Human Rights and Civil Liberties

Human Rights
and Civil Liberties

Howard Davis
Iw
*
WI LLAN
PUBLISHING
Human Rights and Civil Liberties
Human Rights and
Civil Liberties
Howard Davis
WILLAN
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Contents
Preface x
Table o f cases xii
Table o f A cts o f P arliam ent xxix
Table o f Statutory Instrum ents xxxvii
Table o f C om m and, parliam entary and other official papers xxxviii
A bbreviations xl
Part I V alues and in stitutions

1 In trodu ction and u nd erlying valu es 3
1.1 Introd uction 3
1.2 V alues: d em ocracy and privacy 3
1.3 C on stitutional and political theory 8
1.4 H um an rights 9
2 T he in stitu tion al settin g 14

2.1 T he traditional ap proach in England and W ales 14
2.2 International law 18
2.3 E uropean U nion law 20
2.4 T he E uropean C on vention on H um an Rights 22
2.5 The H um an R ights A ct 1998 28
2.6 T he m ain term s o f the H um an R ights A ct 1998 30
2.7 T he sched uled C on vention rights 40
Part II G eneral pow ers and duties of the state

3 Public au thorities 55
3.1 The public sector 55
3.2 L egal d efinitions of pu blic bodies 56
3.3 T he legal au th ority o f public bodies and officials 57
4 The police and secu rity services 61

4.1 Introd uction 61
4.2 The police 61
4.3 The use o f force 74
4.4 Secu rity and intelligence services 77
4.5 O ther organisations 80
vi H um an Rights and Civil Liberties
5 Police pow ers: stop and search, arrest and detention 82

5.2 P olice question s 82
5.3 Stop and search 82
5.4 A rrest 88
5.5 T reatm en t of arrested persons 94
5.6 The rights and treatm ent o f detained persons 98
6 Police pow ers: entry, search and seizure 107

6.2 P rivacy and property 107
6.3 C on vention rights 108
6.4 C om m on law 109
6.5 Law ful entry and search w ith con sent 109
6.6 Law ful entry and search at com m on law 111
6.7 Statutory pow ers to enter w ithout a w arrant 111
6.8 Entry by w arrant 114
6.9 S eizu re 117
6.10 M aterial subject to lim itation 118
6.11 Search orders 124
7 S urveillance 126
7.1 Surv eillance 126
7.2 Surv eillance and legality 127
7.3 Interception of com m u nications 129
7.4 A ccess to com m u nications data 132
7.5 Encrypted data 133
7.6 Surv eillance inv olv ing in terference w ith property 133
7.7 O ther form s of su rv eillance 136
7.8 Sup erv ision and control o f su rv eillance 139
7.9 C om p atibility w ith C on vention rights 141
7.10 A dm issibility o f evid ence 144
7.11 C losed -circuit television 144
8 T he right to a fair trial 146

8.1 Fair trials and civil liberties issues 146
8.3 A rticle 6 of the E uropean C on vention on H um an Rights 148
9 P riso n ers' rights 157

9.2 International law 157
9.3 Prisons in the U nited K ingd om 158
9.4 T he civil rights o f prisoners 159
9.5 D iscip linary procedu res 161
9.6 T reatm en t 162
9.7 O ther civil and h u m an rights 165
9.8 Life sentences 167
Contents vii
Part III Freedom of expression and the m edia

10 Freedom of expression 171
10.1 Introduction 171
10.2 Freedom of expression as a value 171
10.3 Free expression problem s 173
10.4 Freedom of expression and English law 176
10.5 The H um an Rights A ct 1998 and A rticle 10 179
11 The media 181

11.2 The m edia and the general law 182
11.3 The Hum an Rights A ct 1998, A rticle 10 and a free media 183
11.4 The press 185
11.5 Broadcasting 190
11.6 Free m edia and the law 198
12 Contem pt of court 206

12.1 Fair trials and media freedom 206
12.2 Convention rights 208
12.3 The courts to w hich contem pt law applies 211
12.4 Civil and crim inal contem pt 211
12.5 Penalties for contem pt 212
12.6 Civil contem pt 212
12.7 Crim inal contem pt: intention and strict liability 214
12.8 The m ain form s of crim inal contem pt 215
12.9 Strict liability and the Contem pt of Court Act 1981 221
12.10 Defences that apply to strict liability contem pt 226
12.11 Orders preventing or restricting the publication of trials 229
12.12 Jury secrets 231
Part IV Political freedom

13 Political participation and electoral politics 235
13.1 Political participation 235
13.2 Political parties 239
13.3 Elections and the law 242
14 Political offences 250

14.2 Treason 250
14.3 Seditious libel 252
14.4 Incitem ent to disaffection 255
14.5 Incitem ent to racial hatred 256
15 A ccess to public information 261

15.1 The argum ent for secrecy 261
15.2 The legal basis for secrecy: official secrets and public records 262
viii H um an R ights and Civil Liberties
15.3 Justification s for openn ess 263

15.5 Freed om o f inform ation: the C od e o f P ractice and the
Freed om o f Inform ation A ct 2000 265
15.6 C on clusion 277
16 N ation al security 278

16.1 N ational security 278
16.2 T he O fficial Secrets A ct 1911, section 1 279
16.3 T he d isclosure o f inform ation 281
16.4 T he O fficial Secrets A ct 1989 282
16.5 Breach o f con fid ence 289
16.6 D efence A d v isory N otices 293
17 Pub lic order and political action 295

17.1 T he con text 295
17.2 T he p olice 296
17.4 G eneral legal fram ew ork 299
17.5 M eetings 303
17.6 M arches and procession s 313
17.7 D em on strations 317
17.8 P ublic o rd er offences 324
18 T errorism and law 329

18.1 Introd uction: special p ow ers 329
18.2 U nited K ingdom law 331
18.3 A n ti-terrorist legislation 332
18.4 D efinition o f terrorism 334
18.5 G en eral issues 335
18.6 P roscrip tion 336
18.7 T errorist property 340
18.8 Terrorist offences 340
18.9 International terrorism 341
18.10 The inv estigation o f terrorist offences 345
18.11 Suspected terrorists 348
18.12 D isclosure offences and m edia freedom 351
P art V Private life

19 T he protection of person al in form ation 357
19.3 Specific legislation 360
19.4 D ata P rotection A ct 1998 360
19.5 D isclosure o f inform ation held by pu blic auth orities 367
C ontents ix
20 B odily in tegrity 368

20.2 P hysical pu nishm ents 369
20.3 B odily integrity, the right to life and the right to con sent to
m ed ical treatm ents 374
20.4 B odily integrity and n on-th erap eu tic treatm ent 380
20.5 A bortion, life and privacy 382
21 Sexual freedom 385

21.2 R eform o f the law 387
21.4 The lim its o f con sent 389
21.5 T ranssexu als 394
22 O b scenity and in decency 397

22.2 H arm 397
22.3 P ublic good 398
22.5 M oral w elfare 400
22.6 O utraging public d ecency 401
22.7 T end in g to d ep rave and corrupt 403
22.8 O ther provisions 406
22.9 The p rotection o f child ren 407
22.10 P rior restraints 408
22.11 V id eos 410
22.12 B roadcasting 411
22.13 Internet 412
23 R eligious freedom and b lasp hem y 414

23.2 D iscrim ination law 414
23.5 R eligiou s exem ptions 417
23.6 The prom otion o f religion 418
23.7 The p rotection o f religion: blasph em y 419
B ibliography o f w orks cited 424

Index 429
Preface
T his book is a general survey of the law o f civil liberties. It aim s to identify
and exam ine the legal rules, the com m on law and the statutes w hich relate to
the field o f civil liberties. But civil liberties is a subject that d eals in
controversial, p olitically charged m atters. R ules o f law produced b y P arlia
m ent or the cou rts m ay be con trov ersial in term s, for exam ple, o f the
background principles they p resupp ose, the coh erence and con sisten cy o f the
rules one to ano ther or the social and political con sequ ences o f their
application. The bo o k aim s to d escribe and d iscu ss the m ain term s o f the
argum ents on such issues and to d em onstrate their influence on the d ev elo p
ing law.
The H um an R ights A ct 1998 is hav ing a great im pact on m an y areas o f law,
an im pact w hich is p ervasive and by no m eans confined to pu blic law and civil
liberties. Its influence on the latter is v ery great indeed. In C h ap ter 1 it is
suggested that m u ch o f civil liberties law relates to problem s about the scope
and significance o f d em ocracy and privacy. Both these ideas, the freedom to
participate in d eterm ining pu blic goals and the ability to preserve an area of
personal auton om y, are esp ecially touched by hum an rights consid erations.
The approach in this book is to d em onstrate, so far as it is possible, hum an
rights law as integrated w ith d om estic law , albeit in a w ay w hich challenges
m any o f its rules and assu m ptions.
The end of the tw entieth cen tury and the beginn ing o f the tw enty-first has
been a period of m ajor con stitutional reform and m u ch o f this touches and
affects civil liberties. In particular there have b een m ajor statu tory reform s, in
areas such as surveillance, protection o f personal d ata and freed om of
inform ation, w hich are o f great im portance and fully covered in this w ork.
A nother im p ortan t issue is the rise of 'terrorism ' and the question o f how the
gov ernm ent should respond. T h e significance o f this m atter has w arranted the
inclu sion o f a sep arate chapter.
Th e book is in five parts. Part 1 looks at d em ocracy, privacy and hum an
rights as valu es u n derlyin g civil liberties law and w hich inform its d ev elo p
m ent and are the term s o f its controversies. Part I also introd uces the legal
fram ew ork in w hich the law operates. The traditional approach in England
and W ales is described and contrasted to the system un der the E uropean
C on vention on H um an Rights as it is given further effect through the H um an
Rights A ct 1998. Part II deals w ith those aspects o f civil liberties law w hich are
pred om inantly to do w ith the pow ers and d uties o f state agen cies, particularly
the police and security services, in respect o f actions they m ay take w hich
Preface xi
affect p eo p le's liberty and privacy. P rincipal duties o f the state inclu de the
provision of fair trials and the p rop er treatm en t o f prisoners. B oth o f these
have been influenced by hu m an rights law and are given sep arate chapters.
Part III deals w ith a ran ge o f m atters in volving the law of freed om of
expression. The focus of Part III is on the law as it bears on the m edia, w hose
im portan ce in the com m u nication o f the kn ow led ge and ideas necessary for
an effective d em ocracy is recognised . P art IV deals w ith a nu m ber o f topics
involving the law in so far as it can restrict those w ho are acting for political
reasons. This inclu d es chapters on public ord er and terrorism . A spects of
privacy, the freed om people have to d ecid e for them selves how to live their
lives for them selves, is the subject o f P art V. It is here that som e o f the m ost
profound and con troversial m atters w ith w hich the law has to deal, m atters of
life and death, are discussed.
I w ould like to thank a nu m ber o f colleagues, esp ecially P rofessor Barry
H ough and D r M ike Bennett, w ho have m ad e p articular con tribution s to m y
un d erstand ing o f the law . All errors are m y own. M y fam ily, as ever, have
tolerated m y absences w hile w riting this book.
The book is dedicated to m y m oth er and to the m em ory o f m y father.

Table of cases
A v B Pic [2002] 2 A ll ER 543, 176, 184, 199, 200, 201, 366

A v U nited Kingdom (1999) 27 E H R R 611, 75, 253, 372
A and others v Secretary o f State fo r the H om e D epartm ent [2002] E W C A C iv 1502;
The Tim es, 29 O ctober, 344
A N ational H ealth Service Trust v D [2000] 2 FLR 677, 379
A dam v W ard [1917] A C 309, 201
A D T v U nited K ingdom Ap. 3 5 7 6 5 /9 7 ; (2001) 31 EH R R 33, 391, 394
A G O S I v U nited Kingdom (1987) 9 EH R R 1, 340
A hm ad v /LEA [1978] 1 All ER 574 C A , 418
A hm ed v U nited Kingdom (1981) 22 D R 27, 415
A hm ed v U nited K ingdom (2000) 29 EH R R 1, 239
A ir C anada v Secretary o f State fo r T ransport [1983] 1 A ll ER 910, 153
A ir C anada v U nited Kingdom (1995) 20 EH R R 150, 340
A iredale N H S Trust v Bland [1993] 1 A ll ER 821, 375, 376, 380
A ksoy v Turkey (1997) 23 EH R R 553, 75
A lbert v Lavin [1982] A C 547, 68, 69, 93, 300
A lder v G eorge [1964] 2 Q B 7, 281
A lderson v Boof/i [1969] 2 Q B 216, 89
A lexandrou v O xford [1993] 4 A ll ER 328, 67
A llen v W right (1835) 8 C & P 522, 173 ER 602, 91
A m ann v Sw itzerland (2000) 30 E H R R 843, 143, 144
A m bard v A ttorn ey G eneral fo r Trinidad and T obago [1936] A C 322, 217
A m brose (1973) 57 C r A p Rep, 325
A m erican Cyanam id Co. v Ethicon [1975] A C 396 H L; [1975] 1 A ll ER 504 H L, 318
A ndecha A stur v Spain (1997) 90-B D & R 172, 241
A nderson v U nited K ingdom Ap. 3 3 6 8 9 /9 6 , 27 O cto ber 1997, 297, 304
A n ism in ic Ltd v Foreign C om pensation Com m ission [1969] 2 AC 147, 148
A nton P iller KG v M an ufactu ring P rocesses Ltd [1976] 1 A ll ER 779 C A , 124
A P v Sw itzerland (1998) 26 EH R R 541, 336
A rrow sm ith v Jenkins [1963] 2 Q B 561, 309
Arrozvsmith v U nited Kingdom (1978) D & R 1 9 /5 , 255
A rthur U. P endragon v U nited K ingdom Ap. 3 1 4 1 6 /9 5 , 321
A rtico v Italy (1980) 3 EH R R 1, 100
A shin gdan e v UK (1985) 7 EH R R 528, 152
A shw orth Security H ospital v M G N Ltd [2002] U K H L 29; [2002] 1 W L R 2033, 203,
204
A ssociated Provincial Picture H ouses v W ednesbury C orporation [1948] 1 KB 223, 59
Table o f cases xiii
Atkins v DPP [2000] 2 A ll ER 425, 407

Atlan v UK (2002) 34 EH RR 33, 154
Attorney General v A ssociated N ewspapers [1994] 1 All ER 556, 231
A ttorney General v A ssociated N eivspapers and another [1998] EM LR 711, 225
A ttorney General v BBC [1981] AC 303, 211
Attorney General v BBC [1997] EM LR 76, 224
Attorney General v BBC; A ttorney General v Hat Trick Productions Ltd (1996) TLR
460, 226
Attorney General v Birmingham Post and M ail Ltd [1998] 4 All ER 49, 219, 224, 225
A ttorney General v Blake (Jonathan Cape Ltd, third party) [2000] 4 All ER 385, 290
Attorney General v Butterworth and another [1963] 1 QB 696, 216
Attorney General v English [1983] 1 A C 116, 224, 228
Attorney General v Guardian N ewspapers and others (No. 2) [1988] 3 A ll ER 545,
200, 278, 290, 291
Attorney General v Guardian N ewspapers Ltd [1999] EM LR 904, 222, 228-9
Attorney General v Guardian N ewspapers Ltd and another [1992] 3 All ER 38 QBD,
228
Attorney General v Guardian N ewspapers Ltd and others and related appeals [1987]
3 A11ER 316, 290
A ttorney General v Guardian N eivspapers (No. 2) [1990] AC 109, 79, 134
A ttorney General v H islop and another [1991] 1 Q B 514, 216, 217
A ttorney General v Independent Television Neivs Ltd and others [1995] 2 All ER 370,
225
A ttorney General v Jonathan Cape Ltd [1976] Q B 752, 290, 291
A ttorney General v Leveller M agazine Ltd [1979] AC 440, 230
A ttorney General v M G N Ltd [2002] EW H C 907 A dm in Q BD, 219
A ttorney General v M G N Ltd and others [1997] 1 All ER 456, 212, 219, 224, 225
A ttorney General v N ews Group Nezuspapers Ltd [1986] 2 All ER 833, 224
A ttorney General v Nezvs Group N ewspapers Pic [1989] QB 110, 223
A ttorney General v N eivspaper Publishing Pic and others [1987] 3 A ll ER 276, 220
A ttorney General v Punch Ltd and another [2001] EW CA Civ 403; [2001] 2 A ll ER
655, 213, 220, 221, 292
A ttorney General v Sport Neivspapers Ltd and others [1992] 1 All ER 503, 223
A ttorney General v Times N ewspapers [1992] 1 AC 191, 221
A ttorney General v Times N ewspapers [2001] EM LR 19, 226
A ttorney General v Times N ewspapers Ltd (1983) The Times, 12 February, 219, 226,
229
A ttorney General v Times N ewspapers Ltd [1974] AC 273, 209, 216, 226, 227, 229
A ttorney General v TVS TV (1989) The Times, 7 July, 228
A ttorney General ex rei M cW hirter v IBA [1973] 1 QB 629, 195
Attwoods' Case (1617) Cro Jac 421, 79 ER 359, 419
A utronic v AG v Sw itzerland (1990) 12 EHRR 485, 190
Axen v Germany (1984) 6 EHRR 195, 208
B v France (1993) 16 EHRR 1, 396

Bailey v W illiamson (1872-73) viii LR QBC 118, 306
Balogh v St Albans Crown Court [1975] 1 QB 73, 212
Bamber v United Kingdom [1998] EH RLR 110, 166
xiv Human Rights and Civil Liberties
Barfod v D enm ark (1989) Ap. 11508/85, 210

BBC v United Kingdom (1996) 21 EH RR CD 93, 39
Beatty v Gillbanks (1882) 15 Cox CC 138 Q BD, 301
Belgian Linguistics Case (1979-80) 1 EH RR 784, 417
Bellinger v Bellinger [2001] EW CA Civ 1140; [2002] 1 All ER, 395
Bentley v Brodzinskki (1982) 75 Cr App Rep 217, 70
Bibby v C hief Constable o f Essex (2000) 164 JP 297, 89, 301, 302
Birch v DPP [2000] Crim LR 301, 309
Black v DPP 11 M ay 1995, Lexis transcript CO 877-95, 84
Blake v DPP [1993] Crim LR 586, 322, 418
Blathwayt v Baron Cawley [1976] A C 397, 417
Bodden v C om m issioner o f Police for the M etropolis [1989] 3 All ER 833, 215
Bognor Regis UDC v Campion [1972] 2 QB 169, 202
Boucher v R (1951) 2 DLR 369, 252
Bowman v Secular Society Ltd [1917] AC 406, 416, 420
Bowman v United Kingdom (1998) 26 1 EHRR 1, 241, 242, 248
Brannigan and M cBride v United Kingdom (1993) 17 EHRR 539, 344
Brickley and Kitson v Police (1988) Legal Action, July, p. 21, 311
Brincat v Italy (1993) 16 EHRR 591, 96
British Broadcasting Corporation v United Kingdom Ap. 25 7 9 8 /9 4 ; (1996) 21
EHRR CD 93, 184
British Broadcasting Corporation Scotland and others v United Kingdom (1997) Ap.
0 0 0 3 4 3 2 4 /9 6 ,184
British Coal Corporation v N UM , 28 June 1996, Q BD, 202
Brogan and others v United Kingdom (1989) 11 EHRR 117, 96, 349, 350
Brooks v H om e Office [1999] 2 FLR 33, 165
Brown v Stott (Procurator Fiscal, D unferm line) and another [2001] 2 ALL ER 97,
32, 100, 103, 153
Brüggemann and Scheuten v FRG (1977) 3 EHRR 244, 141, 383
Brutus v Cozens [1973] A C 854 HL, 258, 325
Bryan v Robinson [1960] 2 All ER 173 DC, 325
Bryan v United Kingdom (1995) 21 EH RR 342, 149, 156
Buckley v United Kingdom (1996) 23 EH RR 101, 108
Bugg v DPP, Percy v D PP [1993] 2 A ll ER 815, 306
Burden v Rigler [1910] 1 KB 337, 308, 312
Burnley v England (1977) 76 LGR 393; 77 LGR 227, 304
C v S [1988] QB 135, 382

C v United Kingdom (1983) 37 DR 142, 418
C Ltd v United Kingdom (1989) Ap. 14132/88, 209, 210, 227
Camelot Group v Centaur Comm unications [1998] 1 All ER 251, 204
Campbell v M irror Group N ewspapers [2002] EW CA Civ 1373, 201, 366
Campbell v United Kingdom (1993) 15 EH RR 137, 118, 161
Campbell and Cosans v United Kingdom (1982) 4 EHRR 293, 373
Campbell & Fell v United Kingdom Ap. 7 8 1 9 /7 7 ; (1984) 7 EHRR 165, 150, 155
Capon v DPP [1988] Crim LR 870, 320
Castells v Spain (1992) 14 EHRR 445, 183, 203, 254
Castorina v C hief Constable o f Surrey (1988) 138 NLJ Rep 180, 72, 85, 89
Tabie o f cases xv
Chahal v United Kingdom Ap. 2 2 4 1 4 /9 3 ; (1997) 23 EH RR 413, 343, 370

Chambers and Edwards v D PP [1995] Crim LR 896 (QBD), 325
Champion v C hief Constable o f the Gwent Constabulary [1990] 1 W LR 1, 238
Chandler v D PP [1964] AC 763, 278, 281
Chappell v United Kingdom (1990) 12 EHRR 1, 1 0 8 ,1 2 5
Cheney v Conn [1968]' 1 All ER 779, 418
Chorherr v Austria (1993) Ap. 13308/87; (1993) 17 EHRR 358, 324
Clwudhury v United Kingdom Ap. 17439/90; (1991) HRLJ 172, 421
Christians against Racism and Fascism v United Kingdom Ap. 8 4 4 0 /7 8 ; 21 D&R
138, 297, 298, 316, 317
Christie v Leachinsky [1947] 1 A ll ER 567, 93
Christie v United Kingdom (1994) Ap. 2 1 4 8 2 /9 3 ; 78-A D & R 119, 132, 143, 144
Church o f X v United Kingdom (1968) 12 YB 306, 415
CIN Properties v Rawlins and others (1995) TLR 9.2.95, 303-4
Clarke v C hief Constable o f North Wales [2000] W L 345127, 94
Clibbery v Allan [2002] 1 All ER 865, 230
Clift v Schwabe (1846) 3 CB 437, 374
Coffin v Smith (1980) 71 Cr Ap Rep 221, 69
Collins v Willcox [1984] 3 All ER 374, 368
Commission v France [1997] ECRI-6959, 305
Condron v United Kingdom (2000) Ap. 3 5 7 1 8 /9 7 , Hudoc, 102
Conway v Rim m er [1968] A C 91, 153
Cope v Sharpe (2) [1912] 1 KB 496 CA, 68, 111
Corbett v Corbett (otherw ise Ashley) [1970] 2 All ER 33, 395
Cossey v United Kingdom (1991) 13 EHRR 622, 395
Costello-Roberts v United Kingdom (1995) 19 EHRR 112, 372-3
Court o f justice o f the European Com m unities Opinion 2/94370 [1996] ECR 1-1759,
21
Cowan v Com m issioners o f Police o f the M etropolis [2000] 1 All ER 504, 70, 111, 117
Croissant v Germ any (1993) 16 EHRR 135, 156
Crown Prosecution Service on behalf o f DPP for Australia v Holm an, Fenw ick and
William [1994] CO D 174, 118
Cullet v Centre Leclerc Toulouse [1985] ECR 305, 305
D v United Kingdom Ap. 30 2 4 0 /9 6 ; (1997) 24 EHRR 423, 370

Davis v Lisle [1936] 2 KB 434, 69, 109, 110
De H aes and Gijsels v Belgium (1998) 25 EHRR 1, 183, 203, 217
De M organ v The M etropolitan Board o f Works (1879-80) v QBD 155, DC, 305
D elazarus v UK (1993) Ap. 17525/90, 163
D epartm ent o f Transport and others v Williams (1993) TLR 627, 318
D erbyshire County Council v Times N ewspapers Ltd [1993] AC 534, 28, 171, 182,
202
Diennet v France Ap. 1 8 160/91; (1966) 21 EH RR 554, 155
Director General o f Fair Trading v Proprietary Association o f Great Britain and
another [2001] N LJ 1372, 149
Dombo Beheer B V v The Netherlands (1994) 18 EHRR 213, 152
Donnelly v Jackm an [1970] 1 All ER 987, 70
Douglas v Hello! [2001] 2 All ER 289, 16, 28, 177, 180, 199
xvi H uman Rights and Civil Liberties
DPP v Barnard and others [2000] Crim LR 371, 320

DPP v Channel 4 Television Co. and another [1993] 2 A ll ER 517, 120, 347, 353
DPP v Clarke (1991) 94 Cr A pp R 359, 326
DPP v Fidler (1992) 1 W LR 91, 323, 325
DPP v H utchinson [1990] 2 AC 783, 306
DPP v Jones [1999] 2 All ER 257, 308, 309
DPP v M oseley (Joanna) (1999) The Times, 3 June, 319
DPP v Todd (1995) The Independent, 5 May, 323
DPP v Whyte [1972] AC 849, 405
DPP v Wilson [1991] RTR 284, 87
D'Souza v DPP [1992] 4 All ER 545, 113
Duboivska and Skup v Poland (1997) 24 EH RR CD 75, 416, 421
Duchess o f Argyll v D uke o f A rgyll and others [1964] 1 Ch 302., 199
D udgeon v United Kingdom (1982) 4 EH RR 149, 391
Dunbar v Plant [1998] Ch 412 CA, 376
Duncan v Jones [1935] All ER Rep 711 KBD, 301
Eckle v Germ any (1982) 5 EH RR 1, 39

Editions Periscope v France [1992] 14 EH RR 597, 151
Edivards v DPP (1993) Cr A pp Rep 301, 93
Ellen Street Estates Ltd [1934] 1 KB 590, 17
Elliott v C hief Constable o f W iltshire (1996) The Times, 5 Decem ber, 67, 165
Engel v Netherlands (1979-80) 1 EHRR 647, 88, 150
Entick v Carrington (1765) 2 W ils 275; (1765) 19 St Tr 1029, 16, 5 7 -8 , 114, 134
Erotica Rendez-Vous 12001] All ER (EC) 577, 412
Esther Thom as v N ewsgroup N ewspapers (2001) NLJ 1221 CA, 198
Ettridge v M orrell (1987) 85 LGR 100 CA, 247
Ex parte Lewis (1888) 21 Q BD 191 DC, 306
Ezeh v United Kingdom (2002) A p 3 9 6 6 5 /9 8 ; The Times, 30 July, 162
Ezelin v France Ap. 11800/85; (1991) 14 EH RR 362, 299
F v West Berkshire Health Authority and another (M ental H ealth A ct Commission

intervening) [1989] 2 A ll ER 545 HL, 379, 390
Faulkener v Willetts [1982] Crim LR 453, 110
Fayed v United Kingdom (1994) 18 EHRR 393, 152
Findlay v United Kingdom (1997) 24 EHRR 221, 150, 155
Fisher v Oldham Corporation [1930] 2 KB 364, 65
Fitt v United Kingdom (2000) 30 EHRR 480, 153, 154
Flockhart v Robinson [1950] 2 KB 498, 313
Foulkes v Chief Constable o f the M erseyside Police [1998] 3 All ER 705 CA, 302
Fox v Stirk; Ricketts v Cambridge City Electoral Registration Officer [1970] 2 QB
463, 244
Fox, Campbell and H artley v United Kingdom (1991) 13 EH RR 157, 73, 94
Francis and Francis (a firm ) v Central Criminal Court [1988] 3 All ER 775, 119
Francom e v M irror Group N eivspapers Ltd [1984] 1 W LR 892, 183
Fressoz and Roire v France [1999] EH RLR 399, 204
Funke v France (1993) 16 EHRR 297, 103
Table o f cases xvii
G v DPP [1989] Crim LR 150, 93

Gapper v Somerset Constabulary [1998] 4 A ll ER 248, 93
Garland v British Rail Engineering Ltd [1983] 2 AC 751, 19, 27
Gaskin v United Kingdom (1990) 12 EH RR 36, 264, 265, 359
Gelberg v M iller [1961] 1 All ER 291, 93
General M edical Council v British Broadcasting Corporation [1998] TLR 372, 211
Gillick v Wisbech and West N orfolk Area Health Authority [1986] 1 AC 112, 159,
378
Gitanas v Greece (1997) 27 EHRR 417, 239
Glimm erveen and H agenbeek v Netherlands (1979) 18 D& R 187, 242, 260
G older v UK (1979-80) 1 EH RR 524, 118, 152, 160, 161
Goodwin v Phillips [1908] 7 CLR 1, 17
Goodwin v United Kingdom (1996) 22 EH RR 123, 204
Goodwin v United Kingdom (2002) Ap. 2 8 9 5 7 /9 5 , 296
Govell v United Kingdom Ap. 2 7 2 37/95; [1999] EH RLR 121, 141
G regory v United Kingdom (1997) 25 EHRR 577, 155
Grobbelaar v N o ts Group Neivspapers Ltd and another [2001] EW CA Civ 33; [2001]
2 All ER 437, 183, 201, 208
Groppera Radio AG v Sw itzerland (1990) 12 EHRR 321, 190
Guardian N ewspapers v United Kingdom (1992) 14 EHRR 229, 292
Guerra v Italy (1995) 20 EH RR 277, 265
Guzzardi v Italy (1981) EH RR 333, 87, 88
Gwent v Dash [1986] RTR 41, 87
Halford v United Kingdom (1997) 24 EHRR 523, 27, 128, 130, 141, 143
H andcock v Baker (1800) 2 Bos & O 260, 68, 111
H andyside v United Kingdom (1979-80) 1 EHRR 737, 32, 254, 297, 399, 421
Harman v Secretary o f State for the H om e D epartm ent [1982] 2 W LR 338, 213
Harrison v D uke o f Rutland [1893] 1 QB 143 CA, 307
H ashm an and H arrup v United Kingdom (1999) Ap. 2 5 5 94/94, 324, 400
H auer v Land Rheinland-Pfalz (1981) 3 EH RR 140 ECJ, 21
H ickm an v M aisey [1900] 1 QB 752 CA, 307, 313
Hill v C hief Constable o f West Yorkshire [1989] AC 53, 67
Hipperson v DPP (unreported) 3 July 1996, 322
Hipperson v N ewbury Electoral Officer [1985] QB 1060, 244
H iro v Spain (1995) 19 EH RR 566, 154
H irst and Agu v C hief Constable o f West Yorkshire (1987) 85 Cr App R 143 (QBD),
309
HM A dvocate v Zelter (unreported) 21 O ctober 1999, 323
H odgson, W oolf Productions, N U J and Channel Four T V v United Kingdom (1988)
EHRR 503, 210, 227
H ojem eister v Germ any (1983) Unreported, 6 Ju ly 1981, 87
H olland v Ireland (1988) Ap. 24 8 2 7 /9 4 , 14 April, 166
H om er v Cadman (1885-86) II TLR 407, 309
Houston v BBC (1995) SLT 1305, 195
H ubbard v Pitt [1976] 1 Q B 142 CA , 313, 318
Huntingdon Life Sciences v Curtin (1997) The Times, 11 Decem ber, 319
Huvig v France (1990) 12 EHRR 528, 144
xviii H uman Rights and Civil Liberties
I v United Kingdom (2002) Ap. 25 6 8 0 /9 4 , 396

Im briosca v Switzerland 24 N ovem ber 1993, 98
In re Davis, Deed [1968] 1 QB 72, 374
In re F (in utero) [1988] Fam 122, 382
In re M edicam ents and related classes o f goods (2) [2001] 1 W LR 700, 149, 155
Initial Services Ltd v Putterill and another [1967] 3 All ER 145, 200
Interbrew SA v Financial Tim es [2002] EW CA Civ 274, 204
International Transport Roth GM BH and others v Secretary o f State fo r the Home
D epartm ent [2002] EW CA Civ 158, 33
Ireland v United Kingdom (1979-80) 2 EHRR 25, 75, 350
1SKCON v United Kingdom (1994) 18 EHRR CD 133, 416
Janaw ay v Salford AH A [1988] 2 W LR 1350 H L, 383

Jastrzebski v Poland, Comm ission Report, 19 M ay 1998, 165
Jersild v Denm ark (1994) 19 EHRR 1, 259, 260
John and others v Express N ewspapers pic and others [2000] 3 All ER 257 CA, 204
Johnston v C hief Constable o f the RUC [1986] ECR 1651, 21
¡oyce v DPP [1946] AC 347, 251
K v Austria A /2 5 5 -B (1993) Com Rep, 204

Kaye v Robertson [1991] FSR 62, 16
Keenan v United Kingdom (2001) 33 EH RR 38, 165
Kenlin v Gardner [1966] 3 All ER 931, 70
Kent v M etropolitan Police Com m issioner (1981) The Times, 13 M ay, 316
Khan v United Kingdom (2000) The Times, 23 M ay, 155
Kingsley v United Kingdom Ap. 35 6 0 5 /9 7 , The Times, 9 January 2001, 150
Klass and others v Federal Republic o f Germ any (1979) 2 EH RR 214, 126, 141, 142,
143
Knight and others v H om e Office and another [1990] 3 All ER 237 QBD, 165
Knuller v DPP [1973] AC 435, 400, 402, 403
Kokkinakis v G reece (1993) 17 EH RR 397, 415, 416
Kopp v Switzerland (1999) 27 EHRR 91, 141, 143
KPD v Federal Republic o f Germ any (1957) Ap. 2 5 0 /5 7 ; 1 Yearbook 222, 254, 338
Kruslin v France (1990) 12 EHRR 528, 144
Kühnen v FRG (1988) Ap. 12194/86, 260
Lambert v Roberts [1981] 2 All ER 15, 110

Laskey, Jaggard and Brown v United Kingdom (1997) Ap. 2 1 6 2 7 /9 3 ; (1997) 24
EHRR 39, 393
Lawless v Ireland (1961) 1 EHRR 15, 344
Leach v M oney (1765) St Tr 1002, 114
Leander v Sweden (1987) 9 EH RR 433, 264, 359
Leech v Deputy Governor o f Parkhurst Prison/Prevot v D eputy G overnor o f Long
Lartin Prison [1988] 1 AC 533, 162
Lemon v United Kingdom (1982) 5 EHRR 123, 421
Letellier v France (1991) 14 EHRR 83, 151
Lewis v Cox [1985] QB 509, 69
Liberal Party v United Kingdom (1982) 4 EHRR 106, 237, 243
Tabie o f cases xix
Lindsay v United Kingdom (1979) 1 D & R 247, 243

Lingens v Austria (1986) 8 EH R R 407, 183, 203, 254, 399
Lion Laboratories Ltd v Evans and others [1984] 2 All ER 417, 200
Locabail (UK) Ltd v Bayfield Properties Ltd and another and other applications [2000]
1 All ER 65 CA, 155
Lopez Ostra v Spain (1998) 26 EHRR 357, 265
Lord A dvocate v The Scotsman Publications Ltd and others [1990] 1 AC 812, 289,
291
Loutchansky v Times N eivspapers [2001] 4 All ER 115, 201
Loutchansky v Times N ewspapers Ltd (No. 2) [2001] EW CA Civ 1805; 12002] 1 All
ER 652, 202
Ludi v Switzerland Ap. 12433/86; (1993) 15 EH RR 173, 141
M v H om e Office [1994] 1 A C 377, 57, 210

M v United Kingdom 52 D & R 269, 152
MC v Federal Republic o f Germ any Ap. 1 3 079/87, 297, 298, 320
M cArdle v Wallace (1964) 108 SJ 483, DC, 110
M cCann and others v United Kingdom (1996) 21 EHRR 91, 76
M cConnell v C hief Constable o f the Greater M anchester Police [1990] 1 All ER 423
CA, 310
M cEldow ney v Forde [1971] A C 632, 338
M cFeely v United Kingdom (1981) 3 EH RR 161, 105, 164, 415
M cG inley and Egan v United Kingdom (1999) 27 EH RR 1, 265
M cGonnell v United Kingdom (2000) 8 BHRC 56, 155, 265
M cLeod v Com m issioner o f Police fo r the M etropolis [1994] 4 All ER 553, 310
M cCleod v United Kingdom (1999) 27 EHRR 493, 113, 310
M cVeigh, O'Neill and Evans v United Kingdom (1983) 5 EHRR 71, 359
M adzim bam uto v Lardner-Burke [1969] AC 645, 17
M akanjuola v C om m issioner o f Police o f the M etropolis [1992] 3 All ER 617 CA, 67
M alone v M etropolitan Police Com m issioner [19791 1 Ch 344, 58, 128
M alone v United Kingdom (1984) 7 EH RR 14, 27, 58, 141, 143
M andla v Dowell Lee [1983] 2 AC 548, 415
M arkcx v Belgium (1979) 2 EH RR 330, 23
M asterson v Holden [1986] 3 All ER 39, 392
M athieu-M ohin and Clerfayt v Belgium (1987) 10 EH RR 1, 32, 166, 241, 243
M atthews v United Kingdom (1999) 28 EHRR 361, 243
M auer v A ustria (1998) 25 EHRR 91, 150
M ayor o f Brighton v Packham (1907-08) xxiv TLR 603, 305
M GN Pension Trustees Ltd v Bank o f Am erica and others [1995] 2 All ER 355, 227
M oham m ed-H olgate v Duke [1984] 1 All ER 1054, 89
M oney and others v Leach (1764) 1 Black. W 555; 96 ER 320, 90
M orison v M oat (1851) 9 H are 241; 68 ER 492, 199
M orris and others v Crown Office [1970] 2 QB 114, 215
M orrow , Geach and Thomas v D PP and others [1994] Crim LR 58, 325
Moss v M cLahan [1985] IRLR 77, 302
M uller v Switzerland (1991) 13 EHRR 212, 400
M urray v United Kingdom (1996) 22 EHRR 29, 98, 99-100, 102, 150, 156, 351
M urray and others v United Kingdom (1995) 19 EHRR 193, 73, 97, 359
XX H um an Rights and Civil Liberties
M usiqu e D iffusion Fran çaise v C om m ission [1983] E C R 1825, 21
N ational P anasonic (U K) Ltd v Com m ission [1980] EC R 2033, 21, 109

N eum eister v A ustria (No. 1) (1979-80) 1 EH R R 91, 151
N H S Trust A v M /N H S Trust B v H [2001] 1 A ll ER 801, 380
N icol and Selvanayagam v D PP (1996) 160 JP 155, 301, 302
N iem ietz v G erm any (1993) 16 EH R R 97, 108, 118, 388
N old v Com m ission [1974] E C R 491, 21
N orris v Ireland (1991) 13 EH R R 186, 391
N orw ich P harm acal Co. v Custom s and E xcise C om m issioners [1973] 2 A ll ER 943,
203
N oviflora AB v Sw eden (1993) 15 EH R R C D 6, 108
O berschlick v A ustria (1998) 25 E H R R 357, 203, 254

O bserver and The G uardian v U nited Kingdom (1992) 14 EH R R 153, 214, 284, 292,
319
O 'Hara v U nited Kingdom [2001] N LJ 1884, Ap. 3 7 5 5 5 /9 7 , 32
O 'Loughlin v C h ief C onstable o f the Essex P olice [1998] 1 W LR 374, C A , 113
O 'M oran and others v D irector o f P ublic P rosecutions [1975] Q B 864, 336
Open D oor C ounselling and Well Woman v Ireland (1992) 15 E H R R 244, 39
O sm an v Southw ark Crown C ourt (1999) C O /2 3 1 8 /9 8 (Sm ith Bernal), 71, 74, 86
O sm an v U nited Kingdom (2000) 29 E H R R 245, 67, 152
Otto P rem inger Institu te v A ustria (1995) 19 E H R R 34, 421
Padfield v M in ister o f A gricu ltu re, Fisheries and Food [1968] AC 997, 59
Papw orth v C oventry [1967] 1 W L R 663, 315
Paton v B PA ST [1979] Q B 276, 382
Paton v U nited K ingdom (1981) 3 E H R R 408, 383, 384
Peach G rey & Co (a firm ) v Som m ers [1995] 2 A ll ER 513, 211
Percy v D PP [1995] 3 A ll ER 124 Q BD , 301, 302
Percy v H all [1996] 4 A ll ER 523, 306
PG and JH v United K ingdom Ap. 4 4 7 8 7 /9 8 ; (2001) The Tim es, 19 O ctober, 130
Philis v G reece (1998) 25 EH R R 417, 151
P ickering v A ssociated N ew spapers H oldings Pic [1991] 2 AC 370, 211
P ierre-Bloch v France (1998) 26 EH R R 202, 150
P iange v C h ief C onstable o f South H um berside P olice 23 M arch 1992, The Tim es, 89
Platform Ä rtze fü r das Leben v A ustria (1988) 13 EH R R 204, 298, 312
Poplar H ou sing and R egeneration C om m unity A ssociation Ltd v D onoghue [2001]
EW C A C iv 595; [2001 ] 4 A ll E R 604, 36, 37
P rager and O bserschlick v A ustria (1995) 21 E H R R 1, 210, 211
Prais v C ouncil [1976] E C R 1185, 21
P retty v U nited K ingdom (Ap. 2 3 4 6 /0 2 ) [2002] 2 FLR 45, 377, 379, 380
Price v U nited Kingdom (2002) 34 EH R R 53, 165
Prince v U nited Kingdom (1986) A p 1 1 4 5 6 /8 5 ; 46 D & R 222, 210
P rince A lbert v Strange (1842) 2 De G & Sm 652; 64 ER 293, 199
R v A [2001] U K H L 25; [2001] 3 All ER 1, 36, 148, 149, 208, 229

R v A bbassy v M P C [1990] 1 W L R 385, 94
Table o f cases xxi
R v Adam s [1957] Crim LR 365, 376

R v A desanya (1994) The Times, 16 and 17 July, -381
R v A ldred (1909) XXII Cox CC 1, 253
R v Anderson [1972] 3 All ER 1152, 405
R v Argent [1997] Crim Ap Rep 27, 102
R v A rrowsm ith [1975] QB 678, 255
R v A shford and Smith [1988] Crim LR 682, 322
R v Barnet London Borough Council (1991) 89 LGR 581 (QBD), 306
R v BBC ex parte Referendum Party [1997] The Times, 29 April, 249
R v BCC ex parte BBC (1995) 7 A dm in LR 575, 196
R v BCC ex parte Granada T V Ltd [1995] CO D 207, 197
R v Beck ex parte Daily Telegraph [1993] 2 All ER 177, 227
R v Benjaßeld (2000) The Times, 28 Decem ber, 336
R v Bingham [1973] QB 870, 280
R v Blaue [1975] 1 W LR 1411, 375
R v Board o f Visitors o f H ull Prison ex parte St Germain [1979] QB 425, 159, 162
R v Bow Street Stipendiary M agistrate ex parte Pinochet Ugarte (No. 2) [2000] 1 AC
119, 155
R v Bozvden [2000] 2 All ER 418, 407
R v Boivden [1999] 1 W LR 823, 102
R v Bristol Crown Court ex parte Bristol Press and Picture A gency Ltd (1987) 85 Cr
App R 190, QBD, 122, 123
R v Broadcasting Complaints Comm ission ex parte Owen [1985] 2 All ER 522, 196
R v Brown [1994] 1 AC 212, 381
R v Brown and other appeals [1993] 2 All ER 75, 369, 376, 392-3
R v BSC ex parte BBC (Liberty intervening) [2000] 3 All ER 989, 197
R v Burns (1886) XVI Cox CC 355, 252, 253
R v Calder and Boyars Ltd [1969] 1 QB 15, 406
R v C ardiff Crown Court ex parte Kellam (1993) TLR 239, 119, 120
R v Casem ent 11917] 1 KB 98, 251
R v Caunt, 17 N ovem ber 1947, unreported, Liverpool A ssizes, 253
R v CC Lancashire ex parte Parker & M cGrath [19931 Crim LR 204, 116
R v CCCt ex parte AJD H oldings Ltd [1992] Crim LR 669, 116
R v Central Crim inal Court ex parte Bright [2001] 2 A ll ER 244, 57, 122, 123, 124,
293, 347, 353
R v Chalkley [1988] 2 All ER 155, 90
R v Chesterfield Justice and Another ex parte Bram ley [2000] 1 All ER 4 1 1 ,1 1 9 ,1 2 4
R v C hief Constable o f Devon and Cornwall ex parte Central Electricity Generating
Board [1982] 1 QB 458; [1981] 3 All ER 826, 66, 301, 303, 304, 310, 318
R v C hief Constable o f North Wales ex parte AB [1998] 3All ER 310, 358
R v C hief Constable o f Sussex ex parte International T rader’s Ferry Ltd [1999] 2 AC
418, 66, 305
R v C hief Constable o f West Yorkshire ex parte Govell, 23 M ay 1994, 134
R v C hief M etropolitan Stipendiary M agistrate ex parte Choudhury [1991] 1 A ll ER
306, 252, 419, 421
R v Clark (No. 2) [1964] 2 QB 315 CCA, 309
R v Clayton and H alsey (1963) 1 QB 163, 405
R v Clegg [1995] 1 AC 482, 74
xxii Human Rights and Civil Liberties
R v C om m issioner o f Police o f the M etropolis ex parte Blackburn [1968] 2 QB 118, 66

R v C om m issioner o f Police o f the M etropolis ex parte Blackburn (No. 2) 11968] 2 QB
150, 217
R v Condron [1997] 1 W LR 827, 102
R v Coventry City Council ex parte Phoenix Aviation [1995] 3 All ER 37, 305
R v Cox (1992) 12 BM LR 38, 376
R v Cox and Railton (1884-85) 14 LR Q BD 153, 119
R v Crisp and H om ew ood (1919) 83 JP 121, 282
R v Croivn Court at N ortham pton ex parte DPP (1991) 93 Cr App R 376, 123
R v Cunningham e Graham and Burns (1888) 16 Cox CC 420, 306
R v D elaney [1989] Crim LR 139, 71
R v Deputy Governor o f Parklm rst Prison and others ex parte Hague/W eldon v Hom e
Office [1992] 1 AC 58, 159, 164, 165
R v D isciplinary Com m ittee o f the Jockey Club ex parte Aga Khan [1992] 2 All ER
853, 57
R v DPP ex parte Kebilene [1999] 4 All ER 801 H L, 33, 280, 341
R v Dytham [1979] 3 W LR 467, 69
R v Editor o f the Neiv Statesman ex parte DPP (1927-28) xliv TLR 301, 217
R v Effick [1994] 3 W LR 583, 128
R v Emm ett (1999) The Times, 15 October, 393
R v Evesham Justices ex parte M cDonagh and Berrows Neivspapers Ltd 11988) 1 QB
553, 230
R v Forbes [2001] 1 A ll ER 686, 149
R v Fulling [1987] QB 426, 71
R v Gibson [1991] 1 All ER 439 CA, 402, 403
R v Gott (1922) 16 C r App Rep 87, 420
R v Governor o f Brockhill Prison ex parte Evan (No. 2) [2000] 4 All ER 15, 164
R v Gray [1900] 2 QB 36, 217
R v Guildhall M agistrates Court ex parte Primlaks H olding Co. (Panama) Inc. [1990]
1 QB 261, 119
R v Henn [1981] AC 850, 407
R v Hetherington (1841) 9 State Trials (NS) 563, 420
R v H icklin (1868) LR 3 Q B 360, 398, 404
R v H ill; R v H all [1989] Crim LR 136, 322
R v H om e Secretary ex parte Brind [1990] 1 All ER 469, CA, 194
R v H om e Secretary ex parte N orthum bria Police Authority [1989] QB 26; [1988] 1
All ER 556, 64, 297
R v H opley (1860) 2 F & F 202; 175 ER 1024, 372
R v Horseferry Road M agistrates Court ex parte Siadatan [1990] 3 W LR 1006, DC,
327
R v H ow ell [1981] 3 A ll ER 383, 300, 301
R v IBA ex parte W hitehouse (1985) The Times, 4 April, 195
R v Inner London Crown Court ex parte Baines & Baines [1988] QB 579, 119
R v Inw ood [1973] 2 All ER 645, 94
R v Khan (Sultan) [1997] AC 558, 128
R v Killen [1974] NI 220, 341
R v Lemon [1979] AC 617, 420
R v Lonrlw [1989] 2 All ER 1100, 224
Table o f cases xxiii
R v Lord Chancellor ex parte Light foot [1998] 4 A LL ER 764, 18

R v Lord Chancellor ex parte Witham [1997] 2 All ER 779, 18, 148
R v Lord Saville and others ex parte A and others [1999] 4 All ER 860, CA, 28, 230,
305
R v Lynch [1983] NI 193, 195
R v Lynn (1788) 2 Tem Rep 733, 402
R v M cCann and others (1991) 92 Cr App R 239, 219, 226
R v M cGarry [1999] 1 Crim Ap Rep 377, 102
R v M aidstone Crown Court ex parte Waitt [1988] Crim LR 384, 119, 121
R v M alvern Justice ex parte Evans and Berrows N eivspapers Ltd [1988] 1 QB 540,
230
R v M anchester Stipendiary M agistrate and another ex parte Granada Television Ltd
[2000] 1 All ER 135, 120
R v M ansfield Justices ex parte Starkey [1985] 1 QB 613, 324
R v M arsden (1868) LR 1 CCR 131, 309
R v M ay ling [1963] 2 QB 717, 391
R v M inistry o f Defence ex parte Smith [1996] 1 All ER 257, CA, 28
R v M oor [2000] Crim LR 31, 376
R v M orpeth Justices ex parte Ward (1992) 96 Cr App Rep 215 QBD, 301
R v Oxford ex parte Levey (1986) The Times, 1 N ovem ber, 66
R v Panel on Take-Overs and M ergers ex parte Datafin [1987] 1 QB 74, 57
R v Parrott (1913) 8 C r App Rep 186, CCA, 280
R v Paul M cM anus and Andrew Cross [2001] EW CA Crim 2455, 402
R v Perrin (Stephanie Laurent) [2002] EW CA Crim 747, 412
R v Ponting (1985) Crim LR 318, 284
R v Pratt (1855) 4 E&B 860; 119 ER 319, 307
R v Press Complaints Comm ission ex parte Stewart-Brady [1997] EM LR 185, 188
R v R (Rape: M arital exem ption) [1992] 1 AC 599, 44
R v Radio A uthority ex parte Bull [1995] 4 All ER 481, 248
R v Richmond upon Thames LBC ex parte JC (a child) (2000) The Times, 10 August,
150
R v Seeker and Warburg [1954] 2 A ll ER 687, 405
R v Secretary o f State for Culture, M edia and Sport ex parte Danish Satellite
Television [1999] 3 CM LR 919 CA, 412
R v Secretary o f State fo r Foreign and Comm onwealth Affairs ex parte World
Development M ovem ent [1995] 1 All ER 611, 39
R v Secretary o f State fo r the H om e D epartm ent ex parte Anderson [1984] 1 Q B 778,
159, 161
R v Secretary o f State fo r the H om e D epartm ent ex parte Brind [1991] 2 W LR 588
(HL), 19, 192
R v Secretary o f State fo r the H om e D epartm ent ex parte D aly [20011 UKH L 26;
[2001] 3 All ER 433, 59, 118, 124, 160, 161
R v Secretary o f State fo r the H om e D epartm ent ex parte Doody [1994] 1 AC 531,
154, 167
R v Secretary o f State fo r the H om e D epartm ent ex parte H erbage (No. 2) [1987] 1
QB 1077, 164
R v Secretary o f State fo r the H om e D epartm ent ex parte H indley [1999] 2 W LR
1253, 167
xxiv H uman Rights and Civil Liberties
R v Secretary o f State fo r the H om e D epartm ent ex parte H osenball [1977] 3 All ER

452, 279
R v Secretary o f State fo r the H om e D epartment ex parte Leech (2) [1994] QB 198,
159, 161
R v Secretary o f State fo r the H om e D epartm ent ex parte M cQ uillan [1995] 4 All ER
400, 279
R v Secretary o f State fo r the Home D epartment ex parte Ruddock [1987] 2 All ER
518, 279
R v Secretary o f State fo r the H om e D epartm ent ex parte Simms and another [1999]
3 All ER 400, 18, 27, 160, 166, 171
R v Secretary o f State fo r the H om e D epartm ent ex parte Tarrant [1985] 1 A ll ER
799, 162
R v Secretary o f State for the H om e D epartm ent and the Parole Board ex parte N orney
(1995) 7 A dm in LR 861; [1996] CO D 81, 28
R v Secretary o f State fo r Social Services ex parte Joint Council fo r the W elfare o f
Im m igrants [1996] 4 All ER 385, 18
R v S elf [1992] 3 All ER 476, 92
R v Senior [1899] 1 QB 283, 379, 418
R v Shayler [2001] EW CA Crim 1977; [2001] 1 W LR 2206, 285
R v Shayler [2002] UKH L 11; [2002] 2 All ER 477 HL, 59, 171, 285, 292
R v Sheppard and another [1980] 3 A ll ER 899, 379
R v Sm ethurst [20021 1 Cr App Rep 6, 408
R v Smith [2002] EW CA Crim 683; The Times, 23 A pril, 407
R v Socialist Worker Printers and Publishers Ltd and another ex parte Attorney
G eneral [1975] 1 Q B 637, 213, 230
R v Somerset County Council ex parte Fewings [1995] 3 All ER 20, 304-5
R v Southampton Crown Court ex parte J and P [1993] Crim LR 962, 119
R v Stone, R v Dobinson [1977] 2 All ER 341, 374
R v Taylor and Taylor (1994) 98 C r Ap Rbp 361, 219, 224, 226
R v Telegraph Group [2002] EM LR 10, 227
R v Telfer [1976] Crim LR 562, 93
R v The Commission o f English H eritage ex parte Firsoff (unreported), 19 June
1991, 305
R v University o f Liverpool ex parte Caesar-Gordon [1990] 3 A ll ER 821, 307
R v Video Appeals Com m ittee o f the British Board o f Film Classification ex parte the
British Board o f Film Classification [2000] EM LR 850, 411
R v W addington (1822) 1 State Trials (NS), 107 ER 11, 420
R v Waddon (Graham) [1999] ITCLR 422, affirmed CA 6 April 2000 (2000 WL
491456), 412
R v Walker [19961 1 Cr App Rep 111, 402
R v W estminster City Council ex parte Castelli (1995) 7 A dm in LR 840, 230
R v Williams (1797) H ow ell's State Trials, volum e 26, 420
R v Wilson (1997) QB 47, 393
R v Young [1995] QB 324, 231
R (Alconbury Developments Ltd) v Secretary o f State for the Environm ent, Transport
and the Regions [2001] 2 All ER 929 HL, 31, 33, 149, 156
R (Amin) v Secretary o f State fo r the H om e D epartment [2002] EW CA Civ 390;
[2002] 4 All ER 336, 163
Table o f cases xxv
R (Anderson) v Secretary o f State for the Home Department [2001] EWCA Civ 1698,
[2002] 2 W LR 1143, 167
R (DPP) v Havering M agistrates Court [2001] 3 All ER 997, 324
R (Fleurose) v SFA Ltd [2001] All ER (D) 189, 150
R (Ford) v Press Complaints Commission [2001] EWHC Admin 683; [2002] EMLR
5, 188
R (H) v Mental Health Review tribunal N&E London Region [2001] EWCA Civ 415,
35
R (Heather) v Cheshire Homes [2002] EWCA Civ 366; [2002] 2 All ER 936 CA, 37
R (LaRose) v Commissioner o f Police for the M etropolis (2001) 151 NLJ 1212, 100
R (M) v Commissioner o f Police for the M etropolis (2001) 151 NLJ 1212, 100
R (McCann) v Crown Court M anchester [2001] 4 All ER 264, 150
R (Marper) v CC South Yorkshire [2002] EWCA Civ 1275; [2002] NLJ 1383, 105
R (Mellor) v Secretary o f State for the Home Department [2001] EWCA Civ 472;
[2002] QB 13, 165
R (Pearson and another) v Secretary o f State for the Home Department [2001] EWHC
Admin 239; [2001 HRLR 39, 166
R (Persey) v Secretary o f State for the Environment, Food and Rural Affairs [2000]
EWHC 371; [2002] 3 WLR 704, 265
R (Pretty) v DPP [2001] UKHL 61; [2002] 1 AC 800, 376-7
R (Pro-Life Alliance) v British Broadcasting Corporation [2002] EWCA Civ 297;
[2002] 2 All ER 756, 189, 249
R (Robertson) v Wakefield Metropolitan District Council [2001] EWHC Admin 915;
[2002] 2 WLR 889, 360, 364, 367
R (Rottman) v Commissioner o f Police o f the M etropolis [2002] UKHL 20; [2002] 2
All ER 865, 111
R (Saadi and others) ex parte Secretary o f State for the Home Department [2001]
EWCA Civ 670; [2001] 4 All ER 961, 342
R (Williamson) v Secretary o f State for Education and Employment [2001] EWHC
Admin 960; [2002] 1 FLR 493, 373
Rai, Allmond and Negotiate Now v The United Kingdom (1995) 19 EHRR CD 93;
Ap. 25522/94, 306
Ramsay v Foote (1883) 15 Cox CC 231, 420
Rassemblement Jurassien et Unite Jurassienne v Switzerland Ap. 8191/78; 17 D&R
93, 297, 298, 314
Raymond v Honey [1983] 1 AC 1, 160, 161
Rayner (Mincing Lane) Ltd v Department o f Trade [1990] 2 AC 418, 19
Re B (Consent to treatment: Capacity) [2002] EWHC 429; [2002] 2 All ER 449, 375
Re B (a minor) (ivardship: medical treatment) [1981] 1 WLR 1421, 379
Re C (Adult: Refusal o f M edical Treatment) [1994] 1 WLR 290, 375, 379
Re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC
660, 204
Re J (child's religious upbringing and circumcision) [2000] 1 FCR 307, 381
Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1995] 2 FLR 678,
381
Re JT (Adult: Refusal o f M edical Treatment) [1998] 1 FLR 48, 375, 380
Re Lysaght [1966] Ch 191, 417
Re M (child: refusal o f medical treatment) [1999] 2 FLR 1097, 378
xxvi H uman Rights and Civil Liberties
Re M B [1997] 8 Med LR 217, 375, 382

R e R (a minor) (wardship: m edical treatment) [1991] 4 A ll ER 177, 378
Re R (M inor) (1993) 15 BM LR 72, 379
R e South Place Ethical Society [1980] 1 W LR 1565, 422
Re T (adult: refusal o f medical treatment) [1992] 4 All ER 649 CA, 375
Re Truth and Sportsmen Ltd (1937) SR (NSW ) 242, 229
Re Tuck's Settlement Trust [1976] Ch 99, 417
Re W (a minor) (m edical treatment) [1992] 4 All ER 627, 378
Re Z (a minor) (freedom o f Publication) [1995] 4 All ER 961, 199
R edm ond-Bate v DPP (2000) 163 JP 789, 301, 302, 312
Rees v United Kingdom (1986) 9 EH RR 56, 395
Reynolds v Times N ewspapers Ltd and others [1999] 4 A ll ER 609, 201
RH v N orway, Hudoc. Ap. 17004/90, 383
Ribitsch v Austria (1996) 21 EHRR 573, 75
Rice v Connolly [1966] 2 All ER 649, 69
Ridge v Baldwin [1964] AC 40, 63, 148
Roach v Garvan (1742) 2 Atk 469, 206
Robins v United Kingdom (1998) 26 EHRR 527, 151
Robson and another v Hallett 11967] 2 QB 939, 109, 110, 309
Rowe and Davis v UK (2000) 30 EHRR 1, 154
Ruiz Torija v Spain Ap. 18390/91; 11999] ELIRLR 334, 155
Rut li v M inister o f the Interior [1975] ECR 1219, 21
Ryan v United Kingdom (1998) Ap. 3 2 8 7 5 /9 6 , 167
S v S [1972] AC 24, 380

S and G v United Kingdom (1991) Ap. 17634/91, 400, 403
St George's H ealthcare NHS Trust v S; R v Collins and others ex parte S [1998] 3
All ER 673, 375, 382
Salabiaku v France (1991) 13 EHRR 379, 336
Samuels v C om m issioner o f Police fo r the M etropolis 3 M arch 1999, Lexis: Smith
Bernal CA, 85
Sander v United Kingdom (2001) EHRR 44, 231
Saunders v Punch Ltd (trading as Liberty Publishing) [1998] 1 A ll ER 234, 204
Saunders v United Kingdom (1997) 23 EH RR 313, 70, 103, 105, 133
Scanfuture UK Ltd v Secretary o f State fo r Trade and Industry [2001] All ER (D)
296, 155
Schenk v Switzerland (1991) 13 EHRR 242, 144
Schiesser v Sw itzerland (1979-80) 2 EHRR 417, 96
Scott v Scott [1913] AC 417 HL, 229
Secretary o f State for Defence v Guardian N eivspapers [1984] 3 All ER 601, 278
Secretary o f State fo r Defence v Guardian Neivspapers Ltd [1984] 2 W LR 268, 204
Secretary o f State fo r the H om e D epartm ent v Rehm an [2001] UKH L 47; [2002] 1
All ER 122, 279, 343
Sener v Turkey [2000] 11 H RCD 399, 254
Seven Individuals v Sweden Ap. 8 8 1 1 /7 9 ; (1982) 29 D& R 104, 373
Shaw v DPP [1962] AC 220, 400, 402
Sheffield and H orsham v United Kingdom (1999) 27 EHRR 163, 395
Sidiropoulos and others v Greece (1998) Ap. 5 7 /1 9 9 7 /8 4 1 /1 0 4 7 , 338
Tabie o f cases xxvii
Silver v United Kingdom (1983) 5 EH RR 347, 161

Sim on-Herold v Austria (1971) Ap. 4 3 4 0 /6 9 , 163
Singh v United Kingdom (1996) 22 EH RR 1, 167
Slee v M eadows (1911) 105 LT 127 DC, 306
Snooks v M annion (1982) The Times, 19 M arch, 110
SNP v BBC (1996) 146 NLJ 1433, 195
SN P v Scottish Television and Grampian T V (1997) 147 NLJ 528, 195
Soering v United Kingdom (1989) 11 EHRR 439, 370
Somersett v Stewart (1772) 20 St Tr 1, 16
SPUC (Ireland) v Grogan [1991] 3 CM LR 849, 21
Stafford v United Kingdom Ap. 4 6 2 9 5 /9 9 ; (2002) 152 NLJ 880, 167
Starrs v Ruxton (2000) SLT 42 HCJ, 155
Stedman v United Kingdom [1997] EH RLR 545, 415, 416
Steel and others v United Kingdom (1998) 28 EH RR 603, 89, 300, 302-3, 350
Stephens v Avery [1988] Ch 449, 199
Stubbings & others v United Kingdom (1997) 23 EHRR 213, 152, 388
Sunday Times v United Kingdom (1979-80) 2 EHRR 245, 209, 210-11, 214, 218
Sutherland v United Kingdom Ap. 2 5 186/94; (2001) The Times, 13 April, 391, 392
Sutton LBC v Davis [1995] 1 All ER 53, 374
Swinney v C hief Constable o f N ortham pton Police [1997] QB 464 CA, 67
T v United Kingdom (1986) 49 D&R 5, 166

Taylor v United Kingdom (1994) 79-A D&R 127, 76
Taylor's Case (1676)"V ent 293, 86 ER 189, 419
Teixeira da Castro v Portugal (1999) 28 EHRR 101, 137
The Observer and the Guardian v United Kingdom (1992) 14 EH RR 153, 214, 284,
292, 319
The State v M akw anyane and M chunu (1995) C C T /3 /9 4 ; (3) SA 391, 370
Thom as v Sawkins [1935] 2 KB 249, 310
Thompson v Com m issioner o f Police o f the M etropolis, Hsu v Com m issioner o f Police
o f the M etropolis [1997] 2 All ER 762, 67
Thorburn v Sunderland City Council [2002] EW HC Adm in 195; [2002] 4 All ER
156, 17, 18
Thorgiersen v Iceland (1992) 14 EHRR 843, 203
Three Rivers DC v Bank o f England [20001 3 All ER 1 HL, 165
Tinnelly & Sons v UK (1998) 4 BH RC 393, 152, 276
Togher v United Kingdom [1998] EH RLR 627, 164
Totalise Pic v M otley Fool Ltd (2001) The Times, 15 M arch, 204
Toumia v Evans (1999) The Times, 1 April, 164, 165
Tow er H am lets LBC v Rabin [1989] ICR 693, 415
T V v Finland (1994) Ap 21 7 8 0 /9 3 , 76A D&R 140, 359
Tyrer v United Kingdom (1979-80) 2 EHRR 1, 84, 163, 371
United Comm unist Party o f Turkey and others v Turkey (1998) 26 EHRR 121, 236,
254, 338
Universal Therm osensors Ltd v H ibben [1992] 3 All ER 257, 125
Valentine v DPOP [1997] CO D 339, 327

Valenzuela Contreras v Spain (1999) 28 EHRR 483, 141, 142, 143, 144
xxviii Human Rights and Civil Liberties
Van M echelen and others v The N etherlands Ap. 2 1 3 6 3 /9 3 ; (1997) 25 EH RR 647,

150
Vauxhall Estates Ltd [1932] 1 KB 733, 17
Venables and another v N ews Group N eivspapers [2001] 1 A ll ER 908, 188, 230
V ertali v Great Yarmouth [1981] 1 QB 202, 237, 307, 318
Vigon v DPP (1998) 162 JP 115, 325
Walters v W.H. Smith [1914] KB 595, 91

Ward v C hief Constable o f Avon and Som erset Constabulary (1986) The Times, 26
June, CA, 89
Warwick v United Kingdom (1989) 60 D&R 5, 373
Weber v Switzerland (1990) 12 EHRR 508, 213
Webster v Southw ark London Borough Council [1983] 1 QB 698, 247
Weeks v United Kingdom (1987) 10 EHRR 293, 167
W ershof v M etropolitan Police Com m issioner [1978] 3 A ll ER 540, 69
Wilkes v Lord H alifax (1769) 19 St Tr 1406, 114
Wilkes v Wood (1763) 19 St Tr 1153, 114
Williams v H om e Office (No. 2) [1981] 1 All ER 1211, 164
Wilson v First County Trusts Ltd [2001] EW CA Civ 633; [2001] 3 All ER 2 2 9 ,1 5 2
Wilson v IBA [1979] SC 351, 195
Wilson v IBA (2) (1988) SLT 276, 249
Winder and others v DPP (1966) 160 JPR 713, 320
W ingrove v United Kingdom Ap. 17419/90; (1997) 24 EH RR 1, 411, 420, 421
Winn v D PP (1992) 142 NLJ 527, 327
Worm v Austria (1998) 25 EH RR 454, 210, 218, 222
X v Austria (1976) 6 D& R 120, 241

X v Finland (1998) 25 EHRR, 359
X v FRG Ap. 2 7 2 8 /6 6 25 CofD 38, 166
X v FRG Ap. 4984 /7 1 43 CofD 28, 166
X v Germ any (1981) 24 DR 158, 87
X v Iceland (1976) 5 D& R 86, 388
X v M organ Grampian [1990] 2 All ER 1 (HL), 204
X v N etherlands Ap. 6 5 7 3 /7 4 , 166
X v Belgium 18 D&R 250, 166
X v Sweden (1976) 16 DR 44, 415
X v United Kingdom (1975) 3 D&R 165, 166
X v Y [1988] 2 All ER 648, 199
X and the Association o f Z v United Kingdom (1971) 38 C D 862, 248
X and Y v The Netherlands (1985) 8 EHRR 235, 338
Y v United Kingdom (1994) 17 EHRR 238, 373
Z v Austria (1988) 56 DR 13, 265

Z v United Kingdom (2002) 34 EH RR 97, 67, 152
Zamora, The [1916] 2 AC 77, 278
Zentralrat DSRR v Germany (1997) 23 EHRR 7 CD 209, 39
Table of Acts of Parliament
A bortion A ct 1967, 3 8 2 -3
S. 4, 382
A ccess to H ealth R ecords A ct 1990, 360
A ccess to M edical Reports A ct 1988, 360
A ccess to Personal Files A ct 1987, 360
A ct of S ettlem en t 1700, 416
A ir Force A ct 1955, 62
A nti-Terrorism C rim e and Secu rity A ct 2 0 0 1 ,16, 3 0 ,1 0 3 , 256, 258, 332, 340, 349,
353, 359
S. 17, 367, 415
P art 4, 3 4 3 -5
P art 11, 133
A rm ed Forces A ct 2001, 62
A rm y A ct 1955, 62, 370
A ud it C om m ission A ct 1998, 266
Bail A ct 1976, 151, 324
Betting, G am ing and L otteries A ct 1963, 66
B roadcasting A ct 1990, 185, 2 4 8 -9 , 412
S. 10, 191-2, 193
S. 6, 192, 194, 411
Broadcasting A ct 1996, 185, 193, 196, 197
C h ild ren A ct 1989, 60, 378, 379, 380
C h ild ren and Young P ersons A ct 1933, 230, 371, 379
C h ild ren and Youn g P ersons A ct 1969, 104
C inem as A ct 1985, 409, 418
C ity of L ondon Police A ct 1839, 314
C om m onw ealth Im m igration A ct 1962, 15
C o n su m er C red it A ct 1974, 152
C o n tem p t o f C ou rt A ct 1981, 211, 212, 214, 222-31
S. 2, 215, 2 2 2 -3
S. 4, 2 2 6 -7
S. 5, 215, 2 2 7 -9
S. 8, 231
S. 10, 2 0 3 -4
S. 11, 230
S. 19, 211
S ch ed u le 1, 223
XXX H um an Rights and Civil Liberties
C rim e and D isord er A ct 1998, 250, 370, 415

C rim in al D am age A ct 1971, 3 2 2 -3
C rim in al Ju stice A ct 1967, 371
C rim in al Ju stice A ct 1988, 407
S. 139, 83, 84, 88
C rim in al Ju stice A ct 1991, 158, 161
C rim inal Ju stice A ct 1992, 161
C rim in al Ju stice and C ou rt Services A ct 2000, 407
C rim in al Ju stice and P olice A ct 2001, 104, 105, 117, 124
C rim in al Ju stice and Public O rd er A ct 1994, 158, 299, 321, 326, 404, 408
S. 34, 101
S. 38, 102
S. 60, 86, 346
S. 61, 308
S. 68, 3 1 9 -2 0
S. 69, 320
S. 163, 145
C rim in al Ju stice (Terrorism and C on spiracy) A ct 1998, 333
C rim in al Law A ct 1967
S. 3, 74, 76, 326
C rim in al Law A ct 1977, 303, 321, 322, 333
C rim in al P roced ure and Investigation A ct 1996, 153, 154
C row n P roceed in gs A ct 1948, 57, 64
C u stom s and E xcise M anagem ent A ct 1979, 114, 407
C u stom s C on solid ation A ct 1876, 407
Data Protection A ct 1984, 360
Data Protection A ct 1998, 56, 60, 132, 145, 271, 351, 359, 360
S. 1, 361
S. 32, 365
P art II, 364
S ch ed u le 1, 361
S ch ed u le 2, 361
S ch ed u le 3, 362
E du cation A ct 1944, 418
Education A ct 1996, 372, 418
Education A ct 1997, 372
Education A ct (N o 2) 1986, 179, 307, 372
E m ploym en t A ct 1989, 417
E m ploym en t Rights A ct 1996, 282
E nviron m ent and Safety Inform ation A ct 1988, 266
E uropean C om m u nities A ct 1972, 19, 20
E xplosive Substances A ct 1883, 116
Fair T rad in g A ct 1973, 185
Fam ily Law Reform A ct 1969, 377, 378, 380
Firearm s A ct 1968, 85
Football (O ffences) A ct 1991, 259
Freed om o f Inform ation A ct 2000, 56, 60, 282, 360, 362
S. 1, 268
T able o f A cts o f P arliam ent xxxi
S. 2, 270
S. 12, 273
S. 15, 267
S. 21, 271
S. 22, 272
S. 23, 276
S. 24, 276
S. 28, 275
S. 33, 275
S. 35, 2 7 4 -5
S. 36, 2 7 4 -5
S. 41, 273
S. 43, 273
S. 44, 271
S. 45, 268
S. 53, 270
S. 55, 269
S. 62, 263
S. 63, 263
S. 74, 272
S. 75, 271
S. 78, 271
S ch ed u le 1, 267
S ch ed u le 3, 269
G reater L ondon A uthority A ct 1999, 306
H ighw ays A ct 1980
S. 137, 3 0 8 -9
H ouse of C om m ons D isqu alification A ct 1975, 245
H ouse of C om m ons (R em oval o f C lergy D isqu alification) A ct 2001, 245
H ouse of L ords A ct 1999, 245
H um an Fertilisation and E m bryology A ct 1990, 382
H um an Rights A ct 1998, 2 8 -5 1 , 59, 140
S. 1, 30, 47
S. 2, 30
S. 3, 34, 229
S. 4, 35
S. 6, 37, 56, 136, 184, 188
S. 7, 38, 59, 71
S. 10, 35
S. 12, 40, 123, 177, 180, 184, 198, 221, 228, 289, 319
S. 13, 40, 416
S. 14, 30
S. 15, 30
S. 16, 30
S. 21, 255, 370-1
S ch ed u le 1
A rticle 2, 4 1 -2 , 75, 163, 380
A rticle 3, 42, 75, 103, 163, 164, 165, 167, 370, 371, 378
xxxii H um an Rights and Civil Liberties
A rticle 4, 42
A rticle 5, 43, 72, 8 7 -8 , 8 9 -9 0 ,9 3 , 94, 9 5 - 7 ,1 5 1 ,1 5 7 ,1 6 0 ,1 6 7 , 3 0 2 -3 ,3 4 4 , 350
A rticle 6, 44, 71, 98, 100, 102, 103, 105, 118, 123, 1 4 0 -1 , 144, 148-56,
160, 162, 2 0 8 -9 , 212, 215, 218, 222, 227, 229, 230, 280, 324, 340, 351
A rticle 7, 44, 349
A rticle 8, 45, 46, 105, 108, 113, 118, 132, 136, 1 4 1 -4 ,1 6 1 , 163, 164, 165, 359,
377, 379, 380, 388, 391, 393, 395, 408, 416
A rticle 9, 45, 46, 84, 165, 381, 4 1 5 -1 6
A rticle 10, 45, 46, 84, 123, 136, 142, 16 5 -6 , 179-80, 18 3 -4 , 186, 203, 209 -1 1 ,
2 1 3 -1 4 , 215, 217, 218, 227, 228, 230, 2 5 0 -1 , 2 5 8 -9 , 2 6 4 -5 , 280, 284, 288,
289, 292, 2 9 7 -8 , 3 0 2 -3 , 358, 3 9 9 -4 0 0 , 401, 403, 408, 411, 416
A rticle 11, 45, 4 7 ,1 3 6 , 1 4 2 ,1 6 5 , 2 3 6 -7 , 2 9 7 -8 , 3 0 8 -9 , 316, 319, 3 2 1 -2 , 3 3 7 -8
A rticle 12, 47, 395
A rticle 14, 49, 103, 344, 388, 392, 395, 416
A rticle 16, 50
A rticle 17, 5 0 -1 , 2 5 8 -9 , 307, 3 3 7 -8
A rticle 18, 50, 245
Protocol 1 A rticle 1, 4 7 -8 , 108, 340, 416
Protocol 1 A rticle 2, 48, 373, 419
Protocol 1 A rticle 3, 48, 166, 237, 2 4 1 -3 , 245
Protocol 6 A rticle 1, 49, 369-71
Protocol 6 A rticle 2, 49, 370
Sch ed u le 2, 36
Im m igration A ct 1971, 343
Incitem ent to D isaffection A ct 1934, 2 5 5 -6
Indecency D isplays (C ontrol) A ct 1981, 406
Infant Life (P reservation) A ct 1929, 382, 383
Intelligence Services A ct 1994, 79, 80, 128, 13 5 -6 , 140, 285, 288
S. 5, 135, 136
Interception o f C om m u nications A ct 1985, 128, 130, 140
Ju stice o f the P eace A ct 1361, 324
K nives A ct 1997, 86, 116
Local G ov ern m ent A ct 1972, 304
Local G ov ern m ent (A ccess to Inform ation) A ct 1985, 2 6 5 -6
Local G ov ern m ent Finan ce A ct 1982, 266
Local G ov ern m ent and H ousing A ct 1989, 238
Local G ov ern m ent (M iscellaneous Provisions) A ct 1982, 116, 409
M agistrates' C ou rts A ct 1980, 90, 323
M arriage A ct 1983, 165
M ental H ealth A ct 1983, 35, 379
M etropolitan Police A ct 1839
S. 52, 3 1 4 -1 5
M inistry o f D efence P olice A ct 1987, 62
M isuse o f D ru gs A ct 1971, 85
M urder (A bolition o f the D eath Penalty) A ct 1965, 370
N aval D iscipline A ct 1957, 62
O aths A ct 1978, 417
O bscene P ublications A ct 1959, 182, 400, 402, 4 0 4 -1 3
T able o f A cts o f P arliam ent xxxiii
S. 1, 404
S. 2(4), 398, 402, 403, 404, 410
S. 3, 406
S. 4, 4 0 5 -6
O bscene P ublication s A ct 1964, 182, 404
O ffences A gainst the Person A ct 1861, 382
O fficial Secrets A ct 1911, 116
S. 1, 2 7 9 -8 1 , 289
S. 2, 282
S. 9, 283
O fficial Secrets A ct 1920, 279, 280
O fficial Secrets A ct 1989, 64, 230, 2 8 2 -9
S. 1, 285, 285, 286, 290
S. 2, 286, 287
S. 3, 287
S. 4, 288
S. 5, 289
P arliam en tary C om m ission er A ct 1967, 56, 60, 80, 266, 273
P arliam en tary and H ealth Serv ice C om m ission ers A ct 1987, 266
Police A ct 1996, 63
S. 1-4, 63
S. 10, 64
S. 11, 63
S. 20, 66
S. 24, 62
S.s 3 6 -5 8 , P art II, 64
S. 59, 65
S. 64, 65
S. 88, 67
S. 89, 69, 311
S. 91, 256
Police A ct 1997, 63, 128, 138
Part III, 134, 135, 140, 288
S. 93, 134
S. 94, 134
S. 97, 135
S. 103, 135
S. 104, 135
Police and C rim in al Evid ence A ct 1984, 70 passim , 203
Part 1, Ss. 1 -8A , 72, 8 2 -5 , 86, 8 7 -8
S. 8, 74, 115, 117, 119
S. 9, 119
S. 10, 1 1 8-19
Ss. 1 1 -1 3 , 120-121
S. 15, 116
S. 16, 1 16-117
S. 17, 90, 111, 112, 311
(5), 70, 111
xxxiv H um an Rights and Civil Liberties
(6), 70, 111, 113, 310

S. 18, 114
S. 19, 94, 117, 351
S. 21, 118
S. 22, 118
S. 24, 73, 90, 299
(1), 91
(4), 68
S. 25, 69, 89, 90, 92, 299, 309, 312
S. 26, 93
S. 28, 93
S. 30, 94
S. 32, 94, 114
S. 34, 95
S. 37, 96, 97,
S. 38, 96
S. 39, 98, 103
S. 40, 97
Ss. 4 1 -4 5 , 9 7 -9 8
S. 46, 97
S. 54, 104
S. 55, 84, 105
S. 56, 99
S. 57, 104
S. 61, 104, 105
S. 63, 105
S. 64, 105
S. 58, 99
S. 66, 70
S. 67, 71
S. 76, 71, 100, 147
S. 77, 71
S. 78, 7 1 -7 8 , 100, 103, 144, 147
S. 89, 71
S. 106, 66
S. 116, 73, 98
S. 117, 74
S ch ed u le 1, 1 1 9 -1 2 4 ,1 2 2
S ch ed u le 5, 73
P olice Reform A ct 2002, 63, 64, 67
Part 2, 68
P olitical Parties, Elections and R eferend um s A ct 2000, 2 4 0 -1 , 244, 2 4 5 -7 , 249
P ostal Services A ct 2000, 407
P revention o f T errorism (Tem porary Provisions) A ct 1973, 331
P reven tion o f T errorism (Tem porary P rovisions) A ct 1989, 331, 349
Prisons A ct 1952, 159, 164
S. 47, 159
P rohibition o f Fem ale C ircu m cision A ct 1985, 381
T able o f A cts o f P arliam ent xxxv
Protection o f C h ild ren A ct 1978, 407

Protection from H arassm en t A ct 1997, 136, 187, 319
Public Interest D isclosure A ct 1998, 282
Public M eeting A ct 1908, 308, 312
Public O rd er A ct 1936, 74, 324, 326
Public O rd er A ct 1986, 299, 324
S. 1, 327, 328
S. 2, 327
S. 3, 327
S. 4A , 326
S. 5, 3 2 5 -6 , 394, 403
S. 11, 3 1 3 -3 1 4
S. 12, 3 1 4 -3 1 5
S. 13, 3 1 5 -3 1 7
S. 14, 3 1 1 -3 1 2
S. 14A, 308, 3 2 1 -2
S. 16, 311
Part III, 2 5 6 -9 , 409
Public O rd er (A m end m ent) A ct 1996, 325
Public R ecords A ct 1958, 2 6 2 -3
Race R elations A ct 1976, 60, 256, 358, 415, 417
Race R elations (A m endm ent) A ct 2000, 56, 60, 66, 256
R egistration o f P olitical P arties A ct 1998, 240
Regu lation o f Inv estigatory P ow ers A ct 2000, 79, 154, 187, 288
S. 1, 129
S. 3, 130
S. 5, 13 1 -2
S. 6, 131
S. 7, 131
S. 17, 144
Part 1, C h ap ter 2, 132
S. 22, 132
Part II, 13 7 -9
S. 32, 138
S. 58, 139
Part 4, 140-1
S. 67, 140
S. 69, 140
S. 80, 137
Sch ed u le 1, 137
Sch ed u le 2, 133
R epresentation of the P eople A ct 1983, 2 4 4 -6 , 307, 312
Representation of the P eople A ct 1985, 244
Representation of the P eople A ct 2000, 244
Road Traffic A ct 1988, 8 6 -7 , 417
School Stand ards and Fram ew ork A ct 1998, 372, 418
Secu rity Serv ice A ct 1989, 77, 128, 140, 285, 288
S. 1, 78, 278
xxxvi Human Rights and Civil Liberties
Security Service A ct 1996, 77, 128, 136

Sex Discrim ination A ct 1975, 415, 417
Sexual Offences A ct 1956, 389, 390, 391, 392
Sexual Offences (A m endm ent) Act 1967, 389, 391
Sexual Offences (A m endm ent) Act 1976, 230
Sexual Offences (A m endm ent) Act 2000, 389, 391
Special Im m igration A ppeals Com m ission Act 1997, 343-5
Sporting Events (Control of A lcohol etc) Act 1985, 85
Suicide A ct 1961, 374, 376
Sunday Trading Act 1994, 418
Tattooing of M inors A ct 1969, 380
Telecom m unications Act 1984, 130, 132, 407
Terrorism A ct 2000, 70, 85, 114, 332, 335
S. 1, 334
S. 3, 337
Ss. 4 -9 , 338
Ss. 11-13, 339
Ss 14-18, 340
S. 19, 352
S. 32, 345
S. 37, 347
S. 39, 352
S. 40, 348
S. 41, 349, 351
S. 42, 351
Ss 54-57, 341
S. 114, 74
S. 117, 333, 353
S. 118, 336, 353
Part IV, 345
Part V, 345
Part VII, 333
Schedule 2, 337
Schedule 3, 339
Schedule 5, 346
Schedule 8, 349-50
Theatres Act 1968, 116, 402, 403, 404, 408-9
Theft A ct 1968, 84, 116
Theft A ct 1978, 93
Tow n Police Clauses Act 1847, 314
Trade U nion and Labour Relations (Consolidation) Act 1992, 237, 323
Treason Act 1351, 250-1
Treason Felony Act 1848, 251
Tribunals and Inquiries Act 1992, 147, 154
V agrancy A ct 1824, 93
Video Recordings Act 1984, 411
Video Recordings Act 1993, 410
Youth Justice and Crim inal Evidence A ct 1999, 103, 351
Table of Statutory Instruments
Access to Personal Files (Housing) Regulations 1989, SI 1989 No. 503, 360
Access to Personal Files (Social Services) Regulations 1989, SI 1989 No. 206, 360
Children's Homes Regulations 1991, SI 1991 No. 1506, 374
Criminal Evidence (Northern Ireland) Order 1988, SI 1988 No. 1987 (NI No. 2),
101
Crown Court (Criminal Procedure and Investigations Act 1996) (Disclosure)
Rules 1997, SI 1997 No. 698, 154
Data Protection (Processing of Sensitive Personal Data) Order 2000, SI 2000 No.
417, 362
Local Government Officers (Political Restrictions) Regulations 1990, SI 1990
No. 851, 238
Mental Health Act 1983 (Remedial) Order 2000, SI 2001 No. 3712, 35
Official Secrets (Prohibited Places) Order 1994, SI 1994 No. 968, 280
Regulation of Investigatory Powers (Prescription of Officers, Ranks and
Positions) Order 2000, SI 2000 No. 2417, 137
Royal Parks and Other Open Spaces Regulations 1997, SI 1997 No. 1639, 306
Table of Command, parliamentary
and other official papers
A nnan, Lord (1977) Report o f the Comm ittee on the Future o f Broadcasting, Cm
6753. London: H M SO, 193
Calcutt, Sir David (1990) Report o f the Com m ittee on Privacy and Related M atters,
Cm 1102. London: H M SO , 187
Calcutt, Sir David (1992) Review o f Press Self Regulation, Cm 2135. London:
H M SO, 129, 187
C hancellor of the Duchy of Lancaster (1993) Open Governm ent, Cm 2290.
London: H M SO, 262, 266-77
Departm ent of H ealth (2000) P rotecting Children, Supporting Parents. London:
Departm ent of H ealth, 372
Franks, Lord (Chairm an) (1972) D epartm ental Com m ittee on Section 2 o f the
Official Secrets Act 1911, Cm 5104, 283
H om e Office (1985) Revieio o f Public O rder (W hite Paper), Cm 9510, 299
Home Office (1997) Code o f Practice on Access to Government Information, 2nd edn;
revised 1998. London: HMSO; also available at http ://w w w .hom eoffice.
g o v .u k /foi/ ogcode981 .htm, 266-77
H om e Office (2000) Setting the Boundaries: Reform ing the Law on Sex Offences.
London: H om e Office, 387-8
H om e Office and N orthern Ireland Office (1998) Legislation Against Terrorism:
A Consultation Paper, Cm 4178, 332
Intelligence and Security Com m ittee (2000) The M itrokhin Inquiry Report, Cri.
4764. London: Stationery Office, 80
Interception o f Com m unications in the United Kingdom (1999), Cm 4368, 129
Law Com m ission (1 981/85) Crim inal Law: Offences against Religion and Public
Worship, W orking Paper 79 (1981); Report 145 (1985), 421
Lord C hancellor's Departm ent (1993) Infringem ent o f Privacy, Consultation
Paper. London: HM SO , 187
Lord Lloyd of Berw ick (1996) Legislation Against Terrorism, Cm 3420, 332
Lord N eill o f Bladen, QC (Chairm an), Com m ittee on Standards in Public Life
(1998) The Funding o f Political Parties in the United Kingdom, Fifth Report,
V olum e 1: Report, Cm 4057-1; Volum e II: Evidence, Cm 4057-11, 240, 248-9
M acPherson, Sir W illiam (1999) The Stephen Lawrence Inquiry, Report, Cm
4262-1. London: Stationery Office, 66
N ational H eritage Select Com m ittee (1993) Fourth Report: Privacy and M edia
Intrusion. HC 294-1, 187
Table o f C om m and, parliam entary and other official papers xxxix
Philim ore C om m ittee (1974) C ontem pt o f Court, C m 5794, 206

P rom oting e-C om m erce (1999), C m 4417, 129
Royal C om m ission on C rim in al Ju stice (1993), C m 2263, 101
Royal C om m ission on C rim in al P roced u re (1981), C m 8092, 101
Royal C om m ission on the Police 1962, C m 1728, 62, 65
Scarm an, Lord (1981) The Brixton D isorders, C m 8427, 299
W illiam s, B. (C hairm an) (1979) Report o f the C om m ittee on O bscenity and Film
Censorship, Cm 7772, 397
W oolf, L.J. and Tum irn, J. (1991) Prison D isturbances: A pril 1990, C m 1456.
London, 161
Younger, K. (C hairm an) (1972) Report o f the C om m ittee on P rivacy, C m 5012, 187
Abbreviations
Ap. A pplication nu m ber (to the E uropean C ou rt of H um an Rights)

A -TC & S A nti-terrorism , C rim e and S ecu rity A ct 2001
BBC British Broadcasting C orp oration
BSC Broadcasting Stand ard s C om m ission
C LJ C am bridge Law Journal
Crim LR Crim inal Law Review
DC D ivisional C ourt
D PP D irector o f P ublic Prosecutions
ECHR E uropean C on vention on H um an R ights
E ctH R E uropean C ou rt of H um an R ights
HL H ouse o f Lords
H R LJ H um an Rights Law Journal
ICCPR International C ov enant on C ivil and Political Rights
ITC Ind epen d ent Telev ision C om m ission
ITV Ind epen d ent T elevision
LQ R Law Q uarterly R eview
M LR M odern Law Review .
N LJ N ew Law Journ al
O JLS O xford Journ al o f Legal Studies
PA C E Police and C rim in al E vid en ce A ct 1984
PCC Press C om plaints C om m ission
PL P ublic Law
RA Radio A uthority
RIPA R egu lation o f Investigatory Pow ers A ct 2000
Sched. Sch ed u le
SI Statu tory Instrum ent
SIA C Special Im m igration A ppeals C om m ission
PPERA P olitical Parties, Elections and R eferend um s A ct 2000
N eutral citation
N eutral citation is given w here possible. The d ate o f the d ecision is follow ed
by an abbreviation for the cou rt and then the nu m ber of the case, not the page
num ber. C ases are published w ith num bered paragraphs. This system has
been ad opted for the su p erior cou rts w ith ju risd iction in England and W ales
and also by the E uropean H um an Rights R eports series.
PC Privy C ouncil
UKHL U nited K ingd om H ouse o f Lords
A bbreviations xli
EW C A C iv England and W ales, C ou rt o f A ppeal, C iv il D ivision

EW C A C rim England and W ales, C ou rt o f A ppeal, C rim in al D ivision
EW H C [case H igh C ourt, A d m in istrative C ourt, Q u een 's Bench,
num ber] A d m in / C h ancery D ivision, Fam ily D ivision.
Q B /C h /F a m
Law R eports
AC A ppeal C ases
A dm in LR A d m in istrative Law Reports
A ll ER A ll England Law Reports
A tk A tkin 's Q u arter Session s cases
BH RC B utterw o rth 's H um an R ights C ases
BM L R B utterw o rth 's M edical L aw R eports
Black. W Sir W illiam B lackston e's R eports
Bos and P B osanqu et and P u llar's C om m on P leas R eports
C & P C arrington and P ay n e's N isi Prius Reports
C of D C ollection s o f D ecision s (European C om m ission o f H um an
Rights)
CM LR C om m on M arket Law Reports
COD C row n Office D igest
Ch C h ancery D ivision
C ox C C C o x 's C rim in al C ases
C r A p Rep C rim in al A ppeal Reports
D&R D ecisions and R eports (E uropean C om m ission o f H um an Rights)
D e G & Sm D e G ex and Sm iles C h ancery Reports
D LR D om inion Law Reports
E & B Ellis and B lackb u rn 's Q u een 's Bench Reports
ECR E uropean C ou rt Reports
EH R LR E uropean H um an Rights Law Reports
EH R R C D E uropean H um an Rights Reports, C om m ission D igest
EH R R E uropean H um an Rights Reports
EM L R E ntertainm ent and M edia L aw R eports
ER E nglish R eports
FC R Fam ily C ou rt Reporter
FL R Fam ily L aw Reports
Farn Fam ily D ivision
H are H are's C h ancery Reports
ICR Industrial C ases Reports
IRLR Industrial R elations Law Reports
JP Ju stice o f the P eace reports
KB K ings Bench
LG R Local G ov ern m ent Reports
LR Law R eports
LT L aw Tim es
M ed LR M edical Law Reports
NI N orthern Ireland Law R eports
QB Q u een 's Bench
QBD Q u een 's Bench D ivisional C ourt
xlii H um an Rights and Civil Liberties
RTR Road Traffic Reports

SA South African Law Reports
SC Session Cases
SLT Scots Law Tim es
SR (NSW) New South W ales State Reports
St Tr State Trials
TLR The Tim es Law Reports
W LR W eekly Law Reports
YB Yearbook of the European Convention on H um an Rights
Part I
Values and institutions
1
Introduction and underlying
values
1.1 In tro d u c tio n
A group of political dem onstrators are arrested w hen they hold a m eeting on
a public road, a desperately ill m an w ishes to choose the time of his death, a
journalist w ith an im portant story about an alleged terrorist group is faced
with prison for not disclosing her source. These are exam ples of issues about
civil liberties law. In this chapter the values that underlie civil liberties law are
introduced as are the broad constitutional theories, the theories of state power,
which give the law its legitim acy in relation to those values. Finally, the idea
of human rights is introduced since it is in relation to that idea that civil
liberties law is being restated. A principal aim of this book is to integrate
human rights law into the com m on law and statutory rules which m ake up
the subject.
1.2 V a lu e s : d e m o c ra c y an d p riv a c y
Civil liberties law is to do with the relationship betw een citizens and the state
in so far as this relationship affects two features of social life presum ed to be
valuable. These two 'features' are, first, 'dem ocracy' or the good of political
participation. Civil liberties law is concerned w ith identifying the reasonable
scope of the freedom of people to participate in political processes and seek to
change or m aintain the laws, governm ent policies or public opinion. The
second 'feature' is the idea of privacy. Civil liberties law is concerned with the
reasonable scope o f the claim that there is a significant part of a person's life
that should be determ ined by that person alone and in respect of which the
state, through its laws, should have no say. From this perspective, the state
also has duties, through its laws, to preserve the private part of a person's life
from im proper intrusion from others, such as neighbours or the media.
The current law, w hich is stated in this book, represents the rules and
principles on these issues w hich have em erged from the exercise of state
power in the im perfect dem ocracy that is the United Kingdom . Their
reasonableness is the subject of the argum ents that surround these rules and
principles. Through these argum ents, the strengths and w eaknesses, the
reasons for supporting, for tolerating or for rejecting the current rules can be
assessed.
4 H um an Rights and Civil Liberties
F or som e w riters, d em ocracy and p riv acy are so ind ep en den t o f each other,
so m u ch d ealing w ith d istin ct and unrelated m atters, that they are incapable
o f uniting together into a single subject called 'civil lib e rtie s'.1 T he position,
w hich is presum ed in this book, is that civil liberties law engages w ith political
activ ity and p riv acy in so far as they are affected by the law and by state pow er
exercised u n d er the law . From that p osition, p riv acy and d em ocracy are
interrelated. T here is an essential aspect o f 'p riv acy' underlying political
activity. Political activity flow s from the con ceptions that ind ividu als hold
abou t w hat is good and v alu able in life and w hat ou g h t to be prom oted or
restricted in society. Such 'concep tions o f the good ' w ill, as a m atter o f fact,
u sually reflect the cu ltural trad itions and the collective w ays of life o f the
society; m ost people assert view s that exist w ithin a fairly narrow ran ge of
o pinions and possibilities. M arxists, fo r exam ple, and other cultural sociolog i
sts w ill explain such con form ity in term s o f a broad ly d eterm inistic relatio n
ship betw een the basic w ay o f life in society, p articularly the system o f w ealth
p rod uction , and the valu es and ideas that p eople hold. Even if it is p ossible to
explain in such d eterm inistic w ays w hy it is that people hold the view s they
do, it rem ains the case that those view s are essentially theirs. A p erso n 's view s
on religion, on the ju stification o f w ar or peace, on the best con stitutional and
econom ic system , on the kinds o f people to befriend or love and so on are
im portan t in any u n derstand ing w e m ay have of them as persons. W e can use
the w ord 'au ton om y' to express the idea that such view s are attached to them
as an im portan t part o f their personality. O u r assu m ption about w hat it m eans
to be a person is that, unlike, w e believe, an anim al or an object, persons have
the cap acity to reflect upon, choose and prom ote their sense o f w hat is
w orthw hile and w orth pu rsu ing in life, usually for them selves, som etim es for
others. T his 'au ton o m y ' m ay be true or it m ay be a fiction. In eith er event we
p resum e it to be true. It is the p resum ption at the heart o f m oral d iscourse,
ethics, the crim inal law and, also, o f the basic idea that som e conception of
d em ocracy is a good the law should prom ote. C ivil liberties law , therefore, is
about the scope and d im ensions o f the freed om people have to seek to get their
ow n sense o f w hat is w orthw hile ad opted by society as pu rposes the law is to
serve.
'D em ocracy' and 'p riv acy' are also linked becau se the claim s of privacy can
be the subject m atter o f som e o f the m ost controversial and testing political
issues. P eople m ay claim that w hat they read or w atch, how and w ith w hom
they m ake love, how they treat their b od y and so on are m atters entirely for
them and there is no social or political interest that ju stifies the intervention of
the state. S im ilarly they m ay claim that inform ation abou t these and other
m atters, such as their incom e, is personal and only to be used o r disclosed by
others un der con ditions that the person controls. But these claim s can be
con trad icted b y law s relatin g to obscenity, sexual offences, suicide and so on,
and a significant d egree o f d em ocratic politics involves struggles, condu cted
in P arliam en t, the cou rts or on the streets, about the scope o f privacy that the
law should recognise.
1 Ew ing, K. and G earty, C. (2000) T he Struggle fo r Civil Liberties. Oxford: O xford U niversity Press,
ch apter 1.
Introduction and underlying values 5
1 .2 .1 D e m o c ra c y
D em ocracy is a highly contested concept.2 No political theory can claim to be

'dem ocratic' which does not value at least som e rights to a degree of political
participation.3 H owever, it is clear that there is significant disagreem ent as to
the point and core extent of such rights. There are two standard views on why
political participation is valued. One view values political participation and
dem ocratic principles instrum entally. It is a m eans of enabling people to obtain
things they w ant for them selves or for others in society. An alternative view
sees the point of participative politics not in achieving private goods but as an
im portant part of the full expression of m ankind's social and public personal
ity. Through political activity w e not only advance personal interests but, m ore
im portantly, w e express the public aspect of our nature w ithout which we are
incom plete and unfulfilled.
W hatever the purposes, there is also disagreem ent about the core extent of
dem ocratic participation. Political participation is valued to different degrees
and to different extents. O ne view asserts that society as a w hole is likely to
be richer, m ore peaceful and generally m ore successful if decisions about the
public good are taken by educated and skilled specialists in the arts of
governm ent - by political elites of one general political orientation or another.
The focus is on representative institutions and practices, above all, the
institutions of elections and Parliam ents and the political parties that support
them. The people go about their private daily lives and are for m ost of the time
politically disengaged and passive. The core requirem ent for dem ocratic
participation is regular elections to choose the elites w ho will then govern and
be the central actors of political life.4 Dem ocracy as a politically passive
population governed by elites recruited through representative institutions is
defended not only on grounds o f efficiency but also as the version of
dem ocracy that best describes the situation of political disengagem ent that
characterises m odern capitalist societies. It is interesting to note that the
European C onvention on H um an Rights does not contain any general right of
participation in public affairs but only a duty on governm ents to hold regular
elections for the country's legislature.5
For m any, representative dem ocracy, in som e version or other, is inad
equate.6 The representatives becom e too detached from the people they
represent and too engaged with their own independent agenda and way of
life. People are unable effectively to pursue their interests through the
representative schem e. Furtherm ore, political passivity and w ithdraw al is seen
as incom patible with the idea of full self-developm ent and with a healthy and
progressive society. O n this view , a properly dem ocratic society is one which
2 See, for exam ple: W eale, A. (1999) Democracy. London: Macmillan; Lakoff, S. (1996) Democracy.
History, Theory and Practice. Oxford: W estview Press; Carter, A. and Stokes, G. (1998) Liberal
D emocracy anil Its Critics. Cambridge: Polity Press; Arblaster, A. (1994) D emocracy, 2nd edn.
Buckingham: Buckingham University Press.
3 Lively, J. (1975) Democracy. Oxford: Blackwell.
4 On representative dem ocracy see: Schumpeter, J. (1982) Capitalism , Socialism and Democracy.
London: Routledge.
5 See Chapter 13.
6 Hirst, P. (1994) A ssociative Democracy. London: Polity Press.
valu es and gives institu tional su pport to d irect d em ocracy. P eople should be
able to decide directly, w ithou t the interv ention of representative institutions,
the issues w hich affect them . P eople should also be encouraged to develop
'extra-P arliam entary' form s o f political action such as pu blic cam paigning,
dem onstratin g and, if necessary, peaceful acts o f civil d isobedience. Such
activities are not con trary to d em ocracy bu t em bod y its spirit and p u rp o se /
O ther conceptions of d em ocracy, w hich also flow from a sen se o f d issatisfac
tion w ith sim ple representative politics, v alu e and w ish to expand the role of
self-gov erning associations in governing as m any aspects o f ou r social life as
possible.8
D isagreem ents abou t d em ocracy can also turn on w hether or not dem ocracy
requ ires 'm ajority ru le'. M ajoritarian d em ocracy auth orises the law to pu rsu e
w hatever ends are chosen by a m ajority for the tim e bein g.9 M ore usual is for
'd em o cracy ' to lim it m ajorities in term s o f fun d am ental rights o f ind ividu als,
particularly ind ividu als in m inority groups o f various kinds. Fu nd am ental
rights, at least to equal con cern and resp ect,10 need to be protected. M inorities
cannot b e m erely ignored or treated as a m eans to the end s o f the m ajority.
These are all com plicated m atters that w arrant m ore detailed treatm ent than
is p ossible here. To say that civil liberties law d eals w ith the reasonable scope
o f rights o f political p articipation raises question s about w hat 'd em ocracy '
requires. A rgu m ents abou t the law m ay reflect d eeper argum ents about the
best, the m ost approp riate, con ception o f d em ocracy that the law ought to
advance. Ju d ges faced, for exam ple, w ith a prosecu tion of political d em o n stra
tors un der public ord er legislation m ay need, perh aps, to evalu ate the
reasonablen ess of the d em onstrato rs' use o f the high w ay and the reasonable
ness o f the steps taken by the p olice to ensure that political protests can go
ahead w hen m easured against the freed om o f the pu blic to go about their
priv ate lives unhind ered. Such evalu ations will reflect the p articular con cep
tion o f d em ocracy that is adhered to, con sciou sly or by inference, by the court.
1 .2 .2 P r iv a c y
The second valu e that partially defines the scope and natu re o f civil liberties
law is privacy. T h e general idea is o f som e inviolable area that is, and should
rem ain, w ith in the control o f the ind ividu al p erson.11 T h is requ irem ent derives
from the broad , cultural, sense o f w hat it m eans to be a person. It is the
argum en t from 'au ton om y '. A bein g all o f w hose actions and d ecisions can be
7 Barber, B. (1994) Strong D em ocracy: Participatory Politics fo r a N ew A ge. Berkeley, C A : University

of California Press.
8 Hirst, op. cit.
9 Lively, op. cit., ch apter 2.
10 D workin, R. (1977) Taking R ights Seriously. London: D uckw orth, ch apter 6.
11 See J.S. Mill's m uch quoted d efin itio n :' . . . a circle around every individual hum an being which
no governm ent ought to be perm itted to overstep . . . there is, o r ought to be som e space in
hum an existence thus entrenched around and sacred from authoritative intrusion' (P rinciples o f
Political Econom y (1848; 1909) Longm an, Green & C o., book V, ch apter 9, 2). See also: W acks, R.
(1995) Privacy an d P ress Freedom . London: Blackstone Press, ch apter 1; Paul, E.F. el a l (2000) T he
Right to Privacy. C am bridge: C am bridge University Press; M arkesinis, B. (ed.) (1999) Protecting
Privacy. O xford: O xford University Press.
interfered w ith, who has no sphere of thought, decision and actions which
cannot be so interfered with, fails the test o f personhood. States m ust respect
this and so ensure that privacy is protected in law.
In civil liberties law, privacy acts in one of two ways. O ne is as a kind of
'trum p' argum ent. Privacy is a claim that the state should keep out of
regulating a particular m atter and leave it to the individuals involved. The
obvious exam ples relate to family life and to sexual life. It is for parents, and
not the state or the com m unity as a whole, to bring up their children and lead
them tow ards reasonable and fruitful lives. This claim is held by few, if any,
in an absolute sense. There is no com pelling reason why violence against
spouses, usually w ives, or against children is to any degree excused because
they are private matters. On the other hand, there is a continuing argum ent
on w hether the state, through law, is entitled to distribute its liberties and
resources in such a w ay as to prom ote particular w ays of life or form s of
fam ily existence. Should the state, for exam ple, prom ote heterosexual m arriage
over other form s of family life? Such an issue can be raised in a legal context
such as the law of adoption.
A second purpose that a claim to privacy m ay have is that the lawfulness,
the right of the state to intervene and regulate, depends on w hether the action
in question takes place in public or private. Sexual conduct is often seen in this
way. A sexual act in 'private' m ay be thought harm less and hence perm itted
w hile the exact sam e act in 'public' (how ever defined) m ay be prohibited.
Som e sexual m oralists, on the contrary, argue that certain kinds of sexual
conduct are so revolting in them selves that they can be prohibited, the claim
to privacy not withstanding. This issue is discussed in Chapter 22
Like 'dem ocracy', the m eaning and significance of 'privacy' is endlessly
contested.12 For exam ple, there is an ongoing argum ent on w hether private
property is necessary to any reasonable conception of privacy. On som e
accounts, the ow nership of goods and land is an expression of personality
which the state m ust respect in its dealings. An alternative view is that
property is a collective product, reflecting the activities of all, and its unequal
distribution is an exercise of social pow er w hich it is perfectly proper for the
state to regulate and control. Sim ilar controversies relate to the 'fam ily'. Fam ily
has traditionally been seen as the institutional em bodim ent o f privacy; the
state, through its law , m ust respect its boundaries. From other perspectives,
how ever, the fam ily is the particular form in w hich patriarchal social relations
are asserted and women generally subordinated to men and m arginalised in
econom ic life and civil society. On that view, the family is not 'private' but a
social institution, the focus of political struggle and legal regulation. The claim
of privacy becom es its opposite: a claim to exercise pow er at the expense of
w om en and children free from state and legal interferences. Even the most
intim ate acts, acts of sexual expression, can raise controversial political
argum ents about the right of the state to forbid or prom ote certain form s of
sexual expression rather than others.
12 For exam ple, Ryan, A. (1986) Property and Political Theory. Oxford: Blackwell.
8 H uman Rights and Civil Liberties
1.3 C o n s titu tio n a l an d p o litic a l th e o ry
The im plication of the above is that the 'values' underlying civil liberties law,
the values of 'dem ocracy' and 'privacy', are the subject of ongoing argum ent
and disagreem ent as to their m eaning and im plications. Part of that argum ent
involves the question of to w hat regard and to w hat extent these values should
be prom oted and protected by the law. An argum ent, say by judges, about
w hat the law should be in any particular instance is likely to reflect, even if
unw ittingly, a m ore general constitutional theory about the place of law and
the values inherent in it.13
Som e general political theories would, for exam ple, sim ply deny any
recognisable claim to dem ocracy or privacy. The concept of a totalitarian state
(linked to Stalinism or fascism ) is that the state is in principle unrestrained in
its right not only to control the conduct of politics but also to identify and
enforce a particular conception of how individuals should conduct their lives,
the values they should adopt and the sacrifices they should make. The absence
of a sense of 'the private' m akes it hard to see how any reasonable conception
of civil liberties can exist in the public discourse of state and law.
A broadly conservative political disposition values the traditions of the
established order. It supports and prom otes conventional political activity and
gradual change. It is, however, also am enable to strong state action against any
kind of ideological, radical politics w hich can be seen as a threat to gradual,
ordered change. Such action can appear oppressive and in need of special
justification in the context, say, of public order law or police powers. A
conservative political outlook underlying the law is also likely to accept that the
state need not be 'neutral' as between different views of what makes a good and
worthwhile life. Supporting the traditions of the public order can involve allowing
the selection and promotion of certain 'goods' as being inherent in the society and
what it stands for. Thus a conservative m ay, through the law, wish to prom ote
and protect particular social institutions and values such as the established church
or the preference for marriage as the proper form of family life. The argum ent in
favour of such protection and prom otion does not depend upon a reasoned
justification from first principles but, rather, on a factual claim about the central
place of such institutions in the historical and cultural identity of society.14
Liberal theory provides the strongest defence for a w ide conception of civil
liberties to be enshrined in constitutional principles and positive law.
Liberalism starts with a strong conception of private life: that individuals are
the best judges of w hat is in their ow n interest and of w hat is a valuable and
w orthw hile life. The state should only intervene in so far as a person's
activities restrict the equal rights and freedom s of others. Liberalism claim s to
be based on first principles: a political value is good because our reason tells
us so rather than because of long acceptance as part of the traditions of society.
13 Craig, P.P. (1990) P ublic L aw and D emocracy in the United Kingdom and the United States o f America.
Oxford: Clarendon Press; Loughlin, M. (1992) Public Law and Political Theory. Oxford: Oxford
University Press.
14 For exam ple, Oakeshott, M. (1991) Rationalism in Politics and O ther Essays. Indianapolis,
Indianapolis: Liberty Press; Scrutton, R. (2000) The M eaning o f Conservatism , 3rd edn. Basing
stoke: Palgrave.
The strongest m od ern defence o f liberalism argues for a con stitutional and
legal system w hich p rovid es the greatest am ou nt o f p ersonal, social and
political freed om fo r ind ividu als in so far as this can be equally av ailable to
all. T his aim is justified in abstract term s, not d ep en den t on the facts o f any
particular history or culture, as a choice that w ould be m ade if people could
choose u n d er fair and equal conditions. Such fair and equal con ditions of
choice are that people know that they are choosing a legal and constitutional
system w hich m u st prod uce law s w hich are fair to all w hatever their w ealth,
religion, race or personal character m ight be. The choice is ju stified in so far
as it is the system that w ould be chosen by m orally reasonable people seekin g
to base a p olitical system on fair p rinciples but w ho do not know how they,
personally, w ould be benefited .15 O ther versions of liberalism suggest that
activities should be only restricted by law and state not b ecau se they are
w orthless, trashy or revolting but solely becau se they are harm ful to others.
L iberalism also supports a strong con ception o f political rights such as
freedom o f expression and freed om o f association. This is pred om inantly as
an instrum en tal m eans by w hich ind iv id u als can pu rsu e their self-interest
through political and public m eans, though for m any liberals, political activity
is also an em bod im ent o f the kind o f active, socially aw are, person the theory
(in som e o f its versions) seeks to prom ote.
The broad liberal d efen ce o f state pow er is criticised on m an y grounds. In
particular, it is alleged that liberalism m isund erstand s and undervalues the
extent to w hich ind ividu als have identities w hich are rooted in com m u nities
and cultures and w hich determ ine, or at least strongly influence, the choices of
valu es and w ays o f life av ailable to ind ividu als or w hich they claim to be their
o w n .16 Partly this is an argum ent lead ing to the kind s o f con servative political
assu m ptions outlined above. H ow ever, it is also the basis o f m ore progressive
criticism . Liberal p erfectionism , for exam ple, asserts that it is reasonable for the
state to w ish to restrict or d en igrate certain p ointless con ditions o f life, like drug
ad diction, for exam ple, becau se they are incom patible w ith autonom y. They
close off the p ossibility o f futu re choices. C on versely the state m ay ad vance
form s o f life w hich prom ote the p ossibility o f useful and fruitful choices.
Fem inist politics is a d ifferent exam ple o f the kind o f com m u nitarian and
id entity-based criticism aim ed at the liberal tradition. O n this view , the liberal
focus on ind iv id u al freedom and the realm o f the p rivate, protected from state
intervention , can hid e oppression from the reach o f the law . T he exam ple of
fam ily life and its place in the pu blic o r priv ate w orld has been given above.
1.4 Human rights
The suggestion in this chapter is that civil liberties law revolves around the
related valu es o f d em ocracy and privacy, that these v alu es are, in them selves,
15 Rawls, J. (1972) A T heory o f Ju stice. O xford: Oxford U niversity Press; see also Barry, B. (1995)
Ju stice as Im partiality. O xford: C larendon Press.
16 For exam ple, Sandel, M.J. (1996) L iberalism an d the L im its o f Ju stice, 2nd edn. Cam bridge:
C am bridge University Press; Mulhall, S. and Swift, A . (1996) Liberals an d Com m unitarians, 2nd
edn. O xford: Blackwell.
con troversial and argued abou t and that u n derlyin g these argum en ts are
different general con ceptions o f law and con stitutions such as those w hich
w ere briefly sketched above.
Q uestion s about civil liberties law , about giving effect to d em ocracy and
privacy, are now overlaid w ith the concept of hu m an rights. In C h apter 2 w e
discuss the w ay in w hich hum an rights law is bein g integrated w ith, or even
taking ov er from , the traditional approaches o f English law to these questions,
and the process is illustrated in the rest o f the book.
1.4.1 The concept of human rights

The concept o f 'h u m an righ ts' relates to the idea o f certain freedom s,
understood as en titlem en ts, w hich are to be enjoyed by all persons on a basis of
equality, i.e. for the sufficient reason that they are p erso n s.1' T hese entitlem ents
or 'rig h ts' are fun d am ental in the sense that they should be protected by the
law even if those in pow er, or a m ajority o f the popu lation or o ther significant
interests, w ish them to be rem oved gen erally or from ind ividu als or groups. In
other w ords they should be protected even against strong argum ents that the
com m on good, the collective interest, w ould be benefited w ere they rem oved.
H um an rights, therefore, em bod y entitlem en ts and valu es inheren t in a kind of
su p erior law , a law w hich con ditions and m u st be taken into accoun t by the
processes o f m aking and pu tting the ord inary, positive, law into effect.
1.4.2 Issues and difficulties

Rights and other political claim s
A t the theoretical level, the notion o f hum an rights is controversial. T here is,
for exam ple, a strong objection to the very idea of valu es that trum p the
com m on good. It m ight be said that hum an rights are undem ocratic: they are
restrictions on m ajority rule. T his is not a strong arg u m en t sin ce it depends
upon an u n con vincin g accoun t o f d em ocracy as bein g solely and on all m atters
m ajority d ecision m aking. T he argum en t can, how ever, be m ore com plicated.
D efend ers o f hum an rights accept that rights are seld om , if ever, absolute. In
great em ergencies, for exam ple, it is often accepted that at least som e rights
can be m od erated or 'd erogated ' from . T here is, in principle, alw ays a need to
w eigh hum an rights against the com m on good, albeit the form er 'tru m p s' the
latter in all bu t extrem e situations. Even in n on-extrem e situ ations, one
claim ed right m ay need to be w eighed against som e other (free speech against
privacy, for exam ple). G iven this need to 'w eig h ' rights against the com m on
good or other rights, a hum an rights claim looks, to critics, increasingly like
any other political claim that m igh t be m ad e and ev erything turns on how
these ju d g m ents o f w eight and significance are m ad e.18 D efend ers o f hum an
rights respond by asserting that som e rights are indeed absolu te, or by
claim ing that the results o f such 'w eigh in g s', ev en in em ergency situ ations,
w ill be different, and better, if done in the term s o f a hu m an rights culture.
17 Jones, P. (1994) Rights. London: M acmillan.

18 For exam ple, Griffith, J.A.G. (1979) 'The Political C onstitution', 42 1 M LR 1.
The derivation o f hum an rights

There are difficulties w ith the d erivation o f hu m an rights, w ith how such
fu n dam ental en titlem en ts are identified. V ariou s possibilities can be can
vassed. A natu ral law approach, for exam ple, suggests that an interrogation of
our natures as hum an b ein gs w ill disclose a con ception of personhood and the
circu m stan ces u n d er w hich persons can flourish, and that these conceptions,
to m ake sense, m u st inclu de the basic idea o f (som e) hu m an rig h ts.19 Social
contract theorists, concerned w ith the origin and legitim ation o f governm ent,
con clud e that legitim ate gov ernm ent is based on the con sent o f the p eople and
this w ould not be given unless persons w ere secure in their basic rights.
For critics, the point is that any accoun t o f the d erivation o f hu m an rights is
d ep en d en t upon a prior acceptance o f a p articular, contested , theoretical point
o f view such as natural law or social contract theory. T h e argum en t for hum an
rights is, therefore, only as good as the gen eral political theory w hich supports
it - hu m an rights, like any other v alu e system , are not given but are disclosed
through a contested theoretical exercise.
The en forcem ent o f hum an rights and ju dicial politics

H um an rights involves the id entification o f fu n dam ental entitlem en ts w hich
are supposed to b e bind in g even on legislatures and governm ents. C h aracter
istically they are given u ltim ate effect through the courts rather than
Parliam ent. In a d em ocracy, albeit an im perfect one, this can be seen as
transferring ultim ate d ecision m akin g about im portan t social questions, to
unelected and u n recallable judges. T h e d evelopin g hu m an rights 'ag en d a', on
this account, involves the con tin uous narrow in g o f the range and type of
m atters that an elected assem bly can d ecid e and a d em onstration o f increasing
d istrust o f the p eo p le's representatives. Som e w ho m ake this criticism still
accep t the idea o f fundam ental rights but not as m atters 'abo v e' ordinary
politics and reserved for ju d g es to d ecide.20 In fact, m an y constitutional
approaches to hum an rights (including in the U nited K ingdom ) still reserve to
the P arliam en t the u ltim ate au th ority to enact law s even if they u n am bigu ou s
ly violate 'h u m an righ ts'. D efend ers o f hum an rights accept the p olitical role
for the judges. T h ey argue that a hum an rights culture involves a consid eration
o f the lim its to w hat d em ocratic governm ents and m ajorities can do, that this
involves a careful and reasoned con sid eration of the p rinciples involved and
for this the courts are, ind eed , m ost suited.
The content o f hum an rights

A cceptin g a p articular argum en t about the w ay in w hich hum an rights are
derived does not m ean that there is agreem ent about the con tent of those
rights, about the identity o f those en titlem en ts w hich are so fundam ental they
m u st be protected even against stro n g argum ents o f the com m on good to the
contrary. T he classic statem ents o f rights, such as found in the U nited N ations
D eclaration or in the E uropean C on vention on H um an Rights, list the so-called
'g reat righ ts'. These are civil and political rights inv olv ing, for exam ple,
19 See Finnis, J. (1980) N atural Law an d N atural Rights. Oxford: O xford U niversity Press.
20 W aldron, J. (1993) A Right-Based Critique of Constitutional Rights', 13 0 //.S 18.
freed om from o ppressive state actions such as torture or u n law fu l d etention,

rights o f privacy and rights to associate and to speak, particu larly in a political
context. T hese rights are pred om inantly 'n eg ativ e'. T hey describe actioiis
barred to state authorities. T h ey are o ccasionally 'p o sitiv e' but only in the
sense o f im posing a d uty on the state to ensu re that certain actions are barred
to com panies, fam ilies or ind ividuals.
C ritics argue that this classic conception of hu m an rights fails to express
the full ran ge of fundam ental hum an needs. T here is little reference to social
rights, such as rights to hou sing or to edu cation, in the classic hum an rights
docu m ents yet, for m any people, the righ t to an ad equ ate hom e m ay be far
m ore significant than, say, a right to freed om o f speech. Sim ilarly the classic
hum an rights agenda has little to say on protectin g the environm en t even
though it is hard to think o f a m ore fun d am ental interest that ind ividu als can
have than to live in a su stainab le environm ent. A different version of the
argum ent about the con tent o f hu m an rights is that the classic rights
instrum en ts have little to say on the 'w o rth ' o f rights. T h e po or and
disadvantaged m ay have little effective opportu nity to exercise their 'g reat'
rights to freed om o f expression, for exam ple. T h e arg u m en t is, then, that the
state should take p ositive steps to give access to the m edia throu gh requ iring
com m u nity bro ad castin g or throu gh rights o f reply and so on.21 D efend ers of
the classic hu m an rights p erspectiv e argue that social and environm ental
goals are likely to involve large state expen ditures and need careful ev alu
ation against a ran ge of issues and interests. A s such these m atters are
u nsu itable for 'h ard ', obligatory, hu m an rights law enforced b y judges, and
should be, indeed, the m eat o f norm al representative, d em ocratic politics and
the subject o f no m ore than 'so ft', m erely aspirational, international law . It is
now clear that there are significant d ev elopm ents in w hich social and
environm en tal issues are high on the agenda of international law. There is a
d evelopin g range o f both 'h ard ' and 'soft' international obligations on
m atters such as the environm en t, econ om ic d ev elop m ent and the situ ation of
children.
Rights and individualism

C ritics o f hu m an rights observe that the langu age o f rights can cou nterpoise
the in d ividu al against the com m u nity. It is a langu age o f entitlem en ts for
on eself rather than o f d uties tow ard s others, o f ind ividu al interests asserted
against the claim s o f the com m on good. Rights-talk, the argum en t goes,
reinforces these tensions and establish es them as conflicts in w hich the
ind ividu al is likely to be victorious rather than as social d ilem m as need ing
com p rom ise and settlem ent. The argum en t is used, fo r exam ple, by those w ho
w ish to stress the v alu e o f com m u nity d ecision taking w hich aim s at a
reasonable, con sensu s-based solu tion to social problem s. O n such a view ,
rights-based argum en ts w ill claim to trum p the consensu s view and, as such,
are an unw elcom e and un fair d istortion o f the p olitical process. The argum ent
is also put b y those w ho see rights claim s as b ein g a w eapon in the arm oury
21 For exam ple, Cam pbell, T. (1983) The Left an d R ights: A C onceptual A nalysis o f the Idea o f Socialist
Rights. London: Routledge.
o f the pow erfu l.22 C om p anies, inclu d ing huge com m ercial conglom erates,
enjoy at least som e 'h u m an ' rights and these can be used to inhibit the
d evelopm ent and enforcem ent of the general con sensu s that em erges from
representative politics. The obvious exam ple is the partial successes that
tobacco com panies have had in claim ing that their rights to freedom of
expression protect them from significant bans on advertising.
1.4.3 Positive law

The m atters d iscussed above have focused on w h eth er the hum an rights
perspectiv e is the best w ay to deal w ith im portan t issues such as how to give
effect to reasonable con ditions o f d em ocracy and privacy in society. This focus
is necessary becau se, throu ghou t the rest o f the book, the v alid ity o f a hum an
rights ap p roach is taken for granted. The point is that in the U nited K ingdom ,
as in m ost o f the rest o f the w orld, there is now an instrum en t o f positive law ,
the H um an Rights A ct 1998, w hich aim s, in its ow n p articular w ay, to establish
hum an rights and a cu lture o f hum an rights in the law . The detail of this, and
its integration w ith con ven tional com m on law and statute, form the substance
o f the follow ing chapters.
22 For exam ple, Ew ing, K. (1996) 'H um an Rights, Social D em ocracy and C onstitutional R eform /
and other essays, in G earty, C. and Tomkins, A. (eds), U nderstanding H um an R ights. London:
Mansell.
2
The institutional setting
2.1 The traditional approach in England and Wales
2.1.1 Parliament and the common law

T he trad itional approach to the protection o f rights and liberties in the U nited
K ingdom involves the in terrelation o f com m on law principles w ith the specific
interventions, throu gh legislation, o f a suprem e Parliam ent. It has its locus
classicus in the accoun t o f the rule o f law found in A.V. D icey 's Introduction to
the Study o f the Law o f the C onstitution1 w hich d escribed the late V ictorian
con stitution bu t w hich con tin ues to be high ly influential on the w ay the
fu n d am entals o f the curren t con stitutional arrangem en ts are understood. O n
this account, the prim ary background principle o f the com m on law is 'negative
freed om '. This is the sense that a p erso n 's freed om to do as he or she w ills is
the natural state, it is not derived from any law or act o f a sovereign. G iven
this, there is an assu m ption o f law fulness: anything is perm itted unless it has
been clearly forbidd en by law . D icey believed this w as likely to provide
effective protection for personal and political freed om becau se any restrictions
on freed om need ed to be based on ju d ge-d eclared or statu tory ru les w hich
needed to be identified w ith sufficient precision in ord er to d efeat the
presum ption of law fulness.
A con sid eration o f the effectiveness o f both the com m on law and Parliam ent
in protectin g personal and political freedom s involves a balanced ju dgm ent.
P arliam ent and the com m on law have both been cap able o f establishing
im p ortan t protections for civil liberties; they have both also been responsible
for significant inroad s into civil liberties as w ell.
2.1.2 Parliament
In D icey 's classic d efinition o f P arliam en tary suprem acy, P arliam en t can m ake
or un m ake any law , there is no higher legislative auth ority and no cou rt can
invalid ate an A ct o f P arliam en t.2 Im plicit in this is the absen ce o f any full 'bill
o f righ ts', a con stitutional recognition o f personal or p olitical freedom s,
expressed as rights, entrenched and im m u ne from legislative change.
1 D icey, A.V. (1885) Introduction to the S tudy o f the Lazo o f the C onstitution. Indianapolis, IN.: Liberty
Classics, part II, ch apter IV.
2 D icey, op. cit., p art I, chapters I and II.
The institutional setting 15
The strength of Parliam ent, as regards its suitability to protect the political
and personal liberties of the people, is that it represents the will of the
people as expressed through the electoral system . The governm ent is respon
sible to Parliam ent and so the power of the electorate to change the m ajority
party in Parliam ent, and hence the governm ent, w as, for Dicey, a defence for
freedom since no governm ent could oppress the people for long w ithout risk
of being voted out of office.3 The w eakness of Parliam ent in this regard is
that Parliam ent represents the m ajority interest and a Parliam ent which
represents the m ajority and which has unlim ited pow ers is, in principle, not
the best w ay of protecting the rights and liberties of m inorities and individ
uals. In the U nited Kingdom this problem is m ade significantly w orse by the
fact that the electoral system for national elections can produce m assive
Parliam entary m ajorities on the votes of under half of those w ho vote and,
given that only about tw o-thirds of those w ho are entitled to vote do so, the
Parliam entary m ajority m ay represent quite a small percentage of the adult
population.
Parliam ent is also the principal forum in which the governm ent, the
executive, is m ade to account for its actions. However, the m odern Parliam ent,
through the party system and m inisterial patronage, is dom inated by the
executive. M inisterial accountability is generally regarded as w eak and, as a
consequence, governm ent policy, including that w hich im pacts on civil
liberties, m ay be inadequately scrutinised.4 There have, how ever, been
significant im provem ents in the pow er of Parliam entary scrutiny over the last
decades. In particular, the developm ent of the departm ental select com m ittees
(now called Scrutiny Com m ittees) since 1979 has been m uch com m ented upon.
G eneralisations about the w eakness of m inisterial accountability are unlikely
to do justice to the com plex range of devices and institutions by which
Parliam ent directly as a whole or through its com m ittees, or indirectly through
its establishing of various agencies such as om budsm en, exam ines legislation
and scrutinises the executive.
N o clear judgm ent can be m ade on w hether or not Parliam ent really has
prom oted civil liberties w here possible and protected them w here necessary.
It is clear that m any of the most im portant hum an rights and liberties have
been established by Parliam ent and not by the courts. The extension of the
franchise to w om en, the establishm ent of anti-discrim ination law in respect of
race, gender and disability and the legalisation of trade unions are exam ples
of m ajor developm ents in civil liberties law done by Parliam ent often against
the hostility, indifference or conceptual incom prehension of the com m on law.
Yet, driven by the executive, Parliam ent has also enacted legislation which has
severely restricted civil freedom in a num ber of ways. Draconian legislation
has been rushed through Parliam ent w ith little interest show n in its im pact on
civil liberties. The Official Secrets A ct 1911 and the Prevention of Terrorism
(Tem porary Provisions) A ct 1973 are exam ples. O ther legislation has openly
violated rights, such as the rem oval of citizenship and rights of residency from
3 See Craig, P.P. (1994) A dm instrative Law. London: Sweet & Maxwell, chapter 1, section 2.
4 Turpin, C. (1989) 'Ministerial Responsibility - Myth or Reality', in Jowell, J. and Oliver, D. (eds),
(1989) The Changing Constitution, 2nd edn. Oxford: Oxford University Press.
E ast A frican A sians,5 or has increased the pow er of the police. M ost recently
P arliam en t has given the H om e Secretary a pow er to d etain certain foreigners
w ithout trial w ith appeal only to a special cou rt.6 The record is am bigu ous as
w ould be expected from an institution that m ust react to the endless flow of
circu m stan ces and changes o f public opinion.7
2 .1 .3 C o m m o n la w
C om m on law is ju d g e m ad e and is the un d erly in g law w hich is presum ed by

P arliam ent and w hich, in theory, is av ailable to cov er every possib le situation.
The com m on law is su bord in ate to P arliam en t w hich m ay, and som etim es
does, o verturn w ith legislation the legal rule on w hich a ju d g m en t is based.
M any o f the ab solu tely basic p ropositions o f civil liberties law have their
origins in d ecisions o f the courts. D eclaring the in com patibility o f slavery w ith
the law in E ngland 8 and holding that the gov ernm ent w as not above the
ord in ary law and could be sued for trespass, its assertion of the public good
notw ithstand ing,9 are w ell know n exam ples. U su ally, how ever, the strength of
the com m on law lies in the specificity and detail o f its ju d g m ents, the
un d erlyin g p rinciples o f law they infer and w ith the link w ith rem ed ies rather
than it does w ith prom oting m ajor social developm ents.
A s w ith Parliam ent, the com m on law record is tw o-sid ed. For every great case
in the cause o f liberty there have been cases in w hich the courts have failed to
rise to the challenge of protectin g liberties.10 In particular, the com m on law , by
speaking the langu age o f n eg ativ e liberty, has been un able to develop positive
rights in the civil liberties field, such as in respect o f the law relating to political
d em onstration s. The fun dam ental valu es the com m on law has trad itionally
d ealt w ith are property, the enforcem ent o f agreem ents, repu tation and fair
proced u res.11 As is clear from the chapters that follow , such m atters can have a
significant im pact on civil liberties, but it has also m eant that the com m on law
has found it difficult to m ake the law reach international standards in certain
significant areas. T he inability o f the cou rts to fashion, until recently, an
ad equ ately sophisticated right to privacy is the m ost obviou s exam p le.12
The com m on law has un dergone a great rev iv al d uring the second half of
the tw entieth century. T he v iew that the judges pu rsu e a con servative agenda
5 C om m onw ealth Im m igrants A ct 1962; see Lord Lester of Herne Hill (2002) T h irty Y ears on: the
East African Asians C ase Revisited', Public Law 52, Spring.
6 Anti-terrorism , C rim e and Security A ct 2001 - see C hapter 19.
7 See Klug, F., Starm er, K. and W eir, S. (1996) The Three Pillars o f Liberty. London: Routledge for
an analysis, prior to the com ing into force of the H um an Rights A ct 1998, of the extent to w hich
United K ingdom law m et international hum an rights standards.
8 S om ersett v S tew art (1772) 20 St Tr 1.
y Entick v Carrington (1765) 2 W ils 275 (1765) 19 St Tr 1029.
10 Late eighteenth-century persecutions of political radicals and the legal refusal to enable trade
unions to flourish or perm it votes for w om en in the late nineteenth century are exam ples.
Again, it is in the detail of judicial judgm ents that the true devil lies. See Klug, Starm er and
W eir, op. cit. for contem porary analysis.
" N oted in ibid.
12 For exam ple, K aye v Robertson [1991] FSR 62. Such a right is now being developed as the
com m on law adapts itself to the culture of hum an rights; see, for exam ple, D ouglas v H ello!
120011 2 All ER 289.
in the w ay they develop the law and exercised their d iscretion w ithin it13 is
m u ch harder to sustain today although alleg ations that the cou rts are too
'execu tiv e m ind ed ' m ay resurface in the con text o f the judicial response to
terrorism after the attacks in the U nited States on 11 Sep tem ber 2001. In
particular, the last d ecad e or so has seen the cou rts becom e sig nificantly m ore
'h um an rights aw are' in their ju dgm ents. This reflects cultural change but also
the 'flow ing in ' o f international law , above all European H um an Rights, into
the law. T h e b ringin g into effect o f the H um an Rights A ct 1998 enhan ces and
specifies this process. It m akes a huge difference to the language and the
ap proach o f the cou rts but w ill not necessarily bring about radical differences
in outcom e. The 'rig hts aw aren ess' by the ju d g es can be found in the w ay
statu tes are interpreted (see the next section ), on the d evelopm ent o f judicial
rev iew (d iscu ssed in C h ap ter 3) and in the w ay in w hich the com m on law has
been developed in areas such as d efam ation (see C h apter 11).
2.1.4 Statute and common law: the interpretation of statutes

A cts o f P arliam ent, in all their d etail, are often central to the w ay that
fu n dam ental rights and freed om s are recognised in the law o f the U nited
K ingdom . Statutes m u st be interpreted and it is the job o f the cou rts to do this
as they apply the general w ord s o f an A ct to the p articular circu m stan ces o f a
case. The trad itional ap proach o f the courts is to recognise P arliam en tary
suprem acy b y giving effect to an A ct even if, fo r exam ple, it involves a severe
restriction on fu n dam ental rights and freedom s. T he w ords o f Lord Reid in
M adzim bam uto v Lardner-B urke (1969) illustrate this ap proach and ind icate the
d ifficulty from a civil liberties point o f view :
It is often said that it w ould be u n con stitutional for the U nited K ingdom
P arliam en t to do certain things, m ean in g that the m oral, political and other
reasons against doing them are so strong that m ost people w ould regard it
as high ly im p rop er if P arliam en t did these things. But that does not m ean
that it is beyond the pow er o f P arliam ent to do such things. If Parliam ent
chooses to do any o f them , the cou rts could not hold the A ct o f Parliam ent
in v alid .14
Fu rtherm ore, the recognition o f P arliam en tary su p rem acy m eans it is im p oss
ible to entrench or establish an A ct w hich protects fundam ental rights against
express repeal. T h e cou rts have accepted the idea o f im plied repeal w hereby,
in the absen ce o f express w ords o f repeal, an incon sisten cy betw een an earlier
and a later statu te is resolved by the im plied repeal o f the earlier statu te1’’ or
by d isregard ing it to the extent that is necessary to give effect to the later
statu te.16
13 E arly edition of J.A.G. Griffith's The Politics o f the Judiciary contain the clearest statem ents of this
position (for exam ple, 2nd edn (1981) London: Fontana).
14 [19691 AC 645, 723.
15 V au xhall Estates Ltd [1932] 1 KB 733; Ellen Street Estates Ltd [1934] 1 KB 590.
16 G oodw in v Phillips 11908) 7 C LR 1, accepted as representing the law of England by the Divisional
C ou rt in T horb u m v Sunderland C ity C ouncil [20021 EW H C Adm in 195 [2002] 4 All ER 156.
H ow ever, a significant d ev elop m ent in the interpretation o f A cts of

P arliam en t can now be d iscerned. U nless an A ct o f P arliam en t is express and
u nam bigu ous on the point, it w ill not be interpreted as auth orising a serious
in terference w ith fun dam ental rights and freed om s w hich are recogised by the
com m on law or by international law. T his trend, w hich pre-d ates the H um an
R ights A ct 1998, can be seen in the w ay the d iscretionary p ow ers o f public
officials, derived from statute, are given effect and also from the w ay in w hich
subord in ate legislation is interp reted .17 The cou rts are also beginn ing to
recognise the existen ce o f 'constitu tional statu tes', taken to be m ore fun dam en
tal than others, w hich cannot be im plied ly repealed by later statutes. Exam ples
o f such statutes are M agna Carta, the Bill o f Rights 1688, the R epresentation
o f the P eople A cts and the H um an R ights A ct.ls T h e cou rts w ill requ ire express
and un am bigu ous w ord s in prim ary legislation b efo re the fun dam ental rights
found in such statu tes can be rep ealed .19
C om m on law recognition o f fun d am ental valu es can also be found in the
p resum ption s that are brou ght to bear on the interpretation of statutes.
P resu m ptions are m atters that the cou rts assu m e to be the case in the absence
o f express w ord to the contrary. M any p resum ption s are im portan t in civil
liberties law , such as that the C row n is n ot bound by legislation un less the A ct
expressly says so and that recognised rights cannot be rem oved other than by
express w ords. O f p articular im portan ce in the civil liberties con text is the
p resum ption that P arliam en t intends to legislate in a m an ner that is com p at
ible w ith the international obligations o f the U nited K ingdom . This is
d iscussed in the n ext section.
2.2 International law
T he U nited K ingd om is a signatory to m an y international agreem ents w hich

b ear up on civil liberties issues. T rad itionally, treaties and other international
agreem ents d ealt w ith d ip lom atic m atters and the high politics o f the relations
b etw een states. E conom ic and tech nological d evelopm ent and globalisation,
how ever, are creatin g circu m stan ces in w hich m u tual in terd ep en d en ce be
tw een states is b ecom in g increasingly necessary. T reaties are increasingly
d ealing w ith issues w hich are not only at the heart o f the political agenda but
w hich also have as their pu rpose the creation o f rights for ind ividu als. The
W orld T rad e O rganisation is an obviou s exam ple o f the form er and the U nited
N ations C on vention o f the R ights o f the Child is an exam ple o f the second. In
the U nited K ingdom international law cannot create rights directly enforceable
by the courts un less the provisions o f the treaty are enacted in an A ct of
17 See a powerful statem ent of the view in R v S ecretary o f State fo r Social Services ex parte join t
C ou n cil fo r the W elfare o f Im m igrants 11996] 4 All ER 385, 402 (m aintaining the w orth of the right
to claim political asylum ). The general principle is accepted by the H ouse of Lords in R v
Secretary o f State fo r the H om e Dept ex parte Sim m s anti an other [1999] 3 All ER 400 (the free speech
rights of prisoners); see also R v Lord C han cellor ex parte W itham [1997] 2 All ER 779 (the right
of access to the court). A w arning that the courts should not be too ready to discover
fundam ental rights is in R v L ord C han cellor ex parte Lightfoot [1998] 4 All ER 764.
18 Ibid.
19 Thorburn v S un derlan d C ity C ou n cil (2002] EW H C Adm in 195 [20021 4 All ER 156.
Parliam ent. The obvious exam ple is the EC T reaty, som e o f w hich creates
in d ividu al rights, and w hich is enforceable in the U nited K in g d o m 's courts
only throu gh the provisions o f the E uropean C om m u nities A ct 1972. In
contrast the provisions o f the E uropean C on vention on H um an R ights have
not been d irectly en forceable in the cou rts becau se of the absen ce o f any such
Act.
Thou gh the cou rts have no au th ority d irectly to enforce treaty provisions
un less these provisions have been incorporated into the law by A ct of
P arliam ent,20 they do accept that treaties can have a persu asive influence on
the w ay the law develops and statu tes are interpreted. The cou rts presum e a
P arliam en tary intention to legislate in a m an ner that is con sisten t w ith the
international obligations of the U nited K ingd om and an A ct o f Parliam ent
passed after a treaty has been entered into and d ealing w ith its subject m atter
is to be construed, if it can reasonably b ear the m eaning, so as to carry out the
treaty obligation.21 H ow ever, the courts w ill also give effect to the clear and
un am bigu ous w ords o f an A ct o f P arliam ent even if those w ords are
incom patible w ith, o r involve a breach of, international law .22
2.2.1 United Nations and the International Covenant on Civil and

Political Rights
T he U nited K ingd om is a signatory to a nu m ber of high ly im portan t
international agreem ents founded on the U nited N ations D eclaration of
H um an Rights 1948 w hich is itself a reflection o f the U nited N ations Charter.
T hese em an ations o f the U nited N ations have d one m ore than anything else
to establish the langu age o f hum an rights as the p rincipal form o f d iscou rse in
w hose term s civil liberties issues, such as political freed om and privacy, are
now given legal effect. T h e m ain instrum en t d ealing d irectly w ith the civil
liberties agenda is the International C o v en an t on C ivil and Political Rights
(IC CPR). T he IC C PR identifies a range o f rights. It con tain s an obligation on
states to protect these rights w ithin their bord ers, a requ irem ent o f n on
d iscrim in ation in respect o f the enjoy m ent o f the rights, a pow er of d erogation
in tim es o f em ergency from all bu t the m ost fu n dam ental o f the rights and a
prohibition on anyone using their C ov enant freed om s in o rd er to restrict the
freed om s o f others. T h e fu n dam ental rights and freed om s it identifies are: the
right to life, the prohibition of torture, the p roh ibition o f slavery and forced
labour, the righ t to liberty, the dignified treatm en t o f p risoners, the prohibition
o f im prisonm ent for breach of contract, the right to freedom o f m ovem ent, the
rights o f aliens, the righ t to fair trials, a ban on retrospective offences, the right
to legal status, the rights to privacy, freed om o f thought, con scien ce, religion
and expression , a ban on propagand a for w ar, the righ t to peacefu l assem bly
and to association, the right to m arry, rights o f child ren, the right to take part
in public affairs, the right to the equal protection o f the law s w ithout
d iscrim in ation and the rights o f m inorities. The C ov enant perm its states to
20 See, for exam ple, R ayn er (M incing Lane) Ltd v D epartm ent o f T rade [1990] 2 AC 418.
21 G arland v British Rail Engineering Ltd [1983] 2 AC 751, 771 per Lord Diplock.
22 R v Secretary o f State for the H om e D epartm ent ex parte Brind [1991] 1 AC 696.
restrict the exercise o f som e of the rights and freed om s enu m erated bu t only
in so far as these restrictions are based on law , are confined to the p u rsu it of
certain enu m erated purposes and m eet a threshold of necessity.
The principal enforcem ent m echanism un der the IC C P R is throu gh the
H um an R ights C om m ittee established by the C ovenant. States prod uce a
quinqu ennial report to the C om m ittee. The C om m ittee m ay com m ent on the
report on the b asis o f d iscu ssions w ith rep resentatives o f the states and
observations from others, in p articu lar n on-governm ental organisations. The
C o m m ittee's com m ents are publicised and it is the fear o f ad verse publicity
that is the m ain sanction behind the C ovenant. The H um an Rights C om m ittee
m ay, un der A rticle 40(4) o f the C ovenant, m ake general com m ents on the
requ irem ents for the d ifferent articles.23 There is an O ptional P rotocol to the
C ov enant b y w hich ind ividu als m ay petition the C om m ittee w ith an allegation
o f a violation. T h e U nited K ingd om has not acceded to this Protocol.
The C om m ittee has, in its last few review s, expressed seriou s reservations
about aspects o f the protection of hum an rights in the U nited K ingdom . The
situ ation, in its eyes, is m uch im proved by the com ing into force o f the H um an
Rights A ct 1998; n evertheless certain con cern s rem ain. T he 2001 Report
expressed con cern over such m atters as anti-terrorism legislation, racial
d iscrim in ation, the treatm en t o f asylum seekers, killings by security forces in
N orthern Ireland, the absen ce o f a public interest d efen ce un der the Official
Secrets A ct 1989, racial violence and the und er-rep resen tation of ethnic
m inorities in public life.24
2 .3 European Union law
The d irectly effective law o f the E uropean C om m u nity is integrated into the
law o f the U nited K ingdom and has suprem acy over incom p atib le or
incon sisten t provisions o f the d om estic law . Sim ilarly, the U nited K ingdom
gov ernm ent is obliged to pu t o ther C om m u nity obligations into legal effect
w hich, u n d er the E uropean C om m u nities A ct 1972, it m ay do by either
prim ary or subord in ate legislation. O blig ations u n d er C o m m u nity law are
enforced in the national cou rts bu t also throu gh the institutions of the
European U nion, the C om m ission in particular. E uropean C o m m u nity law ,
although focused on the d evelopm ent o f the single m arket, clearly bears upon
civil liberties issues in m any w ays, as do the other pillars, on C om m on Foreign
and Secu rity P olicy and on Police and Jud icial C ooperation in C rim inal
M atters, on w hich the U nion is founded. T his bearin g o f C om m u nity law and
U nion policy on civil liberties m atters is m ade all the m ore sig nificant given
the expan sion o f the legal basis o f com m u nity action follow ing the T reaty of
A m sterdam . C iv il liberties issues can be raised both in respect o f the w ay
national governm ents give effect to C om m u nity law and the w ay the
23 For exam ple, on A rticle 25 (right to participate in public affairs): G eneral C om m ent 25,
discussed in Davis, H. (2000) Political Freedom . London: C ontinuum , ch apter 2.
2-1 Fottrell, D. (2001) 'D eveloping H um an Rights Protection beyond the H um an Rights A ct', 151
7008 N LJ 1688.
institutions o f the U nion act.25 T h e use o f search pow ers in enforcin g

com p etition law , restrictions on the m ovem ent o f persons and fair trials are
exam ples o f such issues.
The problem has been that the original treaties on w hich the d evelopm ent
o f the E uropean C o m m u nity w as based did not in any d irect w ay im pose
legally enforceable obligations on both states and C om m u nity institu tio ns to
ad here to hum an and fundam ental rights w hen giving effect to C om m u nity
law. Sp ecifically, there w as no requ irem ent to act com p atibly w ith the
E uropean C on vention on H um an Rights,26 nor, u n d er those treaties, could the
U nion acced e, like a signatory state, to the C on vention.2' T h e position is
unchanged by the Treaties o f A m sterdam and N ice.
In som e m atters bearin g on civil liberties, like sex and other d iscrim ination,
the C ou rt o f Ju stice has full, T reaty-based ju risd iction to d evelop fundam ental
rights. O therw ise, the E uropean C ou rt o f Ju stice has, after initial reluctance,
d eveloped a ju risp ru d en ce o f 'gen eral p rinciples o f law ', w hich u n d erlie and
con strain the specific m easures o f C om m u nity law . T hese general principles
inclu d e a d octrine of fundam ental rights and are intended to have priority over
even the fu n dam ental con stitutional rights o f m em ber states.28 T h e European
C ou rt o f Ju stice has developed an ind ep en den t d octrine o f fundam ental rights
w hich involves m ore than ju st the ad aptation o f the E uropean C on vention on
H um an R ights (w hich rem ains highly influential29). The C ou rt is also guided by
the con stitutional trad itions of m em ber states30 and by international treaties
dealing w ith hum an rights o f w hich the m em ber states are signatories.
Fu nd am ental rights have been asserted by the C ou rt o f Ju stice against, first,
European institutions, particu larly the C om m ission. E xam p les are rights of
religion,31 privacy,32 property’3 and to fair trials.34 M ore controversially the Court
w ill also uphold fundam ental rights against m em ber states, but only w here they,
the m em ber states, are acting in the field o f C om m unity law , not w here they are
pu rsu ing ind ep en den t national objectives.35 In this con text rights to freedom of
expression ,36 to private life37 and to access to the cou rts38 are exam ples of
fun d am ental rights w hose relevan ce and ap plicability have been considered.
There are p roblem s w ith the ad equ acy o f protection for fun dam ental rights
in the E uropean U nion. In particular, the C ou rt o f Ju stice's ap proach is
conditioned by the need to ensure that the overall objectives o f the C om m u
nity, such as a com m on m arket and econ om ic integration, are fulfilled. These
policy o bjectives influence the w ay in w hich the m eaning and scop e of
25 Betten, L. and Grief, N. (1998) E U Law an d H um an Rights. London: Longm an.

