of that section, with any modifications made necessary by any condition imposed under subsection (3) of this section.
(6) The Commissioner must give notice in writing of -
(a) the authorisation,
(b) any conditions imposed under subsection (3), and
(c) the particulars mentioned in subsection (5), to the person who gave the notice under section 133.
(7) Each person who takes part in or organises a demonstration in the designated area is guilty of an offence if -
(a) he knowingly fails to comply with a condition imposed under subsection (3) which is applicable to him (except where it is varied under section 135), or
(b) he knows or he should have known that the demonstration is carried on otherwise than in accordance with the particulars set out in the authorisation by virtue of subsection (5).
(8) It is a defence for a person accused of an offence under subsection (7) to show-
(a) (in paragraph (a) case) that the failure to comply, or
(b) (in paragraph (b) case) that the divergence from the particulars,
Arose from circumstances beyond his control, or from something done with the agreement, or by the direction of a police officer.
(9) The notice required by subsection (6) may be sent by post to the person who gave the notice under section 133 at the address stated in that notice pursuant to subsection (4)(e) of that section.
(10) If the person to whom the notice required by subsection (6) is to be given has agreed, it may be sent to him by email or by facsimile transmission at the address or number notified by him for the purpose to the Commissioner (and a notice so sent is 'in writing' for the purposes of that subsection). "
9. Section 135 provides:
"135 Supplementary directions
(1) This section applies if the senior police officer reasonably believes that it is necessary, in order to prevent any of the things mentioned in paragraphs (a) to (g) of subsection (3) of section 134-
(a) to impose additional conditions on those taking part in or organising a demonstration authorised under that section, or
(b) to vary any condition imposed under that subsection or under paragraph (a) (including such a condition as varied under subsection (2)).
(2) The senior police office may give directions to those taking in or organising the demonstration imposing such additional conditions or varying any such condition already imposed.
(3) A person taking part in or organising the demonstration who knowingly fails to comply with a condition which is applicable to him and which is imposed or varied by a direction under this section is guilty of an offence.
(4) It is a defence for him to show that the failure to comply arose from circumstances beyond his control.
(5) In this section, 'the senior police officer' means the most senior in rank of the police officers present at the scene (or any one of them if there are more than one of the same rank)."
The Conditions
10. An Order specifying the designated area, including Parliament Square, was made by the Secretary of State on 8 June 2005. It came into force on 1 July 2005.
11. The Commissioner of Metropolitan Police signed an undated document under which he gave notice that he delegated his functions under section 134 of SOCA to an officer of the rank of Superintendent or above.
12. On 8 May 2006 Mr Haw's solicitors wrote to Charing Cross Police Station (for the attention of Superintendent Bonner) seeking authorisation to continue his demonstration, for the most part on his own but stating that from time to time he would be 'joined by others'.
13. On 9 May 2006 Superintendent Peter Terry purported to authorise the demonstration to continue subject to conditions imposed under section 134(3)
14. The conditions were as follows:
"1. The site associated with your demonstration (including banners, placards etc) will not exceed 3 metres in width, 3 metres in height and 1 metre in depth.
2. The site should at no time prevent pedestrian movement along the footway.
3. Your property (including banners, placards etc) must be supervised at all time with diligence and care, in a manner that ensures that nothing can be added to your protest site without your immediate knowledge.
4. You must not use articles in connection with your demonstration that can conceal or contain other items.
5. You must maintain your site in a manner that allows any person present to tell at a glance that no suspicious items are present.
6. If members involved in your demonstration are to exceed 20 in total you must give six clear days notice to the operations officer at Charing Cross Police Station.
7. If requested by a police officer in uniform you must confirm whether persons present are part of your demonstration or not."
15. After representations by Mr Haw's solicitors in relation to these conditions, three of them were varied as follows:
"3. your property (including banners, placards etc) must be supervised at all time with diligence and care, in a manner that ensures that nothing can be added to your protest site without your immediate knowledge, or the immediate knowledge of a person nominated by you to care for your property whilst you are not able to do so.
4. You must not use articles in connection with your demonstration that would allow others to conceal items within them.
6. If the numbers involved in your demonstration are to exceed 20 in total you must, where reasonably practicable, give six clear days notice of this fact to the operations office at Charing Cross Police Station. When it is not reasonably practicable to give six clear days notice, then give notice as soon as it is, and in any event no less than twenty four hours before numbers are to increase to above twenty."
