A case before the Administrative Division of the High Court has held that conditions imposed by the Metropolitan Police ("the Met") against an anti-war protester exceed the limits of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights ("the Convention"), which require conditions restricting those rights to be 'prescribed by law'.
Brian Haw, a peace campaigner, has been conducting a continuous demonstration in Parliament Square since 2 June 2001 against the Government's policy on Iraq. On 7 April 2005 the Serious Organised Crime and Police Act came into force, which contained provisions for imposing conditions on public demonstrations.
Under the legislation, the Metropolitan Police Commissioner ('the Commissioner') is entitled to impose conditions on any protestor who has applied to the Met for authorisation of an intended protest in any designated areas. On 1 July 2005, Parliament Square was included in the list of designated areas.
Mr Haw's solicitors subsequently wrote to the local police station at Charing Cross seeking authorisation to continue his demonstration. In May 2006 a superintendent authorised the demonstration subject to certain conditions, including a restriction on the area that could be occupied by Mr Haw and a requirement to give notice if the protest was to exceed a set number of participants. Later that month, a summons was issued against Mr Haw for knowingly failing to comply with four of the seven conditions imposed on him.
At the hearing, the District Judge found that there were two questions that required answers from the High Court before an outcome in the case could be determined. Firstly, was the Commissioner acting within his powers by delegating the power to impose conditions on demonstrations to a subordinate; and secondly, were the conditions imposed on Mr Haw sufficiently clear and unambiguous to be viewed as "prescribed by law" as under Articles 10 and 11 of the Convention?
On the first question, the court found that a subordinate could exercise the Commissioner's statutory powers if those powers were of a sufficiently technical, mandatory nature.
In deciding the second question, the court needed to decide whether the conditions imposed by the Met on Mr Haw's continued protest were clearly defined and sufficiently certain.
Amongst the conditions imposed on Mr Haw were requirements that his protest should not exceed three metres in width and height, be organised in order to ensure that no items could be added to the site without his immediate knowledge, should include no articles that might conceal or contain other items, and had to be maintained in a manner that would allow any person present 'to tell at a glance' that no suspicious items were present.
The court found that these conditions were not only ambiguous and unclear, but several were directly contradictory. The conditions imposed on Mr Haw, when read together, were unworkable and as a result were incompatible with Article 11 of the Convention.
The court recognised that, under the terms of the Act, it is extremely difficult for any police officer to set conditions applying to a protest that would be sufficiently clear, unambiguous and compatible with each other and that this implies, at the very least, the need for some form of legislative review of the relevant provisions of the Act.