26 An em anation of the Council of Europe, not the European C om m unity and Union.
27 O pinion 2/94 [1996] ECR 1-1759
28 Betten and Grief, op. cit.
29 For exam ple, H auer v Land R heinland-Pfalz (1981) 3 EHRR 140 ECJ.
30 No Id v C om m ission [19741 ECR 491.
31 Prais v C ouncil [19761 ECR 1185.
32 For exam ple, N ation al Panasonic (U K) Ltd v C om m ission [1980] ECR 2033.
33 For exam ple, H auer v Land R heinland-Pfalz (1981) 3 EH RR 140 ECJ.
34 For exam ple, M u sique D iffusion F rançaise v C om m ission [1983] ECR 1825.
35 For exam ple, SPU C (Ireland) v G rogan [19911 3 CM LR 849.
36 Ibid.
37 For exam ple, R utli v M inister o f the In terior [1975] ECR 1219.
38 For exam ple, Johnston v C h ief C on stable o f the RU C [1986] ECR 1651.
fu n dam ental rights are interpreted 39 and the con cern is that the protection of
fun d am ental rights in a E uropean con text m ay thereby be affected. T h e answ er
has been to d evelop a full and properly ground ed E uropean con ception of
rights. First, there has been the gradu al d evelopm ent and sp ecification in the
Treaties o f a com m itm ent by the E uropean C om m u nity and the E uropean
U nion to the up hold ing o f fundam ental righ ts.40 T he principal provision is
A rticle 6 o f the EU Treaty, originally inserted by the M aastricht Treaty. It
asserts that the European U nion is 'founded on' p rinciples o f liberty,
dem ocracy, respect for hum an rights and fundam ental freed om s and the rule
o f law. A rticle 46 brings these principles w ithin the ju risd ictio n o f the C ou rt
o f Ju stice. A rticle 6(2) incorporates support for the fun dam ental rights found
in the ECITR. A rticle 7 introd uces a sanctions procedu re for seriou s violations
o f hu m an rights by m em ber states. T he E uropean U nion T reaty also includes
recognition of a range o f fun dam ental social rights such as those found in the
E uropean Social C harter. M ost im portantly, there is now a detailed C h arter of
Fu nd am ental R ights w hich has been adopted by the U nion. T h e C h arter is not
part o f the d irectly effective law o f the C om m u nity but will have influence on
the C o u rt o f Ju stice and hence on the national courts w hich m u st follow the
E uropean C o u rt's rulings on E uropean law. The C h arter is too new for its
im pact to be assessed.
2.4 The European Convention on Human Rights
2.4.1 Introduction
The bringin g into force o f the H um an Rights A ct 1998 is the m ost im portant
d evelopm ent bearin g on civil liberties since the end of the Second W orld W ar.
The A ct gives further effect to the European C on vention on H um an R ights in
English law. Its full im pact on the su bstance o f English law rem ains to be seen.
W hat is clear is that it has b rou ght into p rom in ence a body o f law , the
E uropean C on vention on H um an R ights and the case law (the ju rispru d en ce)
associated w ith it, and has m ade it w id ely effective throu gh ou t the law o f the
U nited K ingd om , so that it m ust be referred to in E nglish law as setting
standards w hich E nglish statu te and case law m ust norm ally m eet. A bove all
it has affirm ed that the term s in w hich civil liberties issues are to be d ealt w ith
by the cou rts is in the langu age of rights.
Prior to the A ct, the C on vention and the C ou rt of H um an R ights w as already
av ailable to the people o f Britain and o f con sid erable influence on the law;
nothing in the A ct alters this. In w hat follow s w e discuss, first, the European
C on vention and its enforcem ent through the institutions o f the C ou ncil of
Europe and, second , the p articu lar w ay in w hich the H um an R ights A ct 1998
(an A ct o f the U nited K ingd om P arliam ent) operates. Finally, w e o utline the
C on vention rights to w hich the H um an R ights A ct refers. T he H um an R ights
39 For exam ple, on the need to interpret the right to property in the light of the fundam ental
objectives of the C om m unity: N old v C om m ission [1974] ECR 491.
Ifl There w as, in 1977, a joint declaration by Com m ission, Council and Parliam ent of an intention
to uphold fundam ental rights ([19771 OJC 103(1)). O ther statem ents to sim ilar effect followed.
A ct 1998 gives the C on vention rights a pervasive and integrated influence on

E nglish law and so, in this book, the d etail o f w hat the C on vention rights
requ ire is d ealt w ith w ithin the sep arate chapters.
2.4.2 The general scheme

The E uropean C on vention on H um an R ights41 (ECH R) is a principal creation
o f the C ou ncil o f E urope, not prod uced by the E uropean U nion. The C ouncil
o f E urope w as created in 1949 and has alw ays had a m uch larger m em bersh ip
than the European U nion. U ntil the early 1990s its m em bersh ip w as broad ly
o f w estern E uropean cou ntries but now has expanded to inclu d e R ussia and
other eastern E uropean cou ntries that used to be in the Soviet bloc.
W hile econom ic coop eration betw een G erm any and France w as the original
basis o f w hat has now becom e the E uropean U nion, the C ou ncil of Europe
sou gh t to establish a system for the protection o f rights and freed om s at the
European level based on the U nited N ations D eclaration o f H um an Rights.
The idea w as to have a statem ent o f rights and freedom s w hich w ould broad ly
reflect the term s o f the UN D eclaration and the political culture o f E uropean
states and, above all, to establish a court-based system through w hich
violations o f such rights by the state parties could be d ealt with.
It w as not expected that there w ould be a huge nu m ber of cases and it was
assum ed that the cases that w ould be brou ght w ould relate to gross and
system atic v iolation s o f rights, as is the point o f international law . The
signatory states w ould be d em ocracies, albeit im perfect ones, and m ost issues
w ould be p roperly dealt w ith by the national courts. T he institutions enforcing
the C on vention (the C om m ission and the C ou rt o f H um an Rights) w ere
part-tim e. T h ey took som e tim e to organise and it w as not until 1961 that the
C ou rt o f H um an Rights pronounced its first judgm ent.
An im portan t feature o f the C on vention system is the right o f individual
petition by w hich an ind ividu al, com pany o r other organisation can bring a
case against their ow n go v ernm ent allegin g a v iolation o f the C onvention. This
feature, unusual in international law , is the p rim ary explanation for the
d evelopm ent and expan sion o f the C onvention. From the 1980s onw ards the
nu m ber o f applications increased d ram atically leading, in 1998, to the
rem od elling o f the institutions on the basis o f a full-tim e court. The expansion
o f the w ork w as added to by the enlargem ent o f the C ou ncil o f E urope after
the end of the Cold W ar.
It is fair to say that w hat began as an attem pt to establish fun dam ental rights
in the con text o f the fear o f to talitarianism has developed into a form of
E uropean con stitutional cou rt against w hich the reasonablen ess o f the
m easures o f m ore or less d em ocratic societies, by no m eans under threat from
totalitarian forces, are m easured. C ritics o f the system have seen this as an
unw elcom e d evelopm ent that threatens the ability o f d em ocratic cou ntries to
determ ine the d etail o f their ow n law s.42 D efend ers o f the system have
approved the w ay in w hich, throu gh the C on vention system , international
41 The European Convention for the Protection of H um an Rights and Fundam ental Freedom s.
42 For exam ple, in M arkcx v Belgium (1979) 2 EHRR 330.
standards o f hu m an rights can be gen erally applied and high standards

m aintained. For the d efenders, an ad equ ate con ception o f d em ocracy cannot
be reduced to m ajority rule but m ust protect ind ividu al entitlem en ts to
participate in public affairs or to m aintain their privacy against even the
w ish es o f a m ajority.
2.4.3 The Convention

The C on vention has been added to and am ended by a series o f Protocols.
Protocol 11, w hich cam e into force on 1 N ovem ber 1998, bro u gh t about a m ajor
reorganisation o f the system and a con sequ ential renu m bering o f som e of the
m ain procedu ral and institutional provisions.
The gen eral obligation

The C on vention is signed by the governm ents of the states and signature
creates an obligation on the states (the 'H igh C on tracting P arties') to 'secu re to
everyone w ithin their ju risd iction the rights and freed om s defined in Section I
o f the C o n ven tion '.43 T h e rights and freedom s are, therefore, to be secured for
everyone, not ju st a p articular class such as citizens. States cannot d eny rights
to a group by w ithd raw ing citizenship and so rem ov e them from the
protection o f the Convention.
The su bstan tive rights

Section I includes a statem ent o f p articular rights and freedom s w hich are
contained in 12 A rticles. T h ese su bstantiv e rights have been added to by a
nu m ber o f Protocols. T hese substantiv e rights are the C on vention rights w hich
are sched uled to and given effect by the H um an Rights A ct 1998 and they are
identified later in the chapter. Su bstantive rights in the Fou rth and Seventh
P rotocols have not been sched uled to the A ct. T hese are, in the Fourth
Protocol, 'P rohibition of im prisonm ent for d ebt', the right to 'F reed om of
m o v em en t', 'P rohibition o f expu lsion o f n ationals' and 'P rohibition o f collec
tive expu lsion o f alien s'; the Seventh P rotocol gu arantees 'P roced u ral safe
gu ard s relating to the expu lsion o f alien s', the 'R igh t o f appeal in crim inal
m atters', 'C om p ensation for w rongful con v ictio n ', the 'R igh t not to be
punished tw ice' and 'E quality b etw een sp ou ses'.
The ancillary rights

Section I, A rticles 13 to 18 contain rights w hich are ancillary to the substantive
rights. A rticle 13 places an obligation o f the signatory states to ensu re that a
rem edy is av ailable from national cou rts for a violation o f a sub stantiv e right
or freedom ; A rticle 14 requ ires that the substantive rights m u st be secured
w ithout d iscrim in ation; A rticle 15 allow s a state party to 'd erogate' from m ost
bu t not all provisions o f the C on vention 'in tim e o f w ar or other public
em ergency threatening the life o f the n atio n '; A rticle 16 perm its the states to
lim it certain freedom s in o rd er to p lace 'restrictions on the political activ ity of
alien s'; A rticle 17 denies the protection o f the C on vention to any state, group
43 Article 1 ECHR.
or person w ho w ish es to use a righ t or freed om gu aranteed by the C on vention

in o rd er to d estroy the rights and freed om s o f others, and A rticle 18 lim its the
pow ers enjoyed by states to restrict rights and freed om s un der the C onvention.
These rights are consid ered in greater detail in the section b elow d ealing w ith
the C on vention rights and freed om s w hich have been sched uled to the H um an
R ights A ct 1998. It should be noted that A rticles 13 and 15 are not so
scheduled.
N on-signature, reservation and denunciations

N ot all the states w hich signed the original C on vention are signatories to all
the P rotocols and if they have not signed they are not bound. Sim ilarly, states
m ay, w hen agreeing to the C on vention or a Protocol, enter a specific
'reserv ation ', un der A rticle 57. T he effect is that the state is not boun d to the
extent o f the reservation. R eservations m ust be specific to a particular
provision. States m ay be responsible for the foreign affairs o f other territories
and m u st take specific m easu res to bring the C on vention into effect in those
territories. The U nited K ingdom has such resp onsibilities for the Isle of M an,
the C h annel Islands and G ibraltar. A state can cease to be bound by the
C on vention if it eith er leaves the C ou ncil o f Europe or if it takes step s to
'd en ou n ce' the C onvention. D enu nciation cannot take place w ithin the first
five years follow ing signature.44
2.4.4 The Strasbourg institutions and procedure

The great strength o f the E uropean C on vention is its system for ad jud ication
and enforcem ent. O riginally there w as a tripartite system . T he European
C om m ission o f H um an Rights, assisted by the Secretariat, w ould receive
ap plications, decide on ad m issibility, seek facts, explanations and responses
from the parties, in p articular the states, and give an opinion on w hether, in
respect of ad m issible cases, there had been a v iolation o f the C onvention. The
C om m ission could then bring a case to the C ou rt o f H um an R igh ts and this
institution w ould then m ake the final ru ling on w hether there had b een a
violation. T he C om m ittee o f M inisters o f the C ou ncil o f E urope could m ake
ju d gm ents on cases w hich the C om m ission had not referred to the C ou rt and
it also acted as a body through w hich enforcem ent o f ju dgm ents, by d iplom atic
and political m eans, could be pursued.
Protocol 11, w hich w as brou gh t into effect in N ovem ber 1998, changed the
structure. T he C om m ission w as abolished and its role taken over by an
enlarged, full-tim e C ou rt assisted b y the R egistry and secretaries. The role of
the C om m ittee o f M inisters is unchanged . A lth ou gh abolished , the decisions
and reports of the C om m ission on ad m issibility and substance rem ain an
im portan t sou rce o f C on vention law.
The Court
The m od ern C ou rt is established u n d er Section II of the C onvention. The full
cou rt has as m any ju dges as there are H igh C on tracting Parties to the
44 Article 58 ECHR.
C on vention and, generally, each P arty supplies one judge. Ju d ges m u st be of

high m oral character and qualified for high judicial office. T h ey sit as
ind ep en den t ind ividu als and not as representatives o f their countries. T h ey are
elected b y the P arliam en tary A ssem bly from a list o f three supplied by each
Party. T h ey are elected for a period o f six years and cannot be dism issed other
than by a vote o f tw o-third s of the other ju d ges.45
A Plenary C ou rt o f all the ju d g es elects the P resid en t o f the C ou rt and has
other organisational functions. The w ork o f the C ou rt is d one by C om m ittees
o f three ju d ges, C h am bers o f seven ju d g es or a G rand C h am b er o f 17 judges.
A dm issibility
C ases can be b rou ght to the C ou rt eith er by a state party alleging a violation
by another state p arty or by 'an y person, non-governm ental organisation or
group o f ind ividu als claim ing to be the v ictim o f a violation . . / 4<’ N o case can
be heard unless it is adm issible. The ad m issibility of inter-state applications is
decided b y a C h am ber o f the C ourt. A d m issibility o f individual applications,
w hich form v irtually all applications, is decided by eith er a C om m ittee or a
C h am ber if a C om m ittee is not unanim ous.
The m ain rules o f ad m issibility are in A rticle 35. U nless circu m stances
ju stify otherw ise, an ap p lican t need s to exh au st d om estic rem ed ies. U sually
this m eans that the ap p lican t m u st have obtained a ru ling from the
approp riate high est cou rt in their cou ntry before ap p roaching Strasbourg. A n
application m ust be m ade w ithin six m onths o f the final d ecision on the m atter
bein g taken. The C ou rt cannot deal w ith ind ividu al applications w hich are
anonym ou s or w hich raise issues su bstantially the sam e as issues alread y dealt
w ith by the C ou rt or by other system s o f international law and adjudication.
Finally, the C ou rt m u st reject as inad m issible applications w hich are 'in co m
patible w ith the provisions o f the C on vention or the Protocols thereto,
m an ifestly ill-founded , o r an abuse o f the righ t o f ap plication'.
A pplication s m ay be incom patible w ith the C on vention for a nu m ber of
reasons including, for exam ple, that they allege a v io lation o f a right or
freed om the C on vention does not protect. A n ap p lication m ay also be
incom patible w ith the C on vention becau se the ind ividu al applicant does not
have standing or is not a 'v ictim o f a v iolation ' as that term is understood by
the Court. T h is is an im portan t issue that is d iscussed belo w in the con text of
the H um an Rights A ct 1998.
Friendly settlem ent

If a case is ad m issible, the C ou rt w ill seek inform ation and explanation from
the parties. In p articular the C ou rt m ay try to achiev e a friend ly settlem ent
w hich m eans that the case is stru ck out and only a b rief statem ent o f facts and
the solu tion is given. The d anger is that state parties m ay be able to strike
bargain s w ith ind ividu als, perhaps by paying com pensation or d ealing w ith
specific issues, and hence avoid pu blic responsibility for w hat m ay have been
a seriou s or is a con tin uing violation o f hum an rights.
45 Article 24 ECHR.
46 Article 34 ECHR.
H earings, ju dgm en t and rem edies

A d m issible cases then proceed to a full con sid eration o f the m erits. T his is
norm ally by a C h am ber o f the C ourt. Difficult cases can b e referred to the
G rand C ham ber. The d ecision of a C h am ber is final although, un der A rticle 43,
there is the possibility of the G rand C h am ber accepting difficult cases for
reconsid eration. The C ou rt gives reasons for its decisions. Financial com p ensa
tion in the form o f 'ju st satisfaction' as w ell as costs m ay be aw arded against the
state Party. T h e H igh C on tracting Parties have agreed to abid e by the ju dgm ent.
The ju d g m en t is transm itted to the C om m ittee o f M inisters w hich supervises its
execution throu gh the political and d ip lom atic m eans available to it.
2.4.5 The impact of the Convention on English law

Prior to the com ing into effect o f the H um an Rights A ct 1998, the E uropean
C on vention on H um an R ights had alread y had a m ajor im pact on the law of
the U nited K ingd om .T he im pact can be discerned, first, in the changes to the
law or to ad m inistrativ e practices that w ere m ad e necessary by ad verse rulings
from Strasbourg. T h e statu tory regim e that d eals w ith teleph one tapping and
surveillance, now u n d er the R egu lation o f Investigatory P ow ers A ct 2000, is
based on a response to such ad verse rulings.47 T here are m any other exam ples
and they are d escribed in m ore detail throu ghou t the book. Second , the
C on vention has influenced the w ay in w hich the cou rts have developed the
com m on law and the in terpretation o f statutes. W ell before the com ing into
effect o f the H um an Rights A ct 1998 it had been com m on for the C on vention
to be cited in cou rt and for ju dges to be asked to seek com p atibility w ith the
C on vention in their ju dgm ent.48 T h e response w as not to incorporate the
C on vention throu gh the back d oor but to develop the p rinciples o f statu tory
in terpretation, ad m inistrativ e law and the com m on law generally, in w ays
w hich recognised 'fu nd am ental righ ts'. In the cases the ju d g es can be found
som etim es referring to the C on vention and at other tim es referring to
'fu nd am ental righ ts' w hich are inherent in the com m on law. It is com m o n
place to find ju d g es expressin g the v iew that there are few , if any, significant
differences b etw een C on vention rights and the com m on law. For exam ple, it
has been accepted that am bigu ity in statu tes can be resolved by reference to
the C on vention49 or to a p resum ption that P arliam ent, in the absen ce of
express w ords to the con trary, intend s to legislate in a m an ner com patible w ith
the U nited K in gd o m 's international obligations.30 P rior to the H um an R ights
A ct 1998, the cou rts w ere alread y prepared to invalid ate second ary legislation
on ground s o f incom p atibility w ith fundam ental rights.51 In the area o f judicial
review o f ad m inistrativ e action, the sam e recognition o f fundam ental rights,
m irrorin g C on vention rights, can be found in relation to the legal test for the
47 For exam ple, M alon e v U nited Kingdom (1984) 7 EHRR 14; H alford v U nited Kingdom (1997) 24
EH RR 523.
48 See H unt, M. (1997) Using H um an R ights Law in English C ourts. O xford: H art Publishing.
49 R v Secretary o f State for the H om e D epartm ent ex parte Brind [19911 2 W LR 588 (H L).
50 G arland v British R ail Engineering Ltd [1982] 2 All ER 402, 4 15, per Lord Diplock.
51 R v S ecretary o f State fo r the H om e D epartm ent ex parte S im m s an d an other [1999] 3 All ER 400 HL,
per Lord Hoffman, 412.
reasonablen ess o f the d iscretionary actions o f m inisters and other public

officials. M inisters had alread y been expected to be m eeting C on vention
standards,52 or at least to give a fully reasoned explanation, ind icatin g that all
relevant m atters pertaining to C on vention rights had b een taken into account.
In the end, though, the C ou rt w ould not su bstitu te its ow n v iew o f w hat the
C on vention required for that o f the m inister.53 Finally, although the C o n ven
tion 's prim ary influence has been on the 'v ertical' relation ship o f state and
citizen, it has also had an im pact on the w ay the com m on law , inclu ding
ord in ary priv ate law , has developed. Even prior to the com ing into force of
the A ct, the law o n m atters such as d efam ation and breach o f confid ence w as
influenced by the com m on law 's d ev elop in g sense o f fun dam ental rights.34
2.5 The Human Rights Act 1998
2.5.1 The background

Throu gh ou t the last qu arter o f the tw entieth cen tury there w as a d eveloping
sense o f dissatisfaction w ith the effectiveness of the institutions o f Parliam ent
and the com m on law in prov id ing protection for political and civil freed om in
the U nited K ingdom . T his arose partly from con stitutional law yers and
theorists for w hom the argum ents w ere pred om inantly institutional, focusing
on the various alleged w eaknesses o f the p olitical and con ven tional unw ritten
constitution, o f P arliam ent and o f the com m on law such as d iscussed earlier
in this chapter. The argum ents w ere reinforced by reference to various political
events, such as the m iners' strike or the peace m ov em ent, and to the response
by the state they engendered . For critics these m atters, coupled w ith the
institu tional w eaknesses o f P arliam en t and the cou rts, created a sense o f civil
and political freedom being u n d er threat.55
Those dissatisfied w ith the situ ation also recognised that in a nu m ber of
situ ations U nited K ingd om law seem ed to be falling behind international and
regional stand ard s as set, for exam ple, through the U nited N ations o r the
C ou ncil o f Europe. This point w eighed heavily w ith a nu m ber o f sen io r ju dges
w ho contributed significantly to the debate.56 In p articular it w as seen as
increasingly ind efen sible that although the U nited K ingd om w as a signatory
52 For exam ple, regarding decisions affecting life sentence prisoners: R v Secretary o f State fo r the
H om e D epartm ent anti the P arole Board ex parte N orn ey (1995) 7 A dm in LR 861 [19961 COD 81.
53 R v M inistry o f D efen ce ex parte Sm ith [1996] 1 All ER 257, C A ; R v Lord SaviUe an d others ex parte
^ an d others [1999] 4 All ER 860, CA.
54 For exam ples D erbyshire C ounty C ouncil v Tim es Neiuspapers Ltd [1993] 1 All ER 1011 (H L)
(defam ation); Douglass v H ello! [2001] 2 All ER 289 (breach of confidence).
55 See, for exam ple, Ew ing, K. and G earty, C. (1990) Freedom under Thatcher. C ivil Liberties iti M odern
Britain. O xford: Clarendon Press. A concern for civil liberties did not, as this book illustrates,
necessarily im ply the desirability of som e form of a bill of rights. Cf. D workin, R. (1990) A Bill
o f R ights fo r Britain. London: C hatto & W indus.
56 See, for exam ple, the contributions of the following judges to the debate: Lord Bingham (1993)
T h e E uropean C onvention on H um an Rights: Tim e to Incorporate', 109 LQ R 390; Lord
Browne-W ilkinson (1992) 'The Infiltration of a Bill of Rights', PL 397; Lord W oolf (1995) 'Droit
Public - English Style', PL 57; Lord Steyn (1997) 'The W eakest and Least D angerous D epartm ent
of G overnm ent', PL 84. The debate about a bill of rights w as, in m any w ays, started by Lord
Scarm an's 1974 lecture E nglish Law - the N ew D im ension. London: Stevens.
to the E uropean C on vention on H um an Rights, the rights and freed om s it

protected w ere not d irectly protected by the courts. It w as em barrassing that
the cou rts m ight, becau se of a rule o f E nglish law , have to deny a rem ed y to
a party in the full kn ow led ge that the C on vention w as b ein g v iolated and that
the party w ould have to pu rsu e a long and expen sive rem ed y before the
Strasbou rg institutions.
A rgum ents fo r a bill o f rights

The solu tion for m an y lay in the enactm en t o f som e type o f 'bill or righ ts' - a
w ritten, legally based form o f hum an rights protection that could be enforced
in the courts. Such an ap proach w ould bring greater certain ty to the question
o f w hat w ere the fun d am ental rights that all w ere to enjoy, it w ould provide
a m echanism for the d irect and explicit enforcem ent o f such rights, it w ould
requ ire the state to take proper and approp riate step s, as n ecessary, to protect
such rights and it w ould be a m eans for enhan cing the com p atibility of U nited
K ingdom law w ith international and regional standards.
A rgum ents against a bill o f rights

It is im portan t to stress that, by no m eans, w as there a clear consensu s in
pu blic opinion in favour o f som e form o f bill o f rights. Im portant argum ents,
still o f general im portance, w ere m ounted against the proposal. O pponen ts of
a bill of rights w ere (are) not against im proving m eth od s for recognising and
protectin g p olitical and civil freed om s; rather they argue that such protection
should be given effect through the general political processes of a d em ocratic
polity rather than by relying on the cou rts and som e m ore or less entrenched
legal instrum ent.57 The essence o f the argum en t is that legal-rights talk fails
fully to recognise the con troversial n atu re o f the freedom s expressed as hum an
rights. Ju stice, as em bodied in hum an rights, is not a general com m u nity value
but a contested value w hose con tent is disputed by a range of different social
and political interests. T here is no agreem ent over the con tent o f rights except,
perhaps, at the m ost ab stract level. G iv en the different interests at stake, it is
a m istake (it is undem ocratic) to leave the w o rkin g out of such argum en ts to
the judges. C laim s o f rights are like any other p olitical claim and should be
decided throu gh the general p olitical system o f pressure groups, parties,
Parliam en ts and protest; the d em ocratic process should not be foreshortened
by recourse to the court.
Su pp orters o f a bill o f rights w ill, o f course, answ er these charges. Som e
freed om s, such as freedom from torture, are, ind eed , alleged as fundam ental
and absolu te; bill o f rights supporters m u st accept, to m ention the old
exam ple, that torturing the bom ber to m ake him d isclose the w hereabou ts of
the bom b and thus, perhaps, save m an y lives, is im perm issible. O ther claim ed
rights, to freed om of speech, for exam ple, are, ind eed , con troversial in their
scope and m eaning. Bill o f rights supporters w ill argue that such con troversies
are p roperly resolved in court. First, the court is open to a m ore careful and
principled consid eration of the issues than are the party political processes
57 See Ew ing and G earty op. cit.; Griffith, J.A.G. (1979) 'The Political C onstitution', 42 1 M LR 1;
M cClusky, J.H. (Lord) (1986) Imw , Ju stice an d D em ocracy. London: Sw eet & M axwell.
w here interests, irrelevan t to the issue in hand, m ay be decisive. Second,

d em ocracy does not red uce to m ajority rule. The right m ay relate to the
interests o f a m inority or an ind ividu al and there is no reason to have
confid ence in the m ajority, throu gh the institutions they control, d ealing fairly
w ith the m atter.
The argum en t con tin ues at an abstract level. From the p erspectiv e o f civil
liberties law in m od ern Britain it is now resolved, as a m atter o f policy, by the
enactm ent of the H um an Rights A ct 1998.
2.6 The main terms of the Human Rights Act 1998
2.6.1 Convention rights, section 1

The point o f the H um an Rights A ct 1998 is to give further effect in the law of
the U nited K ingd om to the m ain, substantive rights found in the E uropean
C on vention o f H um an Rights. Section 1 o f the A ct identifies the 'C on ven tion
R igh ts' involved w hich are found in Sch ed u le 1 to the Act. T hese are the
substantive rights (first, the rights found in A rticles 2 to 12, A rticle 1-3 of the
First Protocol and A rticle 1-2 o f the Sixth Protocol) as read in the light o f the
ancillary rights (A rticle 14, A rticle 16, A rticle 17 and A rticle 18). R eservations
and derogations m ad e by the U nited K ingd om are identified and have effect
in respect o f the A ct.58 Sections 14, 15 and 16 p erm it the introd uction o f new
d erogations and reservations and the w ithd raw al or am en d m en t o f existing
ones.59 Sin ce the A ct introd uces an extensive rem ed y for v iolation s of
C on vention rights, A rticle 13 E C H R (Right to an effective rem edy) is excluded
from the sched uled rights.
2.6.2 Consistency with the Strasbourg jurisprudence, section 2

Section 2 o f the 1998 A ct requ ires U nited K ingd om courts to 'tak e into account'
the w ay in w hich the Strasbou rg institutions, in clu ding the now d efu nct
C om m ission , have interpreted the C on vention and the rights and freed om s it
describes. U nited K ingd om cou rts are not, how ever, bound to follow the
Strasbou rg v iew and, therefore, it is possible for a d istin ct 'B ritish' approach
to hu m an rights to develop. Too m u ch d ivergen ce betw een the B ritish view
and Strasbou rg w ould be u n desirable, at least if the d iv erg en ce w as in a
state-friend ly d irection, sin ce then the problem the H um an R ights A ct 1998
w as designed to prevent, o f people having to go through the long and
expen sive bu siness o f an application to S trasbou rg to obtain their rights u n d er
58 Section 1(2) and ss. 1 4 ,1 5 and 16 w ith Schedule 3, H RA 1998. The United K ingdom has reserved
its position in respect of p art of the right to education under Article 2 of the First Protocol. A t
the tim e of enactm ent the United K ingdom had derogated from part of A rticle 5 in respect of
the length of time terrorist suspects could be detained w ithout having the legality of detention
tested before a judge. That derogation w as rem oved by reference to the T errorism A ct 2000.
59 The A nti-terrorism C rim e and Security A ct 2001, passed after the attacks of 11 Septem ber 2001
in the United States, provides for a new derogation in respect of the pow er of detention w ithout
trial.
the C onvention, w ould be reinvigorated.60 The v iew of the H ouse o f Lords is

that section 2 requ ires the cou rts to follow the Strasbou rg in terpretation and
ap p roach unless there are special circu m stan ces prevailing.61 A d op ting the
Strasbou rg ap proach to the C on vention m eans taking on the interpretative
style o f the Strasbou rg C ou rt.62
An evolving docum ent

The C on vention is a con stitutional, hum an rights d ocu m ent w hich should be
read as such rather than be su b ject to the narrow , literal ap p roach w hich,
perhaps, is typical o f the w ay A cts o f P arliam en t are read. T he Strasbou rg
C ou rt, for exam ple, takes an 'ev o lu tiv e' approach to the C onvention. The
legislative history o f the C on vention can be referred to and past d ecisions will
often be follow ed. H ow ever, the C ou rt is not bound by a strict rule of
precedent and m ay dep art from its earlier d ecisions if the ju stice o f the case
so requires. C on vention standards evolve in line w ith com m on E uropean
standards and these m ay change over time. The evolu tive approach has its
dangers. It is understood as a p rogressive d octrine w hich expan d s the rights
and freed om s enjoyed as E uropean political culture, in a post-C old W ar w orld,
becom es m ore liberal. If this liberal political, social and cultural tend ency w as
to go into reverse, how ever, then, on the ev olu tiv e approach, the interpretation
o f the C on vention ought to m ean that the rights and freed om s the C onvention
protects should be given a m ore restrictive, state-friend ly, scope. A t the very
least, the core o f the rights and freed om s, their 'essen ce', as the C ou rt says,
need to be upheld w hatev er the p olitical, social or cultural d evelopm ents m ay
be.
Legality
O ne o f the m ost im portan t con cepts accepted by the cou rts is that the
C on vention em bod ies the principles o f the ru le o f law or legality. The
underlying idea is that the state should only act in w ays w hich restrict hum an
rights on the basis o f prom ulgated rules, and that these rules should be
sufficiently p recise to enable a person to foresee the circu m stan ces in w hich
the state m ay act restrictively against him or her. This is a princip le o f great
practical im portan ce and is discussed at various places later in the book.
P ositive duties
The cou rt also recognises that, in o rd er to protect and give effect to the rights
and freedom s it identifies, the C on vention requ ires states to take positive steps
rather than m erely d esist from a practice. T hese p ositive d uties are identified
at approp riate places in the text. They inclu de not only the idea that the state
m u st ad opt certain practices in its ow n behaviou r but also m ay be required to
60 The right of individual petition to Strasbourg is not limited by the Act. States have no right to
'appeal' to Strasbourg in order to try and reverse a decision of their national courts on a
Convention m atter.
61 R (on the application o f A lcon bu ry D evelopm ents Ltd) v Secretary o f State fo r the Environm ent,
Transport an d the Regions [2001] 2 All ER 929 H L, 969 per Lord Slynn.
62 Pannick, D. (1998) 'Principles of Interpretation of Convention Rights under the H um an Rights
A ct and the Discretionary Area of Judgm ent', PI. 545 (W inter), pp. 5 4 6 -8 .
change the law in ord er to regulate the behav iou r o f others inclu d ing
ind ividu als and com panies pu rsu ing their priv ate interests. In this w ay the
C on vention develops its 'h orizo n tal' effects on 'p riv ate law '.
The m argin o f appreciation

As an international court, the E uropean C ou rt o f H um an Rights allow s an area
o f d iscretion to the national courts and auth orities over the standards and
norm s by w hich the rights and freedom s in the C on vention are protected . This
is know n as the 'm argin o f app reciatio n'. T hu s the n atu re and scope of, for
exam ple, the voting system or law s against porn ograph y63 m ay vary from
cou ntry to cou ntry w ithou t the C on vention being violated. D espite such a
tolerance o f d ifferent standards, the C ou rt insists that the essence o f the right
m u st be m aintained and over this the C ou rt has the final w ord .64 T h e m argin
o f appreciation is applied differently in respect o f d ifferent A rticles. It is m ost
pronou nced in respect of rights, such as the right to freed om o f expression
un d er A rticle 10, w hich expressly allow restrictions for certain purposes and
if the restriction can be show n to be 'n ecessary in a d em ocratic society ', w hile
other A rticles, such as A rticle 3, are treated as absolu te and no m argin of
appreciation is allow ed.
The v irtue o f the d octrine is its recognition that reasonable d ifferences can
apply betw een cou ntries w ith d ifferent cultures, trad itions and social problem s
and that the national cou rts and institutions are best placed to have the
m easure of this. T h e v ice in the d octrine is that it perm its restrictions on
in d ividu al freed om s based on cultural and social grounds. T his m ay lead to
the tolerance o f various form s o f restriction on personal and political freed om
w hich are incom patible w ith liberal auton om y; it m ay tolerate state restrictions
based on m oral d isapproval o f w hat are otherw ise harm less actions. Such
ground s o f restriction are b road er than those expressly perm itted by the
C onvention.65 The m argin o f appreciation d octrine m ay also ju stify the C ou rt
in accepting low er standards of rights protection in circu m stan ces o f em erg
ency, such as political violence, w hen , arguably, that is p recisely the
circu m stan ce in w hich im portan t hu m an rights are m ost likely to be
threatened.66
D eference and national courts

The m argin o f appreciation is a ru le o f international law . T h e equivalent for a
d om estic court, d eciding cases d ealing w ith C on vention rights, is to d evelop a
63 H andyside v United Kingdom (19 7 9 -8 0 ) 1 EH RR 737, paragrap hs 4 8 -9 . F or a discussion see Brown

v Stott (P rocu rator Fiscal, D unferm line) an d an other [2001] 2 All ER 97, 121, per Lord Steyn. See
also Lester of Hem e Hill, Lord and Pannick, D. (eds) (1999) H um an Rights Law an d Practice.
London: Butterw orths, p. 74, paragrap h 3.21.
M For exam ple, o ver the right to vote inferred from A rticle 3 of the First Protocol: M athieu-M ohin
an d C lerfayt v Belgium (1987) 10 EHRR 1, paragraph 52; the issue is the related one of the
reasonable restrictions that states m ay im pose on the right to vote.
^ Jones, T.H . (1995) 'The D evaluation of H um an Rights U n der the E uropean C onvention', Public
Law 430.
66 The C ou rt recognises the need for special pow ers in the context of the state response to political
violence although it also im poses limits especially in respect of the need for judicial supervision.
See, for exam ple, O'H ara v United Kingdom [2001] NLJ 1884, Ap. 3 7 5 5 5 /9 7 .
con ception of the proper d eferen ce to be show n by the ju d g es to the executive

or legislature. This is a difficult m atter. A n over-deferential cou rt w ill be failing
in its d uty to m ake its ow n, in d ep en deiit assessm eiit o f w hat the C on vention
requires; an u n d er-d eferential court w ill be un derm ining the p roper role of
d em ocratically accou n table auth orities in w ays that w eaken the v ery com m it
m ent to d em ocratic politics inheren t in the C on vention.67 D eference becom es
highly controversial if the cou rts d efer m erely becau se o f the n atu re of the
issue rather than on the basis o f a careful analysis o f a structured hum an rights
claim .68 T h e obviou s issue, p articularly in the 'an ti-terrorist' context, is national
security and the fear that courts will d efer to the state sim ply becau se national
secu rity is in issue rather than on the basis o f a close analysis o f the hum an
rights issues involved. D eference, as w ith the m argin o f appreciation doctrine,
m u st not underm ine the essence o f the right. If the execu tive's ju dgm ent
strikes at the v ery core o f w hat is b ein g protected , the cou rts should not defer.
A ppropriate d eferen ce d ep ends upon con text and circu m stan ces. V arious
issues w ill d eterm ine the w illingness of the courts to d efer to the ju d gem ent
o f the executive or legislature on a m atter. In particular, w here, as u n d er
A rticle 3, a righ t is express and fundam ental w ithin the C on vention system ,
the cou rt w ill be justified in m ak in g its ow n, ind ep en den t assessm en t o f the
m atter. W here, on the other hand, specific rights are im plied (e.g. u n d er A rticle
6) or w here they are subject to law ful and p roportionate restriction (e.g. under
A rticles 8 -1 1 ), then the cou rts m ay, properly, be m ore w illing to d efer to the
view s o f the executive or legislature. D eference, in the latter contexts, should
be confined to those b alancing ju dgm ents about the need to restrict a freedom
in ord er to m eet a significant social need and w ill vary in accord ance w ith the
natu re o f the issu e.69
Proportionality
O f all hum an rights concepts, p rop ortionality is having the m ost significant
im pact on the law o f the U nited K ingdom . P roportionality expresses the need
to achieve a fair balance betw een the achiev em en t o f legitim ate collectiv e goals
and the burden such achievem en t m ay im pose on ind ividuals. It involves the
requ irem ent that pu blic auth orities should achieve their collective goals by
m eth od s w hich have the m inim u m (or close to the m inim u m ) im pact on the
freed om s o f ind iv id u als w ho are affected. E xam p les o f the operation o f this
principle can be found throughout this book. It is for the court to decide
w hether or not an action is properly proportionate. In com ing to a ju dgm ent
the cou rt m ay con sid er w hether 'relev an t and sufficient' reasons have been
ad vanced by the pu blic authority, w hether a less restrictive option existed,
w hether the d ecision-taking process resultin g in the actions u n d er con sid er
ation w as fair to those affected and w hether safeguards against abuse exist. A
67 M ow bray, A. (1999) T h e Role of the European C ou rt of H um an Rights in the Prom otion of

D em ocracy', P u blic Law 703.
68 I am grateful to Richard E dw ards for this and other points on deference.
69 On deference see R v D P P ex parte K ebilene an d others [19991 4 All ER 801, 8 4 2 -3 . For exam ples
and further discussion see International Transport Roth G m bH an d others v S ecretary o f State fo r the
H om e D epartm ent [2002] E W C A C iv 158; R (on the application o f A lcon bu ry D evelopm ents Ltd) v
Secretary o f State fo r the Environm ent, Transport an d the Regions) [20011 2 All ER 929.
restriction w hich underm ined the very essence of the right in question would
be disproportionate.70 On the assessm ent of these issues, the courts m ay have
grounds, as indicated above, to defer to the national authorities. H ow ever, the
m ere fact that the public authority has, carefully and fully, m ade its own
judgm ent of proportionality will not avail it if, in the view of the court, that
judgm ent is wrong.
2.6.3 The impact on legislation: sections 3, 4, 10, 11 and 19

Section 3 of the Hum an Rights Act 1998 requires U nited Kingdom courts to
interpret legislation, as far as possible, for com patibility with the scheduled
Convention rights. It applies not only to legislation in force when the A ct was
brought into effect but to all future legislation. It im poses an interpretive
obligation on all courts including inferior courts such as m agistrates courts
and tribunals.
3. Interpretation of legislation
(1) So far a s it is p o ssib le to d o so , p r im a ry leg isla tio n a n d s u b o rd in a te le g isla tio n
m u st b e r e a d a n d g iv e n effect in a w a y w h ic h is c o m p a tib le w ith th e C o n v e n tio n
r ig h ts.
(2) T h is se c tio n -
(a) ap p lie s to p r im a ry le g islatio n a n d s u b o rd in a te le g isla tio n w h e n e v e r e n a c te d ;
(b) d o e s n o t affect th e v a lid ity , co n tin u in g o p e r a tio n o r e n fo rc e m e n t o f a n y
in c o m p a tib le p r im a ry le g islatio n ; a n d
(c) d o e s n o t affect th e v a lid ity , co n tin u in g o p e r a tio n o r e n fo rc e m e n t o f a n y
in c o m p a tib le s u b o rd in a te le g isla tio n if (d is r e g a r d in g a n y p o ssib ility o f
re v o c a tio n ) p rim a ry le g isla tio n p re v e n ts r e m o v a l o f th e in c o m p a tib ility .
Section 3 does not, therefore, perm it a court to hold legislation to be invalid,

no m atter how incom patible w ith the Convention rights it m ay be. Section 3
w as explicitly designed to m aintain the principle of Parliam entary suprem acy.
It requires Parliam ent to be unam biguous and clear if it is enacting legislation
w hich is incom patible w ith the Convention although the validity of any such
legislation does not depend, subject to section 19 w hich is discussed below , on
Parliam ent expressly acknow ledging incom patibility.
Subordinate legislation
Subordinate legislation is affected differently from prim ary legislation. A l
though the Act does not expressly say so, section 3(2)(c) is taken to mean that
subordinate legislation w hich, on interpretation, is incom patible with the
Convention, m ust be held to be invalid and not applied by the courts.71 The
exception is if prim ary legislation prevents the rem oval o f incom patibility as
where, for exam ple, prim ary legislation stipulates an incom patible state of
affairs w hich the subordinate legislation is to achieve.
70 From Starmer, K. (1999) European Human Rights Law. London: LAG, pp. 169-76.
71 For exam ple, Feldman, D. (2002) Civil Liberties and Human Rights in England and Wales, 2nd edn.
Oxford: Oxford University Press, p. 89.
D eclaration o f incom patibility

If a court d ecides that prim ary legislation cannot be interpreted and given
effect in a m anner w hich is com p atible w ith the C on vention, then section 4 of
the A ct can com e into effect. A su p erio r court can m ake a 'd eclaration of
incom p atibility ' (a statem ent that the legislation is incom patible w ith C o n ven
tion rights) in resp ect o f prim ary legislation and also in respect o f incom patible
subord in ate legislation w here prim ary legislation prevents the rem oval of the
incom patibility. O nly su p erio r courts, such as the H igh C ou rt and above, can
m ake such declaration s; they cannot, for exam ple, be m ad e by m agistrates
courts, the C row n C ou rt or trib u n a ls .2 Such d eclaration s are, therefore,
possible con sequ ences o f an appeal from an inferior cou rt or tribunal. A
declaration of in com patibility does not change the fact that the incom patible
legislation rem ains valid and should be given effect. It is, how ever, clearly a
challenge to the governm ent and to P arliam ent to change the law to achieve
com patibility. The go v ernm ent is entitled not to change but there is nothing to
stop a d isappointed litigan t from p u rsu ing his or her case before the C ou rt of
H um an R ights in S trasbou rg and, if they w ere successfu l, the U nited K ingdom
w ould be u n d er an international o blig ation to change the law.
Rem edial orders

The significant point abou t a d eclaration of incom p atibility is that, in certain
circu m stan ces, it triggers a m inisterial pow er to rem ed y the situ ation by
am en ding the incom patible legislation and to do so by O rd er rather than by a
full A ct o f Parliam ent. T h e pow er applies w hen either a court in the U nited
K ingdom has m ad e a declaration o f in com patibility or incom p atibility has
arisen from a decision o f the C ou rt o f H um an Rights m ad e after the H um an
Rights A ct 1998 cam e into force.73
10. Pow er to take rem edial action

(2) If a Minister of the Crown considers that there are compelling reasons for
proceeding under this section, he m ay by order make such amendments to the
legislation as he considers necessary to remove the incompatibility.
Rem edial action m ay also be taken to am end any prim ary legislation w hich is
p reventing incom patible subord in ate legislation from bein g declared invalid.
Section 10 gives a m inister d iscretion to am end or repeal all or part of
incom patible prim ary legislation, or extend the application o f som e other A ct
to m eet the incom patibility, w ithou t having to seek an am en d ing A ct of
72 A situation which can be com pared to the pow er of inferior courts or tribunals, dealing with
European C om m unity law , to set aside national law w hich is incom patible with directly
effective C om m unity law. Since C om m unity law em bodies hum an rights in its general
principles of law , an inferior tribunal, perhaps, could disapply United K ingdom legislation,
bearing on C om m unity m atters, w hich w as incom patible w ith hum an rights (including
Convention rights) thus having m ore pow er than the H ouse of L ords on purely national hum an
rights issues.
73 For exam ple, the M ental H ealth A ct 1983 placed the burden of proof on applicants to M ental
H ealth Review Tribunals. The court declared this to be incom patible with Article 5 ECH R (R
(H ) v M en tal H ealth R eview Tribunal N & E London Region [2001] E W C A C iv 415). The rules of
procedu re w ere then changed by the M ental Health A ct 1983 (Rem edial) O rder 2001, SI
2 0 0 1 /3 7 1 2 .
Parliam ent. The m inister m u st believe there are 'com p elling reasons' for such
action. U rgen cy and, perhaps, tech nical com p lexity are exam ples o f the kinds
o f reasons a m inister m igh t have. In m ost situ ations the courts w ill not be able
to grant ju dicial review o f the exercise or refu sal to exercise the pow er.74
C on ventions w ill, perh aps, arise d ealing w ith the kinds o f issues w hich are
suitable for such 'fast-track ' am endm ent.
Rem edial ord ers are a controversial feature of the A ct since they perm it
significant changes to prim ary legislation to be m ad e by m inisterial ord er and
w ithout the full P arliam en tary con sid eration that w ould be given to a bill.
There is a procedu re for a d egree o f P arliam en tary scru tiny o f any proposed
rem ed ial ord er found in Sch ed u le 2 o f the A ct. It should be rem em bered that
P arliam en t does not alw ays give close scru tin y to the ord in ary bills it is
enactin g and it m ay be that the procedu res under Sch ed u le 2 for d ealing w ith
rem ed ial ord ers could, if p roperly d eveloped, provide an opportu nity for
focused and intensive scru tin y o f the proposed am en dm en ts.75
The courts and section 3

Section 3 com es in to effect if, follow ing an interpretation of the legislation on
ord in ary p rinciples (the literal rule etc.), there appears to b e in com patibility
w ith one or m ore of the sched uled C on vention rights. T here is som e judicial
d isagreem ent abou t the circu m stan ces in w hich a declaration o f incom p atibil
ity should be issued. O ne view is that the cou rt should do all it can to avoid
a d eclaration o f in com patibility and this inclu des bein g prepared to 'strain' the
statu tory langu age in o rd er to achieve that effect. 'Straining' can include
im plying w ord s into an A ct. Thu s in R v A (2000)76 som e L aw L ords read into
legislation that im posed w ide lim its on the ability of a rape d efendant to cross
exam in e the victim on her sexual history a general condition that this w as
subject to the righ t o f a fair trial u n d er A rticle 6.77 T h e alternative view , argued,
for exam ple, by Lord W oolf in the C ou rt o f A ppeal,78 stresses that section 3
only perm its the cou rts to interp ret and not to legislate or w rite in new
provisions to A cts o f Parliam ent. A need rad ically to alter the effect of
legislation, inclu d ing by w riting in w ord s such as 'reaso n ably', w ill suggest
that som ething m ore than interpretation is required for com patibility, and so
a d eclaration should be consid ered. A t the m om ent b oth view s are current.
2.6.4 Public authorities

The second principal requ irem ent o f the H um an Rights A ct 1998 is to place a
duty on 'p u blic au th orities' to act in accord ance w ith C on vention rights unless
statu te requ ires them to act otherw ise.
74 Section 6(6), H RA 1998 clarifies that it is not unlawful to refuse to m ake a rem edial order.
75 See M iers, D. (1999) 'D eregulation Procedure: A n Expanding Role', Public Law 477.
76 120011 U K H L 25; [20011 3 All ER 1.
77 See, in particular, the speech of Lord Steyn.
78 P oplar H ousin g an d Regeneration C om m unity A ssociation Ltd v D onoghue [2001] E W C A C iv 595;
[2001] 4 All ER 604.
6. Acts of public authorities

(1) It is unlawful for a public authority to act in a w ay which is incompatible with
a Convention right.
(2) Subsection (1) does not apply if -
(a) as the result of one or more provisions of primary legislation, the authority
could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation
which cannot be read or given effect in a w ay which is compatible with the
Convention rights, the authority was acting so as to give effect to or enforce
those provisions.
D efinition o f a public authority: the courts

T here is no general d efinition o f a pu blic authority. P arliam en t is expressly
exclu d ed since, as ind icated above, it is clearly envisaged that legislation that
is u n am bigu ously incom patible w ith the C on vention can still be enacted and,
in any case, it is hard to know w hat rem ed ies m ight be effective.
A ny 'court o r trib u n al', inclu ding the H ouse o f L ords in its ju dicial capacity,
is a public au th ority for the pu rposes o f the A ct79 and so is bound to act
com p atibly w ith the C onvention. Thu s the rules o f evid ence and procedu re
m u st now com ply w ith, for instan ce, A rticle 6 ECH R. T h e im portan ce o f this
p rovision is also that it m ay provide the basis for the so-called 'h orizontal
effect' o f C on vention rights. This m eans that the courts and tribunals m ay
choose to develop private legal relations, such as d efam ation or em ploym ent
law , in w ays w hich give effect to the underlying valu es in the C onvention,
d espite the fact that the C on vention is, on its face, pred om inantly d ealing w ith
the relation ship betw een the state and citizens.
D efinition o f a public authority: bodies exercising public fun ctions

Section 6(3)(b) o f the A ct inclu des w ithin the definition o f a pu blic au th ority 'any
person certain o f w hose functions are functions o f a public n atu re' but, u n d er
section 6(5), the A ct states that 'in relation to a p articular act, a person is not a
public au th ority by virtue only o f subsection (3)(b) if the natu re o f the A ct is
p rivate'. U nd er this su bsection a hu ge ran ge o f bod ies o f variou s kinds and to
v arying degrees o f rem oteness from go v ernm ent m ay be subject to the
en forceable d uty to act com p atibly w ith C o n ventio n rights w hen they are
perform ing public functions. The A ct says nothing on how these b od ies are to be
identified. T h e courts w ill, no d oubt, proceed on a case-by-case basis and of
p articular im portan ce will be how to categorise the huge, v ariable ran ge of
non-governm ental bodies w hich are so typical o f m o d em public ad m inistration.
T he first cases have involved organisations, specifically hou sing associations,
w hich are prov id ing services on b eh alf o f a gov ernm ent agen cy u n d er contract.80
T h e case for a w ide and inclu siv e ap proach to the p roblem is that the bord er
betw een 'p u blic' and 'p riv ate' is now v ery un clear and organisations, of
79 H um an Rights A ct 1998. s. 6(3).

80 P oplar H ousin g an d Regeneration C om m unity A ssociation Ltd v D onoghue [2001] E W C A C iv 595;
[20011 4 All ER 604, that a housing association w as sufficiently close with a local authority
discharging statutory duties to be a public authority; R (H eather) v C heshire H om es [20021 EW C A
C iv 366; [2002J 2 All ER 936, a charity providing hom es for the disabled partly on behalf of a
local authority w as not exercising public functions.
w hatev er type and to w hatev er d egree o f pu blic fun ding or gov ernm ent
control, w hose actions and d ecisions affect the hum an rights and freed om s of
people should be subject to the rem ed ies the H um an R ights A ct provides.
Som e w riters, how ever, argue for a m u ch n arro w er approach. In particular it
is suggested that bod ies designated pu blic au th orities m ay be prevented
them selves from bringin g hum an rights cases against the governm ent. A
bro ad castin g organisation, for exam ple, m igh t w ant to challeng e a law or
ad m inistrative p ractice on freedom o f speech ground s; if it is designated a
pu blic au th ority and itself vulnerable to hum an rights claim s (about privacy
for exam ple) it m ay not be able to m ou nt such a challenge.81
There are, therefore, three possibilities. T h e first is that a bod y is, w ithout
argum ent, an o rd in ary pu blic au th ority and is clearly part o f the state
apparatus o f governm ent: a governm ent d ep artm ent, a police force or a local
au th ority are exam ples. Such bodies have no private side and are, it seem s,
bound by the A ct in everything they do. Second ly, there are bod ies w hich have
im portant sim ilarities w ith governm ent bod ies and w hich are arguably public
auth orities o f the first kind, w ith no priv ate side. N H S tru sts or the H ealth and
Safety E xecutive, bodies w hich are fully funded by the state, subject to public
appointm en t and en tirely bound by legislation, m igh t b e exam ples. W hether a
body is in the second category w ill be a m atter of interpretation and argum ent.
Third there is the categ ory m entioned above o f any person, group or body
exercising pu blic functions. O nly the third categ ory has a priv ate sid e not
directly reached by the Act.
Legal proceedin gs and 'victims'

W here a person believes that a pu blic au th ority has acted u n law fu lly by acting
incom patibly w ith the C on vention, he or she m ay bring a case d irectly against
the pu blic authority. T his will norm ally be by exercising a righ t o f appeal or
by ju dicial review . A ltern atively they m ay rely on the alleged unlaw fu l act by
the auth ority in any legal proceedings that m ay be brou ght against them .82
Thu s the d efen d an t in a crim inal case, for exam ple, m ay offer a breach o f a
C on vention righ t by the p olice or the p rosecu tin g au th ority as part o f their
defence. In both situ ations, how ever, the persons alleging the breach o f a
C on vention right m u st d em onstrate that they are 'v ictim s' o f the breach, and
the test for b ein g a v ictim is that u n d er A rticle 34 E C H R .83
Article 34
The Court may receive applications from any person, non-governmental organisa
tion or group of individuals claiming to be victims of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the protocols thereto.
The High Contracting Parties undertake not to hinder in anyw ay the effective
exercise of this right.
81 Oliver, D. (2000) T h e Frontiers of the State: Public Authorities and Public Functions under the
H um an Rights A ct 1998', Public Law 476.
82 Section 7(l)(a ) and (b), HRA 1998.
83 Section 7(1) and (7), H RA 1998. A s w as pointed out in the Parliam entary debates, this rule
introduces som e uncertainty. Breaches of the European C onvention can be argu ed in ordinary
judicial review' proceedings and in proceedings involving European C om m unity law ; both have
different rules of standing from each other and from s. 7, HRA 1998.
The C on vention test for bein g a 'v ictim ' is that the person is d irectly affected
by the act or om ission in issue.84 T his is in som e respects a m ore restrictive test
than the 'sufficient interest' test un der d om estic judicial review . First it appears
to exclu d e m an y pu blic bodies w hich cannot show they are 'n on -go v ernm en t
al'. Som e pu blic bod ies, such as the Equal O p portu nities C om m ission , for
exam ple, are able, u n d er d om estic law , to seek judicial review of governm ent
d ecisions w hich they think are u n law fu lly affecting their concerns. H ow ever,
if such bodies are thought o f as governm ental bodies they w ill not, in their
ow n nam e, be able to bring hum an rights cases in resp ect o f governm ent
d ecisions.85 Second , the Strasbou rg test for 'v ictim ' tends to exclu d e an actio
popularis, in w hich one person, perhaps a pressu re group, brings an action on
b eh alf o f the public gen erally or a particu lar group o f persons or an interest
w hich w ill not otherw ise be represented , such as poor and d eprived persons
o r an env ironm en tal interest. T h e 'sufficient interest test' in E nglish judicial
rev iew is flexible enough to allow som ething close to such actions.86 The
A rticle 34 test exclu d es actio popularis. H ow ever, there is flexibility in A rticle
34. In p articu lar there is no need to prove that there as b een a 'specific m easure
o f im p lem entation' affecting the applicant. Thu s any w om an o f child -bearing
age can bring an ap plication in resp ect o f law s in volving abortion becau se she
m ight be restricted by them even though that has not actually h app en ed.87
A rticle 34 also perm its a representative action, so long as those bein g
represented can be in d ividu ally identified and give their con sent, and it also
perm its groups, such as com panies, political parties or trade unions, to bring
cases in respect o f issues w hich affect them as organisations, though not if it
is only their m em bers' interests w hich are affected.88
A cou rt d ealing w ith a case brou ght u n d er the A ct can grant w hatever
rem ed y it thinks fit. T h e traditional ju d icial review rem ed ies, by w hich
d ecisions are quashed , proposed unlaw fu l actions stop ped, officials ordered to
p erform their duties, or the law declared on the assu m ption that a pu blic body
will obey it, are available. D am ages can be aw arded so long as the case is
brou ght before a court w ith the pow er to aw ard dam ages. T h e d eterm ination
o f an aw ard m u st be based on the principles o f 'ju st satisfaction' d eveloped by
the C ou rt o f H um an Rights un der A rticle 41.
2.6.5 Parliament
A s the representative assem b ly o f a liberal and d em ocratic state, Parliam ent
ought not to be bypassed in the processes o f hum an rights protection. It is
P arliam ent that enacts legislation and w hich is the prim e m over, directly or
through the agency o f others, in securin g the scru tin y o f executive action.
84 E ckle v G erm any (1982) 5 EH RR 1; see also Z entralrat D SRR v G erm any (1997) 23 EH RR 7 CD 209.
145 The BBC is another such organisation w ith, perhaps, an am biguous status. The H um an Rights
Com m ission refused to decide w hether o r not the C orporation w as capable, in its ow n nam e,
of being a victim : BBC v U nited Kingdom (1996) 21 EH RR CD 93.
86 For exam ple, R v Secretary o f State fo r Foreign an d C om m onw ealth A ffairs ex p arte World
D evelopm en t M ovem en t 119951 1 All ER 611.
87 Open D oor C ounselling an d Well Woman v Ireland (1992) 15 EH RR 244.
88 For exam ple, a political party can bring a case over a law or practice affecting political parties
but not over the individual rights of their m embers.
L egislation is now enacted in the kn ow led ge that it w ill be interpreted for

com patibility w ith C on vention rights. Section 19 requ ires the m inister w ho is
in charge o f a gov ernm ent bill to m ake a w ritten statem ent to P arliam ent that
the bill is or is not com p atible w ith C on vention rights. T h e form that such
statem ents take is left to the m inister and the d anger is that a b rief statem ent
o f com patibility, w ith no argum en t or analysis, w ill b e accepted by P arliam ent
w ithout any p roper con sid eration.89 Such statem ents are also m ad e prior to the
introd uction of any am en dm en ts to the bill.
O f greater im portan ce is the establish m ent, by the Lords and C om m ons, of
a Jo in t C om m ittee on H um an Rights.90 This C om m ittee w ill report to
P arliam en t on the com p atibility o f legislative proposals in a detailed and
inform ed m anner.
2.6.6 Freedom of speech and religion

Sections 12 and 13 o f the H u m an Rights A ct 1998 im pose special requ irem ents
on the cou rts w hen they are d ealing w ith freed om o f expression and religious
freedom . W hether these provisions have m u ch im pact is doubtful.
2.7 The scheduled Convention rights
The substantive rights, the 'Schedu led C on vention righ ts' to w hich the H um an
R ights A ct 1998 applies, are in Sch ed u le 1 to the Act. They are the m ain
substantive rights found in the European C on vention on H um an Rights. W ith
a few exception s, d ealt w ith here, they are discussed in detail as approp riate
in the d ifferent chapters o f this book.
2.7.1 The preface

The C on vention has a preface w hich is not a scheduled C on vention right.
N everth eless it has som e significance for the w ay in w hich the Strasbou rg
court, and hence U nited K ingd om courts, m ay interpret C on vention rights.
First, the p reface refers to the U nited N atio n 's com m itm ent to hum an rights
and hence is a basis for reference to the provisions and case law o f instrum ents
such the International C ov enant on C ivil and Political Rights, m entioned
above.
Th e fifth p aragraph refers to 'd em ocracy ':
Reaffirming their profound belief in those fundamental freedoms which are the
foundation of justice and peace in the world and are best maintained on the one
hand by an effective political dem ocracy and on the other by a comm on understand
ing and observance of the human rights upon which they depend;
w W adh am , J. (2001) 'The H um an Rights Act: Sufficient Protection?', N L J 1411.

90 It w as first appointed shortly before the 2001 election; it w as reconstituted after that election
and began effective w orking in the 2 0 0 1 -0 2 session. Its reports can be accessed through its
website: h ttp ://p a rlia m e n t.u k /co m m o n s/se lco m /h rh o m e .h tm . See Feldm an, D. (2002) 'Parlia
m entary Scrutiny of Legislation and H um an Rights', Public Law 323.
Ju stice and peace d epend up on a com bination of an effective d em ocracy and

the o bservan ce o f hu m an rights. The C on vention, therefore, envisages that
d em ocracy and hu m an rights com p lem ent each other. D em ocracy, by im p lica
tion, involves the recognition that a just and free society is one in w hich all
can con tribute to the identification and pursuit o f the com m on good and this
is com p atible w ith the protection o f fundam ental rights. T h e C onvention
conception o f d em ocracy, therefore, cannot be reduced to unrestrained
m ajority ru le.9’ T he p rotection o f rights, in the nam e o f d em ocracy, lim it w hat
those w ho control the state apparatus can do even if they have the authority
o f the w ish es and votes o f the m ajority behind them . The p reface also has
strong w ord s on E uropean unity and a com m on heritage o f 'political
traditions, ideals, freed om s and the rule o f law '. It also, how ever, refers to the
un iversality o f hu m an rights in the U nited N ations D eclaration and so leaves
open the question w hether rights are universal or cu lturally determ ined.
2.7.2 Article 1
Article 1 O bligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section I of this Convention.
T he point o f the H um an Rights A ct 1998 is to provide the m eans by w hich

A rticle 1 can be given effect and hence the latter is not a sched uled C on vention
right. A rticle 1 con tain s the basic obligation on states to ensure that their law
and ad m inistrative practices are com p atible w ith the C on vention and to
change them if not. A p articular point to note about A rticle 1 is that it requ ires
that the rights o f 'ev eryon e' be secured. T his m u st inclu d e n on-citizens and
p ersons w ho are illegally in the country. States cannot, u n d er the C onvention,
sim ply redefine citizenship or illegal entry so as to exclu d e som e group from
the p rotection o f C on vention rights.92
2.7.3 Articles 2-7

T hese A rticles are sched uled C on vention rights un der the H um an Rights A ct
1998.
Article 2 Right to life

(1) Everyone's right to life shall be protected by law. No one shall be deprived of
his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which the penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this
Article when it results from the use of force which is no more than absolutely
necessary -
91 M ow bray, A . (1999) T h e Role of the European C ourt of H um an Rights in the Prom otion of
D em ocracy', Public Law 703.
92 Article 14 reinforces the point by prohibiting discrim ination on, for exam ple, racial or national
groun ds, in the w ay C onvention rights and freedom s are secured. Article 16, how ever, does
perm it som e degree of restriction on the political activity of aliens.
(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
T he right to life is seen as one o f the m ost fun dam ental rights the C onvention
protects. M ost o f it is im m u ne from d erogation un der A rticle 15. Fu rther
d iscu ssion can be found in C h ap ter 4, on the general pow ers o f state agents,
C h ap ter 9, p risoners' rights, and C h apter 20, the right to bodily integrity.
A rticle 3 Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
A rticle 3 is also one o f the m ost fun dam ental rights the C on vention protects.
It describes an absolu te right in the sense that it cannot be subject to d erogation
un der A rticle 15 nor is the evil o f torture or inhu m an treatm ent to be balanced
against a ju dgm ent o f the public interest. The significance o f A rticle 3 is
d iscussed in C h apter 4, on the coercive pow ers o f the police and o ther state
agents; it is also consid ered in C h ap ter 20, bo d ily integrity.
A rticle 4 Prohibition of slavery and forced labour

(1) No one shall be held in slavery or servitude.
(2) No one shall be required to perform forced or compulsory labour.
(3) For the purpose of this article the term 'forced or compulsory labour' shall not
include:
(a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of this Convention or during
conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in
countries where they are recognised, service exacted instead of compulsory
military service;
(c) any service exacted in case of an emergency or calamity threatening the life
or well-being of the community;
(d) any work or service which forms part of normal civic obligation.
E ven in tim e o f w ar or other public em ergency it is not possible for a state, by

d erogation from A rticle 4(1), to use slavery; b u t states at such tim es m ay use
forced or com pulsory labou r b y derogating from A rticle 4(2). Slavery is
u nderstood in relation to status. Forced or com pulsory labour relates to w ork
exacted u n d er the threat o f som e kind o f penalty93 and invokes the idea of a
person subject to p u nishm ent rather than, for exam ple, an obligation to w ork
in certain places or at certain tim es in exchange for training w hich is beneficial
but w hich m u st be undergone.
If som e requ irem ent is w ithin the d efinition o f forced or com pulsory labour,
the qu estion then arises w hether any o f the exem ptions w ithin A rticle 4(3)
apply.
93 Starm er, op. cit., p. 93.

T he in stitu tio n a l settin g 43
A rticle 5 R ig h t to lib erty and secu rity

(1) Everyone has the right to liberty and security of person. No one shall be deprived
of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after conviction by a com petent court;
(b) the lawful arrest or detention of a person for non-com pliance with the lawful
order of a court or in order to secure the fulfilment of any obligation
prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the com petent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to
prevent his com m itting an offence or fleeing after having done so;
(d) the detention of a m inor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before
the com petent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts
or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting
unauthorised entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
(2) Everyone who is arrested shall be informed prom ptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.
(3) Everyone arrested or detained in accordance w ith the provisions of paragraph
1(c) of this article shall be brought prom ptly before a judge or other officer
authorised by law to exercise judicial pow er and shall be entitled to trial within
a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled
to take proceedings by w hich the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful.
(5) Everyone who has been the victim of arrest or detention in contravention of the
provisions of this article shall have an enforceable right to compensation.
A rtic le 5 is o f g re a t p ra c tica l im p o rta n ce . A rtic le 5 (1 ) a s se rts a fu n d a m e n ta l

rig h t to lib e rty a n d s e c u rity o f th e p e rs o n an d th e n , in su b -p a ra g ra p h s (a )-(f),
id e n tifie s th e o n ly c irc u m s ta n c e s in w h ic h p e o p le ca n , c o m p a tib ly w ith th e
C o n v e n tio n , b e d e p riv e d o f th e ir lib e rty . It is, th e re fo re , o f g re a t s ig n ific a n c e
in re la tio n to th e a c tiv itie s o f th e c o u rts , th e p o lic e a n d o th e r s ta te a g e n ts s u c h
as c u s to m s an d e x c is e an d im m ig ra tio n o fficers w h o e x e rc ise p o w e rs to d eta in
p e o p le a g a in s t th e ir w ill. It is fu rth e r d is cu ss e d in C h a p te r 5 on th e p o w e rs o f
the p o lic e in re s p e c t o f a rre s t an d d e te n tio n . A rticle 5 ( 2 ) -(5 ) c o n ta in s fu rth e r
c o n d itio n s th a t a p p ly to th e tre a tm e n t o f p e rs o n s w h o h a v e b e e n arreste d o r
o th e rw is e d e p riv e d o f th e ir lib e rty . T h e y a re fu rth e r d is cu ss e d in C h a p te r 8 on
th e rig h t to a fa ir trial. A rtic le 5 c a n b e d e ro g a te d fro m in tim e o f w a r o r
n a tio n a l e m e rg e n c y u n d e r th e te rm s in A rtic le 15 an d is s ig n ific a n t in th e
c o n te x t o f e m e rg e n c y p o w e rs a n d a n ti-te rro rism le g isla tio n .94
w T h e U n ited K in g d o m 's d e ro g a tio n s u n d e r a n ti-terro rism legislation a re d iscu ssed in C h a p te r 18.

44 H u m an R ig h ts a n d C iv il L ib erties
A rticle 6 R ig h t to a fair trial

(1) In the determ ination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. Judgm ent
shall be pronounced publicly but the press and public may be excluded from all
or part of the trial in the interests of morals, public order or national security in
a dem ocratic society, where the interests of juveniles or the protection of the
private life of the parties so requires, or to the extent strictly necessary in the
opinion of the court in special circum stances where publicity would prejudice
the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.
(3) Everyone charged with a criminal offence has the following m inimum rights:
(a) to be informed prom ptly, in a language w hich he understands and in detail,
of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend him self in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given it
free when the interests of justice so require;
(d) to exam ine or have exam ined witnesses against him and to obtain the
attendance and exam ination of witnesses on his behalf under the same
conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak
the language used in court.
A rtic le 6 is th e m o st c ite d A rtic le an d a h ig h p ro p o rtio n o f c a se s ta k e n to

S tra sb o u rg a re b a s e d to ta lly o r in p a rt o n a lle g ed v io la tio n s o f th is A rticle . It
is g iv e n a fu ll d is c u ss io n in C h a p te r 8 o f th is b o o k .
A rticle 7 N o p u n ish m en t w ith o u t law

(1) No one shall be held guilty of any criminal offence on account of any act or
om ission which did not constitute a crim inal offence under national or
international law at the time when it w as committed. N or shall a heavier penalty
be imposed that the one that was applicable at the time the criminal offence was
committed.
(2) This article shall not prejudice the trial and punishm ent of any person for any
act or omission which, at the time when it was com mitted, was criminal
according to the general principles of law recognised by civilised nations.
A rtic le 7 e m b o d ie s th e p rin c ip le th at n o o n e s h a ll b e p u n ish e d o th e r th a n on

th e b a s is o f la w an d th at crim in a l lia b ility sh o u ld n o t b e e x te n d e d re tro s p e c
tiv e ly to m a k e u n la w fu l s o m e th in g w h ic h , a t th e tim e , w a s n o t u n la w fu l.
C o m m o n law o ffe n c es, w h e n first d e c la re d an d a p p lie d , m a y ra ise a d ifficu lty
u n d e r th is p ro v isio n u n le s s th e re h a s b e e n a g ra d u a l p ro c e ss o f c h a n g e in th e
law b e in g s ig n a lle d b y th e c o u rts fro m w h ic h th e n e w o ffe n c e o r d e v e lo p m e n t
c a n b e p re d ic te d .95 A rtic le 7 a lso re q u ire s th a t a p e rs o n sh o u ld n o t b e g iv e n a
m o re se v e re p u n ish m e n t th a n th a t w h ic h c o u ld h a v e b e e n im p o se d a t th e tim e
th e c rim e w a s co m m itte d .
95 F o r e x a m p le , th e a cc e p ta n ce b y th e H o u se o f L o rd s th at a h u sb an d co u ld b e co n v icte d o n the
ra p e o f his w ife: R v R (R ap e: M a rita l ex em p tio n ) [1992] 1 A C 5 9 9 .
A rticle 7 does p erm it an exception in respect o f acts w hich, w hen

com m itted, w ere recognised as crim inal by the civilised part o f the interna
tional com m u nity. This probably extend s to the d evelopin g law on w ar crim es
and inhibits any d efen ce o f illegality put forw ard by the accused.
Articles 8, 9, 10 and 11 and Article 12

A rticles 8, 9, 10 and 11 are grouped together. T hey have a sim ilar form at. The
first paragraph o f each A rticle identifies a fundam ental right or freedom . The
second paragraph identifies the exclu siv e circu m stan ces in w hich the national
law can restrict the exercise o f the righ t or freedom . Such restrictions m ust
m eet general criteria w hich are repeated in each o f the four articles.
First, a restriction m u st m eet the C on vention test o f 'legality ' by b ein g 'in
accord ance w ith the law ' (A rticle 8) or 'prescribed b y law ' (A rticles 9, 10 and
11). A ny restriction o f a fun dam ental right or freed om should, first, have a
clear basis in law , that is to say it is possible to identify the au th ority o f the
restriction in an officially prom ulgated rule. An A ct o f P arliam ent clearly
m eets this test as do rules o f com m on law if declared w ith sufficient precision.
Second , a restriction m eets the C on vention standard for legality if, given the
basis o f law , the likelihood o f restriction or in terference is p red ictable or
foreseeable. T h e precision o f w hat is required will depend on circum stances.
T he d egree o f forseeability requ ired in respect o f phone tapping or other form s
o f surveillance, for exam ple, is high .96
Second, any restriction m u st be 'n ecessary in a d em ocratic society'. This
term has b een interpreted to m ean that the restriction m eets a 'p ressin g social
need'. It requ ires the cou rts to m ake a ju dgm ent o f 'pro p o rtio n ality' con cern
ing the balance betw een the achiev em en t o f a necessary social goal and the
burden im posed upon ind ividu als by the m eans chosen to achieve the goal.
P roportionality, w hich is p ervasive through m ost o f the C onvention, has been
d iscussed above (page 33).
Finally, any restriction of a righ t or freed om gu aranteed u n d er A rticles 8 to
11 can only be for one o f the pu rposes listed in the second paragraph s o f the
A rticles.97 The lists have com m on features (all rights and freed om s in A rticle
8 to 11 can be restricted in ord er to protect the rights o f others) but are also
significantly different. Som e differences reflect the natu re o f the particular
freed om in question , thus freed om of expression un der A rticle 10 can be
restricted to prevent the d isclosure o f inform ation obtained in con fid ence and
the repu tation and im partiality o f the ju diciary. O thers are not so easily
explained and, perhaps, reflect historical circu m stances. The righ t to respect
for priv ate and fam ily life u n d er A rticle 8 can be restricted in the interests of
the 'econom ic w ell-being o f the cou n try '.98
96 See C hapter 7.
97 See also A rticle 18 w hich prohibits the application of a restriction of a right o r freedom to any
other purpose than those perm itted.
98 The provision m ay have been inserted at the insistence of the British governm ent anxious to
uphold a planned econom y: W icks, E. (2000) 'The United K ingdom G overnm ent's Perception
of the European C onvention on H um an Rights at the Tim e of Entry', Public Lnw 438 (A utum n),
438.
46 H um an R ights and Civil Liberties
A rticle 8 Right to respect for private and fam ily life

(1) Everyone has the right to respect for his private and family life, his home and
his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms
of others.
T he lack o f a clear and direct concept o f p riv acy in English law m akes this one
o f the m ost im p ortan t o f the scheduled C on vention rights in term s o f im pact on
English law . It is discussed gen erally in C h ap ter 20; the right is fully engaged in
respect o f pow ers o f entry and search and o f surv eillance (C hapters 6 and 7).
T he tension betw een the righ t o f private life and freed om o f expression, as
enjoyed in p articular by the press, is consid ered in C h apters 10 and 11.
A rticle 9 Freedom of thought, conscience and religion

(1) Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief,
in worship, teaching, practice and observance.
(2) Freedom to manifest one's religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a democratic society in
the interests of public safety, for the protection of public order, health or morals,
or for the protection of the rights and freedoms of others.
A rticle 9 is fully discussed in C h ap ter 23.
Article 10 Freedom of expression

(1) Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This article shall not
prevent states from requiring the licensing of broadcasting, television or cinema
enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the
judiciary.
Freed om o f expression is fun dam ental to a d em ocratic society. It is d iscussed

in general term s in C h apter 10. It is o f significance in a nu m ber o f sp ecific areas
such as press and m ed ia freed om (C hapter 11), contem pt o f court (C hapter 12),
offences connected to p olitically m otivated speech (C h apter 14), freed om of
inform ation (C hapter 15) and offences connected to national security (C hapter
16).
A rticle 11 Freedom of assem bly and association

(1) Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for
the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests
of national security or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation or rights
of others. This article shall not prevent the imposition of lawful restrictions on
the exercise of these rights by members of the armed forces, of the police or of
the administration of the state.
A rticle 11 p rovides for a right to peaceful assem bly. This relates, in particular,
to political actions, to m arches, m eetings, protests and d em onstration s, and is
fully d iscussed in C h ap ter 17. It also p rovides for freed om o f association,
inclu ding for political pu rposes, and this is d iscussed in C h ap ter 13; there is
also a righ t to form and jo in trad e unions.
Article 12 Right to marry

Men and women of marriageable age have the right to marry and to found a family,
according to the national laws governing the exercise of this right.
A rticle 12 is d iscu ssed in the con text o f sexual freed om in C h apter 21.
2.7.5 Protocols
A rticles 1 to 3 o f the First P rotocol and A rticles 1 and 2 o f the Sixth P rotocol
are Sch ed u led C on vention rights. Section 1(4) o f the A ct em pow ers the
S ecretary o f State, by ord er, to id entify o ther protocols and give them effect
through the A ct by m akin g any am en d m en ts to it that he or she consid ers
appropriate. T here are other substantive P rotocols (listed earlier) w hich have
not been given further effect by the Act.
The First Protocol

Article 1 Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest and subject
to the conditions provided for by law and by the general principles of international
law. The preceding provisions shall not, however, in any w ay impair the right of a
state to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the paym ent of taxes or other
contributions or penalties.
The late acceptance o f A rticle 1 related to a d eep d ispute abou t the extent to
w hich property is a fu n dam ental right reflecting an im portan t aspect o f the
personality or w hether it is m ore o f a social fact em bod ying particular
distributions o f econom ic, p olitical and social pow er w hich can b e legitim ately
altered b y the state. The C ou rt has analysed the text in term s o f three rules.
The first provides a general right to peacefu l enjoym ent o f possessions; the
second identifies the general conditions on w hich the state m ay seek to deprive
a person of his or her possessions and the third d eals w ith the general
con ditions on w hich the state m ay seek to lim it the use people m ay m ake of
their possessions. The third rule is apparently expressed in a w ay w hich is
high ly p erm issive of state action. N everth eless it, along w ith the other tw o, has
been interpreted by the C ou rt on the basis o f general principles of C onvention
law . In p articular the requ irem ents o f legality and p roportionality are
standards against w hich state actions are m easured , although the C ou rt allow s
a w ide m argin o f appreciation in ap p rop riate circu m stances. A rticle 1 does not
provide a sim ple pow er o f veto by property ow ners to p revent red istributions
o f w ealth, for legitim ate social purposes, through policies such as natio n alisa
tion, leasehold reform or rent reform . T he m ain effect o f the A rticle has been,
linked to A rticle 6, to requ ire fair and tim eous procedu res ov er planning
m atters and to p rev ent retrospective legislation aim ed at overturn in g court
ju dgm ents affecting property interests. N everth eless A rticle 1 does provide an
im portan t right that com panies, as w ell as ind ividu als, are able to assert to
protect their property interests.
The First Protocol

Article 2 Right to education
No person shall be denied the right to education. In the exercise of any functions
which it assumes in relation to education and to teaching, the State shall respect the
right of parents to ensure such education and teaching in conformity with their own
religious and philosophical convictions.
This A rticle does not requ ire state edu cation; to the contrary, its m ain point is
to restrict state interference w ith edu cation and m ight be a barrier to any state
w hich w ished to abolish priv ate education. A ny fundam ental right to
edu cation will invoke m ajor disputes about the pu rposes o f edu cation, the
prop er role o f the state therein and the extent to w hich there can be positive
duties to m ake m ajor expen d itures on social purposes. T hese explain the late
ad option o f a reference to ed u cation in the C onvention. A t the heart o f the
provision is the need for the state to respect the religiou s and p hilosophical
convictions o f parents ov er the edu cation of their children. This right can tie
in w ith religiou s freed om (C hapter 23) and it has been accepted as inclu ding
parental view s on pu nishm ent (C hapter 20). The U nited K ingdom has m ad e a
reservation in respect o f A rticle 2 to the extent that 'th e principle affirm ed in
the second sen tence o f article 2 is accepted by the U nited K ingdom only in so
far as it is com patible w ith the provision o f efficient instruction and training,
and the av oid ance o f u n reason able public exp en d itu re'. This reservation is
m aintained un der the term s o f the H um an R ights A ct 1998.
The First Protocol

Article 3 Right to free elections
The High Contracting Parties undertake to hold free elections at reasonable intervals
by secret ballot, under conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature.
A rticle 3 is discussed in C h ap ter 13.

The Sixth Protocol

A rticle 1 Abolition of the death penalty
The death penalty shall be abolished. No one shall be condemned to such penalty or
executed.
Article 2 Death penalty in time of war

A state m ay make provision in its law for the death penalty in respect of acts
committed in time of w ar or of imminent threat of war; such penalty shall be applied
only in the instances laid down in the law and in accordance with its provisions. The
State shall communicate to the Secretary General of the Council of Europe the
relevant provisions of that law.
The abolition o f the d eath penalty is d iscu ssed in C h apter 20.
The ancillary rights

The scope and m ean in g o f the substantive rights m u st be interpreted by
U nited K ingd om cou rts d ealing w ith applications un der the A ct in the light of
these ancillary provisions.
Article 13 Right to an effective rem edy

Everyone whose rights and freedoms as set forth in this Convention are violated
shall have an effective rem edy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.
A rticle 13 places an obligation on the signatory states to ensure that a rem ed y

is available from national cou rts for a violation o f a substantive right or
freedom . It is arguable that, at least until the com ing into effect o f the H um an
R ights A ct 1998, the U nited K ingdom w as in breach o f this provision since
C on vention rights could not be directly, and in term s, enforced in the courts.
Article 13 is not included in the scheduled rights in the H um an Rights A ct 1998.
The reason given by the governm ent for this is that A rticle 13 places a positive duty
on the states to provide an effective rem edy from the national courts for violations
o f C on vention rights and that the H um an R ights A ct 1998 is, itself, the com plete
m eans o f m eeting A rticle 13. C ritics w ere concerned that this left u n ch anged the
difficulty o f obtaining effective rem ed ies against, for exam ple, the secret services
where, as we shall see, special tribunals m ay be established but w here access to the
ord in ary cou rts for the ad m inistration o f pu blic ju stice is prevented.
Article 14 Prohibition of discrim ination

The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.
A rticle 14 requ ires that the substantive rights m ust be secured w ithout
discrim ination. The ground s o f d iscrim in ation are b road ly defined and the
phrase 'other statu s' m eans that they can be added to - sexual orientation is
the obviou s exam ple. A rticle 14 only requ ires non-d iscrim ination in the w ay
in w hich C onvention rights and freed om s are secured; it does not involve a
general righ t not to be d iscrim in ated against on m atters w hich fall outsid e the
scope o f the C o n v e n tio n ." The T w elfth P rotocol is curren tly open for signing
and this, if b rou ght into effect, w ill provide a m ore general, anti-discrim in ation
provision. The U nited K ingd om has not as yet chosen to sign this Protocol.
Article 15 Derogation in time of em ergency

(1) In time of w ar or other public emergency threatening the life of the nation any
High Contracting Party m ay take measures derogating from its obligations under
this Convention to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other obligations under
international law.
(2) No derogation from Article 2, except in respect of deaths resulting from lawful
acts of w ar, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this
paragraph.
(3) Any High Contracting Party availing itself of this right of derogation shall keep
the Secretary General of the Council of Europe fully informed of the measures
which it has taken and the reasons therefor. It shall also inform the Secretary
General of the Council of Europe when such measures have ceased to operate
and the provisions of the Convention are again being fully executed.
A rticle 15 is a con troversial prov ision w hich allow s a state party to 'd erogate'
from m ost, but not all, o f the C on vention 'in tim e o f w ar or o ther public
em ergency threatening the life o f the nation '. The provisions w hich cannot be
derogated from are in paragraph 2. Significant derogations have been m ad e by
the U nited K ingd om in respect o f anti-terrorism legislation and these are
discussed in C h apter 18. A rticle 15 is not am ong the sched uled C onvention
R ights but the H um an Rights A ct provides for the identification, effectiveness
and repeal o f existing derogations as w ell as for the introd uction o f new ones.
Article 16 Restrictions on political activity of aliens

Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High
Contracting Parties from imposing restrictions on the political activity of aliens.
A rticle 16 perm its the states to lim it freedom of expression or freed om of

assem bly and association, or to d iscrim in ate in the w ay the o ther substantive
rights and freed om s are secured, in ord er to place 'restrictions on the political
activity o f aliens'. This provision has not been w id ely invoked by the states,
though it m ay have relevan ce in the 'w ar against terrorism '. It does not seem
com patible w ith the general obligation un der A rticle 1 though it m u st be
stressed that nothing in A rticle 16 perm its states to restrict other C onvention
rights and freedom s o f aliens to a greater extent than is perm itted to non-aliens.
Article 17 Prohibition of abuse of rights

Nothing in this Convention may be interpreted as implying for any state, group or
person any right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms set forth herein or at their limitation
to a greater extent than is provided for in the Convention.
99 M uch stronger non-discrim ination protection is available in European C om m unity law in the
field of em ploym ent.
A rticle 17 d enies the protection o f the C on vention to any state, group or person
w ho w ish es to use a right or freed om gu aranteed by the C on vention in order
to d estroy the rights and freed om s of others. H ate sp eech or the ad vocacy of
an ti-dem ocratic politics or o f political violence are the kinds o f m atters w ith
w hich the A rticle deals. It m eans that those involved are un ab le to resist
restriction on their activities on the ground s that, for instance, their righ t un der
the C on vention to speech or to association has been violated. T h e A rticle also
prevents states from using their pow ers, recognised u n d er the C onvention, to
restrict freed om in p rop ortionate w ays and for certain pu rposes in ord er to
restrict the C on vention rights o f others.
Article 18 Lim itation on use of restrictions on rights

The restrictions permitted under this Convention to the said rights and freedoms
shall not be applied for any purpose other than those for which they have been
prescribed.
A rticle 18 lim its the pow ers enjoyed by the states to restrict rights and
freed om s u n d er the C onvention. M any o f the substantive A rticles, either
expressly or by im plication, perm it the states to lim it the exercise o f rights and
freed om s in ord er to achieve certain pu rposes, such as p rotectin g the rights of
others. A rticle 18, 'L im itation on use of restrictions on righ ts', restricts the
scope o f any such restriction to the p articular pu rposes allow ed under the
C on vention; a pow er to restrict rights and freed om s cannot b e used for other
purposes.
Part II
General powers and duties of
the state
3
Public authorities
3.1 The public sector
Civil liberties law is dom inated by the relationship of public bodies with
citizens. There are specific legal rules and concepts w hich apply to those
exercising public authority and these will be considered in this chapter. There
is no legal or constitutional definition of a public body. W hat is referred to is
the exercise of authority in order to prom ote a particular, probably contested,
conception of the public good rather than to prom ote an individual or private
interest. W hat is of im portance is to understand the institutional com plexity of
w hat is m eant by public bodies or the public sector and to realise that this has
undergone m assive transform ation in recent years
There is, first, the traditional state apparatus of m inisters, the Civil Service,
the m ilitary, the police, the security services, Custom and Excise and local
governm ent. This sector has been subject to great change. The Civil Service is
now predom inantly devolved to relatively autonom ous agencies headed by a
chief executive, and som e of its traditional functions have been further
devolved to private com m ercial or charitable organisations (the prison system
is an exam ple1). These private bodies are, to som e extent, exercising public
functions and to that degree can be thought of as within the public domain,
but are also com m ercial or charitable with pow ers determ ined by contract. A
sim ilar situation exists w ith respect to local governm ent. A com m only
recognised difficulty with such devolution is that it dim inishes the effective
ness of m inisterial accountability to Parliam ent both because of the relative
autonom y of the agency and also because of the claim to com m ercial
confidentiality that a com pany exercising public responsibilities can make.
Second, m uch regulation and acts of governance in the public interest are
done by bodies which are outside the traditional boundaries o f the state but
can be thought o f as public authorities for one or m ore of a com bination of
reasons, such as the fact that their authority is based on an A ct of Parliam ent,
they are com pletely or partially funded from public funds or their directing
board is w holly or partially appointed by the governm ent. Such bodies, rather
vaguely called quangos or non-departm ental governm ent organisations, char
acteristically perform a range of functions including the provision of services
to individuals (e.g. the N HS), the prom otion of particular interests (e.g. the
1 See Livingstone, S. and Owen, T. (1999) Prison Law, 2nd edn. Oxford: Oxford University Press,
chapter 1. See also Chapter 9 below.
Equal O pportunities Com m ission), the supervision of the activities of others

(e.g. the H ealth and Safety at W ork Com m ission), the distribution of public
funds (e.g. the H igher Education Funding Councils) and the regulation of the
activities or others by producing rules and guidance and adjudicating on
disputes (e.g. the Independent Television Com m ission). They are likely, of
course, to be exercising m ore than one such function. The im portant factor
from the legal point o f view is that each such body is constituted, organised,
funded, appointed and em pow ered in different ways and they enjoy vastly
different degrees of independence from the governm ent departm ent to which
they relate.
Thirdly, it is apparent that regulatory and governing activities, in w hich the
public interest is an im portant m otive, can be perform ed by 'private' bodies.
These are bodies w hich are com m ercially funded or w hose authority is based
on the voluntary agreem ent of those regulated. Som e such bodies have
authority which is partially statutory, the professional bodies in law and
m edicine being good exam ples. O ther such bodies have little, if any, statutory
authority for w hat they do (though they m ay operate under the threat of
statutory regulation) yet m ay take decisions w hich can have an effect on the
lives of m illions. Exam ples include som e m edia regulators such as the Press
C om plaints Com m ission and the A dvertising Standards A uthority, sporting
regulators such as the Football A ssociation, or religious organisations (except
ing, perhaps, the Church o f England).
3.2 Legal definitions of public bodies
There is no single legal definition o f a public body. There are different

approaches depending on the particular legal context. The Human Rights Act
1998, as we have seen, provides no definition of a public authority but includes
w ithin the definition any person in so far as they are exercising a public
function. The Data Protection A ct 1998, the Freedom of Inform ation A ct 2000
and the Race Relations (A m endm ent) A ct 2000 adopt the approach of listing
all the particular bodies or types of bodies that com e w ithin the authority of
the A ct (though, as w ith the Freedom of Inform ation A ct 2000, the Secretary
of State m ay have the pow er to include any person exercising 'public
functions'). The Parliam entary C om m issioner Act 1967, w hich establishes the
Parliam entary O m budsm an, lists the bodies subject to the Com m issioner's
investigations but allow s a body to be added to the list if it is established under
the authority of an A ct of Parliam ent or the Royal prerogative or by a m inister
exercising som e other com m on law power, if at least half its funding com es
from public funds or is based on a com pulsory levy and if it is w holly or partly
appointed by the Crow n or the governm ent.2 U nder com m on law, for the
purposes of identifying bodies am enable to judicial review , the courts have
developed a test w hich focuses on the source of authority (w hether predom i
nantly contractual or statutory) and w hether functions are being perform ed
w hich would otherw ise be undertaken by the governm ent. M ost of the bodies
2 Parliamentary Commissioner Act 1967, s. 4(3).

P ublic authorities 57
m entioned above are am en able to ju d icial review apart from sportin g

regulators and religiou s bod ies.3
3.3 The legal authority of public bodies and officials
The identity, general au th ority and pow ers o f public bod ies are m atters o f law.
The m ain institutions o f trad itional state pow er, such as m inisters and civil
servants, the arm y, the secret security services and the police, characteristically
take their auth ority from a com bination o f the Royal P rerogative, other general
pow ers recognised by the com m on law (such as entering into contracts or
issuing publicity) and from A cts o f Parliam ent. M ost other bodies w hich are
outsid e the scope o f trad itional state pow er, inclu d ing local governm ent,
derive their existen ce and p ow ers from A cts o f P arliam en t; a few , the BBC,
som e professional bodies, som e un iversities for exam ple, d eriv e their pow ers
in part from Royal C h arters granted un der the P rerogative. Thus identifying
the p articular pow ers o f pu blic bodies and their officials w ill d epend upon
interpreting the A cts o f P arliam ent in issue and identifying the scope o f the
Royal Prerogative and other com m on law pow ers as recognised by the courts.
The pow ers o f the police, for exam ple, are looked at in detail in m any o f the
follow ing chapters.
3.3.1 The ordinary law

It is of the utm ost im p ortan ce to realise, how ever, that pu blic bodies and their
officials are su bject to the general p rinciples o f law w hich apply to the public
dom ain.
The fun dam ental requ irem ent is that officials m u st have legal authority, in
statu te, p rerogative or o ther com m on rule, for their actions. W ithout legal
au th ority they are liable un der the ord in ary law for any crim es, torts or other
un law fu l actions they m ay com m it. Entick v Carrington (1765) rem ains o f great
im portan ce.4
King’s Messengers entered and ransacked a publisher's premises in the execution of

a purported general warrant obtained from the Secretary of State.
HELD: such a general warrant was unlawful. The King’s Messengers did not have
any other legal authority and, in particular, they enjoyed no privileged position just
because they represented the Crown. Like anyone else, they were liable in trespass.
Entick v Carrington (1765) 19 St Tr 1030
Entick v Carrington (1765) can be a little m islead ing. First, there rem ain areas
in w hich the C row n is outsid e the general law. T hese have been largely
reduced by P arliam en t and the courts^ though the rule that the C row n is not
bound by an A ct o f Parliam ent unless the A ct exp ressly says so rem ains.
3 The basic cases on the point include R v P anel on Take-O vers an d M ergers ex parte D atafin [1987]
1 QB 74 and R v D isciplinary C om m ittee o f the jo ck ey C lub ex parte A ga Khan [1992] 2 All ER 853.
4 Its im portance has recently been recognised in R v C entral C rim inal C ourt ex parte Bright [2001]
_ 2 All ER 244.
5 For exam ple, C row n Proceedings A ct 1947; M v H om e O ffice [1994] 1 AC 377.
Second ly, all E ntick v C arrington (1765) requ ires is that officials should have
legal authority. A s is clear from the chapters that follow , statu te and com m on
law can con fer very w ide pow ers and extensive d iscretion oil officials. The
police and above all the secu rity services enjoy such w ide d iscretion under the
law . In som e instances statu te m ay also grant certain kinds o f freedom from
norm al legal and ju dicial processes; again this can apply to the security
services.6 T hird ly, the con v erse o f Entick v Carrington (1765) is that public
officials enjoy the sam e negative liberty as private citizens. T hey m ay do
any thing that is not forbidd en by law. T his is con v en ient and it perm its public
bodies and their officials a w hole range o f ancillary pow ers, such as entering
into contracts or p u blicisin g policies. T he difficulty is w hen this negative
freed om can also p erm it the state to im pinge upon significant background
rights or otherw ise exercise coercive pow er w ithout specific legal authority.
M challenged the lawfulness of the tapping of his telephone by the police. The tapping
was prior to the Interception of Communications Act 1985.
HELD: no legal rule authorised telephone tapping; no legal rule prohibited telephone
tapping. As with a citizen, so with the state, that which was not prohibited was
permitted.
Malone v Metropolitan Police Commissioner [1979] Ch 344
T his 'n eg ativ e liberty ' ap proach is, in the hum an rights field, probably
incom patible w ith the p rinciple o f 'legality ' w hich pervad es the C onvention
rights sched uled to the H um an R ights A ct 1998.7
3.3.2 Judicial review of administrative action

W hatev er else they m ay be, police, secu rity officers, custom s officials, prison
officers, social w orkers, etc. are public officials w hose actions are cap able of
scru tin y by the ad m inistrative court on the general principles o f ad m inistrative
law . T he cou rt has the pow er to quash a decision, prevent an action going
ahead , d eclare it unlaw fu l or ord er an official to exercise his or her duty. This
is not the place to outline these p ow ers in any detail.8 A person w ith a
'sufficient interest' in the m atter m ay challenge the action o f pu blic officials on
the ground s that they have acted o utsid e their pow ers, that they have treated
an ind ividu al u n fairly particularly by violating rules o f 'natu ral ju stice ', or that
they have d ep arted, w ithou t p roper ju stification , from a proposed cou rse of
action on w hich others have relied .1' Thou gh ju d icial review is im portan t it
m ust alw ays be rem em bered that other m eth od s o f red ress m ay be m ore
effective. T hese m ay b e a civil action for d am ages av ailable if a tort or breach
o f contract has been com m itted; alternatively P arliam ent m ay have established
a tribunal system to d ecid e d isputes or hear appeals.
6 The security services are not subject to the supervisory pow ers of the High C ou rt but of a special
tribunal - see C hapter 7.
7 The M alon e case w as held to be incom patible with A rticle 8 ECH R in M alon e v U nited Kingdom
(1984) 7 EHRR 14.
8 W ade, H .W .R . and Forsyth, C. (2000) A dm in istrative Lazo, 8th edn. O xford: O xford University
Press; C raig, P. (1999) A dm in istrative Law , 4th edn. London: Sw eet & M axwell.
9 For a su rvey see A dm inistrative C ou rt Practice Statem ent [2002] 1 All ER 633.
P ublic authorities 59
O ne o f the ground s o f ju d icial review that is often o f im p ortan ce in a civil

liberties con text is that an official or pu blic au th ority has acted 'u nreasonably '.
The m eaning o f this term is not alw ays clear. The ground is usually kn ow n as
‘W ednesbury u n reason ableness' after the leading c a se .10 It inclu des the idea that
a public bod y has exercised its d iscretion for a pu rpose that is irrelevan t in the
sen se o f not b ein g explained by the p rinciples and purposes o f the A ct of
P arliam ent in qu estion .11 It can also m ean that, although an official action
w ould appear to be in furtherance o f the A ct in question and that all relevant
m atters had been taken into accoun t and irrelevan t m atters exclud ed ,
nevertheless the d ecision w as an im p rop er use, or an abuse, o f pow er. This
principle has, in the past, lead to som e high ly con troversial ov ertu rn in g by the
cou rts o f the d ecisions o f elected bodies. H ow ever, the W ednesbury principles
are also thou ght to be too governm ent friend ly since having to prove an abuse
o f pow er ('irratio n ality ') places too heavy a bu rd en on an applicant.
T h is issue has com e to a head in the context o f hu m an rights. T he notions of
u n reason ableness, abuse o f pow er and irrationality are giving w ay to the test
o f 'p ro p o rtio n ality '.12 N o m atter how w ide the d iscretion appears to be in an
A ct of P arliam ent, any p articular d iscretionary action by a m in ister or official
m u st be proportionate, based on a p roper balance betw een the benefit to the
p u blic that it prod uces and the burden it places on an individual. P ropor
tion ality is thou ght to be som ew hat m ore d em and in g o f m inisters and officials
than the W ednesbury ap p roach .13 The W ednesbury test often only requ ired the
official to take certain m atters into account and, if so, the court w ould accept
his or her assessm en t o f the situation. U nd er the d octrine o f proportionality, it
is the courts, not the official, w ho claim the last w ord on w hether the balance of
ind ividu al and collective interests has been p roperly m ad e.14
3.3.3 The Human Rights Act 1998

A s w e have seen, pu blic bodies and their officials are subject to the H um an
R ights A ct 1998. A s w e have seen, the legislation u n d er w hich they act is to
be interpreted as far as possible for com p atibility w ith the scheduled
C on vention rights, and public auth orities act u n law fu lly if they v iolate the
C onvention. Section 7 provides for access to the court, by judicial review or in
any proceedings, for victim s o f such violation s to obtain a rem edy. T he issues,
inclu ding the difficult question o f id entifying 'pu blic au th orities' for the
p u rpose o f the A ct, have been d iscussed in C h ap ter 2.
3.3.4 Redress of grievances

Public bodies of various kinds are also likely to be subject to various general or
specific system s for d ealing w ith individual com plain ts and problem s. For
10 A ssociated P rovincial P ictu re H ouses v W ednesbury Corporation [1948] 1 KB 223.

11 For exam ple, Padfield v M in ister o f A griculture, F isheries an d Food [1968] AC 997.
12 R v Secretary/ o f State fo r the H om e D epartm ent ex parte D aly [2001] U K H L 26; [2001] 3 All ER 433.
The H ouse of L ords app ears to apply proportionality to all o r at least m any adm inistrative
decisions, not just those involving hum an rights.
13 For exam ple, R v S hayler [20021 U K H L 11; [2002] 2 All ER 477 HL.
14 R v S ecretary o f State fo r the H om e D epartm ent ex parte D aly [2001] U K H L 26; [2001] 3 All ER 433.
But 'context in all': the courts defer to the executive on national security m atters, see A , X and
Y v Secretary o f State for the H om e D epartm ent [2002] EW CA Civ 1502.
exam ple, they m ay be w ithin the ju risd ictio n of the P arliam en tary O m bu d s
m an 13 or som e other om bu dsm an system ,16 or subject to a p articular system of
financial con trol,17 or subject to the ju risd iction o f a tribunal established
specifically to deal w ith d isp u tes,18 or there m ay be a regulatory agen cy w hich
lays d ow n rules or gu id elin es and investigates com p lain ts,19 or there m ay be
an internal com plain ts system establish ed .20 D ating from the 1990s, the
C itizen s' C h arter has spaw ned a ran ge o f specific charters w hich create
gu id elin es d ealing w ith the relation ship betw een m any pu blic bod ies and the
people they deal w ith21 and so on. The kinds o f d evices ju st m entioned are
often av ailable as alternatives to the cou rts and they play an im portan t role in
the public law relatin g to public bodies, inclu d ing w hen the activities of public
bod ies affect civil liberties.
3.3.5 General and specific legislation

Subject to the general p roviso that the C row n is not bound by legislation
un less the A ct exp ressly says so, ord in ary legislation w hich affects civil
liberties will be b ind in g on pu blic officials. H ow ever, m u ch o f such general
legislation m ay have provisions w hich expressly or im p licitly lim it the
responsibilities o f som e pu blic bodies u n d er the Act. The exem ptions un der
the D ata P rotection A ct 1998, d iscussed in C h apter 19, are exam ples.
M uch legislation is specifically directed at pu blic bodies. Som e o f it aim s to
establish basic principles of good practice and to create som e effective rights
o f citizens. The Freed om of Inform ation A ct 2000, for exam ple, im poses a duty
on listed pu blic auth orities to d isclose inform ation to the pu blic subject to a
range o f exem ptions. D iscrim ination legislation, relating to the ground s o f sex,
race and d isability, is norm ally b ind in g on all persons and pu blic b od ies are
not exem pted . It has tended to focus on em p loym ent and the provision of
com m ercial services. The exercise o f pu blic functions by pu blic bodies has
som etim es been outsid e the scope o f the legislation and gen erally the
legislation has not requ ired pu blic bodies to prom ote good race relations. The
Race R elations (A m end m ent) A ct 2000 now im poses a general d uty not to
discrim in ate on all public au th orities and persons exercising public fun ctions.22
It goes further and lists a large nu m ber o f public auth orities, to w hich the
Secretary o f State can add, w hich are required positiv ely to p rom ote good race
relations in their activities (this d uty w as alread y required o f local cou ncils
un d er section 77 o f the R ace R elations A ct 1976). T h e d uty is exercised by
reference to cod es o f p ractice issued by the governm ent.
15 The Parliam entary C om m issioner A ct 1967, s. 4 and Schedule 2.

16 For exam ple, local councils are subject to the reports and investigations of the Local
C om m issioners; prisoners m ay com plain to a Prisons O m budsm an.
17 For exam ple, the audit system for local councils supervised by the Audit Com m ission.
ls See C hapter 7 for the tribunals dealing with surveillance.
19 For exam ple, the Independent Television Com m ission - see C hapter 11.
20 For exam ple, under the Children A ct 1989.
21 For analysis of the position in 2002 see: D rew ry, G. (2002) 'W hat H appened to the C itizen's
C h arter?', Public Law 9 (Autum n).
22 W ith som e exceptions such as the security services.
4
The police and security services
4.1 Introduction
Civil liberties law focuses attention on those agencies, such as the police and
the security services, w hich exercise the coercive, ultim ately forceful, authority
of the state directly against persons or indirectly through overt or covert
surveillance and investigation. In this chapter w e look at the general legal
position of, in particular, the police but also the security services. The details
of their pow ers are discussed in later chapters.
Police and security services are, by any definition, public authorities
perform ing public functions. The general constitutional and legal principles,
outlined in Chapter 3, apply. Police and security officers are bound by the
general law, have pow ers authorised by statute but can also exercise the
ordinary freedom s enjoyed by private citizens. They exercise w ide discretion
but this is subject to the principle of le g a lity ' and any discretionary action m ay
be subject to judicial review and m easured against the idea of proportionality.
In particular, section 6 the H um an Rights A ct 1998 m eans that actions which
are incom patible w ith the scheduled Convention rights are unlaw ful unless
required by the clear w ords of a statute.
4.2 The police
4.2.1 The police function

The coercive power of the state, particularly powers over personal liberty such
as the pow er to require people to m ove on, to stop, to be searched, to be
arrested and then detained and so on, are exercised predom inantly by the
police. The term 'police' applies to range of forces and organisations which
exercise the police function generally or in specific contexts for specific
purposes. The police function is concerned w ith the m aintenance of the peace,
the protection of the public and the prevention and investigation, but not the
prosecution, of crim inal offences. Included in this is a significant role in
prom oting the security of the state, a role that is shared with the security
services. Unless there is a threat to the peace, the police do not have a direct
role in enforcing the civil law. O ther organisations, such as the security
services and Custom s and Excise, also perform aspects of the police function
and in recent years there has been a m ajor expansion of com m ercial businesses
offering policing services particularly over private land such as shopping malls
and leisure com plexes to w hich the public frequently go.
4.2.2 The organisation of the police

In Britain the general police forces are organised 'locally', broadly speaking on
county and m etropolitan county areas. There are also police forces with
specific and lim ited jurisdiction. In particular the M inistry of Defence Police
has general police pow ers over any person on certain Crow n land. The force
is under the ultim ate authority of the Secretary of State for Defence and the
D efence Council who nom inate its chief constable. Officers have the sam e
'pow ers and privileges of constables', found in com m on law and statute, that
the general police enjoy. They have jurisdiction over m ilitary bases and other
land occupied by the M inistry of Defence and over defence personnel
anyw here in the United K ingdom .1 In respect of M inistry of Defence land,
their pow ers are exercisable against anyone, including, for exam ple, anti-w ar
dem onstrators, and are not confined to forces personnel. O ther forces with
general police powers exercisable w ithin defined places include the British
Transport Police,2 the UK A tom ic Energy C onstabulary and the Royal Parks
Police. There are a num ber of forces w hich are part of the m ilitary and only
have pow ers over m ilitary personnel3 although these pow ers are extensive and
can be exercised in public places.4
4.2.3 National or local police?

The so-called local dim ension to policing in Britain is felt to be better able to
establish consensual, com m unity-based policing and it also is a barrier to the
threats to liberty that a strong, centralised force m ight bring about. On the
other hand there have alw ays been strong argum ents in favour of a national
force in particular in order to give effect to a police force w hose organisation
and capabilities can m atch the organisation and capability of crim inals.5
Though local links are m aintained through, for exam ple, com m unity liaison
and other initiatives, there is clearly a strong centralising tendency in m odern
policing. A part from the position of the H om e Secretary, w hich is discussed
below , there are im portant institutions through w hich national and interna
tional policies can be advanced and prom oted. The A ssociation of C hief Police
Officers m eets to discuss policing issues and coordinate responses to particular
1 Ministry of Defence Police Act 1987, s. 2.

2 Others connected with transport are the Ports of Tilbury and Liverpool forces and the Airport
Police.
3 Including the Royal N avy Regulating Branch, the Royal Military Police, the Royal Air Force
Police and the Royal Marines Police. See A rm y Act 1955, Air Force A ct 1955 and Naval
Discipline Act 1957. The Armed Forces Act 2001, Part 1 keeps these Acts in force and amends
and increases the police powers to which they relate.
4 See, for exam ple, Part 2 of the Armed Forces A ct 2001 over pow ers to stop and search.
5 For discussion see the Royal Commission on the Police (1962), Cm 1728, chapter 5. The
Commission rejected the idea of a national force. A.L. G oodhart w rote a dissenting opinion
arguing for a 'centrally controlled police force, administered on a regional basis'.
The police and security services 63
issues; the Police A ct 1996 allow s police forces to assist each other6 and this
su pport can reflect national priorities throu gh the w ay it is coordinated by the
M utu al A id C oord ination C en tre;7 there are national police resources such as
the police com puter and police training is b ecom in g increasing ly centralised
w ith the establish m ent, un der P art 4 o f the C rim in al Ju stice and P olice A ct
2001, o f a C en tral P olice Train in g and D ev elopm ent A uthority. C rim e does not
recognise cou nty boun d aries and the N ational C rim e Squad, w hich developed
out o f the regional crim e squad system , has a national role in respect o f the
investigation o f serious crim e. Sim ilarly, intelligence gathering is increasingly
organised on a national basis through the N ational C rim in al Intelligence
Service, w hich had a n o n-statu tory existen ce until 1997. B oth o f these
organisations have now been given a statu tory structure under the P olice A ct
1997 and are responsible to their respectiv e sen dee authorities. B ritish police
are also fully involved in variou s international arrangem en ts such as under
Interpol, through bilateral agreem ents w ith o ther forces or throu gh agreem ents
m ad e u n d er the third p illar o f the E uropean U nion on police and judicial
coop eration on crim inal m atters.
4.2.4 The organisation and control of the police force

C on trol o f the 'o rd inary ' police forces in England and W ales is exerted through
the interrelation of three organisations, the police auth orities, ch ief constables
and the H om e Secretary. T h e broad stru ctu re is found in the P olice A ct 1996
w hich w ill be supplem ented by the P olice R eform A ct 2002 (not in force at the
tim e o f w riting).
Police authorities
There is one police auth ority for each p olice force area8 m ad e up of a balance
o f local cou ncillors, m agistrates and ind ep en d en t m em bers appointed by the
other m em bers from a list approved by H om e Secretary.^ It is through the
police au th ority that the view s o f elected local cou ncillors can be m ad e know n.
Their m ain fu n ction is the 'm ain ten ance o f an efficient and effective force for
its area' and m u ch o f it is to do w ith the provision o f resources. T h ey are also
involved in d eterm ining police p olicy b y the d raw ing up, in consu ltation w ith
the ch ief con stable and in the light o f H om e O ffice objectives, o f a p olicing plan
and the setting o f policing objectives. A uthorities also have reporting resp on
sibilities to the pu blic and the H om e Secretary. Su bject to H om e Office
approval, they appoint and m ay d ism iss the ch ief con stable and the assistant
and d ep uty ch ief con stables.10
6 Section 24, Police A ct 1996.

7 The predecessor, the National R eporting Centre, played a crucial role in the suppression of the
m iners' strike 1 984-85; Loveday, B. (1986) 'Central C o-ordination, Police Authorities and the
M iners' Strike', 60 PQ 68.
8 Section 1 -4 , Police A ct 1996. Until the establishm ent of the G reater London Authority, the H om e
Secretary w as the police authority in the London m etropolitan area. Section 310, G reater London
Authority A ct 1999 establishes a police authority for London.
9 Section 4, Police A ct 1996 and Schedule 2.
10 Section 11, Police A ct 1996. For the earlier position see R idge v Baldw in [1964] AC 40.
C h ief constables
C h ief con stables have p rim ary resp onsibility for the 'd irection and con trol' of
their fo rce.11 It is under their authority, not that of the police auth ority, that
d istribution o f resources is d eterm ined, short- and m ed iu m -term priorities set
and officers prom oted and d isciplined. As a 'co n stable' the ch ief con stable is
an 'officer o f the p eace' and is legally and con stitu tionally ind ep en den t o f both
H om e Secretary and p olice authority. N either o f the latter have the p o w er to
instruct a ch ief con stable unless statu te says otherw ise. D ecisions taken by or
un d er the au th ority o f a ch ief con stable can be p o litically charged and highly
controversial. D ecisions abou t the p olicing o f d em onstration s or policies on
d om estic violence or drug enforcem ent are exam ples o f this.
The H om e Secretary
The H om e Secretary has sig nificant statu tory pow ers and duties over the
police forces o f G reat B ritain.12 H om e Secretaries can set national policing
objectives and prod uce cod es o f practice and gu idance o f various kind s w hich
police forces m u st take into account. The H om e Secretary has w id e ran ging
statu tory pow ers over establish m ent m atters such as pay and u n ifo rm 13 and
he or she m ust approv e appointm en ts and d ism issals o f ch ief constables. They
receive both regular and ad hoc reports on policing m atters w hich they can
bring to Parliam ent. The H om e S ecretary 's influence is assured by the fact that
up to 50 p er cen t o f a p olice force's funding com es from a grant that he o r she
auth orises and w hich is m ad e subject to con ditions and to an inspection by the
Insp ector o f C on stabu lary .14 It seem s that the H om e S ecretary has a residual
prerogativ e pow er o f su p p lying ch ief con stables w ith the equipm en t they seek
but w hich their police auth ority has d enied them .15 The pow ers o f the H om e
Secretary to requ ire inspections and resu ltin g action from police authorities,
and to issue gu idance to police auth orities, have been enhanced by the Police
R eform A ct 2002. T he A ct w ill also lay a d uty on the H om e S ecretary to
prod uce a national p olicing plan w hich sets out policing priorities in respect
o f w hich the H om e S ecretary w ill exercise his o r her pow ers.
4.2.5 Police officers

A t com m on law a police officer is an ind ep en den t officer o f the peace and
considered to be a servan t o f the law .1'’ O fficers are not em ployees or agents

12 In particular: Police Act 1996, Part II C entral Supervision, D irection and Facilities, as am ended
by Part I the Police Reform A ct 2002.
13 These pow ers usually need the approval of statutory consultation bodies, in particular the
Police N egotiating Board and the Police A d visory Board.
14 Inspectors of C onstabulary are appointed by the C row n (in effect the H om e Secretary) and
inspect and report on the police forces.
15 R v H om e S ecretary ex parte N orthum bria Police A uthority [1987] 2 W LR 98: the police authority
refused to meet the chief constable's request for funds for riot equipm ent; the request w as met
by the H om e Secretary.
16 A police officer can be referred to as a servant of the C row n and is a 'C row n servant' for the
purposes of the Official Secrets Acts: s. 12(l)(e), 1989 A ct; how ever, police actions are not
attributable to the C row n for the purposes of liability under the C row n Proceedings A ct 1947.
of their ch ief constable, the police auth ority or the H om e O ffice.17 In law a police
officer can be expected and perm itted to exercise independent judgm ent over the
m atters that he or she deals w ith. The reality, o f course, is that police officers are
part o f an organised force led by the chief constable and disobedience of orders is
likely to be a disciplinary matter. Police independence is of practical significance in
respect o f the m ost sen io r officers w ho are entitled to have the d ecisiv e say
particularly over operational matters free from local or central governm ent control.
Police officers are d istingu ished from ord in ary citizens in term s o f various
restraints im posed upon them . T hey are su bject to a d iscip linary regim e w hich
is based on regulations produced by the Secretary of State and ad m inistered
throu gh the office o f the C h ief C onstable. They are not perm itted to join an
ind ep endent trad e un ion ,18 thou gh the P olice Fed eration is created by statute
to represent officers on m atters affecting their w elfare and efficiency;19 a strike
w ould b e con trary to the d isciplinary regulations and organising a strike
probably an offence o f 'causin g d isaffection'.20 T here are also w ide ranging
restrictions on the right o f a p olice officer to take part in local and national
politics in so far as such activity w ould seem to interfere w ith the im partial
disch arge o f his or her d uties.21 This point is taken up in C h apter 13.
4 .2 .6 Political accountability
In relation to both the policies they pu rsu e and their ow n behaviou r, the police
forces can be the subject o f great p olitical controversy. The last thirty years has
seen w idespread and con tin uing con cern over police corrup tion, racism and
relations w ith ethnic m inority groups, the policing o f political d em onstrations
and the p olice's role in bringin g about m iscarriages o f ju stice inclu ding public
interest corrup tion22 and the han dling o f com plaints. T hese are all m atters of
intense p u blic interest and the legitim ate concern of national and local
representative institutions. H ow ever, political accoun tability, to P arliam ent and
local authorities, is problem atic. The issue is how to up hold p roper police
ind ep en den ce and avoid not only corrupt, self-serving political influence and
control over the enforcem ent of the crim inal law in particular cases but also local
special pleading w hich m ay be incom patible w ith the d uty to treat like cases
alike. A t the sam e tim e it is im portant, in a d em ocracy, to allow an effective
representative voice ov er 'p olice policies in m atters w hich v itally con cern the
public in terest'.23
C h ief constables, as w e have seen, m u st report to their police au th ority and
the latter have increased responsibilities for plans and general policies. Police
17 For exam ple, F isher v O ldham Corporation [1930] 2 KB 364.

18 Section 64, Police A ct 1996, though officers can rem ain in trade unions they w ere m em bers of
w hen they joined.
19 Section 59, Police A ct 1996. U nder s. 64(5) the Superintendents' A ssociation is recognised as
representing higher ranks.
20 An offence under s. 91, Police Act 1996.
21 Police Regulations 1995, Part 9, Schedule 2. See D avis, H. (2000) Political F reedom . London:
C ontinuum , pp. 260-2.
22 That is, in w hich persons the police believe to be crim inals are convicted on false evidence
produced by the police.
23 Royal Com m ission on the Police (1962), C m 1728, paragraph 90.
auth orities have m em bers from elected local councils. H ow ever, the Police A ct
1996 w eakened the influence o f local cou ncils by increasing the p roportion of
ind ep en den t m em bers appointed from a H om e O ffice approved list oil police
authorities. Local cou ncils retain a pow er to qu estion police auth orities.24 A s
indicated above, there is a significant rise in the am ount o f 'national policing'
and b od ies such as the N ational C rim e Squad are rem ote from ind ividu al local
authorities.
The H om e S ecretary is accoun table to P arliam ent for those p olicing m atters
w hich are w ithin his or her responsibility. The effectiveness o f P arliam entary
accoun tability and scru tin y is q u estion able and, in any case, H om e Secretaries
do not have d irect resp o nsibility for police policies.
The m ajor d evelopm ents in accou n tability in recent tim es are focused on
direct com m u nity liaison. Police are under a statu tory d uty to establish
com m u nity liaison groups.25 'Institu tional racism ' w as found to exist by the
M acp herson R ep ort26 into the inv estigation o f the m u rd er o f Stephen L aw
rence, a black teenager, and this has led to a ran ge o f initiativ es and changes
in p ractice as regards p olice treatm ent o f ethnic m inorities, a process w hich is
advanced by the provisions o f the Race R elations (A m endm ent) A ct 2000.27
4.2.7 Legal control of the police

The H um an Rights A ct 1998
The police service, as a 'p u blic au th o rity ', is required to act com patibly w ith
the sched uled C on vention rights in the H um an Rights A ct 1998. The im pact of
the C onvention rights on the u se o f force by the p olice is discussed later in this
chapter.
Judicial review
The fact that police are public officials also m eans that the law fulness o f their
actions can be challenged in ord in ary judicial review proceedings, w hich m ay
or m ay not be linked to a hu m an rights issue. In practice the courts recognise
that ch ief con stables enjoy a w id e d iscretion w ith w hich the courts are
reluctant to interfere,2* though the cou rts m ight take action if a ch ief con stable
persisted w ith a policy o f not enforcin g certain law s, such as drug laws.
Section 32(1), Betting Gaming and Lotteries Act 1963 required certain gambling
games to have equal chances between the punter and the bank. The police, as a
matter of policy, decided not to enforce this provision. B sought mandamus (now
called a mandatory order) to require the police to reverse this policy and enforce the
law. The application was refused. The police then changed the policy. B appealed to
the Court of Appeal.

25 Section 106, Police and Crim inal Evidence A ct 1984.
26 M acpherson of Cluny, Sir W illiam (1999) The Stephen L aw rence Inquiry. R eport, C m 4262-1.
London: Stationery Office, chapter 6, paragrap hs 6.39 and 6.45.
27 See C hapter 3.
28 R v C h ief C on stable o f D evon an d C ornw all ex parte C entral E lectricity G en eratin g Board [1982] 1 QB
458; R v O xford ex parte Levey (1986) The Tim es, 1 N ovem ber; R v C h ief C onstable o f Sussex ex parte
International Trader's Ferry Ltd [1999] 2 AC 418.
HELD: although the police have wide discretionary powers over policy, the
discretion is not absolute. The CPM owed a duty to the public to enforce the law and
he could, by mandamus, be compelled to perform this duty. In this case, given the
change in policy, the courts would not interfere.
R v Commissioner of Police of the Metropolis ex parte Blackburn [1968] 2 QB 118
It is alw ays im portan t to rem em ber that even though an officer has the legal
pow er to act in a certain w ay, the reasonablen ess and proportionality o f any
particular exercise of that pow er can be tested in the court.
C ivil liability
Police m ay also be liable for civil actions and claim s for com pensation.
Individual officers can be liable if their actions con stitute a tort. A ctions for
false im prisonm ent, assau lt and battery, or trespass to land are not uncom m on;
actions for m isfeasance in public office are also know n.29 T he ch ief constable,
though the em ployer o f an officer, is vicariou sly liable for such torts and is the
d efen d an t for such actions. D am ages can be paid out o f the p olice fund by the
police au th o rity,30 The attractiveness o f such actions, as an alternative to using
the com plain ts procedu re, has b een lim ited by the C ou rt of A ppeal giving
gu id elin es to ju ries assessing d am ages to be aw arded against the p olice for
u n law fu l conduct. An aw ard o f exem plary d am ages is subject to a m axim um
o f £50,000 in exceptional cases inv olv ing sen io r officers.31 Police officers can
also be liable for the negligent p erform ance of their duties. It is, how ever,
d ifficult to establish that claim ants, other than those un der the d irect and
im m ed iate control of the police, are ow ed a duty o f care.32 A t one tim e it was
thou ght that such public policies w ere incom patible w ith the righ t o f access to
the cou rt un der A rticle 6 E C H R bu t that view is no longer bein g follow ed .33
C om plaints against the police

C ivil action, though it m ay result in d am ages, is expen sive and tim e-
consum ing. T he alternative is to use the police com plain ts process w hich
involves the investigation o f a com plain t and the p u blication o f a report and
links w ith the d iscipline process applied to officers. T h e system o f com plaints
has been reform ed un der the provisions o f the Police R eform A ct 2002.
U nd er the current system , found in the P olice A ct 1996, com plain ts against
sen ior officers are d ealt w ith by the p olice authority; other com plain ts are dealt
w ith by the ch ief constable. In both cases the m ore seriou s com plain ts are
likely to be investigated by officers from another force. If crim inal con du ct is
d isclosed by an investigation the m atter w ill be forw arded to the D irector of
29 For exam ple, Elliott v C h ief C on stable o f W iltshire (1996) The Tim es, 5 December.
30 The Police A ct 1996, s. 88. This provision does not apply to dam ages against the chief constable
him o r herself. It should also be rem em bered that a really serious, self-m otivated assault by a
police officer on a m em ber of the public m ay be outside the scope of duty and thus not establish
vicarious liability: M akan ju ola v C om m issioner o f Police o f the M etropolis [1992] 3 All ER 617 CA.
31 Thom pson v C om m ission er o f P olice o f the M etropolis, H su v C om m ission er o f P olice o f the M etropolis
[1997] 2 All ER 762.
32 H ill v C h ief C on stable o f West Yorkshire [1989] AC 53. Cf. A lexan drou v O xford [1993] 4 All ER 328;
S w inney v C h ief C on stable o f N ortham pton P olice [1997] QB 4 6 4 CA.
33 7. an d others v United Kingdom , Ap. 2 9 3 9 2 /9 5 ; cf. O sm an v United K ingdom (1998) 29 EH RR 245.
Public Prosecutions w ho will decide w hether to bring charges. In other cases

the police authority, for senior officers, or the chief constable, for junior
officers, m ay decide to instigate disciplinary action under the disciplinary
regulations or to take no action.
The fundam ental problem has alw ays been the lack of an independent
elem ent in the investigation of com plaints. U nder the 1996 A ct the Police
C om plaints Authority (PCA) exercises a supervisory and reporting role over
investigations, particularly of the m ore serious or com plex com plaints. This has
been central to im proving the credibility o f the com plaints system . The Police
Reform A ct 2002 will, for the first time, introduce a provision for independent
investigation. W hen brought into effect, the Act will introduce a new system of
handling com plaints. The Police Com plaints A uthority is to be replaced by the
Independent Police Com plaints C om m ission.34 The Com m ission will have a
m ore extensive jurisdiction than the A uthority w hich includes a general duty to
ensure public confidence in the system of handling com plaints. The Secretary
of State will be able to m ake regulations authorising the use of covert
surveillance in police com plaints investigations. The m ost im portant change is
that the Com m ission will have m ore extensive pow ers over the investigation
and handling of com plaints. There are four types of investigation: by the police
authority, supervised by the Com m ission, 'm anaged' by the Com m ission and,
for the most serious offences, a pow er to investigate a com plaint itself using its
ow n staff. The Act introduces, for the most serious and com plex cases, the
independent investigatory elem ent that has been m issing from the system.
4 .2 .8 The general powers of the police

Citizens in uniform
The general pow ers of the police include those that are enjoyed by ordinary
citizens such as m aking sum m ary arrests for 'arrestable offences',35 detaining
persons for breach of the peace36 or entering private property under a duty of
necessity to prevent m urder37 or other serious harm s.38 Police officers enjoy the
sam e freedom s as private citizens to go on the highw ay or other places, like
shops, car parks or shopping malls, w here the public are likely to have express
or implied perm ission to enter. W here, how ever, the police are claim ing to be
acting in the exercise of their duty they m ay, unlike the general public, need
a reason related to that duty to be on the property.39 There are, of course, m any
other reasons w hy the citizen in uniform idea is unrealistic including the fact
that the police are part of a disciplined force and also because, on the basis of
their office, they enjoy a w ide range o f particular pow ers and are subject to
particular duties.
34 The Police Reform Act 2002, Part 2; Schedule 2 establishes the Commission; Schedule 3 details
its investigatory powers. See further, Zander, M. (2002) 'The Police Reform Act 2002' part 2 , 152
7048 N l.l 1387.
35 The pow er of citizen's arrest is retained by s. 24(4), PA CE 1984; its limits are discussed in
Chapter 5.
36 A lbert v. Lavin [19821 AC 547. Breach of the peace is discussed in Chapter 17.
37 H andcoek v Baker (1800) 2 Bos & O 260.
38 For exam ple, to put out fires: Cope v Sharpe (2) [1912] 1 KB 496 CA.
39 See Chapter 6.
K eeping the peace

A t com m on law a p olice officer, a con stable, is un der a gen eral d uty to 'be a
keeper of the peace and to take all necessary step s w ith that in m in d '.40
Two police officers were summoned to a boys club and requested, by the leader of
the club, to ensure that S and H left the club before a ‘disco’ began. The officers did
not suspect that S and H had committed criminal offences. S and H left; then S
returned and struck one of the officers. There ensued a struggle which was joined by
H. S and H were charged with assaulting a constable in the execution of his duty. S
and H alleged that the presence of the police officers in the club was not in the
execution of a duty.
HELD (QBDC): the police were under a general duty to keep the peace which they
were exercising in entering the boys club.
Coffin v Smith (1980) 71 Cr Ap Rep 221
P rivate citizens are not under a sim ilar duty.41 The com m on law accepts there
is a d uty to investigate crim e42 and to take other actions, such as d ealing w ith
b reaches of the peace. Even if off-duty a police officer m ay be still u n d er a duty
to act to m aintain the peace. A t best private citizens m ay do these things
v olu ntarily on the basis o f an im perfect m oral duty.43 The langu age o f 'd uty'
m u st be used w ith care. A ny legal d uty that officers have to p rotect the peace
m u st be pu t in the context, first, o f their ind ividu al discretion and, second , the
law -enforcem ent policies of the force to w hich they belong.
T he con sequ ence o f the p eace-keep in g 'd u ty ' is that the police have
d iscretionary pow er to take actions, in clu ding stop ping, d etaining, arresting
persons and bringin g them before m agistrates for actual or anticipated
b reaches o f the peace. T h ey m ay also enter private property to deal w ith
b reaches of the peace. T he law on this m atter is exam ined in C h apter 17, on
p u blic order.
O bstruction, assault and cooperation

It is an offence, in section 89 o f the Police A ct 1996, to assau lt or to resist or
w ilfully o bstruct a constable, or a person assisting a constable, w here the
con stable is acting 'in the execution of his d u ty '.44 T here is no d irect pow er of
su m m ary arrest for the section 89 offence45 bu t arrest can usually be justified
eith er by a threatened breach o f the peace, for w hich there is a pow er of arrest,
o r un der the gen eral arrest con ditions un der section 25, PA C E 1984.46
T he investigation o f offences is a part o f police duty. T here is, how ever, no
equivalen t legal obligation on citizens to coop erate w ith the police, be civil or
answ er their question s.47 This both exem plifies the liberty of the subject but it
40 Coffin v Sm ith (1980) 71 C r A p Rep 221.

41 See R v D ytham 119791 3 W LR 467.
42 D avis v L isle [1936] 2 KB 434.
43 In A lbert v Lavin [1982] AC 547, Lord Diplock described the citizen's du ty to deal with breaches
of the peace as a 'duty of im perfect obligation' and contrasted the du ty with that of a constable.
44 See also Lew is v C ox [1985] QB 509.
45 W ershof v M etropolitan P olice C om m issioner [19781 3 All ER 540; Feldm an, D. (2002) C ivil Liberties
an d H um an R ights in England an d W ales, 2nd edn. O xford: O xford U niversity Press, p. 328.
46 See C hapter 5.
47 Rice v C onnolly [1966] 2 All ER 649.
is also ju stified in term s o f a person 's righ t not to b e com pelled to answ er
self-incrim in atin g questions. The use o f force to com pel a person to stop in
ord er to ask them question s, w here the police are not intend ing or have no
ground s for an arrest and are not exercising som e other statu tory pow er such
as stop and search,48 is likely to be both outsid e their d uty and an actionable
trespass. The person stopped m ay use reasonable force to resist and escape
and w ill not be assau lting or obstructing the officers in the exercise o f their
duty 49 Tou ching by a p olice officer to attract attention is not outsid e the scope
o f d uty.50 If the person w ho w as u n law fu lly stopped uses d isproportionate
force he or she, w hile not com m ittin g the section 89 offence, m ay be
com m ittin g som e other offence against the person.
Sim ilarly there is no d uty on citizens to report crim e or disclose inform ation
to the police. E xcep tions to this principle can be found in special legislation such
as that d ealing w ith terrorism 51 and w ith com p any d ealings and city takeovers.
In so far as a person is placed un der a crim inal penalty to prod uce inform ation
w hich can then be used to secure their conviction for an offence, such provisions
are likely to violate A rticle 6 EC H R and the rule against self-incrim in ation .52
The Police and Crim inal E vidence A ct 1984

O utsid e o f actions d ealing w ith breach of the peace, the pow ers o f the police
are p red om inantly statutory. T h e core pow ers o f stop and search, arrest,
d etention and entry, search and seizu re are found and defined iii the Police
and C rim in al E vid en ce A ct 1984 (PA C E 1984). The A ct unifies police pow ers
w hich, previously, had often been based on local A cts and varied from place
to place. In im portan t areas, particularly the treatm ent of suspects in police
stations, the A ct provides a statu tory regim e for w hat had p rev iously been
d iscretionary and based on ju dicial guidelines.
Police p ow ers are also found in a host o f other statu tes that p erm it the
exercise of such pow ers in various circu m stan ces or u n d er certain conditions.
O ften the pow ers in these other statu tes can be exercised only o n the basis of
general con ditions established in PA C E 1984. The pow ers in PA C E 1984 are
ad dition al to the com m on law pow ers m entioned above. S om etim es PA CE
1984 exp ressly abolishes one-tim e com m on law pow ers;53 in other circu m stan
ces, such as the pow er to enter property to deal w ith a breach o f the peace, the
A ct exp ressly ad opts the com m on law .54 W here PA C E 1984 does not expressly
or b y im plication abolish a com m on law pow er, the pow er can still be
exercised by the police.55
Th e A ct is supplem ented by detailed gu idance found in C od es o f Practice
produced by the H om e Office u n d er section 66 o f the Act. T hese relate to the
48 See C hapter 5.
49 K enlin v G ardner [1966] 3 All ER 931; Bentley v Brodzinskki (1982) 75 C r A pp Rep 217.
50 D onnelly v Jackm an [1970] 1 All ER 987.
51 For exam ple, under the Terrorism Act 2000 , discussed in C hapter 18.
52 Saunders v U nited K ingdom (1997) 23 EH RR 313 - a controversial case w hich has been both
followed and criticised. The issue is discussed further in C hapter 5.
53 Section 17(5), PA C E 1984 abolishes com m on law pow ers to enter property.
54 Section 17(6), PA C E 1984.
55 For exam ple, a com m on law pow er of seizure of property in Cow an v C om m issioners o f Police o f
the M etropolis (2000] 1 All ER 504, 5 1 1 -1 0 (see C hapter 6).
exercise o f the pow er to stop and search u n d er Part I of the A ct (C ode A ), to

the pow er to search prem ises and to seize p rop erty (C ode B), and to the
detention, treatm en t and questioiiing o f persons b y the police (C ode C). Police
pow ers exercised un der other statu tes are often also subject to these Codes.
The C od es can be am ended or reissued in the light o f changes in the law or
policy and annexes can b e introd uced to deal w ith p articular m atters. The A ct
also em pow ers the H om e S ecretary to prod uce a cod e o f p ractice to deal w ith
tape record ing o f interview s. Revised cod es are in force from A pril 2003.56
E nforcem ent
Breach o f a provision o f PA C E 1984 is not in itself a crim inal offence nor does
the A ct establish legal duties w hose breach, in itself, is an actionable tort. There
are provisions in the A ct w hich provide im portan t p rotection for a suspect, or
w hich are expressed in m an datory term s o r w hich say that con travention
rend ers an action 'u n law fu l'.57 B reach o f such provisions is likely to m ean that
the police cannot claim , unless they have other auth ority, to be acting w ithin
the scope of their d uty and so the offence o f obstruction or assau lt under
section 89, Police A ct 1996 cannot be m ad e ou t.58 T he victim o f such unlaw fu l
action can use reasonable force to avoid its con sequ ences and m ay also be able
to b ring civil p roceedings for dam ages. Som e o f the provisions of PA C E 1984
give effect in English law to C on vention rights, for exam p le a d etain ee's right
o f access to legal advice. B reach of the A ct in this respect can be the basis of
an action un der section 7, H um an R ights A ct 1998.59
Breach o f the C od es, like b reach o f the A ct, is not o f itself either a crim inal
offence or a civil w ron g.60 T he C od es are ad m issible in all crim inal or civil
proceedings,61 inclu ding u n d er section 7, H um an Rights A ct 1998, and any
breach w hich is relevan t to the proceeding m u st be taken into account by the
court. Breach o f a C od e can also be a significant factor in d isciplinary actions
taken against police officers, though a m ere breach is not a d isciplinary m atter.
There is no general princip le in English law requ iring the autom atic
exclu sion o f u nlaw fu lly obtained evid ence, though it is often argued that such
a ru le w ould d eter breaches o f the A ct and the C od es by the police. Sections
76 to 78, PA C E 1984 p erm it a cou rt to exclu d e evidence. C on fessions m ade by
'op p ression ' or w hich, in con sequ ence of any thing said or d one are likely to
be 'u n reliable', m ust be exclu d ed by the court unless the prosecu tion proves
the con trary.62 C on fessions b y m entally han dicap ped persons requ ire special
caution by ju ry or m agistrates.63 U nd er section 78 the cou rt has a d iscretion to
exclu d e u n fairly obtained evid ence if its ad m ission 'w ould have such an
ad verse effect on the fairness o f the p roceedings that the courts ought not to
56 Zand er, M. (2002) T h e Revised PA CE C od es', 152 7039 N L J 1035.

57 For exam ple, s. 16, PA C E 1984 regarding the execution of a w arrant.
58 For exam ple, O sm an v S ou thw ark Crow n Court (1999) C O /2 3 1 8 /9 8 (Smith Bernal).
59 Adhering to the A ct m ight, in principle, also be incom patible w ith the Convention, in which
case a declaration of incom patibility can be issued.
60 Section 67(10), PA CE 1984.
61 Section 67(11), PA CE 1984.
62 Section 76, PA C E 1984. See, on oppression. R v Fullin g [1987] QB 426; on reliability: R v D elaney
[1989] C rim LR 139.
63 Section 77, PA CE 1984.
ad m it it'. Section 78, on the other hand, is concerned w ith the overall fairness
o f the proceedings and if, notw ithstand ing un law fu lness in the w ay evid ence
w as obtain ed, a con viction w ould still be safe, the cou rts m ay still exercise
their d iscretion and ad m it.64 T here is a potential conflict here w ith a su sp ect's
C on vention rights. A rticle 6 E C H R p rovides certain fair trial rights, som e of
w hich are in PA C E 1984 and w hich the state m u st safeguard. Setting aside
these C on vention rights on the ground s that their v iolation is u n likely to result
in a w rongful conviction m ay not be com p atible w ith the C onvention.
4.2.9 General principles governing the exercise of police powers

The specific pow ers o f the p olice are the subject m atter o f m any o f the chapters
that follow . There are, how ever, a nu m ber o f general concepts that govern the
exercise of police pow ers.
Reasonable suspicion
Police action can usu ally only be authorised on the basis that there is a
reasonable su spicion, on the part o f the officer, that a state o f affairs exists
w hich is needed to trigger the action. R easonablen ess and proportionality is,
in any case, a general requ irem ent for all official actions. In som e circu m stan
ces the law offers little guidance; in others, such as the stop and search pow er
un der Part 1 o f the Police and C rim in al Evid ence A ct 1984, the C ode of
P ractice C od e A , gives d etailed gu id ance as to the factors w hich can or cannot
be the basis o f a d ecision to exercise the pow er. T h e general idea of a
reasonable su sp icion is that there is an objective basis to ground s on w hich an
officer d ecides to act. T here m ust, first, be an honest b elief in the existen ce of
triggering facts. But honesty is not enough. The b elief m u st be w ell grounded
in the sen se that facts exist on w hich the honest b elief could be based even if
the b elief turns out to have been m istaken. A m ere hunch is not enough.65
Reasonable 'su sp icio n ' is not a high standard. It does not m ean that the
officer already possesses evid ence w hich, if confirm ed, w ould be sufficient to
convict or otherw ise d em onstrate forbidd en behaviou r. T here can be a
reasonable 'su sp icio n ' even though, on investigation, w hat w as suspected
turns out not to be true. In Castorina v C hief C onstable o f Surrey (1988),66 the
C ou rt of A ppeal rejected , as b ein g too d em and in g, the v iew that the grounds
o f suspicion need to be the existen ce o f reasons w hich w ould lead 'an ord inary
cautiou s m an to the conclusion that the person arrested w as gu ilty o f an
offence'. A lesser basis o f suspicion can be 'reaso n able' and further inv estiga
tion is not required before action based on 'reaso n ab le su sp icio n ', such as an
arrest, can be taken.
M The following are included in the m atters w hich have justified not adm itting unlaw fully
obtained evidence: denial of access to a solicitor; a defendant not being advised on his right to
legal advice; the police not keeping proper records of their actions; plea bargaining; no proper
caution being adm inistered; and the evidence of a m inor interview ed w ithout an appropriate
adult - cited in Bailey, S.H ., H arris, D.J. and Jones, B.L. (1995) C ivil Liberties Cases an d M aterials,
4th edn. London: Butterw orths, p. 160.
65 See, in particular, C ode A , discussed in C hapter 5.
66 [19881 NLJR 180.
R easonable suspicion is firm ly entrenched in the E uropean C on vention on

H um an Rights. A rticle 5(1) perm its d etention on 'reasonable suspicion of
having com m itted an offence'. The leading case is Fox, C am pbell and H artley v
U nited Kingdom (1991)67 in w hich it w as said: . . a "re aso n ab le su sp icio n "
presupp oses the existence o f facts or inform ation w hich w ould satisfy an
o bjective o bserver that the person concerned m ay have com m itted the offence in
qu estion '. H onest b elief is not enough. T h e factual basis need only ju stify a belief
that the person 'm ay ' have com m itted the offence. In M urray and others v U nited
Kingdom (1995)68 the cou rt said: ' . . . facts w hich raise a suspicion need not be of
the sam e level as those necessary to ju stify a con viction or even the bringing o f a
charge, w hich com es at the next stage o f the process o f crim inal in v estigation'.
These cases are terrorist cases and the cou rt im plies that it takes a m ore tolerant
attitu d e tow ard s the police in such circu m stan ces.69 N everth eless it is likely that
the cou rts in B ritain w ill have little difficulty in m akin g the 'reasonable
su sp icion ' criteria in U nited K ingd om statutes com p atible w ith the C onvention.
Serious arrestable offence

A nu m ber o f p olice pow ers, esp ecially those that inv olv e the greatest
in terference w ith liberty, are triggered by the fact that a person is suspected of
a 'seriou s arrestable o ffence', for exam ple the p o w er to d elay a detained
perso n 's righ t to inform a person or to have access to ind ep en den t legal advice.
A n arrestable offence is an offence for w hich the pow er o f sum m ary arrest is
available. It is defined by section 24, PA C E 1984 and is d iscussed in C h apter
5. It relates to offences such as m u rd er for w hich the sen tence is fixed by law ,
offences for w hich a sen tence o f five years' im prisonm ent is av ailable for a first
offender and any other offence listed in section 24(2). A 'seriou s' arrestable
offence is defined in section 116, PA C E 1984. Som e offences are alw ays
'seriou s' no m atter w hat the circu m stan ces and they are either identified in
section 116 or listed in Sch ed u le 5. T h ese inclu de offences such as m urder,
m an slaughter and rape w hich have a com m on law basis and also other,
specified, statu tory offences.70 A ny arrestable offence, even though it is not
listed in sched ule 5, can beco m e 'seriou s' if its com m ission led or w as intended
to lead to certain consequences.
116 M eaning of 'serious arrestable offence'
(6) The consequences mentioned in subsections (3) and (4) above are -
(a) serious harm to the security of the State or to public order;
(b) serious interference with the administration of justice or with the investiga
tion of offences or of a particular offcnce;
(c) the death of any person;
(d) serious injury to any person;
(e) substantial financial gain to any person; and
(f) serious financial loss to any person.
67 (1991) 13 EH RR 157.
68 (1995) 19 EH RR 193.
m Starm er, K. (1999) European H um an R ights Law. London: LAG , 15.60-15.63.
70 The full list is in Schedule 5, Parts 1 and 2. The list can, of course, be added to.
4.3 The use of force
T he use o f force is unlaw fu l unless auth orised by law . T he general position is

d escribed in section 3 o f the C rim in al Law A ct 1967.
3 Use of force in making arrest, etc.

(1) A person may use such force as is reasonable in the circumstances in the
prevention of crime, or in effecting or assisting in the lawful arrest of offenders
or suspected offenders or of persons unlawfully at large.
T his provision replaced com m on law rules existing at the tim e w hich related
to the use o f force for the pu rposes given in section 3. It applies to all persons,
police, m ilitary, other officials or citizens. O ther A cts exp ressly au th orise the
u se o f force to assist in achieving their pu rposes but this auth orisation is
n orm ally confined to a p olice officer or other person w ith constabu lary
p ow ers.71 Section 117, PA C E 1984 applies to the p olice w hen exercising their
p ow ers under the Act.
Section 117 Pow er of constable to use reasonable force

W here any provision of this Act -
(a) confers a pow er on a constable; and
(b) does not provide that the pow er m ay only be exercised with the consent of
some person, other than a police officer,
the officer may use reasonable force, if necessary, in the exercise of the power.
T his pow er w ill authorise, for exam ple, the use o f force to execute a search
w arrant issued un der section 8 o f the Act.
C om m on law perm its the use of reasonable force for other pu rposes than
those found in section 3 of the 1967 A ct. The use o f reasonable force to rem ove
trespassers from land or to resist un law fu l d etention by the police are
recognised , as is the use o f reasonable force in self-d efen ce.'2 Such force m ust
be p roportionate and reasonable. T he fact that a person uses force to escape
u n law fu l d etention by the police m ay enable them to avoid p rosecu tion for
assau lt o f a con stable in the execution o f his duty b u t w ill not p revent a
prosecu tion for an offence against the person, in clu ding m urder, if the force
used is d isproportionate.73
4.3.1 The use of force and Convention rights

T he use o f force by the police, m ilitary and others for w hom the state has
responsibility is subject to the E uropean C on vention on H um an Rights. U nder
section 6 of the H um an R ights A ct 1998, such 'p u b lic au th o rities' act
u nlaw fu lly if they act incom patibly w ith the C onvention. T h e tw o m ain
71 For exam ple, section 2(5) of the Public O rder A ct 1936 authorises the use of force to execute a
search w arrant to give effect to the prohibition on quasi-m ilitary organisations; s. 114, Terrorism
A ct 2000 perm its the use of reasonable force by a constable 'if necessary' for the purpose of
exercising m ost of the pow ers in the Act.
72 R v C legg [1995] 1 AC 482.
73 For exam ple, O sm an v S outhw ark Crow n C ourt (1999) C O /2 3 1 8 /9 8 (Smith Bernal), per Sedley LJ.
C on vention rights in issue are the righ t to life un der A rticle 2, and the
proh ibition o f torture and inhu m an or d egrad in g treatm ent or p u nishm ent
un der A rticle 3.
A rticle 3 74
Torture, inhum an treatm ent or pu nishm ent and d egrad in g treatm ent or
pu nishm ent are sep arate con cepts w hich are distinguished in term s of
severity.75 T orture d enotes the special stigm a that international law places on
'd eliberate inhu m an treatm ent cau sin g very seriou s and cruel su ffering'.76
Inhum an treatm ent or pu nishm ent 'causes intense physical and m ental
suffering' and d egrad in g treatm ent or pu nishm ent 'arou ses in the v ictim a
feeling o f fear, ang u ish and inferiority capable o f h u m iliating and debasing the
victim and possibly b reak ing his or her physical or m oral resistan ce'.77
Inhu m an and d egrad in g treatm ent requ ires a threshold o f severity. L aw ful
punishm ent, for exam ple, brings w ith it its ow n h u m iliation and for A rticle 3
to be engaged som ething m ore than that m u st be alleged .78 M ethods of
policing m ay raise A rticle 3 issues. A police beatin g o f a suspect will be a
violation79 and m ay even be classified as torture if the point is to extract
inform ation from a su sp ect.80 T e ch n iq u e s' em ployed by British security forces
against Irish repu blicans w ere, in the end, only classified as inhum an
treatm ent.81 T here is no ev id ence that, in respect o f A rticle 3, the C on vention
perm its low er standards to be applied in the con text o f opposin g terrorism .
There is a q u estion w hether the com m on law con cept of 'reasonable force'
can gu arantee that C on vention standards are m et. It m ay give a ju ry or court
too m u ch d iscretion so that behav iou r w hich a ju ry accepts as reasonable m ay,
in fact, be too severe or otherw ise not perm itted u n d er the C on vention.82
A rticle 2, the use o f lethal force

Every year a nu m ber o f people are killed by arm ed police.83 T h e use o f lethal
force is governed by A rticle 2 o f the C onvention.84 In M cC ann v U nited Kingdom
the C ourt o f H um an Rights, in a case concerned w ith the use o f lethal force by
the U nited K in g d o m 's arm ed forces, identified som e o f the general principles
u n d erlyin g A rticle 2.
Members of a suspected Provisional IRA active service unit, believed to be planning

an attack, were followed into Gibraltar. The SAS were sent to assist the Gibraltar
74 For text see C hapter 2.