The proceedings
16. On 18 May 2006 a summons was issued against Mr Haw for breach of the conditions imposed under SOCA alleging that he knowingly failed to comply with the conditions contrary to s134(7)(a) in that he:
(a) organised the demonstration on a site which exceeded 3 metres in width, 3 metres in height and 1 metre in depth.
(b) failed to supervise the site of the demonstration and the property thereon at all times with diligence and care, in a manner that ensured that nothing could be added to the site without his immediate knowledge, or in the immediate knowledge of a person nominated by him to care for the property whilst he was unable to do so.
(c) used articles in connection with his demonstration that would allow others to conceal items within them
(d) failed to maintain his site in a manner that allowed any person present to tell at a glance whether or not suspicious items were present thereon.
The summons was supported by a witness statement of Paul Reilly claiming that Mr Haw was in breach of the width restriction condition 1, and of conditions 4 and 5 in that the area behind the display was covered in disused placards, and sheeting. On 23 May 2006 police attended the site and removed a number of items on the ground that this was necessary to achieve compliance with the conditions.
17. The hearing took place before District Judge Purdy between 11 and 13 December 2006. Evidence for the prosecution was given by Superintendent Terry and Chief Inspector Robinson. Two video tapes were played to the judge and photographs of the site of Mr Haw's demonstration were placed before him. On 2 May 2007 he gave his decision. The summary of his conclusions and the questions that he stated for the decision of this court were as follows:
"3. In short I held that the power to delegate a statutory duty as in Carltona v Commissioner of Works [1943] 2 AER 560 did not apply holding that demonstrations in the 'vicinity of Parliament' cannot be delegated applying inter alia Lord Hailsham, LC, in R v Chief Constable of North Wales ex. P Evans [1982] 1 WLR 155 HL. Additionally R v Constable of Greater Manchester ex. p. Lainton [2000] 1. R. C. 1324 per Laws L.J, at paragraph 28 'regard must be had to the public interest in seeing that the Chief Officer deals with matters of special substance' and R v Chief Constable of the West Midlands ex.p. Birmingham Justices [2002] EWHC 1087 (Admin).
4. In addition, upon the evidence .... I found that the conditions imposed, taken together, as they were intended to be applied in order to regulate a permanent demonstration, lacked clarity such as that they were not workable. I came to that conclusion following the evidence in cross examination of several police officers who had such varying opinions as to the meaning of the conditions that I felt driven to conclude it was therefore impossible to expect Brian Haw to keep within these conditions and held that they were not 'prescribed by law' per Article 11 of the Convention.
5. Questions
(1) Whether the statutory power available to 'the Commissioner of Police of the Metropolis' (per Section 133) to impose conditions on demonstrations, as set out in Section 134 of The Serious Organised Crime and Police Act 2005, can be delegated applying the principles in Carltona v Commissioners of Works [1943] 2 AER 560 or only as permitted by Sections 9A-9F of the Police Act 1996?
(2) Whether the conditions imposed on Brian Haw by letters dated 9th and 15th May 2006 were ultra vires section 134(3) of the Serious Organised Crime and Police Act 2005 and/or incompatible with Articles 10 and 11 of the European Convention on Human Rights as enshrined in Schedule 1 of the Human Rights Act 1998 as they lacked clarity so as not to be 'prescribed by law'?"
Can the Commissioner's powers be exercised by a subordinate?
18. After reviewing authority to which we shall refer the judge reached the following conclusion on this issue:
"The current state of the law on delegation seems to come down to assessing the 'statutory purpose' (supra) and 'the public interest in seeing that the Chief Officer deals with matters of special substance" (supra). Such considerations must come ahead of administrative concerns. These provisions deal not just with demonstrations but those directly related to Parliamentary protest something right at the heart of a democracy. Accordingly, applying those legal principles, I conclude that the Commissioner cannot delegate as he purported to do save within the powers available under The Police Act 1996 i.e. Deputy Commissioner or one of the five Assistant Commissioners. I hold that the submission of no case succeeds on this ground as Supt. Terry had no power to impose any conditions."
19. Mr Keith for the Crown did not challenge the test formulated by the judge. He submitted, however, that the judge failed properly to apply that test. Section 134 did not involve a decision whether to authorise or to refuse to authorise demonstrations. Authorisation was mandatory. The decision related simply to the imposition of appropriate conditions. These were pre-eminently matters that one would expect to be dealt with by subordinates. The judge was wrong to conclude that they were 'matters of special substance'. This was underlined by the fact that section 135(1) expressly provided that the senior police officer present might add to or vary the existing conditions.
