HASHMAN AND HARRUP v UNITED KINGDOM

If the allegation and summary conviction of a breach of the peace constitutes a violation of article 10 of the European Convention on Human Rights (ECHR), must the courts take a more detailed approach to public disorder offences before sweeping aside the individual rights bestowed them? 

When two hunt saboteurs are impugned under statute dating back centuries, the certainty of this broadly applied restriction was questioned by virtue of it’s failing exactness.

While actively demonstrating at a village fox hunt, the methods used by the two appellants included the blowing of horns and hollering around the hunt dogs, in order to effect distractive consequences and general confusion within the event.

Unfortunately, as a consequence of these tactics, a single hound strayed from the pack before winding up killed under the wheels of a passing lorry.

Although there were no ensuing fisticuffs or threats of violence, legal action was taken that resulted in a binding over order subject to £100, on grounds of a breach of the peace; while the order was to run for a twelve month period in lieu of a reasonable prison sentence.

Under appeal to the Crown Court, it was agreed that under the terms of the Justices of the Peace Act 1361, there could be no evidence that their conduct qualified a breach of the peace, as there had been no violence or coercion to violence shown by the protestors.

However, it was felt that unless some restrictive measures were in effect, there was a genuine risk of repeat behaviour that could likely end up with criminal sentencing of some measure.

This judgment was then challenged under domestic jurisdiction; however, the Crown Court refused leave of appeal to the High Court, which forced proceedings to continue in the European Court of Human Rights.

Citing article 10 of the ECHR (Freedom of expression), the appellants refuted the power of the binding over order on grounds that the nature of the statute was in effect, too vague in construction to provide any genuine clarity as to what the protestors were being asked to refrain from doing, and what behaviour would further constitute a breach of that order.

Despite some compelling dissent, it was found after considered examination of the interfering potential of the order, that while the principle behind the restriction was honourable by design, the prohibitive quality bestowed by the now antiquated and outdated measure of a binding over order, was such that the even the Law Commission had proposed them abolished, and where once public order would be restored without contest, the case had found itself before the European Commission.

Using the powers afforded citizens under the Convention, it was then agreed by majority that when a domestic law fails to provide adequate redress, it does so by effectively interfering with those individual rights, and must therefore fail to find fact.

For those reasons, the appeal was upheld and costs awarded against the state, while reminding the parties that:

“A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.”