75 Ireland v U nited Kingdom (1979-80) 2 EH RR 25.
76 Ireland v U nited K ingdom (1979-80) 2 EH RR 25, paragrap h 167.
78 See C hapter 9.
79 R ibitsch v A ustria (1996) 21 EHRR 573. i n respect of a person deprived of his liberty, any
recourse to physical force w hich has not been m ade strictly necessary by his ow n conduct
dim inishes hum an dignity and is in principle an infringem ent of the right set forth in Article 3
of the C onvention' (paragraph 38). Starm er, op. cit., paragrap hs 1 5.81-15.87.
80 A ksoy v Turkey (1997) 23 EH RR 553.
81 Suspects w ere m ade to stand for hours in uncom fortable postures, hooded, deprived of sleep,
subjected to disorientating noise and deprived of food and drink.
82 /I v U nited Kingdom (1999) 27 EHRR 611.
83 The organisation Inquest provides som e inform ation - see h ttp ://w v w .in q u e s t.o r g .u k /.
84 For full text see C hapter 2.
authorities and they subsequently shot and killed the IRA suspects. Relatives of the
dead claimed that the killings violated Article 2.
HELD (ECHR): that the actions of the soldiers did not in themselves violate the
Convention. However, by a majority of 10 to 9, it was held that aspects of the planning
and control of the operation violated Article 2. In particular, the decision to allow the
suspects to enter Gibraltar rather than to arrest them at the border, the fact that
assumptions made by the planners, such as that the suspects had remote control
means of detonation, were communicated to the soldiers as certainties rather than
possibilities and the policy of the SAS of only shooting to kill, together meant that the
decision to use force was more than was absolutely necessary.
McCann and others v United Kingdom (1996) 21 EHRR 97
In the cou rse o f its ju d g m ent the C ou rt recognised the fundam ental natu re of
the righ t to life. It held that A rticle 2 should be interpreted in ord er to give
practical and effective protection to people. Thus A rticle 2(2) is not confined
to intentional killing bu t includes situ ations w here there is a use o f force
that m ay result in unintended death. Such force can only be used com patibly
w ith the C on vention in so far as its use is confined to the achievem en t o f one
o f the p u rposes listed in A rticle 2(2) (d efence o f any person from unlaw fu l
violence, to effect a law ful arrest, to p revent an escape from law ful custod y or
to quell a riot or insurrection) and is no m ore than is absolu tely necessary in
the p articular circu m stan ces. The test of w hether force is no m ore than
absolu tely necessary is m ore rigorou s than the test for w hether a restriction is
'n ecessary in a d em ocratic society '; lethal force is not ju stified m erely becau se
it m eets a pressing social need. T h e use o f force m ust, in the circu m stances,
have been strictly p roportionate and is to be subjected , by the court, to the
m ost careful scrutiny. As w as clear from M cC ann, such scru tin y can include
exam in in g the d ecisions m ad e in the cou rse o f the planning and control o f the
operation.
T h e C ou rt in M cCann held that the reasonablen ess test in section 3 o f the
C rim in al Law A ct 1967 could be com p atible w ith the C onvention. The
im plication of this is that d om estic courts should ensure that, in the
circu m stan ces o f a particu lar case, the effect o f the reasonablen ess test is not
m ore accom m od ating o f the use o f lethal force by the auth orities than is the
test of absolu te n ecessity under A rticle 2.
A rticle 2 also requ ires states to take positive step s to ensure that som e form
o f ad equ ate investigation o f d eath s is undertaken. The inv estigation m u st be
thorough and ind ep en den t but need not take any p articular form 85 nor need it
be in public.86 T here have been strong criticism s o f the inad equ acies o f the
investigations of killings by the police and into d eaths in custod y87 in U nited
K ingdom prisons and you ng offend er institutions. T h e influence o f A rticle 2,
145 A thorough coron er's inquest in the G ibraltar killings case w as sufficient.
86 In Taylor v U nited Kingdom (1994) 79-A D&R 127, the Com m ission found no breach of Article 2
w hen killings by a hospital nurse w here investigated by an independent panel sitting in private.
87 For exam ple, the case of Zahid M ubarak, a British Asian prisoner detained in a young offender's
institution and killed by his known racist cell m ate. An independent investigation w as ordered
by the High C ou rt on 6 O ctober 2001. The C row n Prosecution Service is to re-exam ine its
decision in the case of C hristopher A ld er w ho died while in police custody: The Independent, 25
Septem ber 2001. See: R (A m in) v Secretary o f State for the H om e D epartm ent [2002] EW CA Civ 390.
w ith w hat are arguably its higher and m ore dem anding standards, ought to
be significant in this area. A rticle 2 m ay also require that a state's laws enable
persons affected by the use of lethal force to bring civil proceedings. In the
U nited Kingdom , for exam ple, any rule by w hich negligence actions in such
circum stances are ruled out on public policy grounds m ay possibly be
inconsistent w ith positive duties under A rticle 2.8S
4.4 Security and intelligence services
The security and intelligence services w ere established, originally, under the
general prerogative pow er of the Crow n, recognised by the com m on law, to
organise its activities as it will. The services have now been put on a statutory
footing which both, to a limited degree, advances the general cause of
openness in governm ent and helps to establish the legal basis of any activities
of the secret services that interfere with individuals' Convention rights.
The m ain agencies are the Security Service (M I5), the Secret Intelligence
Service (MI6) and the General C om m unications H eadquarters. These are now
publicly acknow ledged. A civil service com m ittee, the Joint Intelligence
Com m ittee, identifies and reviews the m ain intelligence needs of the country
and the agencies w ork to those policies. There is, how ever, a w ider
'intelligence com m unity' going beyond these agencies. The Defence Intelli
gence Staff serves the M inistry of Defence, som e other governm ent depart
m ents and the armed forces. It is part of a larger netw ork of undisclosed
intelligence-gathering organisations for w hich the M inistry of Defence,
through the C hief of Defence Intelligence, has overall responsibility and for
w hich he or she is accountable to the Secretary of State and the Prime
M inister.89
4.4.1 The Security Service

The Security Service was established in 1909 and becam e known as M I5 in
1916. Its m ain concern is with threats to national security that m anifest
them selves w ithin the United Kingdom. Its pow ers are now based on the
Security Service A ct 1989, as am ended by the Security Service A ct 1996. The
Act defines the functions of the Service and establishes a Director-G eneral who
is appointed by the Secretary of State. He or she is responsible for the general
efficiency of the Service and has a few other statutory duties. The Director-
G eneral reports to the Prim e M inister and the Secretary of State. Com pared
w ith the statutory regim e governing the police forces the provisions of the
1989 Act are paltry.
The functions of the Security Service are defined in section 1.
88 The issue would be one of providing a proper rem edy for the breach of a Convention right.
89 Though the Defence Intelligence Staff is publicly acknowledged, the existence of the undisclosed
network of intelligence agencies is inferred from the defence budget, Bradley, A. and Ewing, K.
Constitutional and Adm inistrative Law, 12th edn. London: Longmans, p. 637.
The Security Service

( 1) . . .
(2) The function of the Service shall be the protection of national security and, in
particular, its protection against threats from espionage, terrorism and sabotage,
from the activities of agents of foreign powers and from actions intended to
overthrow or undermine parliamentary dem ocracy by political, industrial or
violent means.
(3) It shall also be the function of the Service to safeguard the economic well-being of
the United Kingdom against threats posed by the action or intentions of persons
outside the British Islands.
(4) It shall also be the function of the Service to act in support of police forces, the
National Criminal Intelligence Service, the National Crime Squad and other law
enforcement agencies in the prevention and detection of serious crime.
T he scope of these pow ers is consid erable. T h e civil libertarian issue is w hether
the pow ers au th orise the Secu rity Serv ice to interfere w ith legitim ate political
activity in a m an ner that is not justified b y a potential threat. T h e 'u n d erm in
ing of P arliam en tary d em ocracy by p olitical, ind ustrial or violent m ean s'
auth orises a possible role for the Secu rity Serv ice against rad ical o pposition
groups and trad e u n ion s organising strikes that perhaps should be the concern
o f the police. Su bsection 4 w as added by the Secu rity Service A ct 1 9 % and
reflects the need for the secu rity services to red efine their role after the end of
the Cold W ar. It increases the con cern that the Secu rity Serv ice m ay be used
against legitim ate civil d isobedience sin ce 'seriou s crim e' is defined, in part,
by reference to non-serious crim e bein g conducted by persons acting in a
group such as, for exam ple, peace activists u n dertakin g civil disobedience.
4.4.2 Special Branch

Intelligence-gathering and the taking o f action against internal 'su bv ersio n ' is
also undertaken by the Sp ecial B ranch w hich w as form ed in 1883 to act against
Irish repu blican bom bing cam paigns. Sin ce 1945 each police force has its ow n
Sp ecial Branch. T h e Special B ranch is integrated w ith the police forces and has
no d istin ct statu tory role. H om e O ffice G u id elin es identify its fu n ction as
prim arily concerned w ith intelligence-gathering and assessm en t in respect of
n ational secu rity and to assist the Secu rity Service.90 T h e role o f the special
b ran ches m ay be less significant as the risk of internal subversion has been
d ow ngraded after the C old W ar, the lead in telligence-gathering group on
anti-terrorism is the Secu rity Serv ice and general crim inal in telligence is
increasingly focused on the n ationally organised N ational C rim inal Intelli
gen ce Service.
4.4.3 Secret Intelligence Service

S pying for B ritain is un dertaken by the Secret In telligence Service. Like the
S ecu rity Service, it w as establish ed u n d er the p rerogativ e bu t has now been
90 H om e Office (1994) G uidelines on Special Branch W ork in G reat Britain, reproduced at h t t p :/ /

w w w .sco tIan d .g o v .u k /h m ic/d o cs/fp eo -12.asp .
placed on a statutory footing by the Intelligence Services A ct 1994. Its functions

are lim ited to obtaining inform ation about the activities of persons outside the
British Islands. The Service is led by the C hief of the Intelligence Service who
is appointed by the Secretary of State and w ho reports to the Prim e M inister
and the Secretary of State. The Intelligence Services Act 1994 also gives
statutory authorisation to the G overnm ent Com m unications H eadquarters
which is under the control of a Director appointed by the Secretary of State.
4.4.4 General powers

The A cts of Parliam ent that provide a statutory basis for the security and
intelligence services say little about their general powers. There is nothing
equivalent to the Police and Crim inal Evidence A ct 1984 to give security and
intelligence agents specific pow ers and to subject them to specific duties. They
are public authorities and, under the H um an Rights Act 1998, they act
unlaw fully if they fail to respect Convention rights in their dealings. There is
likely to be an obvious problem of evidence and, in any case, in respect of
surveillance, it is not the courts but a special tribunal, the Security Tribunal,
which will adjudicate a H um an Rights Act 1998 claim. Their pow ers are,
therefore, m ainly those of ordinary citizens. O ther than Special Branch,
security agents do not enjoy the pow ers and privileges (and duties) of
constables. M uch intelligence-gathering can be done by law ful activities;
how ever, if either the crim inal law or the civil law is broken, there is no legally
recognised exem ption for security officials though the courts have som etim es
seem ed to turn a blind eye to various form s of covert breaking and entering
undertaken by the Security Service.91 The m ajor exception to this lack of legal
regulation relates to those surveillance activities w hich m ay involve unlaw ful
activity such as trespass. H ere the Intelligence Services Act 1994 and the
Regulation o f Investigatory Pow ers Act 2000 provide a pow er to apply for
warrants to undertake surveillance activities, although certain restrictions are
attached to the power and through the w ork of a C om m issioner and a Tribunal
there is a process for supervision and the handling of com plaints. These
m atters are described in Chapter 7.
4.4.5 Scrutiny and accountability

The distribution of functions betw een the police and security and the
intelligence services involves a political judgm ent on w hether a m atter is
subversive or m erely crim inal. The secret nature of the services m eans that
there is inadequate public accountability for that judgm ent as there is in
respect of the covert activities of the services w hich interfere w ith both the
political and private freedom of individuals and associations.
The basic responsibility of the services is directly to the executive,
particularly to the Prim e M inister. In 1964 the Security Com m ission was
established w ith a brief to report to and advise the Prim e M inister of security
breaches, especially those located in the public service. The Com m ission sits
91 A ttorney G eneral v Guardian Newspapers (No. 2) [19901 AC 109, per Lord Donaldson, 190.
as required and is norm ally chaired by a retired law lord. Its reports are
published. It does not prov id e general, continuous oversigh t o f the security
services, and is not responsible to Parliam ent.
Prim e M inisters have been v ery reluctant to perm it m ore than rather
general, inform al links betw een the secu rity services and Parliam ent. Select
C om m ittees, such as D efence and H om e A ffairs com m ittees, have found it
difficult to obtain the m eans for ad equ ate scrutiny. Sim ilarly the P arliam entary
O m bu dsm an , w ho reports to Parliam ent, does not have ju risd iction over
national security m atters.92 Section 10 o f the In telligence Services A ct 1994
establish es the Intelligence and Secu rity C om m ittee w hich, for the first tim e,
provides for som e d egree o f significant P arliam en tary scru tin y o f the w ork of
the secu rity and in telligence services. The m em bers o f this com m ittee are
sen io r backbench M em bers o f Parliam ent. There rem ains con sid erable execu
tive influence sin ce they are all appointed b y the P rim e M in ister in con su lta
tion w ith the L ead er o f the O pposition. The rem it o f the C om m ittee is to
'exam ine the expen diture, ad m inistration and p o licy' o f the three services.93 As
such they are able to receive sen sitive inform ation, though the extent o f this
m u st rely on the m utual trust betw een the C om m ittee and the services.
Sensitive inform ation can be w ithheld from the C om m ittee.94 T hey rep ort in
general term s to the P rim e M inister and not to Parliam ent. T h ey can rep ort on
particular issues p articularly if invited to do so by the S ecretary o f State.95
A lth ou gh the C om m ittee has con sisten tly affirm ed the high quality o f the
in telligence and secu rity com m u nity in the U nited K ingd om , it is w idely
accepted to take a seriou s and critical ap proach to scru tiny and to have had a
significant effect on im proving the public accou n tability o f the secret services.96
The surveillance activities o f the secret services are review ed and reported
on by the Intelligence Services C om m ission er and to the S ecu rity T ribunal
w hich deals w ith com plain ts from the public. T hese m atters are discussed in
C h apter 7.
4.5 Other organisations
A large ran ge o f o ther state org anisations have pow ers w hich im pinge in one
w ay or another on civil liberties and m ay raise h u m an rights questions.
C u stom s and Excise, for exam ple, have con sid erable pow ers o f investigation;
they are am on g the bodies w hich, as d iscu ssed in C h apter 7, have pow ers to
o btain various w arrants and perm issions under the R egu lation o f Inv estiga
tory P ow ers A ct 2000.
The increasing use o f private secu rity organisations to perform police
functions should be noted. In p articu lar such private firm s are used for
92 Parliam entary Com m issioner A ct 1967, s. 5(3) and Schedule 3, e.g. paragrap h 5.
93 Section 10(1), Intelligence Services A ct 1994.
94 Intelligence Services A ct 1994, Schedule 3, paragrap h 3(2). The Secretary of State can withhold
non-sensitive inform ation: schedule 3, paragrap h 3(4).
95 See Intelligence and Security C om m ittee (2000) T he M itrokhin Inquiry R eport, C m . 4764. London:
Stationery Office.
96 For exam ple, Fenwick, H. (2000) Civil R ights, N ew Labour Freedom an d the H um an R ights A ct.
H arlow : Longm an, pp. 3 3 3 -5 .
security in places w hich, though p riv ately ow ned , are those to w hich the
public have access such as shop p ing m alls or leisure centres. T he extent to
w hich the general law and, in particular, the H um an R igh ts A ct 1998 m ight be
relevant here is d iscu ssed in C h apter 17 in the con text o f pu blic order. Private
security com panies are subject to a lim ited d egree o f regulation.
5
Police powers: stop and search,
arrest and detention
5.1 Introduction
T he state, acting through its agents such as the police, claim s the m on op oly of
the exercise o f legitim ate force. T he claim is, first, to estab lish the conditions
in w hich others can use force, such as parents on their child ren, and, second,
to exercise force directly in various circu m stan ces such as the identification,
investigation and p u nishm ent o f crim inal behaviou r. T his coercive pow er of
the state to detain people, to m ake them m ove on, to search their person or
their property is p red om inantly exercised by the police. O ne o f the central
issues of civil liberties law is the identification and analysis o f the legal pow ers
and duties o f the police.
5.2 Police questions
As d iscussed in C h apter 4, the police do not have a p o w er to stop som eone

sim ply to question them . T h ey are u n d er a legal duty to m aintain the peace
and inv estigate crim e but citizens are not u n d er a related d uty to coop erate
w ith the police other than in a few specifically identified circu m stances.
5.3 Stop and search
Sto p p in g and search in g people in public places, w hen there are no or

insufficient reasons to think that an arrestable offence has been com m itted , is
one of the m ost con troversial pow ers enjoyed b y the police. There are tw o
m ain auth orities for this pow er. P art 1 of the P olice and C rim in al Evid ence A ct
1984 gives a pow er to stop and search for stolen or prohibited goods and
section 60 o f the C rim in al Ju stice and Public O rd er A ct 1994 allow s stopping
and search in g for d angerou s instrum en ts and offensive w eapons in circu m
stances w here violence is likely. A d d itional p ow ers apply in a terrorist context.
5.3.1 Part 1, Police and Criminal Evidence Act 1984

[PART 1]
[POWERS OF STOP AND SEARCH]
1. Pow er of constable to stop and search persons, vehicles, etc.
Pólice pow ers: stop and search, arrest and detention 83
A constable m ay exercise any power conferred by this section -

(a) in any place to which at the time when he proposes to exercise the power
the public or any section of the public has access, on payment or otherwise,
as of right or by virtue of express or implied permission; or
(b) in any other place to which people have ready access at the time when he
proposes to exercise the power but which is not a dwelling.
Subject to subsection (3) to (5) below, a constable -
(a) m ay search -
(i) any person or vehicle;
(ii) anything which is in or on a vehicle,
for stolen or prohibited articles or any article to which subsection (8A) below
applies; and
(b) m ay detain a person or vehicle for the purpose of such a search.
T his section does not give a con stable pow er to search a person or v ehicle or
anything in or on a vehicle unless he has reasonable ground s for suspecting
that he w ill find stoleii or prohibited articles o r any article to w hich subsection
(8A) b elo w applies. (Subsections 4 and 5 are referred to in the text below ;
section 8A applies to offences u n d er section 139, C rim inal Ju stice A ct 1988
w hich are offences involving knives and bladed articles.)
P ublic places
T he pow er to stop and search can be exercised in places to w hich the public
have access not only as o f right (such as the highw ay) bu t also places such as
shops, shopping m alls, leisure com plexes or football stadium s w hich are
p rivately ow ned and operated but to w hich the pu blic have access on paym ent
or on the basis o f express or im plied p erm ission; it can also be exercised on
any other land to w hich the public have access as a fact even if there is no legal
en titlem en t (e.g. a h igh w ay bein g used obstructively). T h e pow er to stop and
search can be exercised on 'p riv ate' land but it cannot be exercised in a
d w elling hou se though it can used against a person on land attached to a
d w elling (e.g. w here a person goes from the street into the garden o f a private
house) bu t not against a person w ho is a resid ent in the d w elling or w ho is on
the land w ith the perm ission o f such a resident. Sim ilarly vehicles cannot be
searched if they are in the charge o f a resid ent o f the land they are o n .1 Part 1
o f PA C E does not extend the rights o f the p olice to enter property; a con stable
can only exercise the pow er if he or she has the righ t to be on the land in
question.
Stolen and prohibited goods

Stop and search can only be exercised in resp ect o f stolen goods, prohibited
articles or knives and other bladed articles. A prohibited article is defined, by
section 1(7), as, firstly, an 'offensive w eapon'. T his is d efined w id ely to include
not only articles m ade or adapted for causin g injury to persons but also any
article w here the im m ed iate circu m stan ces give rise to a reasonable suspicion
that the thing is intended to cause injury. A prohibited article can also be
1 Section 1(4) and (5), PA C E 1984.

som ething m ad e, adapted or carried in con nection w ith theft, burglary and
other offences under the Theft A ct 1968.2 Stop and search can also be used to
find knives and other bladed articles as defined by section 139, C rim inal
Ju stice A ct 1988. A ny article w hich a con stable reasonably believ es to be stolen
or prohibited etc. can, u n d er section 1(6), be seized.
A n offensive w eapon is defined in term s of the police view o f the con text of
its use. Political bann ers, for exam ple, can easily becom e offensive w eapons if
the police believ e that, in the con text o f a d em onstration that is or m ight
becom e d isord erly or violent, a bann er could be intended to cause injury to
persons. T here is a H um an Rights A ct issue here since a political ban n er is a
form o f p olitical expression and enjoys p rotection under A rticle 10 ECH R.
A rticle 10(2) w ill perm it seizu re to prevent d isord er so long as the pow er is
sufficiently clear and precise to m eet the 'prescribed by law ' test and so long
as any p articular act o f seizu re is necessary in a d em ocratic society and
prop ortionate in the circu m stan ces. The stop and search pow er is, on its face,
w id ely d raw n and w ill need to be interpreted w ith these C on vention restraints
in m ind. Sim ilarly, articles w ith religiou s significance, such as cerem onial
sw ords, w ill be protected u n d er A rticle 9 ECH R, the freed om to m an ifest o n e's
religiou s b elief in public. T h e freed om can be restricted on sim ilar ground s to
freed om o f expression.
The extent o f the search

The natu re or extent o f the search perm itted is lim ited. A search in pu blic view
cannot inv olv e requ iring the rem oval o f clothing, other than outer clothing .1 A
m ore extensive search, such as requ iring the rem oval o f a T -sh irt, should be
condu cted out o f pu blic view in a nearby police station or police van. An
intim ate search requ ires special au th orisation u n d er section 55, PA C E 1984,
bu t other than that, no further lim its on the type o f search that m ay be required
are given in the A ct. N oth in g in the A ct prevents a strip search, for exam ple,
so long as it is based on reasonable suspicion and not d one in public. The C ode
m akes various provisions aim ed at m inim isin g em barrassm ent.4 A d isp ro p o r
tionate search or one done in d em eaning circu m stan ces m ay be unlaw ful, even
if only p olice officers are present,5 by virtue o f the H um an R ights A ct 1998 and
A rticle 3 ECH R.
R easonable suspicion
A con stable m u st have 'reasonable ground s for suspecting that he w ill find
prohibited articles' etc. as a result o f the search. A person against w hom no
reasonable su sp icion can lie cannot be detained in ord er to find ground s for
reasonable suspicion.6 R easonable suspicion is d iscussed in C o d e A. T h e C ode
recognises that reasonable suspicion d ep ends on the circu m stan ces o f the case
2 The offences are identified by s. 1(7), Police and Crim inal Evidence A ct 1984.
5 PA C E 1994, s. 2(9)(a).
4 C ode A , paragrap h 3.
5 Tyrer v United Kingdom (1 9 7 9 -8 0 ) 2 EHRR 1.
6 As observed bv C ode A, paragrap h 2.1. See Black v D PP, 11 M ay 1995, Lexis transcript CO
8 7 7 -9 5 .
P olice p o w ers: sto p a n d sea rch , a rrest a n d d eten tion 85
b u t re q u ire s an o b je c tiv e b a s is .7 E x a m p le s o f w h a t th a t m ig h t b e a re g iv e n an d
in c lu d e a c tio n ta k e n o n th e b a s is o f in fo rm a tio n a b o u t a c rim e o r a s u s p e ct, o r
o n th e b a s is o f o b se r v in g a p e rso n a c tin g 'c o v e r tly o r w a rily '. F a ilu re to
c o o p e r a te w ith th e p o lic e is n o t, in itse lf, th e b a s is fo r re a s o n a b le su sp ic io n .
S, a 30-year-old black male of good character, was walking slowly home through an
area in which there had been a number of burglaries. He was observed looking around
by police. He was questioned without being stopped but refused to give cooperative
answers. He was detained under the stop and search power. After a struggle he was
arrested and detained for four hours in a police station. He brought an action for
assault and false imprisonment against the police.
HELD (CA): his slow speed of walking and his looking around was not an objective
basis on which reasonable suspicion could be based; nor could reasonable suspicion
be based on his refusal to give cooperative answers since, as a matter of law, he was
entitled not to answer police questions. S’s appeal against the loss of his civil action
was allowed.
Samuels v Commissioner of Police for the Metropolis, 3 March 1999, Lexis, Smith
Bemal CA
T h e C o d e is e m p h a tic th a t th e o b je c tiv e g ro u n d s c a n n o t b e b a se d o n p e rs o n a l
fa c to rs o r s te re o ty p e d im a g e s a lo n e , th o u g h it d o e s n o t p re v e n t s u c h issu e s
fro m c o n trib u tin g to th e g r o u n d s fo r a s ea rch .
1.7 . . . reasonable suspicion can n ever be su p p o rted on the basis of p ersonal factors
alone w ithou t su pp ortin g intelligence o r inform ation. Fo r exam p le, a p erso n 's colour,
ag e, hairstyle o r m an n er of d ress, o r the fact that he is know n to h ave a p reviou s
conviction for possession of an unlaw ful article, can not be used alone or in
com bination w ith each o th er as the sole basis on w hich to search that person. N or
m ay it be founded on the basis of stereotyped im ages of certain p ersons o r g ro u p s
as m ore likely to be com m ittin g offences.
D e s p ite th is, s to p an d s e a rch h a s b e e n h ig h ly c o n tro v e rsia l b e c a u s e o f

s ig n ific a n t e v id e n c e o f its d is p ro p o rtio n a te u s e a g a in s t y o u n g b la c k m a le s in
c e rta in u rb a n a re a s .8 C o n tr o v e rs y a b o u t th e u s e o f th e p o w e r c o n tin u e s.
5 .3 .2 Stop and search under other pow ers

O th e r A c ts g iv e th e p o lic e th e p o w e r to s to p an d s ea rch . E x a m p le s 9 are
s e a rc h e s in p u b lic p la ce s fo r fire a rm s u n d e r th e F ire a rm s A ct 1 9 6 8 , fo r
c o n tro lle d d ru g s u n d e r s e c tio n 2 3 (2 ) o f th e M isu se o f D ru g s A ct 19 7 1 , a n d fo r
a lc o h o lic d rin k s an d o th e r a rtic le s w h o s e p o s se s sio n is m a d e u n la w fu l u n d e r
th e S p o rtin g E v e n ts (C o n tro l o f A lc o h o l e tc.) A ct 1985. T h e re a re s ig n ific a n t
s to p an d s e a rch p o w e rs in th e T e rro ris m A ct 2000.
7 See C a sto rin a v C h ie f C o n s ta b le o f S u rrey (1 9 8 8 ) 138 N L J R ep 1 8 0 w h ich d e a ls w ith reaso n ab le

su sp icio n an d th e p o w e r o f arrest.
8 See B ailey , S .H ., H a rris , D .J. an d Jo n es, B .L . (1 9 9 5 ) C iv il L ib erties C ases a n d M a teria ls, 4 th edn .
L o n d o n : B u tterw o rth s, p. 83.
9 F o r a full list see C o d e A , A n n ex A.
5.3.3 Section 60, Criminal Justice and Public Order Act 1994
T his section, as am ended by the K nives A ct 1997, perm its a con stable in
un iform to stop and search people in a p articular locality. A police in sp ecto r,10
or m ore senior officer, m u st b elieve that incid ents o f 'seriou s v iolence' in the
locality are likely or that persons are carrying 'd ang erou s instru m en ts or
offensive w eapons' there. T h e pow ers un der section 60 can be used for a
period o f 24 hou rs and can be extend ed for another 24 hours if the auth orising
officer believ es it exped ien t to do so. The pow ers are: to stop and search any
ped estrian or v ehicle and its d river and passengers for offensive w eapons or
dangerou s instrum en ts; to requ ire a person to rem ov e clothing by w hich their
identity m ay be hidden and to seize any offensive w eapons or d angerous
instrum en ts found. It is an offence not to stop w hen required to do so b y a
con stable exercising this pow er.
Th e central point is that these pow ers allow ran dom stop s in the sense that
the p olice do not need to have reasonable suspicion that the person searched
is in possession o f an offensive w eapon or d angerou s instrum ent. T here is no
express pow er to d etain and this m ay m ean that only search es that can be
condu cted on the basis o f a m inor interference w ith liberty can be authorised
un der the A ct. The pow ers have a place in policing political d em onstrations
w hich, in the view o f the police, threaten to becom e violent.
5.3.4 Safeguards
Sections 2 and 3, PA C E 1984 introd uce safeguards w hich apply gen erally to
stop and search pow ers inclu ding those u n d er section 60 o f the C rim inal
Ju stice and Public O rd er A ct 1994.” In p articular the con stable m akin g the
search m u st identify him self and m ake clear the p u rpose o f the search and
w hy it is thou ght necessary. If a search is m ad e of an unattended vehicle, a
note d etailin g the search m u st be left. N o one can be detained for longer than
is requ ired to perm it the search to be carried out properly. Section 2 im poses
express m an datory duties on the police and represents im portan t protection
fo r the citizen. A search con du cted w ithout, for exam ple, the police properly
identifying them selves w ill be unlaw ful and u n d ertaken outsid e their d u ty .12
A con sequ ence o f this is that reasonable resistin g force against the police m ay
not be a crim inal obstruction or assault. Section 3 details the record o f the
search that m u st be taken.
5.3.5 Vehicle checks and road blocks

The pow er o f the police to stop vehicles fo r norm al road traffic p u rposes is
found in section 163 o f the Road Traffic A ct 1988 w hich sim ply im poses a duty
on a d river or cyclist to stop if requ ired to do so by a con stable in uniform .
10 A uthorisation by an inspector m ust be confirmed by a m ore senior officer.

" PA C E 1984, s. 2(1 )(b). Searches under s. 27, Aviation Security A ct 1982 are expressly excluded.
12 Osm an v Southw ark Crow n C ou rt, 1 July 1999, transcript C O /2 3 1 8 /9 8 . The case involved a search
w ithout reasonable suspicion under s. 60, Crim inal Justice and Public O rder Act 1994 but
applies also to any search covered by s. 2, PA CE.
Police pow ers: stop and search, arrest and detention 87
Section 163 stipu lates no lim iting pu rposes for stop p in g cars nor does it
requ ire that there should be reasonable suspicion o f som e un law fu l activity.
Section 163 can be used for ind ividu al stop s but it can also be used to set up
a general road block to w arn of a danger or even, controversially, random ly
to seek evid ence for d rink d riv in g 13 (though not to breathalyse). W here the
police w ant a road b lo ck in ord er to search for a person w ho is believ ed , on
reasonable ground s, to have com m itted a serious arrestable offence, been a
w itness to such an offence, is intend in g to com m it such an offence or is
un law fu lly at large, then section 4, PA C E 1984 m u st be used. A section 4 road
check requ ires auth orisation by at least an officer o f su p erintend ent rank,
unless there is a situ ation o f urgency. A person stopped is entitled to a w ritten
explanation o f the p u rpose of the check.
5.3.6 Stop and search and Article 5 ECHR

The com p atibility o f the pow er to stop and search w ith the C on vention rights
scheduled to the H um an R ights A ct 1998 raises a nu m ber o f issues. A s has
already been m entioned the seizu re o f objects w ith political or religious
significance m ay involve A rticle 10 (freedom of expression) or A rticle 9
(freedom o f thought, con scien ce and religion). A ny search m u st not be so
hu m iliating as to violate A rticle 3 (w hich prohibits d egrad in g treatm ent). If
stop and search is used in a racially d iscrim in atory fashion then A rticle 14,
w hich bans d iscrim in ation in the w ay the other C on vention rights are
protected, m ay be involved - so long as one o f the other C on vention rights is
also in issue.
It is not certain that A rticle 5 ,14 w hich deals w ith a person w ho has been
'd eprived o f his lib erty ', is necessarily engaged by stop and search. Part 1,
PA C E 1984 has not been d irectly considered by the Strasbou rg court. W hether
there has been a d ep rivation o f liberty d ep en d s up on a ran ge o f factors such
as the type o f interference, the d uration o f any d etention and so o n .15 Stopping
som eone for a short tim e w ith the pu rpose of search in g them m ay not trigger
A rticle 5 protection. Thus in X v G erm any (1981 )16 there w as no violation, in
the view o f the C om m ission , w hen the ap p lican t w as questioned by p olice in
ord er to obtain inform ation u n d er a law w hich gav e p olice no pow er to detain;
sim ilarly in H ojem eister v G erm any (1983)17 a d eten tion incid ental to a law ful
search w as held, again b y the C om m ission , not to raise A rticle 5 issues.
Section 1, PA C E 1984, b u t not section 60 o f the C rim in al Ju stice and Public
O rd er A ct 1994, expressly perm its a person to be detained for the p u rposes of
the search. A d etention for a significant period o f tim e, esp ecially if linked w ith
an extensive search un dertaken, perhaps, at a police station, w ould be likely
to engage A rticle 5. Fu rtherm ore, there appear to be reasons for thinking that,
in som e circu m stan ces, such a d eten tion m ay be hard to ju stify u n d er the
13 G went v D ash [1986] RTR 41; DPP v Wilson [1991] RTR 284.
14 A rticle 5 is quoted in full in C hapter 2.
15 See G uzznrdi v Italy (1981) EH RR 333, paragrap h 92.
16 (1981) 24 DR 158.
17 (1983) unreported 6 July 1981, cited by Starm er, K. (1999) European H um an Rights Law . London:
LAG, p. 432.
Article. A rticle 5(1) identifies the exclusive reasons for w hich a person can be
deprived of their liberty and these do not expressly accom m odate the
purposes of stop and search.
Article 5(1 )(b) perm its law ful detention 'to secure the fulfilm ent o f any
obligation prescribed by law '. But w hat obligation is secured through stop and
search? The obligation to subm it to the search is one possibility, but that rather
begs the point. The Court of H um an Rights requires a specific legal duty and
does not accept upholding the law generally as an obligation prescribed by
law .18 An obligation not to carry articles w hose possession is expressly banned
by law, such as knives and other articles with blades under section 139 o f the
Crim inal Justice A ct 1988, m ight suffice. W hether this would extend to all
prohibited articles is doubtful especially since the possession of an offensive
weapon is not in itself an offence and the identity of such a w eapon, since it
can depend upon the police view of context, m ay not meet the 'prescribed by
law ' requirem ent of A rticle 5(1 )(b).
Article 5 (l)(c) perm its lawful detention on reasonable suspicion of having
com m itted an offence. This, of course, is em phatically not a necessary
condition for the exercise of stop and search. A rticle 5(1 )(c) also requires an
intention of bringing the person detained before a court w hich, again, is not
the point of stop and search. H ow ever, a stop and search m ight well be
justified, in som e circum stances, as being 'reasonably considered necessary to
prevent [the person searched] from com m itting an offence'. This could im pose
a difficult evidential burden on the police. The point is that a non-trivial and
lengthy stop and search will not be autom atically com patible w ith the
Convention; com patibility will depend on the likelihood that the search will
disclose articles w hose possession is already unlaw ful or w hose discovery and
rem oval is, on reasonable grounds, necessary to prevent the com m ission of an
offence.
5.4 Arrest
5.4.1 The concept of arrest

An arrest occurs w hen a person is placed under the com pulsory physical
control of the arrester. Police officers and citizens can m ake arrests, although
on som ew hat different grounds. A rresting som eone is a significant m om ent in
the crim inal justice process in w hich the state takes control of that person's
personal freedom . Reasonable force can be used to give effect to a lawful
arrest. Conversely, the arrested person m ay use reasonable force to resist an
unlaw ful arrest. A police officer m aking an unlaw ful arrest will not be acting
in the course of duty. The pow er of arrest is not confined to the crim inal law
and can be found in other contexts such as mental health or child protection.
An arrest can be law fully achieved by physical restraint or by clear words.
In either event the physical act or the use of the w ords m ust be calculated to
bring to the arrested person's notice that he or she is now under direct coercive
IS Engel v N etherlands (1979-80) 1 EHRR 647, paragraph 69; C uzzardi v Italy (1981) EHRR 333,
paragraph 101, noted by Starm er, op. cit., p. 441.
auth ority.19 The arrested person m u st be aw are that he or she is under

com pulsion and, at least for a tim e, su bm it to it. Shouting 'I arrest you ' at
som eoiie w ho is running aw ay from the scene o f the crim e, is not the m aking
o f a valid arrest.
5.4.2 Article 5 ECHR

A n arrest involves the d ep rivation o f liberty and so is w ithin the sco p e of
A rticle 5 ECH R. A rticle 5(1 )(c) covers arrest for a crim inal offence.
First, any arrest m u st be 'law fu l'. It m u st be in accord ance w ith a ru le of
d om estic law and the law in qu estion m u st have identified the ground s and
procedu res for arrest w ith sufficient clarity for them to be follow ed. T h e legal
basis o f the pow er to arrest in England and W ales is alm ost en tirely statu tory
and is expressed w ith sufficient p recision to m eet the 'prescribed by law '
requ irem ent o f A rticle 5. Such statu tes m ust, un der section 3 o f the H um an
Rights A ct 1998, be interpreted for com patibility w ith the C onvention. A rrest
for breach o f the peace, still a com m on law m atter, has been retained by virtue
o f section 25(6), PA C E 1984 but has been sufficiently refined by the cou rts as
to the scope and the circu m stan ces for its use that, as a general p rovision, it is
com patible w ith A rticle 5.20
Second ly, any arrest m u st be based on reasonable suspicion and this is
clearly part o f E nglish law . Both C on vention and E nglish law requ ire there to
be an objective basis to the su sp icion but accept that that basis need s to be the
existen ce o f sufficient evid ence to justify a crim inal charge. N evertheless
E nglish case law has, in the past, ind icated a v ery m inim al factu al basis for
reasonable suspicion. In M oham m ed-H olgate v D uke (1984),21 for exam ple, a
d escrip tion coupled w ith the fact that the p laintiff lodged in the prem ises from
w hich the theft took place, w as found to be sufficient to ju stify arrest by the
ju d g e at first instan ce and to be not set asid e on appeal.22 It is arguable that a
higher level o f suspicion is required u n d er the H um an Rights A ct 1998.
T hird ly, A rticle 5 requ ires an intention by the arrester that the su spect be
brou ght before a com p etent court. T here m u st be at least the p ossibility of a
charge at the tim e o f the arrest. The fact that no charge u ltim ately m aterialises
from the prosecu ting auth orities does not affect the com p atibility o f the arrest
w ith the C onvention. In E nglish law it can be an u n reason able exercise o f the
d iscretion to arrest if it can be proved by the su spect that the arresting officer
knew no p rosecu tion w as p ossible.23 An arrest, other than for breach o f the
peace, in w hich there w as no intention o f p u rsu ing the m atter w ith the
p rosecu tin g au th orities bu t sim ply aim s to rem ove the person from the scene,
19 A lderson v Booth [1969] 2 QB 216.

20 Steel an d others v U nited K ingdom (1988) 28 EH RR 603. The developm ents in English law are
given the approval of the C ourt of A ppeal in Bibb\j v C h ief C onstable o f Essex (2000) 164 JP 297.
Breach of the peace in a political context is discussed in C hapter 17 below. It rem ains the case
that particular instances of arrest for breach of the peace can violate the Convention.
21 [1984] 1 All ER 1054.
22 See also W ard v C h ief C on stable o f A von an d Som erset Constabulary/ (1986) T he Tim es, 26 June, CA,
and C astorin a v C h ief C on stable o f Surrey (1988) NLJ Rep 180. See, generally, B lackston e’s C rim inal
Practice (1999) London: Blackstone Press, D1.5.
23 Plange v C h ief C onstable o f South H um berside Police, 23 M arch 1992, T he Times.
w ould be incom patible w ith C on vention rights, and, d ep en d ing on the

circu m stan ces, be an u n reason able exercise o f pow er and, if kn ow in g and
deliberate, could be actionable as a m isfeasance in public office. H ow ever, the
fact that police have ad dition al reasons for arrest, such as rem oving the
suspect from his hom e so that a surveillance device can be planted , does not
rend er unlaw fu l an arrest on other ground s w hich is law ful.24
Both the C on vention and the ord in ary principles o f English ad m inistrative
law requ ire any particu lar arrest to be a p roportionate act. T he d ecision by a
police officer to arrest is the action o f a pu blic official. T his m eans that ev en if
the pow er for arrest exists, the law also requ ires that the p articu lar arrest is a
p roportionate exercise o f d iscretion in the circu m stances.
5.4.3 Grounds for arrest

In sum m ary the ground s for arrest are: (1) arrest by a p olice officer on the
auth ority of a w arrant; (2) sum m ary arrest (i.e. arrest w ithout a w arrant) by a
police officer or private person for an 'arrestab le offence' as defined by section
24, PA C E 1984; (3) sum m ary arrest only by a police officer for any crim inal
offence w here the 'arrest con d itio ns', in section 25, PA C E 1984, apply; (4)
sum m ary arrest by a police officer (occasionally a private person) under
express p ow ers in other statutes.
W arrants
Section 1(4) o f the M agistrates' C ou rt A ct 1980 p erm its the issue o f an arrest
w arrant in respect o f a person w ho has reached 17 years old, w ho is charged
w ith an ind ictable or an im prisonable offence, or w hose address, for the service
o f a sum m ons, is not know n. For lesser offences the issue of a sum m ons is the
prop er initial cou rse but an arrest w arrant can be issued if the sum m ons is not
answ ered .25 A rrest w arrants can be issued in other circu m stan ces such as in
the con text of extrad ition or w here arrest pow ers are attached to other orders
such as in the con text o f d om estic violence injunctions. A w arrant is issued to
the police on the basis o f a sw orn statem ent and it is not clear how closely the
ground s o f reasonable suspicion are inquired into by m agistrates. U nder
section 17, PA C E 1984 the p olice have the pow er to enter prem ises w ithout a
w arrant in ord er to execu te an arrest w arrant.
G eneral w arrants, w hich do not identify in d ividu ally the person or persons
to be arrested but, for exam ple, pu rport to auth orise the arrest o f anyone found
on certain prem ises or to identify a role (such as 'p u blish er') and leave it to
the police to identify and arrest w hoev er that person is, are u nlaw fu l.26
Sum m ary arrest

Su m m ary arrest - arrest w ith o u t a w arrant - d ispenses w ith even the
som ew hat m inim al ju d icial oversigh t o f reasonable suspicion o f arrest by
w arrant. Sum m ary arrest is perm itted to police and citizens in relation to
24 R v C halkley [1988] 2 All ER 155.

25 Section 13, M agistrates' C ou rts A ct 1980.
26 M oney an d others v I,each (1764) 1 Black. W 555; 96 ER 320.
'arrestable offences', to the police w here they are given arrest pow ers in
respect o f other offences, to the police for any offence if the 'gen eral arrest
con d itions' ap p ly and for breach o f the peace.
Section 24, PA C E 1984 defines 'arrestable offences' for w hich sum m ary
arrest is perm itted.
24 Arrest w ithout w arrant for arrestable offences

(1) The powers of sum m ary arrest conferred by the following subsections shall
app>y -
(a) to offences for which the sentence is fixed by law;
(b) to offences for which a person of 21 years of age or over (not previously
convicted) m ay be sentenced to imprisonment for a term of five years (or
might be so sentenced but for the restrictions imposed by section 33 of the
Magistrates' Courts Act 1980); and
(c) to the offences to which subsection (2) below applies.
The m ain offence for w hich the sen tence is fixed by law is m u rd er for w hich
a life sen tence is m andatory. A ran ge of seriou s offences are found in
subsection 2. T h ese can and have been added to by am en dm en ts introduced
by other statutes. T h e p ow er o f sum m ary arrest also applies to conspiring,
attem pting, inciting, abetting, cou nselling or p rocurin g arrestable offences.
Sum m ary arrest for an arrestable offence m ay be done by a police officer or
civilian. The arrest pow er of the non-p olice officer is now a m atter of
con sid erable im portan ce not only for store d etectives b u t also for the
burgeoning nu m bers o f those em ployed in the private secu rity industry. Pubs,
clubs, leisu re centres, shopping m alls and m an y other places w here the public
go in large nu m bers are, in effect, policed by private secu rity organisations.
This is a sen sitive issue w hich m ay need general regulation.27 A long-stand in g
restriction o f the au th ority o f priv ate citizens to m ake sum m ary arrest is
retained. Police and private citizens m ay arrest w ithout a w arrant som eone
w ho is or is reasonably suspected o f bein g in the act o f com m ittin g an
arrestable offence.28 T he police, but not a private citizen, can arrest if they have
reasonable ground s to believe that an arrestable offence has taken place and
they have reasonable ground s for suspecting the arrested person com m itted
the offence.29 Fu rtherm ore the police, but not a priv ate person, m ay arrest
som eone w here there are reasonable ground s to believe that the person is
about, in the im m ed iate futu re, to com m it an arrestable offence.
The m ain point o f difference, therefore, is that a priv ate person w ho
pu rports to arrest som eone w ho they have reasonable ground s to b elieve
com m itted an arrestable offence in the p ast lays them selves open to a tort
action if it transpires that an arrestable offence w as not, in fact, com m itted. The
d istin ction betw een the pow ers o f police and priv ate citizen is trad itional30 and
the cou rts have refu sed to d ispense w ith it.31
27 Parpw orth, N. (2000) 'The Citizen's Pow er of A rrest', Ju stice o f the Peace, 3 June.
28 Section 24(4), PA C E 1984.
29 Section 24(6), PA C E 1984.
30 Allen v W right (1835) 8 C & P 522; 173 ER 602
31 W alters v W.H. Sm ith [1914] KB 595.
92 H u m a n R ig h ts a n d C iv il L ib erties
S was stopped by a store detective who had reasonable grounds to suspect him of
theft. S assaulted the detective and ran off. A member of the public witnessed the
events and gave chase and arrested S on suspicion of theft. S was later acquitted of
theft.
HELD: S's conviction for assault was overturned; he successfully argued that he
was entitled to resist the attempts to stop him.
f l v S e lf[ 1992] 3 All ER 476
W h e re it is in ten d ed to g iv e an a rre st to o th e r sta te ag en ts, su ch as th e arm y ,

th ey w ill on ly h a v e th e o rd in a ry citizen 's p o w e r of a rre st an d a n y ad d itio n al
p o w e rs, su ch as on reaso n ab le su sp icio n th at an arrestab le offence h as been o r
is likely to b e c o m m itte d , will req u ire sp ecial s ta tu to ry au th o risatio n .
Section 25, P A C E 1984 p e rm its a p olice officer, th o u g h n o t a citizen , to m ak e
s u m m a ry a rre st on reaso n ab le su sp icio n th at a n y offence, in clu d in g an offence
w h ich is n o t an arrestab le offence, h as been c o m m itte d b y th e su sp ect. The
g ro u n d of a rre s t u n d e r section 25 is th at it a p p e a rs to th e officer th at 'serv ice
of a su m m o n s is in p racticab le o r in a p p ro p ria te b eca u se a n y o f th e g en eral
a rre st co n d itio n s is satisfied '.
25 G en eral arrest co n d itio n s
(3) The general arrest conditions are -

(a) that the nam e of the relevant person is unknown to, and cannot be readily
ascertained by, the constable;
(b) that the constable has reasonable grounds for doubting w hether a name
furnished by the relevant person as his nam e is his real name;
(c) that -
(i) the relevant person has failed to furnish a satisfactory address for
service; or
(ii) the constable has reasonable grounds for doubting w hether an address
furnished by the relevant person is a satisfactory address for service;
(d) that the constable has reasonable grounds for believing that arrest is
necessary to prevent the relevant person -
(i) causing physical injury to him self or any other person;
(ii) suffering physical injury;
(iii) causing loss of or dam age to property;
(iv) com m itting an offence against public decency; or
(v) causing an unlawful obstruction of the highway;
(e) that the constable has reasonable grounds for believing that arrest is
necessary to protect a child or other vulnerable person from the relevant
person.
(4) . . .
(5) Nothing in subsection (3)(d) above authorises the arrest of a person under
subsection (iv) of that paragraph except where mem bers of the public going
about their normal business cannot reasonably be expected to avoid the person
being arrested.
T his is clearly a v e ry b ro a d p o w e r of a rre st in re sp e ct of o th erw ise

n o n -arrestab le offences. S ection 2 5 (3 )(d )(v ), for e x a m p le , can easily b e u sed
ag ain st p olitical d e m o n s tra to rs w h o o b stru ct th e h ig h w a y o r a g a in st the
h om eless. T h ere is n o in d ep en d en t ju dicial su p erv isio n of this g ro u n d for
arrest, nor is there any C od e o f P ractice covering the w ay it is pu t into effect

by the police. W hen relying on section 25, a police officer m u st have had the
pow ers in the section in m ind as auth orising the arrest at the tim e it w as m ade.
Section 25 cannot provide a retrosp ectiv e ju stification for an arrest on other
ground s w hich w as unlaw fu l or w as not, but could have been, m ade on
section 25 gro u n d s.12 It should be assu m ed , p articularly regarding the H um an
Rights A ct 1998, that the reasonablen ess o f th e b elief in the need for an arrest,
e.g. u n d er subsection (3)(e), m u st contain an objective basis and be m ore than
an honest hunch or a general prejudice. The honest belief, for exam ple, that
certain categories o f people give a false nam e is insufficient to ju stify arrest
under section 25(3)(b).33
Section 26, PA C E 1984 repeals the pow er o f sum m ary arrest by p olice found
in any A ct enacted befo re PA C E cam e into effect. Sch ed u le 2, PA C E 1984
contains a list o f specific exceptions to this rule. Fu rtherm ore, it w as held in
G apper v Som erset C onstabulary (1988)34 that sum m ary arrest in A cts of
P arliam ent survived the section 26 repeal w here the pow er o f sum m ary arrest
w as enjoyed by police and priv ate citizen alike and w as not confined to the
police. E xam p les o f the surv iving p o w er o f sum m ary arrest are: section 6 of
the V agrancy A ct 1824 in respect o f various offences of beggin g and unlicensed
ped dling; and section 3 of the Theft A ct 1978 w hich allow s an arrest, w hile the
offence is bein g com m itted, for m akin g off w ithou t paym ent. The section 26
repeal o bv iou sly has no effect on pow ers o f sum m ary arrest enacted since
1984. A nu m ber o f statu tes em p ow er usually con stables, often w ith a
requ irem ent that they be in uniform , to m ake arrests. T h ese are not arrestable
offences in the strict sense o f the w o rd . O ffences u n d er the P ublic O rd er A ct
1986 and the C rim in al Ju stice and Public O rd er A ct 1994 provide good
exam ples.
C itizen s and p olice m ay have equal pow ers to arrest for an occurring or
im m inen t breach o f the peace.35 This is d iscussed further in C h ap ter 17.
5.4.4 Information when arrested

The legality o f an arrest and hence o f any p hysical resistance to that arrest m ay
depend on w hether p roper inform ation has been given to the person arrested.
The person arrested m u st be inform ed o f the fact that he or she is under
com pulsion and w hat the ground s o f arrest are.36 The point is now given a
statu tory basis by section 28 o f the P olice and C rim in al E vid en ce A ct 1984.37
Sim ilar provisions are found in A rticle 5(2) ECH R.
W hether sufficient inform ation has in fact been given is a m atter for the
m agistrate or ju ry38 un less the inform ation given w as n ot capable o f ju stifying
32 E dw ards v D P P (1993) C r A pp Rep 301.

33 G v D PP [1989] C rim LR 150.
34 11998] 4 All ER 248.
35 A lbert v Lavin [19821 A C 547.
36 C hristie v L eachinsky [1947] 1 All ER 567.
37 Parpw orth, N. (2000) 'Section 28 of PA CE and Unlawful A rrest', Ju stice o f the P eace, 1 July.
38 Standard exam ples are: G elberg v M iller [1961] 1 All ER 291 com pared with R v Telfer [1976]
C rim LR 562.
the arrest.39 The inform ation m u st be given at the tim e of arrest or as soon as
practicable afterw ard s, it m u st be sufficient to enable the arrested person to
know that he or she is un der com pulsion and it m u st give a general idea of
the offence in issue. The w ord 'arrest' need not be used; 'y o u 're n icked ', for
exam ple, w ill probably do.40
Inwood went voluntarily to a police station and submitted to questions about the
possession of stolen goods and a search. He was cautioned but not charged. When
he tried to leave he was restrained. Following a struggle he was charged and
convicted of assault of a constable in the execution of his duty.
HELD (CA): the conviction would be set aside. The police had a duty to ensure that
a suspect knew he or she was under compulsion.
R v Inwood [1973] 2 All ER 645
In C larke v C h ief C onstable o f N orth Wales P olice (2000)41 the issue w as w hether
the statem ent that the su spect w as arrested 'on suspicion o f p ossession of
controlled d rugs' w as sufficient explanation given that possession is only an
arrestable offence for certain classes o f controlled drugs. T he m ajority o f the
C ou rt o f A ppeal accepted that the arrested person w ould have understood that
she w as bein g arrested for a seriou s offence related to the possession o f a
controlled drug for w hich they had the p o w er to arrest. For Sedley LJ,
d issen ting on this point, the pu rpose o f the inform ation requ irem ent is to
perm it challenges to the legality o f the arrest, therefore, given the fact that the
pow er o f arrest dep ended on w hether or not the drugs in issue w ere o f a
particular class, further inform ation, albeit expressed in a n on-technical w ay,
ought, perh aps, to be a requirem ent.
A rticle 5(2) E C H R has been said to requ ire the arrested person to be told
'the essential legal and factu al ground s fo r his or her arrest'42 and E nglish law
seem s to m eet this requirem ent. T he Strasbou rg court has accepted that the
disch arge o f the d uty m ay depend on the circu m stan ces, allow ing m ore
flexibility, for exam ple, to the police in terrorist cases. A rticle 5(2) also requ ires
that the arrested person should be inform ed of the ground s o f arrest in a
language he or she u n d erstand s and, u n d er the H um an Rights A ct 1998, this
m u st now be a factor to be consid ered w hen assessing the legality, u n d er
section 28, PA C E 1984, o f the arrest of a non-E nglish speaker.
5 .5 T r e a tm e n t o f a r r e s te d p e r s o n s
5 .5 .1 S e a rc h a t th e tim e o f a rr e s t
Section 32, PA C E 1984 perm its a person arrested aw ay from a p olice station
to be searched at the tim e o f arrest. The p o w er o f the p olice to search in these
39 R. v A bbassy v M F C [19901 1 W LR 385 w here being arrested for 'unlaw ful possession' w as said
to be capable of justifying arrest for unlaw fully taking and driving aw ay a vehicle; w hether it
w as sufficient in the circum stances w as a m atter for a jury.
40 C larke v C h ief Constable o f North Wales [20001 W L 345127, paragrap h 36, quoted in Parpw orth
(2000), op. cit.
41 The Independent, 22 M ay 2000.
42 Fox, C am pbell an d H artley v United Kingdom (1991) 13 EH RR 157, paragrap h 40.
circu m stan ces m u st be based on a reasonable b elief that the arrested person
m ay be a danger to him or herself, or that he or she has on them som ething
that m ay assist their escape or be evid ence relating to 'an offence' (i.e. not only
the offence for w hich the arrest w as m ade). Item s relevant to the pu rpose of
the search m ay be seized. O nly a superficial search is perm itted in public.
Fuller search es, inclu ding a strip search bu t not an 'intim ate search ', could be
done aw ay from the pu blic gaze, in the privacy o f a p olice van, perhaps. These
pow ers o f search m u st be exercised in con form ity w ith A rticles 3 and 8 ECH R
w hose provisions in this con text are d iscussed below .
Th e police m ay enter and search the prem ises in w hich the su spect w as
im m ed iately before arrest. This can, o f course, involve the search o f the
v ictim 's prem ises. Likew ise, the hom e or other prem ises w hich are occupied
or controlled by an arrested person m ay be entered and searched and anything
relating to the offence m ay be seized. T hese pow ers are only to search for and
seize ev id ence relating to the offence. H ow ever, a police officer undertaking
such search es w ill be law fully on the prem ises and so has a p ow er u n d er
section 19, discussed in C h ap ter 6, to seize any thing reasonably believed to be
there as a con sequ ence o f crim e - any crim e and n ot ju st the one for w hich the
arrest w as m ade.
5.5.2 Designated police stations

Perhaps the m ost im portant innovations of the Police and C rim inal E vidence A ct
1984 relate to the treatm en t o f persons in police stations. T here are a ran ge of
rights enjoyed by suspects and duties required of the police. In particular the Act
created the role of custody officer. C ustod y officers m ust be at least of the rank of
sergeant. T heir basic d uty is to ensure that detained persons are treated
accord ing to the provisions o f the A ct and the C od es of Practice it authorises.
'D esignated p olice stations' are those properly equipped to deal w ith suspects
under the PACE 1984 provisions. Section 30, PACE 1984 requires that an arrested
person is taken to a designated police station as soon as is practicable after arrest.
5.5.3 Detention
A n arrested person m ay be charged w ith an offence and released , w ith or
w ithout b ail, or d etained w ithout b ein g charged. A nother possibility is
im m ed iate release. T his w ould be n ecessary if it becam e obviou s that the
ground s for arrest no lo n ger applied. Im m ed iate release w ithout there being
changes in the circu m stan ces m igh t im ply that the arrest had not been m ade
w ith a view to bringing the arrested person before the courts. T h is w ould
m ake the arrest unlaw fu l in relation to A rticle 5(1 )(c) EC H R .43
The m ain focu s o f civil liberties con cern is on a d ecision to d etain an arrested
person. A rticle 5 E C H R requ ires that no one shall be dep rived o f their liberty
other than on the basis o f a 'p roced u re prescribed by law ' and section 34(1),
PA C E 1984 stipu lates that 'A person arrested for an offence shall not be kept
in police detention except in accord ance w ith the provisions . . . ' o f the Act.
43 Unless the arrest w as for breach of the peace.

Judicial supervision and A rticle 5(3) ECH R

A rticle 5(3) requ ires that anyone arrested u n d er A rticle 5(1 )(c) (i.e. for
com m ittin g a crim inal offence) m u st be brou ght prom ptly before a judicial
officer or, alternatively, released prom ptly.44 The point is that the ground s of
detention should be subject to som e d egree of ind ep endent judicial su p erv i
sion by a court w hich has, if necessary, the pow er to o rd er the su sp ect's
release.45 Prom ptly has not been given precise definition by the Strasbou rg
institutions. In Brogan and others v U nited Kingdom (1989)46 the shortest period
o f d etention before the suspects w ere taken before a cou rt w as 4 days and 6
hours and this w as held to violate A rticle 5(3) even in the context, in that case,
o f terrorism . A period o f four d ays w as too long in the con text o f a blackm ail
case in B rincat v Italy (1993).47 T he m axim um period o f police d etention
allow ed un der the P olice and C rim in al E vid en ce A ct 1984 is 36 hours. L onger
periods requ ire auth orisation by a m agistrate.
D etention o f suspects w ho are charged

W hen an arrested person arrives at a d esignated police station, a custod y
officer m u st d eterm ine w hether there is or is not sufficient evid ence to charge
the suspect. U nless the arrest is on the basis of a w arrant endorsed for bail,
the su spect m ay be detained for that pu rpose.48 If there is sufficient evidence,
the su spect should be charged .49
If charged the suspect m u st be released , either w ith or w ithou t bail, unless
certain con ditions exist. The p resu m p tion in favour o f 'release pend ing trial'
in A rticle 5 E C H R is thus met. A charged suspect can be detained on the
ground s specified in section 38(1), PA C E 1984. T hese are, in sum m ary, that the
su sp ect's nam e and ad dress cannot be con v incingly ascertained or that the
suspect m ay fail to an sw er bail, that (for a su sp ect charged w ith an
im prisonable offence) detention is necessary to p revent the su spect com m itting
further offences or (for a suspect charged w ith a non-im prisonable offence)
causing injury to another person or d am age to property or in terfering w ith the
ad m inistration o f ju stice, or that d eten tion is necessary for the su sp ect's ow n
protection. The d etention o f a ju venile w ho has been charged can also be on
the ground s that d etention is necessary 'in his ow n interests'. T h e custod y
officer m u st m ake a w ritten record o f the reasons for the d ecision to detain.
The d eten tion o f charged suspects m ust be review ed , b y the custod y officer
acting as a review officer, in accord ance w ith the provisions o f section 40,
PA CE 1984, w hich are discussed below .
U nd er A rticle 5 EC H R the C ou rt o f H um an R ights has identified four
ground s for the refusal of bail: the threat of abscond ing, interference w ith the
cou rse o f ju stice, com m ission o f further offences and the p reservation of public
order. Som e o f the ground s in section 38(1), PA C E 1984 for not releasing
44 Brogan an d others v U nited Kingdom (1989) 11 EH RR 117, paragraph 58. See Starm er, op. cit., p.
231.
45 S chiesser v Sw itzerland (19 7 9 -8 0 ) 2 EH RR 417. See Starm er, op. cit., p. 233.
46 (1989) 11 EH RR 117.
47 (1993) 16 EH RR 591.
48 PA CE 1984, s. 37(1).
49 PA CE 1984, s. 37(7).
charged suspects ap p ear not to be com p atible w ith the Strasbo u rg ground s -
for exam ple, the provision p erm itting refu sal o f release to a ju venile becau se
it is in his or her ow n interests. O f cou rse these Strasbou rg ground s are general
and are open to an in terpretation w hich m ay inclu de m u ch o f section 38(1).
A lso the principal p u rpose of A rticle 5(3) is for there to b e prom pt review of
detention by an ind ep en den t judicial officer, such as a m agistrate, w ho can
ord er release. Persons charged w ith offences m ust, u n d er section 46, PACE
1984, be brou ght before m agistrates as soon as is p racticable and, in m ost cases,
this m eets the 'p rom p tness' requ irem ent o f A rticle 5(3).
D etention o f suspects who are not charged

If the custod y officer takes the v iew that there is not sufficient evid ence for a
charge, the su spect should b e released eith er w ith or w ithout bail. The custod y
officer m ay, how ever, ord er the d etention o f the su spect on certain grounds.
37 D uties of custody officer before charge
(2) If the custody officer determines that he does not have such evidence before him
[to justify charging the suspect], the person arrested shall be released either on
bail or without bail, unless the custody officer has reasonable grounds for
believing that his detention without being charged is necessary to secure or
preserve evidence relating to an offence for which he is under arrest or to obtain
such evidence by questioning him.
(3) If the custody officer has reasonable grounds for so believing, he m ay authorise
the person arrested to be kept in police detention.
A w ritten record o f the d ecision to d etain m u st be m ade.

D etention for question in g in ord er to obtain ev id ence that w ill confirm or
deny a reasonable suspicion is com patible w ith A rticle 5 ECH R: 'th e object of
question in g d uring d etention u n d er subparagraph (c) o f A rticle 5(1) is to
further the crim inal investigation by w ay o f confirm ing or d ispelling the
concrete su sp icion grou nd ing the a rrest'.31 O f cou rse d etention for question in g
w ithout that 'co n crete suspicion' is incom patible w ith the C onvention.
D etention un der section 37 is for lim ited periods w hich need to be read in
the light o f the 'pro m p tn ess' requ irem ent un der A rticle 5(3). The d etentions
are subject to reg u lar rev iew condu cted not by the custod y officer bu t by an
officer o f at least the rank of insp ector and w ho had not been involved in the
investigation. T hese review s should be carried o ut w ithin six hou rs of
d etention bein g authorised and then at n ine-hou r intervals. A review can be
postponed on various ground s inclu ding that it w ould preju d ice the inv esti
gation.51 Sections 4 1 -4 5 prescribe the tim e lim its for detention. D etention on
the initial auth o rity o f the cu stod y officer is for a m axim um period o f 24
hours. A fter that the suspect should be charged or released. T his period runs
from the tim e of arrest or of arrival at the police station, w hichev er is the
earlier.
50 M u rray an d others v United Kingdom (1995) 19 EH RR 193, paragrap h 55.

51 PA C E 1984, s. 40(4)(b)(i).
There are provisions for longer periods of detention but these can be
authorised only in respect of the investigation of a 'serious arrestable offence'.32
Section 42 perm its a police officer of superintendent or above to authorise,
w ithin the initial 24-hour period, the extension of the period of detention for
a further 12 hours to 36 hours from the start of the detention. This can only be
done to secure or preserve evidence or to obtain evidence by questioning and
the superintendent m ust be satisfied that the investigation is being 'conducted
diligently and expeditiously'. The suspect or his or her solicitor m ust have the
opportunity of m aking representations to the detaining officer or of contacting
a solicitor and m aking a phone call if not already done.
Further extensions of detention for securing or preserving evidence or
obtaining it by questioning are perm issible but only on the basis of a w arrant
obtained from a m agistrate under section 43, PACE 1984. A w arrant can only
be issued if there is a hearing w hich the suspect is entitled to attend and be
legally represented at. M agistrates m ust be satisfied of the m atters m entioned
above under section 42. If so they can extend the period of detention for a
m axim um of a further 36 hours. Section 44 allow s a second extension, by
m agistrates, of up to 36 hours although this is subject to a m axim um period
of detention, from the beginning, o f 96 hours. As m entioned above since
m agistrates are involved after 36 hours, these provisions are likely to be
com patible w ith A rticle 5(3).
5.6 The rights and treatment of detained persons
Part V, PACE 1984 deals with the questioning and treatm ent of persons by the
police. The provisions of this Part are given effect in term s of Code C.
5.6.1 Be informed of rights

A rrested suspects m ust be inform ed of their rights by the custody officer who
is required to open a 'custody record' as soon as practicable for each arrested
person.53 The record can be consulted by the suspect's representatives but not
by the suspect until he or she leaves the police station. Arrested suspects have
a right to consult the Codes of Practice54 and should also be given a written
statem ent setting out their basic rights. This is of increasing im portance since
the com ing into effect of the H um an Rights Act 1998 because a num ber of
rights to a fair trial under A rticle 6 can relate to the early stages of an
investigation.55 Som e rights under PACE 1984 are available only on the request
of the suspect and so know ledge of the right is a necessary precursor to
deciding w hether or not to m ake the request.
52 Section 116 PA CE 1984. A serious arrestable offence is described in Chapter 4.

53 Section 39 PACE 1984; Code C, 2.2.
54 Code C, 3.1 (iii). Note 3E.
55 Murray v United Kingdom (1996) 22 EHRR 29, paragraph 62; Im briosca v Switzerland, 24
N ovember 1993.
5.6.2 Right to have someone informed

Section 56, PA C E 1984 provides for a right to have som eone inform ed .56
H ow ever, this right can be delayed u n d er certain con ditions57 for a m axim um
o f 36 hours. A ny d elay requ ires the au th ority of an officer w hose ran k is
su p erintend ent or above and can only be authorised in respect o f a serious
arrestable offence. D elay can be authorised only if the auth orising officer has
reasonable ground s for believ in g that the exercise o f the right w ill have certain
effects.
56 Right to have som eone informed when arrested

(l)-(5 ) . . .
(5) . . .
(a) will lead to interference with or harm to evidence connected with a serious
arrestable offence or interference with or physical injury to other persons; or
(b) will lead to the alerting of other persons suspected of committing such an
offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as the result of such an
offence.
5.6.3 Right to legal advice

Section 58, PA C E 1984 allow s, on requ est, the righ t o f a d etainee to a private
con su ltation w ith a solicitor.58 Independent, free legal ad vice is also to be
av ailable for a su spect w ho requ ests it. From the point o f view o f basic fair
trial rights u n d er A rticle 6(3) EC H R, the right to legal assistan ce is the m ost
im p ortan t and is o f p articular significance if the statem ents and attitu d es of
the accused u n d er question in g can be used as ev id ence at his or her trial.
M, a terrorist suspect, was interviewed 12 times without legal assistance during a

period of 48 hours. When he did see a solicitor he was advised to remain silent.
Silence during questioning was a matter on which an adverse inference could be
drawn at the trial.
HELD (EctHR): there had been a violation of Article 6. Where national laws attach
consequences (such as the drawing of an inference of guilt) to the attitude of the
suspect during interrogation ‘Article 6 will normally require the accused be allowed to
benefit from the assistance of a lawyer already at the initial stages of police
interrogation’ (paragraph 63).
Murray v United Kingdom (1996) 22 EHRR 29
T he availability o f this righ t and service is to be advertised by a prom inently

displayed poster. A ccord in g to C od e C an av ailable solicitor can insist on
b ein g present w hile the su spect is questioned. T h e solicitor can only be asked
to leave 'if his con du ct is such that the inv estigating officer is unable properly
to pu t question s to the su sp ect'.59 The right to legal ad vice is p rotected under
56 C ode C, 5.1.
57 See also C ode C , Annex B.
58 C ode C, 6 applies to the exercise of this right and C ode C , Annex B to its delay.
59 C ode C, 6.8 -6 .1 0 . The provision is not in the A ct itself and so it is not clear that the solicitor
has a right to be present w hich is directly enforceable by the courts.
A rticle 6(3) and should be up held by the cou rts even if there is no evid ence
that the suspect w as preju diced by its d enial.“ N everth eless a m inor failu re to
fulfil a m atter incid ental to the right m ay be thought, by E nglish courts, to be
illusory or theoretical and give rise to no rem ed y.61
The right to legal ad vice in respect of a seriou s arrestable offence can be
delayed for up to 36 hou rs u n d er sim ilar con ditions as those auth orising the
d elay in the righ t to have som eone inform ed. In M urray v United Kingdom
(1996) the C ou rt o f H um an R ights m ad e it clear that specific rights w hich are
inferred from the exp ress provisions o f A rticle 6 are su bject to reasonable
restriction: '[the righ t to a law yer d u ring police interrogation at least w hen
inferences at trial can be draw n] . . . is not exp licitly set out in the C on vention
[and it] m ay be subject to restrictions for good cause. The question, in each
case, is w hether the restriction, in the light o f the entirety o f the proceedings,
has dep rived the accused o f a fair hearing '. C ou rts in the U nited K ingdom
have show n them selves very receptive to the restrictable natu re o f the inferred
rights in A rticle 662 and so it is likely that the pow er to d elay will be thought
com p atible w ith the C onvention. O f course, ind ividu al exercises o f the
d elayin g pow er can be challenged on the ground s that, in the individual
circu m stan ces of the case, d elay is d isp rop ortionate given its likely im pact on
any resu ltin g trial.
5.6.4 The right to silence

Q u estion in g in police stations is subject to the right o f silence. The basic idea
is that no one can b e com pelled , un der a crim inal penalty, let alone under
torture or m istreatm ent, to answ er questions. Silence is essential to the rights
o f the d efen ce and is inherent in the idea that the bu rd en o f proo f be on the
prosecu tion to prove its case w ithout relying on statem ents com pulsorily
obtained from the accused. T he right to silence m ay also have an im portant
role in p reventing m iscarriages o f ju stice. Statem ents m ad e in the police station
m ay have a significant and u n w itting im pact on a d efendant, esp ecially one
w ho is v ulnerable thou gh age, m ental incap acity or som e other reason. The
legal issue m ay be com plicated and silence the sim plest option for a person
w ho m ay otherw ise talk them selves into a gu ilt they do not have.
The fun d am ental idea is retained in E nglish law . T here are no crim inal
penalties for failing to answ er self-incrim in atin g question s as part o f the
direct investigation of a crim e. O p p ressiv e questioning v iolates C od e C 63
and such m ethod s w ould , o f course, b e ground s for exclu d ing from the
trial any statem ents m ad e on the ground s that they represented a confession
m ad e by op p ression64 or w ould be evid ence w hose ad m ission w ould have
60 A rtico v Italy (1980) 3 EHRR 1.

61 R (M ) v C om m ission er o f P olice fo r the M etropolis (2001) 151 N LJ 1212 w here M 's legal consultation
took place in a police cell rather than interview room and R (Im Rose) v C om m issioner o f P olice for
the M etropolis (2001) 151 NLJ 1212 w here R 's telephone call to his solicitor took place in the
cu stody suite w ith officers present.
62 See, for exam ple, sum m aries in Brown v Stott (Procurator F iscal, D unferm line) an d an other 12001]
2 A LL ER 97.
63 C ode C, 11.3.
64 W hich should be excluded under s. 76, PA CE 1984.
such an ad verse effect on the fairness of the proceedings that it ought to be

exclu d ed .65
H ow ever, in tw o respects, the im pact o f the right to silence has been
significantly red uced in recent years. The first is in respect of the right of a
m agistrate, ju ry or judge as finder o f fact to m ake an ad verse inference - to
infer gu ilt - from a d efen d an t's silence in the police station or at trial. The
second is the ad m issibility, as prosecu tion evid ence, o f incrim inatin g state
m ents obtained from the accused u n d er special pow ers o f inquiry and
investigation backed by the threat o f punishm ent.
R ight to silence: draw ing adverse inferences

T rad itionally juries have been d irected that the silence of d efen dan ts under
police question in g or their refusal to give evid ence un der oath is not to be
taken into accoun t as a factor w eighing against them in d eterm ining gu ilt or
innocence. The rule has now been changed , first in respect o f N orthern Ireland
offences66 and, since 1994, for crim inal offences in England and W ales. T his has
been a highly con troversial change w hich w as opposed by the Royal
C om m ission on C rim in al Proced ure67 and by the Royal C om m ission on
C rim in al Ju stice.68 T he argum en t for change is that an unqualified righ t to
silence can be exploited by the skilfu l, gu ilty d efen d an t to avoid conviction. In
particular it w as thou ght u n reason able that a d efen d an t should be able to rely
at trial on claim s that w ere never m ad e un der police question in g and w hich
could not, therefore, be tested at the tim e. It is also suspected that ju ries do
infer gu ilt from silence and that it is better for the law to establish the
circu m stan ces in w hich this can properly be done.
Section 34, C rim inal Ju stice and P ublic O rd er A ct 1994 perm its the ju ry or
m agistrate w hen d eterm ining gu ilt or innocence to d raw any p roper inference,
inclu d ing an inference o f gu ilt u n d er certain circu m stan ces. T hese are, first,
failu re by the d efen dan t to m ention, w hen questioned by the p olice u n d er
caution, o r charged, any fact w hich is later relied on as a d efen ce at trial w hich
could reasonably have been m entioned ; second ly, refusal by the d efendant, at
the tim e w hen he or she had been arrested, to give police an explanation of
objects, su bstances or m arks in their possession or about their person w hich the
police officer reasonably b elieved m ay have b een attributable to their particip a
tion in an offence; and third ly, refu sal b y the d efen d an t, at the tim e w hen he or
she had been arrested, to explain their presence at the scene o f the crim e w here it
w as reasonable for a p olice officer to attribute their p resence to p articipation in
the offence.69 T h e caution ad m inistered to suspects has been am ended to w arn
suspects o f the risks that an ad verse inference m ay be d raw n from their silence.70
65 U nder the discretion given to the court by s. 78, PA CE 1984.

66 Crim inal Evidence (N orthern Ireland) O rder 1988.
67 (1981) C m 8092, paragrap hs 4.3 2 -4 .6 7 .
68 (1993) C m 2263, Ch. 4, paragrap hs 2 0 -2 5 .
w Section 35, Crim inal Justice and Public O rder A ct 1994 perm its the jury or m agistrate to draw
an adverse inference from a defendant's refusal to give sw orn evidence and subm it to cross
exam ination during the trial.
70 The general caution is in C ode C , 10.4; m ore specific cautioning, in term s indicated by the C ode,
is necessary if the police believe that the refusal to answ er m ay give rise to the draw ing of an
adverse inference at trial.
These am en dm en ts to the righ t to silence are subject to im portan t restraints,

though no one kn ow s the extent to w hich a ju ry takes them into accoun t (any
m ore than the extent to w hich the un-am end ed rule w as follow ed is know n).
Silence rem ains a right and the bu rd en o f proof rem ains w ith the prosecution.
In p articular a find ing o f gu ilt cannot be based solely on an inference from
the d efen d an t's silence.71 The prosecu tion m u st have established a 'case to
answ er' and so it is a m atter for the ju dge w hether or not there is a sufficient
ind ep en den t case against the d efen dan t to p erm it an ad verse inference to be
draw n should the ju ry so w ish.72 A n ad verse inference should only be
draw n by the ju ry or m agistrate if they con clud e that the reasons for the
d efen d an t's silence under police question in g are, given the circu m stan ces at
the tim e,71 inad equ ate and that his or her silence can only be attributable to
having no explanation, or an explanation w hich w ould not stand up to cross
exam ination. T h e cou rts have refused to say that silence on legal ad vice is a
sufficient reason fo r w ithd raw ing the possibility o f an ad verse inference
from the jury. The difficulty is that the reasons for the legal ad vice will b e subject
to legal privilege. H ow ever, w here a law yer gives a statem ent of the reasons for
the ad vice this can be put before the ju ry and the law yer m ay be subjected to
cross exam ination, priv ilege w ill be consid ered to have been w aived. T h e jury
can then assess the reasons for the ad vice in the light o f the circu m stan ces.74
The righ t to silence is understood by the Strasb ou rg C ou rt to be fundam ental
to the con cept o f a fair crim inal trial under A rticle 6. The righ t is inferred from
the general right to a fair trial in A rticle 6(1) and from the p resum ption of
innocence in A rticle 6(2). T h e right is seen as central to the general schem e of
A rticle 6 and as a significant con tribution to the avoid ance of m iscarriages of
justice. A s an inferred right, how ever, it is not absolu te and the C ou rt of
H um an Rights has accepted that the d raw ing of an ad verse inference does not,
necessarily, violate the C onvention. T o base a con viction on an inference from
silence w ould violate the C on vention,7'1 but there m ay be situ ations w here
there is a significant ind ep en den t case against the d efen d an t w hich establish es
a situ ation w hich 'clearly calls for an explanation' by the d efendant. In that
circu m stan ce the d efen d an t's silence on the point m ay be taken into account
w hen the strength o f the pro secu tio n 's evid ence is bein g assessed. A s w e have
seen, E nglish law is, in principle, com p atible w ith this C on vention requ ire
m ent. U nd er the C on vention the d raw ing o f an ad verse inference requ ires
careful ju d icial supervision and the Strasbou rg C ou rt seem s to be m u ch m ore
concerned w hen it is a ju ry rather than a ju dge w ho m akes the in ference.76
Sim ilarly, legal ad vice is an essential part o f the protection offered by A rticle
6. It w as held in M urray v U nited Kingdom (1996)77 that its absen ce at the tim e
o f p olice question in g m ean t that the d raw ing o f an ad verse inference violated
71 Section 38(3), Crim inal Justice and Public O rder A ct 1994.

72 K v M cC arty [19991 1 C rim Ap Rep 377.
73 R v A rgen t [1997] C rim A p Rep 27.
74 R v Bow den [1999] 1 W LR 823; R v Condron [199711 W LR 827. For com patibility w ith C onvention
rights see: Condron v U nited Kingdom (2000) Ap. 3 5 7 1 8 /9 7 , H udoc, paragrap h 60.
75 M u rray v U nited Kingdom (1996) 22 EH RR 29, paragrap h 47
76 Condron v U nited Kingdom (2000) A p. 3 5 7 1 8 /9 7 , Hudoc.
77 (1996) 22 EHRR 29.
A rticle 6. E nglish law has now been changed so that no ad verse inference can
be d raw n from a d efen d an t w ho, at the tim e o f the silence, had not been
allow ed access to a solicitor.78
R ight to silence: statem ents m ade under penalty

A nu m ber o f statutes in English law em p ow er the auth orities to undertake
investigations and im pose a duty, sanctioned by a crim inal p enalty, on various
parties bein g investigated to answ er questions. N um erous exam ples are found
un der variou s com panies and financial services legislation. A rticle 6 E C H R is
invoked if the answ ers, given under the threat o f crim inal sanction, are then
m ad e ad m issible in a su bsequ ent crim inal trial. In Saunders v U nited Kingdom
(1997)79 the applican t w as convicted on the b asis o f evid ence he had been
com pelled to produce. The C ou rt o f H um an Rights held there w as a right not
to be com pelled to incrim inate on eself w hich w as to be inferred from A rticle
6 ( 1 ) 8° j j ie use tjie evid ence w as a v iolation o f the A rticle w hich w as not
rem edied by the p o w er o f the cou rts to exclu d e the evid ence, on ground s of
unfairness, under section 78, PA C E 1984.81 A s a con sequ ence o f Saunders the
ev id ence obtained by inv estigators un der com pulsory pow ers is no longer
ad m issible in crim inal prosecu tions.82
5.6.5 Treatment in the police station

Section 39, P A C E 1984 requ ires that the custod y officer ensure that a suspect
is treated accord ing to the C od es and the C od es con tain various provisions
requ iring, for exam ple, that cells m u st be p roperly heated and that there m ust
be p rop er access to toilet and w ashing facilities;83 m ed ical treatm ent m u st also
be available.84 D etained persons need to be visited reg u larly and reasonable
force can be used to ensu re com p lian ce w ith reasonable instruction s or to
p rev ent escape, injury, d am age to property or the d estru ction o f evidence.
5.6.6 Interviews
C od e C, paragraphs 10 and 11, cov er the cau tion in g and interv iew ing of
suspects. In particular, interv iew ing should stop once the inv estigating officer
b eliev es there is sufficient evid ence for a prosecution. Q u estion in g should not
be oppressive. M ost interview s, though not in respect o f terrorist or official
secrets offences, should be tape recorded .85 A n experim en tal schem e for the
v id eoin g o f interview s has begun. C om pulsory fingerp rinting is norm ally
78 Section 58, Youth Justice and Crim inal Evidence A ct 1999.

79 (1997) 23 EHRR 313.
80 As an inferred right it can be subject to reasonable exceptions. The argu m en t that the C ou rt of
H um an Rights in S aunders v U nited K ingdom accepts too absolute a version of the right against
self-incrim ination w as taken by the Judicial C om m ittee of the Privy Council in Brown v Stott
(Procurator Fiscal, D unferm line) an d an other [20011 2 A LL ER 97.
81 See also F un ke v France (1993) 16 EHRR 297.
82 Y outh Justice and Crim inal Evidence A ct 1999, s. 59 and Schedule 3 - w hich lists the statutes
affected.
83 C ode C , 8.
84 C ode C, 9.
85 See C ode E for detailed provisions and guidance.
perm itted since it can be required w here a sen io r officer believ es that it w ill
help to confirm or d eny a suspected inv olv em ent in crim e.86
Special provisions apply in respect o f the d eten tion and question in g of
vulnerable persons such as ju veniles and m en tally d isord ered and m entally
handicap ped persons.87 Statute requ ires that the person responsible for the
w elfare o f a child be inform ed 88 and the C od e requ ires such an 'app ropriate
ad u lt' (a person closely associate w ith the care and su pport o f the detained
person) to be present w hen interv iew ing takes p lace.89 T h e 'ap p rop riate adult'
cannot be a law yer ev en though one o f their m ain functions is to p revent the
vulnerable person from m aking self-incrim in atin g statem ents.90 H ow ever,
vulnerable d etainees retain their general rights, so they m ust, for exam ple, be
inform ed o f their right to ind ep en den t legal advice. The p ow er o f the police
to postpone the exercise o f this right is retained d espite the v u lnerability o f the
detainees.
D eaf persons and non-an glophones should have the b enefit o f interpreters.9’
A s m ad e clear above, the interview ing o f suspects can raise issues w ithin the
scope o f A rticles 5 and 6 ECH R. A rticle 14 p roh ibits treating categories o f people
less favourably w ith respect to C on vention rights92 and the provisions relating
to vulnerable d etainees should be interpreted as far as p ossible to ensure this.
5.6.7 Search and samples

P ersonal search
A s m entioned above, a suspect m ay be searched at the tim e o f arrest aw ay
from the police station. A person w ho has been arrested and d etained at a
police station can only be searched if there is som e ad ditional factor, contained
in PA C E 1984, w hich auth orises a personal search.93 Personal search es m ust,
o f course, be conducted subject to A rticle 3 ECH R.
Section 54, PA C E 1984 auth orises custod y officers to search detained persons
in ord er to fulfil their d uties o f ascertaining and reco rd in g the personal
possessions of an arrested person.94 C lothes and personal effects can be seized
if there are reasonable ground s to believe they are ev id ence relating to an
offence or they could be used to cause physical injury to them selves or others,
could cause d am age to property or could assist in an escape. Section 54(6A )
(introd uced by the C rim in al Ju stice and Public O rd er A ct 1994) allow s a search
o f detained suspects, in d ep en den tly o f m aking the record, to see w hether they
have about them anything that could be seized by the custod y officer. Item s
found m ay be seized. Police have ad ditional pow ers of seizu re un der section
51 o f the C rim inal Ju stice and Police A ct 2001.

87 Section 57, PA CE 1984; C ode C , 3.6-3.14.
88 Section 34, C hildren and Y oung Persons A ct 1933, w hich w as am ended by s. 57, PA C E 1984
and other statutes.
89 C ode C , 11.14-11.16.
* ’ N ote to C ode C, 11B.
91 C ode C, 3.6 and 13.
n Though there is no need to sh ow that a C onvention right has been violated.
93 Different rules applv under anti-terrorism legislation - see C hapter 18
94 Section 54(1) and (6), PA CE 1984.
Strip search es can be authorised un der eith er pow er subject to the

p rovisions o f C od e C, A nnex A. T hese requ ire, for exam ple, that the search
m ust be condu cted by a m em ber o f the sam e sex as the person bein g searched.
Intim ate search es (the exam in ation o f a p erson 's bo d y orifices o ther than
their m ou th95) can only be undertaken if the con ditions in section 55, PA CE
1984 are fulfilled. A uthorisation m u st be by a sen io r officer w ho has reasonable
ground s for b elievin g that such a search o f a detained person m igh t disclose
a C lass A drug, or som ething that could cause physical injury to the d etainee
o r to others and w hich m igh t be used for such harm ful pu rposes w hile in
custody.
A p roperly and law fully condu cted personal search, even an intim ate
search, is unlikely to violate C on vention rights. A rticle 3 E C H R requ ires a
standard o f severe d eg rad ation w hich such search es are u n likely to reach and
the provisions o f A rticle 8(2), w hich perm it law ful and proportionate restric
tions on private life for the prevention o f crim e, are likely to accom m odate
search es un der PA C E 1984. This is likely to inclu d e intim ate search es.96 If,
how ever, a search is undertaken to hu m iliate or pu nish then it will be both
unlaw fu l u n d er PA C E and incom patible w ith A rticle 8.
Sam ples
Intim ate sam ples (defined as blood , sem en, urine, pubic hair or a dental
im pression) m ay be taken w ith the w ritten con sent of the person involved.
U nreasonable refusal o f con sent can be the basis on w hich a trial court can
d raw an inference pointing tow ard s guilt.97 The rule against self-incrim in ation
in A rticle 6 E C H R is confined to 'testam entary ev id ence' (w ords and w ritings
spoken or w ritten by the d efen dan t concerning the offence) and do not cover
intim ate sam ples.98 A rticle 3 and A rticle 8 w ould be violated if the sam ples
w ere forcibly obtained.
N on-in tim ate sam ples and fingerp rints can be taken, in som e circu m stan ces
w ithout con sent, un der pow ers in section s 63 and 61, PA C E 1984 respectively.
Even if the su spect is cleared , not prosecu ted or, after question in g, not
suspected o f an offence, his o r her fingerp rints can be kept ind efinitely for the
purposes of the inv estigation o f crim e.99 This interference w ith the privacy of
innocent or at least un con victed persons has been upheld by the C ou rt of
A ppeal as bein g com p atible w ith A rticle 8 E C H R .100 It m ay be the beginn ing
o f the establish m ent o f a national, u n iv ersal D N A database. The C rim inal
Ju stice and Police A ct 2001 and the A nti-terrorism C rim e and Secu rity A ct 2001
have increased the pow ers of the police in resp ect o f fingerp rinting, p h o to
graphing, requ iring the rem oval o f d isgu ises and taking sam ples from
suspects. In the con text o f terrorism , at least, the E uropean C ou rt of H um an

* M cF eehj v United Kingdom (1981) 3 EH RR 161.
97 Section 62(10), PA CE 1984. Different procedu res apply to breathalyser legislation.
98 Saunders v United K ingdom (1997) 23 EHRR 313.
99 Section 64, PA CE 1984, am ended by the C rim inal Justice and Police A ct 2001, s. 82.
100 R (M arper) v CC South Y orkshire [2002] EW CA C iv 1275 12002] NLJ 1483.
106 H u m a n R ig h ts a n d C iv il L ib erties
R ig h ts h a s a c c e p te d th a t s u c h p o w e rs m a y b e n e c e s s a r y .101 T h e ir e x te n sio n to
n o n -te rro ris t c rim e b y b o th 102 th e A c ts m e n tio n e d a b o v e m a y ra is e q u e stio n s
o f p ro p o rtio n a lity .
101 M c V e ig h , O 'N eill and Evans v U nited K ingdom (1983) 5 EHRR 71; M u rra y v U nited K ingdom (1995)
19 EHRR 193.
102 In the 2001 Act the fingerprinting provisions are confined to terrorist investigation; the other
provisions amend the Police and Criminal Evidence Act 1984 and apply generally.
6
Police powers: entry, search and
seizure
6.1 Introduction
A w ide range of state officials claim authority to enter prem ises, to conduct
searches and to arrest or seize persons or things found there w ithout, if
necessary, the consent of the party being searched. This chapter will
concentrate on the pow ers of the police but other officials, such as VA T
inspectors, Custom s and Excise officers and officials from the European
Com m ission, have som e such pow ers available to them in the exercise of their
duties, and in som e cases, w here ordinary discovery m ay be difficult, the sam e
is true of private parties to civil proceedings. Police and the security services
may exercise pow ers of entry covertly; this m atter is considered in the next
chapter.
6.2 Privacy and property
Pow ers of entry, search and seizure invoke the related rights of privacy and
property. The idea that hum an dignity m ay have as one of its essential
incidents the right to possess som e personal space w hich is im m une from the
incursions of others, including the state, is deeply held and given justification
in liberal political theory. It is, of course, also highly controversial because
property is unequally distributed; m any persons who are entitled to their
hum an dignity nevertheless possess little if any property and, for those with
large am ounts of property, its possession is a m eans of exercising social and
political pow er over others. In the m odern world huge am ounts of property
are corporately owned and it is not clear that corporations are entitled to their
'dignity' in the way that hum an beings are. Political theorists are unable to
agree w hether the possession of property is, m orally, a fundam ental human
right w hich the state ought to protect or w hether, alternatively, it is m erely an
efficient m eans of providing personal happiness and the productive use of
land w hich the law ought to support. In any event, the claim s of property have
never been absolute. The background right protects against the non-consen-
sual, arbitrary, unreasonable and non-com pensated invasion of property by
others and, particularly, by the state. The prevention and detection of crim e is
a reason w hich justifies non-consensual interference with property by the state.
The background right to property m eans that such interferences m ust be
strictly lim ited to their proper purposes, proportionate and subject to proper
safeguards.
6.3 Convention rights
C om m on law has long recognised the background assum ptions in favour of

the protection of property and, as w e shall see, this has often found its way
into the law. Entry, search and seizures by public officials such as the police
is, of course, now also subject to the provisions of the H um an Rights A ct 1998.
A rticle 8 gives protection to 'private and fam ily life . . . hom e and . . .
correspondence'. It perm its interference on various grounds including 'the
prevention of disorder or crim e'. Such interference m ust be 'in accordance
w ith the law '. The purposes of, and the detail in, the Police and Crim inal
Evidence A ct 1984 and the other legislation m eans that entry, search and
seizure is likely to be only authorised for legitim ate purposes and to m eet the
test of legality. Interferences, however, m ust also be 'necessary in a dem ocratic
society' w hich, increasingly, is equated with the 'proportionality' test: al
though the legal powers authorising a search are consistent w ith the
Convention, any particular exercise of the power m ay, in the circum stances,
be unnecessary and disproportionate. 'H om e' is given a w ide definition under
the Convention. It will include dom icile, including one occupied unlaw fully;1
it m ay also include prem ises used for com m ercial prem ises at least w hen a
place is used for both residential and w ork-related purposes.2 The argum ent
of the court is that respect for private life in A rticle 8 protects the right to
develop one's interests as a person and to foster relationships with others.
Since w ork can be a m ajor focus for such developm ent the protection of A rticle
8 should not exclude professional or business activities. W hether such an
argum ent can ground the right of a com pany in its ow n nam e to a private life
to w eigh against an otherw ise law ful search is not clear.3
The pow er of entry, search and seizure can also raise questions under
Article 1 of the First Protocol, the 'protection of property'. On its face the
Article provides a general right to the peaceful enjoym ent of possessions and
a specific right not to be deprived of possessions 'except in the public interest
and subject to the conditions provided for by law '. At the sam e time it appears
to provide a wide scope for public authorities to control the use of property,
through planning law s etc., 'in accordance w ith the general interest'. Despite
these widely draw n words, the courts have allowed a proportionality test on
interferences with, rather than just deprivations of, property. Entry, search and
seizure can, therefore, be challenged under either article but, in the view of the
court, sim ilar principles apply to both. These m atters will be developed more
precisely in the follow ing pages.
1 Buckley v United Kingdom (1996) 23 EHRR 101.

2 N iem ietz v G erm any (1993) 16 EHRR 97. See also Chappell v United Kingdom (1990) 12 EHRR 1 in
which the Anton Piller search order, used exclusively in the context of com mercial activity, was
held to be compatible with Article 8.
3 In N oviflora AB v Sweden (1993) 15 EHRR CD 6, it w as accepted by the Commission that a
com pany could be a victim of a violation of Article 8 in respect of the search and seizure of
m aterials belonging to it.
P olice poivers: entry, search and seizure 109
Searches un dertaken by the EC C om m ission in p o licing com p etition policy

can be consid ered by the C ou rt o f Ju stice for com p atability w ith the general
principles o f law that the C ou rt upholds and w hich include the C on vention
rights.4
6.4 Common law
C on vention rights are, in any case, bro ad ly com p atible w ith the underlying
position in com m on law . T he background principle in E nglish law is that no
one can law fu lly enter an oth er's prem ises w ithout the oth er's con sent, under
a ru le o f com m on law or u n d er the au th ority of an A ct o f P arliam ent. The
w eight given to rights o f property by the general law m ean s that such
statu tory au th ority will be strictly interpreted.
T h e absen ce o f con sent or p rop er law ful auth ority is likely to rend er the
entry unlaw ful. U nlaw ful entry in itself (w ithout aggrav atin g circu m stan ces
such as the use o f force or accom p anying theft) is not usually a crim inal
offence. M ore likely it is the com m ission o f a tort, particu larly trespass, and
this can be the basis for an action in d am ages or, in som e cases, an injunction.
It is im portan t to recall that public officials w ho act u n law fu lly are not, by
v irtue o f their status, im m u ne from a tort action. T h ey can be liable
in d ividu ally or m ay m ake the C row n, a higher pu blic official or a public
auth ority for w hich they w ork v icariously liable.
6.5 Lawful entry and search with consent
A s 'citizens in u n ifo rm ', the police and other pu blic officials m ay enter private
p roperty w ith the con sent o f the occu p ier or the person in possession. An entry
or search or seizu re is only authorised so long as it is w ithin the boun daries
o f the con sent; agreem ent to allow the police to enter is not agreem ent to allow
a search and if the term s o f the con sent are overreached an officer, from that
point, is a trespasser. A police officer w ill, how ever, only be acting in the
exercise o f his or her d uty if there is a duty-related reason for entering the
property; for exam ple, they are acting in pursuit o f a reasonable suspicion of
an offence.5 A s w ell as going on the highw ay, the police also have the sam e
rights as the public to enter areas such as shopping m alls, shops and car parks
w here express or im plied perm ission has been granted by the occup iers. Public
officials such as the police do not, w ithout other legal authority, have any
g reater pow ers in such areas than the ord in ary public.
P erm ission to enter priv ate prem ises m ay be im plied. T h e police, for
exam ple, enjoy the general im plied pow er to approach the front d oor o f a
d w elling or o therw ise enter private property to m ake con tact w ith the
o ccup ier.6 C od e B, 4.4. and N otes for G u id an ce 4.C take m atters a little further
4 For exam ple, N ational Panasonic (U K) v Com m ission (Case 1 3 6 /7 9 ) [1980] ECR 2033; see generally
C raig, P. and de Burca, G. (2003) EC Law : Text, Cases an d M aterials, 3rd edn. O xford: Oxford
University Press, chapter 8.
5 D avis v L isle [1936] 2 KB 434.
6 Robson an d an other v H allett [1967] 2 QB 939; D avis v L isle [1936] 2 KB 434.
and su ggest that express perm ission to enter in ord er to search need not be
sou ght if to do so w ould cause 'd isp rop ortionate in con ven ience to the person
con cern ed '. T h e paragraphs assu m e that innocent o ccup iers w ould be bound
to agree, for exam ple, to checks in gardens and other read ily accessible parts
o f their land for recent fugitives or stolen good s.7 P erm ission to go ov er the
threshold and enter the d w elling house, to question o ccup ants, for exam ple,
can b e express o r im plied by actions. In Faulkner v W illetts (1982),8 for exam ple,
the su sp ect's w ife answ ered the d oor and, on seeing the police, said nothing
but left the d oor open and w ithd rew into the d w elling. The cou rt took the view
that this w as perm ission to the police to enter.
Perm ission, im plied or express, can be w ithd raw n at any tim e. If it is
w ithd raw n, police should take im m ed iate steps to leave, otherw ise they m ay
becom e trespassers and step outsid e the scope o f their duty. R easonable tim e
m u st be given to allow the police to leave and w ithin that period the officers
w ill still be w ithin the scop e o f their d uty and so any assau lt m ay still be a
crim inal offence.’ T h e w ithd raw al o f perm ission seem s to requ ire express
w ord s ind icatin g that the p olice are now trespassers and should leav e.10 So
long as that is the clear sense o f the w ords used, they m ay be abu sive but still
effective.11 H ow ever, m erely b ein g abu sive to the police o r m ere assertions of
possession or occup ation by a person m ay not be enough for an im plied
revocation.12 O nce perm ission has been revoked and tim e to allow the police
to w ithd raw has passed , reasonable force m ay be used to eject the trespassing
officers. O f course, if the d egree o f force is d isproportionate, an offence against
the person m ay still have been com m itted and the fact that they are trespassers
is irrelevan t.13
C on sent to enter is not the sam e thing as a con sent to a search. For this
further, express, perm ission is required. This view is reinforced by C od e B
w hich lays dow n a nu m ber of con d itions for a consensual search .14 It is
proposed to give these greater em p h asis in the re-d rafts to the C od es pu t out
to con su ltation in 2002. Su bject to a p racticability test, the con sent should be
in w riting from a person p roperly entitled to give the consent. In particular,
the person con cern ed should be inform ed o f the p u rpose of the search and that
any thing seized m ay be used in evidence. A ny search m ust be discontinued if
the perm ission is w ithd raw n. T he person should be inform ed if they are not
suspected o f an offence. A bove all consent m ust be real in the sen se that the
person concerned m u st be inform ed that they are u n d er no obligation to give
consent; to the sam e point, any search w ould not be authorised if the consent
w as given u n d er duress. O f cou rse m any people w ill agree to a search un der
the threat that, w ithout their consent, a w arrant can be obtained.
7 See also M cA rdle v W allace (1964) 108 SJ 483, DC.

8 [19821 C rim LR 453.
9 Robson an d an other v Hallett [1967] 2 QB 939.
10 Lam bert v R oberts [1981) 2 All ER 15.
" D avis v L isle [19361 2 KB 434
12 S nooks v M annion (1982) The Tim es, 19 March.
13 The point w as raised in D avis v Lisle [1936] 2 KB 434.
14 C ode o f Practice fo r the Searching o f Prem ises by P olice O fficers an d the Seizure o f P roperty F ou nd by
Police O fficers on Persons or Prem ises (C ode B), 4.
6.6 Lawful entry and search at common law
Lim ited pow ers at com m on law au th orise p olice and also citizens to enter
private property and seize objects found there. Section 17(5) and (6), PA CE
1984 abolished all the rules o f com m on law un der w hich a con stable had the
pow er to enter prem ises w ithout a w arrant, apart from the pow er to enter
prem ises to d eal w ith or p revent a breach o f the p eace.1'"’ H ow ever, a com m on
law pow er to seize the property o f a person arrested for a serious crim inal
offence in ord er to assist the investigation o f the offence has been recently
upheld by the courts.
The police seized a car belonging to a man arrested in respect of allegations of sexual
abuse against children. The offences may have been committed in the car. The trial
judge took the view that the seizure could not be authorised under PACE 1984 since
the Act only authorised the seizure of items found on the premises searched. A vehicle
is ‘premises’ for the purpose of the Act and so the power to seize things ‘on the
premises’ could not authorise the seizure of premises themselves. The judge took the
view that despite the absence of a statutory power, there remained a common law
power to seize items, including vehicles, and that this survived the 1984 Act which did
not expressly revoke such powers of seizure as it did in respect of powers of entry.
HELD: the judge’s view of the common law was correct, though the seizure of the
car could be authorised by the Act
Cowan v Commissioners of Police of the Metropolis [2000] 1 All ER 504.16
P olice can also exercise those com m on law pow ers to enter the property of
others w hich have not been revoked by the P olice and C rim in al Evid ence A ct
1984. T hese are pow ers that are available to any person and are not confined
to the police. T hey inclu de the pow er to abate a nu isance and actions
authorised by the d efen ce o f n ecessity on to rt.17 T h e latter inclu d e the pow er
to enter property to p revent m u rd er18 (w hich can also be done by the police
u n d er subsection s 1 7 (l)(b ) or (e), PA C E 1984) or to p revent seriou s d am age to
property from fire.19
6.7 Statutory powers to enter without a warrant
T he police and other officials have pow ers un der A cts o f P arliam en t to enter
prem ises w ith o u t the con sent o f the occupier. Like the com m on law pow ers
m entioned above, these pow ers are exercised on the basis o f the ju d g m ent and
d iscretion o f the p olice and are not subject to any prior ju d icial supervision or
authorisation.
T he p rincipal statu tory au th orisation for the police is at section 17, PA CE
1984.
15 Section 17(6), Police and Crim inal Evidence A ct 1984 - see C hapter 17.
16 In R (R ottm an) v C om m issioner o f Police o f the M etropolis [2002] U K H L 20, [2002] 2 All ER 865 the
H ouse of L ords upheld a com m on law pow er to search the prem ises of a person arrested on
the authority of an extradition w arrant.
17 See H alsbttry's Law s o f England, 4th edn, reissue vol. 45(2) 'Tort' (1999), paragraphs 361 and 372.
IS H andcock v 'Baker (1800) 2 Bos & O 260.
19 C ope v S harpe (2) [1912] 1 KB 496 CA.
112 H u m an R ig h ts a n d C iv il L ib erties
17 E n try fo r p u rp o se o f arrest etc.

(1) Subject to the following provisions of this section, and without prejudice to any
other enactment, a constable may enter and search any prem ises for the purpose
(a) of executing -
(i) a warrant of arrest issued in connection with or arising out of criminal
proceedings; or
(ii) a warrant of com m itm ent issued under section 76 of the M agistrates'
Courts Act 1980;
(b) of arresting a person for an arrestable offence;
(c) of arresting a person for an offence under -
(i) section 1 (prohibition of uniforms in connection with political objects)
of the Public O rder Act 1936;
(ii) any enactment contained in section 6 to 8 or 10 of the Crim inal Law Act
1977 (offences relating to entering and rem aining on property);
(iii) section 4 of the Public Order Act 1986 (fear of provocation of violence);
(iv) section 76 of the Crim inal Justice and Public O rder Act 1994 (failure to
com ply with interim possession order);
(ca) of arresting, in pursuance of section 32(1A) of the Children and Young
Persons Act 1969, any child or young person who has been rem anded or
committed to local authority accom m odation under section 23(1) of that Act;
(cb) of recapturing any person who is, or is deemed for any purpose to be,
unlaw fully at large while liable to be detained -
(i) in a prison, remand centre, young offender institution or secure training
centre, or
(ii) in pursuance of section 92 of the Powers of Crim inal Courts (Sentenc
ing) Act 2000 (dealing with children and young persons guilty of grave
crim es), in any other place;
(d) of recapturing any person whatever who is unlaw fully at large and whom
he is pursuing; or
(e) of saving life or limb or preventing serious dam age to property.
(2)—(4) . . .
(5) Subject to subsection (6) below, all the rules of com mon law under which a
constable has pow er to enter prem ises without a warrant are hereby abolished.
(6) N othing in subsection (5) above affects any power of entry to deal with or
prevent a breach of the peace
T h ese p o w e rs a re to en ter an d search fo r p erso n s, n ot g o o d s o r p ro p e rty . N o

ty p es of p rem ises a re exclu d ed : th e p o w e r ca n b e u sed in re sp e ct of offices,
sh o p s, c h u rch e s, c o m m u n ity b u ild in g s, etc. T h e p o w e r to en ter an d search the
co m m o n are a s of b locks of flats, su ch as en tran ces and lifts, th o u g h n ot flats
o th e r than th ose in w h ich the p erso n so u g h t is believed to be, is exp ressly
in clu d ed .20 T h e sco p e of this p o w e r h as been a d d e d to by p rim a ry legislation.
T h e p rin cip al s afeg u ard s for th e exe rcise of th ese p o w e rs lie, first, in the
req u irem en t th at th e con stab le m u st h a v e reaso n ab le g ro u n d s for th e belief
th at th e p erso n b ein g so u g h t is on the p rem ises a n d th at th e p o w e r to search
is lim ited b y w h a t is reaso n ab ly req u ired to fulfil th e p u rp o se of en try . T h ere
is n o au th o rity u n d e r sectio n 17 to search for o r seize g o o d s. H o w e v e r, as
d iscu ssed later in this ch a p te r, p olice officers w h o a re law fu lly on p rem ises
20 Section 17(2).
enjoy a general and extensive pow er o f seizu re o f goods.21 C od e B, although

it relates to searches, can be relevant to d eterm ining the proper exercise o f the
section 17 pow er.22
The police m ay use reasonable force to effect an entry authorised under
section 17.23 H ow ever, the use o f force m ust be necessary in o rd er to achieve
section 17 purposes. The m ere fact that an occu p ier refu ses entry to the police
is not sufficient to ju stify the use o f force. The police m u st have section 17
ground s for entry and they are required to inform the occup ier o f those
reasons, unless circu m stan ces m ake it im possible, u n d esirable or im p racti
cable, before using force to enter. If they have section 17 ground s but do not
inform the occup ier o f those ground s any use o f force to enter m ay be
unlaw ful.24
The use o f the section 17 pow er has not given rise to great con troversy.25
Problem s have arisen ov er the m aintenan ce, b y section 17(6), o f the com m on
law pow er o f entry to d eal w ith or prevent a breach o f the peace.26 Sim ilarly,
section 17 is likely, in general term s, to be com p atible w ith A rticle 8(2) of the
C onvention. It perm its a restriction on a p erso n 's righ t to priv ate life, for
reasons found in A rticle 8(2) such as the prevention o f crim e and disorder.
M cC leod v U nited Kingdom (1999)27 w as concerned w ith entry to deal w ith a
breach o f the peace but it ind icates the principal C on vention issues relatin g to
section 17.
Police assisted McCleod’s ex-husband while he removed furniture from McCleod’s

house. The husband was trespassing since the time for McCleod to deliver the
furniture to her husband under the legal settlement had not passed and McCleod, who
was out of the house, had not given permission for her husband to enter. McCleod
returned home and insisted the property be restored. Police refused. The court held
that the police had acted lawfully under section 17(6), PACE 1984. McCleod applied
to the European Court of Human Rights.
HELD (ECHR): there had been a violation of Article 8 ECHR.
McCleod v United Kingdom (1999) 27 EHRR 493
First, an entry un der section 17 will be an interference w ith the freed om

protected by A rticle 8(1). Second, such interferences m u st be justified un der
A rticle 8(2). In p articular the interference m u st be 'b y law ' and this includes
the requ irem ent that a person can foresee w ith reasonable certain ty the
circu m stan ces in w hich the pow er is likely to be used. In M cC leod the court
held that the pow er to enter to deal w ith or prevent a breach o f the peace
un der section 17(6) m et this requ irem ent and it seem s likely that the sam e can
be said about the o ther ground s for entry in section 17. H ow ever, although the
p ow er m ay be com patible as a b od y of rules w ith the C on vention, any
p articular exercise o f the pow er m u st also be 'n ecessary in a d em ocratic

22 O'Loughlin v C h ief Constable o f the Essex P olice [1998] 1 W L R 374, CA.
23 Section 117, PA C E 1984; see C hapter 3.
24 O'Loughlin v C h ief Constable o f the Essex P olice [1998] 1 W LR 374, CA.
25 Cf. D'Souza v D PP [1992] 4 All ER 545 reading the concept of hot pursuit into s. 17(l)(d ).
26 This issue is dealt w ith in C hapter 17 on public order.
27 (1999) 27 EHRR 493; see, further, C hapter 17.
society ', and be proportionate to the purported social benefit. It w as on this

ground that there w as held to be a v iolation o f A rticle 8 in M cC leod.
Section 18, PA C E 1984 auth orises the entry and also the search o f prem ises
occupied or controlled by a person un der arrest for an arrestable offence.
'C on tro lled ' has a w ide m eaning and can extend to at least som e places, such
as an office, in w hich a person w orks. T he p u rpose o f the search is confined
to seekin g ev id ence w hich 'relates' to the offence for w hich the arrest w as
m ad e o r for som e other related offence. The extent o f the search is confined to
w hat is reasonable given the purpose. The search m u st be authorized in
w riting by an officer w ith, at least, the rank o f inspector and should norm ally
take place after the arrested person has been taken to a p olice station. These
provisions can be tem porarily dispensed w ith if the effective investigation of
the offence requ ires the arrested person to be taken im m ed iately to the place
to be searched. A record o f the search should be m ade. M atter for w hich the
search is m ad e can be seized. Section 32(2)(b), PA C E 1984 auth orises police to
enter and search p rem ises w here an arrested person w as at im m ed iately before
his arrest. This has been discussed in C h ap ter 5.
There are m any other A cts o f P arliam en t w hich grant a p o w er to enter
prem ises to search or for other purposes. The general p rinciples u n d er A rticle
8 E C H R apply to these as they ap p ly to section 17. E xam p les inclu de the
C u stom s and E xcise M anagem ent A ct 1979, s. 84(5) and a range o f pow ers
enjoyed by those w orkin g for gas and electricity suppliers and b y trading
standards, fire and v alu ation officers.
6.8 Entry by warrant
In the absen ce o f con sent or statu tory or com m on law auth orisation, police and
o ther public officials m ay gain entry to prem ises, u n d ertake search es and seize
item s only on the au th ority o f a w arrant. T he point about a w arrant is that it
requ ires a d egree o f ind ep endent judicial supervision, exercised prior to the
event, o f the ground s on w hich the pow er to enter, search and seize is to be
exercised. U su ally it is a m agistrate w ho issues w arrants and there has,
certainly in the past, been criticism o f the extent to w hich a p roper scru tin y of
police applications takes p lace.28 As w e shall see, w here confid ential m atter is
involved or jo u rn alist's m aterials, ap plications by the police m u st be to judges.
W arrants can only be obtained on the basis of the p rovisions o f an A ct of
P arliam ent. T here is no com m on law' w arrant; fam ous cases29 establish that
there is no pow er under the p rerogative to issue w arrants, p articularly w ith
general, non-specific o bjectives exercisable on the n on-accou ntable d iscretion
o f officials. S tatutes, the P olice and C rim in al E vid en ce A ct 1984 in particular,
requ ire the sp ecification o f the type o f p rop erty or the identification of the
p ersons bein g sou ght by a search u n d er w arrant. Pow ers contained in som e
legislation, the T errorism A ct 2000 for exam ple, seem to grant very w ide
28 For exam ple, Bailey, S.H ., H arris, D.J. and Jones, B.L. (1995) C ivil Liberties Cases an d M aterials,
4th edn. London: Butterw orths, pp. 9 6 -7 .
29 For exam ple, E ntick v C arrington (1765) 19 St T r 1029; W ilkes v W ood (1763) 19 St T r 1153; Leach
v M oney (1765) St T r 1002; W ilkes v Lord H alifax (1769) 19 St T r 1406.
P ólice poivers: entri/, search and seizure 115
discretion to police and security officials w hich is incon sisten t w ith the
principle against gen eral w arrants. It need s also to be rem em bered that a
w arrant to search prem ises for persons or objects can be issued to seek
evid ence o f an offence. N o arrest need have taken place and, ind eed , there
need be no evid ence that the persons involved have com m itted an offence.
6.8.1 The Police and Criminal Evidence Act 1984

The m ain general p o w er for the p olice to seek a w arrant for the pu rpose of
inv estigating an ord in ary offence is in section 8, PA C E 1984.
8 Pow er of justice of the peace to authorise entry and search of prem ises
(1) If on an application by a constable a justice of the peace is satisfied that there are
reasonable grounds for believing -
(a) that a serious arrestable offence has been committed; and
(b) that there is material on premises specified in the application which is likely
to be of substantial value (whether by itself or together with other material)
to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded
material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies,
he may issue a warrant authorising a constable to enter and search the premises.
T he con ditions in subsection 3, o f w hich at least one m u st apply, are:
(3) . . .
(a) that it is not practicable to comm unicate with any person entitled to grant
entry to the premises;
(b) that it is practicable to communicate with a person entitled to grant entry to
the premises but it is not practicable to comm unicate with any person
entitled to grant access to the evidence;
(c) that entry to the premises will not be granted unless a warrant is produced;
(d) that the purpose of a search m ay be frustrated or seriously prejudiced unless
a constable arriving at the premises can secure immediate access to them.
There are, therefore, significant con ditions that m u st be fulfilled before a

w arrant can be issued: it m ay only be issued in resp ect of the investigation of
seriou s arrestable offences,30 in respect o f m aterial that is not only likely to be
o f substantial valu e to an investigation but also to be relevan t in the sense of
bein g ad m issible at a trial for the offence31 and m u st exclu d e m aterial subject
to lim itation. Fu rtherm ore, the w arrant m u st be necessary in the sen se that
alternative m eans o f obtain in g the evid ence are not p ossible for the reasons
found in su bsection 3. T hese are significant conditions. M agistrates have a
du ty under the law , a d uty that can only be reinforced by the general principle
o f legality w hich pervades the C on vention, to form an ind ep en den t assessm ent
30 See C hapter 4.
31 Section 8(4), PA CE 1984.
o f the ev id ence p u rporting to ju stify the w arrant; they should not, as is

som etim es alleged , m erely accept the p olice view .32
6.8.2 Other statutes

There are m an y o ther statu tory provisions w hich au th orise police and other
officials to obtain w arrants in ord er to enter prem ises to search for and seize
m aterial o f various kinds. W arrants m ay be issued , for exam ple, to search for
stolen goods,33 for explosives,34 for knives w hose possession is an offence
un d er the Knives A ct 1997s5 or fo r ev id ence of an offence u n d er the Official
Secrets A ct 1911.36 Sim ilarly, there are pow ers u n d er statu tes such as the
Theatres A ct 1968 w hich authorise m agistrates to grant a w arrant to a police
con stable to enter a theatre and observe a p erform ance w hen there is reason
to believ e it m ight be obscene and con trary to the A ct or to enter licensed sex
shops on suspicion that variou s offences m ay have b een com m itted.37
6.8.3 Safeguards
Sections 15 and 16, PA C E 1984 introd uce a n u m ber of safeguards in respect of
both the issuing and execution o f w arrants. T here are further requ irem ents in
C od e B, w hich are a gloss on the statu tory term s. Such safeguards are
esp ecially necessary sin ce w arrants are issued ex parte and the person against
w hom a w arrant is issued has no rights in the m atter.38 Sections 15 and 16
apply not only to w arrants issued un der PA C E 1984 but also to the issuing
and execution o f w arrants issued un der any other enactm ent. Section 15 also
pu rports to bind future Parliam en ts by applying its provisions to any later A ct
w hich auth orises the issuing of w arrants (w hich will be effective un less the
later A ct is u n am bigu ou sly to the contrary). C od e B applies to any entry,
search and seizu re un dertaken on the basis o f a w arrant to w hich section 15
applies but will not apply to pow ers o f entry that are not related to the
investigation o f crim es.39 Failure to give effect to the provisions in section s 15
and 16 rend ers any entry and search unlaw ful. This w ould m ean, for exam ple,
that the officers con d u cting it could be trespassers and any goods seized
ordered to be returned.40
Thus, on applying for a w arrant, the con stable m u st state the ground and
statu te on w hich the ap plication is m ad e and specify the prem ises and, so far
as is p racticable, the articles or persons to be sou gh t.41 T h e application should
be supported by an inform ation in w riting and the constable m u st answ er any
32 R v G uildhall M agistrates Court ex parte Pritnlaks H oldin gs Co. <P anam a) Inc. [1990] 1 QB 261.
33 Section 26, Theft A ct 1968.
34 Section 8, Explosive Substances A ct 1883.
35 Section 5, Knives A ct 1997.
36 Section 9, Official Secrets A ct 1911.
37 Local Governm ent (M iscellaneous Provisions) A ct 1982, Schedule 3, paragrap h 25(4).
38 Section 15(3), PA C E 1984.
39 C ode B, I.3.B.
40 See, for exam ple, R v CCCt ex parte A JD H oldings Ltd [1992] C rim LR 669; R v CC Lan cashire ex
parte Parker & M cG rath [1993] C rim LR 204.
4! Section 15(2), PA C E 1984.
P ólice poivers: entri/, search and seizure 117
question s from m agistrates on oath.42 A w arrant can au th orise entry only on

one occasion rather than for a continuous period; it m u st specify the nam e of
the con stable w ho applied for it, the date o f issue and the A ct un der w hich it
w as issued. It m u st id entify the prem ises to be searched and, again 'so far as
is practicable', the articles or persons to be sou gh t.43
Section 16 p rovides a ran ge o f protections d ealing w ith the w ay in w hich a
w arrant can be executed. For exam ple: it m u st be executed w ithin a m onth of
issue; norm ally it should be at a reasonable hour un less the p u rpose o f the
search w ould thereby be fru strated ; the con stable m u st properly identify
him self to the occu p ier or person in charge of the prem ises or leave a copy of
the w arrant if there is no one in; the w arrant should be end orsed if any goods
are seized ; the occu p ier of the prem ises is perm itted at any tim e to inspect the
w arrant. P erhaps the central protection, in im ical to the idea of a general
w arrant, is section 16(8): 'a search un der a w arrant m ay only b e a search to the
extent required for the p u rpose for w hich the w arrant w as issu ed '. A w arrant
for one pu rpose does not ju stify a general search o f a p erso n 's prem ises.
6.9 Seizure
8 Pow er of justice of the peace to authorise entry and search of prem ises
(2) A constable may seize and retain anything for which a search has been
authorised under subsection (1) above.
Section 8, PA C E 1984 perm its seizure o f good s specified in the w arrant. It

should be recalled that the need to sp ecify such goods in the w arrant is subject
to a p racticability test and so the d egree o f protection this section gives against
general seizu re m u st d epend on the extent to w hich circu m stan ces perm it
precision on the w arrant. M any other statutes w hich p erm it entry and search
on the basis o f a w arrant also p erm it the seizu re o f relevan t goods.
Section 19, PA C E 1984 p rovides a w id e-ran ging pow er o f seizu re w hich
extends w ell beyond item s specified in a w arrant. A con stable (or person
accom p anied by a constable44) w ho, for one reason or another, is law fully on
any prem ises can seize an item if he or she has a reasonable b elief that the item
w as obtained as a con sequ ence o f the com m ission o f any offence or that it
relates to such an offence. Seizu re m u st be necessary to prevent it being
con cealed, lost, d am aged , altered or d estroyed .4"’ The seizu re o f com puterised
inform ation can inclu de the pow er to have it produced in an accessible form .
S eizu re u n d er section 19 can be in relation to any offence, not ju st an offence
the con stable m ay have been investigating. Fu rtherm ore, as indicated above,
there are com plem entary com m on law powders to seize ob jects necessary for
the inv estigation o f an offence.46
42 Section 15(4), PA C E 1984.

43 Section 15(5) and (6), PA C E 1984.
44 Section 56, Crim inal Justice and Police A ct 2001.
45 Section 19(2) and (3), though the seizure of evidence under subsection (3) excludes the
prevention of dam age.
46 C ow an v C om m issioner o f Police fo r the M etropolis [20001 1 All ER 504.
T he occu p ier o f the prem ises from w hich an object has been seized m ay
requ ire a record o f the seizu re to be prod uced and this m u st be produced
w ithin a reasonable tim e. R equ ests to view or to m ake cop ies o f things seized
m ust be acceded to un less the officer in charg e b elieves that this w ould ham per
this or other investigations.47 Seized goods can be retained for as long as is
necessary for use, for exam ple, in a trial.48
6.10 Material subject to limitation
T he pow er to enter prem ises and search and seize m aterial found there gives
police and other state agents con sid erable pow ers. T hese pow ers m ay
u n derm ine the protection or exercise o f other rights and freedom s. P articular
con cern has been in respect o f rights to a fair trial, to the protection o f personal
and confid ential m atter and to the p rotection o f jou rnalism and a free press.
T hese fundam ental values are protected throu gh a ban on the search for and
seizu re o f m aterial w hich is legally privileged and by the introd uction o f a
special procedu re, m ore d em and in g on the officials and giving rights to the
o ther party to be represented , if various form s o f confid ential m aterial,
inclu d ing jou rnalistic m aterial, are in issue.
6.10.1 Legal privilege

Item s are subject to legal p rivilege if they involve com m u nications betw een
legal ad visers and their clients, or clients' representatives, w hich relate to the
giving o f legal ad vice or are produced in connection w ith legal proceed ings.49
Such com m u nications have long received the protection of the com m on law .50
S im ilar protection is found u n d er the H um an R ights A ct 1998. C on fid entiality
betw een legal ad visor and client is not only an incid ent o f A rticle 8, the right
to respect for priv ate life,51 but it is also an im portan t right im plied from
A rticle 6, the righ t to a fair trial.52 Legal privilege is, in particular, a necessary
incid ent in the righ t o f access to the courts, a right up on w hich the vindication
o f all other rights and freed om s recognised by law depends.
In ord er to pu rsu e their investigations o f crim e, the police m ay be pressing
at the bou n d aries o f w hat con stitutes privileged m aterial. P rivilege does not
extend to d ocu m ents, such as conveyances or trust agreem ents, produced on
the basis o f legal ad vice, even if they are stored in a law yer's office.53
Fu rtherm ore, privileged item s are confined to those held by law yers 'in the
47 Section 2 1 (3 M 8 ), PA C E 1984.
49 Section 10(1), PA C E 1984.
5(1For a recent H ouse of L ords affirmation of the im portance of privilege in com m on law and its
close links with the related rights of access to the courts and access to legal advice, see R v
S ecretary o f State fo r the H om e D epartm ent ex parte D aly [2001] U K H L 26, [2001] 3 All ER 433.
51 See, for exam ple, the prisoners cases such as G older v UK (1 9 7 9 -8 0 ) 1 EH RR 524 and C am pbell
v U K (1992) 15 EHRR 137.
52 N iem ietz v G erm any (1993) 16 EH RR 97.
53 For exam ple, C row n Prosecution Service on b eh a lf o f D PP fo r A ustralia v H olm an, F en w ick and
W illiam [1994] COD 174
legitim ate cou rse o f professional co n d u ct'54 and this is given statu tory force by
section 10(2), PA C E 1984 w hich states that 'item s held w ith the intention of
furthering a crim inal p u rpose are not item s subject to legal p riv ilege'. P rivilege
does not, therefore, prevent the search o f a so licitor's office for non-p rivileged
item s either becau se the solicito r's firm is itself suspected or is believed to be
holding relevant m aterials. T he intention w ith w hich a legal ad visor is holding
m aterials is d eterm ined by the con text and not m erely from the legitim ate
intention o f law yers to prov id e legal services or even the innocent intention of
their clients. P olice search in g for evid ence o f pu rch ases funded by crim e, such
a d ru g trafficking, m ay benefit from this.55
O n receiving an ap plication for a w arrant u n d er section 8, PA C E 1984
m agistrates or circu it ju d g es should satisfy them selves that there is no
apparen t reason for thinking privileged m aterial is included in the w arran t56
and give ad equ ate reasons for perm itting a search w here privileged m atter
m ight be involved.57 U nless it is inapprop riate, becau se, for exam ple, a solicitor
is un der suspicion, applications involving possibly privileged m aterial should
be m ade inter partes.™ T h e p ow ers o f the police to rem ov e item s w hich m ight
inclu d e m atters o f p riv ilege is now covered by the Part 2 o f the C rim inal
Ju stice and P olice A ct 2000 and is d escribed below .
6.10.2 Excluded or special procedure material

A s w ell as giv in g absolu te p rotection to privileged m aterials, the law also gives
procedu ral p rotection w here m atter seen as fu n dam ental to personal privacy
and d ignity is sought. This procedu ral protection also has great im portan ce for
the freed om o f the press sin ce it also applies w hen 'jou rnalistic m aterial' is
sought. Such confid ential or jou rnalistic m aterial is eith er in the m ost fully
protected category, 'excluded m aterial', or in the lesser protected category
'special p roced u re m aterial'. T h e cou rts have acknow ledged the high w eigh t
ing, given by P arliam ent, to the protection o f such rights and freedom s, in one
case reluctantly recognising that its im pact can be a significant im ped im ent to
a police inv estigation o f a serious crim e o f v iolence.59
U nd er section 8 (l)(d ), PA C E 1984 a search w arrant un der section 8 cannot
be issued in respect o f excluded or 'special procedu re m aterial' and section
9(2) o f the A ct repeals any provision o f an earlier A ct in so far as it could
auth orise such searches.
Section 9(1) requ ires that if the police are seeking access to exclu d ed or
'special p roced u re m aterial' they m u st apply u n d er the term s o f Sch ed u le 1 of
the Act. T he central point about the Sch ed u le 1 p roced u re is that it involves
application to a circu it ju dge rather than a m agistrate, the application m u st be
54 R v Cox ailit R aillon (1884-85) 14 LR QBD 153.

55 See, for exam ple, F rancis an d Francis (a firm ) v Central C rim inal C ourt 11988] 3 All ER 775.
56 R v G uildhall M agistrates C ourt ex parte Prim laks H oldin g Co. (Panam a) Inc. [1990] 1 QB 261,
following Francis an d Francis (a firm ) v Central C rim inal C ourt [1988] 3 All ER 775, H L; R v
C hesterfield Ju stice an d A nother ex parte Bram ley [2000] 1 All ER 411
57 R v Southam pton Crow n C ourt ex parte / an d P 119931 C rim LR 962.
58 R v In n er London Crow n Court ex parte Baines & Baines [1988] QB 579; R v M aidstone Crow n Court
ex parte Waitt [1988] C rim LR 384.
59 R v C ardiff C row n C ourt ex parte Kellam (1993) TLR 239 (3 M ay).
inter partes,60 so giving an op p ortu nity to the person involved to object, and the
ap plication is norm ally fo r an ord er requ iring the person involved to prod uce
or give the police access to the m aterial rather than a w arrant em pow ering the
police to search. Failure to com ply w ith an ord er to prod uce or give police
access to 'special procedu re m aterial' can be dealt w ith by a ju dge as if it w ere
a con tem p t of co u rt/’1 O ften, o f course, such an application w ill be m ad e in
respect o f a pu blic auth ority or organisation such as a hospital from w hom
eventual com plian ce can be expected; press and b ro ad castin g organisations, on
the other hand, m ay feel that their highest auth ority is to p rotect the
anonym ity o f their sou rce and refuse to com ply.62 In certain circu m stan ces a
w arrant to search, coupled w ith a p o w er o f seizure, can be issued .63 D espite
the p rotection that this procedu re gives to protect exclu d ed and special
proced u re m aterial it should be noted that, unlike m atters subject to legal
privilege, nothing in section 18 (pow er to enter and search prem ises occupied
or controlled by a person un der arrest), section 19 (general pow er o f seizure)
or section 32 (pow er o f search and seizu re o f prem ises in w hich a person w as
im m ed iately prior to arrest) prevents the seizu re of such m aterial if the police
com e across it d u ring a law ful search for other m atter. Sim ilarly the
protections o f section 9 are lost if a w arrant from a ju risd ictio n that does not
have such p rotections is v alid ly executed in England.64
Excluded m aterial
'E xclu d ed m aterial' is defined by sections 11, 12 and 13, PA C E 1984. It refers,
first, to personal records, held in con fid ence and acquired or created in the
cou rse o f 'trad e, business, profession or other occu p atio n' or for the 'purposes
o f any paid or unpaid office'. A personal record is defined in section 12 as a
d ocu m entary or other record 'con cern in g' an in d ividu al, alive or dead, w ho
can be identified from the record. T h e record m u st be 'relating to' his or her
'ph ysical or m ental health' or 'spiritu al cou nselling or assistan ce' or other
cou nselling or assistan ce con cern in g personal w elfare. R ecords w hose content
deals w ith other m atters, e.g. ad m inistrativ e m atters, can be included if they
only exist as a con sequ ence of the d ealings w ith the person in relation to his
or her physical or m ental health or personal w elfare.6"1 Thu s personal details
o f hospital patients and even, perhaps, social w ork records are included.
'E xclu d ed m aterial' also includes hu m an tissue or tissue fluid w hich has been
taken for m ed ical pu rposes (thus blood sam ples taken as part o f a crim inal
investigation, for exam ple, are not w ithin the definition) and are held in
confidence. For both personal records and hum an tissue, con fid entiality is
Schedule 1, paragrap h 7; R v M aidston e C row n C ourt ex parte Waitt [1988] C rim LR 384. A s w ith
m atters of legal privilege the judges have a responsibility to ensure that the protections offered
by Schedule 1 are upheld.
61 Schedule 1, paragrap h 15, PA C E 1984.
62 For exam ple, D PP v C hannel 4 T V [1993] 2 All ER 517.
63 Schedule 1, paragrap h 12, PA C E 1984.
M In R v M anchester S tipendiary M agistrate an d an other ex parte G ranada Television Ltd [20001 1 All
ER 135, the H ouse of Lords held that a search w arran t issued in Scotland could be validly
executed against a television com pany based in England even though Scottish law does not
contain the sam e protections for journalistic m aterial as in England.
65 R v C ardiff C row n C ourt ex parte Kellam (1993) TLR 239.
defined in respect o f either the existen ce o f an express or im plied u n dertakin g

o f con fid entiality or a statu tory requ irem ent o f non-d isclosure or secrecy.
Third ly, exclu d ed m aterial includes 'jou rnalistic m aterial' con sisting of
records or other kinds o f d ocu m ents w hich are held in confidence. The
m aterial m ust have been acquired or created for the pu rposes o f journalism
and b e in the p ossession of a person w ho acquired or created it for that
purpose. If, for exam ple, a journalist receives confidential m aterial through the
post w hich is sen t to be used for jou rnalistic pu rposes, it is covered by the
A ct.66 T h e p o w er o f the press to p revent p olice access to jou rnalistic m aterial
m ay depend on w hether it is confid ential, as defined by the A ct. It will only
be confid ential if the m aterial is held by the jo u rnalist subject to an
'u nd ertaking, restriction or obligation' o f con fid entiality and that it has been
con tin uously held u n d er the bu rd en o f con fid entiality since acquired or
created for journalistic pu rposes.67 Jou rnalists con v en tionally offer protection
to their sou rces and are likely to be ab le to use that in ord er to brin g m atter
w ithin the p rotection o f 'exclud ed m aterial'.
A pplication s for 'exclud ed m aterial' m u st be m ad e u n d er Sch ed u le 1,
paragraph 3, PA C E 1984 only. This refers to the 'second set o f access
con d itions'. A circu it ju d g e can ord er a person to prod u ce 'exclud ed m aterial'
or give a con stable access to it only if there are reasonable ground s for
believin g that 'exclud ed m aterial' is in the prem ises specified in the application
and that, un der previous legislation, as repealed by section 9(2) PA C E 1984, a
search w arrant for such m aterial both could and w ould have b een issued. The
test is historical, the A ct does not change the law . T here is no necessary public
interest test for the issuing o f the w arrant though such tests w ere inherent in
the earlier law.
Special procedu re m aterial

Special procedu re m aterial68 is any other m aterial (not personal records
relating to physical or m ental health or spiritual or w elfare cou nselling) w hich
is held subject to an obligation o f con fid entiality and w hich is 'acquired or
created in the cou rse of any trade, business, profession or other o ccup ation' or
for the 'p u rp oses o f any paid or unpaid office'. It includes various types of
financial and property records. 'Sp ecial procedu re m aterial' also inclu des any
journalistic m aterial, defined as fo r 'exclud ed m aterial' but w hich does not
consist o f d ocu m ents or records or w hich, m ore im portantly, is not held under
an obligation o f con fid entiality or secrecy. This w ill inclu de the notes relating
to published articles un less d isclosure w ould break a d uty o f confid entiality
such as leading to the disclosure o f a source.
A ju d g e m ay ord er the disclosure to the p olice o f 'sp ecial procedu re
m aterial' if eith er the second or first set o f access con ditions, found in Sched u le
1 o f the A ct, apply. A s w e have seen, the p rod uction o f 'exclud ed m aterial' can
only be ordered if the second set o f access con d itions apply, i.e. that
p rod uction could have been ordered prior to the com ing into effect o f PA C E.

67 Section 11(3), PA C E 1984.
68 Special procedu re m aterial is defined by s. 14, PA CE 1984.
Sp ecial procedu re m aterial can also be ordered to be produced if it could have

been so ord ered prior to PA C E 1984; in ad dition , 'special procedu re m aterial',
but not exclu d ed m aterial, can be ordered to be produced if the first set of
access con ditions apply.
Police and Crim inal Evidence Act 1984

Schedule 1 SPECIAL PRO CEDURE
(1) If on an application made by a constable a circuit judge is satisfied that one or
other of the sets of access conditions is fulfilled, he may make an order under
paragraph 4 below.
(2) The first set of access conditions is fulfilled if -
(a) there are reasonable grounds for believing -
(i) that a serious arrestable offence has been committed;
(ii) that there is material which consists of special procedure material or
includes special procedure material and does not also include excluded
material on premises specified in the application;
(iii) that the material is likely to be of substantial value (whether by itself or
together with other material) to the investigation in connection with
which the application is made; and
(iv) the material is likely to be relevant evidence;
(b) other methods of obtaining the material -
(i) have been tried without success; or
(ii) have not been tried because it appeared that they were bound to fail;
and
(c) it is in the public interest, having regard -
(i) to the benefit likely to accrue to the investigation if the material is
obtained; and
(ii) to the circumstances under which the person in possession of the
material holds it
that the material should be produced or that access to it should be given.
A ll the ground s in p aragraph 2 m u st be properly established by evid ence, even

in national security c a s e s . T h e ju d g e m u st be satisfied on his or her ow n
ju d g m ent that the ground s are m ad e o ut and not ju st be satisfied that there
are circu m stan ces in w hich it is reasonable, in the ad m inistrative law sense,
for the p olice to have m ade the application.70
O f particular im portan ce from a civil liberties point of view is the im pact these
procedu res have on freed om of the press. In R v Bristol Crown Court ex parte
Bristol P ress and P icture A gency Ltd (1987),71 the police su ccessfu lly applied for an
ord er requ iring the d isclosure o f photographs o f riots and rioters w hich they
believed w ould help in the identification of offenders. Such ord ers are likely to
have an inhibiting effect on the reporting and investigation o f crim e and
disorder. In particular, the availability o f such orders w ill turn jou rnalists into
potential agents o f the police and d estroy w hatev er im partiality as observers
and reporters they m ay have and, perhaps, jeo p ard ise their personal safety.
69 R v C entral C rim inal C ourt ex parte Bright [20011 2 All ER 244, though the presence of national
security issues m ay cause the court to take precautionary procedural steps.
70 Ibid.
71 (1987) 85 C r App R 190, QBD.
T he issue turns on the approach o f the courts to the question o f the public
interest, to the factors that can be brou ght into con sid eration and to w hen in
the process o f reasoning the ju dgm ent is to be m ade. The fullest d iscu ssion is
in R v Central Crim inal Court ex parte Bright (2001 ).72
Police, investigating offences under the Official Secrets Act 1989 by David Shayler
sought, first, the disclosure of files, including Shayler’s e-mail address, relating to a
letter he sent to The Guardian, and, second, files relating to an article written by
Bright, a journalist, and published in The Observer, which was based on information
supplied by Shayler to Bright and which might disclose an offence committed by the
latter under the Official Secrets Act 1989. At first instance the judge granted the
orders, for special procedure material, that were requested by the police.
HELD (QBD): the orders should be discharged except for one relating to a letter
sent by Shayler to Bright.
R v Central Criminal Court ex parte Bright [2001 ] 2 All ER 244
A ju dgm ent on the public interest arises, accord ing to the m ajority, in tw o
places. First, in respect o f paragraph (c) o f Sch ed u le 1 as part o f the ju dgm ent
w hether the access con ditions have been m ad e out. H ow ever, pu blic interest on
this point is to be treated narrow ly and confined to the issues in paragraph (c).
B roader questions, such as the im pact o f an o rd er on freedom o f the press and
other fu n dam ental o r hum an rights, are excluded at this point. Such broad er
issues are relevan t to a second ju d g m en t that need s to be m ade: w hether, given
that the access con ditions are m ad e out, the o rd er should be issued. U nd er
paragraph 1 o f Sch ed u le 1 the ju dge has a d iscretion on this m atter.73 T he court
stressed that placing the b road er public interest here does not dim inish the
im p ortan ce to be given to fun d am ental or hum an rights and, in particular, to
freedom of the press and to the right not to be required to incrim inate oneself.
By relating issues of the b road er pu blic interest to the ju dicial d iscretion over
w hether to issue an o rd er rather than to the ju d g m ent on w hether or not the
first set o f access con ditions are m ad e out, it m ay be possible to avoid the
difficulty o f a find ing both that the m aterial bein g sou gh t w as likely to be of
substantial value in the investigation o f a serious arrestable offence and that,
nevertheless, it w as not in the pu blic interest to ord er p rod uction .74
R v C entral Crim inal Court ex parte Bright con tain s strong w ord s in support
o f freed om o f the p ress.75 In particular it is au th ority for the view , echoing
Bristol P ress and P ictu re A gency, that a p rod uction ord er for journalistic m aterial
should be based on com pelling reasons otherw ise 'inv estigativ e journalism
w ill be d iscou raged , perh aps stifled '. T h e case w as decided before the com ing
into effect o f the H um an Rights A ct 1998 and the argum en t, esp ecially o f Jud ge
J, is based on the con gru ency o f the fundam ental rights recognised by the
com m on law w ith the hum an rights recognised by the C onvention.76 Sin ce the
72 [2001] 2 All ER 244.

73 Gibbs J dissented on the point; he thought that paragrap h (c)(ii) w as expressed w ith sufficient
w idth to include m atters such as freedom of the press. In Bristol P ress A g en cy freedom of the
press is treated as pertaining to paragrap h (c).
74 R v Croton Court at N ortham pton ex parte D P P (1991) 93 C r A pp R 376.
75 Especially per Judge J; it also recognises that self-incrim ination m ay be in issue.
76 R v Central C rim inal C ourt ex parte Bright [2001] 2 All ER 244, paragrap h 87.
com ing into effect o f the A ct a nu m ber o f poiiits need to be noted. Sectio n 6 of
the A ct requ ires courts, as pu blic auth orities, to give effect to the C onvention.
A rticle 10, freed om o f expression, therefore m u st be taken into account by the
courts, though, in the light of A rticle 10(2), there m ay be little o f substance
betw een the com m on law and the C onvention. Section 12 o f the H um an Rights
A ct 1998 reinforces the point w ith its requ irem ent that cou rts m u st have
'p articu lar reg ard ' to the im p ortan ce of freedom o f expression u n d er the
C on vention and, in particular, 'the extent to w hich . . . it is, or w ould be, in the
pu blic interest for the m aterial to b e pu blish ed '. T his un derlines the p osition
ing ex parte Bright that freed om o f the press m u st be taken into accoun t in
decid ing w hether to issue an ord er even thou gh the access con ditions have
been m ade out. A further point should be noted. In d ealing w ith hum an rights
cases, cou rts m u st be satisfied that any restriction o f a C on vention right, such
as freed om o f expression , is p roportionate to the public benefit that w ill accrue.
This princip le is alread y found in p aragraph 2(a)(iii) o f Sch ed u le 1 but is to be
given greater p rom in ence as a sid e con straint follow ing the com ing into effect
o f the 1998 A ct.77
In the con text o f anti-terrorism , the courts m ay take a m ore executive
m inded approach. T his issue is d iscussed in C h apter 18.
6.10.3 The Criminal Justice and Police Act 2001

W hen the police are law fu lly con du cting a search of prem ises or persons
un der a range o f statutes inclu d ing PA C E 1984, they m ay com e across m aterial
w hich m ay or m ay not be p rivileged , 'exclu d ed ' or 'special procedu re
m aterial', or they m ay seize item s w hich are inextricably linked w ith such
m aterial. U nd er the 2001 A ct p olice are now 78 able to seize such m aterial and
rem ov e it in ord er to ascertain w hether they are or are not entitled to seize.
The m aterial m u st be exam ined as soon as is reasonably p racticable and non-
seizable m atters m u st be 'secu red ' (not further exam ined ) or returned. T h e A ct
thus increases or at least clarifies police pow ers of seizure. In balance, the A ct
also p rovides a procedu re for applying, as approp riate, to the C row n C ou rt or
H igh C ou rt for the return o f seized item s w hich are outsid e police pow ers to
seize. T h e need fo r such a procedu re clearly reflects the hu m an rights
requ irem ent for p roper ju dicial supervision of search and seizu re pow ers.
6.11 Search orders
The search and seizu re pow ers d iscussed abov e are exercisable by police and,
un d er other statutes, b y other officials and m u st be exercised in the public
interest. P arties to civil p roceedings m ay also be able obtain 'search ord ers'
against the other party to proceed ings.79 T h e ord er m ay be w ide ranging. It is
77 R v Secretary o f State for H om e D epartm ent ex parte D aly [2001] U K H L 26 [20011 3 All ER 433.
78 For the com m on law position as regards privileged m aterial see R v C hesterfield Ju stice and
A nother ex parte Bram ley [20001 1 All ER 411.
79 A nton Piller KG v M anufacturing Processes Ltd [1976] 1 All ER 779 CA.
designed to su p p lem ent a norm al d iscov ery ord er w here there is serious
ground s for thinking that evid ence need ed by the applican t for litigation m ay
be otherw ise hid den, d estroyed or rem oved. It is issued ex parte and in the
private interests o f the applicant. It is enforced b y the applicant and his or her
solicitor. C oncern that the ord er w as bein g issued rou tinely and o p pressively
rather than in exceptional circu m stan ces led to a review and tightening up of
the procedu re inclu ding, in som e cases, supervision o f the execution of the
ord er to be by an ind ep en den t solicitor.80 H ow ever, even in ad van ce o f these
changes, the procedu re w as com p atible w ith C on vention righ ts.81
80 U niversal T herm osensors U ii v H ibben [1992] 3 All ER 257.

81 C happell v United Kingdom (1990) 12 EHRR 1.
7
Surveillance
7.1 Surveillance
7.1.1 The point of surveillance

The core m eaning o f su rv eillance is the obtain in g o f inform ation about persons
and organisations by covert m eans. T he inform ation is obtained w ithout the
targ et's kn ow led ge or consent. State agencies (secret services and , later, police
forces) have from tim e im m em orial condu cted surv eillance against their
institutional opponents. T he tw entieth cen tury saw a huge expansion in the
quantity and scope o f su rv eillance and this con tin ues as state functions have
w idened and perceived threats continue. In particular, technological d ev elo p
m en t con tin ues at a fast rate and it is this m ore than any thing that has m ade
surveillance such an im p ortan t and p roblem atic issue. It v astly increases the
op portu nities for and likely effectiveness o f surveillance, esp ecially that w hich
can be condu cted rem otely. T hrou gh d evices such as the com p u ter and the
m obile phone it has also transform ed the m eans o f com m u nication and thus,
in parallel, the m eans b y w hich such com m u nications can be m onitored.
Surv eillance enables the identification o f evid ence w hich, if sou ght through
m ore open m eans, w ould otherw ise d isappear. It enables suspicions to be
confirm ed to the extent that m ore open m eans can then be used to obtain
evid ence that is ad m issible in court. It can also be used to know w hat the
opponen ts are d oing and to take ap p rop riate cou nterm easu res.
7.1.2 The problem of surveillance

Surv eillance involves an interference w ith private life. P rivacy is interfered
w ith even if the surv eillance is unknow n to the person in v o lv ed .1 Surv eillance
can also threaten other, m ore political, freed om s, in particu lar freed om of
expression and freedom o f association. The p ossibility, quite as m uch as the
actuality, o f surveillance, is an inhibition on political and other organisations
and an interference w ith their freed om .2 Surv eillance raises a gen uine tension
w ith w hich the law should deal. T here are clear pu blic benefits that the
practice can bring. Su rv eillance is used not only in respect o f o rd in ary crim e
1 This m irrors the view taken by the European C ou rt of H um an Rights in one of its leading cases
on surveillance: K lass an d others v Federal R epublic o f G erm any (1979) 2 EH RR 214.
2 K lass an d others v F ederal R epublic o f G erm any (1979) 2 EH RR 214, paragraph 41, a case decided
on the right to privacy rather than to expression o r to association.
Surveillance 127
but to counter 'subversion' and 'terrorism ', both term s of very w ide applica
tion. There is also the need properly to secure the private and political rights
of those directly affected and to m aintain an open society am enable to political
dissent and a plurality of view s som e of w hich m ay be unpopular w ith those
exercising state power. Surveillance sits uncom fortably w ith dem ocratic values
and practices as these are understood in conventional liberal and hum an rights
discourse. Any justification for surveillance should be carefully and restrictive-
ly assessed. In particular its purposes should be limited to those which
advance rather than restrict the openness of society and any authorisation
m ust be subject to reasonable and effective safeguards aimed at protecting the
private and political rights not only of those directly affected but of citizens
generally.
The opportunity for state w rongdoing is clearly considerable. The fear is that
the state will use surveillance to pursue im proper objectives, such as the
suppression of political dissent, or use it to pursue proper objectives by
d isproportionate m eans. Few governm ents which claim to be dem ocratic will
claim an unlimited pow er to use surveillance. O f great im portance, therefore,
is the issue of who, w hat kind of body, has the job, firstly, of deciding what
general rules are to apply to the authorisation of surveillance, and, secondly,
of supervising and enforcing those rules in particular instances. In the United
Kingdom , it has not been until recently that Parliam ent, rather than the
executive, has established the general rules governing state surveillance. The
U nited K ingdom also tolerates executive authorisation of particular acts of
surveillance and largely avoids review by the ordinary courts, preferring
review by specialist officials and tribunals. This system will be discussed in
greater detail in w hat follows.
O thers, apart from state agents, m ay wish to use covert m eans to obtain
inform ation. Security firms and private investigators are exam ples and they,
of course, will be acting for a range of com m ercial and private interests with
any public benefits being rem ote. M ore problem atic is the investigative
journalist. There m ay be both a private interest (the reputation of the journalist
and the com m ercial success of his or her em ployer) and a public interest from
the publication of a story that exposes w rongdoing; alternatively there m ay be
only the publication of a story that feeds base curiosity about the private lives
of others.
7.2 Surveillance and legality
Until the m id-1980s surveillance activities, such as phone tapping, w atching

and follow ing people or planting listening devices, was largely unregulated by
the general law. G enerally no statute perm itted such activities but nor did any
statute m ake them unlaw ful. If a crim inal offence w as com m itted or a civil
wrong then the courts could provide a rem edy. This w as most likely to be the
com m ission of a trespass, the direct interference with a person or his or her
property, which could occur when property w as entered to plant a device, for
exam ple. M ore rem ote form s of surveillance, such as telephone tapping or
watching and follow ing are outside the interests that trespass protects and the
com m on law did not d evelop a gen eral right to p riv acy w hich such
surveillance m igh t violate. L egal au th ority for surveillance lay, at that tim e, in
the ap plication to state officials o f the general principle that w hat is not
forbidd en is p erm itted .3 G u id elin es w ere prod uced to govern som e surveil
lance activities, p articularly by the police.4 'G u id elines' are not law , they
cannot m ake law ful that w hich is unlaw fu l, and so they could not auth orise
w hat w as otherw ise a trespassory interference w ith property. C onversely,
su rv eillance outsid e the gu id elin es w ould not, for that reason, be unlaw ful
though it could, perh aps, lead to d isciplinary activity w ithin the police force.
The cou rts, how ever, took a tolerant view and ev id ence from surveillance,
ev en if unlaw ful, w ould not be autom atically inad m issible.5
The absen ce o f clear legal regulation violated the fun dam ental principle of
legality found in the E C H R .6 The con sequ ence o f this has been a progressive
extension o f statu te law over a range of surv eillance activities. T he tapping of
a public phone system w as regulated by the In tercep tion o f C om m u nications
A ct 1985 w hich m ad e such intercep tions an offence unless authorised b y a
w arrant obtained from the H om e Secretary. Police, the secret services and
other pu blic bod ies could apply for such w arrants. A tribunal w as established
to w hich an aggrieved person could apply and the general system w as
review ed by a com m issioner reporting to the Prim e M inister. A ll other form s
o f surveillance w ere left unregu lated by legal rules. The Secu rity Serv ice A ct
1989 (am ended by the Secu rity Serv ice A ct 1996) provided legal authorisation
for covert, otherw ise tortious, entry onto property b y the internal security
service for surv eillance purposes. T h e In telligence Services A ct 1994 took over
these provisions and gav e sim ilar auth orisation for G C H Q and the security
services d ealing w ith overseas threats. A sim ilar system as u n d er the
Interception o f C om m u nications A ct 1985, o f need in g a w arrant from the
Secretary o f State w ith com plaint to a tribunal and review by a com m issioner
w as used. Legal au th ority for covert, otherw ise tortious, interference w ith
property by the p olice w as only given a statu tory basis by the Police A ct 1997,
d iscu ssed below .
G aps in legal regulation rem ained and these w ere increased by technological
d ev elopm ents av ailable b oth to those con d u cting and to the targets of
surveillance. T h e Intercep tion of C om m u nications A ct 1985 w as lim ited to
public telephone netw orks and had no effect on intercep tion o f m essages over
p riv ate system s7 or cordless phon es8 o f various kinds. Sim ilarly, the S ecu rity
Serv ice A ct 1989, the In telligence Services A ct 1994 and the Police A ct 1997 had
no regulatory effect on form s o f surveillance that w ere not tortious or
otherw ise unlaw ful. R em ote su rv eillance techniques, w hich do not require
tortious entry onto property, w ere not covered by the legislation. T ech n o log i
cal ad vances o f the late tw entieth century significantly increased the utility of
this type o f surveillance for the authorities'* and also the efficiency of m ethods
3 M alon e v M etropolitan Police C om m issioner [1979] 1 Ch 344.

4 A s discussed in R v Khan (Sultan) [1997] A C 558, 573.
5 R v Khan (Sultan) [1997] A C 558.
6 M alon e v U nited K ingdom (1984) 7 EHRR 14; H alford v U nited K ingdom (1997) 24 EH RR 523.
7 H alford v United Kingdom (1997) 24 EH RR 523.
8 R v F.ffick [1994] 3 W LR 583.
S u rv eilla n ce 129
fo r s to r in g an d re trie v in g th e d a ta o b ta in e d . T h e re w e re a lso s ig n ific a n t

p ro b le m s p e rc e iv e d a b o u t th e u se o f re m o te s u rv e illa n c e b y th e m e d ia
in v o lv in g s o m e tim e s g ro ss, an d b y n o m e a n s c o v e rt, in tru sio n in to p e o p le 's
liv e s .10
T h e la ck o f le g a l re g u la tio n b e c a m e , th e re fo re , a m a tte r o f s ig n ific a n c e
p a rtic u la rly a fte r th e c o m in g in to e ffe ct o f th e H u m a n R ig h ts A c t 1998.
In te rfe re n c e s w ith C o n v e n tio n rig h ts, s u c h as th e rig h t to p riv a te life , m u st b e
'in a c c o rd a n c e w ith th e la w ' an d m e re n e g a tiv e fre e d o m , th e a b s e n c e o f
e x p re ss s ta tu to ry re g u la tio n , fa ils th e S tra sb o u rg te st fo r le g a lity . T h e re w a s a
d a n g e r th a t, u n d e r th a t A ct, m u ch s u rv e illa n c e w o u ld b e c o m e u n la w fu l.1’
E u ro p e a n C o m m u n ity law a lso re q u ire d g re a te r le g a l re s tra in t to p ro te c t
p riv a c y in th e lig h t o f te c h n o lo g ic a l d e v e lo p m e n t in th e te le c o m m u n ic a tio n s
12
a rea.
F o llo w in g in v e stig a tio n a n d r e p o r ts 13 th e g o v e rn m e n t h ad P a rlia m e n t e n a c t
th e R e g u la tio n o f In v e s tig a to ry P o w e rs A ct 2 0 0 0 w h ic h a im s to p ro v id e a
c o m p re h e n siv e le g a l s tru c tu re fo r v a rio u s fo rm s o f 'la w fu l', n o n -to rtio u s ,
s u rv e illa n c e .
7.3 Interception of com m unications
7.3.1 The offence

S e c tio n 1, R e g u la tio n o f In v e s tig a to ry P o w e rs A c t 2 0 0 0 (R IP A 2 0 0 0 ) c re a te s an
o ffe n ce fo r a n y p e rs o n to m a k e an u n la w fu l in te rc e p tio n o f a c o m m u n ic a tio n
in th e c o u rs e o f its tra n s m is sio n b y p o st o r te le p h o n e .
1 U n law fu l in tercep tio n

(1) It shall be an offence for a person intentionally and without lawful authority to
intercept in any place in the United Kingdom, any com m unication in the course
of its transmission by means of -
(a) a public postal service; or
(b) a public telecom m unication system.
(2) It shall be an offence for a person -
(a) intentionally and without lawful authority, and
(b) otherwise than in circum stances in which his conduct is excluded by
subsection (6) from crim inal liability under this subsection,
to intercept, at any place in the United Kingdom, any com m unication in the
course of its transmission by m eans of a private telecom m unication system.
9 F o r e x a m p le , arial c a m e ra s w ith high m ag n ificatio n , n ig h t v isio n te ch n o lo g y , stro b o sco p ic

ca m e ra s, a u to m a tic v eh icle reco g n itio n and C C T V - C o lv in , M. (1 9 9 9 ) 'S u rv e illa n ce and the
H u m a n R igh ts A c t', in the U n iv e rsity o f C a m b rid g e C e n tre for Pu b lic L a w (e d .) The H um an
Rights A ct and the Crim inal Justice Regulatory Process. O x fo rd : H a rt Pu b lish in g, p. 73.
10 A s e a rly as 1992 Sir D avid C a lc u tt's Review of Press Self Regulation, C m 2 1 3 5 , re co m m e n d e d the
creatio n o f b o th crim in al a n d to rtio u s actio n s ag a in st re m o te su rv eillan ce.
11 See, fo r e x a m p le , JU S T IC E (1 9 9 8 ) U nder Surveillance - Covert Policing and H um an Rights
Standards. L on d o n : JU S T IC E .
12 T eleco m s D ata P ro tectio n D irectiv e, 9 7 / 6 6 / E C .
13 T h e A c t in clu d es th e leg islative re sp o n se to tw o re p o rts: Interception o f Com m unications in the
United Kingdom (1 9 9 9 ) C m 4 3 6 8 ; an d Promoting e-Com m erce (1 9 9 9 ) C m 4 4 1 7 .
This ad opts and expan d s the offence un der the Interception o f C om m u n ica
tions A ct 1985 w hich is largely rep ealed .14 N o proceedings can be brou ght
w ithout the con sent o f the D irector o f P ublic P rosecutions.
Section 1, RIP A 2000 extends the offence o f un law fu l intercep tion to private
telephone system s thus going som e w ay to rem ed y the problem exposed in
H alford v U nited K ingdom .'5 A telephone tap placed on the internal telephone
system o f the M erseysid e Police in ord er to m on ito r calls m ad e by the
applican t w as held to have violated A rticle 8 ECH R. T h e C ou rt o f H um an
Rights held that, since the Interception of C om m u nications A ct 1985 did not
apply to such n o n-p ublic teleph one system s, there w as no legal b asis for the
in terference w ith the ap p lican t's A rticle 8 rights. Section 1(6), R IPA 2000
perm its the intercep tion o f a priv ate telecom m u nication transm ission if done
by or w ith the express or im plied con sent o f the person w ith a righ t to control
the system ; em ployers m ay continue to tap their em p loyees' w ork telephones
w ithout com m ittin g a crim inal offence. H ow ever, section 1(3) creates a tort
action, for d am ages or other civil rem edy. T he sen d er and receiver o f a
m essage that is intercepted w ith the express or im plied con sent o f a private
system con troller has a cause of action against the controller. H ow ever, no tort
is com m itted if the con troller can show that he or she acted w ith 'law ful
au th ority ' w hich, in respect o f businesses, is extensive.
7.3.2 Lawful authority

N o crim e o r tort is com m itted if an intercep tion is m ad e w ith 'law ful
au th ority '.16 L aw fu l au th ority inclu des intercep tions m ade w ith the reasonable
belief that both parties had consented or m ad e becau se they are necessary for
the effective operation o f a teleph one or postal service (opening non-ad d ressed
letters, for exam ple). Law ful au th ority also covers the situ ation in w hich the
police are authorised un der Part 2 o f the A ct to con du ct su rv eillance and the
non-target party has consented to this bein g by the intercep tion o f telephone
or post;17 intercep tions in prisons and high security hospitals are law ful so
long as authorised un der relevant regulations such as the P rison Rules. The
A ct, how ever, provides no public interest defence that a journalist, for
exam ple, m ight w ish to claim .
Business com m unications

There are w ide ground s for the law ful intercep tion o f bu sin ess com m u nica
tions and these m ay m ake it relativ ely easy for em ployers and other controllers
o f a private telecom m unications system to m ake out a d efen ce to the tort
created by section 1(3), RIPA 2000. The A ct em pow ers the S ecretary o f State to
m ake regulations au th orising the intercep tion by businesses o f com m u n ica
14 The provisions w hich rem ain am end the Telecom m unications A ct 1984 by m aking it an offence
for those operating a public telecom m unications service to m ake unauthorised disclosure of
inform ation obtained by an interception.
15 (1997) 24 EHRR 523. Sim ilarly, the use of covert listening devices in a police cell violated Article
8: PG an d JH v U nited Kingdom Ap. 4 4 7 8 7 /9 8 ; (2001) The Tim es, 19 October.
16 Section 1(5), RIPA 2000.
17 Section 3, RIPA 2000.
Surveillance 131
tions m ad e w ith them and their em ployees. T here is no d efinition of 'bu siness'
but the term is capable o f w ide use and includes go v ernm ent d ep artm ents,
public auth orities and office holders.18 E stablishing com plian ce w ith p ro
ced u res, d etectin g or preventing crim e, d etectin g the u nauthorised use of
telecom m unications system s, m onitoring help lines and, even, furthering the
interests of national security are exam ples o f the w ide-ran ging pu rposes for
w hich the intercep tion o f bu sin ess com m u nications w ill be perm itted. T h e A ct
requ ires little o f the Secretary o f State as reg ard s safeguards though the
regulations should stress the need for businesses to take reasonable steps to
inform people that intercep tion or m onitoring is possible.
W arrants
From the civil liberties point o f view , the m ost im portant and controversial
form o f law ful au th ority is on the basis o f a w arrant obtained under section 5,
RIPA 2000. It is on this b asis that, for exam ple, the covert, non-consensual
intercep tion o f com m u nications by alleged subversives or terrorists is
authorised.
The w arrant is issued only by the S ecretary o f State or, in urgent cases, by
a sen ior official. W arrants issued by the Secretary o f State last for three m onths
and can be renew ed for a further six m onths or three m onths d ep en d ing on
their purpose. W arrants issued by officials last for five days only bu t can be
renew ed for a three-m on th period.
There is no requ irem ent for direct judicial au thorisation, b y judge or
m agistrate, o f such w arrants and it m ay be that a S ecretary of State or a senior
civil servan t lacks the ind ep en d en ce and im partiality that auth orisation o f such
a m ajor interference w ith p riv acy and, perhaps, political freedom ought to
have. T h e strength o f this argum en t d epends on the cou ntervailing provisions
for review , supervision and com plaint and the com m issioners and tribunal
w hich are discussed later in the chapter. O nly p olice (w ho apply through the
N ational C rim in al Intelligence Service), security services and the C u stom s and
Excise, as specified in section 6, are allow ed to apply for a w arrant. C overt
su rv eillance by other officials or jou rnalists, for exam ple, rem ains a crim e.
The Secretary o f State m u st believ e that a w arrant is necessary to achieve
certain pu rposes w hich cannot be achieved in any other reasonable w ay and
that the intercep tion is a p roportionate w ay o f achiev ing the result the
intercep tion is aim ed to achieve. T h e pu rposes are: 'the interests o f national
secu rity ', the 'prev enting or d etectin g o f seriou s crim e' and 'safegu ard ing the
econ om ic w ell-being o f the U nited K ingd om ' w here the inform ation relates to
persons or actions o utsid e the British Isles. T hese provisions are clearly
designed to ensu re that the issuing o f w arrants is com p atible w ith C on vention
rights, in p articu lar A rticle 8(2) EC H R. O f p articular con cern in the civil
liberties con text is the concept o f 'seriou s crim e' w hich includes 'cond uct by a
large nu m ber o f persons in pursuit o f a com m on p u rpose' and w ould seem to
be capable o f auth orising the intercep tion o f com m u nications by political
groups planning dem onstration s or protests involving, for exam ple, obstruc
tion o f the highw ay. The go v ern m en t's explanation is that the d efinition is

aim ed at organised crim e and that the p rotection for reasonable political
protest lies w ith the d uty o f those officials involved to act p rop ortionately and
otherw ise com patibly w ith C on vention rights such as A rticle 10, freed om of
expression, and A rticle 11, freed om o f assem bly and association.
The legal regim e u n d er P art 1, C h ap ter 1, RIPA 2000 provides w ide
d iscretionary pow ers to the S ecretary o f State and, in reality, to the officials
w hose ju dgm ents on the need for an interception are likely to d eterm ine the
Secretary o f S tate's decision. T here is a p roced u re for com plain t to a tribunal
by anyone w ho believes their com m u nications have been intercep ted , and the
system is review ed and reported on by a ch ief com m issioner. This is discussed
later in the chapter. The issuing and execution o f w arrants, as the actions of
'p u blic au th o rities', m ust, un der section 6 o f the H um an R ights A ct 1998, be
com patible w ith C on vention rights and this is also d iscussed later in the
chap ter although it is w orth noting that in C hristie v U nited K ingdom '9 the
gen eral schem e un der the Interception o f C om m u nications A ct 1985 w as
upheld by the C om m ission on H um an R ights though the case did not involve
'seriou s crim e' to w hich m ore d em and in g standards m ay apply.20
7.4 Access to communications data
C om m u nications organisations, such as telecom m u nications com panies, w ill

hold 'com m u nications d ata'. T his is inform ation about the use of com m u nica
tions rather than about their coiitent. It m ay be, for exam ple, inform ation on the
nu m bers d ialled from a particular teleph one and the d u ration o f a call o r sim ilar
inform ation about m obile phones inclu ding the general location o f callers.
C om m u nications data can assist pu blic auth orities in the investigation o f crim e
and other pu rposes and can also be of significance for journalists investigating
stories.21 Section 45(1 )(b) o f the T elecom m u nications A ct 1984 m akes the
intentional d isclosure o f inform ation about the use m ad e o f a telecom m u nica
tion service an offence, un less o therw ise authorised . Sim ilarly, the provision of
such inform ation is also likely to violate the Data P rotection A ct 1998.
C h apter 2 o f P art 1 of the R egu lation of Inv estigatory P ow ers A ct 2000
provides for the com pulsory disclosure of com m u nications data by 'an yone
w ho provides a postal or telecom m unications service'. N am ed officials w ithin
the police, C u stom s and E xcise, the Inland R evenue and the intelligence
services w ill have the au th ority to requ ire disclosure if it is necessary in the
interests o f national security, the prevention or d etection o f crim e or disorder,
the econom ic w ell-being o f the U nited K ingdom , pu blic safety, pu blic health,
the assessm en t o r collection o f tax, and prev enting seriou s harm , such as death
an injury, in an em ergency.22 T his is a m u ch w id er ran ge of pu rposes than
those for w hich a w arranted intercep tion o f a com m u nication in o rd er to know
,v (1994) Ap. 2 1 4 8 2 /9 3 , 78-A D&R 119.