20. The issue of law raised is not an easy one and, being aware that Mr Haw had not sought to be represented by a lawyer we asked the Attorney General to nominate an advocate to the court to assist us. In this role, Mr Clive Sheldon made his submissions at the first hearing. They were restricted to the first question.
21. Mr Haw initially took objection to Mr Sheldon's participation, stating that he had not asked for the assistance of an advocate and did not wish to have his interests represented by a man whom he had not even met. We explained, however that Mr Sheldon was present at the request of the Court and was not representing Mr Haw. At the end of Mr Sheldon' submissions Mr Haw appeared grateful for them. He made no relevant submissions in relation to the first question himself. We also are grateful for the submissions of Mr Sheldon.
22. Mr Sheldon submitted that the answer to the first question in the case stated is that delegation is permitted only as provided by sections 9A-F of the Police Act 1996. Those sections, inserted in 1999, give the Commissioner of Police for the Metropolis power to delegate to the Deputy Commissioner of Police for the Metropolis and to an Assistant Commissioner of Police for the Metropolis.
23. The Judge placed some reliance on R (Chief Constable of the West Midlands) v Birmingham Justices. That decision applied the Carltona principle to the powers of a Chief Constable. Mr Sheldon submitted that this case was in conflict with other authority and was wrongly decided.
24. The Carltona principle was enunciated at page 563 of the report of that case:
"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."
25. The Carltona principle received consideration from both the Court of Appeal and the House of Lords in R v Secretary of State for Home Affairs, ex parte Oladehinde [1991] 1 AC 254. At issue in that case was whether the Home Secretary had validly authorised immigration officers to exercise his statutory powers in relation to the deportation of aliens who had not complied with the conditions under which they had been permitted to enter the country. The Divisional Court, Woolf LJ and Pill J, held that he had not. The Court of Appeal allowed the Home Secretary's appeal. Giving the judgment of the Court, Lord Donaldson MR made the following observations at p. 282:
"Woolf L.J. held, ante, pp 264H-265A, that the Carltona principle should be regarded 'as an implication which is read into a statute in the absence of any clear contrary indication by Parliament that the implication is not to apply.' In this we think that he must be mistaken, because it applies equally where the minister's powers are derived otherwise than from a statute: e.g. from prerogative powers. We think that the better view is that this is a common law constitutional power, but one which is capable of being negatived or confined by express statutory provisions, as has been achieved in sections 13(5), 14(3) and 15(4) of the Act by the use of the words 'and not by a person acting under his authority' or by clearly necessary implication. However, so far as implication is concerned, we would expect any challenge to be mounted upon the possibly broader basis that the decision to devolve authority was Wednesbury unreasonable with, if appropriate, a submission that it involved a contravention of the rules of natural justice or of fairness. Thus we have no doubt that the courts would strike down a decision to authorise a prison governor to deal, in behalf of the Secretary of State, with petitions by prisoners complaining of the conduct of that governor. We hasten to add that no such decision has ever been taken. Consistently with his approach, we think that the present decision needs to be reviews with the possibility of Wednesbury irrationality clearly in mind."
26. At p. 283 Lord Donaldson added this:
"It is certainly true that the Home Office and Home Office ministers have not used language which was as precise as it might have been. Thus both Mr Renton in his parliamentary answer in the House of Commons on 20 December 1988 and Mr. Mawer, the Principal Private Secretary to the Secretary of State, responding to a request for information from the Immigration Appeal Tribunal, spoke of "delegation" of powers, although it is quite clear that what they were describing was authority to act on behalf of the Secretary of State. This is something different from delegation. The Civil servant concerned acts not as the delegate, but as the alter ego of the Secretary of State. 'Devolution' might be a better word."
27. In the leading speech in the House of Lords, which dismissed an appeal against the decision of the Court of Appeal, Lord Griffiths added little about the Carltona principle, albeit that he adopted the terminology used by Lord Donaldson. Thus he said at p. 300:
"It is obvious that the Secretary of State cannot personally take every decision to deport an immigrant who is in breach of his condition of entry or who is an overstayer. The decision must be taken by a person of suitable seniority in the Home Office for whom the Home Secretary accepts responsibility. The devolution of responsibility was recognised as a practical necessity in the administration of government by the Court of Appeal in Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560 and has come to be known as the Carltona principle."