20 Fenwick, H. (2000) Civil Rights, N ew Labour, Freedom an d the H um an R ights A ct. H arlow :
Longm an, pp. 331, 365.
21 For exam ple, BBC's Panoram a used mobile phone m etering to chart the m ovem ents of suspects
for the O m agh bom b outrage.
22 Section 22(2), RIPA 2000.
Surveillance 133
its con tent can be m ade. O btain in g the data m u st be necessary and a
proportionate w ay o f obtain in g the benefit that disclosure should achiev e.23
The operators o f postal or telecom m unications services are u n d er a d uty to do
w hat is reasonably practicable to disclose the data. R efusal is not a crim e but
can give rise to a civil action by the S ecretary o f State for an injunction or order
o f specific perform ance. T h e A nti-terrorism , C rim e and Secu rity A ct 2001, Part
11 auth orises the S ecretary o f State to prod uce a C o d e o f Practice and to m ake
agreem ents w ith particu lar p rov id ers d etailin g the circu m stan ces in w hich
com m u nications data should be retained to facilitate d isclosures w hich m ight
be required. T here m u st be con su ltation w ith the Inform ation C om m ission er
since the C od e o f P ractice is likely to be at od ds w ith significant data
protection principles, such as those requ iring the tim eous d estru ction of data.
The S ecretary o f State m ay add to the organisations that can obtain
com m u nications d ata and increase the pu rposes for w hich it can be obtained.
This is con troversial sin ce it enables the Secretary of State, by ord er, to greatly
increase the ability o f pu blic auth orities to obtain inform ation about people
and organisations. T h e statu te requ ires P arliam en tary approval and the pow er
m u st be exercised in a m an n er com p atible w ith A rticle 8 EC H R and w ith the
Data P rotection A ct 1998, to the extent that it is not im plied ly repealed. In Ju ly
2002 proposals to w id en the list o f auth orities w ere subject to strong
opposition in P arliam ent and from the Inform ation C om m ission er and w ere
w ithd raw n. A m u ch restricted list w as re-introd uced in M arch 2003.
7.5 Encrypted data
The R egu lation o f Investigatory P ow ers A ct 2000 gives the police, C ustom s
and Excise, d efen ce and in telligence services p o w er to obtain, under crim inal
sanction, the ability to d ecod e encryp ted m aterial that is law fully in their
possession. The ground s for w hich such d isclosure m ay be allow ed are
national security, the econom ic w ell-being o f the U nited K ingd om and the
prevention or d etection o f crim e (not only seriou s crim e). A uthority to com pel
this d isclosure w ill norm ally be, for police and C u stom s and Excise, from a
circu it ju d g e or, for the intelligence services, from the S ecretary o f State.24
There are various safeguards against m isuse. It m ay be that these provisions
could involve the d ecod in g o f self-incrim in atin g m aterial since the C ou rt of
H um an R ights in Saunders v U nited K ingdom found that the com pulsory
d isclosure o f d ocu m ents, w hich are non-testam entary and exist in d ep en den tly
o f the w ill o f the suspect and w hich can thus b e d istin gu ished from
inform ation given d irectly un der questioning, m ay not violate A rticle 6 ECH R.
7.6 Surveillance involving interference with property
O ther form s o f surveillance, such as planting a listening device in som eo ne's

hom e, m ay involve entering on and in terfering w ith property. If this is done
23 Section 22(5), RIPA 2000.

24 RIPA 2000, Schedule 2.
w ithou t the o ccu p ier's con sent, the tort o f trespass m ay have been com m itted.
The action w ill not be tortious if it has law ful authority. W e know from E ntick
v Carrington (1765) that such au th ority cannot be found in the m ere claim of
state bod ies to be acting in the public interest but requ ires a statu tory or
com m on law rule. For m ost of the tw entieth cen tury no such law ful auth ority
w as available. H om e O ffice G u idelin es w ere issued to regulate the w ay such
surveillance w as conducted by the police. T hese are not 'law ' and are
insufficient to auth orise w hat is otherw ise a tort, though follow ing them m ight
p rotect a police officer from d iscip linary action.25 T here is also som e evid ence
that the courts w ould be tolerant o f unlaw fu l entry by the security services.26
U nlaw fully obtained ev id ence is not necessarily inad m issible in English
courts.
If nothing else, this situ ation w ould seem to be incom patible w ith the
requ irem ent, in A rticle 8 EC H R, that interferences w ith private life, hom e and
corresp on den ce by pu blic bod ies m u st have proper law ful authority. L eg isla
tion (not R IPA 2000) now covers this m atter. It is confined to certain public
bodies, such as the p olice and security services, and is not av ailable to, for
exam ple, a jo u rn alist p u rsu ing a story.
7.6.1 Police and Customs and Excise

P art III o f the Police A ct 1997 now provides law ful au th ority for otherw ise
tortious interferences w ith p rop erty by police, inclu d ing the N ational C rim inal
In telligence Serv ice and C u stom s officials. A ny proposed trespassory surveil
lance can only be authorised if it is 'n ecessary ' in the sense, both, that it is of
'substantial valu e in the prevention and d etection o f serious crim e' and that
the anticipated outcom e 'canno t be achieved by other m ean s'. Seriou s crim e is
defined as in RIPA 2000 and other A cts and the fear o f its use against protest
groups is as stro n g in the con text o f in terference w ith property as w ith
intercep tion of telecom m unications.
A uthorisations o f interference w ith property u n d er Part III o f the Police A ct
1997 are m ad e by the high est ran king officers (e.g. the ch ief constable) though
sen ior officers o f low er rank are allow ed to dep utise in certain circu m stan ces.27
A pplication s can only com e from w ithin the organisations and not, for
exam ple, from m em bers o f the public. The problem here is the lack o f an
ind ep en den t, perhaps ju dicial, com ponent in the auth orising process. This
p roblem led to the establish m ent o f com m issioners w ho are sen ior ju dges of
H igh C ou rt statu s w ho exercise a nu m ber of approving, review ing and
reporting functions.
In p articular, 'sen sitive auth o risation s' requ ire the prior approval o f a
com m issioner. Sensitive auth orisations are those pertaining to property that is
believed to be used w holly o r m ainly as a d w elling, as a hotel bedroom or as
office prem ises, or w here it is believed that kn ow led ge o f m atters subject to
legal privilege, con fid ential personal inform ation or confid ential journalistic
25 R v C h ief C on stable o f Wes/ Y orkshire ex parte C ovell, 23 M ay 1994.

26 See rem arks by Lord Donaldson: A ttorney-G en eral v G uardian N ew spapers (2) [1990J A C 1 0 9 ,1 9 0 .
27 Sections 93 and 94, Police A ct 1997.
Surveillance 135
inform ation m ight be obtained. Prior approv al by a C om m ission er is not,

how ever, requ ired in urgent cases.28 N on-sen sitiv e auth orisations and urgent
sen sitive auth orisations can be given im m ed iate effect. They then require
notification to be given to a com m issioner. The notified com m issioner has the
pow er to quash an auth orisation becau se either the reasons ju stifying the
su rv eillance never existed ,29 no longer ap p ly30 or becau se the com m issio n er's
prior approval w as in fact necessary becau se it w as, con trary to the view of
the au th orising officer, a n on-u rgen t sen sitive au thorisation.31 T h e authorising
officer m ay be able to appeal to the ch ief com m issioner against the quashing
o f an auth orisation by a com m issioner.32
C om plaints by m em bers o f the pu blic are to a tribunal established un der
RIPA 2000 and are d iscu ssed later in the chapter.
7.6.2 The secret services

The secret sen dees (the Secu rity Service, the In telligence Service and G C H Q )
m ay obtain auth orisation for otherw ise unlaw fu l surveillance inv olv ing entry
on or interferences w ith p rop erty by v irtue o f section 5, Intelligence Services
A ct 1994. Such entry on or interferences w ith property will not be unlaw fu l if
un d ertaken on the auth ority o f a w arrant issued, on the ap plication of one of
the services, by the S ecretary o f State either d irectly or, in u rgen t cases,
throu gh an official w ith the approv al o f the S ecretary o f State. A w arrant can
only be issued if the S ecretary o f State is satisfied that the w arrant is necessary
for 'assisting ' the services in carrying out their functioiis. T his is a very w ide
term and even easier to satisfy than 'substantial v alu e' w hich w as the test prior
to am en dm en ts m ad e u n d er RIPA 2000. T h e S ecretary o f State m u st be
satisfied n o t only that the proposed action is necessary b u t also that it is a
proportionate m ean s of achieving w hat is sou ght and cannot reasonably be
achieved by o ther m eans. Furtherm ore, the S ecretary o f State m u st be satisfied
that p roper arrangem en ts are in place to ensure that any inform ation obtained
is not im prop erly disclosed.
The functions o f the S ecu rity Serv ice are w idely defined and include
protection from threats o f terrorism and internal subversion. The S ecu rity
Serv ice A ct 1996 extended the functions o f the Serv ice to inclu de supporting
the police in the p revention and d etection o f 'seriou s crim e'. W arrants for that
pu rpose can be issued .33 G iven this d evelopm ent there is a possible overlap
betw een the targets o f police surv eillance and S ecu rity Serv ice surveillance.
The d anger from this is that restrictions w hich apply to the police, in p articular
the requ irem ent that 'sensitive auth orisatio n s' need the approval o f an
ind ep en d en t com m issioner, do not apply to Secu rity Serv ice auth orisations
even though their surveillance can be for the sam e kinds o f p u rpose and the
sam e kinds of target. Sim ilarly police forces act un der a m u ch m ore rigorous
28 Section 97(3), Police A ct 1997.

33 Section 3B, Intelligence Services A ct 1994.
statu tory regim e and are subject to a com plain ts process w hich does not apply
to m em bers o f the Secu rity Serv ice.34
The In telligence Service, specifically the Secret In telligence Serv ice and
G C H Q , operates in respect of persons outsid e the U nited K ingd om .35 The
Secretary o f State can auth orise actions b y the In telligence Serv ice and G C H Q
abroad in p u rsu it of its functions and, on the basis o f this auth orisation, such
acts cannot be unlaw fu l u n d er U nited K ingdom law . T he S ecu rity Service A ct
1996 perm its the S ecretary o f State to issue w arrants w hich auth orise the
Secu rity Service to u n d ertake surv eillance insid e the U nited K ingd om in
su pport o f the Intelligence Serv ice in resp ect o f targets insid e the U nited
K ingdom .36 Such su rveillance, related to activities abroad , cannot be for the
pu rpose o f p reventing or d etectin g seriou s crim e.
The Secu rity Serv ice A ct 1989 and the In telligence Services A ct 1994
establish ed com plain ts and su p erv ision structures based on a tribunal and a
com m issioner w ith judicial standing. T he tribunal and com m issioner system s
have been reconstituted u n d er R IPA 2000 and are consid ered below .
7.7 Other forms of surveillance
M any form s o f surveillance, such as follow ing a suspect or using long-d istance
lenses or rem ote listening devices, are not likely to involve civil w rongs or
crim inal offences. T h ey m igh t be unlaw fu l if, for exam ple, they involve
harassm ent contrary to the P rotection from H arassm en t A ct 1997 or if they
involve an im p rop er and unauthorised use o f the highw ay. T h e p olice follow
H om e O ffice G u id elin es on the issue but, thou gh d ep arture from these m ay be
the basis o f d iscip linary action, it w ill not rend er the surv eillance unlaw ful.
Such surv eillance can, how ever, involve an in terference w ith freedom s
protected by C on vention rights such as the rights to private life, freed om of
expression or freed om o f association. The U nited K ingd om has international
obligations to uphold these rights and, in particular, section 6 o f the H um an
R ights A ct 1998 m akes it unlaw fu l for a pu blic authority, such as the police,
to act incom patibly w ith these rights. A ny in terference w ith such protected
freed om s m ust, as w e have seen, be com p atible w ith the con ditions found in
the second paragraph s to A rticles 8, 10 and 11. It m u st be 'in accord ance w ith'
or 'prescribed by' law and this m eans not only that they are in the form of
officially prom ulgated rules bu t that they m ust also have sufficient precision
so that the beh av iou r they allow or forbid can be reasonably predicted. The
in terference m u st be necessary in a d em ocratic society, w hich m eans that they
m u st be a p roportionate w ay of m eeting a pressing social need, and they m ust
be for a specific, exclu sive range o f pu rposes given in the p aragraph s.37
34 For vigorou s com m ent, including reference to the view s of Lord Brow ne-W ilkinson in the
H ouse of Lords, see Current Law Statutes (1996) Vol. 2, ch. 35, annotations by O, H iggins, P.
35 Section l(l)(a ), Intelligence Services A ct 1994.
36 Sections 4 and 5, Intelligence Services A ct 1994.
37 Surveillance by private persons, including journalists, will not be vulnerable to a H um an Rights
A ct 1998 action unless a public authority o r a body exercising public functions, such as the Press
Com plaints C om m ission, is held to be responsible o r unless the C onvention rights are given
'horizontal effect' in the w ay the courts apply the 1998 Act.
Surveillance 13 7
To m eet these requ irem ents Part II o f the R egu lation o f Inv estigatory Pow ers
A ct 2000 p rovides law ful au th ority for three types o f covert surveillance:
'd irected ' and 'in tru siv e' surveillance and surveillance by 'covert hum an
sou rces'. The A ct stipu lates that other form s o f surv eillance are not thereby
unlaw ful.38
7.7.1 Directed surveillance and surveillance involving covert human

sources
D irected surv eillance involves action w hich is planned and covert and aim ed
at o btain in g personal inform ation. It does not inv olv e 'intru siv e surv eillance'.
It m ight include, for exam ple, the o rganised follow ing of a person in the
street.39
S urv eillance by 'covert hum an sou rces' relates to the setting up and running,
usually throu gh a 'so u rce', of a personal relation ship w ith a surveillance target
to obtain personal inform ation about or disclose inform ation to the target. It is
likely to inclu d e som e of the activities o f police inform ants.
These tw o form s o f su rv eillance are subject to rather loose regulation. A
w ide ran ge o f pu blic auth orities are listed in Sch ed u le 1 o f the A ct and the
Secretary o f State identifies the ranks o f officials w ithin those auth orities w ho
can au th orise su rveillance.40 T h e list is by no m eans confined to the police,
secu rity and d efen ce sources. Local auth orities and a ran ge o f go v ernm ent
d ep artm ents and agen cies are inclu ded (though som e, such as the N H S, can
use d irected surv eillance but not covert hu m an sources). Such surv eillance can
be only un dertaken in the interests o f national security, the prevention or
d etection o f crim e or d isord er, the econ om ic w ell-being o f the U nited
K ingd om , pu blic safety, public health, the assessm en t or collection of tax, etc.
The S ecretary o f State can add to these pu rposes by statu tory in s tru m e n t41
A ny auth orisation m u st be believed to b e necessary and p roportionate to w hat
is sou gh t to be achieved.
7.7.2 Intrusive surveillance

Intrusive surv eillance is covert, carried out in relation to resid ential prem ises
or private vehicles and involves either the presence o f a person on the
prem ises or in the vehicle or the use o f a su rv eillance d evice.42 T he use o f a
rem ote surv eillance device against resid ential prem ises is only 'intru siv e' if it
provides inform ation o f the sam e quality and detail as w ould be provided by
a d ev ice placed on the prem ises. O therw ise, rem ote su rv eillance o f residential
property, only requ ires auth orisation by the d irected surv eillance procedure.

39 The use of undercover officers in criminal investigations has been considered by the C ou rt of
H um an Rights. The need for proper organisation and supervision is an im portant requirem ent:
Teixeira da Castro v P ortu gal (1999) 28 EH RR 101.
40 See Regulation of Investigatory Pow ers (Prescription of Offices, Ranks and Positions) O rder
2000, SI 2000, N o. 2417.
" See ss. 28(3) and 29(3).
42 The use of a vehicle tracking device is not intrusive surveillance.
Intrusive su rv eillance overlap s w ith the kind s o f otherw ise tortious su rv eil
lance that can be authorised under the Police, S ecu rity Services and In telli
gence Services A cts d iscussed above. T hese A cts w ill con tin u e to auth orise
such surveillance.
The au thorisation o f 'intru siv e su rv eillance' is subject to a tighter regim e and
intru sive surv eillance b y p olice and C u stom s is subject to a different
auth orisation process from that for the secu rity services.
Intrusive surv eillance by any agen cy can only be authorised for sim ilar
pu rposes as for intercep tion w arrants u n d er section 5, RIPA 2000: the interests
o f national security, the prevention or d etection o f seriou s crim e and the
interests o f the econ om ic w ell-being o f the U nited K ingd om .43 T hese purposes
are m ore restricted than for d irected surv eillance and surveillance involving
covert hum an sources. It is, for exam ple, lim ited to 'seriou s' crim e and is not
perm itted to prom ote public safety or health or for the raising o f taxes.
Sim ilarly, intru sive surveillance can only be authorised by a n arrow er range
o f public auth orities and officials. The auth orising official m u st b elieve
in tru sive surv eillance is necessary in ord er to achieve certain objectives and it
is p rop ortionate to the benefit likely to be gained.44 W hether the inform ation
could be obtained by other m eans is a ju d g m en t that m u st be m ad e w hen
con sid erin g the necessity o f the surveillance.
Police and C ustom s authorisations

P olice and custom s auth orisations can only be by chief officers, such as chief
constables,45 or, in cases o f urgency, by sen ior officers o f low er rank.
A pplication can only com e from w ithin the force they control - this is not a
service open to jou rnalists, for exam ple. T h e safeguard is sim ilar to that for
'sensitive au th orisations' un der the Police A ct 1997. A ny auth orisation m u st be
approved by a surv eillance com m issioner, as appointed un der the P olice A ct
1997, befo re it can be put into effect. In cases of urgency the surv eillance can
start on sim ple notification to the com m issioner. The com m issioner cannot
approv e an auth orisation if, for exam ple, the ground s for it no longer apply.46
The auth orising officer can appeal to the C h ief Surv eillance C om m ission er,
established u n d er the 1997 A ct, against a non-ap proval or quashing.
Security service authorisations

A 'm em ber' o f any o f the in telligence services,4' an 'official' o f the M inistry of
D efence, a 'm em ber' o f H M Forces and an official o f any designated public
au th ority can apply to the S ecretary o f State for auth ority to con du ct intrusive
surveillance. T here is no restriction as to rank and seniority. T he d istingu ishing
point about these auth orisations by the S ecretary o f State is that they do not
43 Section 32(3 )(a )-(c), RIPA 2000 (surveillance at the behest of a foreign coun try is excluded). The
econom ic well-being of the United K ingdom is not a ground available to the M inistry of Defence
o r the arm ed forces.
44 Section 32(2), RIPA 2000.
45 Listed in section 32(6), RIPA 2000.
Surveillance 139
requ ire notification or approval by a surveillance com m issioner. The executive

grants auth orisation o f in tru sive surv eillance in resp ect o f d efen ce and security
targets on its ow n m otion w ith no judicial or quasi-jud icial supervision.
7.8 Supervision and control of surveillance
7.8.1 Codes of Practice

Section 71, RIPA 2000 em pow ers the S ecretary o f State to m ake C od es of
Practice relatin g to d ifferent form s o f surv eillance u n d er the A ct, the
Intelligence Services A ct 1994 and the Police A ct 1997. T h e C od es m u st be had
'regard to' by persons u n dertakin g surv eillance and are to be taken into
account by com m issioners and the tribunal w hen m ak in g their decisions.
Breach o f a C od e, how ever, cannot in itself be the b asis for eith er crim inal or
civil liability though the C od es are ad m issible in proceedings. T hree such
C od es are curren tly in force, on intercep tion o f com m u nications, covert
surveillance and the use of covert hu m an sources.
7.8.2 The commissioners

The C h ief Surv eillance C om m ission er, the Interception o f C om m u nications
C om m ission er and the Intelligence Services C om m ission er have, in their ow n
contexts, rep orting and review ing p ow ers over police surveillance, the
intercep tion o f com m u nications and the surv eillance activities o f the intelli
gence services respectively. Surv eillance com m issioners establish ed under the
Police A ct 1997 also have a role in auth orising 'sensitive au th orisations' and
'intru siv e su rv eillance' by the p olice and C ustom s. R eporting is gen erally to
the P rim e M inister w ho has a d uty to lay the annual report befo re P arliam ent48
but w ho also has a pow er to censor preju dicial m atters.
Th e com m issioners are recruited from the sen ior ju d iciary and are able to
provide som e d egree o f ind ep en den t review o f surveillance auth orisations
w hich otherw ise w ould be w ithin the secret d iscretion o f the executive.
H ow ever, the extent to w hich the com m issioners can provide ad equ ate
protection from the m isuse o f pow ers is lim ited. T h ey have lim ited resources
though R IPA 2000 does m ake provisions fo r the appointm en t of staff.49 In
particular, they have no pow ers over unauthorised intercep tions or surveil
lance. For exam ple, an allegation o f non-w arranted surv eillance is either an
allegation of a crim e, a m atter for the police, or it is an allegation o f a trespass
or other civil w rong. The w ronged citizen can seek a civil rem ed y but can
expect little help from the com m issioners. R egarding their review ing func
tions, they rep ort to the executive abou t the practices o f the executive. They
do not report d irectly to P arliam ent and the P rim e M inister can cen sor their
reports before pu blish in g them for Parliam ent. Successiv e governm ents have
never had enough trust in the integrity o f P arliam en t to allow direct
P arliam en tary su p erv ision o f the in telligence services though, sin ce 1994, the
"8 Section 58(6), RIPA 2000.

49 Sections 57(7), 59(7) and 63, RIPA 2000.
In telligence and Secu rity C om m ittee con tain s P arliam en tarians;50 sim ilarly
governm ents are reluctant to allow too m u ch d irect P arliam en tary supervision
o f the police.
7.8.3 The tribunal

The com m issioners do not hear com plain ts about surv eillance from m em bers
o f the public. T hese are now heard by a tribunal established u n d er Part IV,
RIPA 2000. The tribunal replaces the tribunal established u n d er the In tercep
tion o f C om m u nications A ct 1985, the S ecu rity Serv ice A ct 1989 and the
Intelligence Services A ct 1994 and takes over the com plain ts ju risd iction o f the
surveillance com m issioners u n d er the Police A ct 1997.
The trib u n al's ju risd iction inclu des the surv eillance activities o f the in telli
gence services (including the Secu rity Service), the police and C u stom s in so
far as these ought to have been authorised un der RIPA 2000 or the P olice A ct
1997, Part III. The w ay the ju risd iction is defined au th orises the tribunal to deal
w ith som e allegations o f un law fu l surveillance.
Th e tribunal is the approp riate forum for any case brou gh t u n d er the
H um an R ights A ct 1998 regard ing m atters w ithin its ju risd iction. It is also a
forum to hear other com plain ts abou t surveillance w ithin its ju risd ictio n and
to hear com plain ts by persons that they have been prejudiced by the ban on
disclosure in cou rt o f inform ation obtained by post and telecom m unications
intercep tion. The Secretary o f State can allocate other com plain ts, inv olv ing the
in telligence services or other surveillance, to the tribunal.
The tribunal has a gen eral pow er to m ake its ow n rules subject to the pow er
o f the S ecretary o f State to prod uce rules u n d er section 69. T he intelligence
services, p olice and other pu blic au th orities involved are required to coop erate
w ith the tribunal. Its rem ed ies are to aw ard com pensation as it sees fit and it
can quash an auth orisation and ord er the d estru ction o f m aterial obtain ed .51
The tribunal is not required to give reasons for its d ecisions, m erely a
statem ent to the com p lain ant o f w hether the d ecision w as for or against them .
The Secretary o f State m ay m ake rules requ iring further inform ation to be
d isclosed ,52 but not to ord er d isclosure in in d ividu al cases.
There is no gen eral right o f appeal to the courts from the d ecisions o f the
tribunal.53 Such provisions, w hich 'ou st' the ju risd iction of the courts, have
often been disregarded by the cou rts on the ground s that a d ecision that is
w rong in law is likely to be a decision taken outsid e a trib u n al's ju risd iction
and therefore, as it w ere, not a d ecision o f the tribunal at all and properly
quashed by the cou rt.54 H ow ever, the 'ou ster clau se' in the A ct, like its
pred ecessors, exp ressly inclu des d ecisions o f the tribunal 'as to w hether they
have ju risd ictio n '. W hether ouster is con sisten t w ith righ t o f access to the cou rt
under A rticle 6 E C H R rem ains to be decided. Such im plied rights under
50 C hapter 4.
51 Section 67(7), RIPA 2000.
52 Section 68(4), RIPA 2000.
53 Section 67(8), RIPA 2000.
54 See W ade, Sir W illiam and Forsyth, C.F. (2000) A dm in istrative Law , 8th edn. O xford: Oxford
University Press.
Surveillance 141
A rticle 6 are subject to reasonable restriction and, in any case, the tribunal m ay
m eet the requ irem ents of a cou rt under A rticle 6. T he S ecretary of State is
em pow ered to prod uce rules w hich perm it appeal and is required to do so in
respect of allegations o f preju dice from non-d isclosure in court o f inform atio n
obtained b y surveillance.55 A ppeal on any o f these m atters need not necessarily
be to an ord in ary court. It can be to som e ind ividu al or process established by
the Secretary o f State. If the point o f allow ing certain appeals is to satisfy
A rticle 6 ECH R then any such alternative to the cou rts m u st satisfy
requ irem ents for ind ep en d en ce etc. found in the article.
The success o f this tribunal is clearly o f great im portan ce in establish ing the
cred ibility and acceptability o f the surveillance regim e in this 'rig hts aw are'
age. This w ill depend not only on the tribu n al's ow n ap proach b u t also on the
natu re of the rules, if any, the Secretary o f State prod uces, in p articular in
relation to the inform ation that the tribunal is requ ired to prod uce and the
extent to w hich it is required to explain its d ecisions to the com plainant.
7.9 Compatibility with Convention rights
7.9.1 The application of Article 8(1)

T he com patability o f this legal regim e relating to surv eillance w ith the
C on vention rights sched uled in the H um an R ights A ct 1998 w ill, no doubt, be
tested in years to com e.56
A rticle 8, the right to respect for private and fam ily life, is the core right
involved. T he first question is w hether su rv eillance activities are w ith in the
reach o f A rticle 8(1). It is w ell established that the intercep tion o f post and
telecom m unications from both bu siness and private p rem ises5' and the
m etering o f telecom m unications58 are w ithin the scope o f A rticle 8(1). The
sam e is true o f surv eillance in volving an interference w ith p rop erty’9 in clu d
ing, for exam ple, intru sive surv eillance regulated in Part II, RIPA 2000. There
is, how ever, a point at w hich A rticle 8(1) m ay not be engaged. T h e overt
photographing o f som eone in the street, for exam ple, has been thou ght by the
C om m ission to be unprotected by A rticle 860 and so som e form s o f surveillance
m ay be too rem ote or insufficiently covert to am ou nt to an interference w ith
private life. A rticle 8, for exam ple, m igh t not apply to som e form s o f directed
su rv eillance and the use of covert hu m an sou rces, w here the targets are part
o f a crim inal gang w ho m ight expect their activities to be observed .61 M ost
im portan tly, the C ou rt o f H um an R ights has accepted that the m enace of
55 Section 67(9), RIPA 2000.

56 Fenwick, op. cit., chapters 9 and 10.
57 K lass an d others v Federal R epublic o f G erm any, Series A, No. 28 (1 9 7 8 -7 9 ) 2 EH RR 214 is the
leading case. See also K opp v Sw itzerland (1999) 27 EH RR 91; H alford v U nited K ingdom (1997) 24
EH RR 523.
58 M alon e v U nited Kingdom (norm al business practices are excluded); V alenzuela C ontreras v Spain
(1999) 28 EH RR 483.
59 For exam ple, G ovell v United Kingdom (19991 EH RLR 121, w here a hole w as drilled into a wall
possibly to install a covert listening device.
6(1 Briiggem ann an d Scheuten v FR G (1977) 3 EH RR 244.
61 For exam ple, L udi v Sw itzerland Ap. 1 2 4 3 3 /8 6 ; (1993) 15 EHRR 173.
surveillance, its possibility, can, in itself, be an interference un der A rticle 8 and

so specific acts o f surveillance do not need to be proved by a com plainant.
Surv eillance used against parties, trad e unions and other organisations m ight
also raise issues u n d er A rticle 10, freed om o f expression, and A rticle 11,
freedom o f association, bu t the C on vention principles in issue are likely to be
the sam e as u n d er A rticle 8.
7.9.2 Article 8(2)

A ssu m in g that A rticle 8 is engaged by som e act o f surveillance, the issue then
focu ses on w hether the act is allow able by v irtue of A rticle 8(2). A rticle 8(2)
perm its interferences w'ith rights to private and fam ily life if they are 'in
accord ance w ith the law ', 'n ecessary in a d em ocratic society' and for the
exclu sive range o f listed purposes.
Purposes
Interferences w ith private and fam ily life by a public au th ority can be in the
'interests of national security, pu blic safety or the econ om ic w ell-being o f the
country, for the prevention o f d isord er or crim e, for the protection o f health or
m orals, or fo r the p rotection o f the rights and freed om s o f others'. The need for
surveillance in d em ocratic societies w as recognised in Klass and others v Federal
R epublic o f G erm any62 in so far as it w as strictly necessary to protect d em ocratic
institutions. S im ilarly its u se to prevent and detect crim e has not been a problem
un d er the C on vention on the ground s that it w as for an illegitim ate purpose.'’3
N ecessary in a dem ocratic society and proportion ality

A ny use o f surveillance m u st be p rop ortionate to the benefit to society that w ill
accrue. The m ore in tru sive and covert the surv eillance used, the greater the
ju stification that is likely to be necessary. Surv eillance w hich significantly
invades privacy against m inor or non-serious crim e could be d isproportionate.
U nited K ingd om legislation restricts the m ost intru sive surv eillance to the
prev ention and d etection o f 'seriou s crim e'. T here m ay, how ever, be a
C on vention issue in so far as the d efinition o f seriou s crim e extend s to m inor
crim e m ad e seriou s by the fact that it is com m itted by m an y people in concert.
P roportionality requ ires that, in relation to crim e, surv eillance be used only
against seriou s, p roperly defined offences, that it should b e based on
w ell-founded suspicion and not be m erely exploratory and should only be
used in the absen ce o f the likely success o f other m eth od s.64 A standard feature
o f the auth orisation process u n d er RIPA 2000 and the Police A ct 1997 is that
a con sid eration of the prospects for obtaining the desired inform ation by other
m ethods is necessary.
P roper superv ision is necessary. In Klass and others v Federal R epu blic o f
G e r m a n y su pervision, or review', w as requ ired over the process or au th o risa
62 (1979) 2 EH RR 214.
63 For exam ple, Kopp v Sw itzerland (1999) 27 EH RR 91; Valenzuela C ontreras v Spain (1999) 28 EHRR
483.
M Starm er, K. (1999) European H um an R ights Law. London: LAG , 15.26.
65 (1979) 2 EHRR 214.
Surveillance 143
tion, over the con d u ct o f the su rv eillance and after the surv eillance w as
term inated. G u arantees against abuse m u st be ad equ ate and effective. It is
suggested in Klass that supervision ov er auth orisation and con du ct should be
by a ju dge;66 the point is that u ltim ate rev iew o f auth orisation and con du ct of
su rv eillance should be ind ep en den t, im partial and based on a proper
p rocedure. The role of the Interception and Surv eillance C om m ission ers un der
RIPA 2000 m ay m eet this requ irem ent. An im portan t factor in C hristie v U nited
Kingdom (1994),67 w here the C om m ission found that the regim e un der the
Interception of C om m u nications A ct 1985 w as com patible w ith the C on ven
tion, w as the supervisory role o f the com m issioners, w hich is m aintained
under the new law. H ow ever, strong d oubts as to the ad equ acy o f safeguards
m ust lie w here auth orisation and review of con du ct is confined to the
executive, such as in respect o f surveillance by the in telligence services under
the Intelligence Services A ct 1994. The role o f the tribunal, therefore, is very
im portant. It can undertake various su p erv isory roles both during and after
the su rv eillance activity is carried out. It is likely that the tribunal w ill m eet
the requ irem ents for ind ep en den ce, im p artiality and p rop er p roced u re though
the extent to w hich it is prepared to give reasons m ay be challengeable,
probably, becau se o f the 'o u ster clau se', only in Strasbou rg.68
'In accordan ce with the law'

The C on vention requ ires that any surv eillance be 'in accord ance w ith the law '.
Surv eillance m u st have a proper basis in law and u n law fu l surv eillance or
surveillance done at the d iscretion of the executive w ith no p articular and
positive statu tory or com m on law auth orisation w ill fall foul o f this requ ire
m ent.69 The state is un der a d uty to establish a p ositive entitlem ent o f its agents
to con du ct su rv eillance rather than m erely accom m odate it as part o f the
'n eg ativ e freed om ' o f the state. 'In accord ance w ith the law ' also m eans that
the express legal rules m u st do m ore than sim ply give a w ide d iscretion to a
ju d g e or an official or p olice officer.70 T he legal ru les m u st be accessible and
clear so that citizens can foresee, albeit, som etim es, w ith legal advice, the
circu m stan ces in w hich su rv eillance m ight be used and regulate their condu ct
accord ingly.71 Su ch fo rseeability applies to the general legal rules and also to
the ad m inistrative and police practices they authorise. In K opp v Sw itzerland72
for exam ple, there w as an apparen t con trad iction betw een the w ritten law
w hich barred the intercep tion o f law y er's com m u nications and the surveil
lance practice w hich perm itted such intercep tions w hen law yers w ere not
acting in that capacity. A v iolation of A rticle 8 w as based on the lack of any
clear legal rules con trolling w hen legal privilege w ould protect law yers and
66 (1979) 2 EHRR 214, paragrap h 55.

67 (1994) Ap. 2 1 4 8 2 /9 3 78-A D&R 119
“ For the argu m en t that the system m ay not be com patible w ith the C onvention see Fenw ick, op.
cit., p. 368.
w M alon e v U nited Kingdom 11979] 1 Ch 344; H alford v U nited K ingdom (1997) 24 EH RR 523.
70 For exam ple, Valenzuela C ontreras v Spain (1999) 28 EH RR 483, w here, at the time, Spanish law
g ave a wide, unqualified discretion to a judge to perm it interceptions: telecom m unications w ere
'confidential unless the court decides otherw ise'.
71 A m ann v Sw itzerland (2000) 30 EH RR 843.
72 (1999) 27 EHRR 91.
w hen it w ould iiot. T he law gov erning surveillance should specify, for
exam ple, the categories o f person w ho are exposed to p ossible surveillance
(e.g. persons con tem platin g serious crim e), the typ es o f offences for w hich
surveillance is perm itted , the lim it on the d uration o f law ful surveillance, the
procedu re for reporting on su rveillance, the p roced u re for the involvem ent of
the ind ep en d en t supervisory agen cy and the circu m stan ces for d isposing of
records kept if the target is acquitted .73 T h e rules should also specify w hat is
to be d one in respect of those acciden tally involved in a surv eillance w hen
som eone else is the target.74 T hese restrictions are, of course, focused on
su rv eillance in the con text o f seriou s crim e. Intelligence surveillance, p resu m
ably becau se it seld om finds the light o f d ay and m ay be ju st to obtain
inform ation rather than to prom ote a prosecu tion , is not necessarily so strictly
controlled. Christie v U nited K ingdom 75 is a case in volving inform ation-
gath erin g throu gh rou tine intercep tion of a trad e un io n ist's contacts w ith
E astern Europe. The intercep tion satisfied the legality provision.
7.10 Admissibility of evidence
E vid en ce obtained from law ful or un law fu l intercep tions o f com m u nications
is usually, though not alw ays, inad m issible in legal proceed ings.76 U nlaw fully
obtained surv eillance evid ence can be excluded u n d er section 78, PA C E 1984.
T he exercise o f this d iscretion will now need to be d one in the light o f the
requ irem ents in A rticle 6 for a fair trial. H ow ever, the C ou rt o f H um an Rights,
also, has m ad e it clear that the m ere fact that evid ence has been obtained
u n law fu lly does not in itself m ean that it should be inad m issible. The
im portan t point from the C on vention point o f view is the overall fairness of
the trial77 w hich rem ains principally a m atter for the national court. This
returns the question to the cou rts exercising their section 78 discretion. The
E C H R m ay, un der A rticle 6, requ ire the disclosure of ev id ence obtained by
covert sources, for exam ple, un der the principle o f equality o f arm s.
7.11 Closed-circuit television
C losed -circu it television (CC TV) is now' the m ost w idespread form o f general
surveillance. It is used by pu blic au th orities and private organisations and
p ersons in m an y areas to w hich the p u blic go and also on private land to
w hich the pu blic have no express or im plied rights o f access. The general
ju stification for C C T V is the red uction o f crim e, the prosecu tion o f offenders
and the d ev elop m ent o f a feeling o f relative safety in the pu blic and in private
landow ners. T h e extent to w hich it succeed s in these o bjectives is d isputed but
it rem ains very popular. T here is little d irect legal regulation o f the use of
73 K ruslin v F rance (1990) 12 EHRR 528 and H tivig v F rance (1990) 12 EH RR 538, followed in
V alenzuela Contreras v Spain (1999) 28 EH RR 483.
74 Arnann v S w itzerland (2000) 30 EH RR 843.
75 (1994) 78-A D&R 119.
77 Schenk v Sw itzerland (1991) 13 EHRR 242.
Surveillance 145
CC TV . Local au th orities have express pow ers to use C C TV on any land in their
area7!< and m ay also have im plied pow ers in this m atter. P rincipally, any use
o f C C TV m u st be com p atible w ith the D ata P rotection A ct 1998 (regarding the
obtaining and d isclosure o f personal inform ation) and the provisions o f the
Regulation of Inv estigatory P ow ers A ct 2000, d iscussed above. T he Inform a
tion C om m ission er, w ho ad m inisters the Data P rotection A ct, has produced a
C od e o f P ractice providing a gloss on the requ irem ents o f the 1998 A ct.79
78 Section 163, Crim inal Justice and Public O rder A ct 1994.

79 D ata Protection C om m issioner (2000) Code o f Practice fo r Users o f C losed C ircuit T elevision. See
W adh am , J. (2000) 'Rem edies for Unlawful CCTV Surveillance - Part V N L], 4 A ugust, 1173;
' . . . Part 2', N l.j, 11 August, 1236.
8
The right to a fair trial
8.1 Fair trials and civil liberties issues
W ithout effective rem ed ies the law is useless. At the centre o f any legal system ,
therefore, m u st be a m eans by w hich legal rights can be asserted and breaches
rem edied throu gh the processes o f a fair trial in a court. The right to a fair trial
is, itself, an im portan t hum an or civil right. It pervad es all those aspects o f life
that are covered by law and is by no m eans confined to the con ven tional
subject m atter o f civil liberties law - in fact the bu lk o f fair trial issues arise in
the context of o rd in ary crim inal and civil proceedings.
C ivil liberties law , w ith its focus on issues o f privacy and political activity,
raises im portan t fair trial issues in civil, ad m inistrativ e and crim inal contexts.
Political d em onstration, for exam ple, m ight lead to a civil action for trespass
brou ght by the person or organisation in possession o f land used for the
d em onstration; the sam e even t could lead to a ju dicial rev iew in the
A d m in istrative C o u rt against the police or som e o ther public body in respect
o f their actions or inactions; likew ise crim inal prosecu tion s and trials before
m agistrates or the C row n C ou rt m ay result. T w o fair trials issues can be
esp ecially relevant in a civil liberties context. First, civil liberties d isputes can
often involve a com plaint against a state agen cy such as the police or a
regulatory body. A t first instan ce this m ay be dealt w ith by som e form of
tribunal or internal com m ittee w'hich has a specific ju risd iction and w hich is
som ething less than a full court. T he procedu res before such bodies raise
issues o f fairness that do not apply to the ord in ary courts. Second , civil
liberties d isputes, relating to terrorism or surv eillance for exam ple, m ay
involve m atters involving national security or m atters in respect of w hich a
degree o f secrecy m ay be approp riate. The extent to w hich the general
principles on w hich norm al fair trials are based can be abrogated in such
contexts is an ongoing issue of civil liberties law.
M ost o f the specific issues about fair trials in a civil liberties con text are dealt
w ith in the approp riate chapters o f this bo o k as they arise. The rest o f this
chap ter introd uces the m ain them es on w hich the righ t to a fair trial,
particularly u n d er EC H R A rticle 6, is based.
8.2 Common law
The need for fair trial p rocedu res is w ell recognised in the law of England and
W ales. Stand ard s, of course, change and d evelop over tim e and, from tim e to
The right to a fa ir trial 147
tim e, significant areas of con trov ersy arise. The d esire o f the executive to
dem onstrate it is respond in g to seriou s crim e and the threat of terrorism and
the ever present d rive for 'efficiency' in pu blic services can lead to tensions w ith
the ju diciary and w ith som e parts o f pu blic opinion. In recent years there have
been argum ents over m atters such as the extent o f jury trial,1 the lim itation on
the 'right to sile n ce'2 and the type o f trial process that is approp riate in a
national security or anti-terrorism con text.3 A con tin uing issue involves
ad m inistrative and d om estic tribunals and the ran ge o f tribunals, inquiries,
com m ittees and so on w hich m ake d ecisions directly affecting ind iv id u als often
in their relation s w ith the state and other public bodies. T hese bodies are
outsid e the m ain court system , thou gh often linked to it by appeal procedures.
It is im portan t that persons affected by such bodies feel fairly treated and the
need for a fair hearing applies as strongly as it does to the courts although, in
the context, different rules and principles m ay be approp riate.4
There are a nu m ber o f d eep-rooted general principles w hich are part o f the
com m on law and seen as p ervasive requ irem ents o f a fair p roced u re or trial.
That the burden o f p roof gen erally lies w ith the p rosecu tion in crim e or
claim an t in civil cases, or that the standard o f p roof in crim inal cases should
be 'beyond a reasonable d o u bt', or that trials should norm ally be held in
public, etc. are w ell established as m axim s in the trad itions o f the law . This
m eans that they apply gen erally but not absolutely. H ow ever, any d ep artures
from such principles are w orthy of com m ent, should be con v incingly justified
and be clearly perm itted by express legal provisions.5
The rules o f evid ence are also central to the natu re and provision o f a fair
trial. R ules against hearsay or the ad m ission of sim ilar fact evid ence and so
on, in their com plexity, exception s and d etail, em bod y the particular, detailed
conception o f fairness that applies to a trial. T h e d uty o f a cou rt to exclu d e a
confession obtained through op p ression6 and the d iscretion a cou rt has to
exclu d e other ev id ence w hich it w ould be un fair to adm it, in clu ding because
o f the unlaw fu l or im prop er w ay it w as obtained," are both o f special
im portan ce in m aintaining the fairness o f a trial. T he requ irem ents o f fairness
can be high ly controversial. T he extent to w hich fairness requ ires a p articular
balance, in the detail of the m atter, betw een d efen ce and prosecu tion is a
1 There has been continual pressure by governm ents, often in the face of independent advice, to
restrict a defendant's right to choose jury trial. There are som e areas, such as fraud trials, w here
it is suggested that juries m ay be incom petent and should be replaced by a m ore expert panel.
2 D iscussed in C hapter 4.
3 D iscussed in C hapter 18.
4 The Tribunals and Inquiries Acts provide a statutory fram ew ork for m ost adm inistrative
tribunals but the detail of rules of procedu re will vary. Rules need the approval of the Lord
C hancellor's D epartm ent and general supervision is exercised through the Council on Tribunals.
The planning system operates in term s of its own legislative regim e as do tribunals set up in
o ther contexts such as prisons, surveillance or security. Inadequacies in the statutory regim e can,
unless excluded, be subject to the supervisory jurisdiction of the High C ourt. D om estic tribunals,
such as professional disciplinary bodies, can also be subject to the general fair trial requirem ents
of the law. See W ade, Sir W illiam and Forsyth, C .F. (2000) A dm in istrative Laze, 8th edn. Oxford:
O xford U niversity Press, p. 900.
5 A nti-terrorism law, for exam ple, has instances of so-called 'reverse burden' defences, in which
a defence requires proof of facts or intentions by a defendant. See C hapter 18.
m atter o f reasonable d isagreem ent; the d egree to w hich the com plain ant in a
rape case can be cross exam ined on her recent sexu al activity is an exam ple.8
R equ irem ents o f fairness have also beeii developed by the A d m in istrative
Court and applied to a huge ran ge o f ad m inistrative b od ies o f various kind s.9
The fundam ental p rinciple is that a person w hose 'rights or legitim ate
exp ectation s' are d irectly affected by the d ecision o f a public bo d y has a right
to a fair hearing before an unbiased tribunal in resp ect o f any d ispute that m ay
arise. T o d en y such a fair hearing requ ires exception al ju stification. T hese rules
o f 'fairn ess', som etim es know n as rules o f 'n atu ral ju stice', have also been
applied to d ecisions o f non-p ublic bodies, such as trad e u n ion s or sports
regulators, eith er as im plied term s in con tracts or m atters of public policy. The
rules o f fairness are d etailed, com plex and con text-d ep en d en t,10 but their
availability is central to the claim that fair trial procedu res exist in the U nited
K ingdom .
The con cept o f fair trials as a general p rinciple b ring s w ith it the presum ption
that persons have access to the cou rts to have their claim s fairly tested. English
law recognises the existen ce o f a general p rinciple of law granting such access.
This m eans that, norm ally, p eople should be able to argue their claim to a legal
righ t in cou rt and that any restrictions need to b e exp ress and ought to be
carefully ju stified . W hen the Lord C h ancellor, for exam ple, prod uced rules of
cou rt w hich m ade it expen sive for a litigan t in person, not legally aided, to go
to court, the H igh C ou rt held the rules to be void: such restrictions w ould need
to be exp ressly provided for in prim ary legislatio n .11 S om etim es an A ct of
P arliam en t exp ressly states that som e qu estion decided by a b od y is not to be
questioned in a court. The ju dges have gen erally been hostile to such
provisions and have sou ght to oust such ouster clau ses.12 Lord W oolf, then the
M aster o f the Rolls, has even suggested , in academ ic w riting, that the courts
m igh t have a d uty not to give effect to a statute, P arliam en tary suprem acy
notw ithstand ing, if it tried to abolish ju dicial review gen erally.13 It is now clear
that if P arliam en t w ishes to create such non-review able bodies, as it does seek
to do in the con text o f the secret services, surv eillance and anti-terrorism , for
exam ple, it can only do so if it uses the clearest w o rd s.14
8.3 Article 6 of the European Convention on Human Rights
W ith the com ing into effect o f the H um an Rights A ct 1998, A rticle 6 o f the
scheduled C on vention rights is now' an im portan t sou rce o f law w hich is
8 See R v A [2001] 3 All ER 1, w hich includes judicial and non-judicial references to the discussions
and law on the issue.
9 See Ridge v Baldw in [1964] AC 40, which m ay be thought to have opened the floodgates on this
issue. It m ade clear that there w as not and never had been any rule w hich restricted the High
C ourt to im posing rules of fairness only on judicial bodies such as m agistrates courts.
10 For exam ple, W ade and Forsyth, op. cit., Part VI.
11 R v Lord C hancellor ex parte W illiam [1997] 2 All ER 779.
12 A nism in ic Ltd v Foreign Com pensation C om m ission [1969] 2 A C 147. In general see W ade and
Forsyth, op. cit., pp. 7 00-14.
13 The Rt Hon Lord W oolf of Barnes (1995) 'D roit Public - English Style', P u blic Law 57.
14 O uster clauses in the context of surveillance are discussed in C hapter 7; anti-terrorism in
C hapter 18.
having an increasingly significant im pact on d om estic law . T here are,

how ever, m an y statem ents to the effect that, on issues such as fair trials, there
are no significant differences b etw een the requ irem ents o f the C on vention and
the com m on law .15
Article 6. Right to a fair trial

(1) In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. Judgment
shall be pronounced publicly but the press and public m ay be excluded from all
or part of the trial in the interests of morals, public order or national security in
a democratic society, where the interests of juveniles or the protection of the
private life of the parties so requires, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice
the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail,
of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given free
when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak
the language used in court.
The right to a fair trial is absolu te in the sen se that a trial in v iolation o f A rticle
6 is unlaw ful. A crim inal conviction, for exam ple, should be set asid e.16 The
basic gu arantee is to a fair trial. W hat this requ ires involves, first, a nu m ber of
express rights as identified in A rticle 6(1), (2) and (3). T hese express rights
apply w ithout any other restriction o ther than those, such as the exceptions to
pu blic p ron ou ncem ent in A rticle 6(1), w hich are found in the article. H ow ever,
the Strasbou rg institutions have also identified a ran ge o f rights w hich can be
im plied from the express rights and w hich are m an ifestations of the basic
gu arantee to a fair trial.
A n im portant feature o f the A rticle 6 p rotection is the acceptance o f the
'cu rativ e appeal' b y w hich it is recognised that even if the procedu re at first
instan ce does not con form to A rticle 6 the possibility o f an appeal to a court
or tribunal w hose procedu res do so con form and w hich can d eal w ith all the
issues in d ispute generally m eets the requ irem ents of the A rticle.17
15 For exam ple, R v A [2001] 3 All ER 1 [54]: 'But the principles w hich are enshrined in [Article 6,
the right to a fair trial] have for long been part of o u r com m on law ', per Lord Hope.
16 R v F orbes [2001] 1 All ER 686, 697 [24],
17 For exam ple, R (A lconbury D evelopm ents Ltd) v Secretary o f State for the E nvironm ent, Transport
an d the R egions [2001] 2 All ER 929, H L; Bryan v U nited Kingdom (1995) 21 EH RR 342; D irector
G eneral o f Fair Trading v P roprietary A ssociation o f G reat Britain an d an other [2001] N LJ 1372, CA.
Cf. Kingsley v U nited Kingdom Ap. 3 5 6 0 5 /9 7 , The Tim es, 9 January 2001.
A rticle 6 rights are not necessarily confined to the trial process itself. The
requ irem ent o f a fair trial, p articularly the need that d efendants should not be
d isadvan taged, can m ean that they are relevant to the investigation o f crim e.
Evid ence obtained by im p rop er process m ay violate A rticle 6 .18
8.3.1 Reasonable restrictions

T he requ irem ents of a fair trial in A rticle 6 can be subject to reasonable and
p roportionate restriction w ithout there b ein g a v iolation o f the rights. The
p ossibility o f such restrictions applies esp ecially to the im plied rights. A ny
restriction m u st be for a legitim ate purpose. The C ou rt has the last w ord on
the com p atibility o f restrictions w ith A rticle 6 but it gives the states a w ide
m argin o f appreciation over the need for a restriction and the m eans b y w hich
it is put into effect. The C o u rt's con cern is w ith the o verall com patibility o f the
p rocess w ith the C onvention. W here restrictions have a significant effect on the
rights o f the d efen ce then the C ou rt w ill expect to see cou ntervailing
p rocedu res created to m inim ise any detrim ent, and a strong conception of
p roportionality is applied so that if a less onerou s approach could have
achieved the sam e effect it violates the C on vention not to have taken it.19
8.3.2 The scope of Article 6

A rticle 6 only applies to the d eterm ination o f 'civ il rights and obligations or
any crim inal charge'. These are 'au ton o m o u s' con v en tion term s w hich are
ind ep en den t o f how a m atter is classified in d om estic law . D ispu tes over 'civil
rights and o blig ation s', for exam ple, exclu d e the d eterm ination o f various
p olitical20 and ad m inistrative righ ts,21 such as the righ t to stand in an election,
w hich m ay exist against state agencies. In respect o f state benefits, such as
w elfare rights, the tend ency in recent years has been to inclu d e d isputes w ithin
the scope o f A rticle 6. T h e d isciplinary bodies o f the professions are likely to
be thou ght o f as d eterm ining a 'civ il righ t' rather than a crim inal charge.22
W hether 'crim inal ch arg e' is bein g tried w ill depend not ju st on the dom estic
classification o f the process b u t also on other factors, esp ecially the natu re of
the offence and the severity o f any p enalty.23 Thus courts m artial and the m ore
seriou s form s o f prison d iscipline have been characterised as crim inal and
m ad e subject to A rticle 6 requ irem ents24 as can som e so-called ad m inistrative
offences.25 A nti-social b ehav iou r orders, how ever, have been held by British
cou rts to be civil rather than crim inal m atters for A rticle 6 pu rp oses.26
18 M urray v United Kingdom (1996) 22 EHRR 29.

19 For exam ple, Van M echelen an d others v The N etherlands Ap. 2 1 3 6 3 /9 3 ; (1997) 24 EH RR 647.
20 For exam ple, the right to stand in an election: Pierre-B loch v France (1998) 26 EH RR 202.
21 For exam ple, parental right to express a choice o ver schooling: R v R ichm ond upon Tham es LBC
ex parte ]C (a child) (2000) The Tim es, 10 August.
22 R (Fleurose) v SFA Ltd 12001] All ER (D) 189.
23 Engel v The N etherlands (1976) 1 EHRR 706.
24 For exam ple, F indlay v U nited Kingdom (1997) 24 EHRR 221; C am pbell & Fell v U nited Kingdom
(1984) 7 EHRR 165.
25 For exam ple, traffic offences in M au er v A ustria (1998) 25 EH RR 91.
26 R (M cC ann) v Crow n Court M anchester 12001] 4 All ER 264.
8.3.3 Substantive rights

D elay
Significant delay, esp ecially in crim inal trials, m ay be a breach o f the
C onvention. A rticle 5 is also involved. An arrested person is entitled to have
the legality o f the arrest and d etention tested 'p rom p tly' by a ju dicial officer
such as a m agistrate27 and to be released on bail or, if not released on bail, to
trial 'w ith in a reasonable tim e'. A reasonable length o f d eten tion w ill depend
on the circu m stan ces but a d elay o f less than tw o years is unlikely to be
un reason able28 - a m u ch longer period than is norm al un der a com m on law
system . A rticle 6(1), though using the sam e w ord s as A rticle 5 and applying
to both civil crim inal trials, inclu ding of those on b ail, nevertheless is not the
governing article for those in d etention and so it has been interpreted to allow
longer w aits for trial. A gain w hether there is a breach w ill depend up on the
circu m stan ces.29
Bail
A rticle 5(3), linked w ith the presum ption o f innocence in A rticle 6(2), gives rise
to a strong presum ption in favour o f bail™ w hich can only be refused on
certain ground s and these m u st be proved by relevant evid ence w hich w ill be
different from the evid ence on w hich the arrest w as m ade. A utom atic refusal
o f bail in respect o f certain seriou s crim es, for exam ple, violates the
C onvention. A sim ilar presum ption is found in the Bail A ct 1976 bu t it m ay be
that the C on vention im poses a high er standard o f p ro o f o f the factors on w hich
bail can be d enied .31
A ccess to the courts

To m ake the rights and freed om s provided for by the C on vention effective,
people need a righ t o f access to the courts. A rticle 5(4) E C H R expressly entitles
detainees to have the law fulness o f their d etention sp eed ily decided by a court
w hich is capable o f ord ering their release if they have been u n law fu lly
detained. In the U nited K ingd om the law fulness o f d eten tion can be
determ ined by a range o f procedu res, w hich inclu d e habeas corpus and, m ore
generally, ju dicial review proceedings.32
A general right o f access to the courts is im plied from A rticle 6(1) ECH R.
W hat is caugh t by this provision are ad m inistrative or legal rules w hich, in
effect, m ake it im possible to go to ind ep en d en t courts. Sim ilarly, A rticle l3
E C H R requires the signatory states to provide 'effective rem ed ies' before a
27 Article 5(1 )(3) - see C hapter 4.

28 Starm er, K. (1999) European H um an Rights Lazo. London: LAG, p. 243.
29 For exam ple, a delay of seven years w as, in the circum stances of a com plex case, acceptable in
N eu m eister v A ustria (No. 1) (1979-80) 1 EH RR 91, while in R obins v United K ingdom (1998) 26
EH RR 527 the failure to determ ine a sim ple costs and legal aid m atter within four years did
am ou nt to a breach. A nine-year delay on a civil m atter w as a breach in Editions Periscope v
F rance [1992] 14 EHRR 597 as w as a five-year delay on a crim inal m atter in Philis v G reece (1998)
25 EH RR 417.
30 For exam ple, Letellier v F ran ce (1991) 14 EHRR 83.
31 Burrow , J. (2000) 'Bail and the H um an Rights A ct 1 9 9 8 -1 ' [2000] N L] 6 7 7 ; . .-2 ' [2000] N L J 736.
32 For the provisions concerning detention in the context of anti-terrorism legislation see C hapter
18.
'n ational auth ority' for v iolations o f the 'rig hts and freed om s set forth in this
C o n ven tion '. R ules w hich prevent groups such as prisoners from p u rsu ing a
civil or a C on vention right throu gh legal action in the cou rts,33 governm ent
rules and practices w hich cannot be tested in the cou rts on, for exam ple,
national secu rity ground s,34 attem pts to establish tribunals w hose decisions
cannot be challenged in the ord in ary cou rts and rules w hich restrict a right of
action such as d efam ation on the ground that a m atter is subject to absolu te
or qualified privilege35 are all exam ples o f the issues raised by the right of
access to the courts. T h e cou rts to w hich access is an en titlem en t m u st be
properly established by law and properly ind ep en den t of the executive. The
tribun als establish ed to deal w ith surveillance, national secu rity or an ti
terrorism m atters clearly raise issues in this respect.36 A rticle 6 is not, how ever,
a backd oo r route to w id en ing substantive rights. A rule o f law w hich has the
effect o f exem ptin g certain groups from an action in negligence is b est seen as
d eterm ining the scope o f a d uty o f care rather than preventing access to the
courts.37
A s an im plied right, access to the court is not absolute. R easonable and
proportionate restrictions m ay be accepted as bein g w ithin a state's m argin of
responsibility. Som e restrictions on p risoners, on m inors, on ad ults bringing
actions in respect o f harm s suffered as child ren,38 on vexatiou s litigants, on
persons of unsound m ind and on bankrup ts are exam ples o f restrictions
w id ely ad opted by sig nato ry states and accepted in p rinciple by the Strasbou rg
institutions.39
Equality o f arm s, disclosure and public interest im m unity

The p rinciple o f equality o f arm s requ ires that there should be 'fair balance'
betw een the p arties in both crim inal and civil trials. T his has been described
as that 'each party m u st be afforded a reasonable o pportu nity to present his
case - in clu ding his evid ence - u n d er con ditions that do not place him at a
substantial d isad v an tag e vis-à-vis his op p on en t'.4" Rules or procedu res w hich
have an unequal effect on one party to p roceedings can be challenged on these
grounds. P articu lar features o f equality o f arm s inclu de the righ t o f parties to
know and com m ent on the ev id ence o f the other party and the right to
d isclosure o f ev id ence by the prosecution. E qu ality o f arm s is an im plied right
33 G older v U K (1 9 7 9 -8 0 ) 1 EH RR 524, paragrap h 35; A shingdane v UK (1985) 7 EH RR 528

(paragrap h 57). O ne of the first declarations of incompatibility under the H um an Rights A ct
1998 related to provisions in the C onsum er C redit A ct 1974 w hich prevented creditor
institutions from pursing their debtors in court if certain form alities had not been followed:
Wilson v F irst C om ity Trusts Ltd [2001] EW CA C iv 633; [2001] 3 All ER 229.
34 For exam ple, in a national security context, Tinnelly & Sons v UK (1998) 4 BH RC 393.
35 Fayed v U nited Kingdom (1994) 18 EHRR 393.
36 On the tribunals established to deal with surveillance m atters see C hapter 7 and with
anti-terrorism see C hapter 18.
37 See Z an d others v United K ingdom (2002) 34 EH RR 97 which can be contrasted w ith the heavily
criticised Osm an v United Kingdom (2000) 29 EHRR 245. In O sm an a rule of law w hich prevented,
on pubic policy groun ds, som e negligence actions against the police w as considered by the
C ourt of H um an Rights to violate A rticle 6. In Z a sim ilar rule barring negligence actions against
social w orkers has been held not to violate A rticle 6.
38 S tubbings & others v U nited Kingdom (1997) 23 EHRR 213.
39 M v United Kingdom 52 D&R 269, 270.
40 D om bo Beheer B V v The N etherlands (1994) 18 EH RR 213, paragrap h 230.
and so is subject to reasonable and p rop ortionate restrictions such as, in

crim inal trials, issues o f national security, the p rotection of w itnesses or secret
police m ethods. " In crim inal proceedings the requ irem ent o f equality of arm s
is reinforced by m ore specific rights such as, in A rticle 6(3)(b), the need for a
defen dan t to have ad equ ate tim e and facilities to prepare his or her defence.
The principle that the d efen dan t should know o f and be able to cross
exam in e on the prosecu tio n 's evid ence and not be denied im portan t evid ence
that can assist his or her d efen ce is im portant. It is, how ever, one w hich is
subject to restrictions in d om estic law . T h e restrictions that apply in a terrorist
context, particularly in respect o f the Special Im m igration A ppeals C om m is
sion, are clearly likely to be challenged in respect o f A rticle 6 and are d iscussed
in C h apter 18.
Parties to civil trials and d efen dan ts in crim inal trials should have access to
the evid ence to be used in the trial. U nd er U nited K ingd om law , a civil litigant
can seek an ord er o f d isclosure in o rd er to obtain inform ation or d ocu m ents
w hich, it is believed, will assist the case. In crim inal trials the rules of
d isclosure are now covered by statute. T he C rim inal P roced ure and Investiga
tions A ct 1996 places the prim ary d uty on the p rosecu tion to disclose any
ev id ence w hich, in the opinion o f the prosecu tion, 'm ig h t u n derm ine the case
for the p rosecu tion against the d efen ce'.42 D isclosure, therefore, d ep en d s on
the prosecu tio n 's discretion. T he defence has a d uty to disclose an o utline in
gen eral term s o f the d efen ce that w ill be offered. There is then a second ary
du ty on the prosecu tion to disclose any further evid ence w hich 'm ight be
reasonably expected to assist the accu sed 's d efen ce' as disclosed b y the
d efen ce statem ent.43
The princip le o f pu blic interest im m u nity p erm its the prosecu tion to refuse,
on pu blic interest ground s, to d isclose m atters, in clu ding those w hich would
assist the defence. T his priv ilege applies in both a civil and a crim inal context.
In the past it has been highly con troversial sin ce it seem ed to act as a device
by w hich the C row n, in particular, could keep a w ide a ran ge o f m atters
outsid e the scru tin y o f the courts to the d isadvan tage of litigants. It is now
accepted that it is the courts w hich should have the final say on the m atter and
that, even in the con text o f national security, they should not au tom atically
accept governm ent claim s.44 The focus, today, is on the d am aging content of
any d ocu m ent or inform ation for w hich d isclosure is sou ght and the old
princip le w hich perm itted non-d isclosure of types o f d ocu m ent, such as
C abinet m inu tes, irrespective o f w hether their d isclosure w ould actually be
dam aging, is now m u ch reduced though still present.4:>
Public interest im m u nity is av ailable in regard to crim inal trials d espite the
danger o f a w rongful conviction. It is justified on the ground s o f the need to
protect national security, police and security service procedu res, inform ers and
41 Fitt v United Kingdom (2000) 30 EHRR 480, 5 1 0 -1 1 ; quoted in Brown v Stott (Procurator Fiscal,
D unferm line) an d others 120011 All ER 97, 106, per Lord Bingham.
42 Section 3, Crim inal Procedure and Investigations A ct 1996.
43 Section 7, Crim inal Procedu re and Investigations A ct 1996.
44 C onw ay v R im m er [1968] AC 91.
45 A ir C anada v S ecretary o f State fo r Transport [1983] 1 All ER 910. For a general discussion see
Supperstone, M. and C oppell, J. (1997) 'A N ew A pproach to Public Interest Im m unity?', PI. 211.
inform ation provided in confidence. A ny ap plication for non-d isclosure can be

challenged by the d efen ce46 and the m atter is determ ined by the trial judge.
Rules o f court, produced un der section 19 o f the C rim in al P roced ure and
Investigation s A ct 1996, give the prosecu tion the opportu nity o f an ex parte
procedu re by w hich an application not to disclose d ocu m ents or inform ation
can b e m ad e w ithout the d efen ce know ing w hat inform ation is in issue or even
know ing that an application has been m ad e.47
Th e com patibility of pu blic interest im m u nity and o ther restrictions on
d isclosure w ith A rticle 6 is com plex and w ill depend on circum stances.
P roportionate and reasonable restrictions o f norm al fair trial requ irem ents are
perm itted if for legitim ate purposes. N ational security or the p rotection of
police inform ers m ay be such purposes. States have a significant m argin of
appreciation and it is for the d om estic courts, not Strasbou rg, to d ecid e w hether
the ground s for non-d isclosure w ere strictly necessary in any p articular case.
The job o f the C ou rt o f H um an R ights is to ensure that the rights o f the d efence
to an ad versarial trial in w hich, as far as possible, the d efen ce case can be m ade
on equal term s w ith the prosecu tion are m aintained . T h e ex parte procedu re
m entioned abov e is clearly cap able o f challeng e in relation to A rticle 6. In Roive
and D avis v UK and A tlan v UKW it w as found to be a v iolation o f the
C onvention. In these cases the lack o f defence inv olv em ent at first instan ce w as
crucial. In Fitt v U nited K ingdom (2000)49 on the other hand, an exercise o f the ex
parte p roced u re w hich involved the d efen ce as far as w as reasonable at first
instance w as held not to violate A rticle 6. The new procedure, in so far as it
affords the d efen ce m axim u m involvem ent, and given the acceptance in
general term s o f restrictions on d isclosure, m ay be held to be com patible.50
Reasons
U nd er A rticle 6(1) courts should norm ally give reasons for their d ecisions.51
Ju ries in crim inal cases do not give reasons and it m ay be that, in difficult
cases, som e statem ent should be required although there is no Strasbou rg
reasoning to that effect. C ou rts and tribunals in the U nited K ingd om usually
give reasons for their d ecisions;52 how ever, the H ouse o f L ords has d enied that
there is a gen eral princip le to that effect applying to all tribun als and
ad m inistrative bodies.53 M any ad m inistrative d ecisions w'ill not be w ithin the
16 Section 3(6), Crim inal Procedu re and Investigations A ct. D isclosures w hich contravene
provisions relating to surveillance in the Regulation of Investigatory Pow ers Act 2000 are also
prohibited.
47 The C row n C ou rt (Crim inal Procedu re and Investigations A ct 1996) (Disclosure) Rules 1997, SI
1 9 9 7 /6 9 8 , paragrap h 2.
48 (2000) 30 EH RR 1; (2002) 34 EH RR 33 respectively.
49 Ap. 2 9 7 7 7 /9 6 ; (2000) 30 EH RR 480.
50 Though it should be noted that, in Fitt v United K ingdom , the C ou rt of Hum an Rights divided
9 to 8. Proportionality m ay require that a special counsel procedure, as used in im m igration
cases, w hich allow s stronger representation of the defence in ex parte cases, lessens the
restrictions of the rights of the defence and so, on proportionality grounds, should be chosen:
Enright, S. (2000) Crim e B rief N LJ, 14 July, 1047.
51 For exam ple, H iro v Spain (1995) 19 EH RR 566, paragrap h 27.
52 The Tribunals and Inquiries A ct 1992 requires a large range of tribunals to give reasons on
request; other statutes require reasons to be given.
53 R v H om e Secretary ex parte D oody [1994] 1 AC 531. On the du ty to give reasons see W ade and
Forsyth, op. cit., pp. 5 1 6 -2 0 and other places.
scope o f A rticle 6; w here, how ever, such bodies are d eterm ining a person 's
'civ il rights and ob lig ations' or a 'crim inal charge' a d uty to give reasons
applies. T he flexibility o f A rticle 6 m ay relieve bodies o f this d uty in certain
approp riate circu m stances. R easons m u st be sufficient b u t need not involve a
detailed consid eration of ev ery argum en t raised by the p arties.54
Public hearing
A rticle 6(1) p rovides that civil and crim inal trials should generally be in public;
how ever, it expressly identifies a n u m ber o f pu rposes for w hich it is legitim ate
to hold hearings in the absen ce o f 'p ress and pu blic'. Such restrictions m ust,
how ever, be properly ju stified and proportionate. D isciplinary procedu res
used against p risoners, for exam ple, can, be held in priv ate if this is required
by reason o f public ord er or security.55 Public hearings are fun d am ental to the
C onveiition. They protect litigants from secret ju stice and m aintain public
con fid ence in the cou rts.56 A part from the clear cases, such as ju venile crim e,
hearings should be in public unless there are com pelling reasons in ind ividu al
cases for d ep artin g from this.
Im partiality and independence

Courts, tribunals and other b od ies w hich d eterm ine civil rights and obligations
and crim inal charges need to be im partial and ind ependent. T h is applies to
crim inal cou rts w hich should take approp riate step s if allegations o f bias are
m ad e.57 In E nglish ad m inistrative law , the rules o f fairness, or natu ral justice,
provide approp riate rem ed ies in respect o f w ell founded allegations o f the
appearan ce of b ias,58 and these have been recently w idened in their scop e.59
Th ey can also apply to n on-p ublic bodies. T h e com m on law concept o f bias
m ay need ad justing for com p atibility w ith A rticle 6 EC H R in ord er to ensure
the appearan ce o f im partiality.60
Independence has caused greater problem s. A nu m ber o f b od ies and
procedu res have been su ccessfu lly challenged on the ground s o f insufficient
ind ep en den ce from the executive and there have had to be legislative or
ad m inistrative changes to rem ed y the problem .61 Som e m ajor procedu res, such
as planning law , have avoid ed change only through the u ltim ate availability
54 Ruiz Torija v Spain Ap. 1 8 3 9 0 /9 1 ; [1999] EH RLR 334, paragrap h 29.

55 C am pbell & Fell v U nited Kingdom A p. 7 8 1 9 /7 7 ; (1984) 7 EH RR 165, paragrap hs 8 6 -8 8
56 D iennet v F rance Ap. 1 8 1 6 0 /9 1 ; (1996) 21 EHRR 554, paragraph 33.
57 G regory v U nited Kingdom (1997) 25 EH RR 577.
58 See W ade and Forsyth, op. cit., C hapter 14.
59 See in particular R v Bow Street S tipendiary M agistrate ex parte Pinochet U garte (No. 2) [2000] 7
AC 119, which extended the types of interest w hich can require a judge to step dow n from a
trial. Clarified in Locabail (U K) Ltd v Bayfield Properties Ltd an d an other an d other applications [2000]
1 All ER 65 CA.
60 In re M edicam ents an d related classes o f goods (2) [2001] 1 W LR 700.
61 For exam ple, courts m artial (F in dlay v U nited Kingdom (1997) 24 EH RR 221); aspects of planning
process on Guernsey (M cG on nell v U nited Kingdom (2000) 8 BHRC 56); the system of tem porary
sheriffs in Scotland (S tarrs v Ruxton (2000) SLT 42 HCJ); the Police C om plaints Authority has
been held to be insufficiently independent for the purposes of providing a rem ed y for unlawful
police surveillance (Khan v U nited K ingdom , (2000) The Tim es, 23 M ay); Em ploym ent Tribunals
w ere insufficiently independent for som e disputes involving the governm ent (S canfuture UK Ltd
v Secretary o f State fo r Trade an d Industry [2001] All ER (D) 296). Such rulings as these have led
to statutory and adm inistrative changes and no longer state the law.
o f ju d icial review .62 T ribun als, if they are too closely linked to the executive, if
they follow executive gu idelin es or if their m em b ers' appointm en ts need
reg u lar review , m ay fall foul o f this requ irem ent. The absen ce in England o f a
gen eral ad m inistrative tribunal, w ith a broad ju risd iction, and the traditional
preference for p articular bod ies w ith a lim ited ju risd iction and only partial
executive auton om y, is at the root o f this problem . It is in this regard that the
C on vention, through the H um an R ights A ct 1998, has had one o f its m ost
significant im pacts.63
Crim inal trials

A rticle 6(2) and (3) contains further express rights w hich relate only to crim inal
trials. A lth ou gh express, these rights, too, are subject to reasonable and
p roportionate restriction. T here is a hu ge C on vention case law on the subject
that specifies the rights o f the d efen ce and p rosecu tion and the kinds of
restrictions on those rights w hich are reasonable.64
The p resum ption o f innocence in A rticle 6(2) is fundam ental. It provides an
im portan t standard against w hich, for exam ple, restrictions on the righ t to
silence or the use o f defen ces w hich ap p ear to shift a burden o f pro o f to the
d efen d an t are to be m easured. Likew ise the C ou rt o f H um an R ights accepts in
effect, if not in w ords, the crim inal standard o f pro o f beyond a reasonable
doubt.65 T hese m atters are d iscussed in other places in this book.66
A ccess to a law yer is con sid ered to be particu larly im portan t by the
Strasbou rg court. T h is is a right inferred from A rticle 6(3)(b) and (c). It applies
from early in a crim inal investigation. In m atters such as the lim itations
im posed on the right to silence it is the absen ce o f a law yer to ad vise that can
be a m ajor factor in the find ing o f a violation.67
A person has a righ t u n d er A rticle 6(3)(c) o f the C on vention to defend him
or herself. In political cases d efen dan ts m ay see political and financial
ad vantages in this. T his is not an absolu te righ t and a d om estic requ irem ent
for representation can be up held .68 T h e C on vention does not provide an
absolu te righ t to legal aid in crim inal cases; the righ t to legal aid is conditional
on the accu sed 's lack o f m eans and, second , that the interests o f ju stice require
it.
62 Bryan v United K ingdom (1995) 21 EHRR 342; R (A lcon bu ry D evelopm ents Ltd) v S ecretary o f State
for the Environm ent, Transport an d the Regions [2001] 2 All ER 929, HL.
63 This is predom inantly a m atter of adm inistrative law and outside the scope of this book.
M Starm er, op. cit., Part II on crim inal law ; Part III on civil proceedings. H arris, D., O 'Boyle, M.
and W arbrick, C. (1995) Imw o f the European Convention on H um an Rights. London: Butterw orths;
see also Lester, Lord A nthony and Pannick, D. (eds) (1999) H um an Rights Law an d Practice.
London: Butterw orths.
66 Right to silence, C hapter 4; reverse onus defences are discussed in C hapter 18.
67 M u rray v United Kingdom (1996) 22 EH RR 29.
68 For exam ple, C roissant v G erm any (1993) 16 EHRR 135.
9
Prisoners' rights
9.1 Introduction
States claim to m onopolise control over the exercise of legitim ate violence and
at the heart of the claim is the coerced deprivation of liberty involved in
sending a convicted person to prison on the basis o f law. A prisoner's civil
liberty is fundam entally dim inished as his or her norm al freedom is restricted.
The issue for civil liberties law is the extent to w hich restriction is necessary
in order to pursue the objectives of the prison system . Different objectives m ay
authorise different degrees of restriction. If the aim is m erely to punish
through detention, the necessary lim itations on a prisoner's freedom w ithin a
prison m ay, in fact, be less than if additional purposes such as reform ation,
rehabilitation or, in the words of the Prison Rules for England and W ales,
enabling 'a prisoner to live a useful life' are pursued. O f overriding concern
for civil liberties law is that, w hatever the aim of the prison system , certain
basic entitlem ents, consistent not only with hum an dignity but also with the
requirem ents of legality, are upheld for prisoners.
9.2 International law
The right of states to im prison under their laws is recognised by international

law. A rticle 5(l)(a ) ECH R legitim ates the lawful deprivation o f liberty for 'the
lawful detention of a person after conviction by a com petent court' and
perm its the rem and in prison of persons aw aiting trial in certain, limited
conditions given in A rticle 5(l)(c). Sim ilarly A rticle 9 of the International
Covenant on Civil and Political Rights (ICCPR) perm its deprivation of liberty
'on such grounds and in accordance with such procedure as are established by
law '.1 N either instrum ent expresses restrictions on the kinds of m atters for
which laws can prescribe im prisonm ent (though both ban im prisonm ent
m erely for the non-perform ance of a contract) but it is obvious that states
would violate their international obligations if they have laws w'hich perm it
the im prisonm ent of a person exercising the freedom s the instrum ents protect.
Though perm itting im prisonm ent, international law im poses duties on
states in respect of the treatm ent of prisoners and the conditions under which
they are detained. A rticle 10 ICCPR does this expressly by requiring that 'all
1 Nowak, M. (1993) U.N. Covenant on Civil and Political Rights. CCPR Com mentary. Kehl: N.P. Engel,
pp. 158-82.
persons dep rived o f their liberty shall be treated w ith h u m anity and w ith
respect for the inheren t d ignity o f the hu m an person ', that the aim o f any prison
system should be the 'reform ation and social rehabilitation o f p risoners', and
that, other than in exception al circu m stan ces, rem and prisoners be segregated
and treated differently from convicted prisoners and ju veniles be separated
from ad u lts.2 EC H R m akes no specific reference to the treatm en t o f prisoners
bu t prisoners are able to seek the protection o f the C o n v en tio n 's provisions
such as those relatin g to inhu m an and d egrad in g treatm ent and punishm ent,
freed om of expression and p rivate life. O ther international instrum en ts also
apply to the treatm en t o f prisoners such as the U nited N ations M inim um Rules
for the T reatm en t o f P risoners and, o f greater d irect significance for the U nited
K ingd om , the E uropean C om m ittee for the Preven tion o f T ortu re and Inhum an
and D egrading T reatm en t or P unishm ent3 (a com m ittee o f the C ou ncil of
Europe) and the E uropean P rison Rules. O nly the E C H R has direct effect in U K
cou rts; the other instrum en ts can b e taken into account in the interpretation of
legal obligations and can b e a useful reference for prison reform cam paign ers.4
9.3 Prisons in the United Kingdom
Prisons in England and W ales5 are u n d er the ultim ate control of the H om e
Secretary although, since 1993, responsibility for the d ay-to-d ay ru nning o f all
prisons has been transferred to the P rison Service, an executive agency. The
H om e Secretary is accoun table to P arliam en t bu t has only lim ited responsibil
ity for m atters w ithin the con trol o f the P rison Service. The extent to w hich the
H om e Secretary can im pose policies on the Serv ice is controversial. T h e Prison
Serv ice has d irect responsibility for m o st prisons though it also has the pow er
to contract out the ru nning o f any prison or part o f a prison to a private
com pany.6 Each state prison is run by prison officers w ho are u ltim ately
responsible to the g ov ernor w ho has d irect statu tory authority. Each prison has
a Board o f V isitors w hich has a general superv isory role in a prison and can
be com plained to by prisoners. Boards have been criticised for a lack of
ind ep en den ce from the auth orities and, since 1992, have lost their form al
d iscip linary pow ers. Insp ection s o f prisons, esp ecially in respect o f treatm ent
and conditions, are u n d ertaken by an ind ep en den t official, the C h ief Insp ector
o f Prisons.
2 Ibid., 183-92.
3 Evans, M.D. and M organ, R. (1998) Preventing Torture: A S tudy o f the European C onvention fo r the
P revention o f Torture an d Inhum an or D egrading Treatm ent or Punishm ent. O xford: Oxford
University Press.
4 Livingstone, S. and O w en, T. (1999) Prison Law , 2nd edn. O xford: O xford University Press, p.
128, 3.3 9 -3 .6 0 . On international law generally see Rodley, N.S. (1998) The Treatm ent o f Prisoners
under In tern ational Law , 2nd edn. O xford: O xford U niversity Press.
5 Prisons are not a reserved m atter and hence are within the com petence of the Scottish Parliam ent
and executive.
6 U nder pow ers found in the section 84, Crim inal Justice A ct 1991, am ended by section 96,
C rim inal Justice and Public O rder A ct 1994. Standards of treatm ent are contained in the contract
and have been held to be confidential. Disciplinary decisions in private prisons are taken by the
'controller' w ho is a C row n servant and not an em ployee of the com pany. The 'director' must
be approved by the H om e Secretary - see Livingstone and O w en, op. cit., 1.48 -1 .5 8 .
Prisoners' rights 159
P risoners in England and W ales live lives circu m scribed by ru les covering
m ost o f the d etail o f their d aily existence. T h e basic legal au th ority for the
actions o f the governors, the P rison Serv ice and the private prisons is found
in the Prisons A ct 1952. T his is, pred om inantly, an enablin g A ct and under
section 47(1) the H om e S ecretary m ay issue rules, in the form of a statu tory
instrum ent, Tor the regulation and m an agem en t o f prisons . . . and for the
classification, treatm ent, em ploym ent, d iscipline and con trol' o f prisoners. The
Prison Rules are regularly updated. T h ey also auth orise the H om e Secretary
to m ake Prison Serv ice O rd ers (dealing w ith detailed m atters in the long term )
and Prison Serv ice Instructions (d ealing w ith short-term issues). U nd er the
purported au th ority o f the A ct, the Rules, the O rd ers and the Instructions and
o ther d ocu m ents, the Prison Serv ice and governors can pu rsu e particular
policies and m ake p articular decisions. The P rison R ules provide for a system
to han dle prisoners' com plain ts about treatm ent. This is pred om inantly by
com plaint to the governor or to the Board o f Visitors. P risoners also have the
right to petition the S ecretary o f State and m ay com plain to their M P.
Follow ing the W oo lf Report a further av enu e open to p risoners is to apply to
the Prisons O m bu dsm an for an investigation, a report and an agreed rem edy.
9.4 The civil rights of prisoners
Prisoners are not outlaw s and are not denied civil rights and the benefit o f the
rule o f law.
The regim e o utlined abov e is legally based and prisoners have enforceable
rights.7 T he P rison Rules are m ade by statu tory instrum en t and can be
challenged, as a m atter o f pu blic law , on the ground s that they are o utsid e the
scope o f the ru le-m aking p ow er in section 47(1) o f the Prison A ct 1952.8 The
O rd ers and Instructions, how ever, are not m ad e by statu tory instrum en t and
not d irectly enforceable, though it is arguable that they can in som e situations
create a legally enforceable legitim ate expectation am on g p risoners.9 They
cannot increase the legal pow ers of the prison au th orities10 w hich rem ain
based on the p roper in terpretation o f the A ct and the R u les.11 A policy of the
prison auth orities on operational and m an agem en t m atters is open to judicial
rev iew on the ground s that it is not capable o f bein g authorised un der the
proper in terpretation on the A ct, the R u les or other O rders and In stru ctio n s.12
7 'D espite the deprivation of his liberty, a prisoner rem ains invested w ith residu ary rights
appertaining to the nature and cond uct of his incarceration': R v Board o f V isitors o f H ull Prison
ex parte St G erm ain [1979] QB 425, 455.
* For exam ple, R v H om e D epartm ent ex parte Leech [1994] QB 198, w here one of the Prison Rules
authorising the censoring of prisoners' letters of inordinate length w as held to be ultra vires the
rule-m aking pow er in the Prisons A ct 1952.
9 Livingstone and Owen, op. cit., p. 22.
10 See, in general term s, G illick v W isbech an d West N orfolk A rea H ealth A uthority [1986] 1 A C 112,
cited Livingstone and O w en, op. cit.,
11 For exam ple, R v S ecretary o f State fo r the H om e D epartm ent ex parte A nderson [1984] 1 QB 778,
w here a Standing O rder preventing access to a legal advisor unless a prisoner w as, at the sam e
tim e, using the internal prisons com plaints system w as held to be ultra vires.
12 R v D eputy G overn or o f Parkhurst Prison an d others ex parte H ague/W eldon v H om e Office [1992] 1
AC 58, 155.
In R aym ond v H oney the H ouse o f L ords m ad e it clear that prison

p u nishm ent lies in the d ep rivation o f liberty and in those restrictions w hich
are ord in ary and reasonable con sequ ences o f that d eprivation. A convicted
prisoner retains those civil rights w hich have not been expressly taken aw ay
o r rem oved by necessary im plication o f the R ules e tc.13 In R v Secretary o f State
fo r the H om e D epartm ent ex p arte D aly (2001 )14 Lord B in gham , in the H ouse of
Lords, enum erated these as: the righ t o f access to a court; the right o f access
to legal ad vice; and the righ t to com m u nicate con fid entially w ith a legal
ad visor u n d er the seal o f legal professional privilege. T he cou rts have also
recognised that prisoners retain their fundam ental or hu m an rights and this
principle inform s their interpretation o f the Prison Rules and o f the O rd ers and
p olicies the R ules are cap able o f authorising.
Prison authorities would only allow convicted prisoners personal access to journalists
if the journalists agreed not to publish stories resulting from the meetings. This was
so even though the prisoners were seeking journalistic help to pursue their case that
they were unjustly convicted. The prison authorities’ decision was based a policy
purportedly justified by a Prison Service Standing Order made by the Home Secretary
under his powers in the Prison Act 1952 and the Prison Rules.
HELD (HL): in so far as the decision prevented the pursuit of claims of wrongful
conviction, the policy violated the fundamental rights of prisoners which they still
retained. The Standing Order was not ultra vires because it did not expressly
authorise or require the decision. The decision was unlawful because it was not
authorised by the Act, Rules or Standing Order which were to be construed to protect
the fundamental rights of prisoners.
R v Secretary of State for the Home Department ex parte Simms and another [1999]
3 All ER 400, HL
9.4.1 Access to the courts and privileged correspondence

A fu n dam ental righ t o f great im portan ce to prisoners is the right o f access to
the courts. W ithout it prisoners w ould be unable to challenge both the legality
o f their d etention in itself and also o f their treatm ent and the con ditions of
d eten tion un der the rules. It is a recognised C on vention right. A rticle 5(4)
E C H R gives any one dep rived of their liberty a right to have the legality of
their detention sp eed ily tested by a court. T his applies to convicted prisoners
p u rsu ing their cases on appeal but it does not assist convicted p risoners w ho
have exhausted their righ ts o f appeal bu t w ho are p u rsu ing a m iscarriage of
ju stice or som e o ther legal com plaint. Sim ilarly, a righ t o f access to the cou rt
has been inferred from A rticle 6 as necessary to achieve a fair trial respecting
the 'd eterm ination . . . of any crim inal ch a rg e'15 but, again, it is not clear that
this w ould ap p ly to a claim ed m iscarriage o f justice. If a prisoner is pu rsu ing
a 'civil right' such as an action for d efam ation against a prison o fficer,16 then
13 11983] l AC l.
14 [2001] 3 All ER 433.
15 G older v U nited K ingdom (1 9 7 9 -8 0 ) 1 EH RR 524.
16 As in G older v U nited Kingdom (1979-80) 1 EHRR 524.
A rticle 6(1) applies and, follow ing Silver v U nited K ingdom (1983)17 this includes
seekin g legal ad vice over possible legal actions.
Linked to the right o f access to the court is a p risoner's rights to
corresp on d en ce u n d er A rticle 8, p articularly w here legally privileged corre
sp ond en ce w ith legal ad visors is involved. V iolations o f the C on vention have
been found w here Prison R ules have perm itted governors to restrict a
p riso n er's ability to correspond w ith his or her legal ad visor or to w rite to M Ps
or others to com plain about treatm ent or con d itions.18 The princip le o f access
to the courts and the p rotection o f the righ t to correspond w ith legal advisors
has been firm ly entrenched in E nglish law .19 T h e right to m eet w ith legal
ad visors and pu rsu e legal entitlem ents, ev en byp assin g the official com plaints
system , has been upheld as a fundam ental right w hich only clear w ord s in
prim ary legislation could d isplace.20 O nly the m inim u m necessary checkin g of
corresp on d en ce to ensure it 'is in truth bona fide legal corresp on d en ce' can be
authorised un der the u ltim ate auth ority o f the Prisons A ct 1952.21 P risoners'
corresp on d en ce can only be opened to be checked for im prop er enclosures or
read to see w hether legal priv ilege is bein g m isused, if there are reasons to
think that such abuse of the righ t to corresp on d en ce is taking place. R outine
opening is unjustifiable. T h e policy o f rem ov ing prisoners from their cells
w hile search es and scru tiny of privileged corresp on d en ce took place w as held
to be illegal by the H ouse of Lords in R v Secretary o f State fo r the H om e
D epartm ent ex parte D aly (2001).22 T he im pact o f the H u m an Rights A ct 1998
can be only to strength en these protections.
9.5 Disciplinary procedures
'L eg ality ', em bodied in the W o olf Report23 and o ther reform s, has m eant that
the system for d isciplining prisoners has becom e less based on the d iscretion
o f prison governors and other officials. G overn ors have the pow er to punish,
inclu ding by keeping a person in prison for longer than w ould otherw ise be
the case, for w hat, o utsid e prison, w ould be ord in ary crim es. P risoners should
have the sam e procedu ral protections as others w hen b ein g tried for such
offences. T he Board o f V isitors no longer has ju risd iction over form al d iscipline
and seriou s alleged offences are now dealt w’ith by the police, C P S and
o rd in ary courts.
U nd er Rule 49, governors could aw ard up to 42 'extra d ays' to prisoners
convicted o f the lesser d isciplinary offences.24 T h eir d ecisions are subject to
ju dicial review on, for exam ple, a failu re to uphold the p rinciples o f natural
17 (1983) 5 EHRR 347.

18 For exam ple, G older v U nited K ingdom (19 7 9 -8 0 ) 1 EH RR 524; Silver v U nited K ingdom (1983) 5
EH RR 347; C am pbell v U nited Kingdom (1993) 15 EHRR 137.
19 R aym ond v H oney [1983] AC 2.
20 R v Secretary o f State fo r the H om e D epartm ent ex parte A nderson [1984] 1 QB 778.
21 R v Secretary o f State fo r the H om e D epartm ent ex parte Leech (2) [1994] QB 198.
22 [20011 3 All ER 433.
23 W oolf, LJ and Tum im , J (1991) Prison D isturbances: A pril 1990, C m 1456. London.
2-1 Prison Rules, Rule 50. The Crim inal Justice Act 1992 replaced 'rem ission' by a system of early
release. G overnors' aw ard s delay consideration of early release.
ju stice or fairness.25 M any o f these less seriou s charges w ill be w ithin the
d efinition o f a 'crim inal charge' as defined by A rticle 6 E C H R and 'n atu ral
ju stice' at com m on law w ill not necessarily provide the full set o f entitlem en ts
requ ired to m eet A rticle 6. N atural ju stice does not, for exam ple, grant a right
to legal representation befo re a go v ern o r's hearing.26 T h e C ou rt o f H um an
R ights has held that, ju dicial review notw ithstand ing, w here, in effect, a
gov ernor is d eterm ining a 'crim inal ch arg e', as understood in C onvention
term s, A rticle 6 protection ap p lies.27 A system providing A rticle 6 rights to
prisoners b ein g d ealt w ith for d isciplinary offences w hich are also 'crim inal
charg es' w ill need to be developed.
9.6 Treatment
In the past tw enty years seriou s problem s have arisen regarding the treatm ent
regim e and the con ditions un der w hich prisoners serve their sentences. Issues
such as overcrow ding, racism , the suicid e rate, strip search in g, m edical
facilities, facilities for disabled p risoners, lim itations on edu cational facilities,
a negative, d em oralising cu lture and o ppressive actions by prison officers have
been noted by m an y inclu d ing those w ith official rep orting responsibilities.
These inclu d e successiv e C h ief Insp ectors o f P risons w ho have statu tory duties
to report to the H om e S ecretary on treatm en t and con ditions, the U nited
N ations H um an Rights C om m ittee w hich has expressed seriou s con cern s2” and
the C om m ittee ad m inistering the E uropean C on vention on the P reven tion of
Torture and Inhu m an or D egrading T reatm en t or P unishm ent w hich m akes
regular visits, resultin g in reports, to signatory cou ntries and w hich, in a series
o f visits to the U nited K ingdom , has expressed m ajor con cern s.29
Th e scope and seriou sn ess o f the C o m m ittee's con cern s has dim inished
som ew hat ov er the decade; sim ilarly the Prison Serv ice has respond ed to som e
o f the C h ief In sp ecto r's criticism s. The claim at the beginn ing o f the tw enty-first
century is o f con tin u ing im p rovem en t in the physical con ditions u n d er w hich
an increasing nu m ber o f prisoners serve their sen tences and in the d ignity they
are accord ed. O v ercrow d ing rem ains the central p roblem 30 from w hich others
flow , b u t this is u n likely to go aw ay w hile politicians, probably w ith popular
support, continue to encourage the use o f prison punishm ent.
The p roblem is that there are few , if any, legally bind in g standards for
prison conditions. T here are none in the P rison Rules; A rticle 10 IC C PR, as
25 Leech v D eputy G overn or o f Parkhurst P rison/Prevot v D eputy G overn or o f Long Lartin Prison [1988]
1 AC 533. The case followed R v Board o f V isitors o f H u ll Prison ex parte St G erm ain an d others
[1979] 1 QB 425 w hich held that the decisions of Boards of Visitors w ere subject to judicial
review and rejected the idea that there w ere relevant differences betw een Boards of Visitors and
governors on the m atter.
26 R v Secretary o f State fo r the H om e D epartm ent ex parte T arrant [1985] 1 All ER 799. (Boards of
Visitors had a discretion to allow representation in certain circum stances; these principles
would also apply to governors.)
27 Ezeh v United Kingdom (2002) Ap. 3 9 6 6 5 /9 8 ; The Tim es 30 July.
28 Klug, F., Starm er, K. and W eir, S. (1996) The Three Pillars o f Liberty. London: R outledge, p. 307.
29 For report of 1994 visit see: w w w .cp t.c o e .in t/e n /re p o rts; for 1997 see: w w w .cp t.c o e .in t/e n /
sta te s /g b r /h tm . A further visit is planned for 2001.
30 Reports by Her M ajesty's Chief Inspector of Prisons.
m entioned above, has som e express requ irem ents b u t these cannot be
expressly enforced as legal entitlem en ts throu gh the courts. T here are the
European P rison R u les 1987 w hich do provide detailed m inim u m standards
but, again, thou gh they m ay be standards for ad verse com m ent, they are not
incorporated into or expressly furthered through U nited K ingd om law . There
is reason to think that in som e respects U nited K ingdom prison con ditions fall
short o f these m inim um stand ard s.31
9 .6 .1 Convention rights
The H um an R ights A ct 1998 m eans that the C on vention rights are now directly
enforceable against the H om e D epartm ent and the P rison Service. A rticle 3
bans 'inhu m an or d egrad in g treatm ent or pu nishm ent' but, until recently, has
not required particularly high stand ard s.32 The court requ ires a d egree of
hu m iliation o r d ebasem ent w hich is greater than the usual level o f hu m iliation
inherent in p u nishm ent.33 Solitary confinem ent or other treatm ent regim es
w hich are im posed for reasons such as secu rity or good ord er and d iscipline
are un likely, w ithout m ore, to violate A rticle 3.M The Strasbou rg C ou rt is
beginn ing to change its position and find v iolations o f A rticle 3 in the context
o f m entally or physically disabled prisoners and, perhaps, in resp ect of
seriou sly bad treatm en t in overcrow ded con ditions.35 Such cases do not
requ ire the ap p lican t to prove that the state has acted in bad faith. A rticle 8
includes a right to develop relation ships w ith others. H ow ever, A rticle 8(2)
w ill usually ju stify the use of seg regation regim es for proper pu rposes and not
requ ire the transfer o f prisoners to a prison nearer hom e.36 U nd er A rticle 2, the
Right to Life, the state is required to take p ositive m easures to protect the lives
o f prisoners and not, for exam ple, to p lace persons into a treatm ent regim e in
w hich death is m ore likely than if other actions w ere taken;37 also, any deaths
in custod y need to be p roperly investigated. A rticle 2 appears to im p ose a
higher standard than the traditional 'reaso n able care' ap proach found in
U nited K ingd om law . H ow ever, the cou rts seem relu ctant to use the A rticle to
lay d ow n absolu te standards on m atters such as w hether inquiries should be
in public or the d egree o f the involvem ent o f relatives.38
9 .6 .2 Public law
It is hard for prisoners to challenge authorised d ecisions by the P rison Service
as to their treatm ent and conditions. 'Intolerable con d itions' can be challenged
31 Livingstone and O w en, op. cit., 3 .56-3.58.

52 For exam ple, D elazarus v UK (1993) Ap. 1 7 5 2 5 /9 0 .
33 Tyrer v U nited Kingdom (19 7 9 -8 0 ) 2 EHRR 1
34 For a discussion of Article 3 in relation to prison conditions and exam ples of case law see
Starm er, K. (1999) European H um an Rights Law . London: LAG, 1 6 .8 -1 6 .3 6 ; Livingstone and
O w en, op. cit., 5 .6 9 -5.73.
35 See Foster, S. (2001) 'Inhum an and D egrading Prison C onditions', NL], 1222, and the cases cited
therein.
37 S im on-H erold v A ustria (1971) Ap. 4 3 4 0 /6 9 .
38 R (A m in) v S ecretary o f State fo r the H om e D epartm ent [2002] EW C A Civ 390; [2002] 4 All ER 336.
throu gh ju d icial rev iew 31' thou gh it is not clear w hat this standard is and
w hether it is m ore d em and ing than C on vention standards. N either A rticle 3
iior A rticle 8 is likely to ju stify a judicial challenge to good faith policy-based
d ecisions, for exam ple about the d ispersal o f a prisoner,40 or auth orised actions
such as intim ate bo d ily search es.41 In any case the cou rts, in this context, could
only offer a pu blic law rem ed y w hich, although it could stop the action and
declare it u nlaw fu l, w ill not, w ithout m ore, provide com pensation for harm
suffered by the prisoner.
The Bill o f R ights 1688 provides an entitlem en t not to suffer 'cruel and
un usual p u nishm ent' and it has been held that this p rinciple lim its w hat can
be done un der the P rison A ct 1952 and the P rison R u le s 42 A pu nishm ent needs
to be both cruel and unusual.43 D etaining a p risoner of sound m ind w ith
m entally d isturbed patients m ight be an exam ple.
9 .6 .3 Private law actions

Prisoners have pursued a range of private law rem ed ies in the hope o f m ore
effective legal d efinition and protection o f their rights and o f better, com p en
satory and financial outcom es. In R v D eputy G overnor o f P arkhurst and others
ex parte H ague/W eldon v H om e Office,*4 H ague sou gh t d am ages in respect o f the
d ep uty g o v ern o r's d ecision to segregate him u n d er Rule 43(1) and W eldon
sou gh t d am ages in resp ect o f allegations he m ad e o f bru tality by prison
officers. Thou gh the H ouse o f L ords accepted that a pu blic law rem ed y w as
av ailable in respect o f intolerable prison con ditions, a private law action for
d am ages against the prison authorities w as m u ch harder to establish. It w as
necessary to establish a breach o f statu tory d uty and the court held that
nothing in eith er the Prison A ct 1952 nor the Prison Rules w as intend ed by
P arliam ent to give p risoners a right of action for dam ages. N or w ould the
H ouse o f Lords sanction an action for false im p risonm ent in respect of
authorised treatm en t o utsid e the Rules. P risoners had resid ual civil rights but,
once law fully im prisoned, they had no resid ual physical freed om w hich the
prison auth orities, so long as they acted in w ays authorised by the Rules, could
violate.45 U nauthorised or un law fu l action, such as the kid napping o f a
p risoner by a fellow inm ate, or, 'arg u ab ly ', the locking o f a prisoner in his cell
by officers taking ind ustrial action4*’ could ground an action for false
im prisonm ent. 'Intolerable' con ditions w hich caused d am age to the prisoner,
as w ell as ground ing a public law action, m ight also be the basis for an action
B ( i v D eputy G overn or o f Parkhurst Prison an d others ex parte H ague/W eldon v H om e O ffice [1992] 1
AC 58. The court took it to be 'sensible' that the H om e Office did not challenge the court's
judicial review jurisdiction to hear com plaints relating to treatm ent of prisoners under the
Prison Rules.
40 T ogher v U nited Kingdom 11998] EH RLR 627.
41 For exam ple, M cF eely v U nited Kingdom (1981) 3 EH RR 161.
42 R v S ecretary o f State for the H om e D epartm ent ex parte H erbage (No. 2) [1987] 1 QB 1077.
43 W illiam s v H om e O ffice (No. 2) [1981] 1 All ER 1211.
44 [1992] 1 AC 58.
45 Actions by prison authorities which keep a prisoner in detention longer than the law perm its
can be the basis for false im prisonm ent: R v G overn or o f B rockhill Prison, ex parte Evan (No. 2)
[2000] 4 All ER 15.
46 Toum ia v Evans (1999) The Tim es, April 1.
in negligence.47 A ction by a prison officer or official w hich is kn ow n to be

unlaw fu l or w hich is intend ed, m aliciously, to harm the prisoner, could
ground for an action for m isfeasance in public office.48
9.7 Other civil and human rights
O ther issues abou t the resid ual civil rights of prisoners can be briefly
m entioned. T hese are likely to expand as the im pact o f the H um an Rights A ct
1998 is felt.
L ike all patients, prisoners are ow ed a d uty o f care by m edical practitioners.
A t one tim e it w as accepted that the standard o f care o f prisoners could be
low er in recognition not only o f resources issues but also o f the distinct
pu rposes o f the prison service.49 R ecen t cases show a change in attitu d e so that
in Brooks v H om e Office,50 for exam ple, it w as held that a p regnant prisoner w as
entitled to the sam e standard o f o bstetric care as if she had been at liberty. It
rem ains u n clear w hether such a view is required u n d er A rticle 3 EC H R w here
the case law is still evolving.51
P risoners have the right to be m arried in p rison.52 A claim , involving A rticle
8, to found a fam ily throu gh artificial insem in ation has been rejected .53
Prisoners have rights o f religiou s freed om though, un der A rticle 9 EC H R, the
state m ay im pose reasonable restrictions over bo th the range o f services and
the kinds o f activities that m u st be perm itted to a prisoner m anifesting
religiou s belief. P risoners m ay have som e rights o f association un der A rticle
11 such as the right not to be prevented from joining a trade u n ion by an
em p loyer although there is no d uty on the prison auth orities to prom ote trade
union m em bersh ip .54
9.7.1 Freedom of expression

U nder the C on vention, prisoners have rights to freed om o f expression subject
to necessary and proportional restrictions un der A rticle 10(2). T herefore
absolu te restrictions on, for exam ple, access to w riting m aterials and new s
papers, and a com plete ban on a p risoner sen d ing out m aterials to publishers,
47 R v' D eputy G overn or o f Parkhurst Prison an d others ex parte H ague/W eldon v H om e O ffice [1992] 1
AC 58.
48 For recent developm ents in this tort see T hree Rivers D C v B ank o f En gland [2000] 3 All ER 1,
H L; for alleged m alice by a police officer see Elliott v C h ief C on stable o f W iltshire (1996) The Tim es
5 Decem ber. The tort w as said to be 'arguable' in Toum ia v Evans (1999) TLR 269), mentioned
above.
49 Knight an d others v H om e Office an d an other [1990] 3 All ER 237 QBD.
50 [1999] 2 FLR 33.
51 Claim s of inadequate m edical treatm ent in prisons seem to be w ithin the dom ain of Article 3
ECH R but m ust still be sufficiently serious to be a breach: Jastrzebski v Poland, C om m ission R eport,
19 M ay 1998. See also P rice v United Kingdom (2002) 34 EH RR 53 and Keenan v U nited Kingdom
(2001) 33 EH RR 38.
52 Section 1 of the M arriage A ct 1983 (there is an exception for Q uaker and Jew ish m arriages).
53 R (M ellor) v S ecretary o f State for the H om e D epartm ent [2001] EW CA Civ 472, [2002] QB 13.
54 X v United Kingdom (1981) 24 D&R 57 - the prisoner w as on a pre-release em ploym ent schem e;
if he lost his job by anti-trade union discrim ination by his em ployer, he w ould be returned to
prison.
w ould violate A rticle 10. The righ t o f prison auth orities to scru tin ise w ritings
and im pose restrictions on the receipt o f books are, how ever, m ore likely to be
capable o f ju stification un der A rticle 10(2).55 Prisoners have rights, under
A rticle 8, to corresp ond w ith journalists, subject to lim ited rights o f the
auth orities to check the bona fides of such corresp on d en ce and restrictions on
direct con tact w ith the m edia, such as appearan ces on phone-in program m es,
can be com p atible w ith A rticle 10(2).56 T h e righ t to pu rsu e alleg ations o f a
m iscarriage o f ju stice by con tacting jou rnalists is p rotected .57
9.7.2 Political rights and the right to vote

C on victed prisoners are not entitled to vote. Section 3 o f the R epresentation of
the P eople A ct 1983, as am ended by the R epresentation o f the P eople A ct 2000,
disenfran chises all convicted prisoners and those convicted o f crim inal
offences w ho are detained in m ental hospitals. R em and prisoners m ay vote
and the 2000 A ct facilitates this b y allow ing prisoners to register as resid ent in
their prison or to d eclare a 'local con nection' and register in respect of the
place they w ould be living w ere they not detained. T h ey can then obtain a
postal vote u n d er the m ore gen erous ru les in the 2000 Act.
D enial o f the right to vote m igh t appear to be incon sisten t w ith the basic
principle that prisoners retain their civil and fu n dam ental rights other than
those n ecessarily im plied by the d ep rivation o f liberty. T here is an issue
w hether the d en ial o f votes to prisoners is com patible w ith A rticle 3 o f the First
Protocol ECH R. H ow ever, as d iscussed in C h ap ter 13, this right is subject to
reasonable, n on-arbitrary restrictions and restrictions on prisoners voting have
been con sisten tly up held b y the C om m ission . Early cases concerned N azi
sym p athisers w ho had m isused their political rights d uring the N azi era5s or
w ere decided on the ground s that d en ying the vote to prisoners w ould not
com p rom ise the ou tcom e o f election s and thus the 'free expression o f the
opinion o f the p eo p le'59 w as not underm ined. A rgu ably these cases have
w eaker auth ority in respect o f ord inary, non-p olitical prisoners and should
now be understood in the light o f the C o u rt's recognition that A rticle 3
gu arantees ind ividu al rights to vote and stand .60 N everth eless an ad m in istra
tive refusal to allow a prisoner to vote w as recently upheld in H olland v Ireland
(1998)1’1 and it m ay be hard to persuad e a cou rt to take a different view . In R
(Pearson and another) v Secretary o f State fo r the H om e D epartm ent62 the D ivisional
C ou rt has held that section 3 o f the R epresentation o f the P eople A ct 1983 is
not incom patible w ith A rticle 3 o f the First Protocol.63
55 T v U nited K ingdom (1986) 49 D&R 5.

56 Ram ber v U nited Kingdom [19981 EHRLR 110.
57 R v Secretary o f State fo r the H om e D epartm ent ex parte S im m s an d an oth er [1999] 3 All ER 400, HL.
58 For exam ple X v N etherlan ds Ap. 6 5 7 3 /7 4 ; X v Belgium 18 D&R 250.
59 X v F R C Ap. 2 7 2 8 /6 6 25 CofD 38; X v FR C Ap. 4 9 8 4 /7 1 43 CofD 28. In X v United K ingdom
(1975) 3 D&R 165 a prisoner's claim to vote in a referendum w as denied because A rticle 3 of
the First Protocol ECH R does not cover referendum votes.
60 M atliieu-M ohin an d Clerfayt v Belgium (1987) 10 EHRR 1.
61 H olland v Irelan d (1998) Ap. 2 4 8 2 7 / 9 4 ,1 4 April.
62 [2001] EW H C A dm in 239 [2001] H RLR 39.
63 'Prisoners and the Right to V ote', N l.f, 20 April 2001.
9.8 Life sentences
In the U nited K ingd om a life sen tence is m an datory for those convicted of
m u rd er and is w ithin the d iscretion o f ju dges for som e other seriou s offences.64
T he judge m ay set 'the tariff', the period w hich m u st be served to m eet the
requ irem ents o f p u nishm ent and d eterrence. The actual release date w ill
depend up on a later ju d gm ent, not m ad e by the ju dge, about w hether the
p rison er's release w ould end ang er or, con troversially, be u n accep table to the
public. A rticle 5 E C H R requ ires that d eten tion in prison be 'in accord ance w ith
a procedu re prescribed by law ' and this m eans that the sen tence ought to be
d eterm ined by ind ep en den t ju dicial bodies acting un der fair procedures.
T he position o f d iscretionary lifers w as held to be incom patible w ith the
C on vention for this reason in W eeks v U nited K ingdom .65 T h e law w as changed
so that the release date for d iscretionary lifers is d eterm ined by the Parole
Board, w hich is ind ep en d en t o f the H om e Secretary and acts on judicial
principles.
M and atory lifers rem ain subject to the d iscretion o f the H om e S ecretary w ho
'm ay ' release a prisoner on the recom m en dation o f the Parole Board. Release
is on licence subject to recall if the con ditions o f the licence are broken (by
com m ittin g another seriou s crim e, for exam ple). T h e obvious p roblem is that
p olitical and electoral con sid erations m igh t influence the H om e Secretary 's
d ecisions. T he H om e S ecretary is un der no o bligation to release and, in the
case o f the m ost heinous crim es, m ay im pose a 'w h ole life' tariff (such a case
iieed s to be kept un der rev iew 66). M and atory life sen tence prisoners have som e
rights such as to m ake w ritten representation s, to know the tariff period set by
the trial ju dge and Lord C h ief Ju stice and to be given reasons if the H om e
Secretary d ep arts from that period .67 T h e system rem ains open to challenge in
C on vention term s. In Stafford v U nited Kingdom (2002),68 for exam ple, the C ou rt
o f H um an Rights found that the system o f recall violated A rticle 5 EC H R and
the con cept o f the life sentence, though clearly authorised by legislation,69 is
u n d er threat. P risoners w ho w ere child ren w hen they com m itted m u rd er are
d etained at H er M ajesty 's Pleasure. The H om e S ecretary has delegated his
d ecision as to their release to the Lord C h ief Ju stice w ho acts ind ep en den tly
o f the political pressu res that can beset a m em ber o f the executive.
64 See Livingstone and O w en, op. cit., chapters 13 and 14 for a full account of the law and policy
relating to the release of those serving m andatory and discretionary life sentences o r w ho have
been detained at Her M ajesty's Pleasure.
65 (1987) 10 EH RR 293.
66 R v Secretary o f State fo r the H om e D epartm ent ex parte H indley [1999] 2 W LR 1253. A lifelong
sentence for a child offender m ay violate Article 3 ECH R (Singh v United K ingdom (1996) 22
EH RR 1), though is less likely to if the offender w as o ver 18: Ryan v U nited K ingdom (1998) Ap.
_ 3 2 8 7 5 /9 6 .
67 R v H om e S ecretary ex parte D oody [1994] 1 AC 531.
68 Ap. 4 6 2 9 5 /9 9 (2002) 152 NLJ 880.
69 R (A nderson) v Secretary o f State fo r the H om e D epartm ent [2001] E W C A C iv 1698, [2002] 2 W LR
1143.
Part III
Freedom of expression and
the media
10
Freedom of expression
10.1 Introduction
Freedom of expression is a recognised general principle of English law 1 and

its advancem ent or protection can explain particular decisions or general
developm ents in the law. It can affect the way in w hich the com m on law
develops, as with defam ation;2 in interpreting statutes, the courts presum e that
Parliam ent did not intend to restrict freedom of expression m ore than it
expressly said so, and, through judicial review, it is a principle by w hich the
courts lim it the exercise of discretion by officials.3 The Fluman Rights A ct 1998
turns judicial discretion into a duty. Freedom of expression, in A rticle 10
ECH R, is one of the scheduled Convention rights and courts must interpret
A cts of Parliam ent, as far as possible, to achieve com patibility w ith it and must
provide a rem edy against a public authority which violates its terms. Freedom
of expression is also w idely found in international law such as the Interna
tional Covenant on Civil and Political Rights. As well as being binding in
international law, such provisions are part of the underlying influences on
English courts as they develop and apply the law.
10.2 Freedom of expression as a value1
10.2.1 Autonomy
The concept of individual autonom y provides the most generally applicable
defence of freedom of expression. A utonom ous persons are ends in them selves
existing for their own good and not m erely as instrum ents for the ends and
happiness of others. A utonom y requires freedom of expression because
individuals are entitled to choose for them selves their goals, values and their
1 Boyle, A. (1983) 'Freedom of expression as a public interest in English law ', Public Law, 574. For
a recent instance see R v Shayler [2002] UKHL 11; [2002] 2 All ER 477 HL, for cases justified by
the 'dem ocratic society' defence of free speech.
2 For exam ple, D erbyshire County Council v Times N ew spapers [1993] AC 534. The issue is discussed
in Chapter 15.
3 In R v Secretary o f State fo r the H om e Department ex parte Sim m s and another [1999] 3 W LR 328 HL,
for exam ple, the House of Lords denied, on freedom of expression grounds, the right of the
Prison Service to restrict access to journalists by prisoners who were pursuing a case of wrongful
conviction.
4 Schauer, F. (1982) Freedom o f Speech: A Philosophical Inquiry. Cambridge: Cambridge University
Press, Part 1; Barendt, E. (1987) Freedom o f Speech. Oxford: Clarendon Press, chapter 1.
reasons for acting. The free expression of others is necessary to allow the range
of possibilities to be available for persons to m ake their choices. It is not open
to the state to restrict this choice.5
Such an argum ent justifies freedom of expression from the point of view of
the hearer. A utonom y also justifies expression from the point of view of the
speaker since the expression of views and opinions is an im portant way of
asserting individual and social being. The sam e can be said of expressive acts
which have no other purpose than delight or fun.6 A problem with this
justification is that the needs of an autonom ous person extend well beyond
expression. Other things such as food, warm th, housing, education and so on
are necessary incidents of autonom y. A utonom y is not, therefore, a good
'speaker's interest' defence of freedom of expression. It cannot show why
expression should be singled out as being of particular value, greater than
other things, and needing the special protection of the law.
10.2.2 Democracy
If self-governm ent, governm ent based on consent and at least m inim al form s
of participation, is valued, then so too should be freedom o f expression.7 In a
'dem ocratic' society the people m ust be able to know the argum ents of those
seeking power, be able to challenge those in pow er and be able to seek power
them selves. This im plies freedom of expression. It also gives reasons for
valuing freedom of expression highly, since self-governm ent m eans little if
those currently in pow er can prevent the expression of contrary opinions and
prejudge and lim it the range of reasons and purposes relating to the com m on
good that the people m ay have. Free expression justified by dem ocracy is
about m aintaining the flow of inform ation and argum ent on which the people
can m ake their choices for the future developm ent of the com m on good of
society. It is a particular form of the hearers' interests aspect of the argum ent
from autonom y. It is also a speakers' interests argum ent since free expression
is a necessary incident in persons' rights o f political participation.
The argum ent from dem ocracy to free expression is open to objections. It
m ust, for exam ple, be part of a general set of argum ents in favour of dem ocracy
itself rather than show ing the particular w orth of free expression. Otherw ise,
peculiarly, it w ould have no w eight in a non-dem ocratic society w here the
populace would have no grounds for arguing for a right to free expression.
Secondly, it appears to be incom patible with m ajority rule. If dem ocracy
m eans governm ent based on the views of the m ajority, the m ajority should be
able to hinder speech it finds offensive or otherw ise unpalatable. The answer,
of course, is that all the different conceptions of dem ocracy, including
m ajoritiarianism , require lim its to w hat governm ents can do in the nam e of the
people, and these lim its m ust involve respect for free expression as an
underlying principle. Different conceptions of dem ocracy will provide different
5 For exam ple, Scanlon, T. (1972) 'A Theory of Freedom of Expression', in R. Dworkin (1977) The
Philosophy o f Law. Oxford: Oxford University Press.
6 For exam ple, Feldman, D. (2002) Civil Liberties and H uman Rights in England and Wales, 2nd edn.
Oxford: Oxford University Press.
7 Meiklejohn, A. (1961) 'The First Am endment is an absolute', Suprem e Court Review, 245.
Freedom o f expression 173
explanations of w hy freedom of expression is valuable and w hat its core sense

is. A m ajoritarian approach will require free speech in order that the view s of
the m ajority are regularly identified; a liberal approach will value freedom of
expression as one of a parcel of fundam ental rights necessary for just, lim ited
governm ent. U tilitarians, w ho justify governm ent on the sole criteria that
policies will be chosen w hich m axim ise aggregate happiness in society, must
support equal rights of voting and expression if, in the calculation of aggregate
happiness, each person's preference is to count the sam e as anybody else's.
Participative conceptions of dem ocracy support social institutions in so far as
they enable self-governm ent through providing m eans for people to partici
pate in decision making. M ore quietist, representative theories see dem ocracy
as satisfied by regular elections in w hich political elites com pete for votes but
are otherw ise free to govern as they see best. Participative and quietist views
w ill justify and explain different view s of the purpose and the scope of the
kinds of expressive acts w hich an overriding right to free expression protects.8
10.2.3 Truth
The truth, w hatever it is, is an absolute. The com m on good, the m ajority's will,
the will of the pow erful, tradition, authority and so on are not sufficient
reasons to justify restricting the expression of the truth. O nly freedom of
expression will allow orthodoxies to be challenged, hypotheses to be asserted
and tested and provisional truths, accepted until falsified, to emerge. For J.S.
M ill, w ith w hom this argum ent is associated," freedom of speech is the
condition of a robust, dynam ic and progressive society in which individuals
can flourish. Societies in which religious, moral, historical and scientific
orthodoxies cannot be challenged are likely to be despotic and subject to
decline.
The truth of the argum ent from truth is open to challenge. The point o f the
argum ent is to deny that the truth derives from authority (e.g. from the Bible)
or is expressed in orthodoxy. The alternative is that the truth em erges from a
'm arketplace of ideas' through the processes of argum ent and doubt. W e have
no reason to think that the truth em erges in this w ay than in any other. The
argum ent locates the truth in those ideas and propositions w hich survive, for
the time being, in the m arketplace, yet the truth of that location is itself a mere
assertion.
10.3 Free expression problems
10.3.1 Balancing
A rgum ents about the value of free expression are, in a legal and constitutional
context, about the justification for a general background right to freedom of
expression. There are a num ber o f characteristic problem s about adjudication
8 See Chapter 1.
9 Mill, J.S. (1968) 'On Liberty', in Mill, John Stuart, Utilitarianism, Liberty and Representative
Government. London: Dent. Everym an, especially chapter 2.
of free expression issues w ith w hich the courts have to deal. The extent to
w hich the different justifications for free expression assist the legal solution to
these problem s is debatable. A judicial solutioii to a free speech problem m ay
presuppose a particular view of w hy free speech should be asserted as a
fundam ental value.
Typically the courts m ust w eigh freedom of expression against other
interests or claims. The latter m ay be either claim s about the needs of the
com m on good or claim s that free expression m ust be balanced against som e
other right. The law of contem pt of cou rt10 exem plifies both. The right to
express oneself on m atters that are before the courts is restricted both by the
com m on good (protecting the integrity of the legal system ) and by the rights
of others (individual's rights to a fair trial). Sim ilarly, one of the strongest
dilem m as involving free expression is how to balance the right of expression
with another person's right to privacy. The answ ers to these 'balancing'
problem s can be politically controversial and reflect different conceptions of
the value and point of free speech. Liberals, who value individual rights and
freedom s highly, will com e to different answ ers from, say, com m unitarians for
whom a m eaningful life is dependent on being part of a com m unity and who
may, therefore, give greater w eight than liberals to the protection of com m on
interests and identities from hostile form s of expression; Conservatives, who
value order and continuity in social life, m ay reach different conclusions as to
what speech is acceptable from radicals; and so on. The courts, of course, will
claim to be neutral on such m atters and m erely be giving effect to a positive
right to free expression adopted by the com m unity.
10.3.2 The scope of free expression

Constitutional protection m ay refer to 'speech' or 'expression'. 'Freedom of
expression' includes m ore than words. It includes conduct, such as taking part
in political dem onstrations, and it can extend to the w earing of clothes and to
expenditures of m oney on persuasion, it will norm ally include the visual arts
such as painting, sculpture and film. A ll of these can be w ays of expressing a
truth or a political view and neither the argum ent from 'dem ocracy' or from
'truth' will justify confining constitutional protection to words. The argum ent
from 'autonom y' suggests an even w ider scope to include any self-expressive
conduct such as the visible consum ption of goods. It is highly doubtful that
such expressive activities need the protection of a strong right.
10.3.3 Hearers' or speakers' interests?

The question m ay arise w hether the central point of the legal or constitutional
protection of free expression is to protect the rights of the persons expressing
them selves or the rights of the hearers or w itnesses. Issues such as w hether
com m ercial organisations have free speech rights in respect of advertising, for
exam ple, can turn on the point. The argum ents from dem ocracy and from
truth are focused on the benefit to the hearer or w itness and so are tolerant of
10 See Chapter 12.

com m ercial speech w hich m ay com m u nicate inform ation on w hich choices can
be based. Justification s for free exp ression based on self-expression have few er
reasons to treat com m ercial expression like that o f individuals.
10.3.4 Expression and harm

The m ost p ressing and controversial p roblem s relate to the balance betw een the
righ t to freed om o f expression and a ran ge o f com m u nity or society-based
claim s that certain general interests are too significant to be abused by speech
and other expressive acts. M ost w ould agree that speech w hich causes harm to
others, by a direct and p roxim ate incitem en t to violence or other h arm ful action,
for exam ple, can be suppressed . Sim ilarly the su p p ression o f noise nu isance
m ay not be con troversial so long as it is not m erely an excuse for censorship.
'H arm ' is a concept o f uncertain proportions and a narrow con ception is
necessary to p revent it bein g used to ju stify w idespread restriction on
expression. A ny alleged 'h arm ' need s to be proxim ate, in term s o f tim e, and
direct, in term s o f causation, to the harm s they are alleged to brin g about. The
ad vocacy o f un law fu l action, for exam ple, should be tolerated at least in so far
as it aim s to prod uce reasons for d oing the, perhaps harm ful, un law fu l action.
It is for others to d ecid e w hether to accep t the reasons given and to act; the
ad vocacy is thus too rem ote from the harm fo r prosecution.
The 'h arm ' alleged against speech should b e lim ited to harm to the interests
o f those harm ed in the sense that the expressiv e act prevents those harm ed
from living their life as they w ill. T his is an im portan t point becau se it
w ithd raw s ju stification from the suppression o f speech or other expression
m erely b ecau se others find w hat is said or done to be offensive or d isgu sting
or that the state claim s the righ t to enforce a p articular conception o f m orality.
It is a point that com es up in a nu m ber o f free expression contexts such as
racist speech, b lasph em y, obscenity and law s restricting the full range of
consensu al sexual acts betw een adults.
10.3.5 Free expression and private interests

A general problem about freedom o f expression is w hether it is confined to
protection from pu b lic auth orities or w hether it also extend s to the exercise of
private pow er. T h e fact is that the restrictions on freed om o f expression m ost
likely to have an im pact on o rd in ary lives are those restraints that m igh t be
exerted by private em ployers through, for exam ple, the contract o f em p loy
m ent. The extent to w hich such restrictions can be tested against the com m on
law 's recognition o f freed om o f expression as a fu n dam ental principle is
unclear. The 'h orizontal' effects o f the H um an Rights A ct 1998 m ay m ean that
sp eech-restricting clau ses in con tracts w ill be ju dged against A rticle 10 EC H R
requirem ents.
10.3.6 Free expression and a free press

The general argum ents for freedom o f expression m ay also b e applied to
ju stify a free m edia. T h e p rinciple argum en ts for a free m edia are discussed in
Chapter 11. It is just w orth noting that the general argum ents for free
expression do not necessarily justify a free media. In particular, as the courts
have noted, the m edia exercise econom ic and social power and they have
com m ercial interests w hich m ay be relevant w hen evaluating the public
interest in a publication.
10.3.7 Free expression and positive duties

M ost people have no effective m eans of exercising their 'right' to freedom of
expression, especially in respect o f speech acts aim ed at influencing others.
There is a general argum ent, som etim es found from a 'left' political stand
point, w hich asserts a positive duty on the state to enhance the access persons
have to the m edia by, for exam ple, distributing broadcast licences to reflect the
diversity of political opinion or allow ing a right of reply to those who oppose
a position adopted in a broadcast or an article. There is little general support
for this view found in the general law.
10.4 Freedom of expression and English law
The background right to freedom of expression is raised in a num ber of legal

contexts. D ecisions m ade in these areas indicate the strength and the lim its to
the recognition of freedom of expression in English law.
10.4.1 Prior restraint

Injunctions
Legal restrictions on freedom of expression can be either aim ed at preventing
the expression in the first place or at visiting punitive or redressive
consequences on the person responsible after the event. The general policy of
the law , in defam ation for exam ple, is against prior restraint. The values of
freedom of expression are better served if the publication goes ahead even if
it is then the subject o f a legal rem edy.
Rem edies of prior restraint are available to protect an interest w hich would
be irreversibly dam aged if publication went ahead. Injunctions to prevent
publication can be issued, if the public interest requires, to protect relation
ships of confidentiality such as betw een the governm ent and its officials on
national security m atters,11 to protect legal proceedings that are to decide on
confidentiality and, perhaps, on sim ple privacy,12 to protect a person's m edical
history or a com pany's com m ercial secrets, etc. The protection of rights to a
fair trial and the integrity of the judicial process can also ground a prior
restraint on the basis of the principles of a contem pt of court.13
M uch of the law on these m atters has involved tem porary injunctions which
prevent publication until the final injunction is decided. A tem porary
" See Chapter 16.

12 See Douglas v H ello! [2001] 2 All ER 289, discussed in Chapter 11. Doubt has been cast on the
point by a differently constituted Court of Appeal in A v B Pic 12002] 2 All ER 545.
13 See Chapter 12.
injunction is not decided on the issue of the applicant's rights but on the
degree of harm that either party will suffer if they have to w ait, until after full
trial, to do w hat they have a legal right to do. W here the issue at full trial is
to be confidentiality, a tem porary injunction w ill norm ally be issued. The
problem is that a tem porary injunction is often sufficient to m ake it im practical
for publication to take place at all. Section 12(3) of the H um an Rights Act 1998
now requires that the likelihood of w inning at full trial, and hence the issues
of right on which that would be decided, m ust be taken into account by the
courts issuing tem porary injunctions.14
Censorship and regulation

Censorship involves the subm itting of intended publications to an official for
approval. It has little formal existence in the United Kingdom and has been
abolished for the theatre though it is retained in a limited way in respect of
film since cinem as need to be licensed by local authorities and local authorities
require (a m atter of practice not law) that films be classified by a voluntary
body, the British Board of Film C lassification.15
Regulation of speech, on the other hand, is found as the principal form of
control of the content of broadcasting in the U nited Kingdom . A regulatory
body, under statute, lays dow n guidance in the form a code. The broadcasting
organisations have prim ary responsibility to ensure the quality of the
program m es and they m ust meet the statutory and regulatory standards laid
down by the regulator.,h The regulator deals with significant violations of the
code after the event.
Seizure
Prior restraint can be effected through pow ers of seizure. Police and Custom s
officials have pow ers to seize indecent and obscene publications in order to
prevent their distribution in the United K ingdom .1'
10.4.2 Civil liability for publication

The law will grant a civil rem edy, usually dam ages, in respect o f a publication
which is defam atory or involves a breach of legally recognised confidence and,
perhaps, the invasion of privacy.18
10.4.3 Criminal liability for publication

The crim inal law is used to punish certain form s o f speech and expression.
State punishm ent o f speech acts challenges the core instance of freedom of
expression and so the use of the crim inal law in such areas tends to be
controversial. Politically m otivated speech w hich incites violence against the
state or hate against certain social groups can involve offences such as sedition
14 See, further, Chapter 16.

15 See Chapter 22.
16 See Chapter 11.
17 See Chapter 22.
18 See Chapter 11 on the defamation of politicians and public bodies.
or incitem ent to racial hatred.19 Police discretion exercised over political

dem onstrations is lim ited by the need to recognise freedom of expression.20
The crim inal law is still available, in controversial circum stances, to protect
Christianity from blasphem ous abuse21 or to protect society from indecent or
obscene publications.22 Finally the crim inal law is used to uphold the authority
o f the judiciary and the fairness of trial through the law on contem pt of court.23
10.4.4 Absolute or qualified privilege

Som etim es the point of the law is to protect speech or other expression from
w hat would otherw ise be civil or crim inal liability. Expression thus protected
is 'privileged'.
A bsolute privilege is w here no form of legal liability, crim inal or civil, can
result from the expression and the w ords cannot be considered by a law court.
The prim ary exam ples are the absolute privilege enjoyed by M em bers of
Parliam ent in so far as they are participating in debates or involved in
'proceedings in Parliam ent', the privilege accorded to com m unications betw een
client and law yer and the words spoken by judges in their judicial capacity.
Q ualified privilege gives lim ited im m unity from an action for defam ation
w here the courts accept that there is a duty to publish. Qualified privilege is
lost if the court finds that the publication w as m otivated by malice. It applies
predom inantly to the m edia.24
10.4.5 Promotion of free expression

Rarely there is a legal duty to provide a positive entitlem ent and practical
opportunities to speak. This is confined to the right of election candidates to
address the electors or of political parties to broadcast.25
10.4.6 Limits to political expression by public bodies

Im partiality is seen as an im portant virtue in som e areas of social life. The
freedom of certain persons and organisations to prom ote political purposes is
restricted. The regulated broadcasting organisations, for exam ple, are not
allowed to editorialise and are required to exercise due im partiality.26 M any
civil servants, local governm ent officers and police officers are severely
restricted in their political actions and expressions. Publicly funded schools
m ust be im partial in the way they deal w ith politically controversial m atters.2'
Further and higher education institutions are under a different legal duty to
uphold the principles of freedom of speech.28
19 See Chapter 14.

20 See Chapter 17.
21 See Chapter 23.
22 See Chapter 22.
23 See Chapter 12.
24 See Chapter 11.
25 See Chapter 17.
26 See Chapter 11.
27 See Chapter 13.
10.5 The Human Rights Act 1998 and Article 10
A rticle 10 ECH R 'Freedom of expression' is a scheduled Convention right of

the H um an Rights Act 1998.29 A rticle 10(1) prescribes a fundam ental right to
freedom of expression. The term is broadly defined to include som e non-verbal
form s of expression including pictures and dram atic displays. Com m ercial,
artistic or pornographic30 expressions are w ithin its scope. Freedom of
expression generally is protected as are, specifically, the freedom s to hold
opinions and to receive and im part inform ation and ideas. A rticle 10(1) is
expressly concerned w ith interference by 'public authorities' and it does not,
therefore, bear directly on private interferences by em ployers, for exam ple.
Under A rticle 10 states m ay license m edia organisations, even with conditions
w hich restrict content such as political im partiality.31 A lthough there is a 'right
to receive . . . inform ation and ideas', the Court has not turned this into
positive duties on the states to disclose inform ation or to require media
organisations, for exam ple, to give rights of access to the public.32
Freedom of expression can be restricted in a m anner that is com patible with
A rticle 10(2). A rticle 10(2) recognises, uniquely am ong the Convention rights,
that the exercise of the freedom involves duties and responsibilities. This
understanding justifies lawful, necessary and proportionate restraints on
speech for a range of purposes listed in the paragraph.33 'N ational security'
and 'public safety' are relevant to the com patibility of the C onvention with,
for exam ple, official secrets law ;34 the 'prevention of disorder or crim e' can be
relevant to surveillance31 and public order law36 and 'protection o f health or
m orals' to the law on obscenity,37 for exam ple. 'Protecting the rights and
freedom s of others' has a wide potential effect. Such purposes are also found
in connection with the other A rticles; A rticle 10(2) also includes restrictions on
expression aimed at protecting the reputation of others, protecting inform ation
obtained in confidence and m aintaining the authority and im partiality of the
judiciary.38
A ny restrictions m ust have a proper basis in law and be 'necessary in a
dem ocratic society'. The test of necessity and proportionality is very im port
ant. By use of the doctrine of m argin of appreciation, the Court of H um an
Rights gives different degrees of protection to the different purposes of
expression. Political expression, broadly defined to include general m atters of
public interest, is given the highest European protection against a state's
restrictions; it is an essential incident in the Convention conception of a
dem ocratic society as open and tolerant. O nly the m ost pressing social
28 Section 47, Education Act (2) 1986.

29 Article 10 is given in full in Chapter 2.
30 See Chapter 22.
31 See Chapter 11.
32 See Chapter 15.
33 See Chapter 2 for a general discussion of these terms.
34 See Chapter 16.
35 See Chapter 7.
36 See Chapter 17.
37 See Chapter 22.
38 For a general discussion of Article 10 by the House of Lords, see R v Shnyler [20021 UKHL 11;
[20021 2 All ER 477 HL.
necessities can ju stify its restriction,39 though that m ay inclu de su p p ression of

racist speech.40 A rtistic and com m ercial sp eech are given relativ ely low er
degrees o f protection.
T hou gh fun dam ental and pervasive, the right to freed om o f expression is
capable of bein g derogated from u n d er the term s o f A rticle 15.
Section 12 o f the H um an R ights A ct 1998 requ ires the cou rts to give proper
w eight to freedom o f expression w hen granting rem ed ies inv olv ing freedom
o f expression. In p articu lar it requ ires cou rts to con sid er the likely final
ou tcom e o f a case before granting an interim injunction. T he section does not
give absolu te priority to freed om o f expression w hen w eighted against other
rights such as privacy41 and it m ay do no m ore than state w hat is already a
du ty on the cou rts un der the A ct.
39 See C hapter 14.

1,1 See C hapter 14.
4! Douglas v H ello! 12001] 2 All ER 289, discussed in C hapter 11.
11
The media
11.1 Introduction
'M ed ia' refers to the different m eans and d ifferent types o f organisation
throu gh w hich inform ation and ideas about the w orld are m ad e av ailable to
the public. The term inclu des pu blishers and d istributors o f books, m agazines,
journals and the d aily and w eekly national and local new spapers; it includes
the b ro ad castin g organisations, both pu blic and com m ercially ow ned, w ho
d eliv er their program m es by terrestrial m eans, or by cable or satellite. It also
inclu des those involved w ith theatre, film and video and, o f increasing
im portance, the providers o f inform ation and services on the Internet.
G en eralisations about the im pact of the m edia need to be m ade w ith great
caution. From the civil liberties perspective there are three principal areas of
concern. First: it is throu gh the m edia that m ost people are likely to obtain the
inform ation and ideas about the pu blic w orld, the w orld outsid e their direct
experience, on w hich their political un derstand ing, their intentions on voting
and other form s o f p olitical activ ity w ill be ground ed. This m ay occur d irectly
through the con tent o f program m es and stories, or less d irectly by m eans, for
exam ple, o f the form al p roperties o f the m edia (television em ph asises visual
experience) or through the hidden p resum ption s behind the selection and
prioritising o f m aterial. T he w hole range o f stories and program m es, not ju st
new s and d ocu m entaries, can affect ou r u n derstand ing o f the w orld in both
these d irect and ind irect w ays. T hese are m atters for m edia sociology and not
for a textbook on civil liberties. The natu re and extent o f m edia influence on
political u n derstand ing and b ehav iou r is con troversial and disputed. N ever
theless the m ed ia, esp ecially the press, television and the Internet, is believed
to be, actually or p otentially, o f great influence and for this reason, at least in
the case o f broad castin g, subject to regulation.
Second, is con cern abou t m edia intru sions into privacy. T ech nological
ad vances enables the m ed ia, esp ecially press, m agazines and television, to find
out and disclose personal and intim ate details about ind ividu als and this m ay
be incon sisten t w ith their fun dam ental auton om y and right to be left alone. O n
the other hand the protection of priv acy m ay be used to protect the pow erful
from proper investigation. T he tension betw een privacy and freed om of
expression is one o f the them es of legal regulation.
Third is the issue o f offensiveness. T h e portrayal, in particular, o f sexual and
violent scenes m ay offend against com m u nity notions o f taste and decency.
This m atter is raised in m ore detail in C h apter 22, nev ertheless it should not
be forgotten that the portrayal o f sex and violence m ay be m aking a general

political point about the restraints o f social m orality o r be a m etaph or for real
social or political violence.
The com plexity of the concept o f 'the m ed ia' is added to by the fact that, in
its m ajor form s, it is condu cted by huge, often global organisations for w hom
a story or a representation o f the w orld is a com m od ity and w hose function is
to m ake m oney out o f selling these p rod uction s or the ad vertising that
surrou nd s them . The balance betw een the special concern that should be given
to the legal protection for political speech in the b road est sense and the fact
that, thereby, special protection is given to one form o f com m ercial com m od ity
w hich is not given to others is another them e to be taken into accoun t w hen
con sid erin g the issues u n derlyin g m edia regulation. T hese issues w ill be
pursued a little further in the different contexts o f the law.
11.2 The media and the general law
T he m edia is subject both to the general law and to specific form s of

reg u lation .1 P ress and broad casters en jo y no special exem ption from the
o rd in ary crim inal law and editors, journalists, proprietors and, ind eed , m edia
corporation s, can be prosecu ted, if the approp riate m ens rea is established for
crim inal offences such as sed ition, blasp h em y, incitem en t to racial hatred, etc.,
as m u ch as any ord in ary person.2 Sim ilarly, the m edia m ay be liable, on the
sam e ground s as others, in civil action for breach o f contract or in torts such
as defam ation.
C on versely, som e general legislation is likely to b ear m ost heavily on the
m edia. The O b scene P ublication A cts 1959 and 1964, for exam ple, create
offences relating to p u blication o f obscene m atter and 'pu blication ' is w ide
eiiough to inclu d e press, broad castin g, cinem a, v id eo and, it seem s, the
Internet.3 Sim ilarly the law s on con tem pt o f court, such as the C on tem pt of
C ou rt A ct 1981, w hich create a strict liability offence for pu blications w hich are
likely seriou sly to preju dice the ou tcom e o f trials, b ear m ost heavily on m edia
o rg anisations.4
A lthou gh not exem pted from the ord in ary law the pu blic interest in a free
press is recognised. In nu m erou s cases freed om o f expression, exem plified in
press freedom , has w eight as a background value o f the com m on law. In
D erbyshire C ounty Council v Tim es N ew spapers (1993),5 for exam ple, the H ouse
o f L ords held that an elected political bod y could not, in its ow n nam e, protect
its repu tation by an action for d efam ation against the m edia or, indeed, any
person. The L ord 's d ecision w as a clear assertion o f the valu e in a d em ocracy,
established in the com m on law , o f free sp eech and a free press." But w hile
1 For m ore detailed discussion see, for exam ple, Robertson, G. and Nicol, A. (1992) M edia Law , 3rd
edn. H arm ondsw orth: Penguin; Gibbons, T. (1998) R egulating the M edia, 2nd edn. London: Sweet
& M axwell.
2 See C hapter 14.
3 See C hapter 22.
4 See C hapter 12.
5 [1993] AC 534.
6 The C ou rt of Appeal, in com ing to the sam e conclusion, had relied m ore on Article 10 ECHR.
The media 183
freedom of speech m ay be a value supporting the developm ent of the law, the
claim s o f the press are unlikely to support special treatm ent.7 Som e recent
cases on qualified privilege, discussed below , show the courts acknow ledging
that, w hatever else they m ay be, the m edia consists of ordinary com m ercial
organisations pursing ordinary com m ercial objectives.8
11.3 The Human Rights Act 1998, Article 10 and a free media
11.3.1 Media freedom

U nder the H um an Rights A ct 1998, m edia freedom m ay be pursued by the
English courts on the basis of A rticle 10 ECH R, taking the Strasbourg court's
jurisprudence into account. There is likely to be little difference betw een
A rticle 10 and the com m on law .9 Journalists and also their m edia com panies
have standing as 'victim s' to bring Convention cases to Strasbourg alleging
interference with their freedom of expression by public authorities.
The value of a free m edia is clearly recognised by the Court of Hum an
Rights when m easuring interferences against A rticle 10(2). The value is
particularly strong in the context of political speech, broadly defined.
In Lingens v Austria (1986)10 the press was held to be under, alm ost, a duty
('it is . . . incum bent on it') to im part not only inform ation in the narrow sense
but also ideas. The case dealt w ith political criticism of a leading politician and
the im portance of the press is that it 'affords the public one of the best m eans
of discovering and form ing an opinion of the ideas and attitudes of political
leaders' and so can prom ote the kind of open political debate w hich is 'at the
very core of the concept of a dem ocratic society w hich prevails throughout the
Convention'. It is, in particular, a channel of com m unication with politicians.
Press freedom extends beyond political m atters to 'other areas of public
interest'.11
Conflict betw een freedom of the press and other Convention values such as
privacy and fair trials are also recognised. The Court gives heavy w eighting
but not absolute priority to freedom of the press. In De H aes and Gijsels v
Belgium (1998),12 articles had been published in a Belgium m agazine alleging
bias against m em bers of the judiciary involved in child custody cases. The
Court upheld freedom of the press in so far as the m atters discussed w ere in
the public interest but would not have given Convention protection, had it
been severable from the totality, to allegations about the political allegiance of
one of the applicant ju dge's father. This was unacceptable and interfered with
a legitim ate right to privacy.
7 Francom e v M irror Croup Newspapers Ltd [1984] 1 W LR 892, 897 per Lord Donaldson, quoted
Wacks, R. (1995) Privacy and Press Freedom , London: Blackstone Press, p. 33.
s G robbelaar v Neivs Group Neivspapers Ltd and another [2001] EW CA Civ 33; [2001] 2 All ER 437.
9 On Article 10 generally see Chapter 10.
10 (1986) 8 EHRR 407.
" Lingens v A ustria (1986) 8 EHRR 407, paragraphs 41 and 42. See aLso C astells v Spain (1992) 14
EHRR 445, paragraph 43.
12 (1998) 25 EHRR 1
11.3.2 The media and section 6, HRA 1998

Section 6 o f the H um an R ights A ct 1998 applies to pu blic au th orities (not
defined) and to any person in so far as they are perform in g a 'public
fu n ctio n '.13 T h e press and television, w ith the exception o f the BBC, is privately
ow ned and controlled and so is u n likely to com e w ithin the d efinition o f a
public authority. It is possible to su gg est that the m edia is p erform in g a 'public
fun ction' in so far as it is ad van cing the cause o f open d ebate in a dem ocracy
and so is w ithin section 6(3) and d irectly boun d by C on vention rights.
A s regards the BBC , the C om m ission o f H um an R ights has, in its tim e, never
found it necessary to rule on the status o f the C orp oration as a public b o d y ;14
how ever, the regulatory bod ies, such as the Ind epen d ent Telev ision C om m is
sion, the Radio A uthority and the B roadcasting Stand ards C om m ission , w hich
are established by statute, could com e w ithin a broad definition of 'public
au th ority'. T he self-regulatory bodies such as the A d v ertising Stand ards
A uthority and the Press C om plaints C om m ission are not established by statu te
bu t m ay com e w ithin the section 6(3) d efinition becau se they self-con sciou sly
perform a public fun ction o f regulatin g m ed ia con tent on public interest
principles.
There is a d anger, particularly, o f d esignating m ed ia organisations or
regulators as pu blic auth orities but also of accepting they are perform ing
'p u blic fun ctions' u n d er the Act. O nly a 'v ictim ', as defined by A rticle 34
EC H R, m ay bring a hum an rights case u n d er the H RA 1998, and A rticle 34
exclu d es pu blic bodies. 'P ublic au th orities' and, perhaps, persons in so far as
they are exercising pu blic functions, m ay be thus exclu d ed .1S T h ere are strong
p u blic interest ground s for allow ing m edia organisations to p rotect their
freed om o f expression by action in the cou rts and the p rovisions of the A ct
should not p roh ibit this.
The cou rts, as noted in C h ap ter 2, are pu blic auth orities fo r the p u rposes of
H RA 1998 and so, even if the new sp ap ers and broad casters are not d irectly
boun d b y the C on vention rights, the statutes and the com m on law rules w hich
do apply, such as d efam ation, are d eveloped b y the courts in such a w ay as
to give som e form o f 'h orizontal effect' to C on vention rights. The early case
law u n d er the A ct suggests that this is hap p en in g.16
Section 12 of the H um an Rights A ct 1998 pu rports in a nu m ber o f w ays to
give added w eight to freed om o f expression and freedom o f the press.
W hether the section adds anything to the ju d g m ents that ju d g es already are
requ ired to m ake is doubtful.
13 See C hapter 2.
14 See, for exam ple, British B roadcasting C orportion v U nited K ingdom Ap. 2 5 7 9 8 /9 4 ; (1996) 21 EH RR
C D 93; British Broadcasting Corporation Scotland an d others v U nited Kingdom (1997) Ap.
0 0 0 3 4 3 2 4 /9 6 .
15 The argu m en t is developed in Oliver, D. (2000) 'The Frontiers of the State: Public Authorities
and Public Functions under the H um an Rights A ct 1998', P u blic Law , 476.
16 For exam ple, A v B Pic [20021 2 All ER 545.
The media 185
11.4 The press
11.4.1 Ownership
The national and local press is owned by a relatively small num ber of private
com panies. There is no public publisher which m irrors, for exam ple, the BBC
in broadcasting. During the General Strike in 1926 the governm ent did
produce the British Gazette but it has been generally regarded as a pro
governm ent propaganda sheet w hich vividly dem onstrated the vice inherent
in the public ow nership of the press.
The argum ent for private ow nership lies in the claim that anyone can
establish a new spaper to prom ote their ideas and view of the w orld, and that,
in a free, com petitive m arket, no one organisation, and therefore no one view
of the world, can dom inate. Such assertions can be challenged on the grounds
both of the huge expense involved in establishing a national new spaper and
on the tendency of m arkets to m ove tow ards an oligopolistic or even
m onopolistic condition dom inated by a small num ber of com panies. British
national new spapers are all com m ercial organisations w hich can only survive
either by m aking a profit greater than the prevailing rate of interest or by being
owned by very rich individuals who are prepared, for a time, to accept losses
in order to prom ote their ideas. N ew entrants into the m arket have found it
exceptionally difficult to survive and there has been a clear tendency towards
m onopoly. This has involved not only different new spapers being owned by
the sam e com pany but also a pressure for cross-m edia ow nership in which a
m edia corporation ow ns both press and broadcasting organisations. Legisla
tion exists to lim it both m ergers and cross-m edia ow nership.17 N ew legislation
is proposed.18 The rules inhibiting new spaper mergers, w hich are based on
requiring the Secretary of State's perm ission if the publications of the resulting
com pany would dom inate their sector, are broadly to be retained. The ban on
cross-m edia ow nership will be retained in so far as it prevents any new spaper
com pany from ow ning m ore than 20 per cent of an ITV 3 com pany but m uch
greater freedom is proposed for m edia com panies to buy into radio stations
and Channel 5. The governm ent believes that, in this way, it can obtain the
com petitive advantage from deregulation in the fast grow ing media world but
also preserve adequate plurality in the dissem ination of ideas, inform ation and
entertainm ent. These proposals are controversial and likely to be opposed.19
11.4.2 Press regulation

The principal control over press content is exercised by proprietors and editors
but also, increasingly, by the directors of m ajor corporations w ho need to
ensure a proper level of profit from sales and advertising. There is no reason
to think that a free, com petitive m arket will necessarily produce a plural and
critical press presenting the full range of reasonable ideas about the world to
17 See the Fair Trading A ct 1973 and the Broadcasting Acts 1990 and 1996.
18 Department of Trade and Industry/D epartm ent of Culture, Media and Sport, Draft Com m uni
cations Bill, www.communicationsbill.gov.uk - for passage through Parliament.
19 DT1/DCMS, Draft Com m unications Bill, ww w.communicationsbill.gov.uk, chapter 9.
the reading public rather than a preponderance of broadly right-w ing,

non-socialist, view s w hich will not seek to underm ine either the predilections
of 'press barons' or the needs o f m edia corporations to prom ote consum er
capitalism . A free m arket is also likely to cause new spapers to prom ote
sensational stories and features w hich, though popular with readers, raise
serious doubts about w hether the press, taken as a whole, really is worth
defending on the grounds o f the virtues of free speech. Proponents of a free
m arket argue, on the contrary, that only a free m arket can prevent media
com panies from all com peting for the ideologically unified centre ground,
thereby stifling pluralism . Som e new spapers seek to protect their identity
through the device of a trust w hich m ay m ake them less vulnerable to
take-over; such new spapers can also benefit from the anti-m onopoly controls
that com petition policy provides.20
Political impartiality
The press is not bound by any requirem ent of political im partiality and is
suspected of having, from tim e to time, a significant influence on political issues,
such as the anti-Labour Party cam paigns of the 1980s, although the full extent of
such influence is controversial. Content-based political restriction on the press
would be hard to justify. There is no consensus on there being a m ajor human
interest or right to receive unbiased political inform ation and any such attem pt
would be vulnerable to challenge under the H um an Rights A ct 1998 and A rticle
10 ECHR. No such scruples stand in the w ay of im partiality restrictions on the
regulated broadcasting media and it is not clear w hy the two m edia should be
treated so differently. The answ er presum ably lies on the technical lim its of
broadcasting, in particular the small num ber of w avelengths which require state
distribution and hence justify licensing21 and in the alleged greater psychologi
cal im pact of broadcasting over the printed media. These justifications are
weakened by the huge w idening of broadcast capacity brought about by digital
television and by the fam iliarity derived from the sheer pervasiveness of
television. These, of course, are argum ents for w eakening the im partiality
requirem ent on broadcasters rather than for im posing the sam e on the press.
Privacy
Privacy is different.22 H ere there is a generally recognised hum an interest and
background right. Throughout the tw entieth century the unregulated press has
published stories which have intruded into the private lives of both public and
private persons. The response of the press to concern on this m atter has always
been self-regulation and in 1953 the Press Council was established. It could do
little in the face of the expansion of tabloid journalism . From the 1970s
onw ards, a continuous range of stories, often involving the Royal Fam ily, led
to a num ber of investigations and proposals. A range of issues have to be dealt
w ith such as w hether different standards apply as betw een private persons
20 These points are best developed in the context of media theory and history; see, for example,
Curran, J. and Seaton, J. (1997) Power without Responsibility, 5th edn. London: Routledge.
21 Article 10 ECHR permits restrictions on freedom of expression by virtue of licensing
broadcasting, television and cinema.
22 Generally see Wacks, R. (1995) Privacy and Press Freedom, London: Blackstone Press.
The media 187
and those in the public eye w ho m ay use the m edia to ad van ce their interests,
or the question o f the extent to w hich the pu blic interest can ju stify exposure
o f private life and how and b y w hom public interest is identified. The
underlying issue is w hether the press should be regulated b y an ind ep endent
statu tory pu blic au th ority or w hether self-regulation rem ains the answ er. The
idea that those affected should have a civil rem ed y against in tru sive invasions
o f privacy such as the u se o f surv eillance d evices w as proposed by the
Y ou n ger C om m ittee23 as far back as 1972 and, later in the 1990s, by other
inquiries reporting in the light o f significant technological d ev elop m ents.24
Jou rnalists can now be liable for offences u n d er the R egu lation o f Investigatory
Pow ers A ct 2000 and be subject to civil action un der the P rotection from
H arassm en t A ct 1998.25
C oncern at w hat w as, for m any, a con tem ptu ou s attitu d e tow ards the
privacy o f others show n by the press led to the investigation and report o f a
D epartm ental C om m ittee, set up b y the governm ent and chaired by Sir D avid
Calcutt QC. H is first report in 19902'’ concluded that the Press C ou ncil needed
to be replaced by a m ore pow erfu l, but still self-regulating, bod y ad m inistering
a C od e o f Practice produced by a com m ittee o f national and regional
new sp ap er editors. S elf-regulation w as to be given one m ore chance. The
C om m ission w as established and its w orking review ed in 1993, after a series
o f sensational Royal Fam ily stories, by C alcu tt in his second report.27 C alcutt
conclud ed that self-regulation w as not w o rkin g and that a statu tory regulatory
body, w ith pow ers to aw ard d am ages and im pose fines, should be established.
P arliam en t and the governm ent28 preferred to stick w ith enhan ced self
regulation. In 1997 the C od e o f P ractice w as strengthened and the C om m ission
appointed a Privacy C om m ission er to deal specifically w ith p riv acy issues.
Som e national new spapers also appointed their ow n om budsm an.
Press Com plaints Com m ission

The Press C om p laints C om m ission ad jud icates on com plain ts that the press
have pu blished a story w hich v iolates the C od e o f Practice. C om plaints can be
from anyone w ho feels they have suffered from a breach o f the Code. T here is
no need for com plain ants to give up any o ther legal rights they m igh t have.
The C om m ission has a chairm an and 15 other m em bers, a m inority of w hom
are d irectly involved in n ew spaper and m agazine publishing. The C od e has
sections on accu racy, privacy, harassm ent, d iscrim in ation and other m atters
con cern in g jo u rn alists' conduct. T here is a 'p u blic interest' provision w hich
can ju stify stories w hich w ould otherw ise breach the Code. T h e privacy
provision, for exam ple, says:
23 Report o f the C om m ittee on Privacy, C m 5 0 1 2 ,1 9 7 2

24 For exam ple, N ational H eritage Select C om m ittee Fourth Report, P rivacy an d M edia Intrusion, July
1993; Lord C hancellor's D epartm ent C onsultation Paper, Infringem ent of Privacy, 1993.
25 See below.
26 Calcutt, Sir D avid, QC (1990) Report o f the C om m ittee on P rivacy an d R elated M atters, C m 1102.
27 Calcutt, Sir D avid, QC (1993) R eview o f Press Regulation, C m 2135
28 The N ational H eritage Select C om m ittee, Fourth Report, P rivacy an d M edia In tru sion , July 1993,
recom m ended a reform ed self-regulatory system overseen by a statutory press om budsm an; the
governm ent's response (17 July 1995, Secretary of State for the D epartm ent of National
H eritage) w as that the PCC should continue its w ork and seek to strengthen its position.
Press Com plaints Com m ission, Code of Practice

(4) Intrusions and enquiries into an individual's private life without his or her
consent, including the use of long-lens photography to take pictures of people
on private property without their consent, are not generally acceptable and
publication can only be justified when in the public in terest. ..
(18) The Public Interest . . .
(i) detecting or exposing crime or a serious misdemeanour;
(ii) protection of public health and safety;
(iii) preventing the public from being misled by some statement or action of
an individual or organisation
[or the newspaper to provide] full explanation . . . seeking to demonstrate how
the public interest w as served.
T he benefits claim ed for self-regulation are that the reg u lator has a b etter
u n derstand ing o f the w orkin gs o f the press and o f the significance o f the
stories they pu blish and that the press w ill be h app ier to con form to the
rulings o f their peers to w hich they have volu ntarily consented rather than
those o f som e statu tory b o d y im posed upon them . T h e difficulty is that the
reg u lator will be too sen sitive to the interests o f the press at the expen se o f the
com plainant. P articular con cern s w ith the Press C om plaints C om m ission
relate to the w eakn ess o f the rem ed ies they can im pose: their p rinciple pow er
is to requ ire a n ew spaper to publish its ad jud ication in a suitably prom inent
place. T hou gh they can give general ad vice and w arnings, the C om m ission are
u nable to act in ad van ce on in d ividu al cases to p rev ent pu blication, a m atter
that can be relevant w here privacy and con fid entiality are in issue. This
w eakn ess has b een noted by the cou rts29 w ho m ay issue an injunction. The
ground s for an injunction are m u ch m ore lim ited than breach o f the C od e and
going to cou rt a m ore com plicated and p otentially expen sive bu siness than a
com plain t to the PCC.
T he Press C om p laints C o m m ission 's d ecisions are am en able to judicial
review in p rinciple and the C om m ission and cou rts accep t that it is arguably a
public auth ority for the pu rposes of section 6 o f the H um an R ights A ct 1998
and so d irectly bound by A rticles 8 and 10 o f Sch ed u le l . 30 H ow ever, the
principle o f d eferen ce31 applies in that the cou rts recognise the C om m ission is
b est placed to decide w hat the C od e requ ires and w hether it has been breached
in a p articular case. A n application for ju dicial review , in clu ding on hum an
rights ground s, is likely to be refused other than in exception al cases32 so
applican ts w ho are d isappointed by C om m ission d ecisions are u n likely to get
m u ch help from the cou rts un less clear violation s o f legal rights are in issue.
29 V enables an d an other v N eivs G roup N ew spapers Ltd an d others [2001] 1 All ER 908, paragraph 96.
The claim ants, w ho, as children, had m urdered a small child and had been subject to a
controversially early release, succeeded in obtaining an injunction preventing their identifica
tion by the press on the grounds that the injunction w as necessary to protect their right to life.
30 R (Ford) v P ress Com plaints C om m ission [2001] EW H C Adm in 683; [2002] EM LR 5 , following R
v Press Com plaints C om m ission ex parte S tew art-B rady [1997] EM LR 185. See C row n, G. (1997)
'Judicial Review and Press Com plaints', 147 N LJ 8.
31 See C hapter 2.
32 R (Ford) v Press Com plaints C om m ission [2001] EW H C Adm in 683; [2002] EM LR 5. A sim ilar
deference to the Com m ission and the sense that the role of the C ourt is to police the boundaries
can be found in A v B Pic [2002] 2 All ER 545.
The media 189
The ability of the Press C om plaints C om m ission to secure acceptable

standards, particularly regarding the protection o f privacy, rem ains controver
sial and contingent on the C om m ission's response to particular stories as they
arise. Pressure for a statutory body has, by the early tw enty-first century,
dim inished and the political influence of the press is such that any governm ent
is unlikely to antagonise it by setting one up. An issue of continuing
im portance is the need to restrain the press from sensational reporting of
serious crim es w hich m ay prejudice the outcom e of resulting crim inal trials.
Press treatm ent of the m urder of two children in Cam bridgeshire in A ugust
2002 led to critical com m ents from the coroner. Paym ents to w itnesses is
another serious issue, though the governm ent has left this w ith the C om m is
sion.
11.4.3 Press advertising

Press advertising is regulated by another voluntary body, the A dvertising
Standards A uthority13 w hich adm inisters a Code of Practice. A dvertisem ents
m ust be 'legal, decent, honest and truthful'. There are no direct restraints on
political advertising in the press by, for exam ple, political parties, com panies
or trade unions seeking to influence elections or political controversies. This is
in stark contrast with broadcasting. The A uthority exem pts party political
advertising, such as poster cam paigns during elections, from the provisions of
the Code.34 H ow ever, politically controversial advertisem ents by pressure
groups m ay be banned by the A uthority on the grounds, for exam ple, that
they are m isleading. The decisions of the A uthority are subject to judicial
review and the authority is arguably a public authority under the Hum an
Rights Act 1998, but, as with the Press Com plaints C om m ission, the A dm inis
trative Court is likely to defer to decisions clearly w ithin the C om m ission's
jurisdiction and w hich do not affect recognised legal rights. A dvertisers
m aking a political point, how ever, m ay be able to invoke not only rights under
the H um an Rights A ct 1998 but also a fundam ental com m on law right to be
protected from censorship on, in particular, 'decency' grounds. In R (Pro-Life
Alliance) v British Broadcasting Corporation (2002)35 the Court of A ppeal gave a
strongly w orded defence of freedom o f speech against the BBC 's refusal to
show a party political broadcast on taste and decency grounds.36 Though the
context is different for press and poster advertisem ent, this decision is likely
to influence the A uthority and be a w eapon for those w hose advertisem ents
are banned.
33 Lawson, R. (2001) 'Challenging the Advertising Standards Authority', NL/, 13 April, 526-7.
34 That is, advertising whose principal function 'is to influence voters in local, regional, national
or international elections or referendum»'; public service advertisements are still covered by the
Code: The British Codes o f A dvertising and Sales Prom otion, paragraphs 12.1 and 12.2.
35 [20021 EW CA Civ 297; [2002] 2 All ER 756.
36 See Chapter 13.
11.5 Broadcasting
11.5.1 Licensing and regulation

B roadcasting is treated very differently from the press. It is subject to state
licensin g and regulation, in clu ding con tent regulation. L icensing derives from
the restricted availability o f w avelengths w hich requ ires the d istribution
am on g broad casters on principles u ltim ately derived from international
agreem ent. It also reflects a deep-seated belief in the pow er of the m ed ium as
a pu rveyor o f inform ation and m eaning about the p olitical and social w orld
and from its unm ed iated , v isible and aud ible, presence in p eo p le's hom es. The
'd igital rev olu tion ' and other tech nological d evelopm ents such as international
satellite b ro ad castin g and the Internet m ay m ean that both the point of
licensing and the ability to give it effect m ay be lost and that states will have
to rely m ore and m ore on international agreem ents w hich m ay lim it the term s
that states can im pose on broad casters. A rticle 10 EC H R expressly perm its
states to restrict b ro ad castin g o pportu nities by licen sin g 17 and, at tim es, the
C ou rt o f H um an Rights has seem ed to accept question able con tent restrictions
on the ground s that they are reasonable licence term s.38
BBC
The British B road casting C orp oration p rovides a com prehen siv e television and
radio service throughout the U nited K ingd om w ith significant regional and
national variations. Its form al claim to ind ep en d en ce is based on its being
constituted by Royal C h arter rather than A ct o f Parliam ent. It b road casts
un d er a licence granted by the go v ernm ent and an agreem ent is attached to
the licence w hich contains various term s and conditions. The BBC m ay also,
from tim e to tim e, set out its ow n self-d en ying con d itions such as its original
com m itm ent to political im partiality.39 The BBC is both reg u lator and
broad caster. The Board o f G ov ern ors have ultim ate, superv isory responsibility
for the pu blic service the C orp oration provides. P rim ary control over content,
how ever, rests w ith the D irector G eneral and the m anagers and prod ucers
em ployed d irectly or by con tract w ith the Corporation.
IT V
Indepen dent, com m ercial b ro ad castin g in the U nited K ingd om is regulated by
the Ind epen d ent T elev isio n C om m ission (ITC ), the W elsh A uthority40 and the
Radio A uthority (RA). The C om m ission and Radio A uthority are established
by the B roadcasting A ct 1990. T hey allocate broad castin g fran chises to
bro ad castin g com panies. T he ITC allocates the franchises to the Independent
Telev ision com panies w ho enjoy a m on op oly o f com m ercial terrestrial
broad castin g in their area; it also regulates cable television and those satellite
stations w hich are rebroad cast or receive m aterial from the U nited Kingdom .
37 G roppera Radio A G v Sw itzerland (1990) 12 EH RR 321.

38 See: A utron ic v A G v Sw itzerland (1990) 12 EH RR 485.
39 First expressly given in a letter from the C hairm an of the Board of G overnors to the Postm aster
General, then as a resolution of the Board of G overnors (Boyle, A.E. (1986) 'Political
Broadcasting, Fairness and Adm inistrative L aw ', Public Law , 562, 567, n. 24.)
40 W hich regulates SC4 Wales.
The media 191
D igital terrestrial broadcasting by com m ercial com panies is also w ithin the
Com m ission's rem it.41
The ITC and RA have duties to regulate the content o f program m es. This is
a supervisory duty to 'do all that they can to secure' com pliance w ith the
provisions as to content, such as good taste, decency and due im partiality, in
the Broadcasting Act 1990. The duty also relates to television advertising. The
Com m ission has produced a Program m e Code with reference to which
com plaints about program m es can be adjudicated. Broadcasters who perm it
serious breaches o f the Code can suffer various penalties such as being
required to provide on-screen corrections; only in extrem e cases w ill the
Com m ission revoke a licence.
Som e foreign-based satellite broadcasting and, of course, the Internet, are not
subject to form al regulation by the ITC. Regulation will need to be based on
international agreem ent. The United Kingdom is bound by the European U nion
D irective on Transfrontier Television (8 9 /5 5 2 /E E C ) for a service licensed by
another EU state, and UK law m ust not discrim inate against such services.
Ofcom
The governm ent intends to introduce a single regulator, the Office of
Com m unications (Ofcom ), for the m edia and com m unications industries.42 It
w ill have a lim ited role in regulating the BBC thus bringing that organisation
closer into line with com m ercial broadcasters. Ofcom will take over the
functions of the Independent Television Com m ission, the Radio A uthority, the
Broadcasting Standards Com m ission, the Office of Telecom m unications and
the Radio C om m unications Agency. The new body will be independent but
will w ork closely with both the Departm ent of Trade and Industry and the
Departm ent of Culture, M edia and Sport. A 'light touch' regim e is prom ised
w ith a greater em phasis on self-regulation. H ow ever, basic program m e
standards will be applied to all broadcasters through the production of Codes
and these are likely to retain the current com m itm ent to accurate and im partial
news services, overall political im partiality in program m e m aking and the ban
on political advertising.43
11.5.2 Content
D irect control by governm ent
The institutions of the BBC and ITC have, as one of their principal aim s, the
establishm ent of independence and the distancing of broadcasters from
governm ent. In a liberal society the idea of the direct control of broadcasting
by governm ent is anathem a and a m ajor sign of an authoritarian society.
N evertheless section 10(3) of the Broadcasting A ct 1990, with a sim ilar
provision in the Licence and A greem ent with the BBC,44 em pow ers a
governm ent m inister to prevent certain m atters from being broadcast.
41 By virtue of the Broadcasting Act 1996.

42 It m ay begin work in 2003.
43 D TI/D CM S, Draft Com munications Bill, www .com municationsbill.gov.uk, chapter 8, also chap
ters 3 and 5. The bill w as introduced in session 2002-3.
44 BBC Agreement, section 8.2.
Broadcasting Act 1990

10 (3) The Secretary of State m ay at any time by notice require the Commission to
direct the holders of any licences specified in the notice to refrain from
including in the program mes included in their licensed services any m atter or
classes of m atter specified in the notice; and it shall be the duty of the
Commission to comply with the notice.
This app aren tly unfettered pow er has b een used sparingly. Its m ost con trov er
sial exercise w as the bann in g o f the b road cast o f d irect speech by m em bers or
representatives o f various political groups in N orthern Ireland identified by
the governm ent as prom oters or d efen ders o f terrorist violence. T h e b an w as
challenged in the courts but the H ouse o f L ords41 w as only prepared to review
a m in ister's d ecision for irrationality, a severe test, w hich w ould not ap p ly if
the m in ister had consid ered relevan t issues and had p roper pu blic interest
ground s for the order. Section 6 o f the H um an Rights A ct 1998 w ill requ ire the
cou rts to m easure any m inisterial notice, as the act o f a public authority,
against Sch ed u le 1, A rticle 10.
P rogram m e standards
G overn m ent clearly retains a close interest in broad castin g but, apart from the
provision ju st m en tioned , can only control content indirectly. T h e governm ent,
through legislation and the BBC Licence and A greem ent, sets the con text and
basic con ditions u n d er w hich the b road casters operate; it also appoints the
Board of G ov ern ors o f the BBC and the m em bers o f the Indepen dent
Telev ision C om m ission , and it exercises inform al influences and pressures.46
P rim ary control ov er con tent lies w ith the broad casters. Section 6 o f the
B roadcasting A ct 1990 requ ires the ITC (sim ilar provisions apply to the BBC
through the Licence and A greem ent) to do all it can to ensu re that program m es
do not 'offend against good taste or d ecen cy', 'encou rage or incite to crim e or
. . . lead to d isord er or to be offensive to pu blic feelin g '; p roper care m u st be
taken to protect the religiou s su sceptibilities of view ers. O f special significance
in a civil liberties con text is the requ irem ent that 'd u e im partiality is preserved
on the part o f the person providing the service as respects m atters o f political
or ind ustrial con trov ersy or relatin g to cu rren t public p o licy'.47 Section 6 o f the
Broadcasting A ct 1990 is intended for repeal by the d raft C om m u nications Bill,
though som e sen se o f u n derlyin g program m e standards is to be retained, and
so the v alu e o f 'd ue im p artiality ', other than in new s broad castin g, w ill depend
on O fcom . Im p artiality in new s program m es provided by the m ain b ro ad
casters w ill still, it seem s, be a direct legal requ irem ent.48
Program m e standards are potentially controversial m atters. G ood taste,
d ecency and offensiveness involve cu lturally specific ju d gm ents w hich are
45 R v H om e Secretary ex parte Brind [1991] 1 AC 696.

46 Ministers w ho directly com m ent on program m es are likely to be criticised in the press, as w ere
various ministers w ho, in 2001, m ade critical com m ents on a Brass Tacks program m e satirising
the m edia's treatm ent of 'paedaphilia'.
47 Section 6(1 )(c), Broadcasting A ct 1990. The new s m ust be presented with 'd ue accuracy and
im partiality' (s.6(l)(b )) and s.6(5) and (6) contain further legal requirem ents about how the
Com m ission should deal with due im partiality).
48 See D TI/D C M S, Draft C om m unications Bill, w w w .com m unicationsbill.gov.uk, ch apter 8, 8.2.9.2.
The media 193
likely to leave som e sections o f the v iew ing pu blic unsatisfied and com p lain
ing. Freed om of expression, as a C on vention right, extend s to unp op u lar and
offensive ideas, though, on m oral (sexual) m atters, as d istin ct from political
and public issues, the C on vention has been interpreted in a w ay w hich is
tolerant o f state restriction.
Political im partiality
'D u e im p artiality ' has engendered a w id e-ran ging debate.49 Supp orters argue
that it is necessary to the pu blic service rem it o f television and an antid ote to
the political p artiality o f the press. A t its strongest d ue im partiality does not
m ean a bland n eu trality on all issues but it em bod ies a positive, dem ocratic,
value in favour o f seek in g out and bring in g issues in a changin g w orld before
the pu blic and so encou rag in g an inform ed and engaged citizenry.50 This
con ception o f im partiality aim s to p revent the dom ination o f the political
agen da by econ om ically pow erfu l forces and to provide a full ran ge o f reasons
for actions that citizens m ay choose betw een. O pponen ts o f due im partiality
believ e that p olitical choice and openn ess is best obtained b y allow ing a
plurality o f broad casters to put forw ard their m essages uninfluenced by the
state thus leaving view ers to choose the station m ost am en able to their political
taste. The state, by this critical account, is necessarily o v er-paternalistic and its
broad casters becom e the d efiners and gu ard ians o f the lim its o f w hat can
cou nt as reasonable ideas for citizens to hold. Im partiality, for the critics, is
incon sisten t w ith the d iversity of con ceptions o f the good and o f form s of
political activity found in a m od ern m u lticultural society and becom es no
m ore than the d efen ce o f the establish ed ord er.51 T here is alw ays criticism ,
both from academ ics and politicians, o f m edia bias, both about the angle of
p articular stories or about m ore system atic, general orientation tow ards an
issue.52 Such criticism s do not necessarily oppose, but m ay seek to uphold , the
notion o f im partiality.
A n elem ent o f due im partiality is that a nu m ber of types o f o rganisation are
expressly d isqualified from holding a television licence from the ITC .53 These
inclu de p olitical parties, religious bodies (subject to special exem ption), local
auth orities and (for general broad castin g) m any o ther pu blic authorities. The
new legislation is likely to end or at least m od erate som e o f these restrictions.
19 See, for exam ple, Gibbons, T. (1998) R egulating the M edia, 2nd edn. London: Sw eet & M axwell,
pp. 9 4 -1 2 5 ; Barendt, E. (1998) 'Judging the Media: Im partiality and Broadcasting', in Sector, J.
(ed.), Politics an d the M edia H arlots an d P rerogatives at the Turn o f the M illenium . London:
Blackwell; Davis, H. (2000) P olitical F reedom London: C ontinuum , ch. 10, esp. pp. 2 6 9 -7 3 .
50 Annan, Lord (1977) Report o f the C om m ittee on the Future o f B roadcasting, C m 6753. London:
HMSO, section 17.
51 See, for exam ple, Goldberg, D., Prosser, T. and Verhulst, S. (eds) (1998) R egulating the C hanging
M edia: A Com parative Study. O xford: Clarendon Press, p. 16. The Annan Report, op. cit.,
reinforced this view by seem ing to suggest that part of the duty of im partiality w as for
broadcasters to uphold Parliam entary d em ocracy and give a best case defence to governm ent
and establishm ent view s: A nnan Report, 17.9.
52 For exam ple, the criticism s of the G lasgow M edia Group about the presentation of econom ic
new s in the 1980s. For criticism see M cN air, B. (1996) Net vs an d Jou rnalism in the UK, 2nd edn.
London: Routledge. Politicians' criticism s can be found on the ITC website. For other exam ples
see Davis, op. cit., p. 290, n. 18.
53 Broadcasting A ct 1990, Schedule 2, Part II l(l)(d ) and (e)-(j); see also s. 143, Broadcasting Act
1996.
N either the BBC nor broad casters regulated by the ITC are able to editorialise
in the sen se o f p rom oting a p articu lar point o f view on p olitical m atters.54
U ltim ate responsibility lies w ith the G ov ern ors o f the BBC and the C o m m is
sion, thou gh prim ary responsibility is w ith the broad casters. T here have been
tim es w hen the BBC governors have intervened prior to a broad cast such as
preventing the broad cast of a d ocu m entary on the lives o f som e o f N orthern
Irelan d 's p aram ilitary leaders. T h is w as high ly con troversial and , for critics,
the G ov ern ors' concept o f im partiality seem ed to be rather close to the
cen sorious view s o f the governm ent.
Due im partiality expressly does not m ean that the broad casters need be
neu tral on fu n dam ental v alu es55 and these m igh t inclu de a preference for
d em ocratic procedu res ov er au th oritarian societies or opposition to racism .
The BBC has stated that it is not 'n eu tral as betw een truth and untruth, justice
and injustice, freed om and slavery, com passion and cruelty, tolerance and
into lerance'.56 T here is, o f course, little con sensu s, other than at a v ery general,
truistic, level, o f w hat cou nts as fundam ental valu es and the danger o f this
position is that it m ay inhibit the reasonable d iscu ssion o f fundam ental values
and the proper rep orting and u n derstand ing of 'extrem e' or radical p olitics.57
Program m e standards, including due im partiality, are given their m ost precise
effect by m eans of gu idance cod es that both the BBC and the ITC are required to
produce.5** T hese cod es w ill be taken over by O fcom u n d er the term s o f the
proposed legislation. T he B BC 's P roducer G uidelines is a code to be follow ed by
its prod ucers and program m e-m akers. The ITC P rogram m e C od e is both
gu idance to the broad casters the C om m ission regulates and a set o f standards
for the ad jud ication o f com plaints. B oth the G u id elin es and C ode have
significant section s devoted to d ue im partiality m u ch o f w hich em bod y specific
provisions in the Licence and A greem ent and the curren t Act. It is accepted that
d ue im partiality in new s and current affairs does not requ ire the m echanical
rep orting of every know n view on a con troversial subject but can explore an
issue in a selective w ay if the context perm its. D ue im partiality is not required in
every program m e but can be achieved ov er a series o f program m es. Seriou s
political controversy does requ ire the presentation o f all principal view p oints in
each program m e, how ever.59 T he G u id elin es in p articular w arn broad casters
against the p ossibility of pressu re bein g exerted on them by politicians.
Judicial review
C om p laints about due im partiality, from political parties for exam ple, are
m ad e in the first place, to the broad casters. T h e BBC deals w ith such
com plain ts through its ow n internal procedu res. C om p laints about in d ep en
54 BBC Licence and Agreem ent, Cl. 5.1(c); s.6(4), Broadcasting A ct 1990.
55 Section 6(6) Broadcasting A ct 1990; BBC Licence and Agreem ent, Cl. 5.5(d)(ii).
56 BBC, A nn u al R eport an d H andbook 1989. London: BBC, p. 184. On institutional opposition to
political violence see com m ents by Lord D onaldson and M cC ow an LJ in K v H om e S ecretary ex
parte Brind [1990] 1 All ER 469, 481, 488.
57 A s m ay have happened in the BBC's reporting of the troubles in N orthern Ireland during the
1970s; see Annan, Lord (1977) R eport o f the C om m ittee on the Future o f Broadcasting, C m 6753.
London: HMSO, section 17.12.
58 For exam ple, s. 6(1 )(b). Broadcasting A ct 1990 (proposed for repeal).
59 For a full discussion see Gibbons, op. cit., ch apter 3, E.
The media 195
dent television can also be sent to the ITC w hich w ill adjud icate. D issatisfac
tion w ith the results m ay involve the cou rts, but there are great difficulties
facing a com plainant. P oliticians or m em bers o f the public w ill norm ally only
be able to challenge a bro ad castin g d ecision by w ay o f ju d icial review . T his is
not av ailable against private com panies such as the ITV com panies bu t is
av ailable against the C om m ission , a public auth ority exercising statu tory
pow ers. D espite early d oubts,60 the BBC now takes the view that it is legally
bound by the d uty o f due im partiality.61
Th e stand ing o f a com plain ant to bring ju dicial review can be a difficulty,
although English law takes a perm issive ap proach to any applican t w ith a w ell
founded case and sufficient resources to present it effectively.
There are also significant difficulties o f substance in trying to challenge a
broad cast reg u lator in the courts. First, the duty, at least that im posed b y the
A ct on the ITC , is only to 'do all they can to secure' that the broad casters are
kept in line and breach o f such a subjective d uty m ay b e hard to show .
Second ly, 'd ue im p artiality ' (the sam e applies to taste and decency) is so
con testable a value that the cou rts are likely to find it a non-justiciable m atter
requ iring d eferen ce to the broad caster.62 T h ere have been occasional successes
in the Scottish courts. For instance, an interim injunction w as obtained to
prev ent the bro ad castin g in Scotland o f a U K -w id e interview w ith the Prim e
M inister, three d ays before Scottish local election s.63 A s suggested below , the
cou rts find it easier to ad ju d icate in the con text o f election broad casting.
Political broadcasting
The influence o f broad castin g, esp ecially television, on political opinions and
voting habits is thought to be con sid erable although the claim that an election
can be w on on political ad vertisin g alone is subject to som e m ajor exam ples to
the contrary. The d anger w ith political ad vertisin g is that rich and pow erful
ind iv id u als or groups can, by buying airtim e, have a m ajor effect on the
political agenda and un d erm ine the com petition betw een the m ajor parties.
The argum en t is that p olitical parties, assu m ing they are broad ly d em ocratic
and that they are open to all to join and influence, should be protected as the
d om inant players in elections. The broad position in the U nited K ingd om is
that political parties cannot ad vertise on television or rad io but enjoy rights to
free airtim e: party election or party political broad casts. T hese m atters are fully
discussed in C h ap ter 13.
60 K v Lynch [1983] NI 193.

61 This w as accepted by the BBC in H ouston v BBC (1995) SLT 1305.
62 See M unro, C. (1996) ‘SN P v BBC round tw o, 146 NLJ 1433; SN P v Scottish Television an d
G ram pian T V (1997) 147 NLJ 528. The ITC's predecessor, the Independent Broadcasting
Authority w as successfully challenged on the taste and decency issue but only to require a
view ing by the A uthority, so that it w ould exercise its judgm ent. The pow er to preview
program m es is not enjoyed by the ITC: A ttorney G eneral ex rel M cW hirter v IBA [19731 1 QB 629;
cf R v IBA ex parte W hitehouse (1985) T he Tim es, 4 April.
63 H ouston v BBC (1995) SLT 1305 (M unro, C. (1996) 'The Banned Broadcasting C orporation ', 146
N L ] 1433). See also Wilson v IBA [1979] SC 351 w here an interim injunction w as issued on the
groun ds of an arguable breach of the im partiality requirem ent w hen the coverage given to the
referendum debate in Scotland w ould have given the N o cam paign three tim es as m uch
coverage as the Yes.
11.5.3 Broadcasting complaints

B roadcasting Standards Com m ission
Individu als and organisations m ay w ish to com plain about their treatm ent b y a
broad caster or about broad cast standards, p articularly the portrayal o f sex and
violence. T h e B roadcasting A ct 1996 establish ed the Broadcasting Stand ards
C om m ission by m erging the B roadcasting Stand ards C ou ncil w hich had
advised on standards and the Broadcasting C om p laints C om m ission w hich
had ad jud icated on com plain ts about in d ividu al treatm ent. T he p ossibility for
overlap w ith the con tent-orien tated regulatory activities o f the ITC is one o f the
reasons w hy the d raft C om m u nications Bill 2002 proposes that the w ork o f the
BSC , along w ith the ITC and other regulators, should be taken over by O fcom .
In its ad jud icative role, the Broadcasting Stand ards C om m ission deals w ith
com plain ts abou t 'u nju st or u n fair' treatm ent. A ny com plain ts m u st be based
on the breach o f one o f the C od es the C om m ission has prod uced, one o f w hich
relates to fairness and privacy, the other to standards. C om plaints are usually
about an ind iv id u al's treatm en t in a sin gle program m e. T h e C om m ission
ad jud icates on such com plain ts and, in relation to a successfu l com plain t o f a
breach o f the Fairn ess and Privacy C od e, can com pel the b ro ad castin g o f a
sum m ary o f both the com plain t and the ad jud ication. Fairn ess and p riv acy in
this con text are not legal rights and so the C om m ission is able to provide a
rem ed y w here an action in the cou rts w ould not b e appropriate.
If the C om m ission acts outsid e its ju risd iction , an application for judicial
review is possible. C om plaints aim ed at general bro ad castin g p olicy rather
than individual treatm ent have raised ju risd iction al issues.
David Owen, one the leaders of the SDP/Liberal Alliance, complained to the
Broadcasting Complaints Commission that it was receiving less coverage in news and
current affairs programmes than was warranted by its level of support In the country.
The Commission declined jurisdiction to hear such a general complaint because it
related to broadcasting policy rather than individual treatment. On judicial review of
this decision, the Court of Appeal held that the Commission did have jurisdiction to
hear such a complaint. However, the Court also supported the Commission’s
statement that, even if it did have jurisdiction, it would decline the case because it was
ill equipped to decide between different conceptions of political fairness and
impartiality. This was a matter for broadcasters. In the Court’s view a direct challenge
to the statutory duty of the broadcasters was the proper procedure.
R v Broadcasting Complaints Commission ex parte Owen [1985] 2 All ER 522
Public interest groups or political parties m ay also have difficulties in

establish ing that they have standing to bring a com plain t to the C om m ission.
The National Council for One Parent Families complained successfully to the
Commission about the portrayal of single mothers on benefit by a BBC programme.
The BSC found that the programme was unfair and unjust on several points but this
judgment was set aside on judicial review. The courts, largely on freedom of the press
grounds, agreed with the BBC that the National Council did not have sufficient
standing to bring a complaint to the BSC.
R v BCC ex parte BBC (1995) 7 Admin LR 575
The media 197
The BSC is, presum ably, a public au th ority under the H um an R ights A ct 1998
and so w ill need to ad here to C on vention standards o f p riv acy and freed om
o f expression. B oth these C on vention rights are, o f course, restrictable. The
d octrine o f d eference, applied by the courts to C om m ission d ecisions, is likely
to ap p ly as it does to the Press C om p laints C om m ission and it w ill be only in
the rarest o f cases that the courts w ill su bstitu te their view for that o f the
C om m ission.
Prior to the H um an R ights A ct 1998 the cou rts have tended to accept the
C om m ission 's ow n con ception o f p rivacy.64 T h e point is that this m ay b e m ore
intense than the background , legal, con ception o f privacy required by the
Convention.
D. Co. Ltd complained that covert filming by BBC TV was an ‘unwarranted

infringement of privacy’ in terms of s.110(1), Broadcasting Act 1996. The Broadcasting
Standards Commission upheld the complaint. On judicial review, sought by the BBC,
the judge held that the privacy provision in the Act did not apply to companies and
that the surreptitious filming of an event in public, such as sales in a shop, could not
be an invasion of privacy. The Commission appealed. (The Human Rights Act 1998
was not in force at the time.)
HELD: the Broadcasting Act 1996 did apply to companies and the Commission’s
approach was well within its discretion. Privacy in the context of the Broadcasting Act
1996 (i.e. in the Commission’s Codes) was not necessarily the same as under Article
8 ECHR.
R v BSC ex parte BBC (Liberty intervening) [2000] 3 All ER 989
In the case, the C on vention view on the rights o f com panies to p riv acy (a m atter
on w hich there is doubt) could not be used to red uce the protection for privacy
offered u n d er the B roadcasting A ct 1996, not w ithstan ding the com ing into
force o f the H um an R ights A ct 1998. Lord W oo lf M R (as he then w as) suggested
that w here greater p rotection to privacy is av ailable u n d er d om estic legislation,
that fact im plies that the legislation 'm ay w ell be com p atible w ith E C H R rights'.
Lord W o o lf's suggestion m u st d epend, how ever, on context. T h e d om estic law
m ay, for exam ple, give too m u ch w eight to one value, say privacy, at the
expen se o f another, say freed om o f expression. If the C on vention gives a
d ifferent w eighting to these v alu es than u n d er d om estic law , then a legal
challenge un der the A ct is approp riate and the cou rts w ould be w rong sim ply
to uphold the d om estic law . S im ilar issues m ay arise on the question of
standing. In the N ational C ouncil for O ne P arent Fam ilies case, m entioned
above, the cou rt departed from the m ore gen erous position o f the BSC. O ne
reason accepted by the cou rt w as that it w as bound to apply the m ore restrictive
ap proach to stand ing found un der the C on vention, w here the 'v ictim ' test
m akes it harder fo r p ressu re groups to bring cases. Lord W olfe's suggestion
provides an argum en t for the C o m m ission 's m ore gen erous approach to
standing to be perm itted in cases brou ght un der the B road casting Act.
64 R v B C C ex parte G ranada T V Ltd [19951 COD 207.

11.6 Free media and the law
The law recognises the public interest in a free media in a num ber of legal
contexts. These are considered in detail in the chapters to w hich they relate.
For exam ple, the m edia enjoys lim ited protection from prosecution in respect
of the publication of inform ation obtained in breach of the Official Secrets Act
1989,65 'journalistic m aterial' can only be com pulsorily disclosed under the
provisions of the Police and Crim inal Evidence Act 1984 on the basis of a
hearing before a judge rather than the ex parte issuing of a w arrant from a
magistrate,66 and journalistic m aterial also enjoys certain exem ptions under
data protection legislation.67
In other legal contexts, how ever, no special protection is allowed to
journalists. For exam ple, journalists have no special, public interest defence in
respect of an unlaw ful telephone interception or unlaw ful acts of surveillance
under the Regulation of Investigatory Pow ers A ct 2000, even though dis
closures genuinely in the public interest m ight result. This is, perhaps, hardly
surprising since journalists are not subject to the general controls and
disciplined structures that m ay be essential if there are to be adequate
protection for surveillance targets as required by the ECHR.
11.6.1 Privacy and breach of confidence

The availability, nature and scope of a legal rem edy m ay require a judgm ent
by the courts of the w eight to be given to the public interest in a free media
w eighed against a person's interest in protecting their privacy. If, for exam ple,
a civil action is taken against a journalist for trespass, any discretionary
elem ents in the rem edy, such as w hether to grant an injunction, will have to
give proper w eight to m edia freedom. Section 12(4) of the H um an Rights Act
1998 em phasises this. Journalistic freedom is not a 'trum p' outw eighing all
other considerations. The Protection from H arassm ent A ct 1998, w hich creates
both a right of action and crim inal penalties for persistent behaviour
am ounting to 'harassm ent', has, at least once, been used against the press for
running cam paigns against an individual.“ The A ct provides a defence of
reasonableness in w hich the public interest inherent in the story can be raised
before the court.
Injunctions, tem porary and perm anent

The w eighing of free expression and m edia freedom with individuals' interests
in their privacy is found m ost clearly in respect of breach of confidence. A
perm anent or tem porary injunction can be available to prevent the disclosure
of inform ation obtained by a breach of a relationship of confidentiality. This
65 See Chapter 16.

“ See Chapter 6.
67 See Chapter 19.
68 Esther Thomas v New sgroup N ew spapers (2001) NLJ 1221 CA where the C ourt of Appeal refused
to strike out a claim under the Act brought by a civilian police w orker who had m ade well
founded allegations of racist behaviour against police officers and w ho, consequently, had been
the subject of a number of hostile articles and letters in The Sun.
The media 199
rem ed y is av ailable not only against the person in direct breach o f trust but
also against those, such as in the m edia, w ho are responsible for further
dissem in ation.69
A tem porary inju n ctio n is, pred om inantly, decided on the b asis o f a balance
o f con v en ience (w ho has m ost to lose if, at the tem porary stage, they are
prevented from d oing w hat, at the full stage, it turns out they have a righ t to
do); a claim an t seeking to p rotect con fid entiality is likely to be able,
tem porarily, to prevent p u blication on those grounds. This can som etim es
resolve the issue perm anently since m edia interest m ay be dissipated.
H ow ever, un der the com m on law and now un der section 12 o f the 1998 A ct,
the likelihood o f a full inju n ction bein g issued (i.e. the final issue o f right) m ust
be taken into account w hen con sid erin g a tem porary injunction. Section 12 also
requ ires the court to have 'p articu lar reg ard ' to the im portan ce of freed om of
expression in the C on vention schem e, and, in relation to journalistic, literary
or artistic m aterial, to have p articular regard to w hether the m aterial is or is
about to be av ailable to the pu blic or w hether its pu blication w ould be in the
pu blic interest. C ou rts are also required to have p articular regard to any
relevan t privacy cod e.70
Confidentiality and privacy

There m u st be a relationship o f con fid entiality recognised by the law w hich is
about to be breached. Such relation ships have been up held by the cou rts in
contexts such as: em ployer and em ployee and o ther bu siness relation ships in
ord er to protect trad e secrets and com m ercially sen sitive d ocu m ents;71
em ployer and em ployee in the context of d om estic service;72 m ed ical con fid en
tiality.73 Inform ation about m atrim onial74 and sexual life75 and the lives of
child ren76 can also be protected b y injunctions. The use o f such inju n ctions in
the political sphere is discussed in C h ap ter 16. T h e ind ep en den t d evelopm ent
o f the com m on law and, in particular, the influence o f A rticle 8 EC H R , has
m ean t that such an action m ay be based upon an alleged invasion o f privacy.
This w as accepted in D ouglas and others v H ello! Ltd (2001 )77 w here it w as
suggested that an action could be based on persons 'sim ply find[ing]
them selves subjected to an un w arran ted intru sion into their private life . . . The
law no longer needs to construct an artificial relation ship o f confid entiality
betw een intru der and victim : it can recognise privacy itself as a legal principle
d raw n from the fun dam ental value o f personal au ton om y',78 thou gh the point
has been d o u b ted .'9
69 For exam ple, Prince A lbert v Strange (1842) 2 De G & Sm 652; 64 ER 293.
70 See D ouglas an d an other v H ello! [2003] 2 All ER 289 for discussion of the relationship betw een
freedom of expression (Article 10) and privacy (Article 8) in the light of s. 12.
71 For exam ple, M orison v M oat (1851) 9 H are 241; 68 ER 492, and num erous other cases.
72 M ost fam ously Prince A lbert v Strange (1842) 2 De G & Sm 652; 64 ER 293; in M arch 2000 the
Prim e M inister, Tony Blair, and his wife obtained an injunction to prevent the publication of a
form er nanny's m em oirs.
73 For exam ple, X v Y [1988] 2 All ER 648.
74 D uchess o f A rgyll v D uke o f A rgyll an d others [19641 1 C h 302.
75 Stephens v A very [1988] Ch 449.
76 Re Z (a m inor) (freedom o f P u blication ) [1995] 4 All ER 961
77 [2001] 2 All ER 289
78 Douglas an d others v H ello! I.td [2001 ] 2 All ER 289, paragrap h 126, per Sedley LJ.
Public interest in disclosure

The central point of argum ent over the issue of an injunction, especially a
tem porary one, relates to the question w hether there is an overriding public
interest in favour of disclosure. The court is then a forum of principle in which
the public interest in effective investigative journalism can be considered. The
courts accept that an injunction should not be available if its im pact is to
prevent the disclosure of inform ation that ought to be disclosed to the public.
Such inform ation might, for exam ple, point to crim e or other m isconduct81’ or
be necessary to counteract factual inaccuracy.81 In Lion Laboratories Ltd v Evans
and others (1984)82 it was held that m atters for consideration by the court
include: distinguishing betw een w hat the public are interested in and w hat is
in the public interest (m ere curiosity or sensation-seeking is not enough), and,
secondly, that the private interest of the m edia in profiting from extra sales
needs to be taken into account.83 The availability of other effective avenues of
com plaint also needs to be w eighed in the judgm ent. The courts require
som ething m ore than a m ere assertion; the allegations need to have, at least
on the face of it, som e substance.84 The claim that there is a public interest in
the disclosure of the inform ation involved is not a side constraint but a factor
to be w eighed in deciding w hether or not there is a public interest in
publication w hich outw eighs the interest in m aintaining confidentiality. Thus,
even if the courts accepted that, for exam ple, an allegation of w rongdoing had,
subject to further investigation, som e substance, it w ould not follow that an
injunction would be refused. The public interest in confidentiality m ight still
outw eigh the reasons for disclosure. This position w ill be all the stronger if
other proper channels are thought to exist through which disclosure could be
m ade even if using these channels m aintains the confidentiality of the
inform ation.
In A v B Pic (2002) a Prem ier League footballer sought an injunction to
prevent a Sunday new spaper from publishing details of his extra-m arital
affairs. A tem porary injunction was discharged by the C ourt of Appeal. The
judgm ent lays dow n guidelines for dealing w ith the increased num ber of
privacy cases brought by celebrities since the com ing into effect of the H um an
Rights A ct 1998. The judgm ent gives strong w eight to freedom of the press.
Instead o f placing the burden on the press to show w hy the public interest
dem ands protection from a claim to privacy, the burden is on the applicant
seeking an injunction to show why the assum ption in favour of a free press
should be overborne. The press is entitled to publish stories which interest the
public; they are not required to show that there is a significant public interest
in favour o f publication w hich is sufficiently im portant to override a general
'right' to privacy. The press is not, however, free to publish anything at all
about celebrities and injunctions can still be issued to protect personal
79 A v B Pic [2002] 2 All ER. 545.

80 For exam ple, Initial Services Ltd v Putterill and another [1967] 3 All ER 145.
81 For exam ple, evidence of the unreliability of a widely used breathalyser m achine in Lion
Laboratories Ltd v Evans and others [1984] 2 All ER 417.
82 [1984] 2 All ER 417
83 These strictures m ay not survive the more media friendly approach in A v B Pic (2002) 2 All
ER 545.
84 A ttorney G eneral v Guardian Newspapers and others (No. 2) [1988] 3 All ER 545
The media 201
inform ation the law has traditionally protected such as m edical data and,
perhaps, m atrim onial confidences.85
11.6.2 Defamation and media freedom

D efam ation provides a rem edy in dam ages to a claim ant who can prove that
w ords w ritten or spoken and received by others have the effect of low ering his
or her reputation in the eyes of right thinking people. If the claim ant can
satisfy the court that the words have that effect, dam ages will be awarded
unless the defendant can establish one of a num ber of defences. This can be
that the w ords are true or that, being judgm ents about the claim ant rather than
statem ents of fact, they am ount to fair com m ent on a m atter of public interest.
Qualified privilege
A defence can also be founded on the existence of a qualified privilege. A
qualified privilege exists where, as a m atter of law , the courts accept that
statem ents can be m ade w ithout threat of proceedings for defam ation so long
as they are not m ade with the intention of harm ing the person concerned. The
media m ay enjoy qualified privilege. If so, the burden of the case shifts to the
com plainant to prove that a new spaper or broadcaster told falsehoods with the
intention of causing him or her harm.
Qualified privilege requires both an interest or a duty to publish and a
reciprocal interest or duty to receive the publication.86 In the cases the m ajor
issue is w hether the courts think that the m edia have a duty to publish. The
m edia cannot claim qualified privilege m erely because they believe a story is
in the public interest.87 In Reynolds v Times N eivspapers Ltd and others (1999)88
Lord N icholls identified a num ber of factors to be considered by a court in
deciding w hether there was a duty on the press to publish sufficient to
establish a qualified privilege. These included m atters such as the seriousness
of the allegation, the steps m ade by the m edia to verify the story and, also, the
tone of the article, especially w hether it adopted allegations as if they were
statem ents of fact. In Grohbelaar v N ews Group N ewspapers Ltd (2001 )89 the
question of 'tone' was particularly im portant w ith the court stressing that a
sensational approach w hich assum ed a person had acted infam ously m ade it
less likely that there would be a duty to publish. Qualified privilege requires
satisfying the court that the journalism has been 'responsible' and careful with
the truth. H ow ever, it places the threshold too high if qualified privilege is
only allowed if statem ents m ade are actually true; factual inaccuracy, in good
faith, does not prevent privilege.90
85 Cf. Cam pbell v M irror C roup Newspapers 12002] EW CA Civ 1373 w here the C ourt of Appeal
denied dam ages, on breach of confidence grounds, to Naomi Campbell. In the C ourt's view,
given that her drug addiction was not a m atter of confidentiality, there could be no legally
recognised confidentiality in ancillary stories and pictures of her treatment for it. The judgment
in A v B Pic (2002) suggests that the courts m ay give greater weight to protecting the
confidences relating to long-term relationships.
86 Adam v Ward [1917] A C 309.
87 Loutchansky v Times Neiuspapers [2001] 4 All ER 115.
88 [1999] 4 Ail ER 609.
89 [2001] EW CA Civ 33; [2001] 2 All ER 437 (the decision has been overturned on other grounds).
Political libels
A s w ell as qualified p rivilege the E nglish courts have, in recent tim es, com e to
im pose a barrier on various public bodies preventing them from b ein g able to
defend their repu tations in proceedings fo r defam ation. O riginally public
bodies, like com m ercial corporation s, has b een able to defend their reputations
from fierce criticism allegin g corrup tion and inefficiency.91
In the U nited States the cou rts took a different view and pu t a b ar on the
right not only o f political bodies but also p o liticians and officials to use the
courts to defend their repu tations from political attack. A sim ilar, though not
so far reaching, position has now been developed in E nglish law.
Corruption and inetficiency was alleged against Derbyshire County Council by the
defendant newspapers.
HELD (HL): in the absence of proof of malice, a political body could not defend its
reputation by instituting defamation proceedings. Freedom of speech is protected by
the common law, Convention rights notwithstanding.
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534
The ju stification fo r this d ecision w as that w ithout it there w ould be a 'chillin g'
effect on freed om o f speech and legitim ate political criticism w ould be
inhibited. T h e com m on law gave con sid erable w eight to freedom o f speech
w hich need ed to be recognised even in a private law con text such as
d efam ation.92
It is not clear that the position as identified in D erbyshire is satisfactory.93 T he
arg u m en t is rooted in the requ irem ents o f a d em ocratic society: citizens and
the press m u st be free to criticise the gov ernm ent w ithout having to prove the
truth o f their claim s. P ublic bodies can be pow erfu l organisations w ith the
resources that enable them to protect their position from criticism by using the
courts. It is not clear w hat bod ies are contained w ithin the D erbyshire rule. It
m ay be confined to elected bod ies, though there is clearly a case for the rule
to ap p ly m ore w idely.91 T h e public interest in free sp eech applies to public
issues bro ad ly defined.
There is, how ever, a contrary arg u m en t that it is u n dem ocratic to perm it
unrestrained criticism of pu blic bodies. Entirely u n fair and m alicious stories
can be published w hich m ay d istort the requ irem ents of a reasonable
dem ocracy, play into the hands o f pow erful, private interests and, above all,
d eter ord in ary w ell intentioned people from going into p olitics w hich becom es
the preserve of a thick-skinned elite. In fact D erbyshire v Tim es N ew spapers
applies specifically to governm ental bod ies and does not extend to ind ividu al
p oliticians or officials. Such ind ividu als can still protect them selves throu gh an
action for defam ation.
90 L outchansky v Tim es N ew spapers Ltd (No. 2) [2001] E W C A C iv 1805; [2002] 1 All ER 652.
91 Bognor Regis U D C v Cam pion [1972] 2 QB 169.
92 Such a v iew w as probably not open to the C ou rt of Appeal w hich w as bound by its ow n earlier
decisions. The C ourt of A ppeal cam e to a sim ilar conclusion as the H ouse of Lords, but based
its judgm ent on reception of the E uropean C onvention of H um an Rights.
93 See Loveland, I. (ed.) (1988) Im porting the First A m endm ent. O xford: H art Publishing.
9-1 See, for exam ple, the striking out of an action brought by British Coal against the National
Union of Miners: British C oal C orporation v N U M , 28 June 1996, QBD.
The media 203
Under the European Convention, free speech is recognised as fundam ental to a

democratic society and clearly involves robust criticism. The highest protection is
given to political speech including that by the press.95 Political speech is broadly
defined to include all m atters of public interest. A legal requirem ent that critics
must prove the truth of their claim s about politicians is likely to be incom patible
w ith A rticle 10. The protection extends to attacks not just on governm ental
institutions but to individual politicians and officials including the police.96 The
test as laid down in Derbyshire, in so far as it excludes individuals and is, perhaps,
confined to governm ental bodies and not a fuller range of public bodies, m ay be
too narrow ly described and the law will need to develop m ore broadly.
A s a general rule, a restraint on freedom of speech under the Convention
can be justified in order to advance dem ocracy and so, under A rticle 10(2), the
kinds of argum ents pressing for restraints in order to encourage participation
in the dem ocratic process can be m ade. In particular, the Convention expressly
perm its restrictions on speech in order to protect privacy. Politicians and
public figures clearly have rights o f privacy and these can be upheld against
the press at least when they have no appreciable bearing on the public m atter
in issue.97 Prying intrusion into the private lives o f politicians threatens
political participation. The Convention can help to provide a protection from
this w hich can be properly balanced with the right to freedom of speech.
11.6.3 Protection of sources

The law perm its a degree of protection for journalists who w ish to protect their
sources from legal action by an aggrieved party. The protection of sources is
a m atter of great concern to the m edia; in particular it enables them to receive
stories from sources who would otherw ise not volunteer or sell the inform a
tion. It is essential to the trust that journalists need to enjoy and protects them
from being unw illing police inform ers, a role in which the reporting of
controversial events would be im possible. The public interest in a free media,
to have know ledge of public affairs on w hich political judgm ent can be based,
requires the protection of sources.
A court order requiring a journalist to disclose his or her sources can be
required as part of other proceedings, such as an action for breach of
confidence w hen the order is sought to identify the person responsible for the
breach or w here the police seek an order for the disclosure of journalistic
m aterial under PACE 1984. There is no requirem ent that the journalist or
media organisation should, them selves, have com m itted a wrong, just they
have got 'involved in' in another's wrong doing.98 Orders requiring the
disclosure of sources cannot be m ade unless they com e w ithin the exceptions
found in section 10 of the C ontem pt of Court A ct 1981."
95 Lingens v A ustria (1986) 8 EHRR 407; Castells v Spain (1992) 14 EHRR 445; O berschlick v Austria
(1998) 25 EHRR 357.
96 For exam ple, Thorgiersen v Iceland (1992) 14 EHRR 843.
97 For exam ple, D e Haes and Gijsels v Belgium (1998) 25 EHRR 1.
98 A shworth Security H ospital v M G N Ltd [2002] UKHL 29; [2002] 1 W LR 2033, com menting on the
jurisdiction first developed in N onvich Phartnacal Co. v C ustom s and Excise C om missioners [1973]
2 All ER 943.
10 Sources of information
N o court m ay require a person to disclose, nor is any person guilty of contempt of
court for refusing to disclose, the source of information contained in a publication
for which he is responsible, unless it be established to the satisfaction of the court
that disclosure is necessary in the interests of justice or national security or for the
prevention of disorder or crime
The cou rts have recognised that the n ecessity test m eans that the interests of
a free press are to b e given a significant w eighting but it is one that can,
nevertheless, give w ay if the interests o f ju stice etc. are 'p rep o n d eratin g '.100
The 'interests o f ju stice', for exam ple, has been used to ju stify ordering
d isclosure in o rd er to identify a disloyal em ployee w ho had com m unicated
confidential and sensitive com pany inform ation to a journalist, in te re s ts of
ju stice' w as given a w ide m ean in g to enable persons, inclu d ing com panies, 'to
exercise im portan t legal rights and to protect them selves from seriou s legal
w ro n g s'.101 This approach has continued after the com ing into effect o f the
H um an Rights A ct 1998.102 T h e section has also been used to require the
d isclosure o f sou rces w here m ed ical con fid entiality has been b reach ed .103
D isclosure m igh t be ord ered w here there is an ind ication that the sou rce has
breached legal privilege, but this is not n ecessarily the c a se .104
Th e prevention o f crim e exception in section 10 has been used to require
d isclosure in the con text o f com pany fraud investigations w hich m ight (not
w ould) resu lt in crim inal cases even w here there w as no need for the party
seekin g d isclosure to identify the p articu lar crim e in issu e.105
The national security provision has been used to ord er d isclosure in order
to id entify a potentially d isloyal civil serv an t.106
The ability o f jou rnalists to protect their sou rces is recognised by the
European C ou rt of H um an Rights as b ein g an im portant aspect o f freed om of
expression and the pu blic good inherent in freedom o f the press. In Goodw in
v U nited Kingdom (1996),10/ the court asserted the im portance o f protection and
argued that any ord er for disclosure m u st be justified by 'an overriding
requ irem ent in the pu blic interest'. T h e co u rt's view o f the p articular case w as
that the d isclosure o f sources w as d isproportionate.108 U nited K ingdom courts
take the view that the basic structure o f section 10 o f the C on tem p t o f C ou rt
A ct 1981 is com p atible w ith the C onvention. In A shw orth Security H ospital v
99 W ebsite operators do not enjoy the s. 10 defence to an ord er for disclosure: Totalise Pic v M otley
Fool Ltd (2001) The Tim es, 15 M arch.
1W X v M organ G ram pian [1990J 2 All ER 1 (HL)
101 X v M organ G ram pian [19901 2 All ER 1 (H L); see also Cam elot G roup v C entaur Com m unications
[1998] 1 All ER 251.
102 ln terbreiv S/1 v Fin an cial Tim es [2002] E W C A C iv 274.
,0:, Ashzvorth Security H ospital v M G N Ltd [2002] U K H L 29; [20021 1 W LR 2033.
104 C om pare S aunders v Punch Ltd (trading as Liberty Publishing) [1998] 1 All ER 234 and john an d
others v Express N ew spapers pic an d others [2000] 3 All ER 257 CA.
105 R e an Inquiry under the Com pany S ecurities (Insider D ealing) A ct 1985 [1988] AC 660.
106 Secretary o f State fo r D efence v G uardian N ew spapers Ltd [19841 2 W LR 268
,07 (1996) 22 EHRR 123
108 See also K v A ustria A /2 5 5 -B (1993) C om Rep; Fressoz an d R oire v F rance [1999] EH RLR 399,
cited in Starm er, K. (1999) European H um an Rights Lazv. London: LAG, 24.42.
The media 205
M G N Ltd (2002)109 the H ouse o f Lords stressed that there m u st be a strong case
requ iring disclosure w hich w as p rop ortionate in each p articular case. Even so
critics o f these disclosure cases take the view that insufficient w eight is given
to the public interest in a free m ed ia w hen the courts exercise their discretion.
109 [20021 U K H L 29; [2002] 1 W LR 2033.

12
Contempt of court
Freedom of expression, particularly freedom of the m edia, can be restricted in

order to preserve the integrity of the judicial system and the fairness of trials.
The law on contem pt of court creates crim inal penalties for those w ho interfere
directly or indirectly with the progress or integrity of court proceedings.
The behaviour capable of being contem ptuous was first categorised in the
eighteenth century.1 The law has gone through considerable developm ent and
the m odern law w as sum m arised, by the Phillim ore Com m ittee in 1974,2 as
including:
'C o n te m p t in th e face o f th e c o u r t', fo r e x a m p le , th ro w in g m issile s a t th e ju d g e ,

in s u ltin g p e rso n s in c o u r t, d e m o n s tr a tin g in co u rt.
(a ) C o n te m p t o u t o f co u rt: (i) r e p risa ls a g a in st w itn e ss e s a fte r th e co n c lu sio n o f
p ro c e e d in g s ; (ii) 's ca n d a lis in g th e c o u r t', fo r e x a m p le , a b u sin g a ju d g e q u a ju d g e
o r a tta c k in g his im p a rtia lity o r in te g rity , (iii) d is o b e d ie n ce to a c o u r t o rd e r, (iv)
c o n d u c t, w h e th e r in ten tio n al o r n o t, liable to in te rfe re w ith th e c o u r s e o f ju stice
in p a r tic u la r p ro c e e d in g s ' . . .
It is clear from the list that the law of contem pt of court can create tensions
betw een fair trials and free expression, especially of the m edia. These issues
are dealt w ith both under the com m on law w hich requires intention to attack
the integrity of court proceedings and, under the Contem pt of Court A ct 1981,
in respect of publications that have the unintended consequence of prejudicing
the outcom e of a trial.
12.1 Fair trials and media freedom
12.1.1 Open justice

In any society that values the rule of law there is a strong, legitim ate, public
interest in m aintaining the openness of the judicial system . The law expresses
the will of society and so society has an interest in understanding how it is
given effect. Through the legal process, punishm ent m ay be sanctioned,
property disposed of, fam ilies separated and so on. Such coercive acts should
be done publicly and openly. Secret justice that cannot be challenged or
1 Roach v Garvan (1742) 2 Atk 469.

2 Philimore Com m ittee (1974) Contempt o f Court, Cm 5794.
Contem pt o f court 207
com m ented up on is, w ithou t som e o v erriding ju stification , an abuse or, at the
least, a condition un der w hich abuse is likely. The pu blic natu re o f the
ad m inistration o f ju stice lessens d istrust of the ju dicial system , provides a
strong incen tive for judges, law yers and other practitioners to m ain tain a full
com m itm ent to im partiality and to the other virtues o f the rule o f law , and
m akes it hard er for im p rop er or abusive p ractices to develop.
A s w ell as in the general process, there can be an equally strong public
interest in the personnel or the subject m atter o f particu lar trials. Fam ous
people, abou t w hose d eed s the pu blic like to know , m ay be accu sed of crim e
or m ay be p u rsu ing a legal righ t through the civil cou rts; a trial m ay be dealing
w ith a shockin g crim e or w ith a m atter o f great social concern, or m ay be part
o f an o ngoing p olitical con trov ersy or seem like an attem pt by the governm ent
to silence its opponents.
There is also the in d ividu al interest o f d efen d an t or litigant that the trial
process should be open. A strong sense o f griev ance and enhanced pow erless
ness is likely from som eone im prisoned, fined, m ad e to p ay d am ages and so
on through a secret process o f w hich there is little or no pu blic know ledge.
This argum en t, o f course, is con tin gent on the circu m stances. T here can be
equally strong reasons w hy an individual d efen d an t or litigan t w ould prefer
the m atter to be decided quietly and privately behind closed doors. Personal
sham e and the p rotection o f con fid ential m atters are tw o obviou s reasons.
There is no 'rig ht' to open ju stice in the sen se o f an en titlem en t capable of
bein g w aived in favour o f secrecy. The public interest controls the m atter.
It is not enough to d isch arge the legitim ate public interest and the litigan t's
con tin gent interest in open ju stice m erely by allow ing the pu blic to attend a
trial. T h e m ost effective w ays o f providing the pu blic w ith the kn ow led ge they
are entitled to should be used, and this im plies m edia freedom to rep ort and
com m ent on the legal system and the trial process.
12.1.2 Fair trials

The p roblem is that openn ess and m edia freed om can som etim es conflict w ith
the pu blic and ind ividu al interest in fair trials. P ublicity and m edia com m ent
can, for exam ple, u n derm ine the effect of the rules o f evid ence on w hich a trial
is conducted . T hese ru les protect against trials bein g decided on the basis of
irrelevant bu t prejudicial inform ation about the m atters in issue or the persons
involved and this requ ires significant m edia restraint. Sim ilarly there are good
reasons, reflected in pu blic policy, w hy certain categories o f d efen d an t or
litigant should be protected from p u blic scrutiny. C h ild ren and you ng persons,
the m en tally handicap ped, d ivorcin g spouses, rape com p lain ants and others
are entitled to v arying degrees o f con fid entiality in the legal and trial process
w hich the pu blic and the m edia m u st respect. M edia com m ent m ay also
have the effect o f influencing the outcom e o f a trial b y com m enting not only
the trial itself but also on underlying issues. A further threat derived
from open ju stice is that com m ent m ay un d erm ine respect for and the
integrity o f the judicial system w hich, again, m ay be d etrim ental to the public
interest.
12.1.3 Priority to fair trials

C learly, therefore, there need s to be a recognition in the law o f these two
significant pu blic and individual interests: open ju stice and fair trials.
H ow ever, the m etap h o r o f 'w eigh in g ' these interests is not necessarily
appropriate. It is strongly arguable that the requ irem ents of a fair trial should
be m et before those o f open ju stice and freed om o f the m edia. T h e public
interest in, for exam ple, kn ow in g that the d efen dan t in a high -profile trial has
a long list o f earlier convictions is not to be put into the balance w ith the rules
o f ev id ence w hich prohibit pu blication o f such inform ation. O p enn ess requ ires
that the restraints on m edia freed om should be no m ore than is necessary for
a fair trial, a different exercise from balancing the tw o interests. Few w ould
disagree w ith this as regards protecting the rules o f evid ence and the integrity
o f the trial process. Problem s o f 'w eigh in g ' the different interests do still arise
in respect of m edia com m ent on the u n derlyin g issues o f a trial or on the
general integrity o f the ju d icial system .
The issues are, first, to id entify restraints on freed om o f the m edia that are
necessary to protect the integrity o f the trial process and, second, how to give
proper w eight to a free m edia, fair trials and the integrity o f the legal system
in the con text o f com m ent on issues. It should be noted that these serious
public interests are open to abuse and litigan ts' invocations o f fair trials or
m edia freed om m ay som etim es reflect private interests that the law need not
reflect. P rom inent persons m ay, for exam ple, seek to silence m edia criticism
by com m encing legal proceedings; con versely the m ed ia's interest in a m atter
before the cou rt m ay be, in reality, no m ore than a com m ercial d esire to
increase sales by sen sation or d istortion.3
12.2.1 Article 6, fair trial

English cou rts recognise that H RA 1998, Sch ed u le 1, A rticle 6 p rovides a 'right
to a fair trial' and they have m ade it clear that the right, once establish ed , is
absolu te.4 W hat the right entails, how ever, is far from clear. There is no express
reference to con tem pt in the C on vention, but in so far as the law o f contem pt
is necessary to m aintain the rules o f evid ence and the fairness o f the trial
p rocess, it is likely to be required by A rticle 6.
A rticle 6(1) grants a righ t to a ' . . . p u blic' hearing and this certainly perm its
m edia coverage o f trials. If this w as an individual right it w ould be cap able of
b ein g w aived by a litigant. H ow ever, pu blicity also reflects the public interest
in open ju stice and the C on vention w ould not ju stify a litigan t's requ est for
privacy.5
3 See G robbelaar v N ew s G roup N ew spapers Ltd an d an other [2001) E W C A C iv 33; 12001] 2 All ER 437
for judicial aw areness of the point in the context of the qualified privilege of the m edia.
4 R v A [2001] 3 All ER 1.
5 See A xen v G erm any (1984) 6 EH RR 195: publicity assists the aim of a fair trial by protecting
litigants and defendant from secret justice and helps m aintain public confidence in the courts.
The detail of the rules on publicity depend on the circum stances of the case.
C ontem pt o f court 209
In certain circu m stan ces A rticle 6 expressly allow s the m edia and public to
be exclu d ed from trials. T h ese are for reasons that are w id ely recognised as
ju stifying con fid entiality in the trial process: 'the interests o f m orals, public
ord er or national secu rity in a d em ocratic society, w here the interests of
ju veniles or the protection o f the priv ate life o f the parties so requ ire . . . ' The
C on vention langu age m akes it at least arguable that states have a d uty to
exclu d e the pu blic and m edia in clear cases. Publicity can also be restricted 'to
the extent strictly necessary in the opinion o f the cou rt in special circu m stan ces
w here pu blicity w ould preju dice the interests o f ju stice'.
12.2.2 Article 10, freedom of expression

Such restrictions on p u blicity or m edia reporting o f trials w ill need to be
com patible w ith A rticle 10. T he com p atibility o f the com m on law contem pt
w ith the 'prescribed by law ' requ irem ent o f A rticle 10, w hich inclu des the
requ irem ent that the circu m stan ces in w hich con tem p t w ill be invoked m ust
be reasonably foreseeable, w as accepted in Sunday Tim es v UK (1 9 7 9 -8 0 )/’ The
case is referred to at a nu m ber o f points in this chapter.
The Sunday Times sought to publish articles critical of a drug company which, in the
view of the newspaper, was refusing to make a generous settlement to victims of the
thalidomide tragedy and, as a potential defendant, was using its legal rights to hinder
the victim’s actions for compensation.
HELD: the proposed articles could be contemptuous. It involved prejudgment of the
trial.
Attorney General v Times Newspapers [1974] AC 273
Times Newspapers took the case to the Court of Human Rights.

HELD: the ban on the articles was a disproportionate restriction on freedom of
expression and violated Article 10.
Sunday Times v United Kingdom (1979) 2 EHRR 245
T hou gh the U nited K ingd om lost the case on the p roportionality p oint, som e
im portan t aspects o f the con tem p t law w ere upheld.
C o m p atibility w ith A rticle 10 requ ires that con tem pt restrictions m u st be for
one o f the legitim ate aim s listed in A rticle 10(2). The Strasbou rg case law has
d ealt w ith con tem pt as involving restrictions on expression w hich aim at
'm ain taining the au th ority and im partiality o f the ju d iciary '. T his p hrase has
been held to inclu d e the m atters covered by the English law on con tem pt.7 The
p hrase covers not only m atters relating to the m achinery o f ju stice, the
ju d iciary and the trial process but, im portantly, it extend s to inclu de the
ind ividu al rights o f litigants to a fair trial.8 T h e gen eral ap p roach has been
recently d iscu ssed by the Court.
6 (19 7 9 -8 0 ) 2 EH RR 245. See also 'A significant body of case law on the applicability and content
of contem pt law have been developed so as to m ake it "reasonab ly accessible and foreseeable" ':
C Ltd v U nited Kingdom (1989) Ap. 1 4 1 3 2 /8 8 .
7 S unday Tim es v U nited Kingdom (19 7 9 -8 0 ) 2 EH RR 245, paragraph 55.
8 S unday Tim es v U nited Kingdom (19 7 9 -8 0 ) 2 EHRR 245, paragrap hs 5 5 and 56.
W, a journalist, wrote a critical article about a senior Austrian politician who was on
trial. The article implied the politician’s guilt and was published before the court gave
its verdict. W was convicted under a contempt law that prohibited publications which
influenced the outcome of judicial proceedings.
HELD (EctHR): there had been no violation of Article 10.
Worm v Austria (1998) 25 EHRR 454
L egal restrictions aim ing to prevent pu blications w hich m ay lead to preju d g

m ent o f trials w ill, in general term s, be com p atible w ith the C onvention. The
C o u rt's d iscu ssion m akes it clear that states m ay restrict pu blications in order
to protect the ad m inistration o f ju stice gen erally - con tem p t need not be
confined to the particu lar circu m stan ces of an individual trial. Penalties for
m akin g serious allegations against cou rt officials have been found to be
com p atible w ith the C on vention9 as have crim inal p enalties for m aking
u n found ed, d estru ctiv e attacks on the ju d iciary .10
A t the sam e tim e, in Worm v A ustria, the C ou rt insisted on proper
recognition for freed om o f expression. Freed om o f expression protects
vigorous d iscu ssion o f 'p u blic affairs' and this can clearly inclu de the judiciary,
the cou rt system generally and also m atters that are the subject m atter o f trials.
Prior or con tem poran eou s d iscu ssion o f general issues that com e before the
courts should be perm itted. Freedom o f expression can only be restricted to
the m inim um extent necessary to uphold the au th ority and im partiality of the
courts and it m ay be that the C ou rt is sig nalling a sligh tly greater tolerance of
attacks on the ju diciary. In D e Hues and G ijsels v Belgium (1998),11 successful
d efam ation proceedings against jou rnalists w h o had m ad e seriou s allegations
o f bias against ju d g es involved in child abuse cases w ere held to be a violation
o f A rticle 10. The allegations did not involve p reju dgm ent o f cases and they
w ere found by the court to be w ell research ed .12 T h e C ou rt in Worm v A ustria
also expressed con cern about a threat o f psued o trials or trial by m ed ia and,
gen erally, the Strasbou rg auth orities have not found reason to object to bans
on m edia re-enactm ents o f trials w hile they are going o n .13
A rticle 10 requ ires restrictions on freedom o f expression to be 'n ecessary in
a d em ocratic society ' in the sen se o f bein g a p rop ortionate response to a
p ressing social need. T h e facts and circu m stan ces o f ind ividu al cases are
im portant. The fact, for exam ple, that attacks on the ju d iciary are w ell
researched or only likely to have a m inim al p reju dgm ent effect w ill be relevant
to the decision. In Worm v A ustria evid ence o f an intention to influence the
outcom e o f proceedings ind icated that the penalty w as proportionate. In
Sunday Tim es v U nited Kingdom the issue w as w hether the risk o f prejudgm ent
o f a future civil action for negligence could prevent the pu blication o f a well
researched article d ealing w ith responsibility for a m ajor drugs tragedy
9 P rin ce v United Kingdom (1986) Ap. 1 1 4 5 6 /8 5 ; 46 D&R 222.

10 Prager an d O bserschlick v A ustria (1995) 21 EH RR 1; Barfod v D enm ark (1989) Ap. 1 1 5 0 8 /8 5 .
11 (1998) 25 EH RR 1.
12 The attacks can be com pared to the unfounded allegations m ade in Prager and Barfod,
m entioned above. A ttacks on the private lives of judges could, how ever, be legitim ately dealt
w ith by law.
13 C Ltd v United Kingdom (1989) Ap. 1 4 1 3 2 /8 8 ; H odgson, W oolf P roductions, N U ] an d C hannel Four
T V v U nited Kingdom (1988) EHRR 503.
inv olv ing hu nd reds o f people. The C ou rt found against the U nited K ingdom
on p rop ortionality grounds: in the circu m stan ces B ritish cou rts had not given
enough w eight to freed om o f speech, the litigation w as d orm ant, there w ere
substantial public interests dealt w ith by the article, the article had a m od erate
tone and the term s o f the ord er restrainin g p u blication w ere too w id e.14 The
C ou rt o f H um an R ights recognises that states have a m argin o f appreciation
ov er the n atu re and extent o f their con tem pt ru les.15 H ow ever, that m argin is
quite narrow and the C ou rt is capable o f detailed scru tin y o f particu lar cases
to ensure that these tw o im p ortan t C on vention values, fair trials and freedom
o f expression , are properly upheld.
1 2 .3 The courts to which contempt law applies
Section 19 o f the C o n tem pt o f C ou rt A ct 1981 applies the con tem p t ju risd iction
to any tribunal or b o d y w hich is exercising the 'the ju dicial pow er o f the state'
and this has been accepted as also applying to con tem pt at com m on law .16 The
'su p erior cou rts' (the H ouse o f L ords in its appellate ju risd iction , the C ou rt of
A ppeal, the H igh C ou rt and courts w ith H igh C ou rt status, the C row n C ou rt
and the C ou rts-M artial A ppeal C o u rt17) w hich are u n am bigu ously part o f the
ju d icial system are subject to the con tem pt ju risd iction as are the m ag istrates'
cou rts.18 A d m in istrative tribunals w hich can m ake coercive ord ers affecting the
rights of in d ividu als, such as local v alu ation cou rts,14 em p loym ent tribu n als20
and, given their pow er to ord er a p atien t's release, m ental health review
tribunals,21 are also w ithin the scope o f the con tem p t ju risd ictioii. The
d iscip linary panels o f the p rofessions, how ever, are not con sid ered to be part
o f the 'judicial pow er o f the state' and, d espite the im pact o f their decisions,
are not able to protect their p roceedings by m ean s o f con tem pt o f cou rt.22
1 2 .4 Civil and criminal contempt
C on tem p t is crim inal in natu re in the sen se that it involves pu nishm ent and
the crim inal standard o f pro of is required. T h e con ven tional langu age is to
d istin gu ish 'civ il' from 'crim in al' contem pt. A 'civ il' con tem p t involves
p u nishm ent for breach o f a cou rt order; 'crim in al' con tem p t refers to the other
form s o f interference w ith the judicial process covered by the concept of
contem pt. C iv il con tem pts are pred om inantly m atters for the parties; other
contem pts are usually raised b y the A ttorney G en eral.23
14 S unday Tim es v U nited Kingdom (1979) 2 EHRR 245, paragraphs 6 2 -7 .

15 For exam ple, S unday Tim es v U nited Kingdom (1979) 2 EH RR 245, 268; P rager an d O bserschlick v
A ustria (1995) 21 EHRR 1, paragrap h 35.
16 Pickering v A ssociated N ew spapers H oldings Pic [1991] 2 AC 370, 380 per Lord Donaldson. The
point w as not com m ented upon by the H ouse of Lords.
17 Defined in s. 19, C ontem pt of C ou rt Act 1981.
,s The C ontem pt of C ou rt A ct 1981, s. 12, expressly gives m agistrates pow er to deal w ith persons
w ho wilfully insult the court or wilfully interrupt proceedings.
19 A ttorney G eneral v BBC 119811 A C 303.
20 Peach G rey & Co (a firm ) v Som m ers [1995] 2 All ER 513 ('industrial tribunals').
21 Pickering v A ssociated N eivspapers H oldings Pic [1991] 2 AC 370.
22 G eneral M edical C ou n cil v British Broadcasting Corporation [1998] TLR 372.
12.5 Penalties for contempt
C rim inal contem pt is tried sum m arily by the H igh Court in the absence of a
jury. M agistrates can punish for their own contem pts. A fine, im prisonm ent
up to tw o years24 and in som e cases an injunction to stop repeated contem pts
are available. Civil contem pts can be punished in the sam e way though
com m ittal to prison should be very rare and the court has an additional pow er
to order sequestration of property. Cases involving a strong public interest can
be brought by the A ttorney General. The hearing for contem pt is independent
from the proceedings to which the contem pt relates and is governed by
particular rules of court. Fair trial provisions, including A rticle 6 rights, must,
of course apply.
In exceptional circum stances, such as (but not confined to) w here the
contem pt is in the face of the court, it m ay be dealt w ith sum m arily and
im m ediately by the judge. W hether a judge in such circum stances can be
thought of as properly independent m ust be doubted. This pow er of im m ediate
com m ittal was retained by the courts in Balogh v St Albans Crown Court (1975)25
but recognised as being 'rough justice' and 'arbitrary, contrary to natural justice,
and far rem oved from the ordinary processes of the law ' and so should only be
invoked in the m ost pressing circum stances w here no other course is available.
Com patibility with A rticle 6 ECH R provides further strength to this proviso.
A judge trying a crim inal case m ay feel that m edia com m ent on the trial is
so prejudicial that the trial should be stopped. That itself does not establish a
contempt. In such cases the judge will norm ally refer the m atter to the
A ttorney General w ho will decide w hether or not to bring contem pt
proceedings before the High Court. The High Court then decides w hether
there has been a contem pt and, if so, the appropriate punishm ent. The fact
that, in the end, the courts decide there has not been a contem pt of court does
not m ean that the judge was w rong to have stopped the trial.26
12.6 Civil contempt
The punishm ent of a person for disobedience to a court order is known as a

'civil contem pt'.27 This is largely a m atter dealing with the effective operation
of the legal system and the general effectiveness of the rule of law 28 and is
outside the scope of this book.29
A person m ay break a court order for broadly political reasons. Such a
reason is not a defence to a civil contem pt even if it is argued that the order
23 A ttorney General v N ew spaper Publishing pic [1988] Ch 333, from a passage (p. 362) in which Lord
Donaldson doubted the usefulness of the civil/crim inal distinction.
24 Contempt of Court Act 1981, s. 14.
25 [1975] 1 QB 73.
26 For exam ple, A ttorney G eneral v M G N Ltd and others [1997] 1 All ER 456.
27 Though see the doubts expressed bv Lord Donaldson in A ttorney General v New spaper Publishing
pic [1988] Ch 333, 362.
28 See, especially, M v H ome Office [1994] 1 AC 377 for the application of civil contem pt to a
minister of the Crown acting in his official capacity.
29 See, for exam ple, Halsbury's Law s o f England, 4th edn, reissue vol. 9(1) 'Contem pt of Court'
(1998), paragraphs 458-90.
ought not to have been m ad e becau se the ju d g e m isstated the law o r becau se
the judge w as m otivated by socio-political bias or som e other p olitical fault.
D isobed ience w ill be a con tem pt.30 Sim ilarly, m edia freed om and freed om of
expression gen erally does not outw eigh the d eterm ination o f the court to
m aintain the integrity o f judicial proceedings. The issue arises if publications
are m ad e alleged ly in breach o f a cou rt order. W hen a solicitor in a prisons
case gav e to a jo u rnalist d ocu m ents relating to special regim es in prisons, she
w as held to be in con tem pt of court. T h e d ocu m ents had been subject to an
ord er o f d isclosure and the solicitor had broken a ru le that d ocu m ents
disclosed in that w ay should not be used for any other pu rpose, inclu d ing a
political one. The case, H arm an v Secretary o f State fo r the H om e D epartm ent
(1982)31 w as high ly con trov ersial becau se the info rm atio n in the d ocu m ents
had been d isclosed in open court and, in any case, it seem ed that the
governm ent w as trying to keep d etails o f the treatm ent o f prisoners secret. A
m ajority o f the ju dges declined to see the im portan ce o f freed om o f expression.
In W eber v Sw itzerland (1990)32 the p u nishm ent o f a journalist for d isclosing a
confid ential m atter w as held to breach A rticle 10 by the C ou rt o f H um an
Rights. T h e m atter in issue had ceased to be confidential befo re the journalist
m ad e his d isclosure. In England and W ales the C ivil Proced ure Rules now
p erm it greater scope for the use o f d isclosed m aterial w hich has been referred
to in pu blic hearings though cou rt ord ers p reventing w id er d isclosure are still
p ossible.33
R ecen t cases show that hu m an rights, specifically freed om of expression, has
an im pact on the w ay in w hich b oth the actus reus and m ens rea o f civil
con tem p t34 is understood.
The Attorney General obtained a court order restraining S from disclosing information
he received while acting as a British intelligence officer. S then wrote articles for the
magazine Punch. The Attorney General, on the basis of the order, sought amend
ments to one of the articles but not all these amendments were included in the
published article.
HELD: the original court order aimed at protecting confidential information and the
publication of an article which destroyed such confidentiality satisfied the actus reus
of civil contempt. Publication of material already in the public domain did not offend
against such an injunction protecting confidentiality though publishing new material in
breach of confidence did. On the facts of the case there was no contempt because
the Attorney General had not made out the mens rea of contempt by showing
that the editor knew that the intention to protect confidentiality would be interfered
with.
Attorney General v Punch Ltd and another [2001] EWCA Civ 403; [2001] 2 All ER
655
30 M v H om e O ffice [1994] 1 AC 377; R v Socialist W orker Printers an d Publishers Ltd an d an other ex

parte A ttorney G eneral [1975] 1 QB 637.
31 [1982] 2 W L R 338.
32 (1990) 12 EH RR 508.
33 Rule 31.22(1), Civil Procedu re Rules.
34 The language of a crim inal offence is used by Lord Phillips MR in A ttorney G eneral v P unch Ltd
[2001] 2 AU ER 655, for exam ple.
This judgm ent, in line w ith A rticle 10 ECHR, insists that a court order
designed to protect confidentiality can only be enforced to protect inform ation
w hich has retained its confidential nature. If a court order has a different
purpose, to protect the overall integrity of the security service perhaps, then
enforcem ent can be in respect of a w ider, appropriate range of inform ation.
A rticle 10 ECH R m ay be in issue here since the need for such an injunction
m ay be difficult to justify under the Convention. In The Observer and the
Guardian v United Kingdom (1992)35 an injunction partly intended to protect the
integrity of the security service was only com patible with the Convention so
long as it protected genuinely confidential inform ation; once confidentiality
w as lost the injunction violated A rticle 10 despite its other purpose.36
12.7 Criminal contempt: intention and strict liability
The term 'crim inal contem pt' describes various form s of serious interference
w ith the course of justice generally and legal proceedings in particular. These
are com m on law offences and, as such, it is necessary to prove mens rea, that
the defendant intended so to interfere w ith the course of justice. A n action for
contem pt w ill fail, therefore, if the A ttorney G eneral cannot establish intention.
H ow ever, the com m on law used to recognise som e of these contem pts as
capable, also, of being com m itted on the basis of strict liability. Certain form s
of interference with the course of justice were offences irrespective of w hether
or not an interference w as intended. In Sunday Times v United Kingdom (1979)37
the com patibility of com m on law, strict liability contem pt with A rticle 10
ECH R (freedom of expression) was questioned. Subsequently, the Contem pt
of Court A ct 1981 was enacted. Its effect is that a prosecution for contem pt
requires proof of intention unless the contem pt can be brought w ithin the
term s of the Act. In sum m ary, strict liability is confined to 'publications' which
create a 'substantial risk' that the course of justice of particular proceedings
will be 'seriously impeded or prejudiced'. Contem ptuous acts w hich are not
'publications' or w hich do not interfere with particular proceedings but only
with the judicial system generally can only be prosecuted on the basis of proof
of intention. Conversely, a publication which creates a substantial risk that the
course of justice of particular proceedings will be seriously im peded or
prejudiced can be prosecuted, w ithout having to prove intention, only so long
as the requirem ents of the A ct are met. If, for exam ple, the prejudice from a
publication occurs before proceedings are 'active' and w ithin the effect of the
Act, it will still be necessary to prove intention. Sim ilarly certain defences are
only available if the contem pt is within the terms of the A ct; of particular
im portance is the defence that the interference was m erely an 'incidental' effect
of a good faith discussion o f public affairs.
35 (1992) 14 EHRR 153.

36 The O bserver and the Guardimi v United Kingdom (1992) 14 EHRR 153, paragraph 68.
37 (1979) 2 EHRR 245.
Contem pt o f court 215
12.8 The main forms of criminal contempt
1 2.8.1 Contempt in the face of the court

This form of contem pt involves, usually, physical acts that interfere directly
with court proceedings. The use of violence against judges, parties, witnesses
and other court personnel or interrupting proceedings and m aking speeches
or allegations are the kinds of things covered by this category of contem pt.38
Intention to interfere with the course of justice is likely to be easy to prove and,
in any case, such actions are unlikely to com e w ithin the terms of the
Contem pt of Court Act 1981.
Interrupting court proceedings can be part of a political cam paign.
Welsh students, protesting about the lack of official status for the Welsh language in
Wales, interrupted a libel case by shouting slogans, scattering pamphlets and singing
songs. The trial judge had them committed instantly to prison for contempt.
HELD (CA): their punishment for contempt was lawful; their good faith justified a
lesser degree of punishment.
Morris & others v Crown Office [19 7 0 ] 2 Q B 114
M aking such a protest speech in court is now likely to be a 'publication' for

the purposes of the Contem pt of Court A ct 1981,'19 however, defendants who
intend to disrupt proceedings would not have the benefit of the 'public
interest' defence,40 available to those prosecuted under the A ct because it only
applies to w here the interference is 'incidental' w hich is not the case with a
politically inspired interruption.41 Such protestors have rights under A rticle 10
(freedom of expression) and 11 (freedom of assem bly and association) ECHR.
H ow ever, protecting the integrity and effectiveness of the trial process is,
certainly under A rticle 10 and, arguably, under A rticle 11, a legitim ate purpose
which justifies states in im posing proportionate restrictions on the exercise of
these freedom s.
1 2 .8 .2 Indirect interference with court proceedings and access to

court
A ctions taken outside the court w hich interfere w ith particular trials or with
the judicial process generally can be punished for contem pt. This, typically,
involves bribing, threatening or punishing w itnesses or litigants so as to deter
them and perhaps others from the court. U sually such actions will be outside
the scope of the Contem pt of Court Act 1981 because they do not involve
'publication'. Often proving intention is not likely to be a problem.
38 For exam ples see Halsbnry's Laws o f England, 4th edn, reissue vol. 9(1) 'Contem pt of Court'
(1998), paragraph 407.
39 Section 2(1), Contempt of Court Act 1981 includes within the definition of 'publication' any
'speech . . . which is addressed to the public at large or any section of the public'.
40 Section 5, Contem pt of Court Act 1981 which is discussed below.
41 See also Bodden v Com m issioner o f Police fo r the M etropolis [1989] 3 All ER 833, which involved a
protest rally about one trial which could be heard in and interfered with another trial.
Continuing the rally could be a contempt.
G roups and associations w hich take action against their m em bers, officers
or those in their pow er for going to cou rt o r b ein g w itnesses can be liable for
this kind o f con tem pt ev en w hen their m otive is m ixed .42
P aym en ts to w itnesses b y the m ed ia, for exam ple, m ight also be a contem pt.
D espite a nu m ber o f alleged scand als, the Lord C h an cellor decided in A ugust
2002 that the m atter should, for the tim e being, be left to the self-regulatory
p ow er o f the Press C ouncil.
Interferences w ith the cou rse o f ju stice can stem from p u blications and raise
issues o f freed om o f speech. A rticles in new spapers or jou rnals, for exam ple,
m ay am ou nt to pressu re on a w itness not give evid ence or on a litigan t not to
pu rsu e a cause in court.43 T h e issue w as d iscussed in the Sunday Tim es
thalidom id e case44 w here the H ouse o f Lords defended the principle of access
to the cou rts and granted an injunction, on con tem p t ground s, to prevent
im p rop er pressu re b ein g put on w itnesses or litigants. The L ords accepted,
how ever, that there w as nothing un law fu l in reasoned argum en t w hich aim ed
to d issu ad e a person from exercising his or her legal rights. Lord C ross said:
'T o seek to d issu ad e a litigan t from prosecu tin g or d efen ding p roceedings by
threats of unlaw fu l action, by abuse, by m isrepresen tation o f the natu re of the
p roceedings or the circu m stan ces out o f w hich they arose or such like, is no
d oubt a con tem pt o f court; but if the w riter states the facts fairly and
accu rately, and expresses his v iew in tem perate langu age the fact that the
pu blication m ay bring p ressu re - p ossibly great pressu re - to b ear on the
litigant should not m ake it a con tem p t o f cou rt'.4"' T here w as no d iscu ssion of
this 'access to cou rt' point w hen the case w as before the C ou rt of H um an
Rights. G iven the im portan ce the Strasbou rg cou rt places on protecting access
to the courts, it can be suggested that legal ru les p u nishing im p rop er pressure
b ein g placed on potential litigants m ay be positive d uties required o f states.
Such restrictions on expression will need to be balanced w ith the requ irem ents
o f A rticle 10 EC H R and this d efen d s jo u rnalists' rights to m ake vigorous
com m ents on m atters in the public interest. Lord C ross's d istin ction betw een
p ersu asion on the basis o f reasons relevan t to the issue in hand and trying to
force, by threats or other form s o f pressu re, a person to renou nce their legal
rights w ould seem to be the principled basis fo r reconcilin g the tw o rights,
access to cou rts and freed om o f expression. O f cou rse any particular restraint
on a journalist w ill need to be p roportionate in the circum stances.
S in ce this type is con tem pt by p u blication, the C on tem pt o f C ou rt A ct 1981
m ay well be relevant. If an intention to interfere w ith a w itness or litigant
cannot be proven, the A ttorney G eneral m ay still proceed though only u n d er
the term s o f the A ct. If he does so, the d efen d an t has the benefit o f the d efences
42 A ttorney G eneral v Butterw orth an d an other [1963] 1 QB 696, w here a trade union w as in contem pt
for taking prejudicial action against an official w ho had given evidence against the union
interest in the Restrictive Practices C ourt. Action by the Prison Officers Association to deny
visits to m ental patients and so deter them from pursuing com plaints in the courts, as reported,
could also am ount to a contem pt.
41 See, for exam ple, A ttorney G eneral v H islop an d an other [1991] 1 QB 514, w here P rivate Eye
published derogatory articles about the wife of a serial killer in o rd er to deter her from pursuing
a libel action against them.
44 A ttorney G eneral v T im es N ew spapers Ltd (1974] A C 274; see above.
45 A ttorney G eneral v T im es N ew spapers Ltd [1974] AC 274, 326C , per Lord Cross.
available. W here there is evid ence o f an intention to interfere w ith the course
o f justice, the A ttorney G en eral seem s to have a choice o f how to p roceed .46
1 2 .8 .3 Scandalising the court

'Scand alising the cou rt' w as defined in R v G ray (1900)47 as 'an y act d one or
w riting published calculated to bring a cou rt or a ju d ge o f the cou rt into
contem pt, or to low er his au th ority '. A buse o f ju d g es or allegations o f bias and
preju dice, ind icatin g that a person had not had a fair trial, have been held to
be con tem p t on this ground.4* T h e offence involves an attack on the institution
o f the ju d iciary or on ind ividu al ju d g es and does not necessarily involve an
interference w ith p articular proceedings; the C on tem pt of C ou rt A ct 1981 will
not, therefore, apply and so an intention to act con tem p tu ou sly w ill need to
be proved.
Im portant issues o f freedom of speech are raised and these have usually
been recognised b y the courts. In R v C om m issioner o f P olice o f the M etropolis
ex parte Blackburn (N o. 2) (1968)49 it w as said that 'n o criticism o f a ju dgm ent,
how ever vigorous, can am ou nt to con tem pt o f court, providing it keeps
w ithin the lim its o f reasonable cou rtesy and good faith '.50 C ou rteous criticism
is law ful. T here could still be a prosecu tion in resp ect o f d isrespectful and
bad faith allegations o f bias w hich, therefore, m ay still be in con tem pt of
court.
A ny prosecu tion on such ground s w ould need to b e com patible w ith A rticle
10 ECH R.
Belgian journalists published strong and personal attacks on judges alleging that they
had been biased and cowardly in the way they handled a number of child abuse
cases. They were convicted of a criminal libel under Belgian law.
HELD (ECHR): the law must balance the protection of the integrity of the judiciary
with freedom of expression on public affairs. Apart from a particular attack on the
family of one of the judges, the conviction was, in the circumstances, disproportionate
and a violation of Article 10.
De Haes and Gijsels v Belgium (1998) 25 EHRR 1
In the case, the C ou rt o f H um an R ights recognised that the courts should enjoy
p u blic con fid ence and that ju d g es can be protected by law from unfounded
and d estru ctive attacks in clu ding allegations o f bias; this w as esp ecially so
since ju dges w ould norm ally be unable to respond to such charges. T he states
had a lim ited m argin o f ap p reciation con cern in g the specifics o f the law s by
w hich the protection w as achieved. Equally, how ever, it had to b e recognised
that the cou rts w ere im portan t pu blic institutions often d ealing w ith m atters
o f great pu blic con cern and the m edia and the pu blic should be able to speak
out about them . A rticle 10 protects speech w hich is aggressive, opinionated
46 A ttorney G eneral v H islop an d an other 11991] 1 QB 514 is an exam ple of a contem pt w hich w as
both com m on law and statutory.
47 11900] 2 QB 36.
48 R v G ray [1900] 2 QB 36; R v Editor o f the N eiv Statesm an ex parte D PP (1 9 2 7 -2 8 ) xliv TLR 301.
49 [1968] 2 QB 150.
50 See also A m bard v A ttorney G eneral for Trinidad an d Tobago [1936] AC 322, 335, Lord Atkin.
and w hich m ay offend, shock and d isturb; com m ent m ay involve exaggeration
and p rovocative language.
12.8.4 Contempt by prejudgment

P ublication s w hich involved the preju d g m ent o f issues before the cou rts could
be prosecu ted as a com m on law offence o f strict liability w ithou t the need to
prove an intention to interfere w ith the ad m inistration o f justice. This w as
confirm ed by the H ouse o f Lords in the Sunday Tim es thalidom id e case. The
articles in issue, in the un derstand ing o f the court, clearly im plied the drug
com p an y 's legal responsibility for w hat had happened even though this
responsibility w as the central issue w ith w hich legal p roceedings w ere
con cern ed. T h e court held that any such preju d g ing o f an issue w as capable
o f being a contem pt, n otw ithstand ing the p u b lish er's intention. W hether a case
w ould be b rou ght w as w ithin the d iscretion o f the A ttorney G eneral.
C on tem p t by p reju dgm ent at com m on law did not d epend on w hether the
pu blication is actually likely to preju d ice the outcom e o f p articu lar proceed
ings. The policy o f the law is against trial b y m edia and the con tem pt
ju risd iction can p u nish preju dgm ent in ord er to prevent any tend ency tow ards
this.
C on tem pt by p reju dgm ent is, in principle, com p atible w ith C onvention
rights, particu larly A rticle 10 (freedom o f expression). A litig an t's righ t to a
fair trial u n d er A rticle 6 ju stifies such restrictions on freed om o f expression
and they serve the legitim ate pu rpose o f 'm ain taining the auth ority and
im partiality o f the ju d iciary '. Worm v A ustria (1998) acknow ledges that law s
m ay enforce the principle o f the courts, not the m edia, b ein g the p roper forum
for d eterm ining disputes over civil rights and obligations and crim inal
charges51 and that this can be d one by restrictions w hich go further than just
stop ping interferences w ith p articular proceedings.
D espite its general acceptance o f the p rinciple of con tem pt b y preju dgm ent,
the European C ou rt o f H um an R ights n evertheless found, in the Sunday Tim es
case, that the potential w idth o f com m on law con tem p t cou ld, and did on the
facts, violate A rticle 10 E C H R .52 T his led to the enactm ent o f the C on tem p t of
C ou rt A ct 1981 w hose im pact is d iscussed below .
12.8.5 Prejudicing the jury

T rials should be d eterm ined solely on the basis o f evid ence presented in court.
T his is fundam ental to the com m on law and is im plicit in the righ t to a fair
trial, A rticle 6 E C H R and the princip le o f equality o f arm s. T o publish
inform ation, w hich is not part of the evid ence before the court, w hich m ight,
intentionally or not, affect, in one w ay or another, the even tual outcom e o f a
trial can be pu nished as a con tem p t o f court. Ju d ges w ill norm ally consid er
them selves im m u ne from any influence such pu blication m ay exert and so the
51 W orm v A ustria (1998) 25 EH RR 454, paragrap h 40.

52 S unday Tim es v United Kingdom (1979) 2 EHRR 245.
principal burden o f this form o f con tem p t relates to pu blications w hich m ay

preju dice a jury.
The existen ce o f preju dicial pu blications m ight be, first, ground s on w hich
a judge stops a trial from con tin uing, second , ground s for appeal if, for
exam ple, the trial ju d ge m erely d irected the ju ry to d isregard com m ents rather
than stop ped the trial, and, third, ground s for the A ttorney G eneral to bring
proceedings for contem pt. The stop ping o f a trial does not necessarily m ean
that there w as a con tem pt o f court; con versely, the fact that the A ttorney
G eneral does not bring proceedings for con tem p t or that such proceedings fail
does not m ean that the ju d g e w as w rong to stop the trial.53
Th e kinds o f press coverage that can persuad e ju d g es to stop trials or the
A ttorney G en eral to bring proceedings include: auth oritative statem ents by
officials d irectly or ind irectly ind icatin g the gu ilt of d efen d an ts54 (this is likely
to inclu d e assertions b y police that they have caught the gu ilty person);
revealing inform ation such as previous con viction s about a defendant;*5 and
asserting the existen ce of som e m atter w hich has been exp ressly denied by the
cou rt:56
Famous footballers were on trial for an attack on an Asian student. The judge had told
the jury that there was no evidence of a racist aspect to the attack. Late in the trial
the newspaper published an article by the victim’s father in which he alleged that the
attack was, indeed, motivated by race hatred. The trial was stopped and the Attorney
General brought contempt proceedings.
HELD: the newspaper was in contempt. It was fined £75,000 and made to pay the
Attorney General’s costs of £54,000. The costs of the retrial were very much greater.
Attorney General v MGN Ltd [2002] EWHC 907 Admin QBD
Sensational press coverage of even ts or o f trials involving fam ous personalities

has raised difficult issues. T he A ttorney G eneral has show n reluctance to bring
proceedings against the p op u lar press even though the trial w as stopped or
convictions set asid e on appeal."' C elebrities w ho are alread y given sen sation
alist treatm en t in the press m ay find it difficult to con vince a cou rt that
ad ditional stories, though relating to a trial, have increased w hatever preju dice
there alread y exists.
A soap opera star and an alleged East End villain, already the subject of major,
sensationalist tabloid interest, were involved in a criminal trial. While the judicial
process was under way sensational stories were published about the personalities
and circumstances before the court and the trial was halted. Proceedings for contempt
were brought by the Attorney General.
HELD: there was no contempt. The articles about the trial, in the circumstances, did
not create any greater prejudice than already existed.
Attorney General v MGN Ltd & others [1997] 1 All ER 456
53 A ttorney G eneral v M G N Ltd an d others [1997] 1 All ER 456; A ttorney G eneral v Birm ingham Post
[1998] 4 All ER 49.
54 R v M cCann an d others (1991) 92 C r A pp R 239.
55 A ttorney G eneral v Tim es N ew spapers Ltd (1983) The Tim es, 12 February.
56 A ttorney G eneral v M G N Ltd [2002] EW H C 907 A dm in QBD.
57 R v Taylor an d Taylor (1994) 98 C r A p Rpts 361.
Proceedings such as the exam ples given here, will norm ally be based on strict
liability rule and so m ust m eet the requirem ents of the Contem pt of Court Act
1981.
12.8.6 Frustrating, thwarting or subverting the purpose of a court

order made against others
It is a fundam ental principle that a court order is binding only on the parties
and is not a restriction on the world in general, including the media. A third
party can be liable if he or she aids and abets one of the parties in breach of
the order. M ore controversially, however, a third party can be liable for
contem pt of court if, w ithout aiding and abetting a party, they nevertheless do
som ething w hich they know has the effect of defeating the purpose for which
the court order w as made.
This form of contem pt of court is potentially a burden on the m edia since it
may prevent discussion of m atters w hich are subject to a court order. It arose
expressly in the context of the so-called Spycatcher litigation in w hich, in the
m id-1980s, the United Kingdom em barked on a long and com plicated series
of court cases in order to prevent the publication of a book of m em oirs by Peter
W right, a retired security service agent, and, also, of com m entary and extracts
in the national press. The governm ent was concerned that the disclosure of
confidential m atter obtained by a security agent would harm national security.
The m edia, on the other hand, believed there w as a strong public interest
which justified publication: the book contained, inter alia, allegations of
subversive58 and unlaw ful activities by the security services.59
In one of the cases the H ouse of Lords held that it could be contem pt of
court for a new spaper to know ingly publish an article which had the effect of
defeating the point of an injunction m ade against another paper.60 This
decision has recently been analysed in A ttorney General v Punch Ltd (2001), the
facts of which are described above.
The courts seek to m aintain the well established principles that only the
parties are directly bound by an injunction although there is liability for aiding
and abetting a party to breach an injunction. The point of the Spycatcher
injunction is that a third party can be liable, not for breaching the terms of the
injunction as such, but for the taking of an action w hich destroys the purpose
the court had in m aking the original injunction. In Attorney General v Punch,
for exam ple, the order against S was m ade to prevent the disclosure of
confidential inform ation which m ight dam age national security. A third party
would not be in contem pt if it published m aterial that was in the public
dom ain or which would not dam age national security, even if such a
publication broke the term s of the injunction. The third party is not liable
unless w hat it has done renders the point of the injunction obsolete. A third
party, for exam ple, m ust respect an injunction w hose point is to protect
confidentiality only so long as the m aterial rem ains confidential.
58 Specifically, gathering intelligence on members of the government.

59 For further details see Chapter 16.
60 A ttorney G eneral v Neivspaper Publishing Pic and others (19871 3 All ER 276.
This is a strict liability form o f contem pt. It m u st be proved that the person
in con tem p t knew that they w ere d estroying the effect o f an injun ction m ade
against others and that this w ould d estroy the point of the injunction. Strict
liability contem pt, as w e shall see, has a public interest defence in section 5 of
the C on tem pt o f C ou rt A ct 1981. Fu rtherm ore, the cou rts, as pu blic authorities,
are bound to act con sisten tly w ith the C on vention and, b y section 12(4) of the
H um an R ights A ct 1998, they m u st have 'p articu lar reg ard ' to freedom of
expression and to the extent it is in the pu blic interest for jou rnalistic m aterial
to be published. W hether these provisions w ill have any ad dition al im pact on
the w ay the courts han dle such injunctions rem ains to be seen.61
12.9 Strict liability and the Contempt of Court Act 1981
A t com m on law con tem p t based on inhibiting litigants and w itnesses from
their access to the court, con tem p t by p reju dgm ent and con tem p t by
p reju d icin g a ju ry can all be offences of strict liability and can be prosecuted
even if there is no ev id ence o f an intention to interfere w ith the cou rse of
justice. The other form s o f contem pt, such as con tem p t in the face o f the court,
ind irect in terference w ith court proceedings, scand alising the court o r fru strat
ing the pu rpose o f a court ord er norm ally requ ire p ro o f o f an intention to
interfere w ith the cou rse o f ju stice or at least pro o f that actions continued after
the d efen dan t obtained kn ow led ge that such in terference w as likely.
In relation to the form er, con tem p t in w hich the com m on law accepts strict
liability, if intention cannot be proved, then a prosecu tion , on the basis o f strict
liability, is only possible un der the term s o f the C o n tem pt o f C ou rt A ct 1981.
If those term s cannot be m et, any p rosecu tion m u st prove intentional
contem pt. T here is no requ irem ent that these types o f con tem p t can only be
prosecu ted un der the term s o f the A ct. It seem s the A ttorney G eneral has a
choice betw een proving intention and avoid ing the restrictions and defences
found in the A ct or not having to prove intention bu t accepting these
restrictions and defences.
P roving 'in ten t' m ay not be difficult. In A ttorney G eneral v Tim es N ew spapers
Ltd (1992) the C ou rt o f A ppeal held that the intention could be inferred from
the circu m stan ces and, in particular, could be ground ed on the fact that
im ped in g or p reju d icin g the ad m inistration o f ju stice could be foreseen even
if such an interference w as not desired and the person involved had other
intentions and m otives. T he court added that the 'm ore obvious the interfer
ence . . . the m ore read ily w ill the required intent be in ferred '.62 Thu s the fact
that a n ew spaper is m otivated by the pu blic interest, to tell a good story or to
m ake profit, w ill not enable it to escape liability if it foresees or has kn ow led ge
o f the likely preju dice to the ad m inistration of ju stice that w ill result.
61 In A ttorney G eneral v Punch [20011 EW C A Civ 403; (20011 2 All ER 655 the requirem ent in the
original ord er that the consent of the A ttorney G eneral should be obtained before publication
w as held, on free speech grounds, not to restrict third parties.
62 [19921 1 AC 191. The text says 'referred'.
12.9.1 The Human Rights Act 1998

A n action for con tem pt of cou rt based upon strict liability is subject to the
term s o f the C on tem pt o f C ou rt A ct 1981. Follow ing the bringin g into force of
the H um an Rights A ct 1998, the 1981 A ct m u st be interpreted , so far as
possible, for com patibility w ith the scheduled C on vention rights and p rosecu
tion d ecisions by pu blic auth orities m u st be con sisten t w ith those rights. The
tw o rights principally involved are A rticle 10 and A rticle 6 E C H R and, as w e
have seen, the C on vention perm its p roportionate restrictions on freed om of
expression in o rd er to m aintain the fairness o f trials and the integrity o f the
ju dicial system . A s w e shall see, the 1981 A ct perm its restrictions on freed om
o f expression only if there is a 'substantial risk that the cou rse o f ju stice in the
proceedings in question w ill be seriou sly im peded or preju d iced ' and, in
general term s, this is likely to be com p atible w ith the Strasbou rg ju risp ru
dence.63 O f course, the necessity in a d em ocratic society, the p roportionality,
o f any restriction on expression in o rd er to m aintain the fairness o f a trial will
also need to be assessed by the cou rt.64
12.9.2 Publications
The C on tem pt o f C ourt A ct 1981 restricts a p rosecu tion based on strict liability
to w here the interference w ith the cou rse of ju stice is b y 'pu blication '. This
term is w idely defined to inclu de speech, w riting, broad cast program m es and
any 'o th er com m u nication in w hatever form , w hich is addressed to the public
at large or any section o f the p u blic'. As said above, this can clearly cov er a
d em onstration inside or outsid e the court, though intention in such cases is
usually easy to prove and not in issue.
12.9.3 . . in the proceedings in question . . . '

Section 2 o f the C on tem pt o f C ou rt A ct m akes it clear that strict liability
con tem pt can only ap p ly to pu blications that interfere w ith the cou rse of
specific proceedings. G eneralised attacks on the ju diciary, on a p articular judge
or on the legal process cannot be punished for con tem p t w ithout p ro o f of
intention. In any case, as is ind icated by the d iscu ssion o f 'scan d alising the
cou rt' above, this form o f con tem pt is now very restricted to the m ost extrem e
situations.
12.9.4 Proceeding must be active

The question o f w hen the process o f ju stice begins and hence restraints on the
m edia should begin has been a p roblem in the com m on law . T he general test is
that proceedings m u st be 'im m in ent' or 'p en d in g ', but these are vagu e phrases
open to som e w idth o f in terpretation w hich m ay go to a tim e before som e
form al stage, such as an arrest or the institution o f p roceedings, has taken place.
63 Worm v A ustria (1998) 25 EHRR 454 discussed above; A ttorney G en eral v G uardian N eivspapers
Ltd [1999] EM LR 904, 918 per Collins ].
w A ttorney G eneral v G uardian N ew spapers Ltd [1999] EM LR 904, 923 per Sedley LJ.
The Sun, with the intention of succeeding in a private prosecution of a man accused
of child rape, published prejudicial articles. At the time of publication no proceedings
were active. The man was acquitted, and the Attorney General brought proceedings
for contempt.
HELD: common law contempt proceedings could be brought when proceedings
were ‘imminent’, as, it was accepted, they were in this case. In some circumstances
contempt proceedings could be brought even if proceedings were not imminent if
there was an overwhelming requirement to protect the administration of justice.
Attorney General v News Group Newspapers Pic [1989] QB 110
The case con tain s strong w ords on the need to 'cu rb' the excesses o f the press
in ord er to pro tect the righ t to a fair trial.65 This view , that w here there w as an
ov erw helm ing need, con tem p t could be brou ght in respect o f acts d one before
proceedings w ere 'im m in en t', w as follow ed but d oubted in A ttorn ey G eneral v
Sport N ew spapers Ltd and others (1992).“’ It w as held, how ever, that w here
proceedings w ere not at least 'im m in en t', it w ould be hard to prove the
n ecessary d egree o f intention. There w ould need to be a v ery high d egree of
probability that the foreseen interference w ith ju stice w ould in fact occur.67
Strict liability con tem pt only b ecom es possible once p roceedings are 'a ctiv e '68
and this is m ore p recisely defined than the com m on law test. 'A ctiv e' is defined
in Sch ed u le 1 to the C on tem pt o f C ou rt A ct 1981. T he sched u le is d etailed.
C rim in al p roceedings are 'activ e' once 'initial step s' have been taken such as an
arrest w ithou t a w arrant or the issue o f an arrest w arrant. They rem ain active
until 'co n clu d ed ' by, for exam ple, acquittal or sentence. C iv il proceedings are
'activ e', for exam ple, from the 'tim e w hen arrangem en ts for the hearing are
m ad e' such as the setting d ow n for trial in the H igh C ou rt o r the setting o f a
date for a trial or hearing, and so on. The rules have the v irtue o f con sid erable
precision w hich is helpful to the press com m enting on crim inal m atters. There
are still problem s. A person w ho v o lu ntarily assists the police and w ho is
subsequ ently arrested and charged w ith an offence m ay, prior to arrest, be
subject to highly preju dicial rep orting w hich is not subject to strict liability
con tem pt (though it could com e w ithin com m on law , intentional con tem pt).69
12.9.5 ' . . . substantial risk that the course of justice in the

proceedings will be seriously impeded or prejudiced'
Strict liability con tem pt should only be used in serious cases. The A ct gives
statu tory force and attem pted p recision to w hat has alw ays been the intention
o f the com m on law . O nly a p u blication w hich 'creates a substantial risk that
the cou rse o f ju stice in the p roceedings w ill be seriou sly im peded or p reju diced'
65 A ttorney G eneral v N ew s G roup N ew spapers Pic [19891 QB 1 1 0 ,1 3 4 per W atkins LJ.

66 [19921 1 All ER 503.
67 This would seem to be com patible with N rw s G roup anyw ay: w here there is a strong desire by
the m edia, for exam ple, to obtain a particular result from the judicial system and they are
prepared to perform prejudicial o r other contem ptuous acts in ord er to achieve it, it is
reasonable for the contem pt jurisdiction to be flexible enough to m eet this challenge.
68 Section 2(3), C ontem pt of C ou rt A ct 1981.
69 The issue w as raised by press treatm ent of Ian Huntley and M axine C a rr w ho w ere eventually
charged, with different offences, in connection with the m urder of tw o children in C am
bridgeshire in 2002.
224 Human Rights and Civil Liberties
can be the subject of strict liability contem pt. This term was discussed in
A ttorney General v English (1983).70 'Substantial risk' m eans a likelihood, to a
degree that need not be huge but is m ore than rem ote and not m erely m inim al,
that the course of justice in particular proceedings will be im peded or
prejudiced. It requires consideration of the factors, such as tim ing and
geographical scope, which m ay indicate this. 'Seriously im peded or prejudiced'
relates to the degree of im pedim ent or prejudice which will result if such a
'substantial risk' m aterialises. 'Seriously' has its ordinary m eaning which is left
to the court. The com plete expression excludes a publication which only creates
a rem ote risk of interference.71 Both the substantial risk and the serious prejudice
m ust be present. The factors by w hich they are identified are likely to overlap.72
Cases will be decided on their individual merits. If contem pt is alleged
against a num ber of publications, each publication must be looked at separately,
the law does not recognise contem pt based on the accum ulation o f publications
w here each one, in itself, is not contem ptuous.73 Sim ilarly, it is the likely im pact
of the publication at the tim e it was published which m ust be considered.
Various factors have been identified as needing consideration.74 O f particu
lar im portance is w hether the proceedings involve a jury. Proceedings which
are determ ined by judges alone, m ost civil proceedings and appeal hearings,
are assum ed to be professionally incapable of influence by m edia reporting7"
and so contem pt proceedings are unlikely.
W hether the risk of im pedim ent or prejudice is 'substantial' m ay depend
upon a range of matters. For exam ple, the likelihood that the publication in
issue will com e to the attention of the jurors or still be in their m ind at the time
of the proceedings is im portant. The place of trial as com pared with the area
of circulation of the publication'6 is relevant here as is the degree of
prom inence and sensational treatm ent that is given.7. The length of time
betw een publication and the proceedings at risk is im portant. In one case a
three-m onth gap was a m ajor reason for finding that there was no substantial
risk of prejudice w hile in another the fact of a six-m onth period between
publication and trial did not prevent a substantial risk.78 These various factors
m ust be weighed. A rem ote risk of serious prejudice cannot ground strict
liability contem pt.
Two Irishmen were arrested for murder. ITN news and, later, local London papers in
their first editions identified the men as escaped IRA prisoners. Their trial took place
nine months after the stories were published. The Attorney General brought contempt
proceedings.
70 [1983] 1 AC 116.
71 A ttorney G eneral v English [1983] 1 AC 116, 142, per Lord Diplock.
72 A ttorney G eneral v BBC [1997] EMLR 76, 81.
73 A ttorney G eneral v M G N Ltd and others [1997] 1 All ER 456.
74 See, in particular, the ten principles identified in Attorney General v M G N Ltd and others [1997]
1 All ER 456.
75 See R v Lonrho [19891 2 All ER 1100.
76 For exam ple, A ttorney General v Birmingham Post and M ail Ltd [1998] 4 All ER 49.
77 For exam ple, R v Taylor and Taylor (1994) 98 C r Ap Rpts 361.
78 Contrast A ttorney G eneral v News Group Nezvspapers Ltd [19861 2 All ER 833.
HELD (QBD): the stories, if remembered by jurors at the trial, would have been
highly prejudicial. Nevertheless, the Attorney General had not proved that there was
a ‘substantial risk’ of this happening. Because of the brevity and ephemeral nature of
a news item and the small circulation of the first edition of the papers and, in particular,
the time gap of nine months between publication and trial, the risk of serious prejudice
was remote, not substantial.
Attorney General v Independent Television News Ltd and others [1995] 2 All ER 370
D ifferent kind s o f factors relate to w hether the substantial risk w ill 'seriou sly '
preju dice or im ped e the cou rse o f ju stice in the proceedings. It is, p red om i
nantly, the im pact on the notional ju ror in the case w hich need s to be
consid ered. T h e jury will hear the case as a w hole and , in particular, the
ju d g e's d irection s to them . The ability o f a ju ry self-con sciou sly to be im partial
should not be un derestim ated. T hese m atters can be taken into accoun t in
con tem pt proceedings.71' It is the likely im pact o f the p u blication at the tim e it
w as published that is in issue; actual preju dice does not need to be proved and
the lack o f actual preju dice m ay be a factor in d eciding that the preju dice w as
not seriou s.80 T he fact that a judge found it necessary to stay proceedings,
d isch arge a jury and ord er a retrial is not o f itself con clusive evid ence that the
trial has been seriou sly im peded or preju diced, though it is a m atter o f great
w eight. W hether there should be a stay and w hether there has been con tem pt
are d ifferent qu estion s w ith con tem p t ind icatin g a lesser d egree o f preju dice
than required for a stay.81
Th e d egree o f seriou sn ess o f any preju d ice can d epend on w hether the
stories in issue add anything to w hatever existing preju dice there m ight be.
C elebrities w ho are already subject to m ed ia attention m ay find it hard to show
that stories about a trial they are involved in have ad ded to p op u lar preju dice
about them that alread y exists.82 W here, how ever, a ju ry m ay alread y have
som e p reju dicial know led ge, stories w hich add to and expand up on this m ay
be in contem pt.
Six IRA prisoners escaped from Whitemoor Prison. They were recaptured and put on
trial for escaping. The escapes had a great deal of media attention at the time and it
was accepted that, while the jury should not be told the nature and context of their
original offences, the jury would be presumed to realise that the original offences were
serious, might be connected with IRA activities and might relate to the well known
escape from Whitemoor. However, during the trial and despite the discharge of the
first jury, the Evening Standard published particular details of three of the defendants
and of serious allegations of prison officer complicity in the escape.
HELD (QBD): the Evening Standard story added significantly to the knowledge a
notional juror might already have. The story seriously prejudiced the defence in a way
that judicial direction could not redress. This was a serious contempt.
Attorney General v Associated Newspapers Ltd and another [1998] EMLR 711
79 A ttorney G eneral v M G N Ltd an d others [1997| 1 All ER 456.

80 The difference betw een contem pt and appeals on the grounds of an unsafe conviction because
of m edia prejudice is exposed here. A trial is not likely to be unsafe if there w as no actual
prejudice: A ttorney G eneral v Birm ingham Post an d M ail (1999] 4 All ER 49, 5 7 per Simon Brown
LJ.
81 A ttorney G eneral v Birm ingham Post an d M ail (1999J 4 All ER 49, 59 per Simon Brow n LJ.
82 A ttorney G eneral v M G N Ltd an d others 11997] 1 All ER 456.
Seriousness m ay depend upon the detailed content and nature of the

publication in issue. A sensational, m isleading treatm ent of a defendant m ay
be m ore prejudicial than a serious treatm ent,83 though the seriousness of an
article can be a factor in finding that prejudgm ent has occurred.*4 Publications
w hich disclose previous offences are likely to be seriously prejudicial.85 Stories
that m ake claim s a jury is likely to find authoritative, m ade by m inisters or
senior judges, for exam ple, are also likely to be looked at seriously.86 The fact
that a prejudicial statem ent is m ade in the obvious context of a hum ourous,
satirical program m e does not in itself exclude contem pt.87
The factors introduced in the previous paragraphs are not rules of law but
rather the kinds of issue that will be w eighed and considered in deciding
w hether there has been a contem pt that can be punished on the basis of strict
liability.
12.10 Defences that apply to strict liability contempt
12.10.1 Innocent publication

The Contem pt of Court Act 1981 perm its a num ber of defences. Publishers and
distributors m ay be able to defend them selves against strict liability contem pt
on the grounds that, despite taking reasonable care, they did not know that
the proceedings in question w here 'active' or (distributors only) that the
m aterial published was contem ptuous.
12.10.2 Contemporaneous reports

A person, usually a new spaper or broadcaster, can defend them selves from
strict liability contem pt on the grounds that the publication in issue was a 'fair
and accurate report of legal proceedings held in public, published contem por
aneously and in good faith'.88
The courts have the power to postpone such contem poraneous reports if it
appears necessary so to do in order to avoid 'a substantial risk of prejudice to
the adm inistration of justice in those proceedings'. Clearly there is a potential
conflict betw een the public interest in trials, expressed in the m edia's need for
topicality,89 and the dangers that contem poraneous reports m ay underm ine the
fairness of trials by prejudicing juries, adding to the pressure on defendants
and w itnesses or by creating an atm osphere in w hich w itnesses, defendants
and even the judge90 sensationalise and over-dram atise proceedings in order
83 The reporting in R v Taylor and Taylor (1994) 98 C r Ap Rep 361 (although the Attorney General
chose not to bring contempt proceedings) w as 'unremitting, extensive, sensational, inaccurate
and misleading'.
84 A ttorney G eneral v Times Newspapers Ltd [1974] AC 274.
85 A ttorney G eneral v Times N ew spapers Ltd (1983) The Times, 12 February.
* R v M cCann and others (1991) 92 Cr App R 239.
87 A ttorney G eneral v BBC; A ttorney General v Hat Trick Productions Ltd (1996) TLR 460.
88 Section 4, Contempt of Court Act 1981.
89 A ttorney G eneral v Times N ew spapers [2001] EMLR 19.
90 Allegations of that kind were m ade in respect of the 'O.J. Simpson' trial.
to m eet a m edia agenda. A particular problem is w here rep orting o f one trial
m ay p reju dice a later p rosecu tion on d ifferent but related m atters.91
The ap p roach o f the cou rts to p ostponem ent ord ers un der section 4 o f the
C ontem pt o f C ou rt A ct 1981 has been recently sum m arised in R v Telegraph
G roup (2002),92 w here the C ou rt o f A ppeal upheld a p ostponem ent order
relating to the reporting o f a m u rd er trial involving p olice officers w ho had
shot an unarm ed m an ; the reports w ould have prejudiced future trials
inv olv ing the sam e incident. It is a ju d g m ent that identifies the relevan t factors
he cou rts should con sid er and takes the H um an R ights A ct 1998 fully into
account, specifically the need to ensu re that fair trial rights u n d er A rticle 6 are
properly protected and not m erely 'w eigh ed ' against the p u blic's interest.93
R estriction s on con tem p oran eou s court rep orting are likely to be com patible
w ith sched uled C on vention rights, specifically A rticle 10(2) EC H R. The
C on tem pt of C ou rt A ct 1981 gives a sufficient basis in law and the orders
under section 4(2) are clearly to m aintain the 'au th o rity and im partiality o f the
ju d iciary'. T h e courts are clearly sen sitive to the need s o f a d em ocratic society
and the issue o f p rop ortionality w hen d eciding w hether or not an ord er should
be m ade. T h e Strasb ou rg institutions have not found that p articular orders
have breached the C on vention.94
.. discussion in good faith of a matter of public affairs or

1 2 .1 0 .3
other matters of general public interest . . / : section 5
From the civil liberties perspective the m ost im portan t d efen ce is that based
on the pu blic interest in allow ing the d iscu ssion o f issues w hich m ay underlie
a trial.
The thalidom id e case, A ttorney G eneral v Tim es N eivspapers (1974),95 seem ed to
m any, inclu ding the C ou rt o f H um an Rights, to perm it ju d g es to m ake orders
w hich had the effect of p reventing legitim ate d iscu ssion by the m edia of
im p ortan t pu blic issues. As w e have seen, the C o n tem p t o f C ou rt A ct 1981 w as
enacted, in part, to attem pt to redress the balance som ew hat in favour of freedom
o f expression. Section 5 is one o f the m ain w ays in w hich this is attem pted.
5. D iscussion of public affairs

A publication made as part of a discussion in good faith of a m atter of public affairs
or other matters of general public interest is not to be treated as a contempt of court
under the strict liability rule if the risk of impediment or prejudice to particular legal
proceedings is merely incidental to the discussion.
This 'p u blic interest' d efen ce is restricted to unintended contem pt. It should
not be taken to m ean that the public interest in free expression has no place in
91 R v Beck ex parte D aily Telegraph 11993] 2 All ER 177.

92 [20021 EM LR 10.
93 See also MGN Pension Trustees Ltd v Bank o f A m erica an d others [1995] 2 All ER 355, a case decided
before the com ing into effect of the H um an Rights A ct 1998.
94 For exam ple, H odgson, W oolf P roductions, N U f an d C hannel F ou r T V v U nited Kingdom (1988)
EH RR 503 (the trial of Clive Ponting); C Ltd v U nited Kingdom (1989) Ap. 1 4 1 3 2 /8 8 (the release
of the Birm ingham Six).
95 [19741 AC 274.
cases o f intentional contem pt. T he circu m stan ces are likely to be v ery different
but, in principle, the H um an R ights A ct 1998 requ ires the cou rts, as public
auth orities, to give proper effect to A rticle 10, freed om o f expression, w hen
con sid erin g w hether an action is con tem ptu ou s and this d uty is enhan ced by
section 12, H um an R ights A ct 1998. H ow ever, the com m on law does not
requ ire freedom o f speech to 'tru m p ' fair trial rights as is, perhaps, the case
un d er statute.
Section 5 o f the C on tem p t o f C ou rt A ct 1981 w as considered in A ttorney
G eneral v English.
E, editor of the Daily Mail, published an article supporting the position of a ‘pro-life’
parliamentary candidate who expressly opposed euthanasia type actions by doctors.
The article was published at the time of a high-profile trial of Dr A on euthanasia type
charges. The Attorney General brought contempt proceedings after Dr A’s acquittal.
HELD: the article involved a substantial risk of prejudice to the proceedings but was
within the s.5 defence. The Attorney General could not show that the risk was more
than incidental to the publication.
Attorney General v English [1983] 1 AC 116
O nce the d efen ce is raised and it is accepted that the article w as a good faith
d iscu ssion o f a pu blic m atter, the burden o f pro o f is on the A ttorney G eneral
to show that the effect o f the pu blication w as m ore than incidental. In English
Lord D iplock said that the prejudicial effect of the pu blication had to be no
m ore than an 'incid ental con sequ ence o f expou nd in g its m ain them e'. In the
article there had been, for exam ple, no m ention o f the trial. W hether or not a
preju dicial effect is 'in cid en tal' is likely to be 'a m atter of im p ression '.96 The
closer the m ain subject m atter of a p u blication is to the subject m atter in a trial,
the easier it w ill be for the A ttorney G eneral to prove its non-incidental
character.97
The Mail on Sunday published an article about Michael Fagan, who had broken into
the Queen’s bedroom. The article alleged a homosexual relationship between Fagan
and one of the Queen’s bodyguards and described him as a ‘rootless neurotic’. It was
held that, although the articles created serious prejudice, the section 5 defence
applied: the main point of the article had been security failures at Buckingham Palace.
Attorney General v Times Newspapers (1983) The Times 12 February98
T his case can be com pared w ith o ther in w hich the section 5 d efen ce has been
denied.
An artist was prosecuted for the theft of body parts from a mortuary; the body parts
were used to make moulds for sculptures. The issue in the trial was whether the artist
had acted honestly. The Observer published a story implying that the artist was a
necrophile and had a perverted personality.
HELD: on balance the story did not create a substantial risk of serious prejudice to
the artist's trial. If it had done, however, the section 5 defence would not have been
% A ttorney G eneral v G uardian N ew spapers Ltd an d an other [1992] 3 All ER 3 8 QBD.

97 A ttorney G eneral v T V S T V (1989) The Tim es, 7 July.
98 The case involved contem pt proceedings brought in respect of a num ber of articles.
available. Though, as in the first Fagan article, the trial dealt with a matter of public
interest, the main focus of the article in question was on the artist and his activities
and so was not incidental to the trial. Here there was no independent issue, such as
Royal safety, that existed independently of the issues in the trial.
Attorney General v Guardian Newspapers Ltd [1999] EMLR 904
It need s to be clear w hat it is that section 5 perm its. It is a defence w hich only
com es into issue once it is accepted that the p u blication creates a 'substantial
risk that the cou rse o f ju stice in the proceedings w ill be seriou sly im peded or
preju diced'. It allow s to go unpunished by con tem p t an article that m ay have
p revented a person from getting a fair trial. O f cou rse the judge in the trial
m ay have stayed p roceedings and d ischarged the ju ry or given sufficiently
com pensatin g d irections to the ju ry, bu t this is not necessarily so and, in any
case, w ithout the force o f the law o f contem pt, there is nothing to stop the
sam e kind o f p reju dicial p u blication at the tim e of re-trial. The com m on law
position, w hich section 5 replaced, recognised that con tem p t o f cou rt should
not p u nish d iscu ssions o f p u blic affairs ju st becau se they had, as 'an incid ental
but not intended by prod uct . . . som e likelihood o f p reju d ice' to a litigan t or
d efendant.” T h e C on tem p t o f C ou rt A ct 1981, how ever, goes further and
rem oves the protection o f the con tem pt law s ev en w here there is a non-trivial
risk o f serious preju dice to a trial. T h e 'm isch ief' o f the com m on law position
that the 1981 A ct aim ed to rem ed y w as that there need ed to be a better balance
betw een fair trials and freedom o f expression, not that freedom o f expression,
in certain circu m stan ces, could 'tru m p ' a fair trial. T here is clearly an argum ent
to be m ad e that section 3 o f the H um an R ights A ct 1998 requ ires the
interpretation o f section 5 o f the C o n tem p t o f C ou rt A ct 1981 to be lim ited by
a p erso n 's right to a fair trial under A rticle 6(1) ECH R. O n this argum ent,
section 5 w ould, by interpretation, not provide a d efen ce for a pu blication
w hich created an incid ental bu t substantial risk o f serious prejudice, w here the
preju dice involved a risk to a fair trial as defined by A rticle 6 ECH R. This
w ould , perhaps, involve a 'strain ed ' interpretation o f section 5 but, in relation
to protectin g A rticle 6 rights in the con text o f a crim inal trial, the H ouse of
Lords has expressed a w illingness to do this. T h e alternative w ould be a
d eclaration o f in com patibility u n d er section 4 o f the H um an R ights A ct 1998. 100
12.11 Orders preventing or restricting the publication of trials
T he general p rinciple is that trials should be open to the pu blic and m ay be

reported in full in the p ress.101 T o the sam e effect, A rticle 6(1) EC H R states: 'In
the d eterm ination o f his civil rights and obligations or o f any crim inal charge
against him , everyone is entitled to a fair and pu blic hearing . . . ' H ow ever,
both E nglish law and the C on vention accep t there are reasons ju stifyin g the
exclu sion o f press and pu blic from p roceedings and allow ing lim its to be
99 Q uoted bv Lord Reid in A ttorney G eneral v Tim es N ew spapers [1974] AC 274 from R e Truth an d
Sportsm en Ltd (1937) SR (NSW ) 242, 24 9 -5 0 .
,n" See the discussion in R v A [2001] U K H L 25 [2001] 3 All ER 1.
101 Scott v Scott [1913] AC 417 H L.
placed on the detailed reporting o f a trial. A rticle 6(1) allow s this to be done
in the interests o f m orals, pu blic ord er or national security; to protect juveniles;
to protect the private life o f parties if this is necessary; 'or to the extent strictly
necessary in the opinion o f the court in special circu m stan ces w here pu blicity
w ould preju d ice the interests o f ju stice'. Even w hen m edia and pu blic are
excluded from the trial, ju d g m ent should be expressed publicly.
Statute can requ ire or m ay p erm it part or all o f som e trials to be held in
private. M any m atrim onial proceedings, trials in Y outh C ou rts and hearings
before M ental H ealth Review T ribun als are exam ples. A p rosecu tion un der the
O fficial Secrets A ct is an exam ple o f a trial that m ay be in cam era if the ju dge
so ru les.102 T here is also d iscretion at com m on law for ju d g es to exclu d e public
and m ed ia if the interests o f ju stice so require. This can be done, for exam ple,
w here the con fid entiality of m aterial is the central issue in the proceedings.
A ny such exclu sions m u st now be com p atible w ith A rticle 6. T here are sim ilar
d uties or pow ers respecting particular inform ation w hich m u st or can be
w ithheld even though a trial is otherw ise held in public. Thu s the identity of
a rape v ictim cannot be disclosed in cou rt103 and, u n d er the C hild ren and
Y oun g P ersons A ct 1933, the cou rt m ay ord er the anonym ity o f any child w ho
is a party or w itness to any p roceed ing s.104
A t com m on law ju d g es have con sid erable d iscretion to m ake aspects of
public trials secret; in p articular they m ay ord er that a d efendant, a party or a
w itness should be anonym ous. This pow er m u st be used only w hen necessary
for the ad m inistration of ju stice105 and not for the av oid ance o f em barrass
m en t10*’ or the sim ple protection o f p riv acy .107 P rotection from b lack m ail108 or
to protect the secu rity services109 are accep table reasons. T h e protection of the
righ t to life o f a w itness or d efen dan t or, equally, their right n ot to be tortured
or suffer inhu m an or d egrad ing treatm ent m ay requ ire an o rd er to be m ade.
U npopu lar d efen d an ts and w itnesses are entitled to p rotection o f their
fundam ental hum an rights and the princip le o f open ju stice m u st give w ay to
this.110
Such ord ers as these can be given effect throu gh section 11 o f the C on tem pt
o f C ou rt A ct 1981 w hich allow s a cou rt to issue orders proh ibitin g the
publication, p articularly in the m edia, o f m atters such as those m entioned
above. Such ord ers can be high ly con troversial and should be used sparingly.
In m aking such orders the cou rts are required to balan ce the ad m inistration of
ju stice w ith freed om of the press and the rights of persons to free expression
un der com m on law and H RA 1998, Sch ed u le 1, A rticle 10.111
102 Section 8(4), Official Secrets A ct 1920.

103 Section 4, Sexual Offences (A m endm ent) A ct 1976.
104 Confined to non-crim inal proceedings.
105 R v Evesham ju stices ex parte M cD onagh an d Rerrow s N ew spapers Ltd [1988] 1 QB 553.
106 R v M alvern ju stice ex parte Evans an d Berrotvs N ew spapers Ltd [1988] 1 QB 540.
107 R v W estm inster C ity C ou n cil ex parte C astelli (1995) 7 A dm in LR 840.
108 R v Socialist W orker Printers an d Publishers Ltd ex parte A ttorney G eneral [1975] QB 637.
"w A ttorney G eneral v Leveller M agazin e Ltd [1979] AC 440.
110 R v L ord Saville an d others ex parte A an d others [1999] 4 All ER 860, in w hich the C ourt of Appeal
allow ed the applicants, soldier witnesses, to retain their anonym ity for the purpose of the
'Bloody Sunday' inquiry. See also V enables an d an other v N ew s G roup N ew spapers [2001] 1 All
ER 908.
111 Clibbery v Allan [2002] I All ER 865.
12.12 Jury secrets
Section 8 o f the C o n tem pt o f C ou rt A ct 1981 m akes it a crim inal con tem pt for
a disclosure to be m ade o f w hat is said by jurors in the cou rse o f their
deliberations. The disclosure need not com e from the jury th em selv es.112 The
jury is at the heart o f the crim inal ju stice system ; ju ries both represent the
princip le o f freedom from state control but, at the sam e tim e, have been
im plicated in all the m iscarriages o f ju stice that have beset the crim inal ju stice
system since the 1970s. N o one know s w hether their d eliberation s are careful
and rational or w hether they are based on bigotry and a w orld view found in
the m ass m edia. Section 8 prevents any o f this inform ation from being
con sid ered, even on the basis o f careful research. M ost im p ortan tly section 8
seem s to be a barrier to an effective exam in ation in cou rt o f any inad equ acies
o f a ju ry 's decision. Yet a ju ry 's d ecision that is, for exam ple, tainted by
ra c is m "1 or irratio n ality114 ought to be set asid e and m ay, in any case, be
incom patible w ith a person 's right to a fair trial. In so far as section 8 prevents
the p roper testing in court o f the fairness o f a trial, it is arguably incom patible
w ith A rticle 6 ECH R.
" 2 A ttorney G eneral v A ssociated N ew spapers [1994] 1 All ER 556.

1,3 Sander v United Kingdom (2001) EHRR 44; cf. G regory v U nited Kingdom (1998) 25 EH RR 577.
114 R v Young [1995] QB 324.
Part IV
Political freedom
13
Political participation and
electoral politics
13.1 Political participation
The right of people to participate in public affairs is fundam ental to a

reasonable dem ocracy. For m ost people it is predom inantly through the
processes and institutions of representative politics that such participation
takes place. Voting in elections for the H ouse of Com m ons, the European
Parliam ent, for one of the devolved legislative bodies or for a local council is
a fundam ental, though in m any ways, m inim al m eans of participation. For
those w ho are or wish to be politically active, there should also be in a
dem ocracy the freedom to be a candidate in elections and, if successful, a
m em ber of the representative body to w hich elected. Sim ilarly the politically
active should not be denied, by arbitrary or unreasonable laws, the right, if
properly selected, to be a m em ber o f the governm ent or a local council or a
devolved executive.
A s indicated in Chapter 3, public life in the United K ingdom is conducted
by a large range of organisations of various kinds and of various degrees of
independence from central governm ent. A ppointm ent to such bodies is
norm ally w ithin the patronage of a m inister or the discretion of a professional
body, for exam ple, though they m ay be supervised by an appointm ents
com m ission. Few such bodies are in any w ay directly or even indirectly
elected. They m ay have to consult w ith the public but are not in any direct
w ay subject to public censure or recall. W hile fundam ental rights to vote and
to stand for representative bodies are widely recognised, rights of w ider
participation are much less clear.
13.1.1 International law

International law recognises the value of political activity in an effective,
pluralist dem ocracy. Predom inantly such activity is protected by fundam ental
rights of expression and political association and assem bly. A w ider, rather
abstract right to political participation is also recognised. A rticle 25 of the
International Covenant on Civil and Political Rights establishes rights not only
to vote and be elected and to have equal access to public service but also
declares that 'every citizen shall have the right and the opportunity . . . to take
part in the conduct of public affairs, directly or through freely chosen
rep resentatives'. A broad con ception o f public affairs is m eant w hich includes
the exercise o f legislative, executive and ad m inistrative pow er and includes all
aspects o f public ad m in istratio n .1 H ow ever, it seem s that little that is specific
is requ ired un der the A rticle. N o particular p olitical system is requ ired , there
is no attem pt to identify the kinds o f pu blic bod y that ought to be elected and,
in any case, this part o f A rticle 25 is understood to be 'p rogram m atic', m erely
id entifying aspirations,2 rather than laying dow n specific duties.
13.1.2 Freedom of association

Effective p articipation in the pu blic and political life of the cou ntry is likely to
be in con cert w ith others and so the extent and lim its o f freed om o f association
are o f great im portance. L iberal p olitical theory up hold s a w ide ran ging
freed om for p olitical associations. A t the heart of liberal theory is the assertion
that hu m an b ein gs differ in their view s o f w hat is w orthw hile and it follow s
that fundam ental rights to associate and organise to further these conceptions
o f the good , inclu d ing having them adopted as com m u nity pu rposes, w ould
be accepted by the kind o f rational, m orally sensitive b ein g that liberal theory
pred icates good con stitutional law m akin g on.
Convention rights
Rights o f p olitical association are asserted in international law and, indeed,
they are cen tral to the con ception of a d em ocratic state that is m ad e explicit in
international hum an rights instrum ents or ju risp ru d en ce.’ In particular the
E uropean C ou rt o f H um an R ights has m ad e it clear that political parties are
essential to the p rop er functioning o f a d em ocracy and that d em ocratic
practices are o f great im p ortan ce in m aintaining the rights and freed om s the
C on vention up hold s.4
Rights to establish political parties and other types o f political association
derive from A rticle 11 E C H R .? As w ell as prov id ing for freed om o f assem bly,
the A rticle seeks to p rotect freed om o f association, and includes the right to
form and to join trad e unions. It p erm its restrictions on these freed om s w hich
are 'prescribed by law and are necessary in a d em ocratic society ' and the
purposes o f such restrictions are confined to: 'the interests o f national security
1 United Nations H um an Rights C om m ittee, General C om m ent 25: UN Doc. C C P R / C / 2 1 /R e v /

A d d7, paragrap h 5.
2 Steiner, H. (1988) 'Political Participation as a H um an Right', 1, H arvard H um an Rights Y earbook,
77. The right to vote and to be elected and the right to equal access to public office are likely to
generate harder, m ore specific, rights.
3 For exam ple, the strong statem ent in favour of political pluralism and independent political
parties in D ocum ent o f the Copenhagen M eeting o f the C onference on the Human D im ension o f the
C on feren ce on Security an d C ooperation in Europe, in Brownlie, I. (ed.) (1992) Basic D ocum ents on
H um an Rights, 3rd edn. O xford: C larendon Press.
4 U nited Com m unist Party o f Turkey/ an d others v Turkey (1998) 26 EHRR 121. On the conception of
d em ocracy inherent in the C onvention see M ow bray, A. (1999) 'The Role of the European C ourt
of H um an Rights in the Prom otion of D em ocracy', P ublic Lazo, 703.
5 Q uoted in C hapter 2. See also A rticle 22 ICCPR discussed in N ow ak, M. (1993) U N C ovenant on
C ivil an d Political R ights. CCPR Com m entary. Kehl: N.P. Engel, pp. 3 8 4 -4 0 0 . The right is expressed
in sim ilar tenn s to A rticle 11 ECH R except the political restrictions relating to public service are
confined to the arm ed forces and the police and so do not necessarily include civil servants.
P olitical participation and electoral politics 237
or pu blic safety, for the prevention o f d isord er or crim e, for the p rotection of
health or m orals, for the p rotection o f the rep u tation or rights o f o thers'. It
expressly perm its restrictions on freed om o f association by m em bers o f the
arm ed forces, the police and b y governm ent officials.
O ther A rticles o f p articular relevan ce to political parties and associations
inclu de A rticle 10, freedom o f expression, and A rticle 3 o f the First Protocol,
w hich p rovides for election s and im plies the rights o f ind ividu als to vote and
to stand in elections. Political parties and other associations have stand ing to
bring cases before the C ourt, u n d er A rticle 34, if they are directly affected by
legislation or state action w hich restricts C on vention freedom s. They are m uch
less likely to have standing if their com plain t relates, for exam ple, to som e
aspect o f the election system or other p olicy that affects m em bers and citizens
gen erally and not the party as such, although it is u n likely to be difficult to
find in d ividu al applicants w ho can adopt the p arty 's argum ents as their ow n.6
The sam e standing rules w ill apply if cases are b rou ght un der section 7 o f the
H um an Rights A ct 1998.
English law
English law recognises freedom o f association as a general princip le.7 The
valu e o f political association is often expressed by the cou rts in term s of
freed om o f expression rather than association. A n interesting exam p le is the
up hold ing by the cou rts o f a con tract entered into by the N ational Front (a
foreru nner o f the B ritish N ational Party) w ith a local au th ority for the hire of
a hall for a general, private m eeting o f the party. T h e cou ncil, on changin g its
party balance, tried to resile from the contract on ground s that, in the cou rt's
opinion, related to opposition to the view s likely to be expressed. T he court
ordered specific p erform ance o f the contract exercising its d iscretion as to
rem ed ies in ord er to further the freedom s o f expression and, in effect, of
association.8
Freed om of association to pu rsu e p olitical ends is restricted in resp ect of
som e types of organisation w hich aim to ad van ce their non-p olitical principal
purposes by p olitical m eans. This involves areas o f law w hich are outsid e the
m ain con cern s o f this chap ter.9 Trad e unions, for exam ple, can only support
political p arties on the basis o f a regular ballot o f m em bers and exclu sively
w ith m on ey from a political fund held sep arately from the general funds and
to w hich m em bers m ay choose not to con tribu te.10 C om m ercial com panies
m ust obtain sh arehold er consent and d isclose their political d onations.
C h aritable organisations are prohibited from having political pu rposes or
supporting political p arties bu t m ay pu rsu e non-p olitical objectives by other,
restrained political m eans.
6 Discussed in Liberal Party v United K ingdom (1982) 4 EH RR 106.