28. Lord Griffiths added at p. 303:
"It is well recognised that when a statute places a duty on a minister it may generally be exercised by a member of his department for whom he accepts responsibility: this is the Carltona principle. Parliament can of course limit the minister's power to devolve or delegate the decision and require him to exercise it in person."
29. It seems to us that there is scope for further refinement of the Carltona principle. There is a case for saying, as Lord Griffiths observed, that the devolution of a Minister's powers should be subject to a requirement that the seniority of the official exercising a power should be of an appropriate level having regard to the nature of the power in question. No such issue arises in the present case, however. What is in issue is whether the Carltona principle can be applied, not to a Minister, but to the Commissioner of Police for the Metropolis.
30. In R (Lainton) v Chief Constable of the Greater Manchester Police [2000] 1 Pol LR 67 regulations made pursuant to the Police Act 1996 provided that the probationary period of a police constable could be extended by the Chief Constable. An issue arose as to whether this power could be exercised by an Assistant Chief Constable, or whether it could only be exercised by the Chief Constable himself. The Court of Appeal held that this was a power that could validly be delegated to an Assistant Chief Constable. In the leading judgment Laws LJ said this at pp 71-2:
"At first instance, and in this court, both parties accepted the correctness of the following passage, taken from p366 of de Smith, Woolf & Jowell on Judicial Review of Administrative Actions [5th ed, 1995]:
'Where the exercise of a discretionary power is entrusted to a named officer- e.g a chief officer of police, a medical officer of health or an inspector - another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally'
24. I, too, would accept this as a statement of the law as it currently stands; and as it seems to me broadly to march with what was said by Steyn LJ (as he then was) in Curtin [1994] Admin LR 657 at 666C-E:
'One must not elevate the idea of delectus personae which is sometimes called the presumption of deliberate selection to become an independent normative principle. It is a principle of statutory construction which will readily give way to indications of contrary intent, and here everybody knows, and the legislature must have known, that no all the individuals would necessarily be known to the majority of council members. In these circumstances, the presumption of deliberate selection must give way to a consideration of the practical realities of the exercise of a power to delegate.'
25. It is true that Lord Steyn there, in speaking of the idea or perception of delectus personae, was dealing with a concept somewhat narrower than a general power to delegate, but the reference to practical reality in broad terms supports what is said in de Smith, Woolf & Jowell. Of course, as I understand Mr Hunt to acknowledge, if the language of the provision in question in any particular case demonstrates that no delegation
was intended by the legislator, that would be the end of the matter. Here, it is accepted that there can be delegation of the power to dispense with the services of a probationer constable under reg 15(1). That is the express effect of the decision in their Lordships' House in R v Chief Constable of North Wales Police e.p Evans [1982] 1 WLR 1125. I would refer to but not cite passages from the speech of Lord Hailsham at 1161 F-G and Lord Bridge at 1165C-D. It is true to say that this decision of the House of Lords must be taken to have been in the mind of the legislator when the 1995 regulations were made."
31. In Lainton no mention was made of the Carltona principle. The possibility of delegation appears to have been based upon statutory implication. In the Birmingham Justices case the application of the Carltona principle to a Chief Constable received detailed consideration by Sedley LJ, sitting in the Divisional Court. The issue was the extent of the power of a Chief Constable to delegate his statutory function of making applications for anti-social behaviour orders. Sedley LJ expressed the following views:
"9. Although the Carltona case is frequently cited as a source of the 'alter ego' doctrine, it can be seen that Lord Greene's reasoning is not predicated on this. It is predicated on the proposition that the departmental head is responsible for things done under his authority. The relevance of the alter ego doctrine is that Crown servants were at that time taken in law to hold their positions by grace and not by contact, so that the minister was first among equals, not an employer with servants or a principal with agents. His implied power to delegate functions depended, therefore, on two things: the conferment of a power in terms which implicitly permitted their delegation and the existence of persons to whom he could delegate them without parting with ultimate responsibility.
10. A Chief Constable similarly is not the employer of the officers under his or her command but is legally answerable for them. The Carltona principle appears to apply readily in such a situation, with two well-established qualifications. One is that some functions are such that they cannot, consistently with the statutory purpose, be delegated at all: see R v Chief Constable of Greater Manchester, ex parte Lainton (C.A. 28 March 2000, unreported), paragraph 28. The other is that delegation has to be to somebody suitable. As Carltona demonstrates, who is suitable is primarily for the office-holder to decide. Today, however, it is clear that an improper delegation will be a matter for the courts, at least where the discharge of a statutory office is in issue."