7 See for the philosophical basis, for a com parison with US law and for a consideration of specific
issues including the political purposes of trade unions: Leader, S. (1992) Freedom o f A ssociation.
N ew H aven, CT: Yale U niversity Press.
8 V errall v G reat Y arm outh 119811 1 QB 202.
9 D avis, H. (2000) Political Freedom . London: C ontinuum , chapters 4 -7 .
10 Trade Union and Labour Relations (Consolidation) A ct (1992), Part I, C hapter VI. See, for
exam ple, Pitt, G. (2000) Em ploym ent Law , 4th edn. London: Sw eet & M axwell, ch. 11, pp. 3 5 0 -5 .
13.1.3 Political restriction

The m ajor exception found in United Kingdom law regarding freedom of
political association relates to the m any thousands of public officials of one
kind or another who are 'politically restricted'. The contracts of em ploym ent
of m any local governm ent officers are required, by statute, to contain terms
restricting the officers' political activities. The restriction applies to those
occupying specified senior posts or who are paid over a certain point on the
salary scale or who, though paid below that point, give advice or speak on
behalf o f the cou n cil." Local governm ent officers, especially those whose
restriction is solely based on salary, m ay seek exem ption from the ban. M any
civil servants are sim ilarly restricted. The Civil Service M anagem ent Code,
produced ultim ately under the Prerogative, im poses both general restraints of
style and behaviour on all civil servants and specific political restrictions on
significant num bers. Senior civil servants are politically restricted by virtue of
their office, a very large m iddle group are restricted but m ay obtain exem ption
(w hich can derive from a block exem ption), and industrial and non-office staff
are under no restrictions except in relation to becom ing a M em ber of
Parliam ent or other, non-local representative assembly.
The restrictions that such groups are under relate, first, to a ban on
m em bership of and candidature for the H ouse of Com m ons, the European
Parliam ent and the devolved Parliam ent and A ssem blies. Restricted local
governm ent officials, but not civil servants (though som e m ay need perm ission),
are banned from being local councillors. Second, those who are politically
restricted are banned from taking m anaging roles in political parties and from
canvassing. Sim ple m em bership and lim ited participation is not banned. Third,
there are restrictions on freedom of speech, in public m eetings or through
publications o f various kinds, w here a m ain aim of the speech is to effect support
for a political party. These are very significant but perhaps not total bans on
political activity. Subject to general behavioural restraints, especially on civil
servants, it is at least arguable that political restriction does not apply to
non-party political activity such as supporting organisations pursing aims
which are not the focus of the party political battleground. Environm ental issues
m ay be exam ples of this. They m ay be highly controversial but, so long as proper
'reserve' is m aintained and so long as political m asters are not em barrassed,
may be pursued by politically restricted officials. N othing in the political
restriction provisions should inhibit trade union activity in the public sector.
Police officers are under m uch w ider restriction even than civil servants or
local governm ent officers. They are prohibited from 'any active part in
politics', a ban w hich would appear to include the pursuit of any controversial
cause w hether or not it is a m atter o f concern to the political parties. The ban
on politics is not a ban on public service such as school governorship.12
Political restriction is justified on two general grounds. The first is that it is
necessary in order to m aintain the integrity and effective functioning of
" Sections 1 -3 , Local Government and Housing Act 1989. There are various statutory instruments.
Local Government Officers (Political Restrictions) Regulations 1990 SI 1990 No. 851 defines
political activities.
12 Champion v C hief Constable o f the G went Constabulary/ [1990] 1 WLR 1.
representative institutions. T h e scru tin y o f the executive, for exam ple, w ould
be com prom ised if con du cted by the v ery officials w hose d ecisions w ere being
exam ined. The second ju stification is that official im partiality, or at least its
appearan ce, is necessary to the effectiveness and proper ad m inistration of
governm ent and the pu blic services. Few d ispute these aim s; how ever,
w hether the system o f political restriction is a reasonable w ay o f achieving
them is open to argum ent. In p articu lar it is suggested that bann in g officials
from representative assem blies m ay d eny the assem bly certain sorts of
experience w hich, overall, w ould enhan ce its effectiveness; restriction m eans
that citizens have lim its placed upon their choice o f representative; m ost
im portan tly it is observed that these restrictions are m ajor in terferences w ith
m an y p eo p le's political freedom , p articularly in the sense that private life is
restricted becau se o f the job a person d oes.13 It is d oubted w hether the scale of
the restrictions are n ecessary in ord er to achieve an effective public service.
N everth eless, the E uropean C ou rt o f H um an Rights, in A hm ed v U nited
Kingdom (2000),14 has refused to find that, in m an y of its respects, political
restriction (here in resp ect o f local governm ent officers) violates C onvention
Rights, in p articular A rticles 10 and 11 and A rticle 3 o f the First Protocol. The
pu blic interest in an im partial pu blic service is o f ov erriding im portance.
Strong dissents by a m inority o f ju dges w ere m ad e to the effect that such
w idespread restriction o f political freed om is not necessary in a d em ocratic
society and the aim s of im p artiality in the pu blic sector can be achieved by an
ap p roach w hich is m ore focused on p articular roles and only brings in the law
w hen there are particular abuses w hich are dealt w ith through the d isciplinary
process.
13.2 Political parties
T he m ajor w ay in w hich people seek to participate directly in political affairs

is through political parties and, in a d em ocracy, their w ork is focused on
elections.
In the U nited K ingdom people m ay (they are not prevented ) form and join
political parties w ithout state approval or regulation and those parties and
associations are perm itted to pu rsu e their general activities bound only by the
general law and not by specific, restrictive law s. There is, how ever, an
increasing b od y o f regulativ e law w hich relates to parties and elections.
13.2.1 Banning political parties and organisations

The essence o f freedom o f association is the ind ep en d en ce o f p olitical parties
and associations from the state. T h e state m ay, how ever, have legitim ate
13 M orris, G.S. (1998a) 'Political Activities of Public Servants and Freedom of Expression', in
Loveland I. (ed.), Incorporatin g the First A m endm ent. O xford: H art Publishing; M orris G.S. (1998b)
'Local G overnm ent W orkers and Rights of Political Participation: Tim e for a C hange', P u blic Law
25; M orris, G. (1999) 'The Political Activities of Local G overnm ent W orkers and the European
Convention on H um an Rights', P ublic Law 211.
14 (2000) 29 EHRR 1. Greek provisions preventing broadcasting officials from Parliam entary
can didature w ere upheld in C itonas v G reece (1997) 73 EHRR 417.
ground s for seekin g to ban political organisations w hich are com patible w ith
the rights to freed om o f association. T he m od ern law in the U nited K ingdom
relates to terrorism and is d iscu ssed in C h apter 17.
13.2.2 The registration of political parties

The state m ay also seek to exercise control over political parties through
registration. In the U nited K ingd om , registration provisions and other restric
tion have been introduced u n d er the Political Parties, Elections and R éféren
dum s A ct 2000.1:1 Political parties w ho w ish to field cand id ates in their nam e
or w ish, as them selves, to stand u n d er a p arty -list system of proportional
rep resentation16 can only do so if they are registered w ith the Electoral
C om m ission , a b od y created un der the A ct. T h e point o f registration is to
enable certain kinds o f proportional representation to be possible and also to
perm it variou s restrictions as to funding and cam paign spend ing to be
im posed. The aim o f such restrictions is to lim it the ability of rich and
pow erfu l organisations and ind ividu als to have a d isproportionate im pact on
the agenda o f election s and on the policies that parties choose to pursue. To
do this, the freedom o f parties to finance them selves and spend as they will is
curtailed.
The im petus to these reform s w as a m ajor review of the fun ding o f political
parties u n d ertaken by the P arliam en tary C om m ittee on Stand ards in Public
L ife.17 The context in w hich the C om m ittee w rote w as w idespread concern
about large, undisclosed d onations m ad e to parties and the p ossibility that
they m ay influence policy or provide access to m inisters for the donors. A lso
there w as a long-stand in g though, for the tim e bein g, d im in ishing concern at
w hat w as b elieved to be a funding im balance betw een m ajor parties w ith the
C on servatives being funded by priv ate com panies to a h igh er level than
L abou r w ho w ere m ore relian t on d onations from trade u n io n s.18 T here w as
also a con cern that cu rren t electoral law could not effectively prevent
m islead in g practices.
Backgrou nd con stitutional and hu m an rights theory d iscloses tw o principal
approaches. O ne gives p rom in ence to freed om o f expression over other
d em ocratic v alu es and so opposes the notion o f restrainin g d onations and,
perhaps, lim iting party expenditures. 19 This som ew hat absolu tist prom otion of
free speech is associated w ith som e con stitutional cou rts.20 The other approach
is that the freed om o f d onors and p arties can be p roperly circum scribed in the
15 W hich adopts and expands provisions first introduced by the Registration of Political Parties
A ct 1998.
16 As has been used in elections for the European Parliam ent and is part of the election system
for the devolved Parliam ent and Assemblies.
17 Lord Neill of Bladen, QC (C hairm an), C om m ittee on Standards in Public Life (1998) Fifth R eport:
The Fun din g o f Political P arties in the U nited K ingdom , Volum e I: R eport and Volum e II: Evidence.
C m 4057-1, C m 4057-11.
18 By the G eneral Election of 1997 this im balance had been significantly reduced.
19 In the USA it is harder to m ake restrictions on donations com patible w ith the constitution than
restrictions on cam paign expenditure.
20 For exam ple, in Australia as discussed in Ew ing, K. (1993) 'N ew C onstitutional C onstraints in
A ustralia', Public l.aiv 256.
nam e o f creating election con ditions un der w hich the com petition for votes can
be condu cted reasonably free o f the desires o f the party sponsors and the
general influence o f the socially pow erful. T he second view is the oiie adopted
un der the new A ct. The evid ence from the E uropean C ou rt of H u m an R ights
is that p roportionate restrictions on freedom o f expression , w hose pu rpose is
fair election s, is com p atible w ith the C on vention.21
U nd er the A ct, political parties that seek registration have to ad opt a certain
org anisational structure. T h e m ain p arties m u st have a leader, a nom in ating
officer and a treasurer, and they m ay have a cam paign s officer.22 They also
need a system for arranging the financial affairs o f the party. T he Electoral
C om m ission m u st reg ister a party w hich m eets these requ irem ents unless the
party is proposing to cam paign un der a nam e w hich m ight, by being
associated w ith ano ther party, con fuse voters. R egistration m ay also be refused
if the proposed nam e is m ore than six w ord s, is obscene or offensive, includes
w ord s w hich w ould be likely to am ou nt to the com m ission o f an offence,
inclu des non-R om an script or inclu des any w ord banned by the Secretary of
State u n d er pow ers in the A ct.23 A s w ell as reg isterin g nam es, parties m ay
reg ister political em blem s. O nly registered political parties are perm itted to
have party political broad casts.24 As w ell as registration, the A ct im poses
significant d uties o f accoun tin g onto the party treasurers, inclu ding an annual
statem ent o f accoun ts and audit.25 C rim in al offences can be com m itted if these
provisions are not ad hered to w ithout p rop er excuse.
Registration and C onvention rights

Legal restraint on political parties throu gh registration by a state bod y seem s
to be con sisten t w ith C on vention Rights. A rticle 3 of the First P rotocol has been
raised by p olitical parties objecting to the application to them o f various
registration provisions. A rticle 3 is construed as creatin g an individual righ t to
stand in elections and also a recognition that, if the w ill o f the p eople in the
choice o f the legislature is to be given effect, p olitical parties m u st be free to
put forw ard cand id ates and cam paign. The C ou rt o f H um an Rights, in the
principal case, recognised that these rights and freed om s can be subject to
reasonable restriction.26 These can inclu de, for exam ple, registration s w hich
require a sm all nu m ber o f signatures as a m easure o f public support,27 or
w hich m ust be in an official langu age.28 G iven that ind ividu als retain the right
to stand in elections w ithout registration , and given the exception s from som e
o f the m ore onerou s organisational requ irem ents enjoyed by sm all parties,
there w ould seem to be a strong case that the restrictions on the electoral
21 For exam ple, Bowm an v United Kingdom (1998) 26 1 EH RR 1 w hich dealt w ith limits on
expenditure by third parties in constituency cam paigns.
22 There are som e provisions w hich m ake it easier for sm all parties or parties w hich resist
heirarchical organisation still to register: see section 34, PPER A 2000. There are provisions for
the Electoral Com m ission to assist parties in m eeting the requirem ents of the Act.
23 PPER A 2000, s. 28.
24 PPER A 2000, s. 37.
25 PPER A 2000, Part III.
26 M athieu-M ohin an d C lerfayt v B elgium (1987) 10 EHRR 1, see paragraph 52.
27 For exam ple, X v A ustria (1976) 6 D&R 120.
28 A ndecha A stu r v Spain (1997) 90-B D&R 172.
freed om o f p olitical parties are likely to be reasonable and com p atible w ith the
C onvention.
The point o f registration in U nited K ingd om law is to facilitate m echanism s
for protectin g the integrity of the election process. P roportionate restrictions
on freedom o f expression , m ad e in pu rsu it o f this end, have been accepted by
the C ou rt29 and the sam e argum en t w ould be likely to ju stify proportionate
restrictions on freedom o f association. The C ou rt w ould otherw ise have to
display a strict, absolu tist preference for freedom o f speech over all other
legitim ate election concerns for it to find that the restrictions on the right to
stand inherent in the Political Parties, E lections and R eferend um s A ct 2000 are
incom patible w ith A rticle 3 o f the First Protocol.
It does not seem possible to refuse registration on con tent-specific grounds
under the 2000 A ct sin ce the ground s on w hich the C om m ission m ay refuse
registration could be easily avoid ed b y any party. T hu s the Electoral
C om m ission w ould ap p ear to have no option but to reg ister an out-and-out
racist party, assu m ing that its nam e does not am ou nt to the com m ission o f a
crim inal offence. T he C ou rt o f H um an Rights, how ever, m ight well accept a
refu sal to register, for election pu rposes, parties, such as racist parties, who,
by cam paign ing let alone by w inning, m ight violate the rights of others. The
provision in A rticle 17, that the exercise o f C on vention R ights cannot be used
to violate the rights and freed om s o f others, has been held, by the C om m ission,
to ap p ly to political parties seeking election registration.30
13.3 Elections and the law
13.3.1 Convention rights: Article 3 of the First Protocol

Su rp risingly, for an instrum en t com m itted to d em ocracy as the m ost effective
m eans o f p rotectin g hum an rights, the European C on vention on H um an
R ights provides little by w'ay o f direct prom otion o f p olitical participation. O f
cou rse that goal is im plicit in the p rotection o f freed om o f expression,
assem bly and association. The only explicit reference to p articipation in the
political process is A rticle 3 o f the First Protocol.
Article 3 Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals
by secret ballot, under conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature.
D espite the im portan ce o f 'd em ocracy ' in the C on vention system a provision
relating to voting w as one o f the hardest to obtain agreem ent on, and this
explains w hy it is contained in a Protocol. The U nited K ingd om , in particular,
w as anxiou s to avoid an overly p rescriptive ap p roach to w hat w as required
by a political system and need ed a form o f w ord s w hich w ould recognise the
different system s in Europe. The U nited K ingd om , in particular, sou ght to
29 Bow m an v United Kingdom (1998) 26 1 EH RR 1.

30 G lim m erveen an d H agen beek v N etherlands (1979) 18 D&R 187.
Political participation and electoral politics 243
avoid any requirem ent, express or im plied, for a system of proportional

representation or for a w holly elected system w hich w ould have com prom ised
the hereditary H ouse of Lords. W hat em erged was, apparently, no m ore than
an agreem ent by the states to hold fair elections for the national legislature.
N evertheless, the Court of H um an Rights has read into A rticle 3 an individual
right to vote and stand in elections, albeit a right subject to reasonable
restrictions.31 Restrictions on the franchise as to age, period of residence,
language, im prisonm ent and m em bership of foreign legislatures have been
accepted by the Com m ission and C ourt of Hum an Rights. No particular
system of voting is required, there is no requirem ent that votes should be
equally weighted, that the legislature should be proportionately representa
tive32 or that national, racial or other m inorities should be specially represen
ted.33 The Court does, how ever, have the final say on voting restrictions and
any w hich strike at the very essence of the right w ould violate the Convention.
The scope of A rticle 3 of the First Protocol is very narrow and apparently
narrow er than A rticle 25 ICCPR. The duty on states and the rights of
individuals to stand and to vote are confined to the 'legislature'. This is an
autonom ous Convention term that has been defined by reference to those
bodies w hich can enact the prim ary, suprem e law of a country and it can be
a com plex entity. In the United K ingdom it will include the House of
Com m ons, the European Parliam ent34 and, perhaps, the Scottish Parliam ent,
the N orthern Ireland Legislative A ssem bly but not the N ational A ssem bly of
W ales since the latter cannot enact prim ary legislation.35 The reference to 'the
legislature', how ever, m eans that a great deal of the public life of the country
is outside the scope of A rticle 3. In particular elections for parish councils,
principal local authorities, m ayoral elections and elections for regional
assem blies should they develop are not covered; nor are referendum s,
increasingly im portant in United Kingdom politics, required to m eet the
standards of A rticle 3. N or is there any requirem ent that other public bodies,
even if they are rule-m aking, should be even elected; nothing in A rticle 3
prom otes w ider participation in public life.
13.3.2 The United Kingdom electoral system

The electoral system of the United Kingdom appears to m eet the m inim um
standards under the Convention.36 A first-past-the-post, w inner-take-all sys
tem is used for the H ouse of C om m ons and local, including m ayoral, elections
and this is not incom patible with the Convention. Elections for the European
Parliam ent and for the devolved assem blies com bine this system w ith a form
of proportional representation. It is w orth noting that the voting system is
31 M athieu-M ohin and Clerfayt v Belgium (1987) 10 EHRR 1.

32 Liberal Party v United Kingdom (1982) 4 EHRR 106.
33 Lindsay v United Kingdom (1979) 1 D&R 247.
34 M atthew s v United Kingdom (1999) 28 EHRR 361.
35 Davis, H. (1999) 'Constitutional Reform in the United Kingdom and the Right to Free and Fair
Elections, EHRLR 4, 411.
36 For a m ore detailed description see, for exam ple, Ewing, K. and Bradley, A. (2002) Constitutional
and Adm instrative I a w . London: Pearson Longm an, chapter 9.
decided by the governm ent of the day and enacted as ordinary legislation; the
voting system enjoys no particular constitutional protection. The Electoral
Com m ission has been given an im portant advisory role on such matters.
Constituency boundaries are agreed by Parliam ent on the basis of ten-yearly
reports by the Boundary Com m ission, a task w hich will, under the Political
Parties, Elections and Referendum s A ct 2000, be reassigned to the Electoral
Com m ission. Persons are not com pelled to vote. There is increasing concern
with voter apathy and the governm ent is cautiously experim enting, m ainly in
local elections, with new m ethods of voting such as extensive postal voting
and voting on-line or by using touch tone telephones.
13.3.3 The franchise

The franchise is declared in the Representation of the People A ct 1983, as
am ended, particularly by the Representation of the People A ct 2000. A person
is entitled to vote if he or she is on the register of electors for the constituency
for w hich they are voting, is not under any legal incapacity to vote, is a
Com m onw ealth citizen (including, of course, a British citizen) or a citizen of
the Republic of Ireland, and is over 18 years of age.
Registration provisions have, in the past, been a significant barrier to the
exercise of the franchise by som e otherw ise qualified persons. The Representa
tion of the People A ct 2000 m akes registration easier. An otherw ise qualified
person is entitled to be registered if he or she is resident in the constituency in
w hich they wish to vote at the tim e they seek registration. Residency is no
longer defined by reference to a particular date. A person residing illegally
(e.g. a trespasser) is not disenfranchised37 though illegal entrants under the
Im m igration Acts are not entitled to be registered. H om eless people m ay now
obtain registration by show ing a 'local connection' to the constituency. Those
with m ore than one hom e in w hich they reside (e.g. students in halls of
residence) m ay register in m ore than one place, though they m ay only vote
once/38 Both prisoners on rem and and persons detained for treatm ent under
m ental health legislation are entitled to vote but, in the past, have found it
difficult to establish residency. The Representation of the People A ct 2000 has
facilitated arrangem ents for both these classes.31' M erchant seam en m ay vote40
and m em bers of the arm ed forces serving overseas, along w ith their fam ilies,
m ay establish a 'service connection' and be registered.41 British citizens
resident overseas for, in som e cases, as long as 15 years, m ay be entitled to vote
if they are able to m ake and do m ake an 'overseas elector's declaration'.42
The law identifies certain persons as under a legal incapacity and they are
not entitled to be registered and to vote. Peers of the realm , but only if they
are entitled to sit in the H ouse of Lords, including the Lords Spiritual and the
Law Lords, m ay not vote.43 Irish peers and hereditary peers of the United
37 Hipperson v N ew bury Electoral Officer [1985] QB 1060.

38 Fox v Stirk; Ricketts v Cam bridge City Electoral Registration Officer [19701 2 QB 463.
39 Representation of the People Act 1983, s. 7A.
40 Under the terms of s. 6, Representation of the People Act 1983.
41 Under the terms of ss. 14-17, Representation of the People Act 1983.
42 Representation of the People Act 1985, ss. 1-4.
K ingd om w ho are, un der the H ouse o f L ords A ct 1999, not entitled to sit in
the H ouse o f L ords can vote in elections and sit in the H ouse o f C om m ons.
C on victed prisoners w ho are d etained in prison or offenders detained in
m ental hospital are not entitled to vote.44 P ersons convicted of illegal practices
in election s are d isenfran chised for five years.
O nly citizens o f the C om m onw ealth (including British citizens) or o f the
Repu blic o f Ireland m ay be registered and vote in general elections. The
exclu sion o f non-C om m on w ealth resid ent foreigners, even though they have
lived in the cou ntry for m any years, is com patible w ith com m on p ractice and
allow ed un der A rticle 18 E C H R and is accepted as a reasonable restriction on
the fran chise com p atible w ith A rticle 3 o f the First Protocol. A s a m atter of
general E uropean U nion law , resid ent citizens o f the E uropean U nion are not
entitled to vote in general elections but they m ay be registered for local
election s and election s for d evolved assem blies.
13.3.4 Candidature in the United Kingdom

W ider participation can be through cand id ature in elections and m em bership of
elected bodies such as the H ouse of C om m ons and local councils. To be a
M em ber o f P arliam ent a person m u st be over 21, m u st be a B ritish citizen or a
citizen o f a C om m onw ealth cou ntry or the R epublic o f Ireland, and m u st not be
legally disqualified. D isqu alification can be either in respect of cand id ature or
becau se m em bersh ip o f the b od y concerned is barred . Peers and peeresses w ho
are entitled to sit in the H ouse of Lords are barred from the H ouse of Com m ons.
Persons convicted o f treason are disqualified as are convicted prisoners serving a
sen tence o f at least one year. U nd ischarged bank ru p ts m ay not be M Ps and
persons convicted of corrupt or illegal election practices are barred for five years.
The m entally ill m ay also be in eligible for m em bersh ip. T h e b ar on the clergy
bein g M Ps has now been lifted.45 In quan titative term s, the largest nu m ber of
people prevented from being M em bers o f P arliam en t are those officials (office
holders and em ployees) w ho are prohibited by the H ouse o f C om m ons
D isqu alification A ct 1975. Jud ges, civil servants, m em bers o f the arm ed forces
and police officers are, by section 1, disqualified from m em bership o f the H ouse
of C om m ons. Parts 2 and 3 o f Schedule 1 specify a large num ber o f public offices
w hose holders are likew ise barred from Parliam ent. Sched u le 1 can be added to
by O rd er in C ou ncil m ad e after a resolu tion o f the H ouse o f C om m ons. In the
case of civil servants, the police and local governm ent officers, this ban is part of
a w ider series o f political restrictions w hich have been d escribed above.
13.3.5 Campaigning
D onations and disclosure
Som e o f the m ost significant provisions o f the P olitical Parties, Elections and
R eferend um s A ct 2000 im pose d uties on registered political parties in relation
43 H ouse of Lords A ct 1999.

44 Sections 3 and 3A , Representation of the People A ct 1983. See C hapter 9.
45 H ouse of C om m ons (Rem oval of C lergy Disqualification) A ct 2001.
to d onations by supporters. 'D o natio n' is broad ly defined to inclu de, for
exam ple, the provision o f services to the p arty on other than com m ercial
term s.46 The A ct restricts d onations to those w hich com e from a 'p erm issib le'
source. P erm issible d onors are ind iv id u als, com panies, trad e unions and
various other organisations w ho m ight w ant to pursue their activities by party
political m ean s.47 M ost pu blic auth orities (inclu ding local cou ncils) are
prevented by law from b ein g d onors. C h arities, as unincorp orated associ
ations, are not excluded by the A ct but are bann ed , certainly in the view o f the
C h arity C om m ission ers, from such donations. The m ain thrust o f the d efini
tion o f a perm issible d onor is to exclu d e anonym ou s d onations and ind ivid
uals, com panies and organisations from o utsid e the U nited K ingd om (or, if a
com pany registered in the E uropean U nion, carrying on bu siness in the U nited
K ingdom ). Seeking to avoid these restrictions can be a crim inal offence.
In relation to perm issible d onations the A ct then im poses duties of
d isclosure onto political parties. In p articu lar parties m ust, on a reg u lar basis,
disclose d onation s from in d ividu al perm issible sources w hich, in d ividu ally or
by aggregation, com e to o v er £5,000 and ad ditional d onations from the sam e
sou rce aggregating to £1,000.48 D onations o f less than £200 do not need to be
disclosed by the party bu t need to be disclosed by the d onor if they aggregate
to m ore than £5,000 in a year. D uring general election periods the reports m ust
be m ad e on a w eekly basis.49 T hese d isclosures o f d onations are m ad e to the
Electoral C om m ission. Failure to m ake p roper disclosure to the C om m ission
can be an offence if d one w ithout reasonable excuse.50 The A ct im poses no
lim it on the am ou nt o f a d onation and to that extent the problem o f the
influence o f large d onations and the influence ov er or access to governm ent
that it m ay or m ay not buy, rem ains.
Cam paign expenditure

The traditional approach u n d er the R epresentation o f the P eople A ct 1983 and
its pred ecessors has been to im pose strict, low lim its on the am ou nt that can be
spent on encou rag in g p eople to vote or not to vote for p articular cand id ates, and
to requ ire that only cand id ates and their agents can m ake such expenditures.
Third parties in con stituencies have been p revented , subject to m inim al lim its,
from spend ing m oney. N ational cam paigns, on the other hand have been,
subject to broad castin g restraints d iscussed below , unlim ited as to expenditure.
For the reasons given earlier in this chapter, the situ ation has been changed
un d er the Political Parties, Elections and R eferend um s A ct 2000. R ather than
lim it d onations the A ct lim its d irect and 'n otio n al'51 cam paign expen d itures by
and on b eh alf of political parties d uring election periods. T h e lim its for
G eneral Election spend ing w ere, at the tim e o f enactm ent in 2000, £30,000 for
each con stituency in G reat Britain in w hich the party fields cand id ates. This
m eans that a party cam paign ing throu gh ou t the U nited K ingd om 52 could
* Sections 5 0 -5 3 , PPER A 2000.

47 Section 54, PPER A 2000.
48 Section 62, PPERA 2000.
49 Section 63, PPER A 2000.
50 Section 65, PPERA 2000.
51 For exam ple, the advantageous transfer of property to a party: s. 73, PPERA 2000.
spend an am ou nt approaching £20m .53 In N orthern Ireland the lim it is £30,000

for each con stituency w ithout an overall lim it for sm all parties. Different
am ou nts apply in respect o f the E uropean P arliam en t and the devolved
legislatures. T h e treasurer, or som eone he or she appoints, is responsible for
cam paign exp en d itu re and they can com m it an offence if they kn ow ingly
au th orise exp en d itu re outsid e the lim its. A nyone w ho incurs cam paign
exp en d itu re for a party w ithout the consent o f the T reasu rer or her or his
ap p ointee m ay also com m it an offence. C am paign expen d itures m u st be
reported to the Electoral C om m ission. S im ilar restrictions apply, taking into
accoun t necessary differences, to referend um cam paigns. Sim ilarly the A ct
lim its the am ou nt that third parties such as ind ividu als, trad e unions,
com m ercial com panies or pressu re groups can spend on su p p orting or
opposin g parties or cand id ates at elections nationally. Expend itures o f around
£500 are now perm itted in in d ividu al constituencies.
Election m eetings
The extent to w hich the state has the d uty to take p ositive steps to prom ote
political life is unclear. A s has been m entioned above, there are curren tly steps
being taken to encourage voters to cast their ballot by introd ucin g easier form s
o f voting. A positive d uty is im posed on local auth orities to provide suitable
room s for cand id ates to hold public m eetings in su pport o f their cand id ature
during P arliam en tary and local election s.54 The room s, w hich m ay be in
m aintained schools, m u st be provided free o f charge thou gh cand id ates m ust
d efray any expen ses and pay fo r any d am age caused. In W ebster v Southw ark
London Borough C ouncil5:1 the court held that a local au th ority has no d iscretion
to refu se to prov id e a room , p articularly on political ground s, since only
P arliam ent, and not a local cou ncil, could, in effect, p roscribe a political party.
Threats to pu blic ord er are the concern o f the police. O nce it is established that
the requ est for an election room has com e from a bona fide cand id ate, no
further public law ju d gm ents are involved and the cand id ate has a private law
righ t to a room .56 In fact, the issue can, at tim es, give rise to con troversies over
w hether the m eeting is open to the pu blic rather than b ein g confined to
ticket-hold ing m em bers or, in the case o f som e N ational Front cand id ates in
the 1980s, w hether the m eeting is in furtherance o f the cand id atu re rather than
aim ed at intim idation o f the local com m u nity.57
13.3.6 Political broadcasting

A dvertising
In the U nited K ingdom , election law bans broad cast ad vertisin g by ind iv id
uals, cand id ates or p arties but, in exchange, creates a system o f party political
52 PPER A 2000, Schedule 9. The C onservative and Labour Parties do not cam paign in N orthern
Ireland.
53 The relevant provisions cam e into force on 16 February 2001 though low er am ounts w ere
stipulated in transitional provisions for the G eneral Election of M ay 2001.
54 Currently ss. 95 and 96, Representation of the People A ct 1983.
55 [1983] 1 QB 698.
56 E ltridge v M orrell (1987) 85 LGR 100 CA.
57 See Rawlings, H.F. (1988) Law an d the Electoral Process. London: Sw eet & M axw ell, pp. 1 89-5.
broad casts w hich, at election tim e, becom e party election broad casts.58 Press
and p oster ad vertisin g is perm itted bu t such cam paigns are subject to the
expen d iture lim its on con stituency and national cam paign s.59 C learly this
gen eral schem e involves a restriction on the freed om o f expression of
ind ividu als and groups w ishing to ad vertise and, in som e cou ntries, it has been
found to violate fundam ental rights.60 T h e ban on p olitical ad vertisin g, as a
licence condition, has been accepted by the E uropean C om m ission on H um an
Rights61 and the p u rpose o f severe restrictions on election spend ing in ord er to
m aintain the fairness o f elections has been accepted in principle, su b ject to the
proportionality o f ind ividu al bans, by the C ou rt o f H um an Rights.62
Th e BBC is, o f course, not allow ed to carry any ad vertisem ents, inclu ding
political ones, and the B road casting A ct 1990 bans television and radio stations
licensed by the Ind epen d ent T elevision C om m ission and Radio A uthority
respectiv ely from b ro ad castin g political ad vertising. T h e b an is em bod ied in
the IT C 's C od e o f A dvertising Stand ards and P ractice.63 In N ovem ber 2001, for
exam ple, a proposed ad vertisem ent by the RSP C A w hich detailed the lives of
bro iler chickens w as banned from television broad castin g.64 T h e ban on
political ad vertisin g will con tin u e u n d er the proposed reform s to broad castin g
law .65 'P o litical' is not defined but the reg u lators' view s, that it extend s beyond
party political activity, has been accepted by the courts. In R v Radio A uthority
ex parte Bull (1995)66 the courts upheld a ban by the Radio A uthority on
ad vertisin g by A m nesty International relatin g to atrocities in Rw anda.
P ressure groups, as m uch as political parties, can pu rsu e controversial
o bjectives. T he argum ent for groups such as A m nesty International is that their
o bjective is one w hich is recognised and valued in international law , it does
not involve seeking a change or to resist a change in the law but m erely to
p rev ent governm ents and others from b reaking the law and to hold them to
fundam ental and hu m ane practices and, as a m atter o f the U nited K ingd om 's
d om estic politics, it is not con troversial as betw een the m ajor parties. A s yet
the cou rts do not d istin gu ish b etw een the p u rsu it o f hum an rights standards
and other form s o f political activity in this context.67
P arty political broadcasts

T he BBC has agreed, as part o f its public service rem it, to prov id e airtim e for
the political parties, p articularly at election tim e. Section 36 o f the B roadcasting
58 The Neill Com m ittee recom m ended that the system continue: Lord Neill of Bladen, QC
(C hairm an), C om m ittee on Standards in Public Life (1998) Fifth R eport: The F unding o f Political
Parties in the U nited K ingdom , Volum e I, C m 4 0 5 7 -1 ,1 3 .1 -1 3 .1 2 and R.94.
59 See above.
M As in Australia, see Ew ing, K. (1993) 'N ew C onstitutional C onstraints in A ustralia', Public Law
256.
61 X an d the A ssociation o f Z v U nited K ingdom (1971) 38 C D 862.
62 Bow m an v U nited K ingdom (1998) 26 1 EHRR 1; for com m ent see D avis, H. (1998) ‘Bow m an v
U nited Kingdom - a C ase for the H um an Rights A ct?', P ublic I a w 592.
63 The broadcasters are advised by the British Advertising C learance Centre.
M The In depen dent, 23.11.01; the advertisem ent could be show n in cinem as.
65 See C hapter 11.
66 [1995] 4 All ER 481.
67 Stevens, J. and Feldm an, D. (1997) 'Broadcasting A dvertisem ents by Bodies w ith Political
Objectives, Judicial Review and the Influence of Charities L aw ', P ublic Law 615.
A ct 1990 requ ires the ITC to inclu de prov ision for party political broad casts in
the licences it issues and other broad casters, such as Sky TV , have transm itted
such broad casts on a v olu ntary basis. T he d istribu tion o f airtim e is m ad e on
the basis of a form ula agreed b etw een political parties and broad casters. W ith
the com ing into effect of the Political P arties, E lections and R eferend um s A ct
2000, only registered p olitical parties w ill be able to m ake b road casts and the
view o f the registerin g bo d y , the Electoral C om m ission , m u st be taken into
account in agreeing the form ula. In 2002 the Electoral C om m ission published
a con su ltation p ap er on the future o f party broad casts proposing to ensu re that
the regim e w as com patible w ith the H um an R ights A ct 1998 and su ggesting a
possible extension o f the system to a w id er range of b road casters.68
Inevitably, perhaps, som e parties have been aggrieved by the form ulas
produced. Sm all parties and new arrivals tend to think that too m uch
em ph asis is placed on the results at the last elections w hile nationalist parties
tend to think that U nited K ingd om parties are o v er-represen ted in the
broad casts received in Scotland and W ales. T h ese argum en ts have som etim es
gone to the courts on the ground s that the d istribution o f airtim e has violated
the due im partiality principle. T h e courts have gen erally been reluctant to
intervene. So long as the interests o f sm all parties, new entrants and n ationalist
parties etc. are taken into accoun t in the form ula, the specific w ay in w hich the
com petin g claim s are balanced is u n likely to b e a ju sticiable m atter.69 In a
Scottish referend um case the Scottish cou rts did provide a rem ed y on the
ground s that referend um s should be subject to d ifferent principles than
election s and that the tend ency should be tow ard s equal airtim e for the yes
and no cam ps.70
The con tent o f party political and election broad casts is a m atter for the
parties. T h e broad casters have d uties to p revent p rogram m es w hich, for
exam ple, are libellous or w hich offend against taste and decency. H ow ever, in
R (P ro-Life A lliance) v British B roadcasting C orporation (2002)71 there w as a
strongly w orded ju d g m ent u p hold ing freed om o f expression , esp ecially by
political p arties at election tim e. For the C ourt, p reventing broad casts on taste
and d ecency ground s could only b e d one in the m ost extrem e circu m stances
and w ould otherw ise be thou ght as cen sorship incom patible w ith the com m on
law , let alone A rticle 10.72 Racist parties m ay have a right to a b road cast if the
form ula so dictates and the view of the ITC is that the broad casts are
acceptable so long as they do not them selves contain racist con tent.73
68 Electoral Com m ission (2002) Parti/ Political Broadcasts Consultation Paper, building on Electoral
C om m ission D iscussion Paper (2001) Parti/ Political Broadcasting Review .
69 R v BB C ex parte Referendum P arty [1997] The Tim es, 29 April, regarding a new entrant; Wilson v
IBA (2) (1988) SLT 276, regarding a nationalist partv.
70 Wilson v IBA (1979) SC 351.
71 [2002] E W C A C iv 297; [2002] 2 All ER 756.
72 In D ecem ber 1999 the ITC upheld a com plaint that a Liberal D em ocrat broadcast, in the form
of a m ock new s bulletin, breached the due im partiality provision.
73 A com plaint in M ay 1999 against the British N ational Party w as rejected by the ITC on these
grounds. See ITC website: w w w .itc.o rg .u k /.
14
Political offences
14.1 Introduction
C rim es com m itted for political reasons are p red om inantly dealt w ith through
the law o f pu blic ord er and are d iscussed in C h ap ter 17. A political m otive
w ill rarely ju stify w hat is otherw ise an offence, although it m ay affect d efences
based on reasonablen ess and it m ay influence the penalty im posed. T here are,
how ever, som e circu m stan ces in w hich a political reason for action, proo f o f a
d esire to act or speak in o rd er to further an effect on the law , governm ent
p olicy or public opinion, is the particular focus o f the d efinition of an offence:
the offence exists as a d istin ct offence becau se o f the p olitical content o f w hat
has been done, w ritten or spoken. A new range o f offences, those d ealing w ith
'terro rism ', com e w ithin this notion but, becau se o f their seriou sn ess and
currency, are d ealt w ith separately.
Political speech enjoys a p articularly strong protection u n d er the E uropean
C on vention on H um an Rights. U nd er the H um an Rights A ct 1998, any
prosecu tion w hich restricts political expression w ill need careful scru tin y by
reference to A rticle 10(2), w hose general features have been d iscussed in
C h ap ter 10. T h e C ou rt o f H um an R ights has long recognised that a d em ocratic
society is one o f the m ost effective m eans o f up hold ing C on vention rights.
Freed om o f p olitical speech, inclu ding the freed om to shock and offend, is one
o f the central pillars o f the C on vention con ception o f dem ocracy.
14.2 Treason
T reason is an ancient offence w hich, until 1998, attracted the d eath p en alty .1 It
is defined by the T reason A ct 1351 and involves plotting o r carrying out acts
against the person o f the m onarch or close m em bers o f the Royal fam ily,
fighting w ith or giving su pport to the C ro w n 's enem ies and killing certain
sen io r m inisters and ju dges w hile sitting in court.
Treason Act 1351

Declaration w hat offences shall be adjudged treason
. . . that is to say; when a man doth compass or imagine the death of our lord the
King, or of our lady his Queen or of their eldest son and heir; or if a man do violate
1 Section 36(4) and (5), C rim e and D isorder A ct 1998 abolished the death penalty for treason and
aggravated piracy.
Political offences 251
the King's companion or the King's eldest daughter unmarried, or the wife [sic] the
King's eldest son and heir; or if a man do levy w ar against our lord the King in his
realm, or be adherent to the King's enemies in his realm, giving to them aid and
comfort in the realm, or elsewhere, and thereof be probably attainted of open deed
by the people of their condition . . . and if a man slea the chancellor, treasurer and
the King's justices of the one bench or the other, justices in the eyre, or justices of the
assise, and all other justices assigned to hear and determine, being in their places,
doing their offices . . .
It has not been used in m odern tim es other than as offence b y m eans o f w hich
the death p enalty could be im posed on British su bjects2 or on aliens w ith an
alleged loyalty to the C row n,3 for assisting the enem y in w ar tim e. A llegiance
to the C row n is a necessary com p onent o f the offence. N atural born or
naturalised subjects m ay find it hard to show they have cast off this d uty of
allegiance. A n alien, w hile in the U nited K ingd om , ow es allegian ce to the
C row n and, it seem s, the possession o f a B ritish passport m ay be enou g h to
con tin u e the allegiance until som e express act o f renu nciation is perform ed.
Treason can be com m itted abroad. G iving aid and com fort to the K in g's
enem ies can inclu de various form s o f speech such as b ro ad castin g enem y
p ropagand a.4 It has recently been suggested that B ritish M uslim s fighting for
the T aliban and A1 Q 'aid a in the A fghan W ar 2001 have, by bein g apparently
'ad heran t to the [Q ueen's] en em ies', com m itted treason. T h e ju stice of
im p risoning or executing the defeated enem y is question able, particularly
sin ce it is based on an allegian ce they have d one all they can to renounce. In
m od ern tim es it m ay be that evid ence o f 'w ar crim es' or 'terro rism ' is a surer
footing for any prosecu tion that washes to avoid the claim o f v icto r's justice.'1
T he T reason Felony A ct 1848 lists a som ew hat m ore specific range of
offences w hich involve actions taken w ith the p u rpose o f d ep osing the
m onarch; using w ar-like force, insid e the U nited K ingd om , in o rd er to force a
change o f policy; to use force so as to intim idate P arliam en t, or to encourage
a foreign invasion. It is m ad e exp ressly clear that these offences can be
com m itted by u tteran ces and by pu blication o f any p rinting or w riting.6 O n
con viction the p enalty can be life im prisonm ent.'
Both treason and treason felony can, in som e o f their form s, be com m itted
by speech alone - by, for exam ple, enem y propagand ists or ad vocates of
rev olu tion ary violence. They are both confined to speech or actions ad vocatin g
seriou s violence to overthrow or u n derm ine state institutions.
2 K v C asem ent [1917] 1 KB 98. C asem ent's real loyalty w as, of course, to an Irish state.
5 Joyce v D PP [1946] A C 347.
4 The points in the sentences preceding this footnote are derived from Joy ce v DPP [1946] AC 347.
5 T reaso n doth never prosper, w h at's the reason? If it prosper, none dare call it Treason' (Sir John
H arrington (1977) E pigram s [1618], N ew York. O ctagon, Book 4, No. 5).
6 Section 3, Treason Felony A ct 1848.
7 Originally transportation for life.
14.3 Seditious libel
14.3.1 The nature of the offence

T here is a com m on law offence o f p u blish in g w ords w ith a 'sed itiou s intent'.
T he offence involves w ord s that are published w ith the intention o f prom oting
a violent attack on the auth ority o f state institutions.
In R v Burns (1886)s four prom in ent socialists w ere prosecu ted, and
acquitted , for the offence o f sed itiou s libel. T h e offence w as d efined as w ords
said or published w ith a seditious intention, and these are w ord s intended to
bring the C row n into 'hatred or con tem p t'; or to 'excite disaffection' against
the C row n, P arliam en t, governm ent or the cou rts; or to excite H er M ajesty 's
subjects to attem pt by unlaw fu l m eans to alter any m atter 'in C hurch or law
establish ed '; or to 'to raise d iscon ten t or d isaffection am on gst H er M ajesty 's
su b jects'; or to 'p rom ote feelings o f ill-w ill and hostility betw een different
classes of such su bjects'.9
R v Burns (1886) is too broad in its statem ent o f the law. R ecently it has been
accepted that the bu rd en o f a sed itiou s intention is confined to attacks on the
state, on 'constitu ted au th o rity ', and does not inclu d e attacks by one group of
citizens on another.
The Chief Metropolitan Stipendiary Magistrate refused to issue a summons against

the publishers of The Satanic Verses by Salman Rushdie which, it was alleged, was
a book published with seditious intent because it raised widespread ‘discontent or
disaffection amongst Her Majesty’s subjects'. The applicants sought judicial review of
the magistrate’s refusal.
HELD: the law was correctly stated in a Canadian case, Boucher v R (1951) 2 DLR
369. The magistrate was correct; essential to a seditious intention was an intention to
attack ‘constituted authority’, specifically the sovereign or the institutions of govern
ment.
R v Chief Metropolitan Stipendiary Magistrate ex parte C houdhury[\991] 1 All ER
306
T he refu sal by the H ouse of Lords to hear an appeal suggests that the latter,
m odern case correctly gives the law . If so, sed ition focu ses on attacks on
'constituted auth ority ' and exclu d es attacks on social groups, corporate
enterprises, religions, o ther form s o f social pow er and, perhaps, the social and
econom ic system generally. It does not, how ever, inv olv e a rigid division
b etw een pu blic and private authority. R ather the issue is w hether there is an
attack on the p erform ance o f a public function. T he cou rt in C houdhury said: 'By
"co n stitu ted a u th o rity " w hat is m eant is som e person or bod y holding public
office or d isch arging som e pu blic fun ction o f the state'. Thu s an attack on a
private bod y exercising a public fu n ction could be w ithin the am bit of sed itio n .10
A sed itiou s intention m u st involve an intention that the attack on con
stituted au th ority be pressed by violence or disorder. T h e m ere utteran ce of
8 (1886) XVI C ox CC 355.

9 Sir Jam es Stephen (1883) A H istory o f the C rim inal Law . London: M acm illan, vol. 2, p. 298 w as the
main source of this definition.
10 The point is now echoed in the Hum an Rights A ct 1998.
strong criticism is not enough. T he extent to w hich the d efen d an t m u st be

proved to have sou ght a v iolent reaction from the aud ience is unclear. The
sp eak er's or w riter's intentions are not to be based on w hat he or she sought
but are to b e construed, as a m atter o f fact, from all the circu m stan ces of
the case. M atters such as the type of aud ience ad dressed , the state of public
feeling at the tim e and the place and m od e o f p u blication are all relevant. In
R v A ldred (1909)11 a jou rn alist w as convicted w ho had w ritten approvingly of
the recent assassination o f a British Indian official and w ho advocated further
assassinations as a m eans to Indian ind ep en den ce. It w as im plied that w ords
w ith a tend ency to incite others to violence could be sed itiou s w hatever the
intentions or m otives o f the speaker.12 This ap p roach to intention perm its the
'op p o sitio n v eto', the con viction o f a person on the basis o f on an unintended,
unsou ght bu t v iolent aud ience reaction. As such it raises issues u n d er the
C on vention righ t to freed om o f expression. The m atter has arisen in recent
cases relating to arrest for breach o f the peace and is d iscussed in that context
in C h apter 17.
14.3.2 Freedom of expression

Sed itiou s libel raises im portan t issues o f political freedom , free speech and
freed om o f the press. T h e offence cannot be grounded ju st on robu st or radical
criticism o f the governm ent. In a p assage quoted in R v B u m s (1886) Step h en 's
definition continues: 'A n intention to show that H er M ajesty has been m isled
or m istaken in her m easures, or to point out errors or defects in the
governm ent or con stitution as by law establish ed , w ith a view to their
reform ation, or to excite H er M ajesty 's subjects to attem pt by law ful m eans the
alteration o f any m atter in C h urch or State by law established , [or to incite any
person to com m it any crim e in d isturban ce o f the peace] or to point out, in
ord er to their rem oval, m atters w hich are prod ucing, or have a tendency to
prod uce, feelings o f hatred and ill will betw een classes o f H er M ajesty 's
subjects, is not a sed itiou s in ten tio n '.13 In the cases the ju d g es have stressed
the d uty o f the ju ry to d ecid e in a m anner that protects freed om o f the p ress.14
U ncom p rom isin g p olitical criticism is protected by A rticle 10 ECH R. A
court, w ould , un der section 6 o f the H um an R ights A ct 1998, act u n law fu lly if
it perm itted the kinds o f political speech protected by the C on vention to be
the basis o f a conviction. N or, it can be suggested , is it enough to lay dow n
the test for a sed itiou s intention and then leave p articular instan ces to a jury.
The law should not p erm it a ju ry to convict in breach of C on vention rig h ts.15
There is little scope u n d er the C on vention for a state to restrict political
speech. P rotected speech inclu des expressions that m ay 'offend, shock or
11 R v A id red (1909) XXII C ox C C 1.

12 See also R v C an n i, 17 N ovem ber 1947, un reported, Liverpool Assizes, com m ented upon by
W ade, E.C.S. (!948) 'Seditious Libel and the Press', 64 I.QR 203.
13 The part in square brackets is found in the fourth edition.
14 For exam ple, in R v Burns the jury w ere told they w ere the 'guardians of the liberties of the
press, and whilst you will check its abuse, you will preserve its freedom '.
15 For exam ple, the law on 'reasonable chastisem ent' of a child by a parent is incom patible with
the Convention if it allow s a jury to acquit on facts w hich, nevertheless, disclose a breach of
Article 3; see A v U nited Kingdom (1999) 27 EHRR 611.
disturb the State or any sector o f the p o p u lation '.16 It also inclu des speech
aim ed at con stitutional change inclu d ing the break up o f the state through
form s of sep aratism ;17 though the C ou rt o f H um an Rights has accepted that a
d em ocratic state is entitled to take p roportionate step s to protect the
institutions necessary to its d em ocracy.18 A state m ay also take action against
incitem en ts to violence, although u n d er strict Strasbou rg su p erv isio n .19 W ithin
this fram ew ork, a con ception o f sed itiou s libel w hich confines itself to
protectin g d em ocratic institutions by pu nishing the ad vocacy of political
violence m ay still be com p atible w ith the C onvention.
A rticle 10(2) perm its restrictions on speech for various pu rposes inclu ding
'the prevention of d isord er or crim e'. A ny p rosecu tion w ould have to show
that the law on sed ition is sufficiently accessible and follow able to be
'prescribed by law '. T he com m on law basis o f sed ition, u n certainty su rrou nd
ing its use, u n certainty over w hether it is confined to attacks on public
institutions alone and u n certainty on the required state o f m ind of the
d efen d an t are all issues that raise significant question s regarding the com pati
bility o f the offence w ith C on vention rights. S im ilarly any prosecu tion w ould
have to m eet a pressing social need and be, in each in d ividu al case, a
prop ortionate response by the state.
Sed itio n has rarely been invoked in recent tim es. G overn m ents have
preferred to use public ord er legislation or, these days, anti-terrorist pow ers
derived from em erg ency legislation. R egu lations produced d uring the Second
W orld W ar, for exam ple, perm itted prosecu tions for expression s w hich had
the effect o f 'corru ptin g p u blic m o rale', o f new spapers for 'ferm enting
opp o sitio n ' or o f pu blications w hich caused 'alarm and d esp o n d en cy'.20 It is
hard to accept that, absen t a d erogation u n d er A rticle 15, such provisions
could be com p atible w ith the C onvention. Sedition w as used in the 1920s in
an attem pt to d estroy the C om m u nist Party o f G reat Britain.21 W hether such
actions w ould be com patible w ith the C on vention is a m atter of speculation.
D uring the 'cold w ar' the C om m ission o f H um an Rights, in KPD v Federal
R epublic o f G erm any (1957)22 up held the G erm an gov ern m en t's p roscrip tion of
the G erm an C om m u nist Party by using A rticle 17 to p revent a challenge to the
b an by the party. W ith the end of the 'cold w ar' a m ore tolerant ap p roach has
been ad opted in Strasbou rg. The gen eral political circu m stan ces in w hich a
sed ition trial takes place m ay, therefore, be im portan t in d eterm ining its
com p atibility w ith the C onvention. The 'w ar against terro rism '23 m ay m ean we
h ave returned to a situ ation in w hich the courts are able, con sisten tly w ith
16 M uch repeated w ord s derived from H andyside v U nited K ingdom (1 9 7 9 -8 0 ) 1 EH RR 737. On

political speech see Lingens v A ustria (1986) 8 EH RR 407; C astells v Spain (1992) 14 EH RR 445;
O berschlick v A ustria (1998) 25 EHRR 357.
17 U nited C om m unist P arty o f Turkey an d others v T urkey (1998) 26 EH RR 121; the case refers to
Article 11 on freedom of association (see C hapter 18) but is relevant to the scope of free
expression, too.
18 U nited C om m unist Party o f T u rkey an d others v Turkey (1998) 26 EH RR 121, 32.
19 Sener v Turkey [2000] 11 HRCD 399.
20 Ew ing, K. and G earty, C. (2000) The S truggle fo r C ivil Liberties. O xford: O xford University Press.
2' Ibid., pp. 136-44.
22 (1957) Ap. 2 5 0 /5 7 , 1 Yearbook 222.
23 See C hapter 18.
hu m an rights, to accept d ifferent standards w hen a terrorist con text is alleged.

A d v ocacy o f terrorist activity could, conceivably, be sed itiou s though the
governm ent has preferred to ad opt detailed anti-terrorist statu tes rather
attem pt to use sed itiou s libel.
14.4 Incitement to disaffection
If the U nited K ingdom is involved in w ar against ano ther state, or if there is

violent d isord er w ithin the cou ntry such as, for exam ple, in N orthern Ireland or
during the m iners' strike 1 9 84-85, a possible strategy for those in opposition to
governm ent p olicy is to encourage m em bers o f the arm ed forces or the police
no t to carry o ut their orders. Such a strategy is in d anger o f inv olv ing crim inal
activity. A rm ed forces legislation creates a range o f m ilitary offences relatin g to
m u tin y and other form s o f refu sal o f d uty w hich apply to m ilitary personnel
but also civilians subject to m ilitary law. The death penalty can no longer be
im posed for such offences even w hen com m itted in the face o f the enem y.24
C ivilian political activists seekin g to persuad e m em bers o f the arm ed forces to
refu se to u n d ertake certain duties can face prosecu tion s for incitem ent.
Incitem ent to Disaffection Act 1934

(1) If any person maliciously and advisedly endeavours to scduce any members of
His Majesty's forces from his duty or allegiance to His Majesty, he shall be guilty
of an offence under this Act.
T he A ct includes attem pts to incite from 'd u ty ' or from 'alleg ian ce'; m em bers
o f the arm ed forces, like any one in the U nited K ingd om , ow e allegian ce to the
C row n.25 Possession o f d ocu m ents w hich could have the sed u ctive effect
identified in section 1 is an offence. T here are pow ers for the p olice to obtain
w arrants to enter and search prem ises, to seize m aterial26 and to destroy
d ocu m ents found.27 The con sent o f the DPP is needed for any prosecution.
S in ce acts o f sed u cing involve expression , an A rticle 10 EC H R issue is
raised.28 H ow ever, the C om m ission has found that prosecu tion s can be
ju stified un der A rticle 10(2).
A had been prosecuted under the Incitement to Disaffection Act 1934 for distributing
leaflets in army bases which suggested that soldiers should leave the army or desert
rather than serve in Northern Ireland. The leaflets gave information on how this could
be done. The prosecution was upheld by the Court of Appeal.
HELD (Commission of Human Rights): the Act provided a sufficient basis in law for
the prosecution; the Act restricted freedom of expression in the interests of national
security; the Act was proportionate in that it did not make the mere expression of opinion
a criminal offence but required an intention to incite, and the prosecution was necessary
in that, from previous actions, the applicant intended to continue unless prosecuted.
Arrowsmith v United Kingdom (1978) D&R 19/5
24 The H um an Rights Act 1998, s. 21(5).

25 R v A rrow sm ith [1975] QB 678.
26 Incitem ent to Disaffection Act 1934, s. 2.
27 Incitem ent to Disaffection Act 1934, s. 3(4).
28 A rrow sm ith v U nited Kingdom . Admissibility: D&R 8 /1 2 3 ; report: D&R 1 9 /5 .
There is a sim ilar offence relatin g to the police, curren tly found in section 91
o f the Police A ct 1996. It m akes it an offence to cause disaffection am on g the
police or to ind uce a m em ber o f the force to w ithhold his services. T his offence
w as first introd uced in 1919 after a police strike and its im pact is linked to the
proh ibition on police officers striking as m uch as on politically m otivated
actions.
It is com p atible w ith the interests of a d em ocratic society to insist that
the political view s o f state officials (such as the m ilitary, the police, civil
servants, etc.) should not be allow ed to interfere w ith the achiev em en t of the
collective goals o f society as chosen by the elected and accoun table gov ern
m ent.29 State agents have the sam e vote as everybod y else and should not be
able to use their position to p rev ent a p roperly chosen p olicy from b ein g put
into effect. To give state agen ts a veto ov er policy is to give them hu gely
unequal w eight in the p olitical process. T his is one o f the reasons w hy
the political freed om o f officials is often restricted and the restriction accepted,
in general term s, by the C ou rt o f H um an R igh ts.30 T h e law s against incitem ent
serve, ind irectly, the sam e goal. T hey can be thought of as proportionate
lim its on speech that further the interests o f a d em ocratic society by being
designed to lim it the likelihood o f a p olitically m otivated breach o f d uty by
state officials. O f cou rse this argum en t will alw ays be vu lnerable to a
w ell-founded argum en t that the policy being opposed is itself incom patible
w ith any reasonable con cep tion of d em ocracy, or at least o f that conception
w hich characterises the general con stitutional arrangem ents. That, o f course, is
a v ery hard argum ent to establish gen erally and, in particular, before the
courts.
14.5 Incitement to racial hatred
14.5.1 Part III of the Public Order Act 1986

Speech and actions w hich involve racial d iscrim in ation can be un law fu l and
lead to various civil p enalties in contexts such as em ploym ent and the
provision o f services to the p u blic.31 Som e crim inal offences are con sid ered to
be m ad e w orse w hen com m itted w ith a racist m otive and are subject to a
high er penalty.32 T his p rinciple has b een extend ed to offences com m itted w ith
religiou s hatred .33
Incitem ent to racial hatred is, in various form s, a crim inal offence. The
offences are presented in a pu blic ord er context, as Part III o f the Public O rd er
A ct 1986. M uch racism that black and A sian p eople experience in the course
o f their everyd ay lives con sists either o f acts o f d iscrim in ation or of personal
29 For exam ple, on political strikes, M acFarlane, L.J. (1981) T he Right to Strike. H arm ondsw orth:
Penguin, 158-65.
30 See C hapter 13.The m ain justification for im posing political restrictions on civil servants and
others is the m aintenance of the app earan ce of im partiality.
31 For exam ple, the Race Relations A ct 1976, whose provisions have been extended to the services
of m any public authorities, including the police, by the Race Relations (A m endm ent) A ct 20(H).
32 C rim e and D isorder A ct 1998, Part II.
33 A nti-terrorism C rim e and Security A ct 2001, Part V.
abuse and insult expressed in racial term s. T he hate crim es in P art III provide
a context for d ealing w ith the m ore serious form s of the latter. O f course
'o rd inary ' public ord er offences can b e com m itted by racist behav iou r.34 T hese
can inclu de, for exam ple, w ord s or actions that create the fear o f violence
(section 4, P ublic O rd er A ct 1986) or w ord s or action that cause harassm ent,
alarm or d istress (section 5, Public O rd er A ct 1986). The 'h ate crim es' in Part
III of the A ct do not requ ire pro of o f likely violence and they provide for m ore
sev ere pu nishm ent, in clu ding the p ossibility o f prison, than is av ailable un der
section 5 o f the P ublic O rd er A ct 1986.
Racist speech and action can be political. T hey can be expressions of
opinions about how society should be and they can be linked to the
program m es o f organisations or p arties w hich are tryin g to obtain gov ern
m ental pow er or seekin g changes to the law , governm ent p olicy or public
opinion. Racist speech creates a difficulty in a society that valu es the political
freed om s o f expression and o f association. P eople should be able to hold and
express w hatever p olitical ideas they w ish and the state should not try to close
off in ad van ce p articu lar w ays in w hich society m ay d evelop in the future. So
long as society rem ains d em ocratic, all view s should be given equal protection
o f the law , no m atter how unp op u lar or offensive, since none can trium ph
w ithou t m ajority acceptance. A gainst this is the view that anti-racist law s, as
w ell as p rotectin g in d ividu al m em bers o f ethnic m inority groups from kinds
o f abuse and insult that the w hite m ajority does not frequ en tly exp erience,35
are also necessary to protect a d em ocratic society. T he prom otion o f racial
hatred is incon sisten t w ith the fun d am ental d ignity w hich all should be
accorded in a society and w ith the right o f everyone to equal concern and
respect. R acist hatred is incom patible w ith the procedu ral equality w hich is
necessary for any reasonable conception o f d em ocracy and, therefore, a
d em ocratic society can, w ithout con trad iction , take step s to su ppress it.
Th e essence o f the offences in Part III o f the Public O rd er A ct 1986 is
behav iou r or the use o f w ords w hich is 'threaten in g, abusive or insu ltin g' and
w hich is intend ed to 'stir up racial h atred ' or w hich, in the circu m stan ces, is
likely to have the effect of stirrin g up racial hatred. B eh aviou r or the use of
w ord s w ith this intention or effect is an offence in the follow ing situations:
w here a person uses 'w ord s or beh av iou r or d isplays any w ritten m aterial'
(section 18); w here a person 'pu blishes or distributes w ritten m aterial' (section
19); w here a person 'p resents or d irects' the pu blic p erform ance o f a play
(section 20); w here a person 'd istributes, or show s or plays, a record ing of
visual im ages or sou nd s (section 21); or w here a person provides, prod uces or
directs a broad cast, or w here a person uses racially offensive w ords or
behav iou r d u ring a broad cast (section 22). T hese offences can be com m itted by
ind ividu als or com panies, inclu ding, for exam ple, m edia com panies. Som eone
w ho places m aterial w hich incites racial hatred on the Internet is, presum ably,
'u sin g ' w ords and therefore could be caught by section 18. A n Internet Service
34 See C hapter 17. O ngoing racist abuse which am ounted to a course of cond uct aim ed at an
individual could also be an offence under the Protection from H arassm ent A ct 1997.
35 W hite people can be the victim s of racist abuse and are, of course, equally protected by Part III
as are m em bers o f ethnic minorities.
P rovid er w ill be cau gh t if it can be said that they are either p u blish in g or
d istributing w ritten m aterial but, in so far as they have no control ov er w hat
is placed on the Internet, this m ay be difficult to establish.
The con cept o f race in the offence is identified b y section 17. It refers to any
'group o f persons defined b y reference to colour, race, nationality (including
citizenship) o r ethnic o r national origins'. 'H atred ' or the u n usually colloquial
'stirring u p ' are not further defined. It is no longer necessary for the persons
subject to the hatred to be in G reat Britian.36
These offences do not requ ire p ro o f that racial hatred w as, in fact, 'stirred
up '. The offence can be com m itted if, in the circu m stan ces, the stirrin g up of
race hatred is likely. W hat m ight be called 'intellectual racism ', the expression
o f racist p olitical theory or o f science w hich suggests patterns o f racial
superiority and inferiority, m ay stir up racial hatred but be outsid e the scope
o f the offences becau se the w ord s are not 'threaten in g, abusive or insu ltin g'.
These statu tory term s are not defined but have their ord in ary m ean in g and are
to be left to the ju ry or m agistrate.37 A w ork o f science done in good faith, or
a seriou s novel such as The Satanic V erses by Salm an Rushdie, could be held
to be insultin g and be thought likely to stir up racial hatred in the
circu m stan ces. T his w ould raise seriou s issues o f freed om o f expression. The
problem is that the offences perm it the so-called 'opposition veto': an offence
can be brou ght into existen ce by the b ehav iou r and reaction o f those w ho
oppose w hat is b ein g said and choose to create the circu m stan ces in w hich
racial hatred is likely to be stirred up. W here the charge is based upon the
circu m stan ces in w hich the w ord s w ere spoken, but not w here the prosecution
is trying to prove an intention to stir up racial hatred, the A ct perm its a
d efence. T his is to the effect that the d efen d an t did not intend and w as not
aw are that the w ords etc. m igh t be threatening, abusive o r insulting. This
d efen ce im plies that a w riter etc. should d esist from pu blication if he or she is
aw are that w hat they are d oing m igh t be insulting. In the, perh aps rare,
circu m stan ces of a serious and good faith d iscu ssion o f m atters im pingin g on
race w hich are taken by others to be insulting, the d efen ce im plies that it is the
w riter w ho should hold back in the face o f attack and this m ay be incom patible
w ith freed om o f speech. If the offence is ev er extend ed from race to religion ,38
the im portan ce o f this issue w ill be m u ch greater sin ce religion is m ore likely
to be the subject o f attack;39 religiou s auth orities take up con troversial positions
on m oral questions, for exam ple, and these can lead to attacks w hich others
m igh t find offensive.
The section 18 offence, using threatening, abusive o r insultin g w ords to stir
up racial hatred, can be com m itted in both 'p u blic' and 'p riv ate' places.
M eetings by racist p olitical parties in private halls, for exam ple, are not exem pt
from the reach o f the A ct, nor if such statem ents w ere to be m ad e in party
offices. H ow ever, no offence is com m itted if the racist expression s are confined
to p eo p le's dw ellings.
The Act w as am ended by the Anti-terrorism , C rim e and Security A ct 2001.

37 Brutus v C ozens [1973] A C 854 H L; discussed in C hapter 19.
38 As w as the unfulfilled intention of the governm ent in 2001.
39 In so far as som e ethnic groups are already coterm inous w ith religion, such as Sikhs and,
perhaps, Jew s (see C hapter 21) the Act m ay already apply to religious attacks.
T he section 19 offence, p u blish in g or d istribu ting w ritten m aterial, is an

arrestable offence as defined by section 24, PA C E 1984. By section 1 7 (l)(b ) of
P A C E, private prem ises m ay be entered w ithout a w arrant in ord er to m ake
an arrest. P olice m ay arrest for a section 18 offence but it is not 'arrestable'
un der section 24, PA C E 1984; there is, therefore, no pow er o f the police to enter
private prem ises to m ake an arrest in the absen ce o f an anticipated breach of
the peace or unless they have som e other law ful basis to be on the prem ises.
The absen ce o f an express pow er to enter theatres and cin em as etc. can also
p resent difficulties o f ev id ence-gathering in relation to those offences relating
to the public perform ance o f a play or the d istribution etc. o f recordings.
Section 23 o f the P ublic O rd er A ct 1986 creates an offence o f the possession
o f racially inflam m atory m aterial. This can be w ritten or recorded m aterial in
w ritten or v isual form . It m u st be threatening, abusive or insultin g and the
offence is based on the intention to stir up racial hatred. T h e d efen ce o f no
intention to stir up racial hatred or the absen ce o f a reason to think that the
expression w as abusive etc. is available. U nd er section 24 police m ay obtain a
search w arrant to search for and seize m aterial w hich is believed to con travene
section 23. Section 25 o f the A ct gives m agistrates the pow er to ord er forfeiture
o f any m aterial that relates to the offences u n d er sections 18, 19, 21 or 23.
R acist chants and other form s of expression can also be the basis of
crim inal offences under section 3 o f the Football (O ffences) A ct 1991. T hese are
not likely to raise significant problem s regarding the freed om o f political
speech.
14.5.2 Convention rights and hate speech

'H ate crim es' can involve restrictions on political sp eech and raise significant
issues u n d er A rticle 10 ECH R. P olitical speech is the m ost strongly protected
form o f speech u n d er A rticle 10 and so, if restrictions are perm issible u n d er
the C on vention, it is all the m ore likely that non-p olitical form s o f racist
expression can also be suppressed w ithou t violating C on vention rights.40
R acist speech invokes at least tw o d ifferent issues under the C onvention.
The first is w hether the state, by law , is perm itted to restrict racist speech,
p articularly political speech. B ans on p olitical freed om based on race hatred
are, it seem s, likely, in principle, to be w ithin A rticle 10(2) as bein g to protect
the 'rights and freed om s of o th ers'.41 A ny particular restriction w ill need to
m eet the general tests o f the A rticle and be proportionate. T h e second issue is
w hether racists them selves and their org anisations are entitled to use the
C on vention to uphold their freedom of action. T his raises A rticle 17 ECH R
w hich prevents any 'state, group or person' from using their C on vention rights
to enable them to engage in activities aim ed at the d estru ction or lim itation of
the C on vention rights and freed om s of others. The Strasb ou rg institutions
h ave also accepted that attem pts by racist organisations o r ind iv id u als to assert
40 See Starm er, K. (1999) European H um an Rights Law. London: LAG, 24.4 8 -2 4 .5 1 .
41 See Jersild v D enm ark (1994) 19 EH RR 1, w hich accepted the previous practice of the Com m ission
on the intentional propagation of race hatred. See also H arris, D.J., O 'Boyle, M. and W arbrick,
C. (1995) L aw o f the European C onvention on H um an Rights. London: Butterw orths, p. 374, n. 14.
C on vention rights m ay fail becau se o f this.42 A rticle 17, it should be

rem em bered, only applies to an attem p t to uphold C o n ventio n rights w hich,
if exercised in the m an ner envisaged , w ould lead to violation s o f the rights of
others. It does not perm it the w ithd raw al o f other C on vention rights, such as
the right not to be tortured o r detained w ithout trial etc. to persons just
becau se they are racist.
Racism raises issues o f great pu blic im portan ce and is a fit m atter for good
faith pu blic interest broad casting. A ttem pts to prevent such program m es from
broad castin g the w ords and opinions o f racists m ay, in all the circu m stances,
be d isproportionate restrictions.
Danish journalist were prosecuted for aiding and abetting race hatred by broadcasting
the views of racists in a current affairs programme. The Danish courts upheld the
conviction.
HELD (ECHT): the underlying motive of the programme was anti-racist. There was
an attempt at a balanced and serious programme aimed at informing an audience. In
the circumstances the prosecution was disproportionate.
Jersild v Denmark (1994) 19 EHRR 1
In E nglish law , section 18(6) says that the offence o f using threatening etc.
w ords to stir up racial hatred does not apply to w ord s etc. said solely for use
in a broad cast. H ow ever, section 22, w hich relates to broad castin g, does seem
to be m ore restrictive o f w hat can be contained in a b road cast than, perhaps,
is perm itted by fersild v D enm ark (1994). T he persons responsible for a
broad cast can be gu ilty o f an offence if, though they them selves do not intend
to stir up racial hatred , hatred m ay, in all the circu m stan ces, be stirred up. A
bro ad caster's d efen ce can be that there w as no reason to su spect that the
offending m aterial w ould be in the broad cast and, given the circu m stan ces of
the b road cast, it w as not possible to rem ov e the offending m aterial. This
clearly does not protect the kind o f program m e in Jersild in w hich the
prod ucers seem to have d eliberately set out to give a public airing to the view s
and sen tim ents o f racists albeit w ith a view to encouragin g rejection by m ost
people.
42 G lim m erveen an d H agen beek v N etherlands (1979) 18 DR 187 in w hich the C om m ission advised
that a restriction on the ability of convicted racists to stand for election could not, because of
Article 17, be challenged as a violation of Article 10 o r A rticle 3 of the First Protocol. See also
Kühnen v FR G (1988) Ap. 1 2 1 9 4 /8 6 .
15
Access to public information
Effective political participation requires know ledge and inform ation in order
to challenge or defend the activities of governm ent, yet British governm ent
and adm inistration has, in the past, been notorious for the secrecy with which
it has conducted it affairs. There has been a widespread reluctance to perm it
the disclosure of inform ation held by the governm ent and a corresponding
reluctance to grant rights of access to inform ation to m em bers of the public.
15.1 The argument for secrecy
The defence of secrecy is, first, that certain m atters, m ost obviously those
involving national security, defence and diplom atic relations, should be kept
secret in the public interest. As a general principle this is w idely accepted:
operational m atters connected w ith the defence of the nation from genuine
threats to its stability or sovereignty com ing from overseas or by internal
subversion can legitim ately be kept secret. Other governm ental functions, for
exam ple the investigation of crim e, are in the sam e category. Personal
inform ation, m atters received in confidence, and, perhaps, certain types of
exploitable econom ic inform ation are also properly invested w ith secrecy.
It is the scope and consequences of this need for secrecy that is disputed.
The principle w hich justifies secrecy in certain areas is capable of such a broad
and discretionary application by the governm ent that it can include all sorts
of m atters for which there are strong, countervailing public interests which
justify, perm it or excuse disclosure or access. Secrecy, on this view, has been
disproportionately valued at the expense of, for exam ple, the ability o f citizens
effectively to participate in the political process.
A second defence of secrecy is that it is necessary for the effective
functioning of governm ent and public services generally. In particular it is
alleged that civil servants and other officials w ill be unw illing to give full and
unfettered advice to m inisters or to m ake judgm ents about the best interests
of individuals, such as patients or children in care, if they know that such
advice or judgm ents will becom e both public know ledge and also the personal
know ledge of those directly affected. Officials m ay fear political or personal
criticism or even legal action resulting from their best efforts. This argum ent
for secrecy is easily derided as w rongly im plying a general w eakness of
character am ong civil servants,1 and, regarding personal inform ation, assum es
1 For exam ple, Robertson, G. (1993) Freedom , the Individual and the Law, 7th edn. H armondsworth:
Penguin, p. 174.
a now u n acceptable form o f paternalism tow ards ind ividu als d irectly affected
by the d ecisions and actions o f pu blic authorities. Yet the arg u m en t has a
reasonable core. First, it m ay be necessary for m aintaining the ap p earan ce of
an im partial and professional civil service w ho ad vise m inisters un der the
condition that it is the m inisters w ho are accoun table for the policies and
actions that result. T his argum en t holds in so far as such a civil service is
valued and still reflects the stru ctu re and con d u ct o f the pu blic sector. A
second related point is that secrecy is needed to enable m inisters, officials and
others to con sid er the ran ge o f facts and policy proposals w ithout b ein g faced
w ith criticism ju st for con sid erin g options they are unlikely to pu t into effect.
A rgu m ents for secrecy elide into argum en ts against giving the pu blic general
access to official inform ation. First, it is argued that freed om of inform ation is
costly. This is un d ou bted ly true bu t the cost w ill be born p red om inantly b y the
taxpayer w hich is a factor influencin g all governm ent d ecisions on any m atter
and is not special to p olicy on freedom of inform ation. Second ly, it is argued that
access to inform ation by the pu blic u n derm ines the P arliam en tary system in the
U nited K ingdom by w hich m inisters are accou n table to Parliam ent. This
argum en t sim ply fails to take into accoun t the w eakn esses o f m inisterial
accoun tability by w hich not only can m inisters avoid giving accoun t for a range
o f reasons but, as a m atter o f principle, it leaves the d ecisions on w hat
inform ation to give and w hat to retain w ithin the exclusive discretion of m inisters
w ho can only be challenged by a H ouse o f C om m ons the m ajority of w hose
m em bers are ultim ately sym pathetic to the governm ent's cause and concerned to
avoid m atters em barrassing to the governm ent from b ein g m ad e public.
15.2 The legal basis of secrecy: official secrets and public records
There are tw o great legal m on um en ts to secrecy.

First is the crim inalisation , dating from the second h alf o f the nineteenth
century, o f unauthorised d isclosures o f official inform ation. T his is d ealt w ith
in C h apter 16.
T h e second legal m on u m en t to secrecy is the law relating to pu blic records
w hich d enies pu blic access to pu blic records for 30 years or longer. Section 5(1)
o f the Public R ecords A ct 1958, am ended in 1967, prevents pu blic access to
records w hich have not been in existen ce for 30 years.2 Fu rtherm ore, the
g o v ernm ent can im pose longer (or shorter) bans and, un der section 3(4) o f the
A ct, p erm it d ep artm ents to retain records for longer periods, such as 100 years,
o r w ith the intention that they are never to be d isclosed .3
T he Freed om o f Inform ation A ct 2000, w hich w ill be brou ght into force by
2005, replaces section 5(1) of the P ublic R ecords A ct 1958. It perm its retention
2 The system is detailed in the open governm ent W hite Paper: C hancellor of the D uchy of
Lancaster (1993) O pen G overnm ent, C m 2290. London: HMSO, ch apter 9. Thirty miles of records
are, apparently, reduced to 4.5 miles after five years and, in the end, only about 1 mile of records
are selected for preservation.
3 In the appendix to their The Struggle fo r Civil Liberties (O xford: O xford University Press, 2000) K.
Ew ing and C. G earty list a num ber of records w hich w ere retained for 100 years and suggest
that a provision in the C ode relating to the 'u nreasonable [em phasis in the Code) diversion of
resources' m ay m ake it im possible for historians to challenge existing closures.
Access to public information 263
beyond 30 years on terms w hich are com patible with the structure of the 2000
Act. As w e shall see, the Act im poses a duty on public authorities either to
publish or disclose on dem and inform ation and docum ents in their possession.
M any categories of inform ation and docum ents are 'exem pted' from this duty.
U nder the Act, m aterial which is not exem pted can be m ade available to the
public before 30 years have passed. M aterial w hich is exem pted from the duty
to disclose can be retained for 30 years at least and in som e cases held for
longer.4 W hether the new Act will m ake m uch difference rem ains to be seen
since, just as under sections 5(2) (repealed) and 3(4) (retained in force) of the
Public Records A ct 1958, m any im portant records, including those pertaining
to national security and sensitive com m ercial inform ation, will be able to be
closed to the public for as long as the governm ent wishes. The m atter is
com plex and a Code of Practice can be issued.
15.3 Justifications for openness
The W hite Paper of Open G overnm ent and the Freedom of Inform ation Act
2000 are evidence of significant m oves towards greater openness. The case for
greater openness has been strongly put and has been accepted, with
qualifications, by successive governm ents.
O penness serves the ideal of citizenship. It is necessary for voters to be able to
m ake inform ed choices, for political parties, pressure groups and other political
associations to be able to pursue their particular interests or their conceptions of
the public good effectively, for individuals, com panies and associations to
pursue their self-interest by political m eans, and so on. Effective political
activity requires access to public inform ation. This justification extends to
political representatives who do not necessarily have any greater access to
official inform ation than the public. It extends to the media through which most
people obtain their understanding of public life, and also to contem porary
historians. This justification for openness extends to access to the facts on which
governm ent policies and decisions are made. There is, how ever, an interesting
distinction to be made. G overnm ent has, particularly in the tw entieth century,
becom e increasingly involved in the provision of sendees to the population:
health, education and w elfare being the most obvious exam ples. As a
consequence public authorities hold significant am ounts of inform ation about
social and environm ental policies which can affect individuals directly. Tw o
m odels of the participant citizen emerge. One is the traditional dem ocratic
citizen, seeking the com m on good with no special personal advantage to be
gained. The other, m ore m odern, is the citizen as the 'consum er' of governm ent
sendees who requires, as it were, m arket inform ation about those services in
order the better to choose betw een alternatives and the better to know their
rights and entitlem ents. Requiring the publication of inform ation to the
'consum ers' of public sendees is an im portant them e of open governm ent.
O penness also s e n e s the ideal of personal autonom y. It is sim ply the right
of persons to have access to and to control the use of the personal inform ation
4 Sections 62 and 63, Freedom of Inform ation A ct 2000.

that others have about them - and governm ent and public authorities, these
days, hold huge am ounts of personal data. The law on personal inform ation
is discussed in Chapter 19.
Openness is also involved in accountability. Both help to m ake for
better, m ore careful governm ent and adm inistration. They act as internal
restraints on officials but also as conditions under w hich m aladm inistration or
the abuse of pow er becom e clearer to citizens who are better placed to take
rem edial action.
A nother justification relates to com m ercial needs. Public services are
increasingly being privatised or contracted out to com m ercial com panies. The
governm ent is also the producer of m uch factual inform ation and the
generator of policies which m ay suggest new market needs w hich com panies
can meet. Given that this interrelation o f the public and private sector is a fact
of m odern society, inform ation to assist it should be available.5
The move to greater openness can also be explained by im portant contextual
changes. First, the role of m odern governm ent in the provision of a vast range
of services which are way beyond its so-called traditional role of m aintaining
the rule of law, upholding order and sound m oney and dealing with defence
and foreign policy has been noted above. It not only creates pressure for access
to inform ation on services, it also weakens the defences for secrecy since these
have their greatest w eight in respect of m atters involving, for exam ple,
national security, but m uch less w eight regarding, for exam ple, housing
policy. A second context is the 'new ' technology, particularly the Internet. It
m eans, first, that it is m uch harder to m aintain secrecy especially in respect of
inform ation available overseas. It also means that it is much easier for the
governm ent and public authorities to m ake inform ation available relatively
cheaply and with ease of access.
1 5.4 Convention rights
The European Convention on H um an Rights, directly or through the Hum an

Rights Act 1998, has not been a m ajor explanatory factor behind the m ove to
greater openness. A rticle 10, freedom of expression, includes the right to
receive inform ation. H ow ever, in Leander v Sweden (1987),6 followed in Gaskin
v United Kingdom (1 9 9 0 )/ it was said that 'the right to receive inform ation
basically prohibits a governm ent from restricting a person from receiving
inform ation that others wish or m ay be w illing to im part to him '. The
Strasbourg view8 is that A rticle 10 'is prim arily a freedom of access to general
sources of inform ation w hich m ay not be restricted by positive action of the
authorities'.9 A rticle 10 cannot m ean that, for exam ple, an official body can be
forced to divulge inform ation it is unw illing to give. It provides for freedom
5 See Stanley, P. (2000) 'Freedom of Information Act 2000', annotations to Current Law Statutes,
2000 Vol. 2, c.36. London. Sweet & Maxwell, pp. 3 6 -3 , introductory and general note.
6 (1987) 9 EHRR 433.
7 (1990) 12 EHRR 36.
8 Harris, D.J., O'Boyle, M. and Warbrick, C. (1995) Law o f the European Convention on Human Rights.
London: Butterworth, pp. 379-80.
9 Z v A ustria (1988) 56 DR 13.
A ccess to public inform ation 265
o f expression , not forced exp ressio n .10 T his view o f A rticle 10 w as end orsed as
regards E nglish law in R (Persey) v Secretary o f State fo r the Environm ent, Food
and R ural A ffairs (2000)11 involving an u nsu ccessful challenge to the gov ern
m en t's d ecision not to hold the inquiries into the foot and m ou th crisis o f 2001
in public.
The Strasbou rg view o f A rticle 10 is logically strong but d ep ends on treating
the state and its agen cies as b ein g in the sam e position as citizens and
journalists. A lternatively, the p articular position o f the state, as the m onop oly
con troller o f m uch public inform ation and bound by convention, law and
m orality to act in the public interest, could found an argum en t for a properly
qualified d uty o f disclosure, p articularly sin ce the d istin ction betw een the state
auth orities and the rights o f persons w ithin their ju risd iction is at the heart of
the C on vention system .12
The C on vention m ay grant rights o f access to inform ation un der A rticle 8.
But this is to personal data w h ich has p articular significance for the ap p lican t's
private life 13 rather than general inform ation to facilitate political participation.
The C ou rt has asserted positive obligations, u n d er A rticle 8, on states to
provide inform ation in resp ect o f environm ental issu es14 and in respect of
health fears arising out o f nu clear testing.15 Such inform ation is needed to
enable a person to assess the risks to their private and fam ily life and so the
du ty is to provide the inform ation necessary to con sid er C on vention claim s.
There m ay also be rights o f access to inform ation by the d efen ce in crim inal
and civil trials on the principle o f equality o f arm s. In certain circu m stances,
to the con trary, the C on vention m ay requ ire no n-d isclosure, such as w here
secrecy is necessary to protect the right to life.
15.5 Freedom of information: the Code of Practice and the Freedom

of Information Act 2000
The argum ents for openn ess have been increasingly accepted d uring the last
qu arter o f the tw entieth century and lim ited statu tory d ev elopm ents have
o ccu rred .16 M ost o f these d evelopm ents have been in respect o f personal
inform ation held by gov ernm ent agen cies and is looked at in m ore d etail in
C h apter 19. T here have also been significant d evelopm ents regarding access to
non-p ersonal inform ation about pu blic m atters. In local governm ent, for
exam ple, the Local G o vern m ent (A ccess to Inform ation) A ct 1985 p rovides a
pu blic right o f access to m eetings, reports and d ocu m ents subject to a range
o f p ow ers to restrict access on con fid entiality and other grounds. The Local
G ov ern m ent Finance A ct 1982 inclu ded a righ t o f access to the audited
10 Barendt, E. (1987) Freedom o f Speech. O xford: C larendon Press, pp. 107-13.

" [20001 EW H C 371; [2002] 3 W LR 704.
12 See Bayne, P. (1994) 'Freedom of Inform ation and Political Free Speech', in T. Campbell and W.
Sadurski (eds), Freedom o f C om m unication. Aldershot: D artm outh, ch. 1, cited by Stanley, op. cit.
13 G askin v UK (1989). 12 EH RR 36. See also G uerra v Italy (1995) 20 EH RR 277.
14 G uerra v Italy (1995) 20 EH RR 277; Lopez O stra v Spain (1998) 26 EH RR 357.
15 M cG in ley an d Egan v U nited K ingdom (1999) 27 EH RR 1.
16 For the position prior to 1990 see Birkinshaw, P. (1990) G overnm ent an d In form ation : The Law
R elating to A ccess, D isclosure an d Regulation. London: Buttervvorths.
accoun ts of a local au th o rity ;'7 the right con tin ues in section 14 o f the A ud it
C om m ission A ct 1998. Public registers o f enforcem ent notices in certain
eiivironm eiital areas w ere established un der the E nviron m ent and Safety
Inform ation A ct 1988. A range o f ad m inistrativ e m easures, in the H ealth
Service, for exam ple, have also taken p lace d uring the late tw entieth cen tu ry .18
D espite such p rovisions strong criticism continued to the effect that there
w as no general righ t o f access to pu blic inform ation and w hat rights existed
w ere too d iscretionary and contained too m any exem p tin g provisions. In 1993
the C on serv ative go v ernm ent prod uced a W hite Paper on open g o v ern m en t19
to w hich w as appended a C od e o f Practice. T he C od e, now in its second
edition, has been continued and rev ised 20 by the Labour governm ent. A C ode
o f P ractice does not create a legal right to gov ernm ent inform ation. It rem ains
the basis o f open governm ent bu t w ill be supplanted by the provisions o f the
Freed om o f Inform ation A ct 2000 w hose preparatory p rovisions are alread y in
force and w hose substantive provisions w ill be grad u ally brou ght into force
before 2005. Section 45 o f the Freed om o f Inform ation A ct 2000 requ ires the
Secretary o f State to issue a new C od e o f Practice w hich w ill replace the
curren t one.
In w hat follow s in this chapter, the curren t C od e and the requ irem ents of
the new A ct w ill be com pared. B oth cover very sim ilar ground bu t the A ct
gives greater d etail, p articularly o f the ground s upon w hich exem ption can be
claim ed. It should not be forgotten, how ever, that the C od e w as supported by
detailed gu idance issued from tim e to tim e. T he crucial d istin ction is that the
A ct gives a right, w hich is u ltim ately enforceable in the cou rts, to the
d isclosure of inform ation.

The C od e o f 1 9 9 3 /1 9 9 8 applies to all governm ent d ep artm ents and public
auth orities under the ju risd iction o f the P arliam en tary C om m ission er for
A dm in istration, the O m bu dsm an. It is the O m bu d sm an w ho enforces the
Code. Section 4 and Sch ed u le 2 o f the P arliam en tary C om m ission er A ct 1967
(as am ended by the P arliam en tary and H ealth Serv ice C om m ission ers A ct
1987) id entify and list the b od ies subject to the jurisdiction. G o vern m ent
d ep artm ents and a large range o f pu blic auth orities are included. M any
areas are not inclu ded , such as edu cational establishm ents. Sim ilarly there are,
in Sch ed u le 3, a nu m ber o f governm ental functions from w hich the O m bu d s
m an is excluded such as the p rerogative o f m ercy and com m ercial transactions.
Th e A ct has a w ider range than the Code. It identifies the specific public
auth orities to w hich it applies. (A n ap proach that can be contrasted w ith the
17 Bailey, S.H. (1997) Cross on Principles o f Local G overnm ent Law , 2nd edn. London: Sw eet &
M axwell, pp. 13-45.
18 C hapter 2 of the O pen G overnm ent W hite Paper identifies, for the period prior to 1993, som e
of these m easures which relate to both personal and policy inform ation in specific areas of
governm ent activity.
19 C hancellor of the D uchy of Lancaster (1993) Open G overnm ent, C m 2290. London: HMSO.
20 Latest at tim e of w riting: H om e Office (1997) Code o f P ractice on A ccess to G overnm ent Inform ation,
2nd edn, revised 1998. London: HMSO (available at h ttp ://w w w .h o m e o ffic e .g o v .u k /fo i/
ogcode981.htm ).
H um an Rights A ct 1998 w hich refers to 'p u blic au th orities' and, w ith som e
exceptions, leaves it to the courts to id entify w hich bod ies are inclu ded in the
term ). Sch ed u le 1 o f the 2000 A ct inclu des all governm ent d ep artm ents, the
H ouse of C om m ons and the H ouse o f Lords, the N orthern Ireland A ssem bly
and the N ational A ssem bly o f W ales, the arm ed forces (but not 'special
forces'), local auth orities (inclu ding parish cou ncils) and local or regional
board s and com m ittees. T h e N ational H ealth Service, m aintained edu cational
institutions at all levels, police forces and a vast ran ge o f pu blic auth orities and
any com panies they w holly ow n, are also included. Section 15 o f the A ct,
rem iniscent o f section 6(3) o f the H um an R ights A ct 1998, perm its the
Secretary o f State, by order, to add to the list any person exercising 'p u blic
functions' such as, for exam ple, the providers o f priv ate prisons. By section 4
the Secretary o f State, b y ord er, can add other public auth orities to the
Schedule.
15.5.2 Publication
The C od e and A ct place a requ irem ent on public au th orities v olu ntarily to
pu blish inform ation; they are not ju st concerned w ith d isclosure on request.
The C od e describes inform ation w hich the go v ernm ent w ill v olu nteer and
pu blish .21 T his inclu des, for exam ple, 'the facts and analysis of the facts w hich
the gov ernm ent con sid ers relevan t and im portan t in fram ing m ajor policy
proposals and d ecisions' and 'exp lan atory m aterial on d ep artm ents' dealings
w ith the p u b lic'; reasons for d ecisions should also be given.22 A significant
am ou nt o f inform ation is now in the public dom ain through, for exam ple, the
open go v ernm ent w ebsite.
U nd er the A ct pu blic auth orities m u st publish 'pu blication schem es' w hich
specify the type of inform ation they intend to publish. Sch em es should assist
the 'co n su m ers' of pu blic services in m aking rational decisions. Publication, of
course, is w ithin the control o f the d ep artm ents and there is a d anger that, in
som e circu m stan ces, inform ation can be extracted from its original form and
given a gloss aim ed at p rom oting d ep artm ental interests rather than providing
inform ation. T hese schem es m ust be approved by the Inform ation C om m is
sioner. The W hite P aper and C od e o f P ractice requ ire the d ep artm ents to
pu blicise their procedu res for open governm ent and for pu tting the C od e into
effect.
15.5.3 Disclosure
The C od e gave a gov ernm ent com m itm ent:
Part 1 v
. . . to release, in response to specific requests, information relating to their policies,
actions and decisions and other matters related to their areas of responsibility.
21 C hancellor of the Duchy of Lancaster (1993) Open G overnm ent, C m 2290. London: HMSO,
paragrap h 4.6.
22 H om e Office (1997) C ode o f P ractice on A ccess to G overnm ent Inform ation, 2nd edn, revised 1998.
London: HMSO, P art 1, 3(i)(ii)(iii).
In contrast, the A ct creates an entitlem en t, a legal righ t w ith a correlating duty,

to know w hether a public au th ority has inform ation and, if so, to the
disclosure o f that inform ation.
Freedom of Inform ation Act 2000

1 (1 ) A n y p e r s o n m a k in g a r e q u e s t f o r in f o rm a tio n to a p u b lic a u th o r ity is e n title d -
(a ) to be in f o rm e d in w r itin g by th e p u b lic a u th o r ity w h e th e r it h o ld s
in f o rm a tio n o f th e d e s c r ip tio n sp e c ifie d in th e r e q u e s t, a n d
(b ) if th a t is th e c a s e , to h a v e th a t in f o rm a tio n c o m m u n ic a te d to h im .
15.5.4 Enforcement
E nforcem ent o f the C ode
U nd er the C od e, enforcem ent is, first, by com plaint to the d ep artm ent or
p u blic au th ority involved, and , if that fails, a further com plain t to the
P arliam en tary O m bu dsm an .23 The O m bu dsm an has significant p ow ers of
investigation, inclu d ing a pow er to call for d ep artm ental papers and records.
T he investigation can then be the basis o f a report and the rep ort can m ake
recom m en d ations o f action, in clu ding the m akin g o f ex gratia paym ents, to be
taken by the authority. T he O m bu d sm an 's recom m en d ations are 'alm ost
in v ariably '24 accepted. The problem w ith this m ethod of enforcem ent is that
the O m bu d sm an cannot be con tacted d irectly but only though a M em ber of
P arliam ent and that the O m bu dsm an has no pow er to m ake bind in g orders
and so, ultim ately, there is no legal sanction if any recom m en dations are not
follow ed, though a P arliam en tary investigation by D epartm ental Scrutiny
C om m ittee m ight follow . T here is no statu tory right o f appeal, for com plainant
o r pu blic authority, although ju dicial review of an O m bu d sm an 's d ecision has
been allow ed.
E nforcem ent o f the A ct

T he central innovation o f the A ct is that it creates a d uty o f d isclosure w hich
is u ltim ately enforceable by a court ord er d isobedience to w hich can be
punished as a con tem p t of court. H ow ever, p rim ary enforcem ent is not b y the
cou rts bu t through the offices o f the Inform ation C om m ission er and the
Inform ation Tribunal.
If a pu blic au th ority refuses a requ est for inform ation, the person m aking
the requ est is expected to pu rsu e any com plain ts o r appeals process that are
open to them u n d er the au th o rity 's open go v ernm ent procedu res. These
p rocedu res w ill be prod uced in con form ity to the C od e o f Practice m ad e u n d er
section 45. If u n su ccessful the com p lain ant m ay then apply to the Inform ation
C om m ission er.25 T he Data P rotection C om m ission er is renam ed the Inform a
tion C om m ission er and the ju risd iction o f the office has been extended to
inclu de all freed om o f inform ation com plaints. The C o m m ission er's ju risd ic
23 Ibid. Part 1, 11.

24 W hite Paper 4.20. The initial refusal to com pensate investors in the failed com pany Barlow
C low es and the issue of planning blight along the route of the Channel Tunnel rail link are tw o
exam ples w here recom m endations w ere not accepted.
25 Freedom of Inform ation A ct 2000, s. 50.
tion is to decide w hether a requ est for inform ation has been properly d ealt
w ith un der the A ct.
The C om m ission er m ay issue an 'inform ation notice'. By this notice the
public au th ority involved m u st d isclose inform ation to the C om m ission er w ho
can then d eterm ine w hether there is a d uty un der the A ct to disclose the
inform ation to the applicant. The C om m ission er, for exam ple, can judge
w hether or not a claim ed exem ption really exists. U nd er section 55 and
Sch ed u le 3 the C om m ission er has pow ers o f entry and inspection if there are
reasonable ground s for suspecting that a public au th ority is not com plying
w ith the A ct. T hese pow ers are exercised on the basis o f a w arrant issued by
a circuit ju dge; there are various exem p tions such as in respect of national
security and the secu rity and intelligence services.
Follow in g in vestigation, the C om m ission er has tw o principal pow ers. The
first is to issue a 'd ecision notice' un der section 50(3)—(6). T his is the d ecision
in respect o f a particu lar com plaint and it lays dow n the step s the public
au th ority need s to take in the case. T h e second is an 'enforcem ent notice'
w hich can be issued if the C om m ission er is satisfied that a pu blic authority
has failed to com ply w ith the A ct. A n 'enfo rcem ent n otice' does not requ ire a
com plaint. The C om m ission er can take legally enforceable steps, on his or her
ow n initiative, to prom ote freed om o f inform ation in resp ect o f particular
authorities.
The public au th ority and the com plain ant enjoy rights o f appeal in respect
o f a 'd ecision n otice' w hile public auth orities m ay appeal in respect o f an
'inform ation notice' or an 'enforcem ent n otice'. A ppeal is to the Inform ation
Tribunal: the D ata P rotection Tribunal renam ed and given an extended
ju risd iction .26 The ground s o f appeal are w ide: that the C o m m ission er has
m ad e an error o f law o r that the C om m ission er 'ou ght to have exercised his
discretion d ifferently'.27 It is an appeal and not a review o f the C om m ission er
and, therefore, the T ribunal can con sid er the issues, in clu ding findings o f fact,
anew . T h e T ribun al m ay d ism iss the appeal, quash the notice or su bstitu te its
ow n notice for the C o m m ission er's.2* T h e T rib u n al's d ecisions can be appealed
against, though only on a point o f law , to the H igh C ou rt.21'
Inform ation notices, d ecision notices and enforcem ent notices have the
status o f cou rt orders. If a public auth ority, after exercising its rights o f appeal,
fails to com ply ad equ ately, the C om m ission er can certify this to the H igh
Court. The H igh C ou rt can m ake inquiries and, after hearing representations,
can deal w ith the failure to com ply w ith the notices as if the pu blic authority
had com m itted a con tem p t o f court.30
2fi Freedom of Inform ation A ct 2000, s. 18.

27 Freedom of Inform ation A ct 2000, s. 58(1).
28 Freedom of Inform ation A ct 2000, s. 58(1).
Section 53
A m ajor loophole is created by section 53 of the 2000 Act. In som e im portant
instances, the governm ent will be able to substitute its view s for that of the
Com m issioner on w hether it has a duty to disclose. This loophole does not
apply to all public authorities but it does apply to governm ent departm ents,
the N ational A ssem bly of W ales and any other public authority the Secretary
of State, by order requiring the affirm ative resolution of Parliam ent, decides to
designate. Section 53 applies when a public authority to w hich it relates claims
an exem ption from disclosure and it is an exem ption involving a judgm ent
that, on balance, the public interest favours secrecy rather than openness.31 On
the public interest issue the view of the public authority, through its
'accountable person', overrides that of the C om m issioner or the Tribunal. A
section 53 certificate must be laid before Parliam ent. O ther than that there is
no right of appeal by an applicant and, given the clear statutory basis of the
pow er, judicial review of the accountable person's decision is likely to be
difficult. Until the Act has been in effect for som e tim e it will be unclear how
great a departure from the principle of an enforceable duty to disclose section
53 creates. Given the authorities to w hich it applies, section 53 is likely to have
its greatest im pact on the 'active citizen' seeking access to general policy
inform ation rather than the citizen as consum er of services.
15.5.5 Exemptions
The value of both Code and A ct depends upon the exem ptions and the extent
to w hich they underm ine the value of the com m itm ent to or the duty of
disclosure. The m ore discretionary and open textured the grounds for
exem ption, the m ore it is that the value of the com m itm ent to openness and
citizens' right to disclosure under the Act is dim inished. The exem ptions in
Code and A ct cover, broadly speaking, the sam e ground. The A ct is, at times,
a little m ore specific.
Types o f exemption
The Code distinguishes betw een exem ptions that do and those that do not
depend upon a judgm ent of harm or prejudice. Exem ptions that do not
expressly require identifiable resulting harm or prejudice are class exem ptions.
These apply to any inform ation in a particular class. The scope of the
exem ptions is given further gloss in G uidance issued under the Code. In the
absence o f legal enforcem ent, the final decision on exem ption lies within
governm ent discretion.
The A ct creates a m ore com plex position. It distinguishes betw een 'absolute'
exem ptions and other exem ptions. An 'absolute' exem ption cannot be overrid
den even if, on balance, the public interest would be served by disclosure. For
exam ple, absolute exem ptions apply to inform ation w hich m ust be disclosed
under the provisions of other Acts. W hether an exem ption is absolute or not
depends solely on its statutory classification given in section 2(3). Other,
non-absolute, exem ptions apply in respect of stipulated subject matter. The
31 Freedom of Inform ation Act 2000, s. 53(1 )(b).

exem ption is not absolute because inform ation relating to that subject m atter
should still be disclosed unless 'in all the circum stances of the case the public
interest in m aintaining the exem ption outw eighs the public interest in
disclosing the inform ation'.32 Thus, in respect of non-absolute exem ptions, the
presum ption in favour of disclosure still applies though it can be outweighed
by the w eight of the reasons for m aintaining secrecy. The public authority will
m ake the initial judgm ent o f the public interest but its view can be overridden
by the C om m issioner or, on appeal, the Tribunal (unless section 53 applies)
Under both Code and Act, each exem ption is distinct in term s of its structure
and conditions. Som e of the non-absolute exem ptions specify the need for
harm or prejudice of various kinds; others identify a class or general subject
m atter of inform ation and an exem ption can be claim ed in respect of any
inform ation in that class. Even so, class-based exem ption is not 'absolute'.
D isclosure m ay still be in the public interest, under section 2(2), if the public
benefit of any particular disclosure outw eighs the general argum ents for
non-disclosure of the class of docum ents. H ow ever, these general argum ents
for secrecy o f the class are likely to be weighty, all the m ore so because they
have been specifically endorsed by the identification of the class in the Act.
Argum ents for disclosure are likely to be hard to form ulate.
The exem ptions under the A ct apply to both the inform ation itself and
whether it exists or not.
The specific exemptions

In w hat follows, the exem ptions, w hich are all different, are listed and
sum m arised in term s o f subject m atter.
1 Exem ptions and disclosure or non-disclosure under other Acts

Both Code and A ct preserve the scope and jurisdiction of other A cts of
Parliam ent dealing w ith access to inform ation. The non-statutory nature o f the
Code m eans that it cannot override statutory provisions w hich allow for, or
prohibit, disclosure. The W hite Paper, on w hich the 1993 Code is based,
identified about 200 statutes which prohibited or lim ited disclosure of
inform ation.
Section 21 of the 2000 A ct gives absolute exem ption in respect of inform ation
which is reasonably accessible by other m eans, such as under other Acts.
Section 78 m akes it clear that nothing in the A ct can lim it existing pow ers of
disclosure. Section 44 confers absolute exem ption w here disclosure is already
prohibited by an existing statute, under Com m unity law or w here it would be
a contem pt of court. Section 75, how ever, gives a w ide pow er to the Secretary
of State to repeal or amend prim ary or secondary legislation w hich prevents
the disclosure of inform ation which would otherw ise be disclosed under the
Act.
1(a) Personal inform ation

Code and Act preserve the Data Protection Act 1998 as the proper statutory
regim e under w hich disclosure and control of personal inform ation held by
32 See Code of Practice, Part II; Freedom of Inform ation Act 2000, s. 2(2)(b).
pu blic auth orities is d ealt w ith.33 The 2000 A ct w iden s the protection given to
personal inform ation by giving absolu te exem ption un der its term s to som e
personal inform ation w hich is outsid e the scope o f the 1998 A ct, such as
personal data w hose d isclosure to a third party w ould violate data protection
principles.34
1(b) E nvironm ental inform ation

The C od e recognises and keeps in place existing rights o f access to en v iro n
m ental inform ation. T h e C od e also exem pts inform ation w hich, if disclosed,
m ight end ang er the env ironm en t or rare or end angered sp ecies.35
U nd er section 74 o f the Freed om o f Inform ation A ct 2000 existing env iron
m ental regulations w ill be replaced by new regulations im plem enting the
A arhus C on vention36 and these, not the 2000 A ct, w ill govern access to
inform ation o f environm ental m atters. This is not an absolu te exem ption and
so a pu blic interest disclosure u n d er the 2000 A ct, w here, for exam ple, the
environm en tal regulations do not p erm it d isclosure, rem ains a possibility in
any p articu lar case.
2 E xem ption w here there is an existing intention to publish

The C od e and the A ct both exem pt inform ation w hich the go v ernm ent already
intend s to publish.
U nd er section 22 o f the A ct, the m ere intention to publish does not create
an absolu te exem ption. Strong pu blic interest argum ents could ju stify an ord er
for earlier p u blication but w ill be u n likely to do so if the pu blic auth ority sticks
to its p u blication schem e.
3 E xem ption regarding research

The C od e has specific provision exem ptin g incom plete research w here
d isclosure m igh t be m islead ing o r m igh t d ep rive the research er o f com m ercial
ad van tage.37
Th e A ct does not have such specific provisions. R esearch intended for
pu blication can be w ithheld until p u blication u n d er section 22, above, or,
d ep en ding on its subject m atter, un der the other exem ptions.
4 A d m in istrative exem ptions

U nd er the C od e 'v olu m inou s or vexatiou s requ ests' for inform ation can be
denied. This inclu des requ ests that are 'm anifestly u n reaso n able' or for
m ulated in too general a m an ner or w hich, to answ er, w ould require
'u nreasonable d iversion o f resou rces'/38
33 Freedom of Inform ation A ct 2000, s. 40(1). This is an absolute exem ption.

34 Freedom of Information A ct 2000, s. 40(2).
35 C ode of Practice, Part 2, paragrap h 5.
* United N ations Econom ic C om m ission for E urope C onvention on A ccess to Inform ation, Public
Participation in Decision-m aking and Access to Justice in Environm ental M atters, 1998. Section
74 w as brought into force w ith Royal Assent on 30 N ovem ber 2000.
37 C ode of Practice, Part 2, paragraph 11.
Sim ilar provisions are found in the A ct though they are expressed as
qualifications on the general duty of disclosure rather than exem ptions.39
Section 12 allow s an authority to refuse to disclose on cost grounds.
5 Inform ation supplied in confidence

The Code exem pts confidential inform ation such as w here it was given under
a statutory guarantee of confidentiality41’ or inform ation affecting the privacy
of a third party.41
Section 41 of the A ct gives absolute exem ption to inform ation disclosure of
w hich w ould be actionable as a breach of confidence. The absoluteness of the
exem ption is qualified by the fact that a breach of confidence, at com m on law,
may only be actioiiable if, oil balance, the public interest dictates secrecy. This
exem ption will cover the kinds of fam ily, m edical and com m ercial matters
which the law protects on confidentiality grounds but it can also extend into
the political realm including Cabinet secrets and national security m atters.42
6 Privilege: Parliam entary and legal

Code and A ct both exem pt inform ation disclosure of w hich w ould violate
either Parliam entary or legal privilege.43 A certificate from the Speaker or the
Clerk of the Parliam ents that Parliam entary privilege is engaged is conclusive
evidence that the exem ption applies. Parliam entary privilege creates an
absolute exem ption; legal privilege does not. H ow ever, a third party's legal
privilege would be absolutely protected, under section 41, as inform ation
whose disclosure could be actionable as a breach o f confidence.
7 Com m ercial secrets

Code and Act exem pt com m ercial confidences from disclosure. Specifically
these are trade secrets and inform ation disclosure of which would harm a
person's com petitive or com m ercial position.44 U nder the C ode disclosure of
com m ercial inform ation can also be avoided since such m atters m ay be outside
the jurisdiction of the Parliam entary Com m issioner.45
These provisions are of great im portance given increasing 'privatisation' of
governm ent under w hich m ore and m ore public services are perform ed by
profit-m aking com panies under contract with public agencies. The com m ercial
terms of such a contract m ay disclose policy choices and practices w hich it is
in the public interest to disclose. The exem ption under the Act is non-absolute
and so such m atters could be disclosed if the public interest in favour of
disclosure outw eighs the public interest in m aintaining com m ercial confiden
tiality.
39 Freedom of Information Act 2000, s. 14.

40 Code of Practice, Part 2, paragraph 14.
41 Code of Practice, Part 2, paragraph 12.
42 See Chapter 16.
43 Code of Practice, Part 2, paragraph 4 expressly exem pts legal privilege and paragraph 15
exem pts parliam entary privilege; s. 42 of the Freedom of Information Act 2000 exem pts
information covered by legal professional privilege and s. 34 exem pts parliam entary privilege.
44 Code of Practice, Part 2, paragraph 13.Freedom of Information Act 2000, s. 43.
45 Parliam entary Commissioner Act 1967, s. 4(6) and Schedule 3(9). The restriction applies to
'predom inantly' com mercial activity.
8 P olicy-m akin g
The m ost con trov ersial areas o f exem ption, un der both C od e and A ct, relate to
the policy and d ecision processes o f public authorities. A s G u idan ce on the
C od e m akes clear: the 'em p hasis is on assisting u nderstand ing, con sid eration
and analysis of existing and proposed policy. The C od e does not provide access
to the details o f the process u n d erlyin g the G o v ern m en t's preparation of
proposals . . .'46 O f great im portance, in the con text o f civil liberties and the
ideal o f the active citizen, is the C o d e's exem p tin g o f 'internal d iscu ssion and
ad v ice'.47 It establish es a general exem ption for 'inform ation w hose disclosure
w ould harm the frankness and cand ou r o f internal d iscu ssion' and, specifi
cally, this is said to include: 'proceed ings o f C abinet and C abinet C om m ittees;
internal opinion, ad vice, recom m en dation, con su ltation and d eliberation;
projections and assu m ptions relating to internal policy analysis; analysis of
alternative policy options and inform ation relating to rejected p olicy options;
confid ential com m u nications b etw een d ep artm ents or public au th orities in
clu ding regulatory bo d ies.' A lthough subject to a harm test, this class of
exem ption con tin ues to seal off the w orkings o f go v ernm ent from pu blic gaze
and does so on the ch allengeable assu m ption that 'fran kness and cand ou r' of
policy ad vice w ould o therw ise be com prom ised. T h e pu blic m ay have access
to the final proposals but not to the alternatives and the argum en ts by w hich
they w ere rejected.
Sections 35 and 36 o f the A ct prod uce a sim ilar outcom e. Section 35 only
applies to governm ent d ep artm ents and the N ational A ssem bly o f W ales. It
gives class exem ption to inform ation relating to the form ulation or d ev elo p
m ent o f governm ent policy, inclu ding m inisterial com m u nications, Law
O fficers' ad vice and the operation o f a m in ister's private office. Section 35 does
not create absolu te exem p tions but, as class exem ptions, the governm ent does
not need to show that any specific disclosure w ould be d am aging; only the
m ost pressing pu blic interests, sufficient to outw eigh the general reasons
supporting non-d isclosure o f the class, w ould ju stify d isclosure. T he 'loophole'
under section 53, by w hich the governm ent can ov errid e the view s o f the
C om m ission er or T ribun al that the public interest justifies d isclosure, is likely
to be significant on these m atters. It should be noted that section 35(4) says
that regard should be given to the public interest in the d isclosure o f factual
inform ation w hich has inform ed p o licy-m aking and this m ay m ake it easier
for a court to resist the argum en ts for non-d isclosure. The general reasons for
non-d isclosure o f this class o f d ocu m ents relate to the protection o f collective
responsibility. D ecisions should be taken by processes throu gh w hich policy
is collectively agreed. P olicy-m akin g institutions, it is thought, cannot operate
if these w orkin g are open to public exposure since the position o f those w ho
opposed a m easure that, by collective responsibility they m u st now accept,
w ould b e untenable. Section 35, how ever, creates a very w ide exem ption
w hich has no necessary relation ship to the content o f the inform ation in issue.
By inclu ding all m inisterial com m u nications, w hatever they are about, the
46 C ode o f Practice on A ccess to G overnm ent In form ation , G uidance on Interpretation, 2nd edn (1997),
paragrap h 3.
exem ption seem s to go far w ider than is necessary to p rotect the processes of
policy form ulation.
Section 36 build s on these exem ptions. U nlike section 35, it applies to all
public auth orities and establish es a harm or p reju dice-based exem ption rather
than, as un der section 35, a class exem ption. T he m atters sp ecifically referred
to are: preju d icin g the m aintenan ce o f the con ven tion o f collective resp onsibil
ity, preju dicin g the w ork o f the E xecu tive C om m ittee o f the N orthern Ireland
A ssem bly and the N ational A ssem bly o f W ales, inhibiting the free o r frank
provision o f ad vice or the exchang e o f view s or inform ation w hich w ould
otherw ise preju dice 'th e effective con d u ct o f public affairs'. T he test for
w hether such d isclosure w ould be harm fu l is that o f 'the reasonable opinion
o f a qualified person' as d esignated in a list o f offices in section 36(5).
9 T h e fun ctioning o f the pu blic service and the audit

A nu m ber o f other exem ptions apply in respect o f d isclosures w hich m ight
harm the effective and efficient fun ctioning o f the pu blic service.
U nd er the C od e d isclosu res w hich w ould harm the 'p ro p er and efficient
con du ct o f the o p eratio ns' o f a pu blic au th ority are exem pt.48
This is a v ery open-textu red exem ption w hich is not reproduced in the A ct
w hich relies on sections 35 and 36. U nd er section 33 o f the A ct, how ever, there
is a specific n on-absolute exem ption relatin g to d isclosu res w hich w ould
preju dice the exercise b y a pu blic au th ority o f its aud it function. T here is no
such specific exem ption in the Code.
10 R elations w ithin the U nited K ingd om

Section 28 o f the A ct introd uces a categ ory o f exem ption not found in the
Code, that d isclosure w ould preju dice relation s b etw een d ifferent ad m in istra
tions in the U nited K ingd om , such as betw een the U nited K ingdom go v ern
m en t and the Scottish E xecu tive or the Scottish E xecu tive and the E xecutive
C om m ittee o f the N orthern Ireland L egislative A ssem bly. A lth ou gh n o n
absolu te and harm -based rather than class-based, this exem ption m ay apply to
prevent d isclosure of som e v ery con trov ersial and high ly charged m atters
relating to the various ju risd iction s o f the different ad m inistrations.
11 International relation s and the econom y

In both C od e and A ct inform ation relatin g to international relations and the
econ om y are exem p t from d isclosure.49 T hese exem ptions are non-absolute
and so requ ire pro o f o f harm . B oth C od e and A ct exem pt inform ation w hich
w ould preju dice the econom y. Such prejudice, how ever, need not be serious,
though the C om m ission er or T ribun al m ight accept argum ents for disclosure
in the public interest that outw eigh a low d egree o f harm .
12 N ational secu rity and defence

Part II, p aragraph 1 o f the C od e prod uces a harm test: 'inform ation w hose
d isclosure w ould harm national secu rity and d efen ce'.

49 C ode of Practice, Part II, paragraph 1.
T he A ct, on the other hand, takes a m ore com plex approach. Sectioii 23
creates an exem ption w hich is not only class-based but also absolu te (i.e. good
against even the strongest o f public interests favouring disclosure) in respect
o f inform ation supplied by, or relating to, the m ain secu rity bod ies as
identified by the Act. It applies not only to the security services but also to 'the
special forces' and the su rv eillance tribunals established u n d er the Regulation
o f Investigatory Pow ers A ct 2000 and other legislation. A certificate from a
C abinet m inister or the A ttorney G eneral is con clu sive p ro o f that the
inform ation is w ithin the section.50 If the effect o f such a certificate is to prevent
access to inform ation that a person need s in ord er to defend a crim inal
charge or to uphold a civil right in the courts, an A rticle 6 E C H R issue is
raised.51
Section 24 allow s such a certificate to be produced in respect o f other
inform ation not covered b y section 23 w hich, nevertheless, relates to national
security. T h e exem ption created by section 24 is class-based but is n on
absolu te and so nation al secu rity inform ation, not w ithin section 23, could be
d isclosed on a balan ce o f pu blic interests.
O n d efen ce m atters the A ct, like the C od e, establish es a preju dice test.
Inform ation can be exem pt if its d isclosure w ould be likely to preju dice the
d efen ce o f the British Islands or any colony, or likely to preju dice the
capability, effectiveness or security o f the arm ed forces.52
13 L aw enforcem ent and investigations

C om p lex provisions relate to law enforcem ent.
T he C od e establish es a preju dice test.53 U nd er the A ct, n on-absolute class-
based exem ptions ap p ly to certain types o f law enforcem ent such as
inform ation about crim inal investigations, d ecisions about crim inal p roceed
ings and on the use of confid ential sources such as inform ers.54 O ther law
enforcem ent m atters are subject to a preju d ice test, for exam p le that disclosure
w ould preju dice the prevention or d etection o f crim e.55
14 O thers
O ther exem ptions relate to cou rt records or d isclosures w hich w ould be
con tem pt o f cou rt,56 com m u nications w ith the Royal H ou sehold 57 and in
relation to honours58 and d isclosures w hich w ould end ang er health and
safety.59 Public safety and d isclosures relating to im m igration are in the C ode
b u t not specifically exem pt un der the Act.
50 Freedom of Information A ct 2000, s. 23(2).

51 Tinnelley & Sons v UK (1998) 4 BHRC 393.
52 Freedom of Inform ation A ct 2000, ss. 26 and 44.
53 C ode of Practice, Part II, paragraph 4.
55 freed o m of Inform ation A ct 2000, s. 31.
57 C ode of Practice, Part II, paragrap h 3; Freedom of Inform ation A ct 2000, s. 37.
58 C ode of Practice, Part II, paragrap h 8; Freedom of Inform ation A ct 2000, s. 37.
59 C ode of Practice, Part II paragraph 4; Freedom of Inform ation A ct 2000, s. 38.
15.6 Conclusion
T im e w ill tell how effective the Freed om o f Inform ation A ct w ill be. It is m ost
likely that the provision o f inform ation to the con su m er o f public services w ill
im prove as w ill the ease o f public access, p articularly through the Internet, to
policy and legislative proposals. W hat can, and m ay still, be kept from public
view are not only national secu rity m atters b u t also the d ocu m ents by w hich
policy options are understood and selected. In this sense, the 'activ e citizen'
has less to gain from the new openn ess than the 'citizen as con su m er'.
16
National security
16.1 National security
It is w idely accepted that states can p roperly pu rsu e and protect their security
by m ean s o f arm ed forces and by em ploying police and secret services to
gather and interp ret inform ation. T h ey also u n d ertake various form s o f m ore
or less covert action. The security o f the state can also be legitim ately protected
by legal m easures w hich aim to m aintain the secrecy o f inform ation pertaining
to state security, in p articular inform ation about the operations o f the d efence
and secret services. It is the scope o f the activities justified by national security
that raises the hard questions.
'N ation al secu rity ' is not defined w ith any precision and its accepted
application is b road .1 It inclu des m atters relating to w ar and d efen ce,2
inclu ding the d isposition o f arm ed forces3 and nu clear w eapons.4 The activities
o f the security and in telligence services are also included .5 T hese inv olv e not
only m ilitary and political threats from overseas but also internal subversion.
Subversion involves threats to the safety or w ell-being o f the state and
activities w hich are 'intend ed to un d erm ine o r overthrow P arliam entary
d em ocracy by political, ind ustrial or v iolent m ean s'.6 The functions o f the
secu rity and in telligence services also inclu d e com batin g 'seriou s crim e' (a
term w hich can inclu de m inor crim e com m itted by groups, inclu ding political
protestors) and also m atters relating to the econ om ic w ell-being of the U nited
K ingdom . A ction against terrorism is likely to be w ithin the rem it o f the
security and in telligence services.7
Th e bread th o f the d efinition of national security raises controversy. The
governm ent m ay use it to try and ju stify secrecy over a w ide ran ge o f activities
w here others believe that openn ess to the pu blic or its representatives is
proper and con sisten t w ith ad equ ate security. Second ly, m ost o f the categories
o f national security m entioned above can inclu de o pposition p olitical activity,
esp ecially o f a radical kind. Such activity ought to be legitim ate in an open
dem ocracy, subject only to the o rd in ary crim inal law rather than to the special
m easures av ailable in respect o f d esignated threats to national security.
1 Stone, R. (2000) Textbook on Civil Liberties. London: Blackstone Press, p. 172, citing the cases given
in the following sentence.
2 The Z am ora [1916] 2 A C 77.
3 C han dler v D PP [1964] A C 763.
4 S ecretary o f State o f S tate fo r D efence v G uardian Nezvpapers [19841 3 All ER 601.
5 A ttorney G eneral v G uardian (No. 2) [1988) 3 All ER 545.
6 For exam ple, section 1, Security Service A ct 1989.
7 See C hapter 18.
N ation al secu rity 279
A rg u m e n ts a b o u t this b o rd e rlin e are o n g oin g . T h e co n se n t o f th e A ttorn ey

G e n era l is often n eed ed fo r p ro se cu tio n s th o u g h that o ffice's a p p aren t lack o f
in d ep en d e n ce from the e x e cu tiv e and the w id th o f th e d iscretio n to be
exercised m a y raise a C o n v e n tio n point.
T h e cou rts used to b e relu ctan t to test g o v e rn m e n t claim s that serio u s
n atio n al secu rity issu es ju stified the im p o sitio n o f som e p e n alty or restrictio n
on a p e rso n .” From the later 1980s, h o w ev er, th ere w as ev id e n ce o f the cou rts
re q u irin g the g o v e rn m e n t to exp lain w h y n atio n al secu rity is in v o lv ed .9 T h e
'w a r on terro rism ' m ay , h o w ev er, lead the co u rts b ack to a gen eral a ccep tan ce
th at a m in isterial assertio n o f a n eed b ased o n n atio n al secu rity is su fficien t.10
N atio n al secu rity , in its v ario u s fo rm s, is p ro tected b o th th ro u g h the
crim in al law an d o n the b a sis o f civ il actio n s ag ain st, fo r exam p le, th e press.
16.2 The Official Secrets Act 1911, section 1
T h e p ro tectio n o f m ilitary an d related secrets fro m 'sp ies' is w id e ly a ccep ted as

a le g itim ate fu n ctio n fo r the crim in al law . T h e core in stan ce is to p ro te ct su ch
secrets fro m b e in g co m m u n icated d irectly o r in d ire ctly to an actu al o r p o ssib le
en em y . S e ctio n 1 o f the O fficial S e cre ts A ct 1911 (as am en d ed in 1920) cre ates a
larg e n u m b e r o f offences, an y o n e o f w h ich is su b ject to a m ax im u m sen ten ce
o f 14 y ears im p riso n m e n t,11 and w h ich are d escrib ed as 'p e n altie s fo r sp y in g '.
1. Penalties for spying

(1) If any person for any purpose prejudicial to the safety or interests of the state -
(a) approaches, inspects, passes over or is in the neighbourhood of, or enters
any prohibited place within the m eaning of this A ct; or
(b) makes any sketch, plan, m odel, or note w hich is calculated to be or might
be or is intended to be directly or indirectly useful to an enem y; or
(c) obtains, collects, records, or publishes, or com m unicates to any other person
any secret official code w ord or pass w ord, or any sketch, plan, model,
article, or note, or other docum ent or information which is calculated to be
or m ight be or is intended to be directly or indirectly useful to an enemy;
he shall be guilty of a felony.
A p re ju d icial p u rp o se can b e estab lish ed on the b a sis o f 'th e circu m sta n ce s o f

the c a se ', the d e fe n d a n t's 'co n d u ct' o r 'h is k n o w n ch aracter as p ro v e d '.12
8 Fo r exam p le, R v S ecretary o f S tate fo r the H o m e D epartm en t ex p arte H o sen ba ll [1977] 3 All ER 452.
See Griffith, J.A .G . (1985) 'Judicial D ecision-M aking in the L a w ', P u b lic L aw 564 for a g eneral
arg u m en t that the co u rts are to o uncritical in their accep tan ce of g ov ern m en t claim s.
9 Fo r exam p le, R v S ecretary o f S tate fo r the H o m e D epartm en t ex p arte R u d d ock [1987] 2 All ER 518.
Bu t see the relu ctan t accep tan ce of Sedley J (as he then w as) that, in the co n text o f Prevention
of T erro rism (T em p o rary Provisions) A ct 1989, there w as binding au th ority requiring the co u rts
to accep t the g o v ern m en t's claim that national secu rity w a s involved w ith o u t inquiring into the
reasonablen ess of the claim : R v S ecretary o f S tate fo r the H o m e D ep artm en t ex p arte M cQ u illan
[1995] 4 All ER 400.
10 See S ecretary o f S tate fo r the H o m e D epartm en t v R ehm an [2001] U K H L 47 ; [2002] 1 All ER 122,
esp ecially L ord H offm an, p arag rap h 62. See also [2002] E W C A C iv 1502.
" Fo u rteen y ears w as in tro d u ced by the Official Secrets A ct 1920 and represented a doubling of
the m axim u m sen tence intro d u ced in 1911.
12 The latter, in p articu lar, seem s to allow p rev iou s convictions and sim ilar fact ev id en ce to be put
before a jury and m ay not be consistent with the fair trial provision s o f A rticle 6 ECH R .
Sim ilarly, the doing, w ithou t law ful authority, o f any o f the actions listed in
section l ( l) ( b ) or (c) sets up a p resum ption o f a p reju dicial p u rpose 'u nless the
con trary is proved '. This is a 'rev erse onu s' provision w hich m ay not be
com patible w ith the presum ption o f innocence in A rticle 6(2) E C H R .13 If any
o f the actions d escribed in section l(I)(a ) are in issue, it is the prosecu tion w ho
m u st prove the p reju dicial purpose. In Chandler v DPP (1964)14 the d efendants
sou gh t to have the issue o f prejudicial p u rpose treated as an open question
subject to arg u m en t and cross exam in ation and to be d ecided , in the end, by
the jury. T h e H ouse o f Lords did not accept this bu t nor did it accept that the
issue o f preju dice w as entirely for the gov ernm ent o f the day to determ ine.
The 'state' does not m ean 'th e gov ernm ent' but refers to a general collective
entity w hich Lord Reid called 'the organised com m u nity'. T h e p ossibility of
d isputing the go v ern m en t's v iew on w hat is o r is not preju dicial to the state
rem ains theoretical. In C handler the issue w as d efen ce policy, w hich has alw ays
been an exclu siv e m atter for the Crow n. O n such an issue, a d efen dan t cannot
d ispute the g o v ern m en t's or the m ilitary's view s o f the existen ce o f preju dice
to the safety and interests o f the state. T h e cou rts not only recognise the Royal
prerogativ e but also accep t that any challenge to d efen ce policy w ould raise
political question s o f a kind inap p rop riate fo r courts to determ ine.
Subsections I (l)( b ) and (c) create offences on the basis o f actions w hich are
useful to an enem y. The section is bro ad ly defined. The inform ation in issue
need not be secret, alm ost any inform ation is likely to be in som e w ay useful,
and there is no requ irem ent that the d efen dan t kn ow in gly or intentionally
com m u nicated to an enem y. 'E nem y ' can inclu de a potential enem y15 and so
is not confined to w artim e and, perhaps, could inclu de a terrorist organisation.
The gov ern m en t's d esignation o f a cou ntry or an organisation as a potential
enem y is hard to challenge in court.
The offences in section 1(1 )(a) are com m itted in relation to a 'prohibited
place'. T his is defined in section 3 and includes a variety o f m ilitary
establish m ents w hether or not under the d irect control o f the C row n. O ther
places, such as those con nected w ith m eans o f com m u nication, the public
utilities, shipyard s and arm s factories, even if u n d er p rivate ow nership, can
also be declared to be 'prohibited p laces' by ord er o f the Secretary o f State.
Som e nu clear installation s, for exam ple, are declared to be prohibited places
un d er the A ct.16
Section 7 of the Official Secrets A ct 1920 m akes acts w hich are 'p rep arato ry' to
the com m ission o f a section 1 offence into crim es. A p rep aratory act m ay be m ore
rem ote than an in citem en t and could inclu de, for exam ple, planning protests
and dem onstration s w hich even tually lead to offences bein g com m itted .17
13 See K v D PP ex parte K ebilene [1999] 4 All ER 801 for conflicting judicial view s on how the
com patibility with Article 6(2) ECH R of reverse onus provisions in the definition of national
security (terrorism ) offences should be assessed.
14 [1964] A C 763.
15 R v P arrott (1913) 8 C r App Rep 186, C CA .
1(1 For exam ple, som e nuclear installations: Official Secrets (Prohibited Places) O rder 1994, SI 1994
No. 968.
17 See R v Bingham [1973] QB 870; Stone, op. cit., pp. 177-8.
N ational security 281
T he A ct is not confined to d eliberate sp ying .18 In C handler v D P P 19 section 1

w as used against peace d em onstrators intend in g, tem porarily, to inhibit the
w orkin gs of a m ilitary airbase bu t w ho had no intention to assist an enem y,
and, in the trial o f A ubrey, B erry and C am pbell, against a servicem an and tw o
journalists w ho w ere concerned w ith a high ly con troversial dep ortation of an
A m erican journalist on national security grounds. A lthou gh, in this 'A BC
trial', the ju d g e accepted that section 1 w as not confined to spying and
sabotage, he did d eclare that it should only be used in the m ost seriou s cases.20
T he safeguard against oppression is said to be that prosecu tion s (but not
arrests and rem and s21) requ ire the con sent o f the A ttorney G eneral. A ctivists
m ay also be vulnerable to p rosecu tion u n d er section 3 o f the O fficial Secrets
A ct 1920 for actions such as in terfering w ith p olice or m ilitary personnel
engaged in guard or sim ilar duties at a prohibited place.22
Section 9 o f the O fficial Secrets A ct 1911 auth orises search w arrants (or in
em ergency cases search es by the police w ithout a w arrant). It is the potential
use of these p ow ers against political activists and, in particular, against
jou rnalists w hich is con troversial and w ill now raise points o f proportionality
un der A rticles 10 and 11 EC H R. T he pow er w as used against BBC Scotland in
the 'Z ircon affair', involving a television program m e, m ad e but not show n,
giving inform ation about a spy satellite w hose existen ce and cost had not been
d isclosed to P arliam ent.23
16.3 The disclosure of information
O fficial secrets legislation also creates crim inal offences relating to the
u n authorised d isclosure o f inform ation con cern in g national security. In
ad dition, national security has both absolu te and harm -based exem ption from
d isclosure u n d er the provisions o f the Freedom o f Inform ation A ct 2000 (see
C h ap ter 15).
G iven the scope o f 'n ational secu rity ' it is clear that official secrets legislation
can p rev ent the bringin g into the public d om ain o f kn ow led ge o f governm ent
affairs w hich m ay be highly significant for voters and for activ ists seekin g to
m ake w ell-inform ed p olitical choices. P olitical expression is in issue. U nd er the
H um an Rights A ct 1998 such expression is highly w eighted. N ational security is
accepted as a legitim ate pu rpose for restriction un der A rticle 10(2), but any
particular lim itation m ust be necessary for and proportionate to a pressing social
need. O f particu lar con cern is w hether, as a m atter o f p roportionality, the law
allow s an u nauthorised d isclosure to be defended on pu blic interest grounds.
18 Recent prosecutions, how ever, have been in respect of spying against defence contractors.
19 11964] A C 733.
20 The s. 1 offences w ere dropped. The defendants w ere eventually convicted by a politically
vetted jury for offences under s. 2 of the Official Secrets A ct 1911 but punished with low
sentences. See Nicol, A. (1979) 'Official Secrets and Jury V etting', Crim LR 284.
21 Official Secrets A ct 1911, s. 8.
22 A lder v G eorge [1964] 2 QB 7.
23 See Bailey, S.H ., H arris, D.J. and Jones, B.L. (1995) C ivil Liberties Cases an d M aterials. London:
Butterw orths, pp. 4 5 4 -5 ; Ew ing, K. and G earty, C. (1990) F reedom under Thatcher. Oxford:
C larendon Press, pp. 147-52.
Section 2 o f the O fficial Secrets A ct 1911 w as v ery w id ely d raw n and fell into
disrepute. It w as too inclu sive, it caught the trivial as w ell as the im portan t,24
and the A ttorney G en eral's d iscretion ov er prosecu tion s could be exercised for
pu rposes w hich, in the eyes of m any, w ere aim ed at the avoid ance of
governm ent em barrassm ent or to keep infam y hid den even from the p eop le's
representatives. T h e gov ernm ent seem ed to lose con fid ence in the legislation,
preferrin g not to prosecu te and to depend instead on civil proceedings based
on con fid entiality provisions in civil serv an t's contracts. V arious attem pts at
reform , in clu ding gov ernm ent bills, foundered on the difficulty o f form ulating
the term s of a rep lacem ent statute. E ventu ally the Official Secrets A ct 1989 w as
enacted. It repealed section 2 (but not section 1) of the 1911 A ct and substitu ted
new provisions.
16.4 The Official Secrets Act 1989
T he 1989 O fficial Secrets A ct rem ains in force. In the early years o f the
tw enty-first cen tury, how ever, there is a v ery different political con text from
the late 1980s. The sense o f a stable threat from the Soviet U nion has been
replaced , not by a sen se o f security, indeed, but by a sense o f shifting threats
from a ran ge of d ifferent sou rces.25 Sin ce 11 Sep tem ber 2001 these are now
focused on the fear o f terrorist attack from organisations and from alleged
terrorist states. O n the o ther hand, there rem ains, as discussed in C h apter 15,
a policy o f greater openn ess in go v ernm ent though it hardly extend s to
national security. T he Freedom o f Inform ation A ct 2000, for exam ple, contains
exception s for national secu rity and the secret services. The Public Interest
D isclosure A ct 1998 p rovid es som e protection from legal action for 'w h istleb
low ers'. It is, how ever, of little assistan ce to a civil servan t or secu rity officer
m akin g a disclosure in breach of the O fficial Secrets A ct 1989 sin ce security
officers are and other C row n servants m ay be excluded from the A ct and, in
any case, its protection is lost 'if the person m aking the disclosure com m its an
offence by m aking it'.26
T h e Official Secrets A ct 1989 continues to be used. David Shayler, an
ex-secu rity service officer, w as convicted in 2002 in respect o f the pu blication
o f his experiences in w hich official w ron gd oing w as alleged. H ow ever, the A ct
has not deterred m em bers o f the security services from p u blish in g27 and it m ay
p erm it restrictions on freed om o f p olitical expression to a d isproportionate
d egree. In 2001 the In telligence and Secu rity C om m ittee has recom m ended
that the A ct be reform ed.
24 R v C risp an d H om ew ood (1919) 83 JP 121, involving disclosure of the details of officer's uniforms.
25 See, for exam ple, introductory rem arks to the reports of the Intelligence and Security
C om m ittee, A u gust 2000 and 1999.
26 Section 43B(3), Em ploym ent Rights A ct 1996, inserted by s. 1, Public Interest Disclosure Act
_ 1998.
27 Richard Tom linson w as convicted and im prisoned under the A ct in 1995. In 2001, he intended
to publish a book on his experiences. The governm ent sought an injunction to prevent
publication in the United Kingdom : 'Britain tries to stop MI6 sp y's "re v e n g e " book', The Tim es,
15 January 2001, p. 9.
16.4.1 The schem e of the Act

The A ct replaces the catch-all provisions o f section 2 o f the Official Secrets A ct
1911 w ith a system that identifies specific subject categories o f inform ation,
d isclosure o f w hich is an offence. T h e categories are: security and intelligence,
d efence, international relations, inform ation obtained in confid ence from
another state and crim e. U nauthorised d isclosure of o ther m atters, sensitive
econom ic inform ation28 for exam ple, m ay result in civil action but is not the
basis o f a crim inal offence. W ith one m ajor excep tion (m em bers o f the security
and in telligence services d isclosing secu rity inform ation), no offence is
com m itted unless the disclosure is proved to be dam aging in w ays the A ct
specifies; m ere disclosure is not enough.
The p o w er to issue search w arrants u n d er section 9(1) o f the O fficial Secrets
A ct 1911 is extended to inclu de offences u n d er the 1989 A ct. P rosecutions
requ ire the A ttorney G en eral's consent; the m ain offences are arrestable
offences and the m axim um penalty is tw o years' im prisonm ent.
A pplication
The A ct applies to security and in telligence officers and to other 'C row n
servan ts and governm ent con tractors'. T hese term s are defined by section 12
o f the A ct and inclu de m inisters, m em bers o f the Scottish E xecu tive, civil
servan ts, m em bers o f the arm ed forces and police officers and civilian police
em ployees. T h e list can be expanded by ord er o f the S ecretary o f State.29
M em bers o f P arliam en t are not C row n Servants. G overn m ent con tractors are
persons w ho are not C row n servants but w ho provide goods or services for
gov ernm ent purposes. T his is a large category o f persons operating in the
pu blic sector.
D efences
The A ct provides a general d efen ce to any d efen d an t if they can prove a belief
that disclosure w as law fully authorised and there w as no reasonable cause to
believe o therw ise.30 A second defence is that the d efen dan t can prove that he or
she n either knew , nor had reasonable ground s to believe, that the inform ation
related to a forbidden category o f inform ation (e.g. security or in telligence or
d efen ce31). W here the offence requ ires pro of that the d isclosure w as d am aging
it is also a d efen ce for the person charged to prove that he or she did not know
nor had reasonable ground s to believ e that the d isclosure w ould be d am aging
in the w ay identified by the A ct. The fact that inform ation is alread y in the
public dom ain is not exp ressly m entioned in the A ct but m ight be covered by
this defence. T he prosecu tion o f an arm y officer for d isclosing inform ation
about arm y operations in N orthern Ireland to a journalist w as dropped after it
w as discovered that alleged ly secret m atters had already been p u blish ed.32
28 The Franks C om m ittee would have included inform ation relating to the cu rrency generally and
to the reserves in particular within the reach of the crim inal law , as it w ould any m atter found
in a Cabinet docum ent: C m 5104 paragrap h 275.
29 Section 12(l)(f)(g ), Official Secrets A ct 1989.
30 Section 7(4), Official Secrets A ct 1989.
31 For exam ple, s. 1, Official Secrets Act 1989.
32 'Official secrets trial of arm y officer collapses', The Tim es 2 N ovem ber 2000, p. 9.
N o public interest defence

W hat is not av ailable is a pu blic interest d efen ce in w hich the d isclosure,
though otherw ise w ithin the term s o f the A ct, is said to be justified becau se it
d iscloses apparen t governm ent w ron gd oing w hich w ould otherw ise be
un know n to the pu blic or its representatives.33 T he old section 2 o f the 1911
A ct had a form of pu blic interest d efen ce if it could be show n that official
inform ation had been com m unicated to 'a person to w hom it is in the interests
o f the State his [i.e. the com m u nicator's] d uty to com m u nicate it'. The scope
o f the d efen ce w as d rastically lim ited in R v P onting (1985)34 w here it w as held
that the com m u n icato r's 'd u ty ' w as his or her official, rather than m oral, duty
and that the 'interests o f the state' w ere as d eterm ined exclu sively by the
governm ent. The governm ent rejected the idea o f a public interest d efen ce for
the 1989 A ct becau se it w ould rend er the law u n certain and becau se d am aging
disclosures for w hatev er pu rpose w ere not ju stifiable.35
The trouble w ith a pu blic interest defence is that it is not clear w hat the test
for the public interest should be. A p olicy d isagreem ent or a d isagreem ent on
a m atter o f con scien ce are insufficient ju stification s for a secu rity officer or civil
servan t to m ake an unauthorised d isclosure, p articularly if it is dam aging. N o
civil servan t can claim to be unjustly treated w ho is required to subord inate
his or her ju d g m en t on such m atters to that of the governm ent. U nauthorised
disclosure o f seriou s crim e36 or seriou sly u n con stitutional activ ity by the
governm ent, such as the abuse o f P arliam ent, m igh t ju stify a pu blic interest
d isclosure since, in those respects, the public interest standard is likely to be
clear. E ven then it is not obvious that a dam aging disclosure w ould be
justified. O ne o f the m ost d elicate and exactin g argum en ts about the public
interest relates to the extent to w hich there can be a general social benefit from
the 'd irty han ds' o f the secret service and, though such activity cannot be
pu blicly ju stified , to condem n it, having received its benefit, is a form o f m oral
free-riding.
U nd er the H um an Rights A ct 1998, restrictions on freed om o f expression
m u st be ju stified un der A rticle 10(2) ECH R. In an arg u m en t abou t the
necessity and p rop ortionality o f a restriction, say on the p u blication o f a book
by a m em ber o f the secu rity service, a cou rt could b alance the pressing social
need w hich justifies the restriction w ith the public interest going to justify
publication. That this b alancing could be d one w as a reason for the Strasbou rg
cou rt's find ing o f a general com patibility w ith the C on vention o f the law
relatin g to breach o f con fid ence injun ctions.37 T here is no statu tory basis for
d oing such balancing u n d er the Official Secrets A ct 1989 and so, arguably, a
declaration o f incom p atibility m ight be necessary. C on scientious disclosure by
m em bers o f the security and in telligence services has been a m atter of
33 The absence of such a defence is a m atter of concent for the United N ations H um an Rights
C om m ittee: 2001 R eport of the United K ingdom of G reat Britain and N orthern Ireland:
h t t p :// w w w .u n -h c h r /c h /tb s /d o c /n s f .
34 (1985) C rim LR 318.
35 It had been recom m ended by the Franks Com m ittee.
36 D avid Shayler's allegations of a conspiracy to assassinate President Qaddifi w ould be an
exam ple.
37 See The O bserver an d the Guardian v U nited Kingdom (1992) 14 EH RR 153, paragrap h 63.
gov ernm ent concern. Such persons iiow have access to an ind ep en den t staff
cou nsellor w hose fun ction has been supported by the In telligence and S ecu rity
C om m ittee. In R v Shayler (2002)38 the lack of a public interest defence in the
A ct w as confirm ed by the H ouse o f L ords and no incom p atability w ith A rticle
10 w as found. S h ay ler's prosecu tion w as, in the circu m stan ces, a proportionate
restriction on the freed om o f expression o f secu rity service agents. It w as
prop ortionate becau se authorised d isclosures can be m ad e to various officials
such as the staff cou nsellor or to the M etropolitan Police; if those officials do
not act, agents can seek law ful auth ority from their superiors and, if that is
un reason ably refused, ju dicial review is av ailable and, through the test of
proportionality, it p rovid es a hard look at such m atters.39
There has been specu lation that the com m on law d efen ce o f necessity is
av ailable in respect o f a p rosecu tion under the A ct. D espite C ou rt o f A ppeal
approval in principle, the issue is un d ecid ed .40
D am age
W ith the exception o f security and in telligence officers d isclosing m atters
relating to security and intelligence, the A ct provides that only d isclosures
w hich are d am aging can be the b asis o f a crim inal prosecution. T h e specific
type o f d am age is defined in relation to each o f the d ifferent categories of
inform ation to w hich the A ct applies.
16.4.2 Security and intelligence information
1 Security and intelligence

(1) A person who is or has been -
(a) a member of the security and intelligence services; or
(b) a person notified that he is subject to the provisions of this subsection,
is guilty of an offence if without lawful authority he discloses any information,
docum ent or other article relating to security or intelligence which is or has been
in his possession by virtue of his position as a member of any of those services
or in the course of his work while the notification is or was in force.
Section 1(1) creates a strict offence, based on d isclosure, for cu rren t and past
m em bers o f the secu rity and in telligence services; there is no need to prove
that the d isclosures are dam aging. It reflects the lifelong d uty o f con fid entiality
that m em bers o f the security and intelligence services place them selves under.
S ecu rity and in telligence services are not defined in the A ct but presum ably
the subsection is confined to m em bers of the services defined by the S ecu rity
S erv ice A ct 1989 and the Intelligence Services A ct 1994 41 A ny other person can
be brou ght w ithin the reach o f the strict offence by notification; this has been
d one, for exam ple, to m em bers o f the Intelligence and Secu rity C om m ittee, a
•
w 12002] U K H L 11; [2002] 2 All ER 477 HL.
39 R v S hayler [2002] 2 All ER 477 H L, paragrap h 27.
40 C ou rt of Appeal: R v S hayler [20011 EW CA C rim 1977; [2001] 1 W LR 2206; not follow ed by the
H ouse of Lords on the necessity point.
Special Branch, a service concerned w ith gathering intelligence on national security m atters, is,
arguably, within the reach of s.l(1 ) - see Stone, op. cit., p. 181.
bod y w hich inclu des M em bers o f Parliam ent. A nu m ber o f intelligence

officers, in clu ding D avid Shayler, have sou ght to w rite m em oirs in w hich they
m ake seriou s allegations o f w rongd oing. T h e absen ce o f a public interest
d efence, m entioned above, m akes it very difficult for them to avoid p rosecu
tion u n d er the A ct
O ther C row n servan ts or gov ernm ent con tractors can b e prosecuted un der
section 1(3) for unauthorised d isclosure o f security and intelligence m atters.
The central d ifference w ith the section 1(1) offence is that not only m u st there
be proo f o f un authorised d isclosure but the d isclosure m u st be show n to be
dam aging to secu rity and in telligence m atters.
[1. Security and intelligence]

(3) A person who is or has been a Crow n servant or governm ent contractor is guilty
of an offence if without lawful authority he makes damaging disclosure of any
information, docum ent or other article relating to security or intelligence which
is or has been in his possession by virtue of his position as such but otherwise
than as mentioned in subsection (1) above.
(4) For the purposes of subsection (3) above a disclosure is damaging if -
(a) it causes damage to the work of, or of any part of, the security and
intelligence services; or
(b) it is of information or a docum ent or other article which is such that its
unauthorised disclosure would be likely to cause such dam age or which
falls within a class or description of information, documents or articles the
unauthorised disclosure of which w ould be likely to have that effect.
It is not clear how effective the 'd am ag e' requ irem ent w ill be in restrainin g
prosecu tion s un der the Act. T here is no general requ irem ent that the d am age
be serious; d am age can be show n on the basis o f som ething likely to happen,
p ro o f that d am age has occurred is not requ ired , and the likelihood o f d am age
can be based not on the con tent bu t on the class, the type, of any inform ation
or d ocu m ent, and on the assu m ption that the d isclosure o f any inform ation or
d ocu m ent o f that class, no m atter how harm less in itself, is dam aging. The
cou rt m ay be reluctant to exam ine in any detail the p recise w ay that d am age
m ay occur and find d am age in the m ere fact that the m atter affected security
and in telligence m atters
16.4.3 Defence
D isclosure b y C row n servan ts or gov ernm ent con tractors o f m atters relatin g to
d efen ce is an offence u n d er section 2 if it is 'd am ag in g'. D am age is given an
extensive and exclu siv e definition.
[2. Defence]
(2) For the purposes of subsection (1) above a disclosure is damaging if -
(a) it damages the capability of, or of any part of, the armed forces of the Crown
to carry out their tasks or leads to loss of life or injury to members of those
forces or serious damage to the equipment or installations of those forces; or
(b) otherwise than as mentioned in paragraph (a) above, it endangers the
interests of the United Kingdom abroad, seriously obstructs the promotion
or protection by the United Kingdom of those interests or endangers the

safety of British citizens abroad; or
(c) it is information or a document or article which is such that its unauthorised
disclosure would be likely to have any of those effects.
T his d efinition inclu des, under (2)(c), d isclosure w hich not only causes
d am age but w hich is likely to do so. T here is no reference to classes of
inform ation or docu m ent. D am age relating to d efen ce m u st be show n from the
contents of w hat is d isclosed and not just from the fact that d isclosure affects
d efence.
T h e A ct defines 'd efen ce'. T his approach, giving an exclu sive definition of
the term s used, is p referable and m ore in line w ith the C on vention requ ire
m ent o f legality than leaving the w ords undefined and subject to the ex post
claim s o f the C row n and the d iscretion o f the judiciary.
(4) In this section 'defence' m eans-

(a) the size, shape, organisation, logistics, order of battle, deployment, oper
ations, state of readiness and training of the armed forces of the Crown;
(b) the weapons, stores or other equipment of those forces and the invention,
development, production and operation of such equipment and research
relating to it;
(c) defence policy and strategy and military planning and intelligence;
(d) plans and measures for the maintenance of essential supplies and services
that are or would be needed in time of war.
16.4.4 International relations

Section 3 m akes it an offence for a C row n servan t or go v ernm ent con tractor to
m ake a d am aging d isclosure o f any inform ation, d ocu m ent or other article
relating to international relations or of confidential inform ation o r d ocu m ents
obtained from a foreign state o r international organisation.
[3. International relations]

(2) For the purposes of subsection (1) above a disclosure is damaging if-
(a) it endangers the interests of the United Kingdom abroad, seriously obstructs
the promotion or protection by the United Kingdom of those interests or
endangers the safety of British citizens abroad; or
(b) it is of information or of a docum ent or article which is such that its
unauthorised disclosure would be likely to have any of those effects . . .
(5) In this section 'international relations' means the relations between States,
between international organisations or between one or more States and one or
more such organisations and includes any matter relating to a State other than
the United Kingdom or to an international organisation which is capable of
affecting the relations of the United Kingdom with another State or with an
international organisation.
A s w ith d efen ce m atters, the d efinition inclu des, un der 3(2)(b), a disclosure
w hich is likely cause d am age, but there is no reference to classes of
inform ation or d ocu m ent and so it is arguable that d am age m u st be show n
from the contents of w hat is disclosed.
T he d efinition o f d am age m igh t auth orise restrictions on freed om of

expression w hich do not fit easily w ith the legitim ate aim s o f such restriction
perm itted un der A rticle 10(2). In particular the 'interests o f the U nited K ingd om
abroad ' could inclu de econom ic interests w hich are p u rposefu lly not listed in
A rticle 10(2). It m ay be that the term will need a restrictive interpretation in order,
as far as is possible, for any conviction to be com patible w ith C onvention Rights.
16.4.5 Criminal matters

P ersons w ho are or have been C row n servan ts or go v ernm ent contractors
com m it an offence if they disclose any inform ation, d ocu m ent or other article
w ith specified effects on crim e and the crim inal ju stice process.
[4. Crim e and special investigation powers]

(2) This section applies to any information, docum ent or other article-
(a) the disclosure of w hich-
(i) results in the commission of an offence; or
(ii) facilitates an escape from legal custody or the doing of any other act
prejudicial to the safekeeping of persons in legal custody; or
(iii) impedes the prevention or detection of offences or the apprehension or
prosecution of suspected offenders; or
(b) which is such that its unauthorised disclosure would be likely to have any
of those effects.
It is a d efen ce fo r a person charged under section 4(2)(a) to prove they did not
know , at the tim e the offence w as com m itted, and had no reasonable cause to
know , that the d isclosure w ould have any o f the effects listed in section
4(2) (a) (i)—(iii).
Section 4(3) deals w ith inform ation obtained by various form s o f surveil
lance. T h e subsection refers to 'an y' inform ation and is not exp ressly confined
to m atters pertaining to crim e. T here is no requ irem ent that d isclosures be
d am aging. C ertain d isclosures o f inform ation obtained by w arranted intercep
tions u n d er the Regulation o f Inv estigatory Pow ers A ct 2000, the Secu rity
S erv ice A ct 1989 and the Intelligence Serv ices A ct 1994 are offences. H ow ever,
section 4 does not refer to all form s o f authorised surveillance. D isclosure
un der Part II o f the R egu lation of Inv estigatory P ow ers A ct 2000 or un der Part
III o f the Police A ct 1997, for exam ple, is not an offence un der those A cts or
un der section 4 o f the O fficial Secrets A ct 1989. Such d isclosu res m ight,
how ever, form the basis of a com plaint that could be m ade to the Tribunal
established u n d er Part IV o f the R egu lation o f Inv estigatory P ow ers A ct 2000.42
16.4.6 Third-party disclosures and the media

T he O fficial Secrets A ct 1989 covers not only p rim ary d isclosure by officials but
it also extend s to the further disclosure o f inform ation by any person,
inclu ding by the m edia.
42 See C hapter 7.
Section 5(6) o f the O fficial Secrets A ct 1989 relates to the sp ying provisions
o f the 1911 A ct. It is an offence for a person (a n ew sp ap er ed itor for exam ple)
to 'd isclose any inform ation, etc., w hich he know s or has reasonable cause to
believe, to have com e into his possession as a result o f con trav ention of section
1 o f the O fficial Secrets A ct 1911'. This offence applies w hether such disclosure
is o r is not dam aging though the pu blic interest d efen ce inheren t in section 1
o f the 1911 A ct (that the original obtain in g o f the inform ation w as not done
for 'any pu rpose preju dicial to the safety or interests o f the State') will apply.
D ifferent con sid erations apply w here the Official Secrets A ct 1989 m ay have
been breached. Fu rther d isclosure, by the m edia for exam ple, o f inform ation
obtained in breach o f the A ct, is not an offence un der sections 1-4 . Such further
d isclosure is an offence, under section 5 o f the 1989 A ct, if the follow ing
con ditions apply. The person m aking the further d isclosure (e.g. an editor)
m ust kn ow or have reasonable cause to believe that the inform ation etc. is
protected from disclosure by the 1989 A ct and that it cam e into his or her
p ossession on the basis o f a breach o f the A ct b y som eone or w as so entrusted
to him or her on the basis o f confid entiality. If the inform ation etc. relates to
security and intelligence, d efen ce or international relations then the ed itor only
com m its an offence if the further d isclosure (e.g. the broad castin g or
pu blication in a new spaper) is d am aging and it is m ad e know in g or having
reasonable cause to believ e that it w ould be so dam aging. T h e test for d am age
is the sam e as for the p rim ary d isclosure offences. T hu s the strict offence
applied to m em bers o f the secu rity and in telligence services d isclosing m atters
relating to secu rity and intelligence does not apply to those, such as in the
m ed ia, w ho obtain and pass on their d isclosures.43
In the case o f inform ation relating to crim e protected from d isclosure by
section 4, there is no need to prove that the further d isclosure is d am aging; the
fact that the person m akin g the d isclosure knew or had cau se to know how it
cam e into his or her possession and that it w as protected from d isclosure is
enough to ground an offence u n d er section 5. Section 6 o f the O fficial Secrets A ct
1989 creates an ad dition al offence if further dam aging d isclosure o f inform ation,
protected by sections 1 -3 o f the A ct, w as inform ation supplied in con fid ence by
the U nited K ingd om to a foreign state or international organisation.
M edia freed om is, o f course, high ly w eighted un der the E uropean C on ven
tion on H um an Rights and section 12 o f the H um an R ights A ct 1998 provides
that special care m u st be taken by the cou rts w hen asked to restrain press
freedom . The absen ce of a pu blic interest d efen ce under section s 5 and 6 m ay
raise a C on vention issue in so far as it m akes it difficult for the m edia to argue
that the further p u blication o f protected inform ation is reasonable and a
prosecu tion un der the A ct is d isproportionate.
16.5 Breach of confidence
T he O fficial Secrets A ct 1989 creates crim inal offences to protect official secrets
from d isclosure. Such secrets can also be protected by the use o f the civil law ,
43 See to the sam e effect Lord A dvocate v The Scotsm an Publications Ltd an d others [1990] 1 A C 812.
specifically by the governm ent seeking injunctions to prevent direct disclosure

by Crow n servants or indirect disclosure by the press. A general reluctance to
use the crim inal law, especially if m atters of conscience are involved, has
m eant that the use of such injunctions has not been uncom m on since the 1980s.
The courts will grant an injunction on the grounds o f a breach of confidence
(or, perhaps, to protect sim ple privacy) if, on a w eighing of relevant
considerations, the public interest in m aintaining secrecy outw eighs the public
interest in disclosure (see Chapter 11). Such injunctions have traditionally been
available to protect personal or private m atters invested with confidentiality
such as dom estic and m atrim onial privacy, com m ercial secrets and m edical
records.
Since the m id-1970s, a relationship of confidentiality, sufficient to ground an
injunction, has also been found in the political arena. In A ttorney General v
Jonathan Cape Ltd (1976) it was accepted that the view s of individual Cabinet
m em bers w ere, against the background of collective Cabinet responsibility,
confidential and capable of protection by injunctive relief.44 The most dram atic
extension of breach of confidence into the political arena occurred with the
Spycatcher litigation. This long and much reported saga45 involved the British
governm ent's attem pt, both at hom e and abroad, to prevent the publication of
m em oirs by Peter W right, a one-tim e m em ber of the security services. The
m em oirs contained allegations of crim inal and im proper activity by the security
services, som e of it aim ed at senior figures in the Labour Party and governm ent.
The focus of the issue was w hether the press could be stopped from publishing
excerpts from the book or articles about the book or descriptions of court cases
in other countries, especially A ustralia, in w hich the allegations w ere aired.
Broadly speaking the governm ent succeeded in obtaining tem porary injunc
tions against the press46 but failed to sustain these as perm anent injunctions.47
The Spycatcher judgm ents confirm that a m em ber of the security services is
under a lifelong duty of confidentiality which the law will uphold against him
or her directly. Section 1(1) of the Official Secrets A ct 1989 gives effect to this
in the crim inal law. The duty of confidentiality is also seen as creating a private
law, contractual and fiduciary relationship w ith the Crow n w hich m ay, in
exceptional circum stances, entitle the Crow n to more than the usual rem edies
for breach of contract; for exam ple, it m ay be entitled to receive profits made
from unauthorised disclosures.48
16.5.1 The public interest

The Spycatcher litigation is predom inantly about w hether there are public
interest reasons which outw eigh the reasons for secrecy and w hich should
44 In the case an injunction w as refused because, by passage of time, confidentiality, as a matter

of substance, w as lost and the court did not accept that the public interest dem anded perpetual
protection based upon the class or type of docum ent involved.
45 Bailey, Harris, and Jones, op. cit., pp. 411-16, 474-88, 829-32; Ewing and Gearty, op. cit., pp.
152-69.
46 A ttorney G eneral v Guardian Neivspapers Ltd and others and related appeals [1987] 3 All ER 316.
47 A ttorney G eneral v Guardian Neivspapers Ltd and others (No. 2) [1988] 3 All ER 545.
48 A ttorney G eneral v Blake (Jonathan Cape Ltd, third party) [2000] 4 All ER 385.
perm it disclosure to go ahead. The burden is on the Crow n to show not only
that the issue is touched with confidentiality, but also that the public interest
requires publication to be restrained and there is no overriding public interest
consideration favouring publication.49 In the national security context, the
public interest issue applies particularly to the possibility of restraining public
disclosures by the media. An injunction will be available directly against the
officer or his or her agent (e.g. their publisher). Different considerations apply
to the media if it com es into possession of w hat it know s to be confidential
inform ation or w ishes to com m ent when such inform ation has been disclosed
elsew here such as in court proceedings or in a book published overseas.50 The
courts m ay refuse the governm ent an injunction against the media in the
absence of evidence that publication would be dam aging (in this respect the
civil law on injunctions is in line w ith section 5 of the Official Secrets Act 1989).
Dam age m ay be based on the nature of the inform ation disclosed. In Lord
A dvocate v The Scotsman Publications Ltd and others (1990)51 the Crow n sought
an injunction to restrain The Scotsman from publishing extracts from the
m em oirs of a m em ber of the security services. Sm all num bers of the m em oirs
had been privately printed and distributed. The Crow n conceded that the
inform ation in the m em oirs was not dam aging to national security.
The Crow n will also find it hard to establish that further publication of
confidential m atter in the media is dam aging if the inform ation has already
been w idely and publicly dissem inated. In Spycatcher the injunctions were
discharged at the full trial. The book had been w idely published, including in
the United States, and consequently all possible dam age had been done and
could not be increased by further publication. There was, therefore, no point
is continuing the ban.’2 In earlier proceedings the interlocutory injunctions had
been m aintained by the House of Lords, despite publication in the USA, on
the grounds that the Crow n had other reasons for seeking to prevent
publication w hich would be rendered nugatory if the injunctions were
granted at the full trial. These other reasons were: m aintaining the morale
of the security services and its reputation and asserting the im portance of
lifelong confidentiality against any other security services personnel who
m ight be tempted to follow Peter W right's exam ple. At the full trial such
reasons w ere not sufficient to provide a public interest reason to refuse
publication.
W here, how ever, there has been no concession from the Crow n that
publication would not be dam aging and no previous publication, then the
m edia is likely to be under the sam e restraint as the m em ber of the security
services. In the Spycatcher litigation, it was accepted by the courts that the
original injunctions, granted before w idespread publication, were properly
m ade.53
49 A ttorney G eneral v Guardian Newspapers Ltd and others (No. 2) [1988] 3 All ER 545, 640 per Lord
Keith following A ttorney G eneral v Jonathan Cape Ltd [1976] QB 752.
50 Lord A dvocate v The Scotsman Publications Ltd and others [1990] 1 AC 812, 822.
51 [1990] 1 AC 812.
52 A ttorney G eneral v G uardian Neivspapers Ltd and others (No. 2) (1988) 3 All ER 545.
53 A ttorney G eneral v Guardian Neivspapers Ltd and others (No. 2) (1988) 3 All ER 545; Lord A dvocate
v The Scotsman Publications Ltd and others [1990] 1 AC 812.
As w e have seen, the crim inal law, in the form of the Official Secrets Act
1989, does not provide for a 'public interest' defence. W e have also seen that
the partial public interest defence under section 1 of the Official Secrets Act
1911 is very difficult to establish against a governm ent counterclaim of the
public interest. To the contrary, at the heart of an application for a breach of
confidence injunction is an argum ent about the public interest. The public
interest m ay require disclosure of, for exam ple, well founded allegations of
crim inal action or infam ous deeds.54 The fact of a well founded allegation of
w rongdoing will not, necessarily, lead to the refusal of an injunction and
publication. In a national security context, the courts may still decide that
confidentiality should be retained. As is clear from the Spycatcher litigation
and, m ore recently, R v Shayler (2002),55 the existence of internal m echanism s
for hearing security officers' concerns and allegations and a sense that
accusations of crim inal behaviour should be m ade to the police rather than the
m edia increases the likelihood that injunctions against the m edia will still be
granted in respect of national security m atters w hich have retained their
confidentiality, even when serious m alpractice by the security services is in
issue.56 The problem , of course, is that it is im possible to tell w hether the
courts' trust in the internal m echanism s is well placed.
16.5.2 Breach of confidence and Article 10

The im pact of A rticle 10 ECH R, through the H um an Rights A ct 1998, on
breach of confidence injunctions in the context of national security is hard to
judge. The interlocutory injunctions in the Spycatcher litigation w ere upheld by
the Strasbourg court.57 They w ere 'prescribed by law ' and for a legitim ate
purpose: that of m aintaining the authority of the judiciary; final injunctions can
be for 'national security'. The court also accepted the com patibility with the
C onvention of the injunctions up until widespread publication destroyed
confidentiality. From that point there was no confidentiality left and continu
ing the tem porary injunctions was a violation of A rticle 10. O ne of the prim ary
purposes of A rticle 10 is to keep open channels of political debate and
inform ation and, consequently, the presence of allegations of political m iscon
duct should now w eigh m ore heavily with British courts than heretofore. The
Strasbourg court's judgm ent perm its injunctions to m aintain confidentiality,
including the lifelong duty of confidentiality owed by the security services,
even, it seem s, despite allegations of serious crim inal m isconduct. Once
confidentiality is lost, however, it seem s that the other argum ents for secrecy,
such as those going to the m orale and reputation of the security services, will
be outw eighed by the public interest in know ing about allegations of
w rongdoing.
54 See Chapter 11.

55 [2002] UKHL 11; [2002] 2 All ER 477 H L; discussed above.
56 See A ttorney G eneral v Punch Ltd and another 120011 EW CA Civ 403; 12001] 2 All ER 655,
discussed in Chapter 12.
57 G uardian Neivspapers v United Kingdom (1992) 14 EHRR 229; The O bserver and the Guardian v
United Kingdom (1992) 14 EHRR 153.
16.6 Defence Advisory Notices
Freedom of expression, specifically freedom of the press, can also be affected

by the system of 'D efence A dvisory N otices'. Since 1912 there has been a
system by w hich the governm ent advises the press and m edia on matters
which ought not to be published for national security reasons and the
expectation is that the m edia will com ply w ith this advice. The system has
been based on a com m ittee on which both governm ent and m edia are
represented. The system was replaced by direct censorship during the Second
World W ar but revived afterwards. The current system derives from changes
introduced in 1993 and reflects the end of the 'cold w ar' and the clim ate of
greater openness in governm ent that is found.58
The current nam e for the com m ittee is the Defence, Press and Broadcasting
A dvisory Com m ittee. It has four m em bers representing governm ent and up to
13 representing the m edia. It is chaired by the Perm anent U nder Secretary of
State at the M inistry of Defence, has a vice-chairm an representing the press,
three senior officials from the H om e Office, M inistry of Defence and the
Foreign and Com m onw ealth Office and up to 12 other senior figures from the
national and local m edia nom inated by the m ajor m edia organisations. A
central role is played by the Secretary and Deputy Secretary to the Com m ittee
who are, by custom , senior retired naval officers. Since 1971 the system has
avoided ad hoc notices dealing w ith specific issues and preferred to issue
standing notices (Defence A dvisory N otices) w hich identify certain general
areas touching on national security in respect of w hich publication or
broadcasting needs careful consideration. W hen a particular story com es
within the term s of a standing notice, editors, producers, etc. are encouraged
to seek the guidance of the Secretary. There are currently five standing Defence
Advisory N otices which relate to highly classified inform ation in the follow ing
areas: 1 'M ilitary O perations, Plans and C apabilities'; 2 'N uclear and Non-
N uclear W eapons and Equipm ent'; 3 'Ciphers and Secure Com m unications';
4. 'Sensitive Installations and H om e A dresses'; 5 'U nited Kingdom Security
and Intelligence Services and Special Forces'. The Secretary m ay also issue
general advice about specific issues. In 1999, for exam ple, he advised editors
not to publish inform ation found on a w ebsite w hich purported to give the
nam es and addresses of secret service personnel and has also advised against
publishing the address of David Shayler's w ebsite.’’9 In the context of the 'w ar
on terrorism ' and the possible use of the arm ed forces, the Secretary has
advised against an overuse by the m edia of well inform ed, recently retired
officers w hose speculation m ay be near to the truth.
The DA N otice system is a form of self-regulation. The system is not based
on statute and the Com m ittee has no pow ers directly to enforce its notices. In
particular com pliance w ith a N otice and accepting and follow ing the Secre
tary's advice is not a defence to a prosecution under the Official Secrets Acts
nor to an action for an injunction. In 1987, for exam ple, injunctions were
58 The basic information about the system is found on the website, h ttp ://w w w .d n o tice .o rg .u k /,
from which m uch of the following paragraph is taken.
59 R v Central Crim inal Court ex parte Bright [20011 2 All ER 244, paragraph 12.
obtained to prevent the broadcasting of a radio program m e, M y Country Right

or Wrong, which contained interview s w ith past and current m em bers of the
security services. The Secretary gave advice that, in respect of the content of
the program m e, no issue of national security was raised. The injunctions were,
nevertheless, granted perhaps on the (now doubtful) grounds of m aintaining
the form al duty of confidentiality of security service m em bers rather than the
content of w hat was said.60 The DA N otice system is, in effect, a restraint on
freedom of expression. Though the governm ent side is outnum bered on the
Com m ittee it is clear that the media representatives are generally willing to
accept their advice. Though the Com m ittee m ay have a useful function, its lack
of any recognisable legal basis m eans it probably fails the 'prescribed by law'
requirem ent of A rticle 10 ECH R and it is unlikely that it could, lawfully,
im pose any direct or indirect sanction against the media.
6(1 But see Fairly, D. (1990) 'D Notices, Official Secrets and the Law ', 10 OJLS 430 for a sceptical
view of this.
17
Public order and political action
17.1 The context
T his chapter is about the law relating to p olitically m otivated m eetings,

m arches, d em onstration s, p rotests and acts of d isru p tio n .1 Such political
activity is a recu rrin g feature o f British political life,2 has raised significant
problem s o f public ord er and som etim es has been violent.3 M ajor political
gains in the tw entieth century, fem ale suffrage in particular, w ere obtained
o nly after sustained cam paign s o f extra-P arliam entary action. T rad e unions
h ave felt the need to pursue the interests of their m em bers and o f trade
u nionism in general through strikes, picketing and dem onstration s and som e
o f these, such as the m in ers'strik e 1 9 8 4 -8 5 ,1 have had seriou s v iolent episodes.
P op ular opposition to governm ent policy, p articularly w here the policy w as
supported by a P arliam en tary consensu s am ong the m ajor parties, has
frequ ently m anifested itself through protest. M ajor exam ples include: op p osi
tion to the V ietnam W ar in the 1960s, the cam paign against nu clear w eapons
w hich began in the 1950s w ith C N D and revived in the 1980s w ith, for
exam ple, the w o m en 's peace cam p at G reen ham C om m on; the anti-road s and
o ther env ironm en tal cam paign s o f the 1990s; the m ovem ent against the
C o m m u nity C h arge or poll tax o f the early 1990s; o pposition by stud ents to
cuts in grants and the im position o f fees; assertions o f their rights b y gay and
lesbian groups; and protests against fuel tax. Racist political parties such as the
N ational Front or the British N ational Party have pursued their objectives by
m arch in g and d em onstratin g and have been m et by cou nter-d em onstrations
such as those by the A nti-N azi League in the 1980s. Race d iscrim in ation in the
con text o f inner-city d ep rivation has been p art o f the explanation o f m ajor
u rban riots, particularly in Brixton, the W est M idland s and M erseysid e during
the 1980s, and m ay explain som e form s o f opposition to asylum seekers that
em erged in the late 1990s. Som e protest has been aim ed less at governm ent
policy and m ore at inhibiting law ful bu t, for the d em onstrators, m orally
u n con scion able activities o f others. C am paigns against hu nting w ith dogs, the
1 For a detailed su rvey of the law relating to public ord er see C ard , R. (2000) Public O rder Law.
Bristol: Jordan Publishing.
2 See W addington, P.A.J. (1994) Liberty an d O rder. London: U C L Press, ch apter 1, esp. pp. 1 4 -2 4 .
3 For identification and discussion of issues and the public ord er problem s they g ave rise to from
a police point of view, see the annual reports of H M Chief Inspector of C onstabulary (London:
H M SO /TSO ) or of the C om m issioner of Police of the M etropolis (London: M etropolitan Police).
4 See M cCabe, S. et al. (1988) T he Police, P u blic O rder an d C ivil L iberties: Legacies o f the M in ers’ Strike.
London: Routledge.
treatm en t o f anim als used for exp erim en tation and the export o f livestock are
exam ples from the 1990s; anti-free trad e and, m ore gen erally, anti-cap italism is
em erging as a cause o f d em onstration and d isord er in the early tw enty-first
cen tury as, perhaps, is a new , con servative 'cou n trysid e' agenda. In the
m id -1990s H M Insp ector o f C on stabu lary w as reporting a m ore settled public
ord er environm en t than p reviously, though an increase in d isord er w as
reported in 1995. An im portan t them e o f Insp ectors' reports is the random ,
unp red ictable n atu re o f pu blic ord er problem s and it cannot be assum ed that
less con frontational state politics, if such there be w hen the 1980s are contrasted
w ith the later 1990s, goes along w ith a m ore peacefu l civil society. Indeed the
reverse m ay the case since consensu s state politics exclu d es and m arginalises
the rad ical opposition. T he extent to w hich the 'w ar on terrorism ' w ill generate
extra-P arliam entary opposition is, at the tim e of w riting, hard to predict. M ore
than a m illion people m arched against the Iraq w ar in February 2003.
17.2 The police
P olitical protest raises issues abou t the role and pow ers o f the police. The
police have, in the past, been view ed as a party to the d isord er rather than an
im partial pow er seekin g a ju st balan ce o f interests betw een dem onstrators and
others affected by the d em onstration. T hey have been accused, for exam ple, of
a d isp rop ortionate resort to violence against d em onstrators, w hich has the
effect o f p reventing the expression o f serious, legitim ate griev ances.5 O n
occasions, such as the N ational Front m eeting at Southall in w hich a
d em onstrator died, the inner-city riots o f the early 1980s and the m iners' strike
in the m id -1980s, the police them selves becam e a target for d em onstrators and
a sou rce o f con tin u ing grievance com p arable to the original griev ance behind
the d em onstration. W ad dington ,(> on the other hand, w riting about the late
1980s and early 1990s, suggests a subtle and com plex set o f factors w hich
determ ine police policies and attitu d es tow ards pu blic o rd er w hich cannot be
red uced to the sim ple assertion of aggressive, au th oritarian policing by a force
ind ifferent to the rights and valu es o f protestors. A m atter o f concern is the
absen ce o f a full ind ep en den t inquiry into allegations o f d isproportionate
violence.7 P olicing m eth od s cause con tin uing controversy. T here is an ongoing
d evelopm ent in the type o f equipm en t and organisational tech niques used by
the police in the con text o f pu blic ord er.8 The use o f riot equipm en t such as
shield s, helm ets and long batons; the form ing o f elite squads w ith a public
ord er rem it; gathering evid ence b y m eans of surveillance cam eras and hospital
interrogation team s; and the arrangem en ts for m u tual aid betw een forces
w hich have indicated to som e the em ergence, in effect, o f a national police
force - have all been m atters o f controversy. A s ind icated in C h ap ter 4 it is
5 For exam ple, H ew itt, P. (1982) The A bu se o f Power: Civil L iberties in the U nited Kingdom . London:
M artin Robinson, pp. 138-41.
6 W addington, op. cit.
7 Robertson, G. (1993) F reedom , the In dividu al an d the Law H arm ondsw orth: Penguin Books, pp.
9 2 -5 .
8 See Bailey, S.H ., H arris, D.J. and Jones, B.L. (1995) C ivil Liberties C ases an d M aterials, 4th edn.
London: Butterw orths, p. 175.
P ublic order and political action 29 7
very difficult to challenge the exercise o f policy d iscretion by the police even
at the behest o f a P olice A uthority9 w ith elected m em bers.
17.3.1 Article 11
T he righ t to peaceful assem bly is found in A rticle 11 E C H R w hich, unlike the
equiv alen t provision in the I C C P R ,b r in g s rights to assem bly and association
together. T his chapter is confined to assem bly. The text o f A rticle 11 is found
in C h apter 2.
A rticle 11 protects the freed om to m arch and to hold m eetings.11 Its focus is
on assem blies w hich are m ore or less organised and w hich aim at the
prom ulgation o f inform ation and ideas to the public. P rivate gatherings for
private purposes m ay be protected by other p rovisions, such as A rticle 8. In
A nderson v UK'2 the C om m ission o f H um an Rights denied that A rticle 11
gu aranteed a right sim ply to be about in pu blic places for p u rely social
purposes.
T he righ t to peaceful assem bly, as w ith free expression, is fundam ental to,
and a foundation of, a d em ocratic society. A s such, it extend s to assem blies
w hich seek to prom ote p u rposes w hich m ay 'offend, shock o r disturb the state
o r any section o f the pop u latio n'; in so d oing, the A rticle em bod ies the
'pluralism , tolerance and b road m ind ed n ess w ithout w hich there is no 'd em o
cratic so cie ty '.13 Freed om o f expression un der A rticle 10(1) is an ad ditional
ground on w hich the freed om to protest and d em onstrate could be asserted
though there is likely to be little d ifference in effect.
To enjoy the protection of A rticle 11, assem blies m u st b e 'p eacefu l'. This
refers to the con du ct o f the m eeting rather than the con tent o f w hat is said. It
exclu d es from the protection of the A rticle m eetings in w hich the organisers
and participan ts 'h av e v iolent intentions w hich resu lt in public d iso rd er'.14
W hile there is no right to hold a m eeting at w hich persons are p hysically
attacked or threatened , a peaceful m eeting w here, for exam ple, future acts of
race hatred w ere encouraged w ould be w ithin A rticle 11(1) and any restric
tions on such a m eeting w ould need to be justified u n d er A rticle 11(2) - though
A rticle 17 m igh t prevent the organisers from asserting their C on vention
rig h ts.15 The im portan ce o f protest in a d em ocracy requ ires a tolerant
9 See C hapter 4 and, in particular, R v H om e S ecretary ex parte N orthu m bria P olice A uthority [1989]
QB 26; [1988] 1 All ER 556.
1.1 See also Article 21, ICCPR: T h e right of peaceful assem bly shall be recognized. N o restrictions
m ay be placed on the exercise of this right other than those im posed in conform ity w ith the law
and which are necessary in a dem ocratic society in the interests of national security or public
safety, public ord er [ordre pu blic], the protection of public health or m orals or the protection of
the rights and freedom s of others.' Discussed in N ow ak, M. (1993) U N Covenant on C ivil an d
Political Rights. CCPR Com m entary. Kehl: N. P. Engel, pp. 3 7 0 -8 2 .
11 Christians again st R acism an d Fascism v UK Ap. 8 4 4 0 /7 8 ; 21 D&R 138, 148.
12 A p. 3 3 6 8 9 /9 6 , 27 O ctober 1997.
13 R assem blem ent Jurassien et U nite Ju rassien n e v Sw itzerland A p. 8 1 9 1 /7 8 ; 17 D&R 93, 119, quoting
H andyside v UK (1 9 7 9 -8 0 ) 1 EH RR 737, paragrap h 49.
14 MC v Federal R epublic o f G erm any Ap. 1 3 0 7 9 /8 7 .
15 See C hapter 14.
interpretation o f 'p eacefu l' and actions w hich intentionally but n on-v iolen tly
interfere w ith the rights o f others, such as sit-ins or obstructions o f the
highw ay, are likely to be w ithin the protection o f A rticle 11(1).
MC participated in a demonstration in front of US military barracks. The demonstrators

blocked the road for twelve minutes every hour and required the military and the police
to close the road.
HELD (the European Commission of Human Rights): the prosecution of the
demonstrators was an interference with their right to peaceful assembly which could
only be justified on the grounds provided for by Article 11 (2). The interference was so
justified.
M C m Germany (1989) Ap. 13079/87
17.3.2 The 'opposition veto'

The state's first d uty is to m aintain pu blic order. O n that ground the law m ay
perm it restrictions on an otherw ise law ful and peacefu l m eeting becau se it
m ay provoke the v iolent reaction o f opponents. This ap p roach p enalises the
law abiding becau se o f threats o f un law fu l violence b y their opponen ts w ho
choose to be provoked. A s d iscussed below , the approach has been found in
U nited K ingd om law . A rticle 11 requ ires states to take p ositive m easures to try
and p rotect assem blies from violent cou nter-d em onstrations. This is only a
duty to do w hat can reasonably be done; it is not a duty to protect the right to
dem onstrate com e w hat m ay .16 W ithout these p ositive duties, political
assem blies could be restricted by the state on accoun t o f the violence o f others
and w ithout regard to the requ irem ents o f the second p aragraph o f A rticle l l . 17
17.3.3 'Prescribed by law'

A rticle 11(2) requ ires restrictions on peacefu l assem blies to be 'n ecessary in a
d em ocratic society ' and p roportionate in respect o f furthering the stated
pu rposes (w hich inclu de 'the p revention o f d isord er') and no others. A ny
restrictions m u st also be 'prescribed by la w '.ls A criticism m ad e o f pu blic ord er
law in the U nited K ingd om is that it grants too w ide a d iscretion to the police
and the executive so that the scope of the freed om to d em onstrate cannot be
kn ow n on the basis o f reasonably clear and follow able rules, but depends
overm u ch on the good w ill and in d ividu al ju d gm ents o f the au th orities.19 It
should be noted, how ever, that the 'prescribed by law ' test is w ide enough to
inclu de high ly d iscretionary enabling pow ers, such as those un der A rticle 39.2
o f the B erne C on vention20 or the general d isciplinary pow ers of a p rofessional
body.21
16 Platform A rtze fiir das Leben v A ustria (1988) 13 EH RR 204.

17 Christians again st Racism an d Fascism v UK Ap. 8 4 4 0 /7 8 ; 21 D&R 138, 148.
18 See C hapter 2.
19 For exam ple, Klug, F., Starm er, K. and W eir, S. (1996) T he T hree P illars o f Liberty. London:
Routledge, p. 201.
20 'In ord er to w ard off im minent dan ger [the Executive Council] m ay tem porarily call upon the
arm ed forces, issue orders and prohibitions subject to penalties': R assem blem ent fn rassien et Unite'
Ju rassien n e v Sw itzerland Ap. 8 1 9 1 /7 8 ; 17 D&R 9 3 ,1 1 9 .
P ublic order and political action 299
17.4 General legal framework
17.4.1 Legislation
T he d isturban ces of the late 1970s and early 1980s stim ulated a ran ge of reports
and inquiries w hich resulted in the Public O rd er A ct 1986.22 T his is a
com prehen siv e p iece o f legislation w hich p rovides a national, statutory
schem e, com plem enting com m on law pow ers, cov ering the control o f m arches
and m eetings and prov id ing a ran ge o f offences relating to behaviou r of
differing degrees of seriou sness. The overall effect o f this controversial
legislation is hard to judge. For critics it represented a d angerou s and
u n necessary increase in police pow ers on w hich could be founded the claim
that the gov ernan ce o f Britain w as becom in g m ore au th oritarian and less
tolerant of reasonable d issen t.23 For supporters, it provided a fram ew ork
w ithin w hich p roper balancing o f the interests o f d em onstrators and the public
interest in order. T h e C on serv ative go v ernm ent o f the 1990s felt the pow ers in
the P ublic O rd er A ct 1986 w ere ineffective in respect o f d isru ptive activities by
groups such as hu nt saboteu rs, m otorw ay protestors, 'trav ellers' and others,
w here a central aspect o f the activities involved trespass. P olice pow ers,
particularly over trespassers, w ere increased by the C rim in al Ju stice and
P ublic O rd er A ct 1994.21 T hese tw o A cts rem ain at the cen tre o f public order
law . They com plem ent high ly d iscretionary com m on law pow ers.
17.4.2 Police powers and breach of the peace

G eneral pow ers
M eetings, m arch es and d em onstration s m ay becom e d isord erly or violent. The
police can deal w ith this by arresting and d etaining those w ho they reasonably
su sp ect have com m itted one o f a nu m ber o f public ord er offences for w hich
there is a statu tory p o w er o f arrest, or w ho have com m itted an 'arrestable'
offence u n d er section 24 o f the P olice and C rim inal E vid en ce A ct 1984 or a
n on-arrestable offence w here the 'gen eral arrest con d itions', in section 25 of the
A ct, apply.
T he police are also u n d er a general d uty to uphold the peace and , w ith that
authority, can take d iscretionary, ap p rop riate actions to control m eetings,
m arch es and dem onstration s (see C h apter 4). Such action can be a d iscretion
ary alternative to arrest and prosecu tion, or, of great im portan ce, it can be the
taking o f coercive m easures against persons w ho are acting law fully or against
w hom there are no ground s for su specting that an arrestable offence has been
21 Ezelin v F rance Ap. 1 1 8 0 0 /8 5 ; (1991) 14 EHRR 362.

22 The H om e Affairs C om m ittee, Fifth Report: The Law R elating to Public O rder, H C Papers 756-1,
756-11, Parliam entary Papers 19 7 9 -8 0 , xlviii; Lord Scarm an (1981) The Brixton D isorders, C m 8427;
The L aw Com m ission Report No. 123 (1983) Offences Relating to P u blic O rder, H C Papers 85;
H om e Office (1985) Review o f Public O rder (W hite Paper), Cm . 9510.
23 Critics are sum m arised by W addington, P.A.J. (1994) Liberty an d Order. London U C L Press, p.
25, w ho argues that the A ct does not represent a significant increase on the already w ide and
discretionary pow ers of the police.
24 For its passage through Parliam ent see Klug, F., Starm er, K. and W eir, S. (1994) 'Civil Liberties
and the Parliam entary W atchdog: The Passage of the Crim inal Justice and Public O rder Act
1994', 49 P arliam en tary A ffairs 4, 536^19.
com m itted, but w ho are p rovoking others to disorder. K eep in g the peace is a
police duty, and so a person w ho refuses to act as requ ired or w ho p hysically
resists m ay be liable for obstructin g or assau lting the police in the exercise of
their d uty.25 T hou gh in them selves these offences are not arrestable, the
general arrest con ditions in section 25 o f the P olice and C rim inal E vid en ce A ct
m ay be m ade out.26
A rrest fo r breach o f the peace

If the general arrest con ditions do not apply, or if, in the circu m stan ces, the
police p refer to avoid taking actions w hich threaten crim inal penalties, then
the com m on law recognises a pow er to arrest or d etain w ithout arrest27 for a
breach o f the peace. In R v H ow ell28 it w as said that this pow er o f arrest can be
exercised in respect o f an action com m itted in the p resence of the person
m aking the arrest, or on the basis o f a reasonable b elief by the arrestor that
such an action w ill be com m itted in the im m ed iate futu re or w here a breach
o f the peace has been com m itted and it is reasonably believed that a renew al
o f it is threatened. The pow er to arrest or detain for breach o f the peace can
be exercised by anyone, not ju st a p olice officer.29
Breach o f the peace in this con text is not a crim inal offence. The arrest and
d etention m ay continue, it seem s, for as long as is necessary to m eet the
im m ed iate problem . A ltern ativ ely the person detained can be bro u gh t before
a m agistrate to be boun d over to keep the peace or to be of good behaviou r
and to face im p risonm ent if he or she refuses. In Steel and others v. U nited
K ingdom ,30 the applican t w as detained for 44 hou rs, thou gh she w as even tually
charged w ith an offence. T h e legality o f the d eten tions w as not tested in the
U nited K ingd om cou rts.31 D etention un der pow ers in the P olice and C rim inal
Evid ence A ct 1984 relates to those suspected o f com m ittin g offences; this is not
necessarily the case in respect o f breach o f the peace. A rticle 5 E C H R is
relevan t and, un less there is a seriou s gap in the law , there is a strong
arg u m en t that the PA C E 1984 provisions should be treated as ap p lying to
breach o f the peace d etentions. In the case o f a person w ho refuses to stop the
activities in question, the answ er is to get them before a m agistrate as soon as
possible for the issue o f bind in g over to be d ecid ed .32
The p olice d uty to act in respect o f breaches o f the peace has b een w idely
criticised on the ground s that it allow s a w ide d iscretion to ju nior police
officers w hich is not sufficiently guided b y clear legal principles so as to
provide a basis on w hich the freedom to m eet, m arch and protest can be
established . P artly u n d er the influence o f the 'legality ' provisions in the ECH R,
25 See C hapter 4.
26 See C hapter 5.
27 A lbert v Lavin 11982) AC 547.
28 [1981] 3 All ER 383.
29 A lbert v Laviit [1982] AC 547.
30 (1998) 28 EH RR 603.
31 The first applicant w as eventually charged with a public o rd er offence and convicted, the
second applicant w as bound over and the third, fourth and fifth applicants had their cases
dropped.
32 Though som e com m entators doubt that clarity has been achieved: Kerrigan, K. (1997) 'Breach
of the Peace and Binding O ver - C ontinuing C onfusion', 2 jou rn al o f C ivil Liberties 1, 30.
the courts, in recent years, have sou gh t to clarify im portan t issues and to lay
d ow n som e basic principles to govern the exercise of police discretion.
First, it has been established that a breach of the peace requ ires actual or
threatened violence, even if sligh t.33 The suggestion, in a case involving
environm en tal protestors, that a breach o f the peace could be found w here
d em onstrators prevented , n on-violen tly b u t effectively, con tractors from doing
their job/34 has not been follow ed in other p olitical cases35 and w as not accepted
by the C ou rt of A ppeal in sum m arising the cu rren t state o f breach o f the peace
law for both political and n o n-p olitical pu rposes.36
Second, the police officer's actions m u st be reasonable and the test for this
is objective. T he cou rt m u st be satisfied that, in the light o f con tem poran eou s
know led ge, it w as reasonable for the officer to fear a breach o f the peace. The
good faith of the arresting officer is not enough.37
Third ly, the courts now accept that the legality o f an arrest for breach o f the
peace m u st take into account the reasonablen ess o f the d efen d an t's condu ct
and o f those w ho are provoked. The notorious case o f D uncan v Jon es38 seem ed
to perm it the 'opposition v eto' in E nglish law . T he D ivision al C ou rt upheld
D u ncan 's conviction for obstruction o f the police in the execution o f their duty.
She had attem pted to ad dress a street m eeting w hich a police inspector had
banned. T here w as no alleg ation that D u ncan had com m itted, incited or
provoked a breach o f the peace. T he reason for the ban w as that, at a sim ilar
m eeting ten m onths earlier, there had been d isorder, again not incited or
provoked by D uncan. A late n ineteenth-centu ry case, Beatty v Gilllmnks,39 w as
not follow ed. In B eatty the Q ueens B ench D ivision held that it w as unlaw ful
to ban a m arch b y the Salv ation A rm y on the ground s that it m ight provoke
the S keleton A rm y, their enem ies, to violence. An otherw ise peacefu l assem bly
cannot be rendered un law fu l on the sufficient ground that others w ill oppose
it w ith violence.40
R ecen t English cases su gg est that the principles u n derlyin g Beatty m ay now
b etter reflect the law. In N icol and Selvanayagam v D P P 41 the appellan ts had
engaged in n on-v iolen t d isru p tion o f an angling com petition. Sim on Brow n LJ
held that breach o f the peace, on provocation ground s, required pro of that the
d efen d an t had acted u n reason ably in the circu m stan ces.42 The d eliberate
in terference w ith the rights and liberties o f others (e.g. interru ptin g hu nting or
m otorw ay b uilding) is likely to be thou ght u nreasonable. But u n reason able
beh av iou r is not enough. In R v M orpeth Justices ex parte Ward,43 a case
33 R V H ow ell [1981] 3 All ER 383.

34 R v C h ief C on stable o f Devon an d C ornw all ex parte C entral E lectricity G enerating Hoard [1982] 1 QB
458.
35 Percy v DPP [1995] 3 A L L ER 124 QBD; N icol an d Selvanayagam v D PP (1996) 160 JP 155, and
Redm ond-Bate v D PP (2000) 163 JP 789.
36 Bibby v C h ief C onstable o f Essex (2000) 164 JP 297.
37 R edm on d-B ate v D PP (2000) 163 JP 789, 791, Sedley LJ.
38 [1935] All ER Rep 711 KBD; for the political context of the case see Ewing, K. and G earty, C.
(2000) The Struggle fo r C ivil Liberties. O xford: O xford U niversity Press.
39 (1882) 15 C ox C C 138 QBD.
40 But see G lanville W illiam s (1954) 'A rrest for Breach of the Peace', Crim LR 578, 581 for a
different perspective on the Salvationist's behaviour.
" (1996) 160 JP 155
42 See also R edm ond-Bate v D PP (2000) 163 JP 789 QBD, Sedley LJ.
inv olv ing the d isru ption o f a pheasant shoot, it w as held that there w ould be
a breach o f the p eace if the activities o f the d efen d an t 'w ou ld have the natural
con sequ ence o f provoking others to violence'. C ases since M orpeth su gg est that
provocation to violence is only a 'n atu ral con sequ ence' if the reaction o f those
provoked , though probably un law fu l, w ould not be 'entirely u n reaso n ab le'.44
In Percy v D PP (1995)45 m agistrates boun d over a peacefu l p rotester w ho
regularly clim bed fences into a m ilitary base. T he D ivisional C ou rt held it w as
'h ighly im probable that the non-violen t acts o f trespass com m itted by the
appellan t w ould p rov oke trained personnel to v iolent reactio n '46 and in N icol
and Selvanayagam v D PP (1996)47 Sim on B row n LJ suggested that a violent
reaction w ould be w holly u n reason able if people w ere provoked to violence
by actions w hich did not significantly interfere w ith other p eo p le's rights, or
if the d efen dan t w as d oing no m ore than 'p ro p erly exercising his ow n basic
rights, w hether o f assem bly, d em onstration o r free sp eech '.48
If the b reach o f the peace is anticipated rather than h app en in g at the tim e
o f arrest, the question o f its p roxim ity arises. M ost d efinitions o f breach of the
peace requ ire the anticipated violence to be im m inen t in term s both o f tim e
and place.49 This requ irem ent sits un easily w ith a w ell know n case from the
1 984-85 m iners' strike, M oss v M cLachlan (1985).50 Striking m iners w ere
stopped at a m otorw ay ju nction several m iles from collieries w here other
m iners w ere w orking. In all the circu m stan ces o f the strike and the w idespread
v iolence that had been reported in the m edia and, accu rately or not, attributed
to the picketing m iners, the D ivisional C ou rt held that those w ho had sought
to p u sh throu gh the police barrier w ere righ tly convicted for obstru ction o f the
police in the execution o f their duty. The police view , that a breach o f the peace
w as likely if the m iners got through to the collieries, cou ld, in the circu m stan
ces, be reasonable. N o breach o f the peace w as im m inen t and so, given recent
clarifications o f the law , the case m igh t be decided differently today.
Breach o f the peace and Convention rights

T he E uropean C ou rt o f H um an R ights has found that, in the light o f the
restatem ent o f the law in the cases d iscussed above, the general law on breach
o f the peace is com patible w ith both A rticle 5 and A rticle 10 ECH R.
The first applicant was arrested when she attempted to obstruct a grouse shoot by
walking in front of a gun; the second applicant was arrested for obstructing the building
of a motorway; the third, fourth and fifth applicants were arrested for handing out
protest leaflets and holding up banners at an arms fair. The first and second applicants
were bound over; the third, fourth and fifth had their cases dismissed when the
prosecution offered no evidence.
43 (1992) 96 C r App Rep 215 QBD.

44 R edm ond-Bate v D PP (2000) 163 JP 789, 797; see also N icol an d Selvanayagam v D P P (1996) 160 JP
155, 163.
45 [19951 3 All ER 124.
46 119951 3 All ER 124, 133.
47 (1996) 160 JP 155.
48 (1996) 160 JP 155, 163.
49 Bibby v C h ief C onstable o f Essex (2000) 164 JP 297; F oulkes v C h ief C on stable o f the M erseyside P olice
[1998J 3 All ER 705 CA.
50 [1985] IRLR 77.
HELD (ECHR): Article 5 and Article 10 were violated in respect of the third, fourth
and fifth applicants but not in respect of the first and second applicants.
Steel and others v UK (1998) 28 EHRR 603
Ind iv id u al applications o f the law can still violate the C onvention. T hu s, in

respect o f the third, fourth and fifth d efen dan ts, the C ou rt held that the arrests
could not be explained on the ground s that the d efen d an ts' beh av iou r had the
n atu ral con sequ ence o f reasonably p rovoking others to violence.
In both recent d om estic law and u n d er the C on vention there is an em erging
d istin ction betw een protest and disruption. The form er aim s to present
argum ents and reasons against a particu lar activity but, although the p resen
tations m ay be hard to avoid, does not coerciv ely interfere w ith the activity;
the latter is a d irect attem p t to p revent or m ake m ore difficult a law ful activity.
It is against the latter rather than the form er that the law on breach o f the peace
is aim ed.
17.5 Meetings
M eetings can take place on road s, in halls, in open spaces, or w herever the
requ irem ents o f the assem bly d ictate. T hese places m ay be ow ned or
controlled by pu blic auth orities or they m ay be in priv ate hands; they m ay be
places w hich are custom arily the site o f assem blies or they m ay be land used
for w holly other pu rposes, ind ustrial, recreational or w hatever.
17.5.1 Private owners

Perm ission is needed from the person or com pany in p ossession o f 'p rivate'
land. W ithout it a tort action, such as for trespass, can b e b rou ght w ith the aim of
d am ages or an injunction. A n ow ner is entitled to use reasonable force to rem ove
a trespasser. W here the use o f such force m ay give rise to a breach o f the peace,
the police m ay exercise their d iscretion to assist such self-help m easu res.51
P rivate ow ners or occup iers are free to refu se or revoke any licence or
perm ission they give, and m ay do so w ithout giv in g reasons; it is an incident
o f property rights. T his seem s to ap p ly ev en in respect o f places, like shopping
m alls or leisure centres, w hich are w id ely used b y the public and w hich m ay
be part of a thorou ghfare or occup y a large part o f a city centre. A w ithd raw al
o f perm ission m u st b e con sisten t w ith the general law and w ithin the term s of
any lease or other private righ t the o w ner or occu p ier has, but o therw ise can
be im posed for any purpose. W ithd raw al o f perm ission w ould then m ake
law ful the forcible rem oval o f the persons affected.
CIN P leased a town shopping centre from the local authority. The centre occupies
about three-fifths of the town centre. The lease required them to allow full pedestrian
51 See R v C h ief C on stable o f the Devon an d C ornw all C onstabulary ex parte C E C B [19811 3 All ER 826,
discussed below. Section 10 of the Crim inal L aw A ct 1977 m akes it an arrestable offence to resist
o r obstruct intentionally a court officer executing process for enforcing a court o rd er for the
recovery of prem ises.
access to the common parts of the premises. CIN P formed the view that R and other
young black men were committing nuisances and sought to ban them from the centre.
HELD (CA): members of the public had no equitable right to use the common parts
of the centre and so CIN P had the right to determine the defendants’ licences subject
only to any restraints in the general law such as the Race Relations Act.
CIN Properties v Rawlins and others (1995) TLR 9.2.95^
O n this approach, com m ercial organisations w ould be able to restrict peaceful

public assem blies on land to w hich the public have apparen tly open access.
A ny restrictions can sim ply p rom ote the interests of the organisation and need
not take into accoun t any fun dam ental rights to freedom of speech or assem bly
enjoyed by the public. Scheduled C on vention rights are not d irectly bind ing
on a com m ercial com pany. It is arguable that w here the com pany, as part of
its lease, has agreed to give pu blic access, it is, in that regard, exercising a
'p u blic fun ction' and so, by virtue o f section 6(3) o f the H um an R ights A ct
1998, counts as a 'p u b lic au th ority ' and m u st act com p atibly w ith C on vention
rights. P erhaps, also, a local cou ncil w hich grants a lease prov id ing for public
access w ould act unlaw fu lly unless C on vention rights, inclu ding A rticle 11,
w ere express or im plied con ditions to the lease.

Public auth orities, often local auth orities, can occupy land or have other
statu tory auth ority to control the use o f land and prem ises that organisers m ay
w ant to use for m eetings. It is m ore than likely that the prim e sites, the central
p ed estrian precincts, the biggest halls and the parks, w ill be so controlled. A s
w ith private ow ners, public auth orities can uphold their legal rights by, for
exam ple, bringin g actions in tort,53 inclu ding injun ctions,54 and they can also
be supported by the police on the sam e ground s as w ith private ow ners.55
P ublic auth orities are likely to have ad ditional statu tory pow ers and rem edies
w hich they can exercise w hen m aking d ecisions on the u se o f land and
prem ises.
P ublic auth orities need to be distinguished from priv ate ow ners. They are
subject to the ord in ary p rinciples o f ad m inistrativ e law w hich m eans that they
do not have priv ate land lord s' freed om s to act in their ow n interest for any
reason. T h ey m u st act to prom ote their con ception o f the public interest and
can only do things that they have express or im plied auth ority to do.
SCC purported to ban deer hunting over an area of common land. The relevant
statute, section 120(1 )(b) of the Local Government Act 1972, allowed councils to
acquire and manage land for the ‘benefit, improvement or development of their area’.
HELD (CA): in making its decision the councillors had acted on the basis of their
personal views on hunting. They had not considered their statutory powers and
52 See, further, A nderson v UK Ap. 3 3 6 8 9 /9 6 , 27 O ctober 1997.

53 For exam ple, under section 222 of the Local G overnm ent A ct 1972; see Bailey, S.H. (1997) Cross
on Principles o f Local G overnm ent Law , 2nd edn. London: Sw eet & M axw ell, chapter 10.65.
54 For exam ple, Burnley/ v England (1977) 76 LGR 393; 77 LGR 227.
55 The CEGB w as, of course, a public authority: R v C h ief C onstable o f the D evon an d C ornw all
C onstabulary ex parte C EG B [19811 3 All ER 826.
Public order and political action 305
whether the ban was beneficial to their area but had acted as if they had the freedom
of private land owners. The decision to ban hunting was quashed.
R v Somerset County Council ex parte Fewings [1995] 3 All ER 20
Public authorities, w hen taking decisions relating to m eetings, m arches and

dem onstrations, m ay also have a general duty to consider and safeguard the
rights of others in going about their lawful business. In R v Coventry City
Council ex parte Phoenix Aviation56 the High Court ordered the resum ption of
flights and shipm ents of livestock which had been banned by airport and port
authorities in order to prevent disruption by anim al rights protesters. The
authorities controlled the docks or airports on the basis of statutory powers
w hich required access to all persons and business on equal terms. This m eant
that, other than in em ergency situations, fear of disruption by dem onstrators
w as not a ground for distinguishing betw een different lawful trades. Such a
rule could apply to a privatised com pany exercising sim ilar statutory powers.
The court also held that public authorities had an additional duty to uphold
the rule of law and not surrender to the dictates of unlaw ful protest.57 A
sim ilar position applies to states in respect of the enforcem ent of Com m unity
law.58
Decisions by public authorities are challengeable in the courts by way of
judicial review. Prior to the H um an Rights A ct 1998, decisions which involved
hum an rights, such as freedom of expression and freedom of assem bly, w ere
subject to closer, m ore dem anding, scrutiny by the courts than som e other
decisions.59 The A ct takes this further and m akes it unlaw ful for an authority
to act incom patibly w ith C onvention rights and requires judges to interpret
and give effect to the legislation, including the byelaw s, under which the
authority purports to act, so far as is possible, for com patibility with
C onvention rights.
The public have no general right to use public open spaces for m eetings.
This includes, for exam ple, areas that have traditionally been so used,
'com m on land',60 land controlled by public authorities including the beach and
sea shore61 or sites controlled by English Heritage.62 U sually the land in
question is subject to byelaws. These m ay restrict the holding of m eetings or
give the authority the right to grant or refuse perm ission for m eeting and
assem blies. Breach of a valid byelaw m ay be a crim inal offence. Byelaw s can
be challenged on the grounds that they are m ade w ithout proper authority.
Fam ously, byelaw s, passed to try and turn the trespassing activities of peace
protestors outside m ilitary bases into crim inal offences w ere successfully
56 [1995] 3 All ER 37.

57 [1995] 3 All ER 37, 62.
58 Cullet v Centre Leclerc Toulouse [19851 ECR 305; Com mission v France [19971 ECRI-6959; cf. R v
C hief Constable o f Sussex ex parte International Traders' Ferry Ltd [19991 1 All ER 129. Discussed in
Baker, E. (2000) 'Policing, Protest and Free Trade: Challenging Police Discretion under
Com m unity Law ', Crim LR 95.
59 For exam ple, R v Lord Saville and others ex parte A and others [1999] 4 All ER 860.
60 De M organ v the M etropolitan Board o f Works (1879-80) v QBD 155, DC.
61 M ayor o f Brighton v Packham (1907-08) xxiv TLR 603.
62 R v The Com mission o f English H eritage ex parte Firsoff (unreported), 19 June 1991, cited in Bailey,
Harris and Jones, op. cit., 194.
challenged on this ground .63 Byelaw s can also be challenged on the ground s
o f bein g repu gnan t to the gen eral law , u n certain and un reason able.64 The
cou rts have usually upheld b yelaw s w hich restrict the h olding of public
m eetings65 bu t they w ill prevent byelaw s bein g used for d isproportionate bans
on political activity,66 a v iew w hich the H um an Rights A ct 1998 encourages.
In L ondon the traditional m eeting places have been regulated by statute. The
cou rts have denied a basic pu blic righ t to use H yde P ark67 or T rafalgar
Square68 for assem blies. P erm ission is required on the basis of regulations. The
regulations governing H yde Park69 requ ire w ritten perm ission to be sou ght
from the D epartm ent o f C ulture, M edia and Sport before any public m eeting
or procession etc. can be held ,70 o ther than at Sp eakers' C orn er in H yde Park.
H ere speeches can be m ad e w ithout perm ission thou gh a p olice ord er to m ove
m ust be com plied w ith.71 T rafalgar Square, not bein g a C row n Property, is
subject to the perm ission and control o f the M ayo r o f L ondon .72 The M ayor,
acting alone, though on beh alf o f the A uthority, m ay m ake byelaw s for
'secu ring the proper m an agem en t', the 'p reserv ation o f ord er' and the
'prevention o f abu ses' o f the areas. T he M ayor is requ ired to have regard to
any gu id ance issued by the Secretary o f State.73 T rafalg ar Square is, how ever,
a high w ay and, in so far as the p u blic have a right to hold m eetings on the
highw ay,74 these are perm issible in T rafalgar S quare w ithout the M ayor's
perm ission.
A ny refu sal of p erm ission is subject to judicial rev iew both on the ord in ary
principles o f ad m inistrativ e law and un der the H um an Rights A ct 1998. U nlike
the pow ers of the police to seek a b an on a m arch (see below ), a refu sal of
perm ission for a m eeting m ay be in respect o f a p articular m eeting rather than
a general ban. Political bias in the granting or w ithholding o f perm ission
w ould be a ground o f review . As noted above, u n d er the H um an R ights A ct
1998 there is a p ositive right to hold peaceful assem blies and this narrow s the
discretion of pu blic auth orities to refu se.7" A refusal m u st be for one o f the
63 D PP v H utchinson (1990) 2 A C 783. See also (on different grounds) B ugg v DPP, Percy v DPP
[1993] 2 All ER 815; cf. Percy v H all [1996] 4 All ER 523.
M H alsbury's Lazos o f England, 4th edn, vol. 29(1) Local G overnm ent (2001), paragraphs 4 3 0 -5 .
65 For exam ple, Slee v M eadow s (1911) 105 LT 127 DC.
66 R v Barnet London Borough C ouncil (1991) 89 LC R 581 (QBD).
67 Bniley v W illiam son (1872-73) viii LR QBC 118.
66 Ex parte Lew is (1888) 21 QBD 191, DC; see also R v C unninghatne G raham an d Burns (1888) 16 C ox
C C 420.
m There are com m on regulations for the Royal Parks and other parks and areas controlled, now ,
by the Secretary State for C ulture, M edia and Sport. These are the Royal Parks and O ther Open
Spaces Regulations 1997, SI 1 9 9 7 /1 6 3 9 . The regulations are m ade under the Parks Regulation
(A m endm ent) A ct 1926, s. 2(1).
70 The Royal Parks and O ther Open Spaces Regulations 1997, SI 1 9 9 7 /1 6 3 9 , 4(15) and (17).
71 The Royal Parks and O ther O pen Spaces Regulations 1997, SI 1 9 9 7 /1 6 3 9 , 3(14).
72 G reater London A uthority A ct, s. 383(3) and s. 384(8).
73 Sections 3 8 5 -6 , G reater London A uthority A ct 1999.
74 See below.
75 The European Com m ission of H um an Rights seem s to take a tolerant view of execu tive refusals
of perm ission, for exam ple, Rai, A llm on d an d N egotiate Nozv v The U nited K ingdom (1995) 19
EH RR C D 93; A p 2 5 5 2 2 /9 4 , w here the D epartm ent of National H eritage refused perm ission to
use Trafalgar Square even though the police w ere satisfied there w as no dan ger to public order.
The Com m ission found the ban to be proportionate because of the prom inence of the location
and because it w as not a blanket ban.
legitim ate pu rposes listed A rticle 11(2), m u st be based on law and be

proportionate to the achievem en t o f the purpose. A refu sal could be based on
a w ell-founded fear that the m eeting w ill be used to violate the rights o f others
in the sense identified in A rticle 17. P ublic auth orities and police m ay need to
take reasonable steps to protect such m eetings from the disru ption o f cou nter
dem onstrators but it is u n clear how far this positive d uty goes. The
no n-d iscrim ination provisions on the C on vention requ ire equal treatm ent of
applicants.
Local cou ncils m ay have a d uty to provide at least som e su itable prem ises
for the h olding o f peaceful assem blies.76 T h e extent o f any such duty is unclear.
A s d iscussed in C h ap ter 13, there is a positive duty on local cou ncils, un der
the R epresentation o f the P eople A ct 1983, to provide for election m eetings.
A part from that, there is little ev id ence o f a legally en forceable d uty to provide
m eeting places. W here a public au th ority has a con tractu al obligation to
provide a hall for a political m eeting the court m ay enforce the contract by
specific p erform ance if freed om o f expression is in is s u e /7 T he strongest
assertion o f a positive d uty is in resp ect o f u n iv ersities and institutions of
higher or further edu cation w hich are u n d er a legal duty to secure freedom of
expression for stud ents, staff and v isiting speakers.78
17.5.3 Highways
M eetings, m arches and d em onstration s often take p lace on the highw ay. The
point about the h igh w ay is that the public m ay use it as o f right, w ithout need ing
the perm ission o f private lan d ow n er or pu blic auth ority; if the right is exceeded,
civil actions, trespass, for exam ple, can be b rou ght b y those w hose land abuts or
is crossed b y the highw ay; sim ilarly, crim inal offences m ay be com m itted. The
fact that such activ ities have been tolerated does not create a righ t to them .
Civil liability
The basic right o f the public on a high w ay is the righ t o f passage and
re-passage.79 U sing the high w ay for other pu rposes m ay m ake a person
vulnerable to civil action by the occu p ier o f land over w hich the high w ay goes.
D isru p ting a grouse shoot80 or observing the condition o f race horses81 are
fam ou s exam ples o f high w ay uses w hich w ere held to be outsid e the scope of
the right o f passage. Both cases con tain au th ority for the view that the right to
use the highw ay extend s beyond m ere passage and re-passage. T he question
is w hether o ther activities can be done, as of right, only w hen they are
incidental to a basic intention to pass or re-pass (e.g. stop pin g to talk to a
friend), or w hether they can extend, as a m atter o f right, to activities (e.g.
76 As ad vocated, in respect of the law prior to the A ct, by Robertson, G. (1993) Freedom , the
In dividu al an d the Law , 7th edn. H arm ondsw orth: Penguin, pp 6 6 -7 , following Street, H.S. (1977)
Freedom , the In dividu al an d the Ixiw, 4th edn. H arm ondsw orth: Penguin, p 49.
77 V errall v G reat Yarm outh [1981] 1 QB 202.
7S Section 43, Education A ct (N o. 2) 1986; R v U n iversity o f Liverpool ex parte C aesar-G ordon [1990]
3 All ER 821.
79 For exam ple, R v Pratt (1855) 4 E&B 860; 119 ER 319.
80 H arrison v D uke o f R utland [1893] 1 QB 143 CA.
81 H ickm an v M aisey [1900] 1 QB 752 CA.
busking) w hich are not necessarily linked to passage. A ny such extra rights
m u st not b e incon sisten t w ith the basic right by o bstructin g or in terfering w ith
the rights o f others to pass and re-pass.
A non-obstru ctive m arch or procession is likely to be con sisten t w ith the
right o f passage.82 T h e problem arises in respect o f a m eeting or d em onstration
w hich, b ein g stationary, is not ancillary to the right o f passage. T he issue w as
considered by the H ouse o f L ords in DPP v Jones.
Section 14A of the Public Order Act 1986 authorises the prohibition, by order, of
‘trespassory assemblies’. These are assemblies of 20 or more persons held, inter alia,
on land to which the public has only a ‘limited right of access’ where the assembly
exceeds that right of access. Section 14A(9) expressly recognises a highway as
conferring only a limited right of access. J was a member of a group of more than 20
gathered on the grass verge of a highway as part of an ongoing protest concerning
the right to use Stonehenge. The area was subject to a section 14A order. They were
arrested and convicted for taking part in a trespassory assembly. The courts accepted
as a matter of fact that the assembly was peaceful and non-obstructive.
HELD (HL): peaceful, non-obstructive meetings on the highway are capable of
being within the public’s right of access to the highway and J and others, in this
particular case, had not exceeded their right of access on the highway.
DPP v Jones [1999] 2 All ER 257 (HL)
D ifferent view s w ere taken and the extent to w hich the high w ay can be used
for political gath erin gs as o f right rem ains unclear. T w o o f their lordships
d issented , and upheld the trad itional v iew that the right to use the high w ay is
confined to p assage and re-passage. The m ajority, how ever, accepted that the
high w ay could be used, as of right, fo r som e non-obstru ctive p u rposes w hich
w ere not incid ental to passage. T hese could inclu de the holding o f political
m eetings. O f the m ajority, how ever, only two, Lord Irvine LC and Lord
H utton, ground ed their ju dgm ent, though in d ifferent w ays, on the need to
ad just the law so as to uphold a positive righ t o f assem bly com p atible w ith
A rticle 11 ECH R.
C rim inal liability

M eetings, m arch es and d em onstration s on the high w ay m ay give rise to
arrests for breach o f the peace or to crim inal liability.83 B reach o f the peace and
the public ord er offences in the P ublic O rd er A ct 1986 can all be com m itted on
the high w ay and involve a pow er o f arrest. C on versely, for som e pu blic order
offences such as aggravated trespass, activ ity on the high w ay is expressly
excluded from the definition o f the offence.84
T h e principal statu tory offence is w ilful obstruction o f the highw ay,
curren tly found at section 137 o f the H ighw ays A ct 1980.85
82 For exam ple, / ones v D PP [1999] 2 All ER 257, 286.

83 Burden v R igler [1910] 1 KB 337 - the offence of disrupting a 'lawful' m eeting under the Public
M eetings A ct 1908 could apply to a public m eeting on the highw ay.
84 Section 61, Crim inal Justice and Public O rder A ct 1994, referred to by section 68(5).
85 For discussion of cases relating to predecessor legislation see annotations to section 137 by
Cross, C.A. and Sauvian, S.J. (1981) Current Law Statutes A nn otated 1980, Vol. 2. London: W .
Green & Son, c .6 6 /1 3 7 .
137 Penalty for w ilful obstruction

If a person without lawful authority or excuse, in any w ay wilfully obstructs the free
passage along a highway he is guilty of an offence and liable to a fine not exceeding
level 3 on the standard scale
S im ilarly, 'cau sin g an unlaw fu l obstruction o f the highw ay' is one o f the
con ditions ju stifying arrest for an o therw ise non-arrestable offence un der
section 25 o f the P olice and C rim in al Evid ence A ct 1984.“ The offence can be
com m itted even though there is no com p lete obstruction o f the high w ay and
traffic and ped estrians still have a restricted righ t o f passage.87 T here need be
no intention to obstruct, m erely an intention to do the activities w hich actually
cause the obstruction.88
In H irst and A gu v C hief C onstable o f West Y orkshire (1987)S9 (a case involving
the prosecu tion o f anti-fur trade protestors w ho had picketed a furrier) it was
held that a com p onent o f the offence, w hich the prosecu tion m u st prove, is that
the obstruction w as w ithout law ful auth ority and w as not a 'reaso n able' use
o f the highw ay. This b rou ght the offence o f obstruction in lin e w ith the
com m on law offence o f pu blic nu isance.9*1 R easonablen ess is a high ly contested
con cep t and the prosecu tio n 's success in proving u n reason able use m ay
d epend on the personal con stitutional m orality o f m agistrates. In H irst and Agu
O tton J, agreeing w ith G lidew ell LJ, related the possible reasonablen ess of an
o b structive use o f the high w ay to the right o f free speech and protest. This
view can only be strengthened by the H um an Rights A ct 1998. Sch ed u le 1,
A rticle 11 arguably establish es a presum ption o f law ful auth ority in respect of
a peacefu l assem bly even on the highw ay,91 and any restrictions, such as those
ground ed on w ilful obstruction, need to be com patible w ith A rticle 11(2). H irst
and A gu does not p rev ent the conviction o f d em onstrators w ho create
significant o bstruction o f road s and pavem ents. T he m ore significant the
o b struction the less likely it w ill even engage A rticle l l . 92
17.5.4 Power of police to enter meetings

T he police have a pow er to enter and rem ain on priv ate prem ises to deal w ith
an actually occurring breach o f the p eace93 and can do this even if the persons
in control o f the m eeting object. T h e p o w er to arrest for breach o f the peace
86 Section 25 (3)(d)(v), Police and Crim inal Evidence A ct 1984.

87 H om er v Cadm an (1885-86) II TLR 407.
88 A rrow sm ith v Jenkin s [1963] 2 QB 561.
89 (1987) 85 C r A pp R 143 (QBD).
90 R v C lark (No. 2) [1964] 2 QB 315 C CA : the conviction of the secretary of CN D , w ho had urged
a crow d of dem onstrators to m ove behind a police cordon thereby causing an obstruction of
the highw ay, of inciting persons to com m it a public nuisance, w as set aside on the grounds that
the question of the reasonableness of the dem onstrators' use of the highw ay had not been put
to the jury.
91 In D PP v Jones [1999] 2 All ER 257, 267 Lord Irvine suggested that A rticle 11 m eans that the law
m ust start with the assum ption that assem bly on the highw ay will not necessarily be unlawful.
92 For exam ple, Birch v DPP [2000] C rim LR 301.
93 For exam ple, R v M arsden (1868) LR 1 CCR 131; Robson an d an other v H allett [1967] 2 QB 939.
The pow er is assum ed rather than expressly asserted.
can be exercised on private land 94 as can, it w ould seem to follow , less

d racon ian com m on law pow ers such as im posin g con ditions on an assem bly.
M ore con troversially, the cou rts have upheld the pow er o f the police to enter
a peacefu l m eeting, against the w ishes o f the organisers, in anticipation of a
future breach of the peace. The fear here is that the police presence m ay be
intim idatory, p articularly if it is the behav iou r o f the police them selves that is
the subject o f the m eeting.
There was a private hiring of a hall in a library to hold a meeting, widely advertised
to the public, to protest against the Incitement to Disaffection Bill and to demand the
resignation of the Chief Constable of Glamorgan. Between 500 and 700 people
attended. The police officers were refused entry; nevertheless they sat in the front
row and refused to leave when asked. The organiser attempted to eject them and
alleged assault and battery against the police when they resisted his efforts.
Magistrates held that the police had acted with a reasonable apprehension of a breach
of the peace.
HELD: there was ample authority from which it could be inferred that police had the
power, as part of their preventative duties, to enter private premises to deal with
apprehended breaches of the peace.
Thomas v Sawkins [1935] 2 KB 249
The existen ce o f the pow er is con tentiou s.95 It m ight be confined to m eetings
that the police cou ld, in any case, attend as m em bers o f the public.
N everth eless, the gen eral p rinciple has b een confirm ed in M cLeod v Com m is
sion er o f Police fo r the M etropolis,96 a n o n-p olitical case. T he pow er w as said to
have b een recognised by P arliam ent in section 17(6) of the P olice and C rim inal
E vid en ce A ct 1984, though all section 17(6) does is to retain 'an y pow er of
entry to deal w ith or p revent a breach o f the p eace', it does not create any new
pow ers. In M cLeod it is stressed, by the C ou rt o f A ppeal, that the p ow er to
enter private p rem ises against the w ish es o f the o w ner or occu p ier to prevent
an apprehend ed breach o f the peace should be exercised w ith great care and
discretion and exists only w here the police, on reasonable ground s, believe
there is a 'real and im m inen t' risk o f a breach o f the peace.
In M cLeod v U nited Kingdom 97 the pow er o f the police to enter private
prem ises to deal w ith a breach o f the peace w as upheld in general term s as a
restriction on private life capable o f au th orisation un der A rticle 8(2) (the
particular exercise o f the pow er in the case w as held to have been d isp rop or
tionate). P olitical m eetings w ill place in issue the rights to private life, to
freedom o f expression and to freedom o f assem bly. G iven the Strasbou rg
cou rt's recognition o f the im portan ce o f political expression in m aintaining the
94 M cC onnell v C h ief C on stable o f the G reater M anchester Police [1990] 1 All ER 423 CA w hich cites,
as an exam ple, R v C h ief C on stable o f D evon an d C ornw all C on stabulary ex parte C entral E lectricity
G enerating Board [1981] 3 All ER 826.
95 C layton, R. and Tom linson, H. (1992) Civil A ctions again st the Police. London: Sw eet & M axwell,
p. 242; Feldm an, D. (1986) The Law R elating to Entry, Search an d Seizure. London: Butterw orth,
pp. 3 2 4 -5 ; G oodhart, A .L . (1936-38) 'Thom as v Saw kins: A C onstitutional Innovation', C L f 22;
Feldm an, D. (2002) C ivil Liberties an d H um an R ights in England an d W ales, 2nd edn. Oxford:
O xford U niversity Press, pp. 1075-9.
96 [1994) 4 All ER 553.
97 M cL eod v UK (1999) 27 EHRR 493.
d em ocratic con text in w hich hum an rights flourish, the threshold of a

proportionate response by the p olice should be set high in term s, at least, of
the im m inen ce and seriou sn ess o f the apprehend ed b reach o f the peace.
The police also have their general pow ers to enter prem ises w ithout a
w arrant.98 Section 17 o f the Police and C rim in al E vid en ce A ct 1984, in
particular, auth orises a police con stable to enter (and search) prem ises w ithout
a w arrant for the pu rpose, am on g others, o f arresting a person for an arrestable
offence. N ot all pu blic o rd er offences are arrestable offences, and section 17
also specifically identifies offences such as section 4 o f the Public O rd er A ct
1986 (fear or p rovocation o f violence) as offences fo r w hich this pow er o f entry
in ord er to arrest applies.
17.5.5 Power to impose conditions on certain meetings in the open air

The com m on law d u ty to m aintain the peace auth orises the police to issue
approp riate instructions to organisers o f and p articipants in p u blic m eetings.
As w e have seen, failure to abide b y these instru ction s could be a ground for
arrest or its could am ou nt to the offence o f obstruction o f the p olice in the
exercise of their d uty u n d er section 89 o f the Police A ct 1996.
Section 14 the P ublic O rder A ct 1986

Section 14 o f the P ublic O rd er A ct 1986 gives the police pow ers to im pose
con ditions on 'p u b lic assem blies'. T hese pow ers are in ad dition al to com m on
law pow ers. T hey are m ore precise and have the au th ority o f Parliam ent
behind them . C on d ition s m ay relate to place, d u ration or to the nu m ber of
persons perm itted to be present and they can be im posed either in ad van ce of,
or d uring, the m eeting. P ublic assem blies are o f '20 or m ore persons in a public
place w hich is w holly or partly in the open a ir'.99 A 'p u blic p lace' is defined
to inclu de a p riv ately organised pu blic m eeting such as the m eeting in Thom as
v Sazukins, had it been partially in the open air. An org aniser of, or a p articipan t
in, a m eeting w ho kn ow in gly fails to com ply w ith a con d ition im posed under
section 14 com m its an offence, but eith er organiser or p articip an t can establish
a d efen ce that non-com pliance arose from circu m stan ces beyond their control.
The d etail o f the con ditions m u st be clearly com m u nicated to the d efen d
an ts.100
The pow ers can only be exercised on the basis o f a reasonable b elief of a
sen ior police officer, w ho m ay be sim ply the m ost sen ior present if the
con ditions are im posed d uring a m eeting, that one o f the 'trigg ers' exists.
These are that the pu blic assem bly m ay result in (a) seriou s pu blic disorder,
(b) seriou s d am age to property, (c) seriou s d isru ption to the life o f the
com m u nity, or (d) the pu rpose o f the persons organising it is the intim idation
o f others w ith a view to com pelling them not to do an act they have a righ t to
do, or to do an act they have a right not to do. These triggers are also necessary
for the exercise o f other police pow ers w hich w ill be referred to below .
98 See C hapter 6.
99 Section 16, Public O rder A ct 1986.
100 Brickley an d Kitson v Police (1988) l.egal A ction, July, p. 21.
The 'triggers' and Convention rights

The exercise o f the pow ers un der section 14 are subject to 'o rd inary ' ju dicial
review and also to review un der the H um an R ights A ct 1998. R estriction s on
freed om of exp ression and assem bly auth orised by section 14 and aim ed at
stop ping violence or threats to p rop erty are likely to be accepted as b ein g for
a legitim ate p u rpose as identified in A rticle 10(2) or A rticle 11(2). H ow ever,
the third trigger, 'seriou s disru ption to the life o f the com m u n ity', m ay not, in
general term s, be com p atible w ith those purposes. T h e trigger m ay include
non-violen t behav iou r and so be even m ore w ide ran ging than a breach of the
peace. This openn ess o f the trigger m ay be incom patible w ith the 'prescribed
by law ' requ irem ent for restrictions on the freed om s o f expression and
association perm itted u n d er the second paragraph s o f A rticle 10 and 11.
Fu rtherm ore, p reventing 'd isru p tion ' to p eo p le's lives is not a listed purpose
un der the second paragraphs. It m ay be that any restriction based on this
trigger m u st ju stify itself as bein g for the protection o f 'rights o f o thers' - a
term w hich usually exclu d es behav iou r w hich is m erely offensive.
Section 14 does not requ ires the police, w hen d eciding w hether or not to
im pose con ditions, to take the sou rce o f any seriou s threat to pu blic order,
property or the life o f the com m u nity into account. Thu s section 14 does not
inhibit the police in im posin g con ditions on an entirely law ful m eeting w hich
others m ay w ish to disrupt. Yet both com m on law , in the recent cases involving
breach of the p eace101 and the C on vention, p articularly in Platform A rtze fu r das
Leben v A u stria102 are sen sitive to the d anger o f the 'opposition v eto', discussed
above: opponen ts of an assem bly should not, by threatening d isord er, be able
to force the police to take action against the o therw ise reasonable activ ity o f the
organisers or participants. This issue is not m entioned in the statu te but m ay
now be relevan t to the com p atibility o f the section w ith C on vention rights and
on the proportionality o f any particu lar exercise o f the pow er.
There is no statu tory pow er to ban a pu blic assem bly although such a step
is, as an extrem e m easure, possible u n d er the breach o f the peace pow ers
discu ssed above. Section 14A o f the Public O rd er A ct 1986 gives the police
au th ority to seek a b an on a trespassory assem bly. T h is pow er is discussed
below .
17.5.6 Offences involving the disruption of meetings

D isord er at pu blic m eetings it can b e d ealt w ith u n d er the breach of the peace
pow ers or through the im position o f con ditions u n d er section 14 o f the Public
O rd er A ct 1986. The p olice m ay arrest in resp ect o f offences for w hich the
pow er o f arrest exists. T he Public M eeting A ct 1908 m akes it an offence to act,
or incite others to act, in a d isord erly m anner at a 'law ful pu blic m eeting'.
There is no pow er of arrest though the general arrest con ditions un der section
25 o f the Police and C rim in al E vid en ce A ct 1984 apply. T he A ct can apply to
m eetings on the h igh w ay,103 but not to election m eetings although there are
,0' For exam ple, R edm on d-B ate v D P P (2000) 163 JP 789 QBD.
102 (1988) 13 EHRR 204.
103 Burden v R igler (19101 1 KB 337.
Public order and political action 313
equivalent provisions under section 97 of the Representation of the People Act

1983. Disrupters of law ful m eetings held in the open air can, if they are
trespassers, be arrested and prosecuted for 'aggravated trespass'; the offence
is discussed later in the chapter.
17.6 Marches and processions
A procession is not defined by statute but in Flockhart v Robinson104 it w as held

to be a 'body o f persons m oving along a route'. Som e degree of physical
coherence uniting the body of persons is necessary. A loose grouping of
like-m inded persons m oving in the sam e direction will not be a procession
until a sufficient, though hard to define, degree of coherence is obtained.105 As
with m eetings and assem blies, so with m arches and processions: m archers will
be trespassers unless they have the legal right to be on the route they are
m oving along and this m ay require the express or implied perm ission of those
in possession of the land. A procession on the highw ay is, unlike a meeting,
likely to be the exercise of the right of passage and this is an uncontroversial
incident of the public's right of access to the highway. H ow ever the m ere fact
that a person is m oving on the highw ay does not in itself mean that the right
of passage is being exercised and, depending on the circum stances, a body of
persons m oving along a route could, nevertheless, be a use o f the highw ay
going beyond the right of passage.106 Police can regulate m arches and
processions under their general pow ers relating to breach of the peace.
Crim inal offences including public order offences, discussed below , can be
com m itted during m arches as m uch as during m eetings and, as has been
noted, the police will usually have the pow er of arrest for these.
17.6.1 Notice - section 11, Public Order Act 1986

The Public O rder Act 1986 contains provisions related particularly to proces
sions and these involve an increase in and greater specification of the
regulatory pow ers contained in the Public O rder Act 1936 which it replaced.
U nder section 11 there is a provision that was not in the 1936 Act requiring
notice of a non-traditional, political or com m em orative march to be given to
the police by the organisers. Six days' notice should be given unless this is not
reasonably practicable; in that case advance notice still needs to be delivered
as soon as it is reasonably practicable. Organisers of a m arch are guilty of an
offence for failing to give notice as required, though it is a defence for
defendants to prove that they neither knew of nor suspected that the
requirem ent to give notice existed.
Section 11 is a requirem ent of notice to the police; it is em phatically not a
requirem ent that the police give perm ission for marches. Its justification is to
allow time for the police to negotiate on times and routes etc. with organisers
and, if they, the police, think necessary, to im pose conditions or even seek
104 [1950] 2 KB 498.

105 Flockhart v Robinson [1950] 2 KB 498.
106 As in Hickman v M aise 1/ [19001 1 QB 752 CA and H ubbard v Pitt [1976] 1 QB 142 CA.
bann in g ord ers un der pow ers in sections 12 and 13, d iscussed below . O f
course, in effect, that m ay seem v ery like perm ission. A notice provision is
gen erally com p atible w ith the right to freed om o f assem bly un der A rticle 11.
It can help to ensure the peacefu l natu re of a procession and can be
instrum en tal in assisting the p olice to take reasonable positive m easures to
protect m arch ers and others from intim idation and cou nter-d em onstration.107
17.6.2 Conditions - section 12, Public Order Act 1986

Section 12 o f the Public O rd er A ct 1986 auth orises the p olice to im pose
conditions, in ad van ce or at the tim e, on a p olitical or com m em orative
procession. T hese con ditions can inclu de stipu lations as to the route to be
taken. The pow er is triggered on the sam e basis as the pow er to im pose
con ditions on pu blic assem blies: a reasonable b elief by the police that serious
public d isord er, seriou s d am age to property, seriou s d isru ption to the life of
the com m u nity or intim id ation w ill otherw ise result. T he con ditions im posed
are lim ited to those the p olice believ e to be necessary to p rev ent the feared
disord er, d am age, disru ption or intim idation. O ffences are com m itted by the
organisers of and p articipan ts in m arch es w ho kn ow in gly fail to com ply w ith
any con ditions un less their failure to com ply arose from circu m stan ces beyond
their control. T h e issues and the case law relevant to pu blic assem blies applies
w ith equal force to procession s, if only becau se a single political event w ill
often con sist o f both and it m ay not alw ays be clear w hen the one begins and
the other ends. O ther legislation, in particular section 21 o f the T ow n Police
C lauses A ct 1847, w hich applies w id ely throughout the country, gives
ad ditional p ow ers to the p olice to control the route and con du ct of a
procession. Thou gh expressed in general term s, these pow ers can apply to
political m arch es and assem blies w hich are taking place on the highw ay. The
pow ers are ad ditional to those u n d er the Public O rd er A ct 1986 though in
con troversial situ ations the police are likely to feel that the latter A ct gives
m ore specific and m ore recent authority.
In the London area, w here m an y p olitical m eetings and m arches take place,
pow ers are given to the C o m m ission er o f P olice un der section 52 o f the
M etrop olitan Police A ct 1839 and section 22 the C ity o f L ond on Police A ct 1839.
The M etropolitan Police Act 1839, section 52

It shall be lawful for the commissioners of police, from time to time, and as the
occasion shall require, to make regulations for the route to be observed by all carts,
carriages, horses, and persons, and for preventing obstruction of the streets and
thoroughfares within the Metropolitan Police District, in all times of public
processions, public rejoicings, or illuminations, and also to give directions to the
constables for keeping order and for preventing any obstruction of the thoroughfares
in the immediate neighbourhood of H er Majesty's palaces and the public offices, the
High Court of Parliament, the courts of law and equity, the police courts, the
theatres, and other places of public resort, and in any case when the streets or
thoroughfares m ay be thronged or may be liable to be obstructed.
107 R assem blem ent ju rassien an d U nité Ju rassien n e v Sw itzerland A p. 8 1 9 1 /7 8 ; 17 D&R 93. For the
position under the ICCPR, see N ow ak, op. cit., p. 381.
A n offence is com m itted by a person w ho w ilfu lly d isregards such regulations

and d irection s after they have been m ad e kn ow n to him or her. It is triggered
by police anticipation o f the need to prevent or control obstruction of the
high w ay and to keep ord er and so is, for the police, a m u ch easier pow er to
use than section 12 o f the Public O rd er A ct 1986.
Section 52 is used by the police to give effect to a sessional ord er m ad e by
the H ouse o f C om m ons on the day that the P arliam en tary session com m ences:
'the passages through the streets leading to the H ouses o f P arliam ent shall be
kept free and open and no obstruction shall be perm itted to hind er the passage
o f m em bers to and from the H ouses o f P arliam en t and no d isord er shall be
allow ed in W estm in ster H all or any passages leading to the H ouses of
P arliam en t d uring the sitting o f P arliam en t and there shall be no ann oyance
therein or th ereab ou ts'.108 Thu s the p olice can seek to control lobbies of
P arliam en t and protests concerned w ith P arliam en t's activities. In Papw orth v
C oventry109 (1967), a case inv olv ing an ti-V ietnam w ar protest on the corner of
W hitehall and D ow ning Street, it w as held that regulations and directions
m ad e un der the A ct exp ressly to give effect to the sessional ord er w ould be
ultra vires if they sou ght to control areas outsid e the 'im m ed iate neigh bou r
hood o f the H ouses o f P arliam en t' or if they sou ght to au th orise p olice actions
that w ent beyond the prevention o f obstruction or 'd isord er, [or] ann oyance of
the kind itself likely to lead to a breach o f the p eace'. T h e linkage of
'an noyance' to breach o f the peace is im p ortan t since restricting freed om of
speech or assem bly to prevent m ere ann oyance is u n likely to be com patible
w ith C on vention rights. The greater specification o f breach o f the peace,
particularly the focus on the sou rce o f possible violence and the reasonab le
ness o f a d efen d an t's activ ities,110 w ill also be significant in lim iting the w ide
d iscretion p olice enjoy u n d er the A ct.111
17.6.3 Banning marches - section 13, Public Order Act 1986

If, in the reasonable view o f the police, the im position o f con ditions is
insufficient to p rev ent a procession resultin g in seriou s public d isorder, the
police m ay seek a bann in g order. The ord er is m ad e by the local cou ncil, to
w hom the police apply, and the con sent o f the S ecretary o f State is required.
O rg anisers and participan ts in public procession s w hich they know to be
banned are gu ilty of an offence, as are those w ho incite them . U niform ed
police have the p ow er to arrest. The p u nishm ent for those w ho org anise or
incite is a fine or a m axim um o f three m on ths' im p risonm ent or both;
p articipan ts can only be fined.
T h e ban is for a period that does not exceed three m on ths and is lim ited to
a d efinite geographical area. T here is no pow er to ban a single m arch. O nly all
m arch es or a class o f m arch es can be banned. T his requ irem ent is explained
108 The sessional ord er is not 'la v /; its direct im pact is confined to the precincts of Parliam ent. The
law does not require the police to give the ord er effect, though thev do.
109 [19671 1 W LR 663.
110 D iscussed above.
111 For exam ples of the enforcem ent of sessional orders against political groups and for police
attitudes thereto see W addington, P.A.J. (1994) l.iberty an d O rder. London: U C L Press, p. 64.
by the need for the police to be able to dem onstrate political im partiality
which, it is feared, m ight be com prom ised if they could request bans in respect
of particular marches.
The local authority, not the police, im poses the ban (in London, the M ayor).
The local authority is unlikely to substitute its own view s for that of the police,
though an authority which fettered its discretion by autom atically accepting
applications from chief officers would be acting unlaw fully. Conversely, local
authorities have no right to require chief constables to seek bans against their,
the chief constables', contrary judgm ents and this, in the past, has been a
source of tension. The exercise of the banning pow er requires a careful
balancing of com peting interests and rights. The involvem ent of the unelected
chief constable (deciding w hether there is a risk to order), the elected
councillors (deciding that the risk justifies a ban in the local circum stances) and
the H om e Secretary, responsible to Parliam ent, w ho confirm s and m ay m odify
the ban, is, perhaps, the proper balance of decision-taking forces.
The banning pow er is harder to trigger than the pow er to im pose conditions.
It is confined to a reasonable belief by the police that the im position of
conditions is insufficient to prevent serious public disorder. Failure to prevent
serious or long-term disruption to the com m unity will not in itself justify a
ban. The w ish, for exam ple, by an ethnic m inority com m unity to be spared
an offensive m arch by racists does not of itself give the police pow er to seek
a ban.
A ban is challengeable by w ay of judicial review, although its law fulness
could also be raised as a defence to crim inal proceedings. In Kent v
M etropolitan Police Com m issioner (1981)112 ordinary adm inistrative law prin
ciples w ere applied which m eant that the Com m issioner had to m eet a low
threshold of legality: the ban would be lawful so long as he took relevant
m atters into account. Since that case, em phatically since the H um an Rights Act
1998 was brought into effect, the courts subject the reasons of officials to a
closer, m ore dem anding scrutiny when hum an rights, such as free speech and
freedom of assem bly, are in issue. Schedule 1, A rticle 11 will be directly in
issue and any ban m ust be in accordance w ith A rticle 11(2). In Christians
against Racism and Fascism v United Kingdom (1978)m the H um an Rights
Com m ission found that a ban im posed over the w hole of the London area in
respect of a N ational Front m arch in a district of London was com patible with
Article 11. In all the circum stances, the ban was reasonable and proportionate.
The principal issue is the need, under the Act, to ban all m arches, or m arches
of a class, not ju st the m arch in respect of w hich there is the fear of disorder.
It is doubtful, how ever, if a general ban on all m arches can be com patible with
the Convention if it is imposed m erely for the sake of the appearance of police
im partiality rather than being justified by a real danger to order. It has been
suggested that the pow er should be recast to be confined to m arches concerned
w ith the sam e political issue114 (e.g. fear o f violence in respect of a loyalist
m arch relating to N orthern Ireland w ould also, w ithin the three-m onth period,
1,2 (1981) The Times, 13 May.

Ap. 8 4 4 0 /7 8 ; 21 D&R 138.
114 See Fenwick, H. (1998) Civil l.iberties. London: Cavendish, p. 296.
requ ire the bann in g of a repu blican m arch, even if peaceful, but not o f a m arch
opposin g w ar in the M id d le East).
The bann in g pow er is a dracon ian restriction on political freed om and is
usually controversial. It w as w idely used b efore, d uring and after the Second
W orld W ar,115 and again in early 1980s.116 Sin ce the later 1990s the pow er has
been rarely used although there m ay be signs o f a revival in the context o f the
'w ar against terrorism '. T he d ecline in the use o f the bann in g p o w er results
partly from a red uction in v iolent political protest but also from the police
sen se that the legal criteria for a ban are difficult to establish, p articularly given
the need, u n d er the H um an R ights A ct 1998 to m eet the criteria in A rticle 11(2),
that bans m ay be ineffective and difficult to enforce, that seek in g a b an m ay
cause m ore trouble, in term s of the politics o f policing, than it is w orth and
that the pu blic ord er objectives can be best fulfilled b y negotiation w ith
d em onstrators and the im position of con d itio n s.117
17.7 Demonstrations
A political d em onstration , as un derstood here, involves som ething m ore than

a m arch or assem bly; it involves actions taken to coerce or prevent others
doing w hat they are law fully entitled to do. U sing C on vention langu age, a
d em onstration aim s to u n derm ine the rights o f others in respect o f the
activities to w hich the d em onstrators object. It is a form o f civil d isobedience
in w hich law s are broken in ord er to pu rsu e a cause w hich, at least in the
view s o f the d em onstrators, is o f such fundam ental im portan ce that the
con stitutional processes o f law , gov ernm ent and opposition m u st be ov errid
den. Som e o f the m ost im portan t gains for d em ocracy, v otes for w om en for
exam ple, have been obtained partly at least through coercive pressu re o f this
kind. The rights o f the unborn, the p rotection o f the en vironm en t, anim al
w elfare and the cause o f peace and d isarm am ent are current exam ples of
causes in respect o f w hich d em onstration , in this sense, is undertaken. In the
early years o f the tw enty-first century, the price o f petrol and the freedom s of
cou ntry dw ellers are causes for w hich som e people feel they are entitled to
dem onstrate. Liberal political theory seeks to m ake a principled d istinction
betw een causes that deal w ith fun dam ental m atters w hich are outsid e the
prop er rem it o f any legislature to ignore (the basic right to vote or to equality
before the law , for exam ple) and other causes w hich sim ply reflect the norm al
clash of interests in a country. D em on stration and civil d isobedience m ay be
ju stifiable in respect o f the form er, less so in respect o f the latter. W hether such
a principled approach will satisfy anyone w ho has not alread y accepted the
liberal con stitutional agenda m u st be d o u b ted .118
1,5 Parliam entary W ritten A n sw er 10.3.78, cited Christians again st R acism an d Fascism v UK Ap.
8 4 4 0 /7 8 ; 21 D&R 138.
R eport o f HM C h ief In spector o f C on stabulary fo r 1981 (1981-8 2 ) H C 463, paragrap h 8.6.
" 7 W addington, op. cit., p. 59.
1,8 See in particular Rawls, J. (1972) A T heory o f Justice. O xford: O xford University Press, ch apter
VI, sections 5 5 -9 ; D workin, R. (1986) A M atter o f Principle. O xford: Clarendon Press, ch apter 4.
17.7.1 General powers

D em onstrations, as defined above, are likely to involve m eetings and m arches
and so the law discussed above, both com m on law , such as breach of the
peace, and statute, such as police pow ers under the Public Order Act 1986, will
be relevant. O ther pow ers, of particular significance in respect of dem onstra
tions, also exist.
17.7.2 Civil remedies for occupiers

The courts are willing to issue injunctions to protect those in possession of land
from serious continuing trespass. These can have a significant deterrent effect
on dem onstrators' w illingness to m aintain a protest. Injunctions m ay also be
issued w here there is interference, by unlaw ful m eans, with the carrying on of
business or w orks on land, w here there is 'w atching and besetting' or w here
there has been a private nuisance. Such injunctions are available in a political
context such as against anti-road dem onstrators who try to prevent construc
tion w ork continuing.119 Civil injunctions are generally not directly enforceable
by the police. As discussed above, the police have duties to prevent actual or
reasonably apprehended breaches of the peace and this duty m ay authorise
them to act in support of the landow ner.120 The creation of the offence of
'aggravated trespass' by the Crim inal Justice and Public O rder A ct 1994
(discussed below ), w hich includes a pow er of arrest, m ay m ake such
injunctions unnecessary.
A landow ner m ay be able to obtain an interlocutory or tem porary injunction.
This is a holding m easure w hich w ill require the ending of a protest until the
courts are able to m ake a final judgm ent. In practice it will bring a protest to
an end. A central question for the courts is not w here the rights of the m atter
lie (that is for the full injunction) but w hat the balance of convenience is:121
w ho stands to lose most if, at the holding stage, they are prevented from doing
that w hich, at the final stage, it is determ ined they have a right to do. If the
claim ant's business is losing significant profit as a consequence of a dem on
stration and the dem onstrators are sim ply losing an opportunity w hich in
theory, if not in practice, can be revived, the balance of convenience is likely
to lie w ith the claim ant. This was the approach of the m ajority in H ubbard v
Pitt (1976)122 w hen an estate agent obtained a tem porary injunction against the
organisers of a street picket who w ere objecting to the estate agent's policies
of selling properties for redevelopm ent.
In Hubbard v Pitt (1976) Lord Denning, in a much quoted dissent, argued
that the issue of rem edies in such a situation should give proper w eight to
fundam ental political rights such as to freedom of expression and assem bly.123
This position is now strengthened by the general requirem ents of the H um an
119 Department o f Transport and others v Williams (1993) TLR 627.

120 See R v C hief Constable o f the Devon and Cornwall Constabulary ex parte CEGB 119811 3 All ER 826.
121 A merican Cyanam id Co. v Ethicon [1975] AC 396 HL; [1975] 1 All ER 504 HL.
122 [1976] 1 QB 142 CA.
123 See also Verrait v Great Yarmouth [19811 1 QB 202, above.
Rights A ct 1998 and, in so far as freed om o f expression is in issue, section 12.124

O f cou rse Sch ed u le 1, A rticle 11 w ill only be in issue if the assem bly is
'p eacefu l' as understood in C on vention ju risp ru d en ce125 and w hile som e
degree o f obstruction o f the high w ay is acceptable, a full-scale in terference
w ith the law ful activities o f others m ay go o utsid e the protection o f the A rticle.
In The O bserver and the G uardian v U nited K ingdom 126 the C ou rt of H um an
R ights accepted the b alan ce o f con ven ience test for a tem porary injun ction
even w here fundam ental rights w ere at stake.127 N everth eless, as regards a
peaceful dem onstration , the d em onstrato rs' rights to assem bly should now be
given greater w eight in assessing the balance o f con v en ience and, if free
speech is in issue, section 12 o f the H u m an Rights A ct 1998 requ ires the likely
ou tcom e of the full trial to be assessed.
17.7.3 Harassment
T he P rotection from H arassm en t A ct 1997 creates both a civil rem ed y and
crim inal offences in respect o f 'h arassm ent'. H arassm en t is not defined in the
A ct but inv olv es a cou rse o f condu ct, not ju st a single occurrence. T h e m ore
seriou s of the crim inal offences involves m aking the victim fear the u se of
violence. T h e A ct is prim arily d esigned for use against stalkers, bad n eigh
bours or racial abusers. It has been held, in the con text o f a cam paign against
an anim al experim en t com pany, that the A ct should not be used against those
exercising the right to protest and w ho m ake this the basis o f the d efen ce of
'reasonableness' un der section 1(3).128 T here is, o f course, no fun dam ental right
to non-p eacefu l assem bly and w here harassm ent is establish ed then the fact
that it is also a form o f political protest is not sufficient to establish the
d efen ce.129 M enacin g phone calls and letters, and the abuse o f custom ers, for
exam ple, o f furriers, can lead to inju n ctions if not crim inal p enalties u n d er the
A ct.130
17.7.4 Disruption offences

A s noted above, the p olice have legal au th ority to enter private land to deal
w ith an occurring or a reasonably anticipated breach o f the peace. In so doing
they have appeared , in effect, to be acting for a land ow ner in pursuit o f a civil
injunction. P olice au th ority in this area has b een clarified by section 68 o f the
C rim in al Ju stice and P ublic O rd er A ct 1994 w hich created the offence of
'aggravated tresp ass',131 an offence w hich applies in relation to w ide-scale,
d isru ptive, trespassory protests in the open air such as those by hu nt saboteurs
o r anti-road build ing cam paigners.
124 See C hapter 11.

125 See above.
126 (,9 9 2 ) 1 4 EHRR 153.
127 (1992) 14 EHRR 153, paragrap h 63.
128 H untingdon L ife Sciences v Curtin (1997) T he Tim es, 11 Decem ber.
129 D PP v M oseley (Joanna) (1999) T he Tim es, 3 June.
130 See The In depen dent, 23 O ctober 2001.
131 C ard , R. and W ard, R. (1994) The C rim inal Justice an d Public O rder A ct 1994. Bristol: Jordan
Publishing.
Section 68 Offence of aggravated trespass

(1) A person commits the offence of aggravated trespass if he trespasses on land in
the open air and, in relation to any lawful activity which persons are engaging
in or are about to engage in on that or adjoining land in the open air, does there
anything which is intended by him to have the effect -
(a) of intimidating those persons or any of them so as to deter them or any of
them from engaging in that activity,
(b) of obstructing that activity, or
(c) of disrupting that activity.
A ggravated trespass cannot b e com m itted by activ ity taking p lace on a

highw ay.132 T here is a pow er of arrest by a con stable in uniform ; it is a
sum m ary offence for w hich a person can be sentenced for up to three m onths
in prison or a fine, or both.
The m ain com ponents o f aggravated trespass have been sum m arised in
W inder and others v D P P 133 w here it w as su ccessfu lly used against hunt
saboteu rs. T he d efendant m u st have b een a trespasser, as defined by ord in ary
law , on o pen-air land at the tim e the offence w as alleged. T h e d efen dan t m ust
have done a distinct and overt act w hich w as intend ed to d eter the law ful acts
o f others through in tim idation, or to disru pt or to obstruct; unintended
d isru ption is not an offence.134 M erely trespassing - stand ing around, for
exam ple - is not enough. There m u st be evid ence o f ad ditional activities
intended to d eter law ful activity, etc.135 O bserving the activities o f others, such
as hu ntsm en, does not n ecessarily d eter the hu ntsm en and so m ay not
establish the offen ce.136 T h e person intim idated , d isrupted or obstructed m ust
be engaging in an activity that they can law fully do on the land, so d isrupting
unlaw fu l acts, like the d igging for bad gers or o f a hunt w hich is itself
trespassing, is not w ithin the offence.137 U nd er section 69 o f the C rim inal
Ju stice and P ublic O rd er A ct 1994 police have a linked pow er to d irect those
they believe, on reasonable ground s, to b e com m ittin g or intend in g to com m it
aggravated trespass to leave the land. Failure to leave is an offence.138
Th e intention to intim id ate or d isru pt m ay m ean that an assem bly is not
'p eacefu l' and so A rticle 11 will not be engaged. H ow ever, protests involving
lim ited ob struction could both be caugh t by the C rim in al Ju stice and Public
O rd er A ct 1994 and need to be m easured against A rticle l l . 139 P rotecting the
rights of others, such as the occup iers o f land and con tractors, is a legitim ate
pu rpose under A rticle 11(2) bu t any restriction w ill need to be proportionate
and this w ill not n ecessarily be established b y the sim ple fact that the
d efen dan ts have been o r w ill be trespassers.
132 Section 68(5)(a), Crim inal Justice and Public O rder A ct 1994.
133 (1966) 160 JPR 713; followed in DPP v Barnard an d others [2000] Crim LR 371.
134 Thus trespassing huntsm en w hose presence m ay be highly intim idating or disruptive are
unlikely to have com m itted the offence: C ard and W ard, op. cit., pp. 5 3 -4 .
135 D P P v Barnard an d others [2000] C rim LR 371 w here the evidence only disclosed trespass but
not a further overt act of occupation of an open-cast m ining site.
136 Capon v D P P [1988] C rim LR 870.
137 C ard and W ard, op. cit., p. 52.
138 Capon v D P P [1998] C rim LR 870.
139 A s in M C v G erm any (1989) Ap. 1 3 0 7 9 /8 7 , discussed above, though the 'coercion' here took
place on a road.
17.7.5 Trespassory assem blies

The C rim in al Ju stice and Public O rd er A ct 1994 introd uces section s 14A -C
in to the Public O rd er A ct 1986. T h ese give the police p ow er to seek a ban of
certain trespassory assem blies. T h is p ow er relates to the p o lice's ability to
intervene, albeit u n in ten tion ally, on b eh alf o f private land ow ners and con
tractors. (The pow er also need s to be consid ered in the light o f general pow ers
ov er m arch es and m eetings, d iscu ssed above.) U nd er these provisions the
police m ay seek an ord er from the local au th o rity to ban any trespassory
assem bly. The pow er to seek a ban is triggered by a b elief that 'seriou s
d isru ption to the life o f the com m u nity' m ay result from the m eeting or that a
historical m on um en t m ay be significantly dam aged. A trespassory assem bly is
an assem bly, in the open air, o f 20 or m ore p erso n s140 held on land w ithout the
perm ission o f the occu p ier o f the land or held on land to w hich the pu blic have
a righ t of access (like a highw ay) bu t in a m an ner that exceeds the lim its of
that right. T h e local authority, acting w ith the con sent o f the Secretary o f State,
m ay then m ake an ord er bann in g all such trespassory assem blies (not ju st the
m eeting that caused the original concern) for a period of up to fou r d ays and
w ithin a five-m ile rad ius of a specified place. It in an offence kn ow in gly to take
part, organise or incite others to take part. A police con stable in u n iform has
a pow er o f arrest. The ban can only relate to assem blies involving trespass and,
as w e have seen, this m ay not necessarily apply to a non-obstru ctive assem bly
taking place on the high w ay.141 It can include, how ever, m u ch land regulated
by byelaw s if the h olding o f a m eeting w ould transgress those byelaw s.
C om patability o f such bans w ith Sch ed u le 1, A rticle 11 raises a nu m ber of
issues. It is triggered by the chief con stab le's reasonable b elief that 'seriou s
d isru ption to the life o f the com m u nity' m ay result if the m eeting goes ahead.
A s d iscu ssed above, this m ay not be a precise enough term to enable people
to kn ow w hat beh av iou r is or is not proh ibited to m eet the 'prescribed by law '
test in A rticle 11(2). It m ay authorise w ider restrictions than those aim ed at
preventing violence or d am age to property and this m ay be o utsid e the range
o f pu rposes for w hich the non-trespassory right to assem bly can be restricted
u n d er the 1986 A ct T h e ban extend s to all trespassory assem blies, even
peaceful ones. A ny particu lar o rd er m u st m eet the proportionality test
inheren t in A rticle 11(2). T h e C om m ission o f H um an R ights has accepted that
an order, m ade becau se o f previous d am age to Stonehenge by N ew A ge
travellers, w hich prevented the holding o f peaceful D ru id ic cerem onies near
to the m on um en t d uring the sum m er solstice w as p roportionate.142
D em on strators w ho enter prem ises as trespassers m ay com m it an arrestable
offence un der section 6 the C rim in al Law A ct 1977. T he offence is to threaten
v iolence w ithout law ful au th ority for the pu rpose o f secu rin g entry into any
prem ises w ere there is 'so m eo n e present on those p rem ises at the tim e w ho is
opposed to the entry w hich the violence is intended to secure, and the person
u sing or threatening the violence know s that that is the case'. Prem ises is
d efined in relation to buildings and land related to buildings and is not
140 Section 14A (9), Public O rder A ct 1986.

141 Jones v D PP 11999] 2 All ER 257 H L, discussed below.
142 A rthu r U. Pendragon v U nited Kingdom Ap. 3 1 4 1 6 /9 5 ; application inadmissible.
confined to op en-air land. The violence can be d irected against the person or
against p rop erty and need not be to acquire possession. D am age to against
property and, perhaps, even m inim al violence against the person can still be
w ithin the concept of 'p eacefu l' assem bly. If so, A rticle 11 E C H R is engaged
and though section 6 is a prescription of the law and pu rsues a legitim ate
pu rpose, any p articular restriction on assem bly im posed u n d er it w ill need to
be proportionate.
M ore p roblem atic in resp ect o f A rticle 11 EC H R is the offence un der section
9 o f the C rim in al Law A ct 1977 o f trespassing on prem ises o f a foreign m ission.
This is an offence that d em onstrators protestin g against the policy o f a foreign
governm ent m ay com m it. The offence is com m itted by m erely entering as a
trespasser prem ises w hich are w ithin the d efinition o f a d iplom atic m ission
found in the V ienna C on vention on D iplom atic R elatio n s.143 Such an action can
clearly be 'p eacefu l' and so any prosecu tion, w hich can only be brou ght w ith
the con sent o f the A ttorney G en eral, w ill need to be fo r a legitim ate purpose
and proportionate.
U nd er the C rim in al Ju stice and Public O rd er A ct 1994, the p olice have a
ran ge o f other pow ers to deal w ith trespassing groups or groups creatin g a
nu isance on open land. Sections 6 1 -2 and 67 provide a pow er to rem ove
trespassers w ho are intend in g to resid e on the land and sections 6 3 -7 give a
pow er to rem ove persons w ho are preparin g for, aw aitin g or attend in g certain
'rav es'.
17.7.6 Damage to property

Protestors w ho d am age property in ord er to m ake a political point m ay
com m it crim inal d am age in breach o f the C rim in al D am age A ct 1971. Section
5 p rovides a d efen ce for a d efen dan t w ith an honest b elief that the property
w as in need o f im m ed iate protection and that the m ean s o f protection adopted
w ere reasonable in the circu m stances. R easonablen ess has been an attem pted
d efen ce in a nu m ber o f p olitical cases inv olv ing peace protestors. H ow ever,
although the A ct states that the reasonablen ess o f the d efen d an t's honest belief
should not be in issue, the courts have put barriers in the w ay of the defence.
In cases involving peace protesters w ho intended to cut the p erim eter w ire of
m ilitary bases, a jury w as instructed to convict in one c a se 144 and prevented
from con sid erin g the d efence in an oth er.I4;> T here is, nevertheless, som e
ev id ence that pu tting the reasonablen ess o f the d efen d an t's action to a jury
m ay still lead to acquittal or at least to com m ent by the jury. A ju ry accepted
143 C m 2565.
144 R v H ill; R v H all [1989] Crim LR 136, and critical com m ent by J.C. Smith at 1 3 8 -9 . See also
H ipperson v D P P (unreported), 3 July 1996 (breaking into A W E A lderm aston w ith the honest
but m istaken intention of helping to prevent offences under the G enocide Act 1969). The claim
by a v icar that he acted on G od's authority, w ho owned all property, w hen he w rote a biblical
quotation on a concrete pillar outside Parliam ent w as rejected as being incapable of m eeting
the s. 5 defence in Blake v D PP (19931 C rim LR 586, w ith less sym pathetic com m ents by J.C.
Smith.
,4? R v A shford an d Sm ith [1988] C rim LR 682, critical com m ent by J.C. Smith at 6 8 3 -4 . See Ewing,
K. and G earty, C. (1990) Freedom under Thatcher. London: Fontana, pp. 1 00-3. The defendants
were convicted of possession of an article but acquitted of attem pting to dam age the wire.
a p olitical or m oral ju stification and acquitted d efen dan ts w ho had d am aged

a jet fighter to p revent its possible use by the Indon esian go v ernm ent in E ast
T im or,146 and a jury held that a protester w ho had painted anti-nu clear graffiti
at W estm inster, thou gh convicted, had reasonable cause for her beh av iou r.147
Ju ries have also been prepared to acquit environm en tal cam paign ers accused
o f both crim inal d am age and theft after d am aging gen etically m odified crops
in ord er to subvert experim ental p lan tin gs.148
17.7.7 'Watching and besetting, etc.'

U nd er section 241 of the Trad e U nion and L abou r R elations (C onsolid ation)
A ct 1992149 offences are com m itted w hen a person does one o f a ran ge of
activities 'w ith a view to com p elling ' another person not to do or to do an act
w hich the person com pelled has a legal right to do o r not to do. The forbidd en
activities include: using violence, intim idating, p ersistently follow ing, hiding
or d ep riving persons o f their property, hind ering, w atching or besetting and
follow ing. T hese offences are not confined to activities com m itted in the
con text o f strikes or other form s o f ind ustrial actio n 150 and have been used , for
exam ple, against an anti-road s p rotester w ho chained him self to a crane thus
hind ering the d river in his w o rk 1’ 1 and (unsu ccessfully) against anti-abortion -
ists picketing an abortion clinic.152 T here m u st b e ev id ence that the activity, the
w atching and besetting etc., m u st have been done to com pel, not m erely to
persuade, another from acting in a w ay they are legally entitled to d o .153 These
are arrestable offences.
17.7.8 Remedies
B inding over
An alternative to arrest in o rd er to p rosecu te for an offence is that d em o n stra
tors m ay be arrested and brou ght befo re m agistrates to be bound over to keep
the peace or be o f good behav iou r for a period o f tim e. The person m ust
consent to b ein g bound over and m ay (though need not) be secured by a sum
o f m on ey paid into court w hich is forfeit if the o rd er is breached. A person
w ho refu ses to con sent to a bind in g over ord er can be im prisoned as can a
person w ho fails to com p ly w ith the term s o f the order. A s m entioned above,
a person w ho is arrested or detained b y police for breach o f the peace w ill
often be then bro u gh t before a m agistrate to b e bound over. T he pow er is
found in the M agistrates' C ou rts A ct 1980, section 115. M agistrates have an
l4h See The Tim es, 31 July 1996, 1. For a controversial Scottish case, w hich w as overturned on
appeal, see H M A dvocate v Zelter (unreported) 21 O ctober 1999.
147 Helen John's case, see C arter, H. (1999) 'A Jury Backs G ranny's A nti-nuclear Graffitti', The
G uardian, 18 Decem ber, p. 11.
l4s Stallw orthy, M. (2000) 'D am age to C rops - Part 1 and Part 2, Neiv Law jou rn al, 19 M ay, pp.
72 8 -9 , 26 M ay, 8 0 1 -2 .
I4” This provision w as form erly section 7 of the C onspiracy and Protection of Property Act 1875.
iso Q p p v jd rfd ( 1 9 9 5 ) T he Independent, 5 M ay.
151 p p p v (1 9 9 5 ) Independent, 5 May.
152 DPP v F idler [1992] 1 W LR 91.
153 D p p v Fidler [1992] 1 W LR 91.
ad dition al pow er un der the Ju stice o f the Peace A ct 1361 and also, it is
believed, un der com m on law p ow ers from tim e im m em orial to bind over for
the sam e pu rposes any person w ho is before them . T he pow er has been
frequ en tly used in the con text o f p olitical dem onstration s such as anti-hu nt or
anti-arm s trade dem onstrations.
A s w e have seen, clarifications in the law relating to breach o f the peace
enabled the C ou rt o f H um an Rights to find that the general p rinciple of
bind in g over to keep the peace w as com patible w ith C on vention rights. In a
hunt saboteu r case, H ashm an and H arrup v U nited Kingdom (1999),154 the C ou rt
o f H um an R ights held that b ind in g o v er for good behaviou r (as d istin ct from
prev enting a breach o f the peace) w as incom patible w ith A rticle 10. 'G ood
behav iou r' w as not certain enough, too m uch w ithin the d iscretion of
m agistrates, for a person to be able to foresee w hat b ehav iou r w as or w as not
going to be acceptable to the authorities. T h e 'prescribed by law ' test w as
failed. Such orders should not now be m ade. It is w orth noting that the
'prescribed by law ' requ irem ent, in this context, is not enorm ously dem anding.
In C horherr v A ustria (1993)155 an arrest in A ustria o f an anti-arm s trade
d em onstrator for a breach of the peace 'likely to cause ann oy ance' w as held to
be w ell defined and coherent.
Bail conditions
People arrested and charged enjoy, u n d er both the Bail A ct 1976 and A rticle 6
o f the C onvention, a presum ption that they should be bailed. In granting bail,
m agistrates m ay im pose conditions. Political d em onstrators, accu sed o f public
ord er offences, m ay be prevented from con tin uing w ith the protest w hile on
bail w here there is a real risk that, by rejoining the protest, they w ill com m it
further offences. Bail con d itions can seem like a p u nishm ent w ithout con vic
tion. D issatisfaction is all the greater since the im position o f con ditions in the
first place and d ecisions on w hether to rem and a d efen dan t for breach of a
condition can be d one by m agistrates on the basis o f their general u n d erstand
ing o f the situ ation rather than on the basis o f specific, cross-exam inable
ev id ence against the ind iv id u als concerned. This can lead to a sen se of
griev ance and a feeling o f gu ilt by asso ciatio n .156
17.8 Public order offences
17.8.1 Harassment, alarm or distress

The Public O rd er A ct 1986 replaced the pu blic o rd er offences in the Public
O rd er A ct 1936 and in d oing so extended the reach o f the crim inal law. In
particular section 5 created offences in relation to behav iou r w hich previously
had not been crim inal.
154 Ap. 2 5 5 9 4 /9 4 .
155 Ap. 1 3 3 0 8 /8 7 , A 266-B ; (1993) 17 EH RR 358.
156 See, in the context of the m iners' strike R v M ansfield ju stices ex parte Starkey [1985] 1 QB 613;
on the decision to rem and in a non-political case, see R (D PP) v H avering M agistrates C ourt
[2001] 3 All ER 997.
5. Harassment, alarm or distress

(1) A person is guilty of an offence if he -
(a) uses threatening, abusive or insulting words or behaviour, or disorderly
behaviour, or
(b) displays any writing, sign or other visible representation which is threaten
ing, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or
distress.
Police have a p o w er o f arrest w ithout a w arrant b u t only after a w arning has

been given and ig n o red .157 P ersons convicted can be punished by a fine.
The declared aim o f the section w as to deal w ith hooligan activity but it has
been used, not alw ays successfu lly, against political d em onstrators. Persons
w ho, for exam ple, p icket abortion clinics, shout at those entering, display
plastic foetuses and pictures of dead fo etu ses158 or w ho p revent people
entering abortion clin ics15'1 can be com m ittin g the offence as can those w ho try
to p rev ent road bu ild ers d oing their w ork b y in terfering w ith the w ork of
surveyors and o th ers.160
This is not a single offence bu t a range o f d ifferent offences sin ce the term s
used are to be read d isju n ctiv ely .161 It is necessary to prove both condu ct
(insu lting etc.) and effect (likelihood that a person be caused harassm ent,
alarm or d istress).
O f great im portan ce is that an offence can b e com m itted w ithou t the u se or
threat o f violence and w ithout a person b ein g coerced in any w ay or put in
fear for their ow n personal safety. T he d isp lay o f an insu ltin g sig n w hich, in
the opinion of a court, is likely to cause a person d istress can be an offence
under the section.
W hether b ehav iou r is threatening, abusive, insulting o r d isord erly is to be
determ ined by giving these w ords their ord in ary m eaning and cou rts should
not red raft, as it w ere, the statu te by seekin g synonym s. T h is w as the view of
the H ouse of L ords in Brutus v C ozens (1973)162 w hen they upheld the acquittal
o f anti-apartheid d em onstrators w ho had interrupted a tennis m atch at
W im bledon. H ow ever, the case is also auth ority for the view that certain
behav iou r is not cap able o f being insulting. Thus affronting people or show ing
con tem p t or d isresp ect for them or ann oying them , or bein g m erely ru de and
offensive, are different from bein g insultin g and not w ithin the am bit o f the
offence.163 L ikew ise beh av iou r w hich is ann oying to others is not, thereby,
in su ltin g.164 In V igon v D P P 165 the secret film ing o f custom ers trying on
157 The arresting constable need not be the constable w ho g ave the w arning (Public O rder
(A m endm ent) A ct 1996); the conduct w hich occu rs after the w arning m ust am ount, at least, to
an offence under section 5 but need not be the sam e cond uct as triggered the w arning: s. 5(4),
Public O rder A ct 1986.
,5S DPP v Fidler (1992) 1 W LR 91.
159 M orrow , C each an d Thom as v D PP an d others 11994] C rim LR 58.
16,1 C ham bers an d Edivards v D PP [1995] C rim LR 896 (QBD).
161 C ham bers an d Edw ards v D P P [19951 C rim LR 896 (QBD).
1<’- [1973] AC 854 HL.
163 A m brose (1973) 57 C r A p Rep.
164 Bryan v Robinson 11960] 2 All ER 173 DC.
165 (1988) 162 JP 115.
sw im w ear w as said to be insulting, in the ord in ary sen se o f the w ord , becau se
it w as an affront to d ignity and m odesty.
U nd er section 6(4) o f the A ct a person cannot be gu ilty o f an offence under
section 5 unless he or she intend s or is aw are that his w ord s etc. are
threatening etc. In D PP v C larke166 (1991), w here anti-abortion dem onstrators
had protested o utsid e a clinic by carrying photographs o f aborted foetuses, it
w as held that the test for intention o r aw aren ess of the character o f the
d efen d an t's w ords or actions w as subjective and the required intention or
aw aren ess could not be attributed to the d efen dan ts m erely becau se their
action could cause alarm or distress. Section 5(3) provides a d efen ce that the
d efen d an t had no reason to believe that any person w ithin hearing o r sight
w as likely to b e caused harassm ent, alarm or distress. If a person does act w ith
the intention of causing harassm ent, alarm and d istress, they m ay be gu ilty of
m ore serious offences under section 4 A o f the Public O rd er A ct 1986 w hich
w as inserted by the C rim in al Ju stice and P ublic O rd er A ct 1994. T he offence
w as introd uced to com bat racist activity bu t is couched in general term s and
can, in principle, be used against any political activ ist aim ing to inhibit a
law ful activ ity (such as anim al testing, for exam ple) by harassing, alarm ing or
d istressing those involved).
U nd er section 5(3)(c) it is a defence to a p rosecu tion un der section 5(1) that
the d efen d an t's con du ct w as reasonable. T he test is objective: that in the
circu m stan ces the con du ct w as, in the view o f the court, reasonable.167
Anti-abortion demonstrators protested outside a clinic. They shouted slogans, waived

banners and prevented staff and patients from entering the clinic. Some patients
became distressed. On being prosecuted under section 5, M, G and T defended
themselves on the grounds that their conduct was reasonable and also they had done
no more than use reasonable force In the prevention of crime as permitted by section
3 of the Criminal Law Act 1967. The allegation underlying their defence was an honest
belief that unlawful abortions were being performed in the clinic.
HELD: the reasonableness of a defendant’s actions should be assessed on the
basis of the circumstances as the defendant honestly believed them to be. Here,
regarding section 5(3)(c) of the Public Order Act 1986, the defendant’s behaviour
could not be thought as a reasonable reaction to the facts as they understood them;
nor, regarding section 3 of the Criminal Law Act 1967, could they be reasonably
preventing the commission of any crimes that they honestly believed were being
committed since their actions were Incapable of distinguishing between lawful and
unlawful abortions.
Morrow, Geach and Thomas v DPP and others [1994] Crim LR 58
The reasonablen ess o f political protest m ay be established in so far as persons

are exercising their rights to freed om o f speech, assem bly and association.
H ow ever, action w hich seriou sly interferes w ith the rights o f others has little
if any support in C on vention rights.
(1991) 94 C r A pp R 359.
167 The objective test w as approved in DPP v C larke (1991) 94 C r A pp R 359.
17.8.2 Fear or provocation of violence

Section 4 o f the Public O rd er A ct 1986 creates an offence o f fear or provocation
o f violence. T his is w here behav iou r w hich is threatening, ab u sive o r insulting
is intended to cause another to b elieve that violence is likely or intended to
provoke another to violence. T erm s such as 'in su ltin g' have the sam e m eaning
as u n d er section 5. A person convicted of such an offence can be punished by
im prisonm ent o f not m ore than six m on ths or a fine or both. A p olice officer
in uniform can arrest a person suspected o f com m ittin g the offence.
U nlike the section 5 offence, there m ust be a link established betw een
threatening etc. beh av iou r and a fear of violence. There m u st be an intention
to cause another, by w ord s or actions, to believ e im m ed iate violence is likely,
or an intention to p rov oke ano ther to im m ed iate v io len ce.168 The link w ith the
likelihood of or p rovoking o f im m ed iate violence m eans that, from a civil
liberties and hum an rights p erspective, this offence is less p roblem atic than
section 5. There is no hum an righ t to non-p eaceful assem bly and rights o f free
expression can be properly restricted to protect the rights o f others from
violence. In R v H orseferry R oad M agistrates C ourt ex parte S iadatan 169 an attem pt
w as m ad e to invoke the offence against the pu blishers of The Satanic V erses by
Salm an Rushdie. T he allegation w as that the w ork w as abusive and insulting
w riting w hereby it w as likely that unlaw fu l violence w ould be provoked. The
cou rt held that, at m ost, any violence w ould be provoked a con sid erable tim e
after the d istribution by the pu blish er o f the w riting. The violence need not be
an instan taneou s response to the p rovoking act but the term 'im m ed iate' in the
section requ ired a restricted tim e p erio d .170
Section 4 inclu des the p rovocation o f violence in the offence. T h e cases on
provocation in the con text o f breach o f the peace, discussed above, im ply that
the reasonablen ess o f the alleged p rov oker's actions and the un reason ableness
o f the persons provoked should be taken into account. T his w ould perm it
proper w eight to be given to the exercise by the alleged provoker o f the right
o f freed om of expression.
17.8.3 Offences of violence

The Public O rd er A ct 1986 also inclu des offences d ealing w ith the threat or use
o f violence. Section 1 defines 'rio t', an offence w hich involves the u se or threat
o f violence by 12 persons or m ore acting for a com m on pu rpose and the use
or threat o f violence is to such a d egree that a 'person o f reasonable firm ness
present at the scene' w ould be caused 'to fear for his personal safety '. Section
2 defines 'violent d isord er' w here three or m ore persons, not necessarily w ith
a com m on purpose, threaten or use violence to the sam e degree. Section 3
defines 'affray ', the least seriou s o f these offences, w hich can be com m itted by
one person threatening or using violence to the sam e degree.
These offences create m any p roblem s in crim inal law but few er in the
con text o f hum an rights and civil liberties. T he threat or use o f violence to the
,w Winn v D P P (1992) 142 NLJ 527.

m [1990] 3 W LR 1006, DC.
170 See also Valen tin e v D P O P [1997] COD 339.
degree that som eone reasonably fears for their safety is u n likely to be
ju stifiable in hu m an rights term s. T hese are seriou s offences and their use,
particularly riot, in a public o rd er con text can be controversial. It w as, for
exam ple, alleged that, in the con text o f the m iners' strike 1 9 84-85, prosecu tions
for riot (un der the law prior to the 1986 A ct) w ere used as a d eterrent and
pu nishm ent sin ce charges w ere d ropped in a nu m ber of instances w hen the
cases cam e for trial.
18
Terrorism and law
18.1 Introduction: special powers
Serious violence used with the intention of terrorising civilian populations,

and through them , governm ents, into acceding to political dem ands has now
becom e one of the most pressing problem s facing governm ents throughout the
world. Bom bings in M oscow attributed to Chechen rebels, the attacks in New
York and W ashington of 11 Septem ber 2001, the continuing violence in
Israel/P alestine, killings in India and Pakistan connected with Kashm ir and
religious issues and the bom bings of tourists in Bali in O ctober 2002 are som e
of the more serious exam ples of this problem . The reaction of states to this
violence raises its ow n problem s, including allegations of disproportionate
responses that, by leading to m any civilian deaths, equate to the use o f terror.
Civil liberties issues arise in respect of the action of governm ents towards
their ow n populations. Terrorist actions will be crim inal offences, subject to the
norm al procedures of investigation, prosecution and trial of suspects and, on
conviction, punishm ent. The issue for governm ents, including the United
K ingdom 's, is w hether there is a need for special pow ers, over and above the
ordinary crim inal law. Such special pow ers can, for exam ple, create new
crim inal offences for activities connected with terrorism and they can
introduce new m easures to facilitate the prevention of terrorist action and the
investigation and trial of suspects. Special pow ers, however, are likely to
dim inish the personal and, above all, the political freedom of individuals,
groups and associations.1
Radical political groups, operating outside the constitutional consensus, m ay
be disproportionately affected. For exam ple, political radicals opposed to the
arm s trade or w ho are acting in pursuit of various environm ental objectives may
com m it serious crim es against property. It is not obvious that the danger they
create justifies the use of special pow ers over and above the crim inal law.
Sim ilarly, people m ay espouse the cause of radical or revolutionary politics
because they support the ends being pursued or wish to associate with a cause.
It does not follow that they are necessarily supporting the use of violent means.
Special pow ers m ay create a form of guilt by association: by w hich supporters of
a particular cause, say that of a Palestinian state, are stigm atised and, perhaps,
arrested and questioned, because of the violent acts of other supporters.
1 See Fenwick, H. (2000) Civil Rights, N ew Labour, Freedom and H uman Rights. Harlow: Longman,
pp. 60^1.
Special pow ers m ay d im inish con ven tional and trad itional p rotections built
into the fair trial process. For exam ple, they m ay allow un usually long periods
fo r the d etention and question in g o f suspects. M inisters argue that, at tim es of
such em ergency, norm al civil liberties can p roperly be restricted given the
o verw helm ing need for pu blic protection. T he con trary argum ent is perfectly
reasonable: that it is precisely those 'civil liberties' w hich relate to the fairness
o f the trial process and to the d etention and treatm ent o f suspects w hich
should be carefully protected at tim es w hen there is strong political and social
pressu re on p olice and the cou rts to bring p erpetrators to justice. T here is no
point to the protection offered by civil liberties and hu m an rights law if it can
be set asid e o r d im inished at tim es o f crisis w hen they are m ost need ed .2
Special pow ers can raise difficult question s relatin g to freed om o f speech, of
the press and o f assem bly. There m ay be a strong m ood am on g the m ajority
in society o f hostility to the perpetrators o f the attacks and m ajority support
fo r the go v ern m en t's response. Q uestion in g this m ood m ay be seen as
supporting, or bein g am bivalen t about, terrorism or d enying to society and to
the go v ernm ent the su p p ort it deserves in difficult tim es. Y et, at the heart of
freedom o f speech, is the protection of offensive and unp op u lar opinion. The
extent to w hich this is underm ined by special pow ers need s to be considered.
A gain, state reactions to terrorism can be highly controversial. O ne view is
that, at tim es o f crisis, the m ain institutions o f civil society, in clu ding the
m edia, should rally to the national cause as defined by the go v ernm ent and
not print stories or take action that m ight u n derm ine the national effort. The
alternative is that it is precisely at such tim es, w hen special pow ers m ay be
used and w hen m ilitary action m ay be bein g taken, that gov ernm ent should
be m ost carefully scru tin ised .3
Th e use o f special pow ers in the con text o f terrorist outrage need s to be
carefully scrutinised in respect o f its im pact on civil liberties and hum an rights.
Fenw ick, for exam ple, argues that special pow ers are ju stified only as a
p roportionate response to a historically and socially specific and activ e threat.
Special p ow ers should w ax and w ane in p roportion to the d egree o f violence
in a p articular situ ation, N orthern Ireland for exam ple, rather than ju st being
gen erally av ailable to the police and other agencies against a perceived but
specu lative futu re possibility.4
O f equal im portan ce is to rem ind ourselves that a com m itm ent to hum an
rights does not p erm it the supporters and p erpetrators of acts of terror to hide
behind the norm s o f a righ ts-orientated , albeit im perfect, d em ocratic society.
Indiscrim in ate violence against civilians m akes d em ocratic p olitics im possible,
2 A point often m ade by senior judges, for exam ple com m ents by the Lord Chief Justice in a
British Academ y lecture (The G uardian, 16 O ctober 2002). The H om e Secretary, on the other hand,
has suggested that the right to life, threatened by terrorism , should take priority over other
liberties (see, The In depen dent, 29 Septem ber 2001).
3 On 15 O ctober 2001, the governm ent called a m eeting of broadcasters to discuss the use of
m aterial supplied by A1 Jezeerah, a Middle East based new s TV channel. The g overnm ent's
concern w as that coded m essages to terrorists m ight be being broadcast. Against that concern is
the point that the channel with access to opposition o r enem y view s is a convincing
countervailing source to the official spokespersons on the issue of civilian casualties and the
im pact of the w ar: The Independent, 16 O ctober 2001.
4 Stressed by Fenwick, op. cit.
Terrorism and law 331
or at least som ething that only disproportionately brave people will engage in.
To assert the im portance of civil liberties and hum an rights in the context of
anti-terrorist special powers im plies the acceptance of special m easures which
are, truly and proportionately, necessary to protect political and private
freedom , and are reasonable actions for the state to take. It is not consistent to
defend the civil liberties and hum an rights position w ithout accepting that
point.
Such a point is, of course, embedded in hum an rights law. A rticles 10(2) and
11(2) of the European Convention on H um an Rights perm it the proportionate
and necessary restriction of freedom s of expression and association for
purposes including the protection of the rights of others, the interests of
national security and public safety and the prevention of crim e and disorder.
A rticle 175 prevents states, groups or persons from using their Convention
rights in order to destroy the rights of others; political and private freedom is
not to be exploited by those w ho would destroy that freedom . In addition, in
a . . tim e of war or other public em ergency threatening the life of the nation'
A rticle 15 perm its states to m ake specific acts of derogation from most
C onvention rights, including the right to a fair trial and personal freedom. The
detail of the Convention position is given below.
18.2 United Kingdom law
18.2.1 Northern Ireland

Terrorism has been an issue in the United Kingdom for m any years. Betw een
the late 1960s and late 1990s about 3,300 people died in N orthern Ireland and
a further 121 in Great Britain directly as a result of political violence relating
to the constitutional settlem ent in Northern Ireland.6 As well as the ordinary
crim inal law and process, the governm ent's response was to use special
powers. N orthern Ireland (Em ergency Provisions) Acts applied to actions in
N orthern Ireland while the Prevention of Terrorism Acts applied throughout
the United Kingdom . The kinds of pow ers found in the legislation included:
the proscription of organisations with related offences of m em bership etc.;
internal exile; enhanced powers of the police over the investigation of offences,
and the use of special courts. Internm ent, detention w ithout trial, was an
em ergency pow er but it was repealed in 1998. The pow ers w ere introduced
increm entally by a series of Acts of Parliam ent and am endm ents over the
years. They w ere aimed at m eeting a progressively w orsening or increasingly
intractable situation in N orthern Ireland and to that extent represented a
graded, proportionate response.7 The pow ers w ere tem porary or subject to
annual renew al and also to annual review. Initially they w ere confined to
N orthern Ireland's affairs although, from 1989, the Prevention of Terrorism
Acts applied to terrorism relating to non-British international conflicts.
5 See Chapter 2.
6 Home Office and Northern Ireland Office (1998) Legislation A gainst Terrorism : A Consultation
Paper, Cm 4178, paragraph 2.2.
' Fenwick, op. cit.
18.3 Anti-terrorist legislation
18.3.1 The Terrorism Act 2000

Political violence connected w ith N orthern Ireland is now significantly
reduced. The response o f the go v ernm ent w as not been to w ind dow n
em ergency legislation but, rather, to introd uce a single, perm anent, an ti
terrorist statu te o f general application. T h e T errorism A ct 2000 con tin ues a
regim e o f special pow ers but these pow ers are explicitly not confined to
N orthern Ireland. T h ey apply to both international and 'd om estic' terrorism .
It w as based up on Legislating A gainst T errorism : A Consultation Paper* w hich
w as a response to a report by Lord Lloyd o f Berw ick.9 T h e bill w as subject to
close, lengthy scru tin y in P arliam ent. T h e 2000 A ct is perm anent and not
subject to annual re-enactm ent or review . The H om e Secretary m ust, how ever,
m ake an annual report to P arliam en t on it w orkin gs.10
18.3.2 The Anti-terrorism, Crime and Security Act 2001

R eligiou s-based international terrorism w as identified as one o f the threats
ju stifying the p rovisions in the 2000 A ct. Follow ing the 11 S ep tem ber attacks,
how ever, the gov ernm ent had P arliam en t enact ad d ition al legislation, the
A nti-terrorism , C rim e and S ecu rity A ct 2001. T his is a long and com plicated
A ct. It is high ly con troversial for tw o p rincipal reasons. First, it contains som e
severe anti-terrorist pow ers w hich m ay be d isp rop ortionate to the actual threat
facing the U nited K ingdom . Second , it con tain s m an y p rovisions that increase
the general pow ers o f the p olice and other state agen cies bu t w ith no restraint
that such increased pow ers are confined to anti-terrorism activ ities.11 It w as as
if the im m ed iate em ergency w as used to push through a m ajor expan sion of
p ow ers w hich w ould not otherw ise have been acceptable to Parliam ent. The
Bill received short, intense, som etim es influential, P arliam en tary scru tin y.12 It
leaves m ost o f the T errorism A ct 2000 intact.
18.3.3 The threats

D espite the ceasefire in N orthern Ireland of the m ajor p aram ilitaries, the
governm ent took the view that there w as a con tin uing threat of terrorism
w hich w arranted special legislative pow ers. T h e C o n su ltation P aper identified
three m ain sources o f con tin uing political v iolen ce13 w hich, in the govern-
* Secretary of State for the H om e D epartm ent and Secretary of State for N orthern Ireland (1998)
C m 4178.
y H om e Office and N orthern Ireland Office (1998) L egislatin g A gainst Terrorism : A C onsultation
Paper, C m 4178. The consultation paper w as a response to the report by Lord Lloyd of Berwick
(1996) C m 3420 and its m ain provisions w ere enacted as the Terrorism A ct 2000.
10 Section 126, Terrorism A ct 2000.
11 Tomkins, A . (2002) 'Legislating against terror: The Anti-terrorism , C rim e and Security A ct 2001',
Public Law 205 (Summ er).
12 Zand er, M. (2001) 'The A nti-Terrorism Bill - W hat H appened?' 151 N L J 1880.
13 H om e Office and N orthern Ireland Office (1998) Legislating A gainst Terrorism : A C onsultation
Paper, Cm 4178, ch apter 2.
T errorism and law 333
m erit's view , con stituted a 'clear and present terrorist th reat to the U nited
K ingd om from a nu m ber o f fronts . . ,'14
First is the con tin uing threat in N orthern Ireland. W hile m any p aram ilitary
groups are m aintaining the ceasefire, sm aller, break aw ay groups are not and
they pose a clear and present threat o f w hich the O m agh bom b is the m ost
terrible exam ple. G iven these u n certainties, Part VII o f the T errorism A ct
preserves a sep arate set o f anti-terrorist m easures for a period o f five years in
respect o f N orthern Ireland.
Second, the new legislation applies to international terrorism , that is to say
actions taken in the U nited K ingd om in relation to political, religiou s or
ideological struggles in foreign countries. This is not a new extension of
anti-terrorism legislation since, in 1984, m any o f the provisions o f the
P reven tion o f T errorism A ct (thou gh not p roscrip tion) w ere extend ed to
inclu de acts d one in the U nited K ingd om relating to political conflicts abroad.
Prior to the 2000 A ct it w as alread y an offence to con sp ire to com m it an offence
abroad w here the substantiv e act is an offence u n d er both the law of the
foreign cou ntry and the law o f the U nited K ingd om .15 G iven that som e of the
m ost seriou s terrorist outrages concern the relation ship betw een 'w estern ' and
'Islam ic' w orlds, this aspect o f the law is hard to challenge. H um an rights
em bod y universal valu es and so there is nothing offensive, in principle, about
su ppressin g in one cou ntry actions that w ill seriou sly un derm ine hum an
rights in another. T h e con cern is that these p rovisions m ay be used against
those supporting the overthrow o f oppressive regim es, a situ ation in w hich the
m orality o f political violence m ay be com plex. T he A ct could be used
selectiv ely in a m an ner that reflects foreign policy assessm en ts o f the tim e
bein g w ith no action against those plotting to overthrow foreign regim es the
curren t gov ernm ent does not like, Iraq (pre-2003) perhaps, but w ith p rosecu
tions o f those p lottin g against m ore favoured reg im es.16
Th e m o st con troversial extension o f anti-terrorist legislation m ad e by the
Terrorism A ct 2000 w as to 'd om estic terrorism '. The threat w as identified in the
C on su ltation P aper as com ing m ainly from m ilitan t anim al rights activists and
from n ationalist extrem ists, and, for the future, from other groups, such as
anti-abortion protestors, w ho have used violence in the U nited States. It is easy
to think of other groups, such as anti-environm ent protestors, those opposing the
arm s trade, anti-nu clear activists and anti-cap italist and anti-free trade groups
w ho have participated in serious violence against property and could apparently
com e w ithin the definition o f terrorist groups. T h e grave d anger is that the
Terrorism A ct 2000 will have a chilling and d isp rop ortionate effect on radical
politics in the U nited Kingdom , p articularly w here a clear d istinction is m ade
betw een d am age to property and violence against persons. A cts o f violence or
d am age to p rop erty are alread y cau gh t by the crim inal law . T he reach o f the
Terrorism A ct 2000 includes supporters and sym pathisers w ho m ay support the
cause but have an am bigu ous and troubled relationship w ith the m ethods used.
14 Ibid., paragrap h 2.7.

15 Section 1A of the Crim inal Law A ct 1977 introduced by the Crim inal Justice (Terrorism and
Conspiracy) Act 1998.
16 The consent of the A ttorney General is required for som e prosecutions: s. 117(3), T errorism Act
2000 .
A p articular type o f threat, the chaos that m alicious com p u ter hacking could
cause, w as also identified.
18.4 Definition of terrorism
Section 1 of the T errorism A ct 2000 con tain s the d efinition o f terrorism to

w hich the o ther provisions of the A ct relate. T h e definition has tw o strands
involving the use or threat o f action. First, action m u st be u n d ertaken to
achieve a certain kind o f objective.
1(1) (b) the use or threat is designed to influence the governm ent or to intimidate
the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious
or ideological cause.
T he second strand relates to the con sequ ences o f the action.
1(2) Action falls within this subsection if it-

(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the
action,
(d) creates a serious risk to the health or safety of the public or a section of the
public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic
system
Terrorism is defined in general term s; w hat are, in effect, special pow ers, over
and above the ord in ary crim inal law , are no longer justified by reference to a
specific political dispute. U nd er the Preven tion o f T errorism A ct 1989
terrorism w as defined as 'th e use o f violence for political en d s' w hich included
'an y use o f violence for the pu rpose o f pu tting the public, o r any section o f the
p u blic in fear'. T h e new definition is m ore restricted in that it inclu des only
'seriou s' violence. In other w ays it is less restrictive. It inclu des seriou s d am age
to property; yet it is by no m eans clear that d am age to property, w hich raises
d ifferent m oral issues from v iolence, w arrants special pow ers in ad dition to
the general law . 'Seriou s' is not defined. It is not at all clear that dam aging w ar
planes or up rootin g gen etically m odified crops or even b u rning dow n an
em pty anim al laboratory, etc. is sufficiently sim ilar to bom bing a pu blic place
as to ju stify the application o f these pow ers. Sim ilarly, the m alicious use of
com puters, for hacking or p lanting viruses, can be hu gely d am aging ,17 bu t it
d oes not follow that such threats ju stify general anti-terrorist legislation rather
than specific, focused A cts o f Parliam ent. The d efinition is also m ore extensive
than under the 1989 A ct in that it includes 'religious and id eological' causes
as w ell as political ones. O bv iou sly such term s fade into each other but their
17 Seen by som e as the m ost pressing threat to the m odern m ilitary (The Independent, Fridav, 30
M arch 2001).
inclu sion recognises the expressed religiou s con text w ithin w hich political
violence, esp ecially internationally, takes place. N oth in g in the definition
restricts terrorism to acts u n d ertaken against a m ore or less d em ocratic state
(d em ocratic, for exam ple, in the term s o f the E uropean C on vention) and so the
A ct could be used against opponen ts o f op p ressiv e regim es. C on versely the
definition could be applied to states o ppressing part o f their popu lation. It is
not clear that this w as intended and any p rosecu tion s, p articularly w here they
requ ire the A ttorney G en eral's con sent, w ould, no d oubt, need to be
com p atible w ith U nited K ingdom foreign policy.
18.5 General issues
18.5.1 Summary
The T errorism A ct 2000 and the A nti-terrorism C rim e and S ecu rity A ct 2001
are m ajor pieces o f legislation. There is only sp ace here to deal w ith som e of
the m ajor issues. T h e T errorism A ct 2000 provides the basic fram ew ork. It
allow s fo r the proscrip tion o f organisations, creates offences relatin g to the use
o f property for terrorist p u rposes and perm its con fiscation and forfeitu re of
such property; it increases the p ow ers o f the p olice in resp ect o f the
investigation of terrorist offences and the actions that m ay be taken against
terrorist suspects; it increases police p ow ers in resp ect o f port and border
controls, and it creates a ran ge o f offences connected w ith acts o f terrorism
both at hom e and overseas. T he A ct also con tin ues ad dition al em ergency
pow ers in N orthern Ireland at least for five years.
18.5.2 Use of force

The A ct significantly increases p olice pow ers in a nu m b er o f terrorist contexts
and it is m ad e clear that these pow ers are ad dition al to the other com m on law
or statu tory pow ers the police m ay have. A terrorist investigation is likely to
be a com bination o f 'ord in ary ' and T errorism A ct pow ers. R easonable force
can be used, subject, o f course, to the general lim its o f the H um an Rights A ct
1998, Sch ed u le 1, A rticles 2 and 3 .18 A rticle 3 cannot be subject to a general
derogation un der A rticle 15 b u t A rticle 2 can be d erogated from in respect of
'd eaths resultin g from law ful acts o f w ar'. It is unlikely that 'the w ar' against
terrorism m eets this definition.
18.5.3 Proof and reverse onus offences

The T errorism A ct 2000 creates a nu m ber o f new offences, som e involving long
im prisonm ent. P roof o f terrorist intentions can be hard to establish and the
governm ent, d espite the un happy record o f w ron gful con viction s for terrorist
offences in the 1970s, has been tem pted to lessen the bu rd en o f pro of in certain
circu m stances. O ffences under the T errorism A ct 2000 w ill have to be proved
by the prosecu tion w ith evid ence establish ing the case beyond a reasonable
18 S ee C h ap ter 4.
doubt. H ow ever, for som e offences, the law allow s assu m ptions to be m ad e by
the court (at its discretion) w ith a bu rd en then passing to the d efen dan t to
prove that this assu m ption is false. A n exam ple is that the possession o f an
article for terrorist pu rposes can be assu m ed if it is proved that the article w as
on prem ises at the sam e tim e as the a ccu se d .19 O ther offences allow a d efence
to the effect that an otherw ise crim inal state o f affairs (e.g. collecting
inform ation o f use to terrorists) is open to an innocent or reasonable
explanation. A gain, p ro o f is for the d efence. Putting the burden, or onus, of
d isplacing a p resu m p tion or p rov ing a d efen ce is know n as a 'rev erse onu s'
defence.
R everse onus provisions raise an issue o f com p atibility w ith the p resu m p
tion o f innocence expressed in A rticle 6(2) ECH R. In R v D PP ex parte K ebilene
(1999),20 in w hich the H ouse o f L ords d isagreed w ith the C ou rt o f A ppeal, it
w as held that such reverse onus provisions are unlikely to violate A rticle 6 so
long as the overall b u rd en o f pro o f rem ains w ith the prosecution. The
Strasbou rg ju risp ru d en ce seem s to support this p osition.21
Section 118 o f the T errorism A ct 2000 aim s to give effect to the C onvention
position. W here it applies, a d efen dan t need only to introd uce evid ence w hich
is 'sufficient to raise an issu e' relevan t to the m atters in term s o f w hich an
assu m ption of gu ilt m ay be displaced or a d efen ce established . O nce the issue
is raised the cou rt m u st take the d efen ce as bein g m ad e out and acquit. The
burden then shifts back to the p rosecu tion to d isprove, beyond a reasonable
doubt, the evid ence by w hich the issue w as raised. In this w ay, it is likely to
be argued, it can be said that the overall bu rd en o f proo f rem ains w ith the
prosecution and A rticle 6(2) not violated.
18.6 Proscription
Prior to the T errorism A ct 2000 there had been no general pow er to ban
political organisations. T he Public O rd er A ct 1936, enacted in the con text of
the rise of the British U nion of Fascists in the early 1930s,22 creates general
offences w hich are still in force. Section 1 relates to the w earing o f political
uniform s in public places23 and section 2 to the org anisation, m anagem ent,
training or equipping o f political groupings w hose pu rposes are eith er the
usu rp ation o f the fun ctions of the arm ed forces or police or to d isplay physical
force in the prom otion o f a political object. The A ct has not been w idely used
though there have been successfu l p rosecu tion s against Spearhead , a neo-N azi
group, and the Free W ales A rm y.24
19 Terrorism A ct 2000, s. 57.

20 11999] 4 All ER 801 H L. See also R v Ben jafield (2000) The Tim es, 2 8 Decem ber.
21 See in particular A P v Sw itzerland (1998) 26 EH RR 541 and Salabiaku v F rance (1991) 13 EH RR
379, paragrap h 28.
22 See Ew ing, K.D and G earty, C. (2000) The Struggle fo r Civil Liberties. O xford: O xford University
Press, ch. 6 .
23 The A ct w as applied to Irish republicans in O'M oran an d others v D irector o f Public Prosecutions
[1975] QB 864.
2-1 See cases cited by Bailey, S.H., H arris, D.J. and Jones, B.L. (1995) C ivil Liberties Cases an d
M aterials, 4th edn. London: Butterw orths, p. 181.
P roscrip tion - bann in g - w as introd uced in the con text o f N orthern Ireland
and is continued by the T errorism A ct 2000. T here is a d ebate about the
effectiveness o f the pow er to proscribe. The argum en ts u ltim ately accepted by
the governm ent are that, throu gh proscrip tion, it is easier to prove various
terrorist offences and restrict fun d-raisin g activities. Proscription also sym
b olises social abhorrence o f terrorist activ ity and can d eter groups and, by
d riving them u n dergrou nd, m ake it harder for them to prom ote them selves. It
is n evertheless accepted that proscrip tion m ay have little d irect im pact on the
level o f violence sin ce banned groups m ay sim ply reconstitute them selves
un der a d ifferent nam e.25 In N orthern Ireland there have been very few
prosecu tions for proscrip tion offences.
Section 3 o f the T errorism A ct 2000 gives pow ers to the Secretary o f State to
proscribe terrorist organisations w hich he or she believ es to be 'concerned in'
terrorism . 'C on cern ed in ' is a very broad concept m ad e all the b road er by the
w ide definition o f terrorism m entioned above.
. . . an organisation is concerned in terrorism if it -

(a) commits or participates in acts of terrorism,
(b) prepares for terrorism,
(c) promotes or encourages terrorism, or
(d) is otherwise concerned in terrorism.
'O therw ise concerned in terrorism ' is obviou sly question-begging. The phrase
could cover organisations w hich support a cause bu t w hich d issent from or
have a m orally com plex attitu d e tow ard s the terrorist activities o f others. It is
such a vague and uncertain p hrase that it m akes the circu m stan ces in w hich
a b an m ight be con sid ered u n foreseeable and hence, p erh aps, incom patible
w ith the 'leg ality ' provisions in the C on vention rights, inclu ding A rticle 11,
discussed below .
S ch ed u le 2 o f the A ct identifies 14 organisations involved in N orthern
Ireland politics w hich w ere and rem ain proscribed . The S ecretary o f State m ay
add to or rem ov e organisations from the list. In M arch 2000 the H om e
S ecretary added a further 21 organisations. These w ere all foreign org anisa
tions involved in G reek, M idd le East, Sri Lankan, B asque, K ash m iri and
T u rkish politics. T h ey included A l-Q a'id a and other exp ressed ly Islam ic
g roups.26 A further four Islam ic groups w ere added in N o vem b er 2002.
A rticle 11 and A rticle 17 offer am p le ju stification for the C ou rt o f H um an
R ights to uphold bans on political parties and organisations w hich use violence
o r w hich, in pow er, w ould introd uce w idespread and system atic v iolation of
C on vention R ights and Freedom s. R estrictions m u st m eet the C on vention test
for legality and be 'n ecessary in a d em ocratic society' in the sen se o f being
p roportionate m eans o f protectin g pu blic safety, or national security, the 'the
rights and freed om s o f o thers' or any other p u rpose listed in A rticle 11(2).
25 C hapter 4, Consultation D ocum ent. See also Lord Jellicoe's review of the Prevention of
Terrorism A ct 1983 for sim ilar points.
26 Terrorism A ct 2000 (Proscribed O rganisations) (A m endm ent) O rder 2001 (Draft) (prepared 15
M arch 2001): for exam ple, Egyptian Islamic Jihad, A l-G am a'at al-Islam iya, A rm ed Islamic
G roup, Palastinian Islamic Jihad-Shaqiqi, Islam ic A rm y of Aden.
T he C on vention offers m ore p rotection to an organisation w hich pu rsues a

rad ical agen da in a clim ate o f violence w ithout bein g a d irect ad vocate or
perpetrator o f the violence. The C on vention, as interpreted by the C ourt, gives
a v ery high w eighting to p olitically inspired speech and action in the w ay it
interprets freed om o f expression and association. S tates m ust show they are
respond ing to genuine threats to the d em ocratic con du ct o f politics.
The Communist Party of Turkey was dissolved by state action before it was able to
start acting as an association. In particular support for separatism and other values
held to be inconsistent with the Turkish constitution was alleged against the party.
HELD (ECHR): there was a violation of Article 11. The Communist Party had been
banned because of its name and programme not its actions and the ban was
disproportionate to the aim pursued.
United Communist Party of Turkey and others v Turkey (1998) 26 EHRR 121
T he C ou rt recognised that states could take action to protect m ajor institutions

o f the state. It w ould not conced e, how ever, that this rem oved the protection
o f A rticle 11 from political parties w hich challenged the existing con stitutional
structure, ev en w hen d oing so, as in the Tu rkish case, against a background
o f violence.27 T he case contains a strong affirm ation of pluralism (w hich is
n ecessary to d em ocracy and hence to the p rotection o f hu m an rights). It
follow s that the restrictions in A rticle 11(2) m ust be strictly interpreted. The
case speaks o f the need to com prom ise b etw een protectin g constitutional
institutions on the one hand and p luralism , b u t it is hard to read the case other
than m akin g it very difficult for a state to interfere w ith the A rticle 11(1)
freed om s o f parties seekin g con stitutional change. N oth in g in the ju dgm ent
requ ires a state to tolerate organisations w hich d irectly use violence and,
under A rticle 17, groups that m ight use their political freed om to underm ine
the rights and freedom s o f others cannot protect that freed om through the
C ourt.28 T h e bann in g o f the R epu blican C lubs in the early 1970s m ight, w ithout
a d irect link to violence, now be incom patible w ith C on vention righ ts.29
18.6.1 Deproscription
P rior to the T errorism A ct 2000 a political organisation could only challenge
p roscrip tion by ju dicial rev iew and the cou rts w ere unlikely to find against a
reasoned decision o f the Secretary o f State.30 The T errorism A ct p rovides for a
p rocess for 'd ep ro scrip tion '. A proscribed organisation can apply to the
Secretary o f State and, if that is turned dow n, it can appeal to a body, the
Proscribed O rg anisations A ppeal C om m ission, w hich the A ct creates.31 The
C om m ission m ay o rd er the organisation to be rem oved from the list of
proscribed org anisations. T h e C om m ission m u st ap p ly ord in ary ju dicial
rev iew p rinciples or, under rules m ad e by the S ecretary o f State, it can deal
27 See also S idiropoulos an d others v G reece (1998) A p . 5 7 / 1 9 9 7 /8 4 1 /1 0 4 7 .

28 K PD v Federal R epublic o f G erm any (1957) A p. 2 5 0 /5 7 ; 1 Yearbook 222 - but no longer good law ?
29 M cE ldow ney v Forde [1971] AC 632.
3(1 See the Republican Clubs case: M cE ldow ney v F orde [1971] AC 632.
31 Sections 4 - 9 , Terrorism A ct 2000.
w ith a direct com plaint under the H um an Rights A ct 1998. In either case the
Com m ission will have to decide on the purpose and the proportionality32 of
the Secretary of State's decision.
The procedure before the Com m ission is in Schedule 3 of the Act. The
Com m ission is expressly perm itted to use m aterial intercepted by telephone
tapping and other m eans. Such m aterial m ust not be disclosed to the
proscribed organisation, a prohibition that m ay put the proscribed organisa
tion at a disadvantage and deny it 'equality of arm s' under A rticle 6 of the
Convention, if it applies.33 A further question is w hether the Com m ission is
sufficiently independent of the executive to m eet the requirem ents of A rticle 6
since its officers are appointed by the Lord Chancellor.34
C om m ission decisions are subject to appeal to the Court of Appeal by any
party, including the Secretary of State.35 An appeal is confined to questions of
law and requires the perm ission of the Com m ission or the Court.
18.6.2 Offences involving proscribed organisations

A range of offences are created by the Terrorism A ct 2000, sections 11-13
which apply only in respect of proscribed organisations. They continue
offences found in the replaced prevention of terrorism legislation. It is, first, an
offence to belong to or profess to belong to a proscribed organisation; second,
it is an offence to invite support for a proscribed organisation generally or by
specific activities such as organising or addressing m eetings, and, third (a less
serious m atter), it is an offence to w ear clothing or display articles 'in such a
w ay or in such circum stances as to arouse reasonable suspicion that he is a
m em ber or supporter of a proscribed organisation'.
These offences are w idely drawn. For exam ple, the point o f addressing a
m eeting in support of a proscribed organisation m ay have been to advance the
goals of the organisation w ithout, necessarily, endorsing the violent m eans that
the organisation is associated with. Yet such an address could be an offence
under section 12. The organiser of a private m eeting has a reverse onus defence
if he or she can prove that there was no reasonable cause to believe that a
speech given at the m eeting would be in support of a proscribed organisation.
Section 118 applies and so the burden on the organiser is to raise an issue about
w hat it was reasonable to believe about the content of the speeches.
These offences clearly involve the right of freedom of association and
freedom of expression under A rticles 11(1) and 10(1) of the scheduled
Convention rights. They are, however, likely to be acceptable restrictions
under the second paragraph of those A rticles in terms of the legitim acy of their
purpose. They will, therefore, be com patible with the Convention so long as a
court accepts, in any particular case, that there has been a proportionate
response to a pressing social need. 'Belonging to' a proscribed organisation
32 R v Secretary o f State fo r the H ome Department ex parte Daly [2001] UKH L 26; [2001] 3 All ER 433.
33 Since a number of offences turn on whether an organisation is proscribed, the Commission can
be taken to be involved in the 'determination of . . . any criminal charge, and hence bound by
Article 6 .
M On this and other procedural disadvantages see Fenwick, op. cit., pp. 94-5.
35 Section 6 , Terrorism Act 2000.
m ay be too im p recise a term for a person to foresee w hat is o r is not a

proh ibited relationship. If so, the offence is vulnerable to the 'prescribed by
law ' provision in A rticle 11(2).
18.7 Terrorist property
A range o f provisions in anti-terrorism legislation are concerned to starve

terrorist organisations o f their financial and other resources. The T errorism A ct
2000, Part III, enhanced by the A nti-terrorism , C rim e and Secu rity A ct 2001,
m aintains and extend s earlier provisions concerned w ith 'terro rist property':
p roperty likely to be used for terrorist activity or w hich is the p roceed s of
terrorist activity. It inclu des b u t is not confined to the property of proscribed
o rg anisations. The provisions m ake crim inal offences o f variou s financial
transactions w hich, w ithout the terrorist link, w ould be p erfectly law ful. The
offences relate to fun d -raisin g activities, using property for terrorist purposes,
entering into funding arrangem ents through w hich m oney becom es available for
terrorist purposes and m on ey laund ering and o ther form s o f the legal
con cealm ent of property.36 There are also pow ers in the T errorism A ct 2000
w hich perm it the courts to order the forfeiture o f m oney or other property w hich
is im plicated in the offences relatin g to terrorist property m entioned above.
Police and custom s have a pow er to seize cash w hich, they suspect, is to be used
for terrorist activities or by a proscribed terrorist organisation or is the resu lt of
terrorist activities. S eizu re can be ordered in d ep en den tly o f any prosecu tion for
terrorist offences. P erm anent forfeitu re can be ordered by m agistrates on
application by the authorities. T h e A nti-terrorism , C rim e and Secu rity A ct 2001
also introduces a 'freezing ord er'.37 This can be m ade by the Treasury and freezes
the assets o f persons and governm ents outsid e the U nited K ingd om w ho, the
Treasury believe, are acting to the econom ic detrim ent of the U nited K ingdom or
w ho are threatening life and property. T his pow er is not confined to terrorism .
N ot all o f these provision require p ro o f that an offence, let alone a terrorist
offence, has been com m itted. The ord ers do not requ ire proo f o f a terrorist
intention to a crim inal law standard. T here is a d anger that property of those
u ninvolved in terrorism m ay be affected (though such a person can be heard
by m agistrates in respect o f forfeiture). C on vention rights, such as the right to
p eacefu l enjoym ent o f possessions un der P rotocol 1, A rticle 1 and, in respect
o f the procedu res, A rticle 6 m ay be in issue though Strasbo u rg case law
suggests the auth orities m ay have con sid erable freed om .38
18.8 Terrorist offences
T he T errorism A ct 2000 creates a ran ge o f new terrorist offences taken over

from N orthern Ireland em ergency legislation and applied gen erally to the
U nited K ingdom .
36 Sections 14 (definition of terrorist property) and 1 5 -1 8 (the offences), Terrorism A ct 2000.