32. Sedley LJ then considered Nelms v Roe [1970] 1 WLR 4. In that case Lord Parker CJ adopted the route of implied delegated authority to hold valid the exercise of a statutory power to sign an information, conferred on the Metropolitan Police Commissioner, by a police inspector who had been authorised by a superintendent. The Court expressly declined to apply the Carltona principle to the Commissioner of the Metropolitan Police. As to this, Sedley LJ commented:
"With all possible respect, I do not consider that we are required to adopt this reasoning. As has been seen, the Carltona principle, which binds this court, does not depend upon on the peculiar status of civil servants as the alter ego of their minister. It is sufficiently ample to allow a Chief Constable to discharge functions of the kind we are concerned with through an officer for whom he or she is answerable. To fall back instead on implied delegation and sub-delegation is capable of appearing to be a ratification by the court of an accomplished fact and to beg the question of power to delegate."
33. As Lord Donaldson pointed out, the Carltona principle can apply to the exercise of prerogative powers that are not conferred by statute. Where powers are conferred on a Minister by statute, the Carltona principle will apply to those powers unless the statute, expressly or by implication, provides to the contrary. Where a statutory power is conferred on an officer who is himself the creature of statute, whether that officer has the power to delegate must depend upon the interpretation of the relevant statute or statutes. Where the responsibilities of the office created by statute are such that delegation is inevitable, there will be an implied power to delegate. In such circumstances there will be a presumption, where additional statutory powers and duties are conferred, that there is a power to delegate unless the statute conferring them, expressly or by implication, provides to the contrary. Such a situation is, in practice, indistinguishable from one in which the Carltona principle applies. Thus whether Sedley LJ was correct as a matter of legal theory would seem to be of only academic significance.
34. Section 9A of the Police Act 1996 provides that the metropolitan police force shall be under the direction and control of the Commissioner of Police of the Metropolis. Section 9C makes provision for the powers and duties of the Commissioner of Police of the Metropolis to be performed, in specified circumstances, by the Deputy Commissioner of Police for the Metropolis. Section 9F provides that an Assistant Commissioner of Police may exercise any of the powers and duties of the Commissioner of Police for the Metropolis with the consent of the Commissioner. These general provisions permit delegation of the powers and duties of the Commissioner in circumstances where, having regard to the nature of those powers and duties, there would not be an implicit power to delegate. They do not, however, exclude the possibility of delegation to persons other than the Deputy or an Assistant Commissioner where, having regard to the nature of the powers and duties, a power to delegate is implicit. On the contrary, having regard to the statutory role of the Commissioner, one would expect Parliament, when conferring powers to be exercised by the Metropolitan Police, to confer them on the Commissioner and to leave him to delegate the exercise of those powers as appropriate.
Conclusions in relation to the first question
35. Whether to authorise a demonstration under section 134 is not discretionary; it is mandatory provided that the requisite notice has been given. The discretion conferred by that section is restricted to determining the conditions to be specified in the authorisation, which must be such as 'in the Commissioner's reasonable opinion' are necessary for the purpose of preventing the matters specified in the section. This sets the standard for any judicial review, a standard which, so it seems to us, equates to that of proportionality when considering the justification for restrictions on freedom of expression and freedom of assembly permitted by Articles 10 and 11 of the ECHR. The question remains as to whether the Commissioner must himself determine the conditions or whether this is something that he is entitled to delegate.
36. When the practicalities are considered it is plain that Parliament cannot have intended that the Commissioner should determine the conditions himself. Evidence was given to the judge that, at the time of the hearing, there were 1200 to 1300 demonstration applications in the vicinity of Charing Cross Station alone. Determining the appropriate conditions is a technical matter, depending on the precise location and nature of the demonstration that is planned. The Commissioner cannot have been intended himself to determine, for instance, the number and size of banners or placards to be used at each demonstration.
37. For these reasons we differ from the conclusion of District Judge Purdy that the subject matter of the conditions was such as to preclude delegation by the Commissioner of their determination.
Were the conditions ultra vires or incompatible with Articles 10 and 11 of the ECHR?
38. District Judge Purdy's findings in relation to this question were as follows:
"I have huge sympathy for Supt. Terry and clearly recall the ill concealed anguish with which he spoke of drafting and redrafting the conditions. Messrs Bindmans for Mr Brian Haw contributed to the process resulting in some amendments. Supt Terry's primary objective public safety concerns at an explosive device I find honest and reasonable. If conditions aimed at securing that aim, proportionate to a balance with the Defendant's right to protest, then that exercise, to my mind, cannot be fairly challenged. However, I fear he was struggling with describing the ever difficult elephant in the room resulting in conditions taken together which are not clear or workable. Mr MacDonald's cross examination of police witnesses was a master in demonstrating the absurdity of some conditions set against another. If Mr Keith, as Treasury Counsel, undoubtedly learned in the law, was forced to effectively abandon conditions 4 & 5 the Defence point is really made. Achieving clear unobjectionable conditions is not easy. When I invited, during submissions, Mr MacDonald to draft such conditions he visibly recoiled from the challenge. That does not, however, for the reasons just given detract from the fact these conditions as visited upon the Defendant, taken together lack clarity and cannot stand."
39. For these reasons the judge held that the conditions did not satisfy the requirements of the ECHR that they should be 'prescribed by law'.
40. Mr Haw had something to say in relation to this question. He submitted that his demonstration was directed against torture, murder and genocide. In these circumstances it was not reasonable to impose any conditions on the ambit of his demonstration. We do not accept that submission. The conditions were imposed, not with the object of frustrating or impeding Mr Haw's demonstration, but of ensuring that others could not use the demonstration as cover for terrorist activities. This was a perfectly reasonable and proportionate justification for imposing appropriate conditions.
41. Mr Haw did not limit his submissions to those that we have just considered. He had taken advantage of the first hearing to rail against a number of injustices that he claimed to have suffered, including the removal by the police of his property and physical violence that he claimed had been inflicted on him and his followers by the police. He returned to these themes on the renewed hearing. We attempted to explain to Mr Haw that these were not issues that arose on the case stated. The two issues that arose were issues on which he had been successful before the District Judge. As to this, Mr Haw replied that he had not had 'a proper trial' before the District Judge because the judge had ruled that there was no case to answer. After listening for at least half an hour to submissions that were irrelevant to the issues before us, despite repeated requests to Mr Haw to confine himself to relevant submissions, we directed him to bring his submissions to a close. He replied that the adjourned hearing had been listed for two hours, indicating that he intended to take full advantage of this. In these circumstances, after making sure that Miss Dobbin for the Crown did not wish to address further submissions, we left the court with Mr Haw still in full flood, reserving our judgment.
42. It is plain from the judgment that Mr MacDonald QC, who represented Mr Haw at the hearing before District Judge Purdy, had something of a field day when examining Superintendent Terry about the conditions. He succeeded in demonstrating to the satisfaction of the District Judge that the conditions were unworkable. If this was correct, the conditions were plainly neither reasonable nor did they satisfy the test of certainty that the Strasbourg Court requires when considering whether restrictions on Convention rights are 'according to law'.
43. Mr Keith sought to persuade us that he could successfully challenge the judge's conclusion in these proceedings, but failed to do so. The judge summarised the evidence given in relation to Mr Haw's demonstration in the course of his ruling, but it is not possible to found a submission that his conclusions were unreasonable on the basis of this summary. We are not in a position to differ from the conclusion of the judge who heard the evidence in relation to the second question in the case stated and, accordingly, must answer that question 'no'.
44. We would add this. The judge recorded that Mr Haw's solicitors had entered into discussions with Superintendent Terry in relation to the conditions, and that alterations were made in the light of these discussions. Mr Terry plainly attempted to accommodate Mr Haw's wishes, in so far as this could be done in a way that satisfied the needs of security. This cannot have been easy. The judge recorded:
"Conditions were imposed because, in the view of the police, Mr Brian Haw would not negotiate in any meaningful negotiations to meet their concerns. Supt. Terry said whenever I do speak to Brian Haw he stands and shouts at me".
45. The challenge made on behalf of Mr Haw to the practicality of the conditions imposed may mean that the police will be driven, in the interest of workability, to impose conditions on him that are simpler and more restrictive. Mr Haw has chosen for his demonstration a site that is particularly sensitive. He would be well advised to co-operate with the police in agreeing the conditions of such demonstration.
46. For the reasons that we have given the first question will be answered 'the power can be delegated' and the second question will be answered 'yes, by reason of lack of clarity'.