37 Part II.
38 See A C O S I v U nited Kingdom (1987) 9 EHRR 1 and A ir C anada v U nited K ingdom (1995) 20 EH RR
150.
G iving or receiving w eapons training, such as in the use o f firearm s or

explosives, is an offence un der section 54. The d efinition o f the offence m akes
xio reference to terrorism and so, on its face, the offence can be com m itted by
those using w eapons and explosives for policing or com m ercial purposes.
R elief for those involved in such legitim ate form s o f training is found in section
54(5) w hich m akes it a d efen ce for a person to prove that their inv olv em ent w as
w holly for non-terrorist purposes. Section 118 applies, and so such a d efendant
is m erely required to raise the issue o f legitim ate training leaving the burden of
p roving a terrorist pu rpose beyond a reasonable d oubt to the prosecution.
These offences m ay place a burden of care on anyone offering w eapons or
explosives training to satisfy them selves as to the legitim ate m otives o f those
they offer the training to. The crim inalisation o f legitim ate activities subject to a
d efence is, to say the least, an odd ap p roach to this m atter.
D irecting a terrorist organisation, at any level, is an offence u n d er section 56.
The org anisations to w hich this section applies are not confined to proscribed
o rg anisations. T h ey can inclu d e any bodies w hich u n d ertake terrorist activities
as defined by section 1 of the Act. Section 121 defines 'acts' as inclu ding
o m issions, so d irectors o f org anisations w hich do nothing about m em bers w ho
m ay be planning terrorism could, perhaps, be v u lnerable to this offence.
P ossession o f an article in circu m stan ces w hich give rise to a reasonable
suspicion o f a con nection w ith terrorism is an offence un der section 57. It takes
o v er section 16A o f the P reven tion o f T errorism A ct 1989.39 If the prosecu tion
can prove that the circu m stan ces in w hich an article w as possessed give rise
to a reasonable suspicion of a con nection w ith terrorism it is open to the
d efen dan t to prove that this suspicion in not w ell founded. Section 118 applies
and so the d efen dan t need only raise an issue related to the d efen ce w hich the
cou rt m u st accept un less the prosecu tion can disprove it beyond a reasonable
doubt. Section 57(3) allow s the court to assu m e that the d efen dan t w as in
possession o f the article if it w as on prem ises at the sam e tim e as the accused
o r if he w as the occup ier or a habitual u ser o f the prem ises. T his assu m ption
can be set asid e if the accu sed can prove that he or she did not kn ow the article
w as on the prem ises or that they had no control over the article. A gain section
118 expressly applies and so the bu rd en o f proof shifts b ack to the prosecution
if the d efendant can prod uce sufficient evid ence to raise an issue on w hich the
d efen ce can be founded. The circu m stan ces in w hich the court m ay m ake this
assu m ption need to be clarified in case law . A rgu ably, the ju ry should be
directed to the effect that, even if the d efen d an t is unable to p rove the
innocence o f his or her possession o f the article, there m u st still be sufficient
ev id ence for a con viction beyond a reasonable d oubt.40
18.9 International terrorism
T he international natu re o f the 'terro rist threat' is apparent from the attacks of
11 S ep tem ber and the bom bing s in Bali. It w as apparent at the tim e of the
39 D iscussed R v D PP ex parte K ebilene [1999] 4 All ER 801 HL.

* R v Killen [1974] NI 220.
enactm ent of the T errorism A ct 2000 and fu lly recognised in the consu ltation
paper from w hich the A ct stem m ed.
18.9.1 Border controls

The Terrorism A ct 2000 increases port and bord er controls. T hese inclu d e w ide
pow ers for designated officials to stop, detain and question anyone entering
the U nited K ingdom in o rd er to d iscov er w h eth er they are connected w ith
terrorism .41 D etention for reasonable suspicion that an offence has been
com m itted or that it is necessary to p revent the com m ission o f an offence or
that it is necessary to p revent an un authorised entry into the cou ntry are, if
proportionate, com patible w ith A rticle 5 EC H R. A n objective basis for the
suspicion is necessary. In R (Saadi and others) ex parte Secretary o f State fo r the
H om e D epartm ent42 the C ourt o f A ppeal took a d eferen tial attitu d e tow ards
governm ent national secu rity assessm en ts, and this is likely to assist custom s
and police in any hum an rights challenge.
18.9.2 Inciting terrorism overseas

A n offence o f inciting acts o f terrorism overseas is created by section 59 o f the
T errorism A ct 2 0 0 0 43 The essence o f the offence is the incitem en t o f an act
overseas w hich is w ithin the definition o f terrorism in section 1 o f the A ct and
also one o f the seriou s offences, such as m urder, listed in the section. The
m ean in g o f incitem ent un der the A ct is unclear. It w ill requ ire som e d egree of
direct and p roxim ate en couragem ent o f violence to be com m itted overseas.
The d istin ction betw een the legitim ate support for a cause and an incitem ent
to violence w ill need to be w orked out. T he offence can be com m itted by
citizens or aliens and it can be recalled that A rticle 16 EC H R, a 'convention
righ t' u n d er the H um an R ights A ct 1998, rem oves the ap plication o f A rticles
10, 11 and 14 from restrictions on the p olitical activities o f aliens. T h e section
m ay crim inalise those w ho actively su pport insurrection and civil w ar in other
cou ntries w here the con ditions in those other cou ntries ju stify the w ar or
insurrection. T h e section m akes no d iscrim in ation betw een ju st and unjust
causes for p olitical violence and it is hard to im agine that it could w ithout
involving B ritish ju dges in im possible evaluations. T h e consent o f the D P P is
required for a prosecution and it is likely that, through this, governm ent view s
o f the ju st and the unjust cause w ill be significant.44 If the d efinition of
terrorism required w ar crim es or attacks on civilians, attacks aim ed at
un d erm ining the civil institutions o f a reasonable d em ocracy, this problem
w ould be lessened.
41 The legal basis is in Schedule 7 and Schedule 8 identifies various rights and the circum stances
in w hich thev m ay be postponed.
42 (20011 E W C A C iv 670; [2001] 4 All ER 961.
43 Similar offences apply, with necessary changes, in respect of Scotland and N orthern Ireland.
44 The obvious exam ple, at the tim e of w riting, is the 'N orthern Alliance' in Afghanistan w hich,
it seem s, is being incited to attack the Taliban by special forces from the UK. C row n servants
are exem pted from liability under the Act.
18.9.3 Deportation
The H om e Secretary m ay deport som eone, who is not a citizen, on the grounds
that their presence in the United K ingdom is not conducive to the public
good.45 This can clearly extend to deportations to protect national security and
against terrorism . 'O rdinary' deportations are subject to a (circum scribed)
right of appeal to the Im m igration Appeal Tribunal which operates on norm al
procedures. Deportations, or other im m igration action, on public good
grounds cannot be appealed to a tribunal but m ay be taken to the Special
Im m igration A ppeals Com m ission (SIAC) established under the Special
Im m igration A ppeals Com m ission Act 1997. The Com m ission has a closed
procedure with only lim ited rights of the defence though, in hum an rights
terms, it has a surer basis than the inform al 'three wise m en' procedure it
replaces.46 The grounds of appeal include not only that the decision was made
unlaw fully but also that 'the discretion should have been exercised different
ly'.47 A further appeal to the Court of Appeal is possible, including by the
Secretary of State. The extent to w hich SIA C is able to be an effective bulw ark
against possibly oppressive actions by the H om e Secretary has, perhaps, been
limited by Secretary o f State fo r the H om e D epartm ent v Rehm an48 It w as accepted
that the H om e Secretary could act on a wide range of inform ation available to
him , m uch of it inadm issible in court, and that it was not necessary for there
to be a direct and im m ediate threat to the safety of the United Kingdom . The
House of Lords accepted a deferential attitude to the executive as necessary
not only because the executive has access to inform ation but also, for Lord
Hoffman, in order to ensure dem ocratic accountability in respect of the
difficult, political decisions that will have to be made. Critics will point out that
such deference can involve the w ithdraw al of intense judicial scrutiny
precisely in those tim es w hen it is m ost needed.
18.9.4 Detention without trial

The A nti-terrorism , Crim e and Security Act 2001 perm its the detention
without trial of non-citizens, m ainly when they would otherw ise be subject to
deportation on national security grounds.
In Chahal v United Kingdom 411 the Court of H um an Rights confirm ed that it
violates A rticle 3 ECH R to deport a person to a country in which they m ight
suffer torture or inhum an or degrading treatm ent or punishm ent even though
the country to w hich they are deported is not a signatory of the ECHR. The
deportation of terrorist suspects is likely in m any cases to be incom patible with
Convention rights. The question for the executive is w hat should be done with
such people. The A nti-terrorism , Crim e and Security Act 2001, Part IV, perm its
the Secretary of State to issue a certificate to the effect that a person's presence
45 Immigration Act 1971, s. 3(5)(a) (as am ended). There are, of course, other grounds for
deportation.
4<’ W hich w as held to be incompatible with Article 13 ECHR, the right to a rem edy, Chahal v United
Kingdom (1997) 23 EHRR 413.
47 Section 4, Special Immigration Appeal Commission Act 1997.
48 [20011 UKHL 47; [2002] 1 All ER 122.
49 (1997) 23 EHRR 413.
in the U nited K ingd om is a risk to national security and that the person is a
terrorist, as defined by the T errorism A ct 2000. If the person cannot be
deported becau se o f a 'p oint o f law relating to an international agreem ent' (i.e.
becau se they m ight suffer torture etc.) or becau se o f a 'practical con sid eration'
(exam ples given in P arliam ent w ere that travel d ocu m ents could not be
obtained) then, u n d er section 23 o f the 2001 A ct, the person can be detained
ind efinitely pend ing d ep ortation. The person m ay leave voluntarily.
This legislation is high ly con troversial. T here is a right o f appeal to SIA C ,
given H igh C ou rt pow ers by the Act. It m ay cancel the S ecretary o f State's
certificate. The C om m ission is prepared to assert its ind ep en d en ce and, in its
first case, held that the pow er to d etain w ithou t trial w as fun d am entally
flaw ed: by ap p lying only to foreign nationals and not to B ritish citizens w ho
m ight be believed to be equally d angerou s, the legislation related to A rticle 5
E C H R in a d iscrim in atory w ay w hich w as incom patible w ith A rticle 14
EC H R .50 The SIA C position w as overruled by the C ou rt o f A ppeal w hich
agreed w ith the gov ernm ent that there w as an o bjective b asis for treating
foreigners differently.51 D espite the outcom e of p articular cases, appeal to
SIA C rem ains un satisfactory from the point o f view o f the d etainee since the
rights o f the d efen ce are severely curtailed and d etainees are not able to know
and attem p t to answ er for them selves the evid ence alleged against them .
D etention w ithou t trial is obnoxious. T he gov ernm ent does not believe that
the d eten tions can be brou ght w ithin A rticle 5(1 )(f) (w hich perm its d etention
o f a person 'ag ain st w hom action is bein g taken w ith a view to d ep ortation
. . . ' ) and has derogated from this C on vention right, as it m ay seek to do under
A rticle 15 ECH R. The condition for proper d erogation u n d er the C onvention
is that there is a state of 'w ar or other pu blic em ergency threatening the life of
the n ation'. T he C ou rt of A ppeal has held that SIA C is entitled to conclude
that the threat from extrem e Islam ic, anti-w estern terrorism is such a public
em ergency.’2 T h e C ou rt o f H um an R ights gives a w ide m argin o f appreciation
to national governm ents on the assessm en t o f such threats, though the
outcom e o f a challenge is hard to predict. In Brannigan and M cB ride v U nited
K ingdom (1993)53 the N orthern Ireland situ ation w as consid ered a sufficient
'p u blic em ergency7 to ju stify derogation.
T here is a d ilem m a here. The governm ent could deport the suspects to a safe
cou ntry w here their A rticle 3 rights w ould not b e com prom ised. Such
cou ntries m ay be reluctant to accept them ; furtherm ore, the U nited K ingdom
g o v ernm ent can reasonably con sid er it w ould be avoid ing its responsibilities
if it d eported som eone to a cou ntry so that they can con tin ue there w ith w hat
the go v ernm ent in the U nited K ingd om believes to be terrorist activities. The
alternative, canvassed by critics,54 is a p rosecu tion for an offence u n d er the
50 A an d others v S ecretary o f State fo r the H om e D epartm ent (2002) (SIAC).

51 A an d others v S ecretary o f S tate fo r the H om e D epartm ent [2002] EW CA C iv 1502; T he Tim es, 29
October.
52 A an d others v S ecretary o f S tate fo r the H om e D epartm en t [2002] E W C A C iv 1502; T he Tim es, 29
October.
53 (1993) 17 EH RR 539. See Laivless v Ireland (1961) 1 EH RR 15.
54 For exam ple, Tom kins, A. (2002) 'Legislating against terror: The Anti-terrorism , C rim e and
Security A ct 2001', Public Law 205 (Summ er).
T errorism A ct 2000 inclu d ing for inciting terrorism un der section 59. T his is
attractive, but has tw o draw backs. First, a p rosecu tion requ ires a higher
standard o f proof than that required for d ep ortation; second , it m ay be that
the inform ation on w hich the S ecretary o f State has form ed his or her judgm ent
has been gained from su rv eillance activities and som e o f it is not ad m issible
in cou rt or, even if ad m issible, w ould com p rom ise intelligence-gathering. On
the other han d , people w ho m ay be innocent of any connection w ith terrorism
are detained ind efinitely in con ditions w hich m ake it very difficult for them to
establish their innocence. T hese provisions w ill need to be renew ed after 15
m onths.
18.10 The investigation of terrorist offences
Parts IV and V o f the T errorism A ct 2000 increase the pow ers o f the police over
the investigation of terrorist offences. T hese pow ers are over and above police
officers' ord in ary pow ers in the P olice and C rim in al E vid en ce A ct 1984.55
Part IV identifies m ajor p olice pow ers w hich are triggered in respect o f a
'terrorist inv estigation'. This term is defined by section 32.
Terrorist investigation
32 In this Act 'terrorist investigation' means an investigation of -
(a) the commission, preparation or instigation of acts of terrorism,
(b) an act which appears to have been done for the purposes of terrorism,
(c) the resources of a proscribed organisation,
(d) the possibility of making an order under section 3(3) [a proscription order] or
(e) the commission, preparation or instigation of an offence under this Act.
T his w ide d efinition can trigger som e very significant police pow ers. Terrorist
acts are likely to involve seriou s crim es, but an act o f terrorism , as such, is not a
crim e. The scope of a terrorist inv estigation is likely to be w ider, less confined
by the d efinition o f any p articular crim e, than an ord in ary crim inal inv estiga
tion. Section 32(b), for exam ple, requ ires only the ap p earan ce o f a terrorist act.
T he section m akes no reference to the d egree of evid ence necessary to ground
such an appearan ce or w hether it is an objective m atter or sim ply based on the
good faith ju dgm ent o f a police officer. Sections 32(a) and (e) refer to the
'com m ission, preparation or in stig ation' o f terrorist acts or offences. 'P rep ara
tion' and, perhaps, 'instig atio n ' clearly go beyond 'in citem en t', w hich is the
norm al basis for crim inal liability and w ill, therefore, p erm it significant pow ers
o f investigation to be used against those w hose actions m ay be too rem ote to
ju stify crim inal liability.56 T h e w idth and subjective natu re o f its definition
m eans that a p olice claim that a terrorist investigation is going on is likely to be
hard to challenge in the courts, though, as the act o f public officials, the exercise
o f any pow er m u st be p roportionate in the circum stances.
55 See C hapters 4 -6 .
56 Of course m any of the offences created by the A ct, such as those connected w ith terrorist
property or those dealing w ith training and direction of terrorism , are, clearly, capable of being
p reparatory to acts of terrorism .
18.10.1 Cordon: restricting access and stop and search

A 'terrorist inv estigation' auth orises con sid erable police pow ers w hich can be
used in resp ect o f the public at large as w ell as those suspected o f terrorism .
Sections 3 3 -6 , and section 37, allow the police to cordon off an area and
exercise certain pow ers w ithin it/’7 This can be d one if a sen ior police officer,
or in an em ergency any police officer, con sid ers it 'exp ed ien t for the purposes
o f a terrorist inv estigation'. A bom b scare is the obviou s situ ation w hen the
pow er m igh t be used but it is by no m eans confined to that. A cordon can,
w ith renew als, last for 28 days. T h e pow er is solely w ithin the d iscretion o f the
police and does not requ ire ju dicial supervision. In so far as C on vention rights
are in issue, such as the right to a hom e u n d er A rticle 8 or the use o f property
un d er A rticle 1 o f the First Protocol, the lack of judicial supervision m ay be a
problem if the C on vention test of legality is not met.
The cordon p erm its the p olice to o rd er people and d rivers to leave an area
and to restrict access to it by ped estrians and vehicles. Failure to com ply w ith
such d irections is a su m m ary offence. U nd er Sch ed u le 5, the d eclaration o f a
cordon can also trigger extensive pow ers o f entry, search o f prem ises, the
seizu re o f item s and the superficial search o f persons.58 If there is a cordon, the
norm al requ irem ent for ju dicial supervision throu gh the process o f applying
for a w arrant is suspend ed . T h e pow ers are based on a police ju dgm ent that
such pow ers are 'exp ed ient' for a terrorist investigation. N othing in the A ct
prevents the d esignation o f an area subject to cordon in o rd er to u n d ertake the
entry, search and seizu re pow er.
18.10.2 Stop and search

Even in the absen ce o f a cordon, the police have a pow er to stop and search
drivers and ped estrians in ord er to look for 'articles connected w ith terrorism '.
This pow er m irrors section 60 o f the C rim in al Ju stice and P ublic O rd er A ct
1994. It is based on the d esignation o f an area b y a sen ior police officer w ithin
w hich it is then perm issible to stop and search anyone in the area w ithout
there need in g to be (as there m u st be u n d er Part I o f PA C E 1984) any grounds
o f suspicion, p articularly against the ind ividu als b ein g searched . The
auth orisation can last for up to 28 d ays.59 There is no ju dicial supervision of
the pow er although the H om e S ecretary m u st be inform ed o f and confirm the
au thorisation. T h e p rocedu res in P art I PA C E 1984 and C od e A m u st be
follow ed in the w ay the search is conducted. The police officer d esignating the
area m ust b elieve the stop and search pow er is 'exp ed ient for the prevention
o f acts o f terrorism '. A ju d g m ent o f 'exp ed iency ' is hard to challenge.
H ow ever, it also m ay lack sufficient precision to enable a person to foresee
w hen the stop and search pow er m ight be used. If so the exercise o f the pow er
m ay be incon sisten t w ith the legality provisions o f A rticle 5 ECH R.
57 Sections 4 8 -5 2 of the Terrorism A ct 2000 allow the police to prohibit car parking in certain areas
if this is considered expedient to prevent terrorism . The declaration of a cordon is not required.
58 Terrorism A ct 2000, Schedule 5, paragraph 3.
59 C om pare the 24 hours under s. 60, Crim inal Justice and Public O rder A ct 1994.
18.10.3 Entry, search and seizure

U nd er section 3 7 and Sch ed u le 5 o f the T errorism A ct 2000, a 'terrorist
inv estigation' au th orises the p olice to seek a w arrant, from a m agistrate, to
enter and search prem ises for m aterial that will be o f su bstantial value to a
'terro rist inv estigation' and seize it in o rd er to p rev ent it bein g 'concealed , lost,
dam aged , altered or d estro y ed '. A 'terro rist investigation' does not require
evid ence of a specific offence, so that, once a terrorist con text is established , a
w arrant should be easy to obtain. T here m u st be a reasonable b elief (by the
con stable applying) and a satisfaction (by the m agistrate) that the m aterial
sou ght w ill be o f substantial value to a terrorist inv estigation and that there
are reasonable ground s for believ in g the m aterial is on the prem ises. W here
resid ential prem ises are to be entered the w arrant m u st be 'n ecessary ' in all
the circu m stan ces. It is hard to im agine a search not bein g necessary if there
is a w ell founded suspicion that m atters o f substantial v alu e to a terrorist
investigation w ill be found. There is, at least, som e form o f ju dicial supervision
o f the exercise o f these pow ers; they are not solely d ep endent on police
discretion. In tim es o f great em ergency, how ever, the A ct perm its that ju dicial
supervision can be d ispensed with.
Sch ed u le 5 auth orises the police to ap p ly to a circu it judge for an order
requ iring the p rod uction o f excluded or special procedu re m aterial, but not
legally privileged m aterial.60 The form er tw o inclu de journalistic m aterial and
so are of p articular interest in a civil liberties context. T h e p ow er is sim ilar to
that in the Police and C rim inal E vid en ce A ct 1984, discussed in C h apter 6. T he
ju d g e has d iscretion to m ake the ord er if, first, the m aterial to w hich the ord er
relates is sou gh t for the pu rposes o f a terrorist investigation and is likely to be
o f substantial v alu e to that investigation, and, second , it is in the public interest
that the ord er should be m ade. A s u n d er PA C E 1984, the focus o f the public
interest test is less on w hether the ground s for an ord er are m ade out and m ore
on w hether, given this, the judge should exercise his or her d iscretion to m ake
the order. It is on that point that argum ents about freed om of the press in
terrorist circu m stan ces can be m ad e.61 T h e need for a free and vigorous press
is, it is suggested , as strong as ever even in respect o f terrorism and a terrorist
con text should not b e used to inhibit p rop er investigation o f alleged
w rongdoing. T h e circu m stan ces in D PP v Channel 4 Television Co. and another,62
w here the broad caster w as even tually fined for b ein g in breach o f a prod uction
order, w as an inv estigation into allegations o f collusion s betw een the police in
N orthern Ireland and protestant p aram ilitary gangs.
T here is a pow er, w ith no equiv alen t in PA C E 1984, to requ ire an
explanation to b e given in respect o f m aterial prod uced under a w arrant or a
p rod u ction ord er.63 L egally privileged m aterial is excluded. T here is a d anger
h ere that a person can be com pelled to incrim inate them selves in breach of
both A rticle 6 E C H R and the com m on law . The explanation, how ever, cannot
be used as ev id ence in cou rt for any offence, in clu ding a terrorist offence. It is
60 See C hapter 6 for the definitions of these term s.

61 R v C entral C rim inal C ourt ex parte Bright [2001] 2 All ER 244 - see C hapter 6 .
62 [1993) 2 All ER 517.
63 Schedule 5, paragrap hs 13-14.
ad m issible only as ev id ence o f the specific offence o f m ak in g a m islead in g

explanation. Jou rn alists have no sp ecial p rotection from these requ irem ents
w hich, again, could have an inhibiting im pact on the m edia.
18.10.4 Obtaining customer information

Section 38 brings Sch ed u le 6 into effect. The police m ay apply to a judge for
an ord er requ iring financial institutions to provide general inform ation about
their cu stom ers' accounts. T hese are accoun ts relevant to a terrorist inv estiga
tion. T h e A nti-terrorism C rim e and S ecu rity A ct 2001 introd uces new
m on itoring procedures. T here is no pow er u n d er Sch ed u le 6 to inspect the
accoun ts w hich, w ithout the b an k 's consent, w ould requ ire a p rod uction ord er
un der Sch ed u le 5.
18.11 Suspected terrorists
T he pow ers discussed in the previous section can be exercised becau se to do

so is exped ient, or o f substantial value to, a terrorist investigation. T here is no
need fo r reasonable suspicion o f crim e or terrorism against the persons
involved. W here, how ever, a person is suspected on reasonable ground s of
involvem ent in terrorism , the T errorism A ct 2000 has significantly increased
the pow ers o f the police to arrest and d etain persons and search prem ises over
those they have in respect o f non-terrorist crim e un der PA C E 1984.
Section 40 defines a 'terrorist' for the pu rposes o f the Act.
Terrorist: interpretation
40 (1) In this Part 'terrorist' means a person who -
(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and
56 to 63, or
(b) is or has been concerned in the commission, preparation or instigation of
acts of terrorism.
(2) The reference in subsection (l)(b) to a person who has been concerned in the
commission, preparation or instigation of acts of terrorism includes a reference
to a person who has been, whether before or after the passing of this Act,
concerned in the commission, preparation or instigation of acts of terrorism
within the meaning given by section 1.
T his d efinition includes m ost of the offences created by the Terrorism A ct 2000
(involving proscribed organisations, terrorist property, terrorist offences,
inciting terrorism overseas, etc.). It extend s to actions o f com m ission, p repara
tion and instigation o f terrorism ev en though these m ay be outsid e the norm al
relation ship o f p roxim ity required for the offences o f con sp iracy or incitem ent.
It operates retrosp ectiv ely in that persons can be treated as terrorists in
respects o f actions d one before the A ct cam e into force. It is im portan t to note,
therefore, that bein g a terrorist or perform in g a terrorist act is not in itself a
crim inal offence. If it w ere, the offence w ould be vulnerable under E C H R not
only becau se the various u n certainties of the d efinition m igh t be incon sisten t
w ith the legality p rinciple b u t also becau se subsection 2 raises an issue u n d er
A rticle 7 E C H R w hich prohibits retrosp ectiv e offences for other than the m ost
heinous and u n civilised acts.
18.11.1 Arrest and detention

Section 41 and Schedule 8
The definition o f a 'terrorist' triggers police pow ers o f arrest, d etention,
question in g and search. Section 41 con tin ues p ow ers that w ere in the
Prevention o f T errorism A ct 1989 and applies them throu ghou t the U nited
K ingdom . T h e section p erm its arrest w ithout a w arrant o f a person against
w hom there is reasonable suspicion that he or she is a terrorist. The arrest can
be to obtain inform ation abou t m atters o f w hich the person is believed to have
know led ge. T he d eten tion under section 41 is for a m axim um o f 48 hours
although it can b e extended up to seven days.
The arrest o f a person un der section 41 brings the rights and duties found
in sched ule 8 o f the A ct into effect. T he sched ule deals w ith m atters such as
place o f d eten tion, tape recording and vid eoin g o f interview s, fingerprinting
and so on.64 T hese are com plex pow ers w hich, as regards fingerp rinting, have
been enhanced u n d er the A nti-terrorism , C rim e and Secu rity A ct 2001.
Sch ed u le 8 stipu lates the rights enjoyed by a person detained u n d er section
41. A s u n d er PA C E 1984, d etainees have the righ t to have a nam ed person
inform ed , and a right to con su lt a solicitor. A s u n d er PA C E 1984, a sen io r police
officer m ay auth orise a postp onem ent in the exercise o f either o f these rights.
The d elay can be for up to 48 hours. W here, un der PA C E 1984, p ostponem ent is
confined to seriou s arrestable offences, u n d er the T errorism A ct 2000, the
ground s can inclu de a reasonable b elief that the im m ed iate exercise o f the right
w ould interfere in various w ays w ith the investigation or p rev ention o f the
com m ission, preparation or instigation o f acts o f terrorism . Police also have the
pow er to insist that any con su ltation w ith a solicitor m u st be in the p resence of
the police. This im plies the b elief that, through con tact w ith legal advisors,
inform ation o f use to terrorists can som etim es be com m unicated .
A s w ith non-terrorist crim e there is a rev iew procedu re for persons detained
under section 41 o f the T errorism A ct 2000. Its pu rpose is to ensure that the
ground s fo r d etention con tin ue to exist and it should be condu cted b y an
officer ind ep endent o f the investigation. A d etained person has the right, in
person or by a solicitor, to m ake representation s to the review officer.
U nd er PA C E 1984, detention prior to charge can be for a m axim um o f four
days, and any period after 36 hours m u st be authorised by a m agistrate. U nder
the T errorism A ct 2000 the m axim um period is seven days. Previous
anti-terrorist legislation allow ed an extended period o f d etention to be
authorised by the Secretary o f State. In Brogan v U nited K ingdom 65 the C ou rt of
H um an Rights held that this violated A rticle 5(1 )(c) EC H R, the requ irem ent
that a d etained person m u st be b rou ght 'p rom p tly' before a 'com p etent legal
au th ority ' w ho has the pow er to ord er release. Sch ed u le 8 of the T errorism A ct
M Terrorism A ct 2000, Schedule 8 , paragrap hs 1 (place of detention), 2 (identity), 3 and 4 (audio

and video recording), 1 0 -1 4 (fingerprints and sam ples).
65 (1988) 11 EHRR 117.
2000 perm its police d eten tion for up to 48 hours. A ny period beyond , to the
m axim u m of sev en days, need s the auth orisation of, in England and W ales, a
district judge. The ground s for an extension are that the judicial auth ority is
satisfied further d etention is necessary to obtain or preserve relevant evid ence,
that the detained person is a terrorist as defined b y section 40 and that the
investigation is b ein g condu cted d iligently.66 The d etainee or his or her
representative m ay be excluded from any hearing, and the court m ay ord er
that som e or all o f the inform ation on w hich the application is based be
sim ilarly w ithheld.67 T h e protection for the d etainee lies in C od e C , m ade
un d er the Police and C rim in al Evid ence A ct 1984, w hich applies to T errorism
A ct detainees. The C od e has provisions for cu stod y records, d iscretionary
visits, interview s, etc.
Convention rights
These provisions raise a nu m ber o f question s regarding com patibility w ith
A rticle 5 EC H R , sched uled u n d er the H um an R ights A ct 1998.
The first concerns the pu rpose o f detention. U nd er A rticle 5 (l)(c ) a person can
be detained ' . . . on reasonable suspicion o f having com m itted an offence or
w hen it is reasonably considered necessary to prevent his com m ittin g an
o ffe n c e . . / D etention u n d er section 41 and Sch ed u le 8 of the T errorism A ct 2000
is authorised not only o f those suspected o f terrorist offences but also, un der
section 40(1 )(b), o f persons suspected o f b ein g concerned in the 'com m ission,
preparation or instigation o f acts of terrorism ' and this, by no m eans, is confined
to crim inal offences. H ow ever, in Brogan v U nited K ingdom (1988)68 (a terrorism
case) and Steel and others v U nited K ingdom (1998)69 (involving breach o f the
peace) the C ourt ad opts an auton om ous, C on vention-specific m ean in g to the
w ord 'offence'. In Brogan the C ou rt found that the acts connoted by the w ord
'terro rism ' w ere 'w ell in keeping w ith the [C onvention] idea o f an offence'.70 In
Steel the C ou rt stressed the need for precision in d efining the ground s for arrest
and d etention and it is certain ly arguable the T errorism A ct's d efinitions of
terrorist purposes and actions m eet the rather lose C on vention criteria of
precision. There is, how ever, room for doubt. The facts in Brogan v U nited
Kingdom , w hich w ere m aterial for the C ourt, w ere that the d etainees, though
arrested on suspicion of terrorism , w ere in fact im m ed iately questioned for
specific offences. T his w ould not n ecessarily be the case in respect o f persons
arrested u n d er section 40(1 )(b) o f the T errorism A ct 2000.
The difficulty o f seekin g com patibility w ith A rticle 5 is exacerbated by the
requ irem ent that, for a d etention on suspicion o f an offence to be com patible
w ith A rticle 5 (l)(c ), it m u st have as its p u rpose the bringin g of a person before
the cou rt on a charge. A d etention u n d er section 41 w hich w as intended m erely
to obtain inform ation from a person w ho w as not believed to have com m itted
an offence m igh t not be com p atible w ith the C onvention.
66 Terrorism A ct 2000, Schedule 8 , paragrap h 32.

67 Terrorism A ct 2000, Schedule 8 , paragrap h 34.
68 (1988) 11 EH RR 117.
69 (1998) 28 EH RR 603.
70 Ireland v United Kingdom (1979-80) 2 EH RR 25, paragraph 196, quoted in Brogan v United
Kingdom (1988) 11 EH RR 117, paragraph 51.
A second area of difficulty deals w ith the righ t to a fair trial un der A rticle
6. T he fairness o f a trial un der A rticle 6 can be d eterm ined in relation to
pre-trial events. A person subject to a crim inal charge, on the basis of
inform ation obtained b y d etention un der section 41 o f the the T errorism A ct
2000, m ight have ground s for com plain t u n d er A rticle 6. A lth ou gh section 41
deals w ith investigation and not trial, the lack of equality o f arm s in the
investigation stage m ay be o f im portance. In p articular, the d efen dan t can be
denied access to the inform ation on w hich a d istrict ju d g e d ecides w hether or
not to extend d eten tion for up to a w eek. T he C ou rt o f H um an Rights, and
U nited K ingd om courts, recognise the p articular difficulties and im portan ce of
terrorist investigations. N everth eless this is not a green light for the authorities
to do as they please and the courts m u st be sure that the essence o f the fair
trial rights in issue are not com p rom ised .71 The go v ernm ent believ es that
section 41 is com p atible w ith the C on vention, and it m ade, at the enactm ent
stage, a d eclaration to that effect u n d er section 19 o f the H um an R ights A ct
1998. Sch ed u le 8 rep rod u ces rules used in N orthern Ireland w hich, apart from
the need for d etainees to be b rou ght p rom ptly before a com petent legal
authority, did not fall foul o f the C onvention.
18.11.2 Search
Section 42 allow s a m agistrate to issue a w arrant to p erm it police to enter
specified prem ises to search for a person reasonably suspected o f falling w ith
section 40(1 )(b) (concerned in the com m ission, preparation or instigation of
acts of terrorism ). A constable executing such a w arrant w ill be law fully on
the prem ises and so be able to seize any item w hich is evid ence o f an offence
u n d er section 19 o f the Police and C rim in al Evid ence A ct 1984. A suspected
terrorist m ay also be stopped and searched anyw here and item s seized .72
18.12 Disclosure offences and media freedom
T he definition o f terrorism , terrorist actions and the state response to terrorism

are p olitically charged m atters. State responses to terrorism are likely to
d im inish, or at least threaten, the p olitical and priv ate liberties o f citizens, and
there w ill be claim s that the auth orities should be given a free hand and that
o pposition is in som e w ay w ron g and tolerant o f violence. In this con text there
is a 'w atch d o g' role for the m edia and for seriou s in vestigative and critical
journalism . A t the sam e tim e the auth orities are entitled to take m easures,
p roportionate to the risk, to d eny groups that m ight be p lanning atrocities
against civilians access to inform ation that could be helpful to them .
O ne issue is w hether terrorist groups them selves (e.g. proscribed o rg anisa
tions) can be denied access to the m edia. This w as tried in respect o f N orthern
Ireland groups in the m id dle 1980s. A m edia ban on the d irect broad casting
71 See M urray v U nited Kingdom (1996) 22 EH RR 29, though, following the Youth Justice and
Crim inal Evidence A ct 1999, the issue of access to a solicitor is no longer significant in respect
of a fair trial (see C hapter 5).
by rep resentatives o f alleged terrorist groups w as im posed under pow ers in

the B road casting A ct 1990.73 Justification for such a ban is to rem ov e the fear
and appreh ension that such broad casts can cause in potential targets and to
den y such groups the 'oxygen o f p u b licity'. T h e m ain objection is that such a
ban m akes it h ard er to understand the m otive and political con text o f terrorist
actions. T he ban w as upheld in the U nited K ingdom cou rts in R v H om e
Secretary ex parte Brind (1991 )74 but w as d ealt w ith u n d er ord in ary principles
o f ad m in istrativ e law and w as not fully m easured against A rticle 10 ECH R.
M edia bans are n ot au th orisable by the T errorism A ct 2000. It is not an offence
for a m em ber o f a proscribed organisation to b road cast although the m edia
w ill need to take care that their activities cannot be construed as an offence
connected w ith organising m eetings p rom oting proscribed organisations
under section 12 o f the T errorism A ct 2000. L im itations on the m ed ia are
principally achieved throu gh the regulatory system and C od es o f Practice.
A ny restrictions w ill now need to be com patible w ith Sch ed u le 1, A rticle 10 of
the H um an Rights A ct 1998.
O ffences
T he T errorism A ct 2000 inclu des offences relatin g to the d isclosure of
inform ation. T hese offences apply to all persons. T hey have no special
ap plication to the m edia and, indeed, are likely to have their m ain im pact on
financial institutions. H ow ever, p otentially, they have a restrictive im pact on
investigative rep orting in a terrorist context.
Section 19 the T errorism A ct 200075 m akes it an offence to fail to inform the
police o f a su sp icion that a person has com m itted one o f the offences relating
to terrorist property in Part III o f the A ct (e.g. fun d-raisin g and m oney
laund ering). T h e offence is lim ited to suspicion that arises on the basis of
inform ation obtained in the cou rse o f a trade, p rofession, business or
em ploym ent.76 T h e offence is intended to p lace d uties, in particular, on
financial institutions to report their suspicions to the police, but clearly such
suspicions m ay easily occur to a journalist. M atters subject to legal privilege
need not be d isclosed by law yers. Inform ation con cern in g terrorism can be
d isclosed even if other statutes, such as the D ata P rotection A ct 1998, m ight
otherw ise to brok en .77
Section 39 of the T errorism A ct 2000 m akes it an offence to disclose to another
that a terrorist inv estigation (as defined by section 32, above) is taking place if
to do so w ould be likely to preju dice the investigation or create an in terference
w ith m aterial likely to be relevan t to the investigation. T his could have serious
and restricting im plications for the m edia and jou rnalists rep orting on terrorist
situations. A n in terference can, for exam ple, inclu d e the d estru ction of
m aterial, such as w hen a n ew sp ap er d estroys inform ation sen t to it rather than
handing it on to the police. P rosecutions requ ire the con sent o f the D P P.78
73 See C hapter 11.

74 (19911 1 AC 696.
75 The section reproduces s. 18A , Prevention of Terrorism A ct 1989.
76 Section 18, Prevention of Terrorism A ct 1989 also related to suspicions arising from hom e and
family life but has not been repeated in the 2000 Act.
Section 58 m akes the collecting or record ing o f inform ation useful to

terrorists, or possessing a d ocu m ent or record w ith such inform ation on it, an
offence. This offence clearly has im plications for journalists, academ ics and
others w ho m ay be in vestigating terrorist activity.
These offences m ay have an inhibiting effect upon journalists investigating
terrorism and terrorist org anisations. They m ay com m it offences if they do not
d isclose their su spicions, or if they pu blish their stories or keep records and
pieces o f inform ation to them selves.
Reasonable excuse
The offences do not requ ire the p rosecu tion to prove an intention to prom ote
terrorism .79 In respect to all three offences the A ct p rovides a d efen ce of
'reaso nab le excu se'.80 W hether, and to w hat extent, the fact that the d efendant
w as involved in bon a fide in vestigative journalism w ill satisfy this d efen ce is
a m atter o f speculation. T h e A ct m akes no reference to the m edia or to any
public interest that m ight be invoked. T h e cou rts, through the com m on law
and on the basis o f Sch ed u le 1, A rticle 10 o f the H um an Rights A ct 1998 fully
recognise the im portance o f freedom o f expression and a free m edia even in
the con text o f national security issues.81 Previous cases su gg est the cou rts w ill
be cautious. In D PP v Channel 4 Television Co. and another (1993)82 (decided
under the Preven tion o f T errorism A ct 1989) the public interest in in v estigative
rep orting did not prevent the cou rts from fining a b ro ad caster for failing to
d isclose the sou rces o f a story that alleged seriou s m alpractice by the
auth orities in a terrorist context. The current 'w ar against terrorism ' m ay be
thought as increasing, not d ecreasin g, the likelihood that the courts w ill find
that the need s of the auth orities in the investigation o f terrorism outw eigh the
p u blic interest in a free press.
In relation to section 39 (d isclosing inform ation about terrorist inv estiga
tions) and section 58 (having inform ation useful to terrorists), section 118
applies. This m eans that a d efen d an t journalist need only raise investigative
jo u rn alism as an issue o f reasonablen ess. If the cou rt accepts this, the burden
then shifts back to the prosecu tion to d isprove the reasonablen ess o f the
journalistic d efen ce at least in the particular case. A s regards section 19 (failing
to disclose suspicions about terrorist finances), how ever, section 118 does not
apply and so the bu rd en o f proving the reasonablen ess rem ains w ith the
m edia organisations. T h e d evelopm ent o f these m atters m u st aw ait case law.

79 C ontrast the offence of disclosing inform ation prejudicing safety at nuclear installations under
s. 79, A nti-Terrorism C rim e and Security A ct 2001.
80 See ss. 19(3), 39(5)(b), 58(3).
81 For exam ple, R v Central C rim inal Court ex parte Bright (20011 2 All ER 244.
82 [19931 2 All ER 517.
Part V
Private life
19
The protection of personal
information
19.1 Introduction
This chapter, and the chapters that follow , deal with different aspects of
privacy. The concept of privacy was introduced in Chapter 1 and it is a feature
of other areas already dealt with such as m edia law. A rticle 8 of the European
Convention on Hum an Rights provides a right to privacy. Its detailed
provisions are dealt with in context.
Respect for privacy requires legal protection against the m isuse of personal
inform ation. This m eans ensuring that, w here personal inform ation is given
w ith consent, it is only used w ithin the term s of that consent, and that w here
it is obtained com pulsorily, covertly or otherw ise w ithout the know ledge of
the person, it is only used for legitim ate purposes. A n im portant feature of
privacy is the right of individuals to have som e control over the use that others
m ake of personal inform ation about them , in particular to prevent the m isuse
of personal data that has been collected for legitim ate purposes. Those in
possession of personal inform ation m ay seek to profit from it or they may
m ake decisions based upon it. Privacy is engaged both in terms of controlling
the use that is m ade of a person's nam e by others and also in term s of giving
som e degree of protection from unasked for, m istaken or im proper intrusions
by others. Regulating the uses of personal inform ation is not m erely a private
m atter. The control of data m ay be of political significance: police or security
service's inform ation held about political groups, for exam ple, m ay include
personal data; inform ation on trade unionists m ay be held by em ployer
associations.
M odern society, through its public and private institutions, has an enorm ous
need for personal inform ation. Technological developm ents, particularly the
com puter, has hugely enhanced the capacity to obtain and use such inform a
tion. C om m ercial businesses, banks, retailers, utility providers, etc., obtain
m asses of inform ation about their custom ers. The obtaining and use of such
inform ation will be largely based on contract. Im proper use of such inform a
tion can be a breach of the particular term s of the contract. Sim ilarly there are
a num ber of general legal rem edies that can apply to the im proper use of such
inform ation. Tw o exam ples are that disclosure or publication of defam atory
personal inform ation can be the basis of an action for dam ages and, secondly,
that the courts will protect certain confidential personal inform ation through
the issuing o f an in ju n ction .1 O f course, it is com m on for people to con sent to

w ide uses of som e o f the personal inform ation that they give to com m ercial
organisations, fo r further ad vertisin g pu rposes, for exam ple.
A m ass o f inform ation is also held by a range of pu blic authorities. T h is is
inform ation that the auth ority m ay need or be required to hold in ord er to
perform its functions. T he inform ation m ay be com pulsorily obtain ed, such as
by the Inland Revenue, o r be obtained as a con sequ ence o f a d ecision by a
person to receive a service, as by H ealth A uthorities and N H S Trusts.
Inform ation is held by public auth orities on the basis o f specific statutory
pow ers. T hese A cts, characteristically, w ill d eterm ine the purposes for w hich
the inform ation can be obtained and the lim its on the pow er o f the auth ority
to disclose the inform ation. Section 50 o f the R ace R elations A ct 1976, for
exam ple, em pow ers the C om m ission for R acial E quality to obtain inform ation
fo r the pu rpose o f an investigation and section 52 m akes it an offence to
disclose such inform ation except un der certain circu m stan ces. T he p olice and
security services have w id e pow ers, discussed in earlier chapters, to obtain
personal inform ation. This can be obtained through the norm al p ow ers of
investigation (C hapter 6) o r through surv eillance (C hapter 7). The holding of
inform ation by pu blic authorities is subject not only to the restraints and
con ditions in the relevan t statutes, but also to the general law such as
d efam ation and breach o f confidence. P ublic auth orities w hich m ake otherw ise
unauthorised d isclosures on the basis of a strong pu blic interest, m ay enjoy a
qualified p rivilege and so be exem pt from action.2 The position o f m any public
auth orities regard ing the d isclosure o f inform ation has been transform ed by
provisions in the A nti-terrorism , C rim e and S ecu rity A ct 2001, discussed
below .
M edia org anisations and jou rnalists em ployed by them are also likely to be
in possession of personal inform ation about ind ividuals. This inform ation m ay
be obtained in the cou rse o f jo u rn alistic investigations and is not held on any
con tractu al or statu tory basis. T h e law recognises a strong pu blic interest in a
free press. N ot only m ay m edia organisations be able to assert a qualified
priv ilege in respect o f d efam ation p roceedings and to press for a ju stifying
public interest in respect of breach o f confid ence, but also, as w e shall see
below , the m edia enjoy con sid erable exem ptions un der the provisions o f data
protection legislation.
There is no express right to have access to personal inform ation in the

C on vention rights in Sch ed u le 1 o f the H um an Rights A ct 1998. The right to
receive inform ation in A rticle 10 has been confined to info rm atio n that
som eone is prepared to give. T he gov ernm ent does not have a positive
obligation to provide access to the personal inform ation it retains or to com pel
1 For further details see C hapter 11 on the m edia and C hapter 16 on national security.
2 For exam ple, R v C hief C on stable o f N orth Wales ex parte A B [1998] 3 All ER 3 10, w here it w as in
the public interest for the police to disclose to the ow ner of a caravan park the fact that a
husband and wife staying there had child abuse convictions.
The protection o f personal inform ation 359
private businesses (w ho are not d irectly bound by the C on vention) to do so in

respect o f the inform ation they keep .3
A rticle 8, respect for private and fam ily life, provides the basis for at least
som e claim s in respect o f private inform ation. In Gaskin v U nited K ingdom
(1989)4 the C ourt of H um an Rights declined to take a view on w hether A rticle
8(1) m ight, in general, provide a right of access to personal data. If this w ere
the case, each and every refusal o f access w ould need ju stification un der the
term s o f A rticle 8(2). T h e C ou rt accepted that there could be a p o sitive duty
on a state to give access to personal inform ation w here there w ere vital
interests, connected to a p erson 's sense o f identity, to w hich the inform ation
related. In Gaskin the inform ation involved the ap p lican t's child hood in care,
and the records w ere the m ain m eans o f having kn ow led ge o f his past. Even
then the C ou rt recognised that there m igh t be ov erw helm ing and reasonable
issues of con fid entiality w hich w ere capable o f d isplacing any d uty to disclose.
In X v U nited K ingdom (1982) ’ the C om m ission o f H um an R igh ts accepted that
inform ation on gender, m arital status and place o f birth could com e w ithin the
protection of A rticle 8. Inform ation in health records w as accepted as covered
by the A rticle in X v Finland (1998).6 M edical evid ence, in exceptional
circu m stan ces, could be d isclosed in closed court but the state had a d uty to
ensure that con fid entiality w as m aintained ; a ten-year ban on reporting was
insufficient. D isclosure o f personal inform ation, for pu rposes other than for
w hich it w as obtained, m ay be incom patible w ith A rticle 8(1);7 if so, any such
d isclosures w ill need justification un der A rticle 8(2).
In the con text o f crim inal investigations, the C ou rt of H um an R ights has
tended to uphold the right o f police and secu rity services to obtain and retain
p ersonal inform ation and to take and retain fingerp rints and photographs of
suspects, even if they are not even tually charged w ith or convicted o f an
offence. T h e p rincipal cases relate to anti-terrorism w here, on the issue of
p roportionality, the C o u rt is prepared to grant a w ide m argin o f appreciation
to the auth orities.8 The extent to w hich the extension of pow ers on these
m atters in the A nti-terrorism , C rim e and S ecu rity A ct 2001 are com p atible w ith
A rticle 8 u n d er the H um an Rights A ct 1998 w ill rem ain to be seen. In the
con text o f terrorism the cou rts m ay be prepared to d efer to official judgm ents
on the risk and the need for special m easures; how ever, it is not clear that such
tolerance w ill apply to the prevention o f non-terrorist crim e.
T he Data Protection A ct 1998 and other relevan t legislation w ill need to be
interpreted for com patibility w ith the scheduled C on vention rights. The
relativ e pau city o f Strasbou rg law d irectly in this area m eans that U nited
K ingdom courts w ill develop their ow n sen se o f the im portance of, in
particular, A rticle 8.
3 L eander v Sweden (1987) 9 EH RR 433; see C hapter 15 for further discussion and case law.
4 (1989) 12 EHRR 36.
5 (1982) 30 D&R 239.
6 (1998) 25 EHRR.
7 See T V v F in lan d (1994) A p 2 1 7 8 0 /9 3 , 76A D&R 140, cited in H arris, D., O 'Boyle, M. and
W arbrick, C. (1995) Law o f the European C onvention on H um an R ights. London: Butterw orths, p.
348.
8 M u rray an d others v U nited K ingdom (1995) 19 EH RR 193; M cV eig h , O 'N eill an d Evans v United
Kingdom (1983) 5 EH RR 71.
19.3 Specific legislation
From the 1980s strong pressu re on successiv e governm ents led to the
enactm ent o f a nu m ber of statu tes that grant rights o f access by ind ividu als to
personal inform ation held about them by public bodies. This legislative trend
can b e linked w ith the trend to greater openn ess in governm ent and the m oves
in the d irection o f perm itting access to non-p ersonal inform ation about
governm ent services and p olicies w hich has been discussed in C h ap ter 15.
Th e Data Protection A ct 1984 gave rights o f access and control in respect of
personal inform ation held on com puters. It applied to m ost pu blic agen cies as
w ell as to private ind ividu als and com panies. It is now repealed and its
provisions taken over and expanded by the D ata P rotection A ct 1998, d iscussed
below . The A ccess to P ersonal Files A ct 1987 allow ed the S ecretary o f State to
m ake regulations for allow ing rights o f access to personal inform ation held by
pu blic auth orities. The A ct w as, un der gov ernm ent pressure, narrow ed so that
regulations could only be m ad e in respect o f personal files relating to social
services9 and h ou sin g .10 It w as repealed by the Data P rotection A ct 1998. The
A ccess to M edical R eports A ct 1988 is still in force and provides a right of
access by ind ividu als to m edical reports m ad e about them for insu ran ce and
em p loym ent purposes. Likew ise the A ccess to H ealth R ecords A ct 1990
rem ains in force and provides for a p erso n 's access, subject to various
exclu sions, to his or her m ed ical records com piled after 1 N ovem ber 1991.
19.4 Data Protection Act 1998
T he D ata Protection A ct 1998 is the p rincipal instrum en t throu gh w hich a

person can have various rights o f control over the personal inform ation that
others, official, com m ercial or otherw ise, hold about her or him . It creates a
com prehen siv e and exclu sive legislative code on the processing or personal
d ata and its ju risd iction is retained by the Freed om o f Inform ation A ct 2000.
R equ ests for personal inform ation are explicitly exem pted from the scope of
the latter Act.
T h e A ct is the legislative response of the U nited K ingdom to the European
C om m u nities Data Protection D irective (1995).11 The D irective has d irect effect
and so not only m u st the A ct be interpreted for conform ity w ith the D irective
but breach by a public auth ority can be the basis o f an actio n .12
19.4.1 The scope of the Act

T he A ct regulates the processing o f inform ation relating to ind ividuals. In its
term s it regulates the processing o f 'personal d ata' about a 'data su b ject' by a
9 Access to Personal Files (Social Services) Regulations 1989, SI 1989 No. 206.
10 Access to Personal Files (H ousing) R egulations 1989, SI 1989 No. 503.
11 D irective on the P rocessing o f Personal Data, D irective 9 5 / 4 6 /E C . This D irective is com plem ented
by a range of other instrum ents including, from July 2002, the D irective on P rivacy an d Electronic
C om m unications, Directive 2 0 0 2 /5 8 /E C .
12 For exam ple, R (R obertson) v W akefield M etropolitan D istrict C ou n cil (20011 EW H C Adm in 915;
120021 2 W LR 889.
'data p rocessor' on behalf o f a 'd ata con troller'. T hese term s are defined in
section 1.
The A ct is concerned w ith 'd ata'. T his involves not only inform ation held
on, and retriev able by, m eans of a com puter b u t also m anual records in so far
as they are part o f a filing system w hich is structured to facilitate access to
inform ation abou t ind ividu als, or are health, edu cation and public records of
certain kin d s.13 U nd er the Freedom o f Inform ation A ct 2000, all personal
inform ation recorded and held by pu blic auth orities (as identified by the 2000
A ct) w ill be included w hether or not it is on a record or filing system , though
the d ata su b ject's rights in respect o f this ad dition al inform ation are lim ited.
The A ct is concerned only w ith 'p ersonal' data: this is d ata from w hich a
living ind ividu al can be identified. It inclu des not only facts about a person
bu t also statem ents o f opinions about them and intentions tow ard s them . The
'd ata subject' is the person id entifiable from the data. A data subject is defined
in term s o f ind ividu als, not associations or com panies.
Data is 'p ro cessed ' w hen various things are d one such as bein g obtained,
recorded , altered, d isclosed and so on. T h e 'data p rocesso r' p rocesses data on
beh alf o f the 'd ata con troller' w ho is the person or organisation w hich
d eterm ines the purposes for w hich data is processed. T he A ct is bind in g on
the C row n bu t is em p h atically not confined to public authorities. Individuals,
pu blic bodies, com m ercial enterprises, all m anner o f associations, etc. can be
data con trollers and are covered d irectly b y the A ct if they are established in
or operating through the U nited K in gd o m .1*1
19.4.2 The data principles

Personal data m u st only be processed accord ing to the 'D ata Protection
P rinciples' T hese are identified in Sch ed u le 1 o f the A ct and m u st be
interpreted in accord ance w ith Sch ed u le 2 15.
First P rinciple and Schedule 2

Principle 1 states:
Personal data shall be processed fairly and lawfully and, in particular, shall not be
processed unless -
(a) at least one of the conditions in Schedule 2 is met and,
(b) in the case of sensitive personal data, at least one of the conditions in Schedule
3 is also met.
Thu s, for ord in ary data, at least one o f the very broad con ditions in Sched u le
2 m ust b e satisfied. T hese con ditions are that: the process is w ith the consent
o f the d ata subject, or is necessary for the perform ance o f a contract w ith the
data subject, or is necessary for com plian ce w ith another legal obligation on
the data subject, or is necessary to p rotect the 'vital interests' (undefined) of
the data subject. Sch ed u le 2 also perm its data processing to facilitate the
13 As defined by s. 6 8 and Schedules 11 and 12.

14 Section 5, D ata Protection A ct 1998.
15 Section 4(4), Data Protection A ct 1998.
perform ance o f public functions by the go v ernm ent or any person; this
inclu des the ad m inistration o f justice. D ata can also be processed in o rd er to
further the legitim ate interests o f the data controller. T h e S ecretary o f State can,
by ord er, prod uce other conditions.
Sensitive personal data: Section 2 and Schedule 3

'Sensitive personal d ata', defined in section 2, is inform ation on a range of
m atters w hich are considered to be p articularly priv ate and in need of
ad ditional protection. It inclu des inform ation on: racial or ethnic origin,
political opinions, religiou s beliefs, trad e union m em bership, physical or
m ental health, sexual life, the com m ission o f offences and inform ation about
crim inal proceedings. It is n oticeable that econ om ic interests, such as earnings
or investm en ts, are exclu d ed . The list is less exteiisive than the range of
personal m atters that receive legal protection in other contexts. T h e grounds
for prohibited d iscrim in ation u n d er A rticle 14 EC H R or the priv ate and fam ily
m atters protected from u n reason able interference u n d er A rticle 8(1) EC H R
inclu de m ore than is covered by 'sen sitive personal d ata'.
S ch ed u le 3 lists a ran ge o f con ditions at least one o f w hich m u st be m et in
ord er to satisfy the first data protection principles in resp ect o f sensitive
p ersonal data. C on dition 1 is that processing sen sitive personal data will
satisfy the first data p rotection p rinciple only if it has the 'exp licit' con sent of
the subject. M any o f the o ther con ditions in Sch ed u le 3 m irror Sch ed u le 2 but
w ith m ore precise sp ecification and ad d ition al safeguards. Sch ed u le 3 also
im poses con ditions in new areas. T hu s inform ation on racial or ethnic origins
can only be processed, w ithout the explicit con sent o f the subject, in ord er to
further racial equality and w ith ad equ ate protections for the rights o f o th ers.16
Paragraph 4 o f Sch ed u le 3 allow s p olitical parties, w ithout explicit con sent, to
p rocess inform ation about the political opinions o f their m em bers and others
connected w ith them , bu t not o f the general p u b lic.17 P aragraph 10 auth orises
the S ecretary o f State to identify further circu m stan ces in w hich the processing
o f personal data m ay take place. This has been d one.18 C an vassing at election
tim es, for exam ple, w hich involves sen sitive personal data obtained from the
general pu blic and so is not covered by paragraph 4 o f Sch ed u le 3, is protected
by the S ecretary of S tate's regulations. T hese perm it canvassin g or political
o pinions by registered political parties so long as any processing o f the data
d oes not cause substantial d am age or d istress to the data subject o f another
p erso n .19
T he other data protection principles

A s w ell as satisfying the First Principle, p rocessing both sen sitive and
n on-sensitiv e data can only be law ful if the o ther seven data protection
p rinciples and follow ed. T hese are: (2) that inform ation should be kept only
for certain specified and law ful p u rposes and not for others; (3) that the
16 D ata Protection A ct 1998, Schedule 3, paragrap h 9.

17 D ata Protection A ct 1998, Schedule 3, paragrap h 4.
18 The Data Protection (Processing of Sensitive Personal Data) O rder 2000, SI 2000 No. 417.
19 The Data Protection (Processing of Sensitive Personal Data) O rder 2000, SI 2000 N o. 417,
paragraph 8 .
inform ation obtained should be p rop ortionate to its pu rposes; (4) inform ation
should be accu rate and kept up to date; (5) it should not be kept longer than
is required by the pu rpose or pu rposes; (6) it should be processed in
accord ance w ith the rights of d ata subjects (as identified in the A ct); (7) that
approp riate m easures are to be taken to avoid unauthorised or unlaw fu l
processing or against accidental loss or d estru ction or d am age; and (8) that the
inform ation is not transferred to a cou ntry outsid e the European Econom ic
A rea un less that cou ntry has ad equ ate data protection. T hese p rinciples are
identified in Sch ed u le 1, Part 1 and are to be interpreted in the light o f Part 2.
Sch ed u le 4 identifies situ ations w here data can be transferred outsid e the EEA ,
the Eighth P rinciple not w ithstanding.
19.4.3 Enforcement
The com plian ce o f data con trollers w ith the D ata P rotection P rinciples is
enforced through the office o f Inform ation C om m ission er (renam ed from Data
Protection C om m ission er w hen given resp onsibilities u n d er the Freedom of
Inform ation A ct 2000). T h e d ecisions of the C om m ission er can be appealed to
the Inform ation Tribunal. Data con trollers m u st register w ith the C om m is-
sioner. 20
The C om m ission er's ju risd iction is concerned w ith w hether the Data
Protection P rinciples have been com plied w ith. This is done through the
C o m m ission er's extensive d uties and pow ers to publish general gu idance on
the ap plication o f the principles in a ran ge of areas21 and throu gh significant
enforcem ent p ow ers in ind ividu al cases.
Inform ation notices and en forcem ent notices

O n application, un der section 42, from a data subject, the C om m ission er has
pow ers to investigate an alleged breach o f the D ata P rotection P rinciples. The
C om m ission er m ay issue an inform ation notice to obtain access to relevant
inform ation. If the C om m ission er finds that the Data P rotection P rinciples
have not been com plied w ith, an enforcem ent notice m ay be issued to the data
controller. A n enforcem ent notice requ ires rem ed ial step s to be taken or that
the con troller d esist from further processing. Failure by a data con troller to
com ply is a crim inal offence.22 T h e A ct p erm its the d efen ce o f due d iligence to
com ply w ith the principles.
A n investigation can also be u n d ertaken on the basis o f the C om m ission er's
ow n su spicions or concerns, w hether or not an in d ividu al has com plained.
The Inform ation Tribunal

The person on w hom an enforcem ent notice has been served has a righ t of
appeal to the Inform ation T ribun al against the issuing o f the notice or the
C om m ission er's refu sal to cancel it. The data subject does not have an
20 D ata Protection A ct 1998, s. 17.

21 For exam ple, the C od e of Practice on the 'Prom otion of a political party: the use of direct m ail',
telephone and e-m ail. For a full list see the Inform ation C om m issioner's website:
w w w .dataprotection.gov.uk.
22 Data Protection A ct 1998, s. 47.
equiv alen t right o f appeal against the C om m ission er's refusal to issue a notice.
The T rib u n al's ju risd iction is w ide: the appeal can be bo th on the ground s that
the notice or refu sal to cancel w as not 'in accord ance w ith the law ' or that the
C om m ission er should have exercised his or her d iscretion over the m atter
differently. T he Tribunal can rev iew the d eterm ination o f facts. Its rem edies
are to allow the appeal (i.e. cancel the notice), substitu te a d ifferent decision
from the range that the C om m ission er could have m ad e, or d ism iss the appeal.
There is a further right of appeal from the Tribunal to the H igh C ou rt on a
point o f law.
19.4.4 Legal rights of data subjects

As w ell as requ iring d ata to be processed accord ing to the D ata P rotection
P rinciples, the D ata P rotection A ct 1998 creates legal rights for data subjects.
These are full legal rights w hich can be enforced d irectly by a court. T hese
rights are also w ithin the C o m m ission er's ju risd iction , sin ce the Sixth Data
Protection Principle requ ires that personal data 'be processed in accord ance
w ith the rights o f data subjects u n d er this A ct'. T hese righ ts are found in Part
II o f the Act. T hey inclu de the righ t o f a d ata subject to be inform ed prom ptly
o f and given inform ation about d ata p rocessing by any data con tro ller and to
receive the d ata from the d ata con troller inclu d ing inform ation abou t its
source.23 D ata subjects have the right to a cou rt ord er stop p in g uses o f data
w hich are likely to cause them substantial d am age or d istress.24 T here is also
a right to a court ord er requ iring a d ata con troller to rectify, in various w ays,
any errors in the personal data held.25 C om pensation can be ord ered, under
section 13, but only w here loss is caused to the person (not necessarily the data
subject) seeking the com pensation. M ere d istress is not sufficient for com p en
sation.
The A ct also creates a crim inal offence o f obtain in g or d isclosing personal
data kn ow in g that the d ata con troller, w ho is legitim ately in possession o f the
inform ation, has not given con sent to d isclosure.26 There are nu m erou s
exem ptions covering the pu rposes for w hich data can legitim ately be obtained.
The D irective on w hich the A ct is based has direct effect. Thu s it can be
argued , on ju dicial rev iew for exam ple, that the A ct, and regulations un der it,
though follow ed by a data con troller, do not give proper effect to the D irective.
The H igh C ou rt m u st then interp ret the A ct so far as possible to give effect to
the D irective.2' T h e A ct, its regulations and o ther related statu tes m ust, of
cou rse, also be interpreted for com patibility w ith the C on vention rights
scheduled in the H um an R ights A ct 1998. Jud icial review is likely to gen erate
only a d eclaratory rem ed y. The A ct should be used d irectly for dam ages,
rectification, etc.

27 R (R obertson) v W akefield M etropolitan District C ouncil [2001] EW H C Adm in 915; [2002] 2 W LR
The protection o f personal information 365
19.4.5 Exemptions
The Act provides for exem ptions. The way in w hich the exem ptions are
interpreted by the Com m issioner, Tribunal and court is very im portant for the
effectiveness of the Act. Exem ptions should be restrictively interpreted in line
w ith their purpose. As under the Freedom o f Inform ation Act 2000, the
exem ptions do not have standard form but are com plex and individuated.
Different, specified classes of inform ation are subject to different degrees of
exem ption from all or som e of the Data Protection Principles (and hence from
the jurisdiction of the C om m issioner and Tribunal) and from all or som e of the
legal rights of subjects in Part II of the Act.
National security
A ny inform ation w hose non-disclosure is necessary for safeguarding national
security is fully exem pt from both the Data Protection Principles (the dom ain
of the Com m issioner) and the legal rights of subjects (the dom ain of the
Com m issioner and the court). A m inisterial certificate is conclusive evidence
of the needs of national security although the reasonableness of the m inister's
grounds for a certificate can be challenged before the Tribunal.
O ther exemptions
The other exem ptions are m ainly lim ited to the subject access provisions (i.e.
the right of a person to know of, receive, correct and prevent m isuse of
personal data). They do not exem pt data controllers from processing data
according to the Data Protection Principles or from other legal duties such as
paying com pensation. The exem ption in respect o f the prevention of crim e and
the assessm ent o f taxes is lim ited to m ost of the First Data Protection Principle
and to the subject access rights of section 7. Subject access to health, education
and social w ork can, on orders made by the Secretary of State, be limited.
Section 31 allow s exem ptions in respect of subject access provisions for
personal data processed for a range of regulatory functions and the activities
of various O m budsm en. There are exem ptions in relation to research, history
and statistics.
The Secretary of State can exem pt, from subject access provisions, personal
data w hose disclosure is prohibited by other statutes or w here exem ption is
necessary to protect the rights and freedom s of others.28
Journalistic, literary and artistic purposes

Personal inform ation held for journalistic, literary or artistic purposes ('special
purposes') receives exem pting treatm ent under section 32 of the Data
Protection A ct 1998. The processing of personal inform ation for such purposes
is exem pt from the Data Protection Principles (except the seventh, w hich deals
w ith taking m easures to avoid im proper processing) and from the subject
access and most of the other legal rights established in Part II of the Act. The
exem ption depends upon the reasonable belief of the data controller (e.g. a
new spaper) that 'having regard in particular to the special im portance of the
28 Data Protection Act 1998, s. 7 and s. 38.

public interest in freedom of expression, publication w ould be in the public

interest'. In com ing to such a judgm ent, the data controller m ay have regard
to any designated code of practice, such as that issued by the Press Com plaints
Com m ission. In other words, personal inform ation can be disclosed by the
m edia on the grounds of a reasonable belief by the press or broadcasters that
it is in the public interest so to disclose. This is a huge breach of the idea that
persons should be able to control the use of personal inform ation that others
hold of them and is said to be justified in terms of the im portance of freedom
of expression. The public interest is a very broad term which can include,
sim ply, m atters the public are interested in.29 By relying on the reasonable
belief of the data controller, the balance of the A ct com es down in favour of
freedom of the press over privacy.
Naomi Campbell sought damages under section 13 of the Data Protection Act 1998
in respect of a story, published in the D a ily M ir r o r , th a t g a v e d e ta ils o f th e tre a tm e n t
sh e w a s o b ta in in g fo r d r u g a d d ictio n .
H E L D : se c tio n 3 2 g a v e e x e m p tio n fro m an a ctio n fo r d a m a g e s to th e p u b lica tio n
o f sto rie s in b re a c h o f th e A c t
Campbell v Mirror Group Newspapers [2002] EWCA Civ 1373
The Court of Appeal rejected the new spaper's argum ent that they were not
covered by the Data Protection A ct 1998 at all, but then accepted their view,
against prevailing academ ic opinion, that the m edia w ere protected by section
32 not only in respect of prior restraints, such as 'gagging' injunctions, but also
in respect of final publication.
The data subject m ay still com plain to the C om m issioner or the court. The
Com m issioner can seek inform ation, through a special inform ation notice,
from the controller, e.g. a media organisation. The C om m issioner cannot,
how ever, serve an enforcem ent notice on the controller unless satisfied that the
personal inform ation is not being processed exclusively for journalistic,
literary or artistic purposes. If it is being processed for these special purposes
but not exclusively so, an enforcem ent order can only be issued if the breach
of the Data Protection Principles is of substantial public im portance. The Act,
therefore, provides no direct protection for privacy w hen personal inform ation
is used exclusively for journalistic, artistic or literary purposes.30 The data
subject still has w hatever rem edies are available from the general law, such as
an action for breach of confidence or, in respect of the m edia, the relevant
regulatory regim e and its Code of Practice. In other words, the Act upholds
media self-regulation.
Exem ptions for exclusively journalistic, artistic and literary uses are perm it
ted by A rticle 9 of the European Directive. H ow ever the D irective perm its such
exem ptions only if they are 'necessary to reconcile the right to privacy with
the rules governing freedom of expression'. The exem ptions in the Act,
however, seem to give priority to m edia freedom rather than a balancing of
the tw o interests w hich the word 'reconcile' m ight be thought to imply.
29 See, for exam ple, A v B Pic [2002] 2 All ER 543, paragraph 48.
30 Data Protection Act 1998, ss. 45 and 46.
The protection o f personal information 367
19.5 Disclosure of information held by public authorities
Public authorities hold vast am ounts of personal inform ation about individuals
and com panies. The Freedom of Inform ation Act 2000 requires that all personal
inform ation held by public authorities be subject to the Data Protection Act
1998 Act even if the sam e kinds and form s of inform ation, if held by others,
would not be covered by the Act. H ow ever, the subject access rights to this
additional personal inform ation held by public authorities are limited.
Characteristically public authorities hold the inform ation on the basis of
specific statutory pow ers which specify the purposes for which the inform ation
can be used and restrict the purposes for w hich it can be disclosed and the
agencies to w hom it can be disclosed. The fact that a health authority has
inform ation about you does not m ean that the inform ation can be disclosed by
the authority to the police or to an insurance com pany. This principle is in
addition to the rules and principles of data protection described in this chapter.
The principle, that public authorities should only hold personal inform ation
for their own purposes, has now been significantly breached. Schedule 4 of the
A nti-terrorism , Crim e and Security Act 2001 identifies m any statutory provi
sions which perm it disclosure of personal inform ation by public authorities.
C haracteristically, these pow ers are severely lim ited and offences com m itted
if they are breached. Section 17 of the 2001 A ct, how ever, authorises the
disclosure of such inform ation to anyone, such as the police, for the purposes
of a crim inal investigation. O nly public authorities w hich com e w ithin the
definition in section 6 of the H um an Rights Act 1998 are covered by the Act,
w hich is likely to be a m ore restricted list than those identified under the
Freedom o f Inform ation Act 2000. The A nti-terrorism , Crim e and Security Act
2001, it should be stressed, enables but does not com pel these disclosures.
There is no guidance on the circum stances in which authorities should disclose
or to whom , although the A ct does require that the authorities m ust be
satisfied that such disclosures are proportionate. 'Processing' includes dis
closure of inform ation.31 Therefore these provisions could violate the Second
Data Protection Principle w hich prevents the processing o f inform ation in a
m anner incom patible w ith the purpose for w hich it w as obtained. Processing
inform ation for the prevention of crim e is exem pt from the second principle,
but the exem ption only applies w here non-disclosure w ould 'be likely to
prejudice' the prevention or detention of crim e etc.32 It m ay not be difficult to
persuade a public authority that the exem ption applies. N evertheless, section
17 needs to be interpreted, and if necessary given a strained interpretation, to
ensure that directly effective rights under the Data Protection D irective are
m aintained33 and, under section 3 of the H um an Rights A ct 1998, be
interpreted for com patability with A rticle 8 ECHR. Sim ilar provisions, relating
to the retention of com m unications data, are found in the 2001 A ct and are
discussed in Chapter 7.
31 Section 1(1), Data Protection Act 1998.

32 Sections 29(3) and 27(4)(b), Data Protection Act 1998.
33 R (Robertson) v W akefield M etropolitan District Council [2001] EW H C Admin 915; [2002] 2 W LR
20
Bodily integrity
20.1 Introduction
P rivacy m eans little unless it includes the idea o f a p erso n 's right to control
w hat happens to his or her ow n body. A perso n 's bod y cannot, b y right, be
touched, beaten, cut, entered , etc. by another w ithout consent. C on versely, a
person, b y right, con trols the uses to w hich his or her bod y is put. N o one, by
right, can be com pelled , for exam ple, to procreate, to use or not use
con tracep tion, to have an abortion, etc.
W e can properly speak of bodily integrity as a m atter o f 'rig h t'. It is cen tral to
the con ception o f p ersonhood up on w hich fundam ental rights are predicated.
T he freed om s inheren t in the notion o f bodily integrity are inheren t in the
m ean in g o f b ein g a 'p erson ' or in the concept of hum an 'd ignity'.
B odily integrity receives its p rincipal protection throu gh the general law in
a range o f con texts w hich are outsid e the scope o f this book. The crim inal law
p rohibits all bu t the m ost trivial interferences. Sim ilarly, in terferences w ith
bod ily integrity can be the subject of a tort action aim ing at d am ages or an
injunction. 'Interference, h ow ev er slight, w ith a p erso n 's elem entary civil right
to security o f the person, and self-d eterm ination in relation to his ow n body,
con stitutes trespass to the p e rso n '.1 C arelessness tow ard s the person o f others
can be the basis o f a negligence action.
N o crim e or tort is com m itted if the in terference has law ful authority. In
C h apter 4 w e have alread y consid ered the extent o f law ful au th ority enjoyed
by police, m ilitary and other state agents to use force, inclu ding lethal force,
in the execution o f their duties. The rights o f other groups, such as parents or
d octors, to interfere w ith b od ily integrity form s m uch of the con tent o f this
chapter.
C rim es and torts m ay not be com m itted if a person p roperly consents to an
in terference w hich w ould otherw ise be unlaw ful. In relation to both crim e2
and tort,3 the effect o f con sent can raise com plex issues. It is clear that,
esp ecially regarding the com m ission of crim es, the granting o f express consent,
though covering the activities and risks in issue, m ay be insufficient to
o v errid e the pu blic pu rposes that ju stify the illegality o f the activity in the first
1 Brazier, M R. (1995) C lerk an d Lindsell on Torts, 17th edn. London: Sw eet & M axw ell, ch apter 12,
p. 583. The passage cites Collins v W illcox [1984] 3 All ER 374, 378, w hich contains further
references.
2 See A shw orth, A. (1999) P rinciples o f C rim inal Law . Oxford: O xford U niversity Press, pp. 3 3 0 -7 .
3 See Brazier, op. cit., ch apter 3.33 et seq.
Bodily integrity 369
place. In particular the general pow er of consent to excuse or nullify otherw ise
crim inal acts is lim ited to assault and battery but does not, subject to im portant
exceptions,4 extend to m ore serious offences.
20.2 Physical punishments
The state, by definition, enjoys the m onopoly of legitim ate violence in society.
This is asserted, ultim ately, by the capacity of the state to punish those who
transgress its rules. The predom inant punishm ents today involve financial
penalties, w ork in the com m unity or im prisonm ent. Physical punishm ent by
the state, is no longer practised in the United Kingdom . Such punishm ents
interfere with bodily integrity. Their unacceptability rem ains controversial,
especially as regards the death penalty. It is hard to identify basic com m on
ground on w hich the protagonists m ight agree. Physical punishm ent m ay be
justified as a deterrent, though there can be disagreem ent over w hether
physical punishm ents in fact deter. For opponents of physical punishm ents,
the issue of deterrence is irrelevant. Any punishm ent m ust be morally
acceptable before there is any point in assessing its deterrent value. Physical
punishm ents are alleged to be m orally unacceptable on various grounds such
as that they violate background rights to life (in the case of the death penalty)
or not to suffer cruel or hum iliating punishm ents (as in birching, for exam ple).
Proponents of physical punishm ents, on the other hand, assert the m oral value
of physical punishm ents. Such punishm ents balance the wrong done by a
violent crim inal and so provide a sense of justice for the victim , and they are
unam biguously form s of punishm ent rather than reform , and as such are m ore
effective in asserting the revulsion of society tow ards the crim es com m itted.
Proponents doubt the m oral claim s m ade by opponents since, conventionally,
institutionalised versions of the right to life exclude the death penalty and a
punishm ent, by definition is hum iliating and degrading.
General principles of law and the law of England and W ales seem to be
hostile to the m ore severe form s of physical punishm ent.
20.2.1 The death penalty

Both A rticle 6 ICCPR and A rticle 2 ECHR, w hich specify the right to life within
their different institutional settings, expressly perm it the death penalty. A rticle
6(2) ICCPR expressly lim its the death penalty to 'the m ost serious crim es in
accordance with the law in force at the time of the com m ission of the crim e'
and prevents the punishm ent from being carried out on persons under 18
years of age or on pregnant women. The jurisprudence and General C om
m ents of the H um an Rights Com m ittee indicate a tendency tow ards abolition5
and the Second O ptional Protocol'’ requires the abolition of the death penalty
4 R v Brown and other appeals [1993] 2 All ER 75; the issue is discussed in m ore detail in Chapter 21.
5 Nowak, M. (1993) U.N. Covenant on Civil and Political Rights. CCPR C om m entary. Kehl: N .P. Engel,
pp. 113-16.
6 Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at
the Abolition of the Death Penalty, 15 December 1989.
by signatories and recognises the general d esirability o f opposition. A m ong

states, the international tend ency is, w ith significant exception s, tow ards
abolition.7
Protocol 6 o f the E uropean C on vention, expressin g a 'gen eral tend ency in
favour o f abolition o f the death pen alty', requ ires abolition by signatory states
although there is an exception in respect o f acts com m itted in tim e of w ar or
im m inen t threat o f war. This Protocol is a 'convention righ t' u n d er the H um an
R ights A ct 1998.
A rticle 3 E C H R cannot be read as abolishing the d eath penalty8 but the
m an ner and the circu m stan ces in w hich a death sentence is im posed can com e
w ithin its term s. A rticle 3 bars sig natory states from extrad itin g or otherw ise
rem oving persons to cou ntries w here they m ay suffer torture or inhum an or
d egrad in g treatm ent or p u nishm ent, even though the cou ntry concerned is not
a signatory o f the C onvention. In Soering v United K ingdom (1989)4 the C ou rt
o f H um an R ights held that the anguish and tension o f bein g on death row for
m any years (w hile the appeals process w as exh austed ) along w ith the
ap p lican t's age at the tim e o f the offences and his m ental state m eant that
extrad ition w ould be incom patible w ith the C on ven tio n .10
In the U nited K ingd om the death penalty is no longer an av ailable
p u nishm ent for any offence. It w as abolished for m u rd er by the M urder
(A bolition o f the D eath Penalty) A ct 1965, section 1(1). This left treason and
p iracy w ith attem pted m u rd er as the only civilian offences carrying a death
sen tence and this p ossibility w as ended by section 36(4) and (5) o f the C rim e
and D isord er A ct 1998. A range o f m ilitary offences such as m iscond uct in
action and m u tin y11 used to be pu nishable by death w hen com m itted by
m ilitary personnel in w artim e or to assist the enem y. The death penalty for
these offences w as abolished by section 21(5) o f the H um an R ights A ct 1998.
Protocol 6 EC H R (m entioned above) will lim it the effectiveness o f any
p urported réintrod uction o f the death penalty. R éintrod uction for m ilitary
offences in w artim e w ould not be incom patible w ith con ven tion rights since
A rticle 2, P rotocol 6 perm its a d eath sen tence (for anyone) in tim e o f w ar or
im m inent threat o f war. In peacetim e, for both civilians and the m ilitary, any
purported réintrod uction w ould have to be non-d iscretion ary since a d is
cretionary sentence, given section 6 of the H um an Rights A ct 1998, w ould need
to be exercised com patibly w ith C on vention rights. A m an d atory sentence
could still be legally effective by virtue o f section 6(2)(a) o f the A ct on the
ground s that, becau se o f prim ary legislation reintrod u cin g capital punishm ent,
the cou rt could not have acted differently; an approp riate court could m ake a
7 For a full discussion of the m oral, political and legal issues, discussed in an an international
context, see the case in which South A frica's C onstitutional C ou rt w as a cruel punishm ent w hich
violated the Constitution: The S late v M akw anyane an d M chu n u (1995) C C T /3 /9 4 ; (3) SA 391.
8 Ibid., paragrap h 103.
9 (1989) 11 EHRR 439.
10 The principle has been applied to an intended rem oval to face possible death or torture at the
hands of factions in the Indian police (C hahal v U nited K ingdom Ap. 2 2 4 1 4 /9 3 ; (1997) 23 EHRR
413) and in respect of a man dying of Aids w ho w as to be rem oved to a coun try with inadequate
m edical facilities (D v U nited Kingdom Ap. 3 0 2 4 0 /9 6 ; (1997) 24 EH RR 423).
11 For exam ple, ss. 2 4 -2 6 , 36, A rm y A ct 1955.
declaration of in com p atibility .12 T he sched u ling o f A rticles 1 and 2 o f P rotocol

6 is also likely to prevent extrad ition or other form s o f rem oval o f a person
from the U nited K ingd om to a cou ntry w here he or she is in danger of
suffering death. N o longer w ill it be necessary to rely on surrou nd ing
circu m stan ces such as the 'd eath row p hen om ena' so as to p revent such
rem ovals u n d er A rticle 3.
20.2.2 Corporal punishment: as a criminal punishment

C orp oral pu nishm ents for crim inal offences and for prisoners have been
rem oved from E nglish law .13 A n act o f birch in g in the Isle of M an, w here the
pu nishm ent w as retained, w as held to violate A rticle 3 E C H R in T yrer v U nited
K ingdom .
T, a 15-year-old Isle of Man resident, was sentenced to be birched. He had been

convicted of assault occasioning actual bodily harm. After the sentence had been
carried out he complained11 to the European Court of Human Rights.
HELD (ECHR): the birching amounted to degrading treatment and violated Article
3 ECHR.
Tyrer v United Kingdom (1978) 2 EHRR 1
T he C ou rt held that the d egree o f d eg rad ation in birch in g w ent beyond that
inherent in p u nishm ent gen erally; in this it w as influenced by d eveloping
E uropean standards. W hether a p u nishm ent v iolated A rticle 3 dep ended on
an assessm en t o f all the circu m stan ces such as, in this case, the institu tional
ised natu re o f the pu nishm ent by w hich he w as entirely under the direct
physical control of those in authority, and the m ental anguish o f anticipating
w hat w as to be d one to him . A pu nishm ent that violated A rticle 3 could not
becom e accep table by b alancing the degrad ation against the strength of
cou ntervailing ad vantages such as, fo r exam ple, any d eterrent effects the
p u nishm ent m ight have. Tyrer applies to corporal pu nishm ent generally.
20.2.3 Corporal punishment: parents and children

The freed om o f parents and those w ith control o f child ren to ad m inister
reasonable physical correction w ithout either crim inal or tort liability for
assau lt or battery is preserved by section 1(7) of the C h ild ren and Young
Persons A ct 1933. W ithout the intention to pu nish, parents m ay be liable for a
range of offences for physical n eglect and abuse. T h e com m on law has long
recognised this righ t o f parents, and o f teachers w ho m ay be in loco parentis,
to 'for the p u rpose o f correcting w hat is evil in the child inflict m od erate and
12 W hich could trigger rem edial action if the political will changed.
13 Finally by s. 65, Crim inal Justice A ct 1967 w hich abolishes corporal punishm ent for prisoners.
14 T yrer sought to w ithdraw his application but the C ou rt decided to continue with the case.
U nder the Strasbourg system , friendly settlem ents are com m on but raise the aw kw ard point
that the state is, in som e circum stances, buying its w ay out of responsibility for a hum an rights
violation.
reasonable corporal p u nishm ent, alw ays, how ever, w ith this condition, that it
is m od erate and reaso n ab le'.15
The d octrine of reasonable chastisem ent cam e un der scru tin y for com pati
bility w ith A rticle 3 E C H R in A v U nited Kingdom (1999).
A, a 9-year-old child, was regularly beaten by his stepfather with sufficient severity to
cause bruising. The stepfather was prosecuted for causing actual bodily harm but
acquitted by a jury on the basis of a ‘reasonable chastisement’ defence.
HELD (ECtHR): there had been a violation of Article 3 ECHR. The injuries caused
were, in all the circumstances, including the age of the victim, above the threshold
level of severity required to establish inhuman and degrading punishment. The state,
though not directly responsible for the stepfather’s actions, was required to take
measures to ensure that the provisions of Article 3 were met and the jury’s acquittal
meant it had failed in this regard.
A v United Kingdom (1999) 27 EHRR 611
The state m ust do m ore th an bring a prosecution. It has a positive d uty to

ensure that the application o f the law is sufficient to d eliv er A rticle 3 rights for
children. A rticle 3 requ ires a careful, structured con sid eration in w hich factors,
such as age, sex, the instrum en t used and so on are p roperly w eighed in the
question o f w hether a pu nishm ent is law ful or not. L eaving the m atter to the
un structu red good sense o f a ju ry creates a d anger o f arbitrariness and
inequality in the p rotection offered by E nglish law , and this is not com patible
w ith A rticle 3. T he Strasbou rg case law does not requ ire an outright ban on
corporal punishm ent. T he governm ent con tin ues to perm it sm acking of
child ren b y p aren ts.16
20.2.4 Schools
Section 548 o f the E ducation A ct 1996, as am ended in 1998, abolishes corporal
pu nishm ent in all schools, w hether fully or partially m aintained or in d ep en
den t.17 It bans corporal pu nishm ent (defined as any action w hich w ould
otherw ise con stitute a battery) in so far as it is given in pu rsu it o f any right
such as, in particular, the com m on law right o f reasonable chastisem ent of
pupils by teachers. It is pu nishm ent that is banned and not the use of
reasonable force to avert im m ed iate personal danger or d am age to property or
d isru p tion .18
C orp oral p u nishm ent is defined in relation to the tort o f battery and this
includes the ap plication o f ju st a slight d egree o f force. T h e ban is m ore
extensive than is necessary u n d er A rticle 3 ECH R. In C ostello-R oberts v U nited
15 R v H opley (1860) 2 F & F 202, 206; 175 ER 1 0 2 4 ,1 0 2 6 (punctuation as in the original). Blackstone,
nearly 1 0 0 years earlier, justified parents enjoying the freedom of reasonable correction on the
groun ds of the benefit to the child's education: Blackstone, W . (1 7 6 5 -6 9 ) C om m entaries on the
Law s o f England, volum e 1, ch apter 16, p. 2.
16 D epartm ent of H ealth (2000) P rotectin g C hildren, Supporting Parents. DoH.
17 C orporal punishm ent had been banned in m aintained and other public sector schools by the
Education (No. 2) A ct 1986, s. 47(1). This w as re-enacted by the Education A ct 1996 w hich s.
131 of the School Standards and Fram ew ork A ct 1998 A ct am ended to include independent
schools.
18 Section 550A (1), Education A ct 1996 inserted by s. 4, Education A ct 1997.
Kingdom (1993)19 there w as, in all the circu m stan ces, no v iolation o f A rticle 3
w hen a 7-year-old bo y at an ind ep en d en t board in g school w as beaten, on his
buttocks, throu gh his shorts, three tim es w ith a ru bber-soled gy m shoe. There
w ere no significant after effects. The C ou rt accepted that the U nited K ingdom
w as responsible for providing the freedom s u n d er A rticle 3 even though the
pu nishm ent w as ad m inistered in an ind ep en den t school. The facts in the case
can be com pared w ith other cases such as Warzvick v U nited Kingdom (1989) or
Y v U nited Kingdom (1994)20 w here v isible inju ries w ere caused by the
ad m inistration o f corporal pu nishm ent to a 16-year-old girl and a 15-year-old
boy respectively. In Warzvick the C om m ission found the p u nishm ent to be, in
all the circu m stan ces, d egrad ing; in Y a friend ly settlem ent w as reached to the
expressed regret o f a com m issioner.
The interference with bodily integrity inherent in corporal punishm ent is capable
o f being an interference w ith a p erson's private life under A rticle 8(1)21 and, if so,
w ould need to be justified by the state u n d er A rticle 8(2). The ad m inistration of
p u nishm ent is not, in itself, a p erm issible ground for such interference.
A rticle 2 o f Protocol 1 requ ires states to respect the religiou s and p hilosoph i
cal con viction s o f parents in relation to the educational functions that it, the
state, undertakes. T he p ow er o f teachers to p u nish seem s to be based on
delegated auth ority from parents. D espite this parents have found it difficult,
in practice, to w ithd raw that au th ority w ithout having to rem ove their child ren
from schools w hich, in the con text of com pulsory edu cation, can result in
crim inal penalty if alternative schools cannot be found. In Cam pbell and Cosans
v U nited K ingdom (1982),22 a challenge to the use o f the taw se in Scottish state
schools, the C ou rt o f H um an Rights held that d eeply held parental view s on
pu nishm ent could be thought o f as p hilosophical convictions w hich the state
needed to recognise. Such a line o f argum en t m igh t be a tw o-edged sw ord in
that equally seriou s and cogent parental view s in favour o f m ild corporal
pu nishm ent m igh t also need protection.23 The A d m in istrative C ou rt in the
U nited K ingdom , how ever, has d istingu ished a p hilosophical objection to
corporal pu nishm ent from paren tal acceptance that corporal pu nishm ent is an
effective m eans to good discipline. It denied the p rotection o f A rticle 2 of the
First P rotocol to teachers and parents of certain C h ristian ind ep en den t schools
w ho w ere seeking to challenge the legal ban on corporal p u nishm ent.24
20.2.5 Children's homes

C orp oral pu nishm ent is banned in ch ild ren 's hom es u n d er regulations
produced by the S ecretary o f State w hich m u st be follow ed by local auth orities
19 (1995) 19 EHRR 112.

20 (1989) 60 D&R 5; (1994) 17 EH RR 238.
2t Costello-R oberts v U nited Kingdom (1995) 19 EH RR 112.
22 (1982) 4 EHRR 293.
25 For exam ple, Seven Individuals v Sweden Ap. 8 8 1 1 /7 9 ; (1982) 29 D&R 104. The p arent's case w as
held to be inadmissible because the ban on mild corporal punishm ent they objected to did not
have the force of law.
24 R (W illiam son) v S ecretary o f State fo r Education an d Em ploym ent [2001] EW H C Adm in 960; [2002]
1 FLR 493. The C ourt of Appeal held that Article 2g Protocol 1 w as engaged, though it
dismissed the appeal. [2002] EW CA C iv 1820; [2003] 1 All ER 385.
and other bodies responsible for operating hom es.25 Regulations, produced by
the Departm ent of H ealth, ban 'physical punishm ents' in day nurseries,
playgroups, children's centres and crèches, but, by am endm ents introduced in
A ugust 2000 by the Departm ent of H ealth, perm it sm acking by childm inders
w hen perm ission has been given by parents. Previous guidance had suggested
that a refusal by a potential childm inder not to sm ack could be a significant
ground for refusing to register her; however, a local authority that treated the
refusal as an autom atically sufficient ground for not registering, could be held
to be acting unlaw fully.26
20.3 Bodily integrity, the right to life and the right to consent to
medical treatments
20.3.1 Suicide and euthanasia

Bodily integrity raises agonisingly difficult questions concerning the pow er a
person has, law fully, to choose to die. The issue is w hether a person has a legal
right, under dom estic or hum an rights law , to die rather than to suffer in ways
which are, to them, undignified and intolerable. In hum an rights terms, in
issue is the right to life (A rticle 2 ECHR) and the right to private life (Article
8 ECHR).
A person m ay choose to kill them selves. Suicide, a willed act of self-
destruction,27 is not an offence under English law and, consequently, neither
is attem pting suicide.28 Sim ilarly, the right to life in international law has not
been interpreted in a way that places a duty on states to m ake suicide an
offence though, conversely, there are no express requirem ents that states
w ithdraw the threat of crim inal penalties from suicides. Prosecutions for
attem pted suicide are, arguably, interferences with the private life of the
w ould-be suicide and so would require justification under the terms of Article
8(2) ECHR.
The problem s for the law arise if a person of sound mind w ishes to die but
the acts or om issions of third parties, including m edical professionals, are
required for this to happen.
D octors and other m edical staff, by agreeing to care for their patients, take on
a legal duty tow ards their patients. Deliberate, even if well intentioned, breach
of that duty, if it leads to an outcom e recognised by the crim inal law such as
death or severe injury, can be the basis of an offence. A ctions intentionally
causing death m ay justify a m urder conviction; failing to discharge the duty by
being recklessly or negligently indifferent to the fate of the patient could justify
a m anslaughter conviction.29 Sim ilarly, breach of the duty can be the basis of a
private action for dam ages, a tort action in trespass for exam ple.
25 The Children's Homes Regulations 1991, SI 1 9 9 1/1506, paragraph 8 ; the Children Act 1989, s.
63(11) and Schedule 6 .
2fi Sutton LBC v D avis [1995] 1 All ER 53.
27 Clift v Schw abe (1846) 3 CB 437; followed in In re Davis, Deed [1968] QB 72.
28 Section 1, Suicide Act 1961.
29 R v Stone, R v Dobinson [1977] 2 All ER 341, where the duty w as attributed to an inadequate
couple who had taken on the care of the m an's sister.
T he scope o f the d uty to treat is lim ited by the clear con sent o f the patient.
Failure to give approp riate treatm ent w hen a patient of sound m ind refuses
consent w ill not be a b reach of d uty by a d octor.30 The sen se o f personal
auton om y, inheren t in the notion o f bo d ily integrity, m eans that an adult
patient, w ho can give effective con sent, m u st be respected in the choice they
m ake even though relatives, professionals or others think that the result is
against the p atien t's best interests and even if the outcom e is the p atient's
death.31
Th e p rinciple o f personal auton om y is sufficiently strong to outw eigh the
w ishes or interests o f others such as d ep en den t relatives. A foetus has no
ind ep en den t legal interest in respect o f a m o th er's d ecision w hether or not to
have a caesarian birth; even if it did, it is d oubtful w hether such an interest
could ou tw eigh a m o th er's auton om y.32 T here is no evid ence o f a greater
recognition o f a fo etu s's rights un der the E C H R than under E nglish law.
C on sent o f an apparen tly sen sible ad ult has o ccasionally been set asid e but
norm ally on the ground s that, in the circu m stan ces, an auton om ous choice
could not be exercised .33
This fundam ental right to refu se treatm ent and accept death w as given
em ph atic recognition, on the princip le o f auton om y, in Re B (C onsent to
treatm ent: Capacity) (2002).34
A hospital trust refused the request of a patient who, though mentally competent, had
a severe physical disability, that she should be able to decide when her life support
apparatus should be switched off. In making such a choice she would be deciding the
time of her own death.
HELD: a declaration would be granted in favour of the patient. The personal
autonomy of the patient, who was of sound mind, needed to be respected despite the
consequences.
Re B (Consent to treatment: Capacity) [2002] EWHC 429; [2002] 2 All ER 449
A state's d uty to p rotect persons from d egrad ing treatm ent, u n d er A rticle 3
EC H R, m ay requ ire respect for auton om y sin ce w hether a high ly invasive
treatm ent is, in all the circu m stan ces, intolerably d egrad in g m ay depend upon
the ju d g m en t o f the p atient and be necessarily expressed through their
granting or w ithhold ing o f consent.
The 'living w ill' o f a com p etent ad ult is likely to be accepted by the courts.
This involves instruction s as to treatm ent in circu m stan ces that, at the tim e of
the w ill, are foreseen and in w hich, w hen they occur, the patient w ill not be
30 R v Blrnie [1975] 1 W LR 1411.

31 R e JT (A dult: R efusal o f M edical Treatm ent) [1998] 1 FLR 48 (refusal of renal treatm ent); Re C
(A dult: R efusal o f M edical Treatm ent) [1994] 1 W LR 290 (refusal of am putation of gangrenous leg).
32 St G eorge's H ealthcare N H S Trust v S; R v C ollins an d others ex parte S [19981 3 All ER 673 and Re
M B [19971 8 Med LR 217.
33 For exam ple, Re T (adult: refusal o f m edical treatm ent) [1992] 4 All ER 649 C A (a lapsed Jehovah's
W itness's refusal to accept a blood transfusion w as based on the overbearing influence of her
m other).
34 [2002] EW H C 429; [20021 2 All ER 449. The principle is clearly endorsed by the H ouse of Lords
in A iredale N H S Trust v Bland [1993] 1 All ER 821 (e.g. 859, per Lord Keith), although this case
did not involve a m entally com petent patient. See also St G eorge's H ealthcare N H S Trust v S; R
v Collins an d others ex parte S [19981 3 All ER 673.
able to give or w ithd raw his or her con sent.35 The position o f such 'ad vance
directives' m ad e in the absen ce o f kn ow led ge o f any p articular, d eveloping,
con d ition is m uch less certain .36
W here w h at the doctors 'd o ' involves not giving treatm ent in the first place
or w ithd raw ing treatm ent and allow ing an illness to take its course, their
actions are likely to be classified as 'om issio n s' in law and , if d one w ith the
free and specific con sent o f the patient, will not be unlaw ful eith er as a crim e
or a tort. T h e p rinciple o f 'd ou ble effect' is also recognised in law : w here a
doctor, as part o f a treatm ent for w hich there is consent, properly prescribes
drugs, usually for the relief o f pain, w hich have the incidental, foreseeable
effect o f b ringin g about an outcom e the law otherw ise forbids, such as the
p atien t's earlier d eath .37 Legal acceptance o f such 'passiv e eu th anasia' is not
incon sisten t w ith C on vention righ ts.38
H ow ever, if w hat the d octor 'd oes' is seen by the cou rt as a positive act, best
understood as hastening death, then there is the likelihood that a serious
offence w ill have been com m itted. T he p atien t's consent, even though given in
sound m ind and as a clear expression o f their auton om y, is irrelevant. The
policy o f the law is that the con sent o f a victim is not a d efen ce to serious
crim es against the person such as m u rd er or m an slaughter.39 Euthanasia based
on positive actions is unlaw fu l and it is irrelevan t that the doctors and other
p rofessionals acted in good faith w ith the h u m anitarian m otive o f relieving
acute suffering.40 T o kill som eone in response to their requ est is likely to be
m u rd er un der E nglish law . Section 2 of the Suicid e A ct 1961 m akes it an
offence to aid, abet, cou nsel or procure the suicid e or attem pted suicid e of
another. T h e m axim um sen tence is 14 years im prisonm ent. T he consent o f the
D irector o f Public P rosecutions is required for a prosecu tion .41 T he law on this
has been recently affirmed by the H ouse o f Lords and agreed as being
com p atible w ith C on vention rights.
P suffered from motor neurone disease and wished to avoid the pain and indignity she
would have to bear in the final stages of her illness. She was not dependent on a
life-support machine. She was of sound mind but was physically incapable of ending
her own life. She needed the assistance of her husband to help her commit suicide
at an appropriate time. She sought a declaration from the DPP that her husband would
not be prosecuted under section 2 of the Suicide Act 1961.
HELD:
35 A iredale N H S Trust v Bland [1993] 1 All ER 821, 836, 859.

36 M ason, j.K . and McCall Smith, R.A. (1999) Law an d M edical Ethics, 5th edn. London:
Butterw orths, pp. 43 3 -4 4 .
37 Recognised in A iredale NH S Trust v Bland; following R v A dam s (1957) - see Palm er, H. (1957)
'D r A dam s' Trial for M urder', Crim I.R 365; R v Cox (1992) 12 BMLR 38. See also: R v M oor
[20001 C rim LR 31, discussed in C ooper, S. (2000) 'Sum m ing up intention', 150 N L ] 6949, 1258.
38 H arris, D., O'Boyle, M. and W arbrick, C. (1995) L aw o f the European Convention on H um an Rights.
London: Butterw orths, p. 38.
39 R v C ox (1992) 12 BMLR 38. See also R v Brow n an d other appeals [1993] 2 All ER 75, discussed
in C hapter 21.
40 A iredale N H S Trust v Bland 867, per Lord Goff.
41 Participation in a suicide pact is, on the part of a su rvivor, likely to am ount to the com m ission
of an offence under s. 2 although the public interest is unlikely to require a prosecution (D unbar
v Plant [1998] Ch 412 CA).
(1 ) th e Bill o f R ig h ts 1689 d e n ie d th e D P P th e p o w e r to m a k e p ro s p e c tiv e p ro m is e s to se t

th e la w a s id e in in d iv id u a l c a s e s ;
(2 ) A rtic le 2 E C H R did n ot im p o s e a p o s itiv e d u ty on s ta te s to a llo w a s s is te d s u ic id e ; a n d
(3) th e re w a s no b re a c h of A rtic le 3
R (Pretty) v DPP [2001] U K H L 61; [2002] 1 A C 800
T he H ouse o f L o rd 's view that A rticle 2 E C H R did not con fer a righ t to die
w as agreed w ith by the C ou rt o f H um an Rights. T he Strasbou rg court also
found that there w as no breach o f a d uty by the state, u n d er A rticle 3, to
prevent a person suffering d egrad in g treatm ent. A rticle 8(1), on the other
hand, w as engaged. T h e 'essen ce' o f the C on vention is resp ect for d ignity and
freedom , and it is through the con cep t o f private life that question s about the
q uality o f life can be asked. H ow ever, the C ou rt held that the state had
satisfied the requ irem ents o f A rticle 8(2): the D P P's refusal w as a proportionate
ap plication o f a legal ru le designed to protect the term inally ill from fraud and
abuse and w as, therefore, for a legitim ate pu rpose.42
In so far as the argum ent about con sensu al killing turns on the d istinction
betw een acts and om issions there can be seriou s difficulties. T here is an
arbitraryness in the w ay m atters are classified : the w ithd raw al o f treatm ent,
w hich clearly requ ires action by d octors, is, nev ertheless, classed as an
om ission. It m ay be illogical, even cruel, to grant or w ithhold perm ission for
a death to occu r on the classification o f w hat need s to be done, w hen it is the
condition o f the patient, the reasonablen ess o f their d esire for death, that
should be in issue. A helpless w ou ld -be suicid e is denied a freed om that he
o r she w ould otherw ise have solely becau se o f their helplessness and the need
fo r an o th er's assistance. U nd er A rticle 14 E C H R the C on vention is violated if
a m atter covered b y the C on vention is dealt w ith in a m an ner w hich
d iscrim in ates betw een different types o f persons and w hich does not have a
reasonable ju stification. In P retty v U nited K ingdom (2002) the C ou rt o f H um an
R ights decided that the ban on assisted suicid e, w hich included both those of
sound and unsound m ind, had a reasonable ju stification (protection o f the
term inally ill from abuse and fraud) and so did not violate A rticle 14. There
is, o f course, no m oral consensu s on the issue and for those w ho intuitively
oppose euth anasia the d iscrim in ation point is absurd yet for those w ho
support euthanasia it gives legal expression to a m ajor reason for that support.
20.3.2 Child of sound mind

A utonom y, up to and in clu ding a refusal o f treatm ent w hich will cause death,
is lim ited in resp ect o f child ren and you ng persons u n d er 18 years old and of
adults not o f sound m ind.
R egarding child ren, the law accepts that parents and those w ith parental
responsibility can give con sent on b eh alf of their child ren. The Fam ily Law
Reform A ct 1969, section 8(1) gives m inors b etw een the ages o f 16 and 18 the
right to con sent to m ed ical treatm ent. A child u n d er 16 m ay be able to give
consent to treatm ent u n d er the G illick principle.
42 Pretty v U nited Kingdom (Ap. 2 3 4 6 /0 2 ) [2002] 2 FLR 45.

A Department of Health circular asserted that a doctor could lawfully prescribe

contraceptives to girls under the age of 16 (the age of consent) and, exceptionally, do
so without their parent’s consent. The health authority refused to give G an assurance
that her daughter would not be given contraceptives or advice without her consent.
HELD (HL): that there was no absolute fixed rule that parents had the exclusive right
to consent to their children’s medical treatment. A child of sufficient understanding and
intelligence who fully understood the treatment that was proposed and its conse
quences and who could make a well founded decision was capable of consenting to
his or her own medical treatment.
Gillick v Wes? Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC
112
T he significance o f 'Gillick com petence' d im in ishes w ith the seriou sn ess of the
m ed ical issues involved. W here there is the likelihood o f death or irreversible
d am age resultin g from a com petent ch ild 's refusal o f treatm ent, the principle
m ay m ean little m ore than the need to give seriou s con sid eration to the w ishes
o f a child w hich w ill, nevertheless, be overridd en on strong p aternalistic
ground s reflecting the cou rt's un derstand ing o f the future quality o f life
probably av ailable to the child. T he cou rts have held that the expressed w ishes
o f an otherw ise com p etent child can be overreached by a cou rt exercising its
w ard ship or inheren t ju risd ictio n o r by parents or others exercising parental
responsibility. Section 8 o f the Fam ily Law R eform A ct 1969 does not extend
to a refusal o f con sent and does not rem ov e the rights others m ay have to give
consent con cu rrently w ith that o f a com petent child .43
If in telligent un derstand ing is the m ain criterion for consent, it is arbitrary
fo r this to be d eterm ined by age: it is u n reason able to d en y to som eone under
18 and otherw ise com petent absolu te control over their bod ily integrity on
ground s o f age alone. Su pp orters o f a m od ified G illick position, w hich seem s
to reflect the current law , can deny the claim o f arbitraryness on the grounds
that it is good ju dgm ent, not ju st intelligence, that is in issue and good
ju d g m ent is a m atter o f experience w hich is itself a function o f age.
20.3.3 Incompetent child

A child m ay be incom petent w hen, becau se o f age, d evelopm ent or som e kind of
m ental incapacity, he or she is not capable o f sufficient u n derstand ing to b e able
to give effective consent to m edical treatm ent. In that case, consent can be given
by parents or others w ith parental responsibility w hich m ay inclu d e local
auth orities w ith care resp onsibilities u n d er the C h ild ren A ct 1989. C on sent can
also be given by the cou rt exercising its w ard ship ju risd iction or u n d er its
inheren t pow ers over child ren w ithin its ju risd iction. T h e w ish es o f children
concerned are to be taken into accoun t to an extent that reflects their intelligent
p erception bu t it is im plicit in the law that these w ish es can be overborn by those
w ith (until the child is G illick com petent) the pred om inant pow er to consent.
41 For exam ple, R e W (a m inor) (m edical treatm ent) [1992] 4 All ER 627 - refusal by a 16-year-old
girl of best interests treatm ent for anorexia nervosa; R e R (a m inor) (w ardship: m edical treatm ent)
[1991] 4 All ER 177 - refusal by a 15-year-old girl, w ard of court, of best interests treatm ent for
deteriorating m ental health; Re M (child: refusal o f m edical treatm ent) [1999] 2 FLR 1097, w here
the court overrode a com petent child's wish not to have a heart transplant.
T he basic test used by the cou rts is the 'best interests' o f the child. The view s
o f d octors and other professionals are likely to be prom in ent and m ay, in
approp riate cases, even ov erru le parental w ishes. P arents m ay be sim ply
negligent, in w hich case they are likely to have com m itted an offence under
section 1 o f the C h ild ren and Youn g P erso n 's A ct 1933.44 A ltern ativ ely they
m ay be m otivated by a reason o f b elief or con scien ce to refu se con sent to
life-saving treatm ent. H ere, again, a parent m ay be liable for the offence4’ and
the con scien tiou s natu re o f the refusal is no d efence. A ny righ t to freed om of
thought, con scien ce and religion u n d er A rticle 9 EC H R is subject to restriction
in respect o f protectin g the rights o f others, in clu ding the child. A cou rt m ay
be asked to ord er treatm en t on the basis, for exam ple, o f an application for the
child to be m ad e a w ard by a local auth ority, d isch arging its duty, u n d er the
C h ild ren A ct 1989, to safeguard and prom ote the w elfare o f child ren in their
area.46 O n the basis o f the best interests o f the child the cou rts have been
prepared to ord er treatm ent to be given to seriou sly ill child ren, d espite their
p aren ts p reference that the child should be allow ed to d ie a natural d eath,47
and have even, exception ally, perm itted d octors to w ithd raw treatm en t from
very ill babies against the w ishes o f paren ts.48 It is now no longer sufficient to
con sid er only the 'b est interests' o f the child b u t also his or her C onvention
rights such as a 'rig h t', inheren t in A rticle 3, to d ignity in death and perhaps,
in respect o f argum ents abou t the quality of life, a ch ild 's lim ited righ t to
private life un der A rticle 8 EC H R .4'1
20.3.4 Incompetent adults

For patients detained un der the M ental H ealth A ct 1983 som e treatm ents for
the m ental d isord er can be given w ithout con sent.50 T reatm en ts not d irectly
aim ed at alleviating the m ental d isord er, how ever, requ ire consent. T he courts
no longer have ju risd iction , parens patriae, to give consent in the p atient's
stead .’1 T he court is com p etent to d eclare a cou rse o f treatm ent, chosen by
d octors or carers bu t to w hich the ad u lt is un able to consent, not unlaw fu l so
long as it is in the p atien t's best interests.52 T h e best interests test is criticised
for giving too m u ch w eight to the view s o f p rofessionals, thou gh the test is not
confined to their view s. A person w ith im paired m ental capacity but w ho can,
nevertheless, understand the pu rpose o f proposed m ed ical treatm ent, is
entitled to the legal p rotection o f his right to con sent to treatm ent’’3 or to refuse
44 R v Sheppard an d an other [1980] 3 All ER 899.

45 R v Senior [1899] 1 QB 283, as explained in R v Sheppard an d an other [1980] 3 All ER 899.
In R e R (M inor) (1993) 15 BMLR 72 the court overrode the w ishes of Jehovah W itness parents
that their child should not receive blood products.
47 R e B (a m inor) (w ardship: m edical treatm ent) [1981] 1 W LR 1421.
48 A N ation al H ealth Service Trust v D [2000] 2 FLR 677.
49 Pretty v U nited Kingdom (Ap. 2 3 4 6 /0 2 ) [2002] 2 FLR 45.
50 Section 63, M ental Health A ct 1983.
51 F v West B erkshire H ealth A uthority an d an other (M ental H ealth A ct C om m ission in tervening) [1989]
2 All ER 545 H L.
52 F v Wes/ Berkshire H ealth A uthority an d an other (M ental H ealth A ct C om m ission in tervening) [1989]
2 All ER 545 HL.
53 R e C (A dult: Refusal o f M edical Treatm ent) [1994] 1 W LR 290.
treatm en t even if m ay lead to d eath .54 In A iredale N H S Trust v Bland (1993)55

the H ouse o f L ords declared that it w as approp riate for doctors to cease
life-preservin g treatm en t o f a you ng m an in a 'p ersistent v egitativ e state' on
the test o f the p atien t's best interests. T here w as no legal requ irem ent that life,
for itself, m u st be preserved d espite the absen ce o f any quality to the life. This
approach is not incom p atible w ith A rticle 2 ECH R. A ny p ositive d uties on the
state w ere discharged by a properly m ad e clinical d ecision based on a test of
the p atien t's b est interests.56 Follow ing Pretty v U nited Kingdom , it can be
suggested that any con trary principle, asserting the value o f life itself over an
assessm en t o f its quality, w ould be incom patible w ith A rticle 8.
20.4 Bodily integrity and non-therapeutic treatment

20.4.1 Non-therapeutic interventions
The cou rts can ord er, or uphold the rights o f others to im pose, non-th erapeutic
m ed ical treatm en ts on in d ividu als, p articularly children. T hese are physical
intervention s done, w ithout or irresp ective o f con sent, and the prim ary
pu rpose is not to cure a d isease but som e other social or legal purpose. C ourts
have, for exam ple, various pow ers to ord er m ed ical exam in ations o f children.
These m ay be for pu rposes o f assessm en t or to ju stify an em erg ency protection
m easu re.5' Such pow ers are exercised in the b est interests o f the child and are
con sisten t w ith C on vention rights in so far as they seek to protect the interests
o f child ren.58 Sim ilarly, blood tests, d one to prove paternity, can be ordered by
a cou rt u n d er pow ers in section s 2 0 -2 3 o f the Fam ily Law Reform A ct 1969.
The con sent of a person ov er 16 is required. In the case o f sm all child ren, if
such con sent is not forthcom ing from the person w ith care and control, the
cou rt can ord er a test in the best interests o f the child .59
Parents can con sent to n o n-th erapeutic p rocedu res o f a relativ ely m inor kind
at least so long as they do not reach the level o f sev erity o f inhu m an or
degrad in g treatm ent im plicit in A rticle 3 ECH R. Ear piercing o f young
child ren to satisfy paren tal vanity, perh aps to confirm gen der to a w id er
w orld, is an exam ple; it is u n likely to cause serious resentm ent w hen the child
grow s up. Som e tem ptations for parents, or o ld er child ren, are prohibited by
law. T attooing o f a person u n d er 18, other than for m edical reasons, is an
offence60 and this is best explained by the p erm anency o f the procedure.
20.4.2 Circumcision and cultural identity

Parents can con sent to the ritual circu m cision o f their you ng son s.61 Such an
operation can be seen as in the ch ild 's best interests in so far as it is an
54 Re JT (A dult: R efusal o f M edical Treatm ent) [1998] 1 FLR 48.

55 [1993] 1 All ER 821.
56 N H S Trust A v M /N H S Trust B v H [2001] 1 All ER 801.
57 For exam ple, ss. 43 and 44, Children Act 1989.
58 A lso consistent w ith the basic principles of the United N ations C onvention on the Rights of the
Child.
59 See S v S [1972] A C 24 for the com m on law approach.
6(1 Tattooing of M inors A ct 1969.
61 As they can do when such a procedu re is m edically called for.
im portan t feature in establish ing the social, cultural and religiou s identity of
the boy and his acceptance in, pred om inantly, the M oslem or Jew ish
com m u nity into w hich he has been born. W here parents agree it seem s the
circu m cision is law ful. T his w as agreed obiter b y the H ouse o f Lords in R v
Brown (1994),62 supported b y the Law C om m ission63 and exp ressly accepted by
the C ou rt o f A ppeal in Re J (child's religious upbringing and circum cision) (2000).64
W here paren ts d isagree, the issue is u ltim ately for the court to decide.
C ircu m cision is one o f a nu m ber o f irreparable interv ention s, such as
sterilisation, w hich requ ire ju d icial authority. A gain, perm ission is based on a
ju d g m en t o f the ch ild 's best interests and cannot be d eterm ined solely by those
w ith paren tal responsibility.65
P arents cannot con sent to the ritual circu m cision o f their d aughters. Section
1 of the P rohibition o f Fem ale C ircum cision A ct 1985 m akes the perform ance
o r the aiding, abetting, cou nselling or procuring o f such a procedure, for
n o n-th erapeutic pu rposes, a seriou s crim inal offence. Thou gh the argum ents
for cultural identity and acceptance m ay be as strong as they are for m ale
circu m cision, fem ale circu m cision is d istingu ished on the ground s that it is
'u nd ou bted ly a m u tilation w hich is designed to control fem ale sex u ality '.66
M ale circu m cision is seen as a m ore slight, norm ally harm less, intervention
w hich cannot ju stify legal prohibition. There is a d evelopin g body of hostile
m ed ical opinion and som e evid ence that sexual pleasure is, in fact, dim inished
by the rem oval o f the foreskin.67 If the latter is the case to any significant
d egree then the ground of d istin ction w ith fem ale circu m cision is dim inished
and a case for abolition is m ad e stronger.
In R e J (2000)68 it w as accepted that parents had rights un der A rticle 9 EC H R
to bring their children up w ithin the tenents o f their religion and this can
inclu d e ritualistic practices such as circu m cision. T he problem is that such a
righ t is lim ited, u n d er A rticle 9(2), by reference to the righ ts of others. If
m ed ical evid ence accu m ulates that m ale circu m cision is harm ful and if there
are com plain ts from circu m cised ad ults (secular Jew s or M uslim s, perhaps),
the cou rts m ay have to rule on w hether child hood , non-consensual circu m
cision is a v iolation of a p erson 's right to p rivate life. T he courts could take a
strong lin e and hold that parents can only give con sent for their child ren in
m ed ical cases; alternatively, and m ost likely, they w ould m aintain the 15651
interests' test w hich, given the lin k to social acceptance, is likely to be m et by
circu m cision w here p aren t's agree.
62 R v Brow n [1994] 1 AC 212, 231.

63 The L aw C om m ission C onsultation Papers Vol. 23, pp. 119-20.
M [2000] 1 FCR 307. See Vickers, J. and Board, J. (2000) 'Circum cision - the Unkindest C ut of AH',
N l.j 1694 (17 N ovem ber).
65 Re / (child's religious upbringing an d circum cision ) [2000] 1 FCR 307, paragrap h 32, per D am e
Elizabeth Butler-Sloss.
66 R e I (Specific Issu e O rders M u slim U pbringing an d C ircum cision) [19951 2 FLR 678, 6 8 8 . See R v
A desanya (1994) The Tim es, 16 and 17 July.
67 D r S's evidence as sum m arised in R e ] [1995] 2 FLR 678.
68 [20001 1 FCR 307.
20.5 Abortion, life and privacy
E nglish law does not recognise a foetus as having a legal righ t-bearin g
existen ce ind ep en d en tly of the rights and interests o f the m other.69 Sections 58
and 59 o f the O ffences A gainst the Person A ct 1861 create offences designed
to prevent m others intentionally procuring their m iscarriage and section 1 of
the Infant Life (P reservation) A ct 1929 m akes it an offence intentionally to
cause the death o f an unborn 'ch ild ' w hich is cap able of b ein g born alive.
T w enty-eigh t w eeks w as stipulated as the period from w hich a child is
presum ed to be cap able of being born alive.
These provisions are now subject to the A bortion A ct 1967 as am ended by
the H um an Fertilisation and E m bryology A ct 1990. A ll law ful abortions m ust
be perform ed by a registered m ed ical practitioner and be agreed to on the
basis of opinions as to the perm issible ground s form ed by tw o registered
m ed ical practitioners acting in good faith.
O ne ground for perm issible abortions is lim ited to p regnancies that have not
exceeded their tw enty-fou rth w eek. T his is w here, u n d er section 1(1 )(a) o f the
A bortion A ct 1967:
. . . th e c o n tin u a n c e o f th e p reg n an cy w o u ld in v o lv e risk , g r e a t e r th a n if th e

p r e g n a n c y w e r e te r m in a te d , o f in ju ry to th e p h y s ic a l o r m e n ta l h e a lth o f th e
p r e g n a n t w o m a n o r a n y e x is tin g c h ild re n o f h e r fa m ily .
Section 1(2) perm its m ed ical practitioners to take 'the p regnant w om an 's actual
or reasonably foreseeable env ironm en t' into account in the assessm ent o f risk.
This is a con troversial ground o f abortion. C ritics allege that, given the high
level of safety o f abortion m eth od s, there w ill alw ays be a greater risk o f injury
to a pregnant w o m an 's health from con tin uing w ith a p regnancy than from
early term ination. T h e A ct says nothing about the reasons a w om an m u st have
for seeking an abortion and so, critics say, the A ct p rovides 'abortion on
d em and '. T h e A ct, it should be noted, rem oves from m ed ical practitioners a
crim inal liability w hich w ould otherw ise exist. N oth in g in the A ct gives a
w om an the right to insist upon an abortion even if the ground s exist. D octors
are under no duties to perform an abortion bu t m ay do so for any legal reason
so long as the ground s exist. The law is silent on the reasons for perform ing
abortions and this is left to the m ed ical agencies, N H S, com m ercial and
charitable.
Th e controversial natu re of abortion and its obvious bearin g on fundam ental
issues o f respect for life explain the provision u n d er section 4 o f the A bortion
A ct 1967. T his allow s a person to refu se on ground s o f con scien ce w hat w ould
otherw ise be a con tractu al or statu tory d uty to participate in any treatm ent,
other than a life-saving treatm ent, auth orised by the A ct. The burden o f proo f
lies w ith the con scien tiou s objector. C on scientiou s objection m ay only be
to lerable so long as it has no im pact on the achievem en t of p u blicly agreed
69 For exam ple, In R e F (in utero) [1988] Fam 122; Paton v BP A ST [1979] QB 276, 279; C v S [1988]
QB 135, 140; and see St G eorge’s H ealthcare N H S Trust v S; R v C ollins an d others ex parte S [1998]
3 All HR 673 and Re M B [19971 8 Med LR 217.
purposes. It is w rong that a personal ju d g m en t of con scien ce can veto the

im plem entation o f a collectively agreed good. The con scien tiou s objection o f a
sen ior d octor could, for exam ple, lim it abortion provision in a p articular area
o f the N H S. If there is no legal d uty to provide abortion services, then no legal
problem s arise. H ow ever, regarding the N H S, there is likely to be a general
duty, founded in ad m inistrativ e law , for the d istribution o f services to be
grounded on reasonable, egalitarian ground s and the con scien ce clau se could
m ean that the availability o f abortion is lim ited by the arbitrary factor o f the
presence in key posts o f con scien tiou s objectors. C on scientious objection is
lim ited to those d irectly involved in the m edical activity o f an abortion. It does
not extend to ancillary w orkers, such a m ed ical secretaries or referring G P s.70
A bortion is perm itted on three other grounds. T hese are less con troversial
since they em bod y pu rposes for w hich m ed ical treatm en t w ould norm ally be
expected. T h ey are:
Abortion Act 1967, section 1(1)

(b) th a t th e te r m in a tio n is n e c e s s a r y to p r e v e n t g r a v e p e r m a n e n t in ju ry to th e
p h y s ic a l o r m e n ta l h e a lth o f th e p r e g n a n t w o m a n ; o r
(c) th a t th e c o n tin u a n c e o f th e p r e g n a n c y w o u ld in v o lv e r isk to th e life o f th e
p r e g n a n t w o m a n , g r e a te r th a n if th e p r e g n a n c y w e r e te r m in a te d ; o r
(d ) th a t th e r e is a s u b s ta n tia l risk th a t if th e ch ild w e r e b o r n it w o u ld s u ffe r fro m
s u c h p h y s ic a l o r m e n ta l a b n o r m a litie s a s to b e s e r io u s ly h a n d ic a p p e d .
T he p regnant w o m an 's 'actual or reasonably foreseeable env ironm en t' can be

taken into accoun t in the risk assessm en t under (b). A bortion perform ed under
these three ground s is not tim e lim ited nor linked to the Infant Life
(P reservation) A ct 1929 and so can, in theory, be perform ed on a 'child capable
o f bein g born alive'.
T he E uropean C on vention on H um an Rights has not provided the basis for
strong gu idance on the law s that states ought to have in respect o f abortion.
W om en likely to have standing u n d er A rticle 34 w ill usually be com plaining
about too restrictive abortion law s, though restrictive regim es, such Irelan d's,
have not been d irectly challenged. A ban on abortion w hich applied not
w ithstan d ing a sig nificant threat to a w om an 's life or health w ould be hard to
ju stify under A rticle 2 E C H R w hich, arguably, im poses a d uty to perm it
life-saving abortions in such extrem e and restricted circu m stances. The
C om m ission has held that abortion is not sim p ly a m atter o f private life71 and
h ence states do not have to ju stify their abortion law s in term s of A rticle 8(2)
ECH R. T here have been challenges to liberal abortion regim es. The father m ay
h ave standing u n d er A rticle 34 to b ring a Strasbou rg case, but has few
substantiv e rights to p revent an abortion w hich is otherw ise law ful u n d er the
d om estic law .72 In RH v N orw ay73 the C om m ission accepted a ru le perm itting
early abortion w here having a child w ould 'place [the m other] in a difficult
situ ation in life'. T h e basic issue o f w hether a foetus has a righ t to life un der
70 Jan aw ay v Salford A H A [1988] 2 W LR 1350 H L.

71 B ruggem atm an d Scheuten v FR G (1978) 10 D&R 100.
72 Paton v U nited Kingdom (1981) 3 EH RR 408.
73 H udoc. Ap. 1 7 0 0 4 /9 0 .
A rticle 2 E C H R has been left undecid ed by the C ou rt.74 But the C ou rt is also
clear that, even if the foetus does have such a right, there rem ains an im plied
lim itation to protect the life and health o f the m oth er w hich can be given effect
by an abortion law.
74 Paton v United Kingdom (1981) 3 EH RR 408.

21
Sexual freedom
21.1 Introduction
Few would contest that the sexual drive, in its direct non-sublim ated form , is
one of the most pow erful and determ ining of the features through w hich the
hum an person is defined. Sexuality and sexual activity are significant
com ponents of any description o f a hum an individual. It deals w ith the most
intim ate and personal aspects of a life and w ith the involvem ent with others.
Sexuality is essentially linked to the concept of a person as a private
individual. From this perspective there are no questions of the com m on good
or the public interest that relate to sexuality and any role for the law is
doubtful. The law should not delim it sexual practices or partners; in particular
it should not restrict the freedom to m arry and have children with w hom one
wants.
Indeed, sexual freedom , or aspects of it, m ay be asserted as a fundam ental
hum an right. N atural law thinkers, for exam ple, com m only assert that a right
to procreative freedom , the freedom to have children, is self-evidently
fundam ental; the justification for such rights is derived from reasoning about
hum an nature and the general circum stances of hum anity.1 If sexual freedom
is justified only by the self-evident good of procreation, however, the full range
of sexual practices, such as m asturbation, felatio and buggery and hom osexual
practices of any kind, w ill fall outside the scope of a fundam ental right to
sexual freedom . A different philosophical position m ight assert that the
pursuit of pleasure is the underlying point to life. This w ould, of course, justify
a right to the full range of sexual practices but, unlike procreation, it is hard
to see w hy such a right should be fundam ental and outw eigh claim s about the
public interest, the com m on good or the pow er of m orality.2 A right to sexual
freedom , w hich is not lim ited to procreative activities but extends to the full
range o f sexual activity, is, therefore, best understood as an incident of the
m ore general right to privacy. On this view, and apart from procreative sexual
activity, the right to sexual activity can reasonably be restricted on the sam e
grounds as any other aspect of privacy, no less than but also, m ore
controversially, no more than.
1 For exam ple, Finnis, J. (1980) N atural Laiv and Natural Rights. Oxford: Oxford University Press,
for whom procreative freedom is a basic good.
2 One of the earliest defences in English of homosexuality, on utilitarian grounds, is by Jerem y
Bentham - see Bentham, J. (1978). 'Offences Against Oneself: Paederasty', in Journal o f
H om osexuality, Sum m er-Fall, published by Hawarth Press.
T he pow er o f sexu al p assion, how ever, m akes it an area o f life that is open
to abuse and this is one reason w hy the law is used to regulate it. Sexual
activity m ay be im posed up on another, inclu ding through violence or the
threat o f violence, and m ost societies have special offences such as, in England
and W ales, rape and ind ecent assau lt, to try and deal w ith this. U su ally such
offences are com m itted by m en against w om en but are not confined to such.
D espite the absen ce o f violence or its threat, sexual activ ity m ay be im posed
upon another through the exploitation o f a relation ship o f trust.
C on troversially, how ever, sexuality is linked to m orality and to socio
cultural ideas o f right and p rop er behaviou r. M any societies have sou gh t to
lim it certain sexual practices and to p u nish them even if u n dertaken on the
basis o f consent. M ale h om osexu ality gen erally and buggery, bo th h eterosex
ual and hom osexu al, have been prim e targets. Thou gh consented to by those
involved, they are seen as un derm ining the m oral valu es o f the m ajority or of
an idea o f society as a w hole, and therefore w orthy o f suppression. Sim ilarly,
societies have, through their legal system s, som etim es tried to prom ote
m arriage as the prim ary con text for sexual activity. A Freudian explanation for
such m oral thinking is based on the fear o f the pleasu re principle, o f the
d estru ctiv e im pact o f unbridled and unsu blim ated sexuality on the progress
o f civ ilisation.1 A m ore econom ic approach explains such m oral thinking
in term s o f the social need to control the fecu nd ity o f w om en. This m ay be
rooted in a m an 's alleged need to be con fid ent in the legitim acy o f his
heirs and thus the security o f his p rop erty4 and d iscloses itself in partriarchy,
the need and o pportu nity o f m en to exert pow er and possession over
w om en. T hrou gh con tracep tion and through econom ic and social change,
w om en are now m ore able than ev er befo re to inhabit p rim ary econom ic,
social and political roles that, previously, have been preserved for m en. G iven
this, the econ om ic explanation for general m oral restriction on sexual practices
is severely w eakened and, w ith it, w e find society today find ing few er
and few er m orally based reasons for lim iting sexual activity by con senting
adults.
In The Enforcem ent o f M orals5 P atrick D evlin argued that the state had a
legitim ate interest in up hold ing strongly felt m oral valu es in society and could,
in reference to the issue o f the day, enforce crim inal sanctions against
consensu al hom osexu al practices on these ground s. T he test for w hat w as or
w as not perm issible w as not a m atter o f m ajority opinion bu t could be left to
the good sen se o f a ran d om ly selected jury. T h e basis o f the arg u m en t w as that
such m oral d iscrim in ation is essential to the coh esiven ess and integrity o f a
society; its identity as a w hole is conditioned by m oral values, and from this
com es the legitim ate interest o f the state to su ppress im m oral behaviour. W hat
w as or w as not perm issible w ould change ov er tim e.
O bjections to this v iew con test m any o f its assu m ptions: in particu lar that
social coh esion really does d epend up on up hold ing p articular view s of
3 Freud, S. (1930) C ivilisation an d its D iscontents. London: H ogarth Press.

4 See David H u m e's fam ous argu m en t justifying the application of different m oral stan dards to
men and w om en on sexual m atters; H um e, D. (1978) A Treatise o f H um an N ature. O xford: Oxford
University Press.
5 Devlin, P. (1965) The Enforcem ent o f M orals. O xford: Oxford University Press.
Sexual freedom 387
acceptable sexual b ehav iou r and, second , that, even if this w ere true, there is
no test for id entifying w hat those standards m igh t be w hich is sufficiently
rigorou s to be a safe foun dation for a crim inal penalty.
Those opposed to the 'enfo rcem ent of m orality' are also likely to uphold a
liberal conception of law . T his requ ires that, on m atters o f personal b ehaviou r,
the only test for legal intervention is w hether harm to others w ill result.
B eh aviou r w hich is h arm less to others should not be subject to crim inal
sanction even if it harm s those in volved.6 T he difficulty w ith d efining 'h arm '
is very great and for som e p olitical theorists it is a sufficient reason for
d iscard ing the approach. The arg u m en t from harm is at its strongest if 'h arm '
is defined as harm to an o th er's interests; that is to say, an action is only
harm ful in the required sense if it prevents others d oing som ething that,
becau se it is in their interests, they w ould otherw ise w ant to do. The point of
the argum en t is to prevent an action being stop ped sim p ly becau se others,
w ho m ay be the m ajority or an influential group, are offended or disgusted by
know ing o f the action. T he fact that an action is thought to be offensive or
d isgu sting is not in itself sufficient to ju stify legal constraint.
M ore recent, con tractarian accoun ts o f liberalism are also likely to oppose
the 'enforcem ent o f m orality' by the law . A t the heart o f such accoun ts is the
claim that the state should be 'n eu tral' as betw een d ifferent con ceptions o f the
good. Ind iv id u als w ill have different view s o f w hat goes to m ake a w orthw hile
life for them , and the state has no bu siness in p rom oting one v iew over another
bu t should establish just con ditions in w hich one perso n 's freed om can be
perm itted as far as it is com patible w ith the equal d egree o f freedom for
others.7 Sexual activ ity and sexual identity are likely to figure significantly in
m an y p eo p le's con ceptions o f w hat is good for them and, accord ing to the
theory, should be perm itted so long as it does not p revent others acting in
pu rsu it o f their ow n interests. O n this view a neutral state has a d uty not to
interfere w ith con sensu al choices on sexual activity.8
21.2 Reform of the law
T he law in England and W ales is b ein g reform ed . In Ju ly 2000 the H om e Office

published a review o f sexual offences, Setting the B oundaries: R eform ing the law
on sex offences9 and m any o f its principles and proposals w ill be enacted in
2003.10 For Setting the B oundaries any reform of the law should reflect the
tolerance now found in social attitudes. The underlying princip le is that the
law should not invade sexual privacy unless there are strong reasons for doing
so. N orm ally these w ill be based on lack o f consent. The law should m aintain
and even expand crim inal offences based upon the absen ce of consent.
6 The argu m en t is associated w ith John Stuart Mill: Mill, J.S. (1962) On Liberty. London: Fontana,
ch apter 1 .
7 See Rawls, J. (1972) A Theory o f Justice. O xford: Oxford University Press, and the tradition of
political theory it has spaw ned.
8 See, for exam ple, Leader, S. (1990) 'The Right to Privacy, the Enforcem ent of M orals, and the
Judicial Function: An A rgum ent’, Current Legal Problem s 1 1 5 -3 4 .
9 H om e Office, July 2000.
10 See: Sexual Offences Bill, 20 0 2 -3 .
H ow ever, throu gh p roperly defined offences, the law should con tin u e to
protect the v u lnerable, in particu lar child ren, the m en tally im paired and those
in a relationship o f trust, even if they m ay have given, or ap p ear to have given,
their consent. T he law should not differentiate betw een rules ap p licable to
m en, to w om en and to hom osexu als. It should only ever regulate consensu al
sex b etw een com p etent ad ults for 'very good reaso n ', w hich can inclu d e the
protection o f the fam ily as an institution. The review contains a consid eration
o f the law in the con text o f the H um an Rights A ct 1998 and the need for
com patibility o f English law w ith C on vention rights.
2 1 .3 Convention rights
Sexual activity and sexual identity are engaged by A rticle 8(1), the 'right to
respect for private and fam ily life', a sched uled C on vention right in the
H um an R ights A ct 1998. 'P rivate . . . life' extend s to the m akin g o f relatio n
ships w ith others, covers the 'em otional field, for the d evelopm ent and
fulfilm ent o f o n e's ow n perso n ality ' and inclu des the 'physical and m oral
integrity o f the p erson' part o f w hich is a p erso n 's sexual life.11 Sexual activity
in public, how ever, m ay fall o utsid e the protection o f A rticle 8(1).12 Restrictions
on sexual activity, therefore, m u st be ju stified in the term s of A rticle 8(2): they
m u st be 'in accord ance w ith the law ', for one o f the legitim ate pu rposes listed,
and each in d ividu al restrictive act m u st be p roportionate and thus 'n ecessary '.
A rticle 8(2) allow s restrictions to be 'fo r the protection of health or m orals or
fo r the protection o f the rights and freed om s o f o thers' and these term s are
likely to be sufficient for any reasonable legal restrictions. W here a restriction
is based on the protection o f m orals, the C ou rt o f H um an R ights tends to allow
a w ide m argin o f appreciation. T h e C on vention also prohibits d iscrim in ation,
less favourable treatm ent, in respect o f a C o n vention-protected freed o m .13
Law s that d istin gu ish betw een the treatm en t o f heterosexuals and h om osex
uals m ay be in issue on this point. Less favourable treatm en t can be perm itted
in term s o f a 'reason able and objective ju stification ', but w idespread social
dislike o f an o th er's sexual p references is u n likely to m eet this test.
The C ou rt o f H um an R igh ts has held that, in som e circu m stan ces, A rticle 8
m ay im p ose a positive d uty on states to take steps to ensure that A rticle 8
freedom s are protected. In p articular the state m ay need to ensu re that the law
provides ad equ ate p rotection for vulnerable people from sexual exploitation.
G ap s in the law w hich leave vulnerable people exposed to risk to their private
life m ay need to be filled.14
11 See for exam ple N iem ietz v G erm any (1992) 16 EHRR 97; X v Iceland (1976) 5 D&R 8 6 ; X an d Y
v The N etherlands (1985) 8 EH RR 235.
12 H arris, D., O 'Boyle, M. and W arbrick, C. (1995) Law o f the C onvention on H um an R ights. London:
Butterw orths.
13 Article 14 ECHR.
14 X an d Y v The N etherlands (1985) 8 EH RR 235: the Convention w as breached because the law of
The N etherlands prevented a child with a m ental disorder from bringing a crim inal action; in
S tubbings v United K ingdom (1996) 23 EH RR 213, the C ou rt of H um an Rights em phasised the
du ty on states to protect children and the vulnerable from serious interference w ith their private
life.
Sexual freedom 389
21.4 The limits of consent
M ost sexual crim e does not lead to m ajor civil liberties issues. It is a m atter of
non-consensual sex forced on an ad ult or a child, usually by a m ale adult,
som etim es by an older child. Such b ehav iou r is pu nished by a ran ge of
offences, such as rape or ind ecent assault. From the perspective o f this book
the focus is on those form s o f sexual relation ship w hich are forbidd en or
restricted by the law irrespective o f w hether there is con sent or not.
21.4.1 Children
The age o f con sent to sexual intercou rse and sexual acts w hich, w ithout
consent, w ould be acts o f ind ecency is 16, both for h eterosexual and
hom osexu al acts. Intercou rse w ith a girl un der 1315 is a seriou s offence w hich
can lead to life im prisonm ent; intercou rse w ith a girl betw een 13 and 16,
though still an offence, is less serious.'*’ C on sent is not in issue. N either a girl
nor a bo y un der the age of 16 is law fully able to consent to a sexual act w hich
w ould , in the absen ce o f con sent, be an ind ecent assau lt.17 Even actual full
con sent, by a 'Gillick com petent' 15-year-old, does not p revent such offences
being com m itted although the prosecu tio n 's d iscretion m ay p revent a case
bein g brought. Such offences are not rape, there is actual consent, and the
con cep t o f statu tory rape is not proposed by Setting the Boundaries. R ape retains
its d eep seriou sn ess by b ein g based on the absen ce o f actual consent. The point
o f the law is that the state has a d uty to protect child ren and you ng persoiis
from exploitation or m an ip u lation and from the con sequ ences o f their ow n
poor ju dgm ent. Setting the Boundaries proposes to keep the age o f con sent at 16
for such reasons. T he age o f con sent also gives you ng persons un law fu lness
as a reason for refu sing a sexual advance. A higher age o f con sent, 18, has been
introd uced by the Sexual O ffences (A m end m ent) A ct 2000. This relates to
relation ships w here an ad u lt is in a p osition o f trust, such as betw een a social
w orker and a client-child in a ch ild ren 's hom e.
21.4.2 The mentally ill

P ersons suffering from a m ental illness are protected by the gen eral law and
offences o f rape and ind ecent assau lt etc. apply to such persons equally as
anyone else. W here an offence is based on lack o f con sent, such as rape, lack
o f an actual ability to give consent m ay establish the offence although the
accused m ay be able to satisfy the court o f the honesty o f his b elief in consent.
P ersons w ith seriou s m ental con ditions and p atients in institutions have
ad ditional p rotection u n d er the law . It is ju stified by their vulnerability. Sexual
intercou rse by a m an w ith a w om an w ho is 'd efective' or a sexual act by a m an
w ith another m an suffering from a 'severe m ental h an d icap ' is an offence.18
15 Section 5, Sexual Offences A ct 1956.

16 Section 6 , Sexual Offences Act 1956.
17 Sections 14 and 15, Sexual Offences A ct 1956.
18 Section 7, Sexual Offences A ct 1956 and s. 1(3), Sexual Offences A ct 1967 respectively.
'D efectiv e' (an insultin g term ) and 'severe m ental h an dicap ' are defined in the
sam e w ay to m ean 'a person suffering from a state o f arrested or incom plete
d evelopm ent o f m ind w hich includes severe im pairm en t o f in telligence or
social fu n ctio n in g '.19 The legislation aim s to protect those w ith severe m ental
im pairm ent and does not extend to everyone in a m ental in stitution or w ho
has been d iagnosed w ith a m ental illness. Thu s it can b e declared law ful for
carers and m edical staff to requ ire the sterilisation o f a w om an w ith m ental
im pairm en t w ho is able to con sent to a sex and, presum ably, enjoy a law ful
sexual relation ship, albeit she is not cap able o f giving con sent to a sterilisation
operation20 or cope w ith having children. A m ale m em ber o f staff in a m ental
institution com m its an offence if he has sexual intercou rse w ith a fem ale
patient or com m its bu g gery or som e o ther ind ecent act w ith a m ale patient.
The basis o f the offence is the b reach o f a relation ship o f trust and the offence
applies irrespective o f consent. Setting the Boundaries proposes extend ing and
rationalising these offences into the general offence, no longer gen der specific,
o f abusing a relation ship of trust.
T he problem o f special law in this area is to p erm it p rop er protection for the
vulnerable w hile avoid ing intru sive, paternalist restriction on the sexual lives
o f m entally im paired people. Setting the B oundaries acknow ledges the problem
and seeks a clearer d efinition o f the d egree and natu re o f the m ental
im pairm en t w hich prevents p rop er con sent to sexual activity.
21.4.3 Family
C on sent is irrelevan t to sexu al relations, sp ecifically intercou rse, w ithin the
im m ed iate fam ily. T h e general sexual offences and the rules on the age of
con sent apply but sections 10 and 11 o f the Sexual O ffences A ct 1956 create
offences o f incest w hich apply even to consensu al acts, should they occur.
Incest involves sexual intercou rse, specifically, involving a m an or a w om an
and a person he or she know s to be his o r her grand child, child, sibling,
half-siblin g o r parent. T he pu rpose o f the law o f incest is the protection of
child ren from abusive fam ily relation ships and ad ults from ab u sive relatio n
ships w hich m ay have started w hen they w ere children. M ore generally, it is
to uphold the fam ily as a place o f trust and safety. Setting the Boundaries
suggests w id en ing the scope of the offence to inclu d e a fuller ran ge o f sexual
activities and to inclu de step -relations, unm arried parents and p rim ary carers.
Sin ce the protection o f child ren is at the heart of the offence, it is not clear
w hy the offence should be applied to the few cases o f ad ult siblings pu rsu ing
a sexual relationship. Setting the Boundaries w ould m aintain the offence in these
circu m stan ces on the ground that an ad ult relation ship m ay have bu ilt on an
exp loitative child hood one. If there is gen uine consent, begu n or revived in
ad ulthood, keep ing the offence looks like ou tlaw ing con sensu al sex on the
ground s o f a m oral objection, or even an argum en t from eugenics, rather than
a proper con cern for the safety o f child ren w ithin the fam ily.
19 Section 45, Sexual Offences Act 1956.

20 For exam ple, F v West Berkshire H ealth A uthority an d an other (M ental H ealth A ct C om m ission
intervening) (19891 2 All ER 545 H L.
Sexual freedom 391
21.4.4 Alleged w rongfulness

Som e form s o f entirely con sensu al sexual activity have been crim es or m ade
subject to special con straints becau se, for various historically specific reasons,
they have been thou ght to be m orally w rong. They m ay, for exam ple, be held
to be u nnatural, and thus (w hat does not follow ) objectionable; or the m ajority,
or a con sensu s o f the pow erfu l, m ay claim to be offended by the idea that they
take place. T h e basic point is that the sexual activ ity is in som e w ay restricted
even though there is no question o f rape or assau lt and even though the parties
are adults about w hose capacity to con sent there is no question. The general
argum ents about such crim es, the q u estion o f the 'enforcem ent o f m orality',
have been rehearsed earlier in this chapter. T h e m ain exam ples are m ale
hom osexu ality, bu g gery and sad o-m asochism .
H om osexuality
M ale h om osexu ality has alw ays been high ly controversial. Buggery, w hich can
be com m itted betw een m en, is an offence u n d er section 12 o f the Sexual
O ffences A ct 1956 and section 13 creates the offence o f 'g ross ind ecency'
betw een m en. G ross ind ecency is not defined b u t inclu des acts such as m utual
m asturbation and oral sex. H om osexual acts in public, such as in public
lavatories, have also been prosecu ted as com m on law outrages of public
decency.21 T he Sexual O ffences (A m endm ent) A ct 1967 rem oved crim inal
sanctions from both bu g gery and gross ind ecency if it took place betw een no
m ore than tw o con senting adults, over 21 years o f age, and in p rivate.22
Su bsequent A cts have low ered the age o f consent to such acts and now , by
virtue o f the Sexual O ffences (A m end m ent) A ct 2000, it is 16, the sam e as for
heterosexual relation s.23
'P riv ate' is not defined in the 1967 A ct, although it stipu lates that an act is
not priv ate if m ore than tw o persons take part or are present o r if the act takes
place in a pu blic lavatory. R estricting privacy to no m ore than tw o m en has
been su ccessfu lly challenged befo re the E uropean C ou rt of H um an Rights.
ADT was convicted of gross indecency under section 13 of the Sexual Offences Act
1956. His private dwelling had been searched by police. Police had removed videos
which showed up to four men taking part in homosexual acts in the dwelling.
HELD (ECHR): Article 8 had been violated. ADT’s private life had been interfered
with; he was prosecuted solely because more than two men had been involved in the
acts. There was no likelihood that the videos would be made public. The state had
not shown that the prosecution was necessary for the protection of morals.
ADT v United Kingdom Ap. 35765/97
21 For exam ple, R v M aylin g [1963] 2 QB 717.

22 M aintaining the crim inal illegality of private hom osexual acts is likely to be incom patible with
A rticle 8 ECH R: D udgeon v United Kingdom (1982) 4 EH RR 149; N orris v Irelan d (1991) 13 EH RR
186.
23 In Sutherland v United Kingdom Ap. 2 5 1 8 6 /9 4 (2001) The Tim es, 13 April the Com m ission of
H um an Rights found that to have different ages of consent betw een male and female
hom osexuals violated Article 8 ECH R w hen taken together with Article 14.
The C o u rt accepted that the state had a gen uine interest in lim iting public
sexual acts, but here the acts w ere entirely private and the p rosecu tion w as
based on the nu m bers involved alone.
The C ou rt in A D T v United K ingdom could have gone on to con sid er w hether
A rticle 14, 'p rohibition of d iscrim in atio n ', m ight apply. O nly m ale h om osex
uals, u n like fem ale hom osexu als or heterosexuals, are barred from group sex
in o therw ise priv ate circu m stances. Sim ilarly, sexual activity by heterosexuals
in a pu blic lavatory will not necessarily be an offence and, in the past at least,
it is clear that m ale hom osexu als have b een m u ch m ore likely to be prosecuted
for public d isplays o f sexual d esire than heterosexual cou ples and, perhaps,
lesbians.24 T here is no offence o f gross ind ecency betw een w om en. A girl un der
16 cannot con sent to an act w hich w ould otherw ise be a sexual assau lt and
that is the p rincipal legal rule relating to lesbians. Sutherland v U nited
Kingdom 2"' suggests that d iscrim in ation against m ale hom osexu als in com p ari
son w ith fem ale hom osexu als w ill, in the absen ce of good reason, be likely to
violate A rticle 14 taken w ith A rticle 8. Social d isapproval o f m ale hom osexu al
ity is unlikely to be a sufficient reason. The d iscrim in atory features of the law
are hard to justify, given the general lack o f cred ence for any kind of
'enforcem ent o f m orals' position. Setting the Boundaries suggests the repeal of
section 13 o f the Sexual O ffences A ct 1956 for con senting adults.
Buggery
C onsensual bu ggery, anal intercou rse, is treated differently from vaginal
intercourse. Section 12 o f the Sexual O ffences A ct 1956 m akes it an offence for
a m an to com m it buggery w ith any person, a m an or a w om an. T h e reform of
the law since 1967, m entioned above, extend s to buggery by a m an on a
w om an and so no offence is com m itted by con senting persons over the age of
16 in private. 'In priv ate' is defined the sam e as for ind ecent acts betw een m en
and so there is the sam e in com patability w ith A rticle 8 EC H R. Setting the
B oundaries suggests repeal of section 12 and a focus m ore on preventing
non-consensual acts and protecting the you ng and vulnerable.
Sado-m asochism
In one area of con sensu al sexu al activity, the p olicy o f the law is still in favour
o f crim inality, at least as regards its m ost seriou s m anifestations. T his is
sado-m asoch ism , through w hich con senting adults get pleasu re from doing
painful or d angerou s things to each other. W hat is d one is sufficiently serious
to be a crim inal offence and the courts have d enied that the consent o f those
involved is a full defence.
A group of sado-masochist male homosexuals willingly participated, in private, In

various forms of genital torture and other actions. They all took pleasure in giving and
receiving pain. They were prosecuted for malicious wounding and assault occasioning
actual bodily harm under the Offences Against the Person Act 1861.
24 For exam ple, M asterson v H olden [1986] 3 All ER 39 w here tw o m en w ere convicted of insulting
behaviour for kissing in the street (cited in H arris, O 'Bovle and W arbrick, op. cit., p. 312).
25 Ap. 2 5 1 8 6 /9 4 [1998] EH RLR.
Sexual freedom 393
HELD (HL): public policy required criminal sanctions in these, extreme, circumstan
ces. There was both the danger of proselytisation and corruption of others as well as
the potential for the infliction of serious injury.
R v Brown and other appeals [1993] 2 All ER 75
Lord M ustill, w ho d issented , w as the only one to argue that a righ t to sexual
freed om and privacy w as the central issue. Lord Slynn, also d issenting, took
the view that it w as for P arliam en t and not the cou rts to d eterm ine w hat
specific form s o f con sensu al sexual activity w ere to be banned .
The d ecision w as upheld by the E uropean C ou rt o f H um an R ights in Laskey,
Jaggard and Brown v U nited K ingdom (1997).26 The C ou rt accepted , though w ith
som e d oubts, that the activities concerned w ere sufficiently in priv ate to
engage A rticle 8. It focused on w hether such crim inal penalties w ere necessary
in a d em ocratic society. A rticle 8 and the C on vention gen erally allow s states
to p enalise actions w hich involve the affliction o f harm . The p roper pu rpose
o f such law s can be to uphold health and also as p art of the prevention of
crim e. T he crim inal p enalty in the case w as for a legitim ate purpose. O n the
issue o f necessity, states had a m argin o f appreciation and the extrem e nature
o f the practices in Brown m eant that the con viction s in qu estion w ere
proportionate.
T he d ecision in Brown does not m ean that consent can n ev er be a d efen ce in
such m atters. A ctions w hich w ould otherw ise be crim inal can be consented to
so long as a threshold o f seriou sn ess is not crossed. In R v W ilson27 consent
w as a full d efen ce for a husband w ho branded his w ife's bu ttocks w ith his
initials; in con trast the con viction in R v E m m ett (1999)28 w as upheld against a
m an w ho had taken part in sexual activities involving the partial asphyxiation
and bu rning o f his partner. T he partner fully consented but required m edical
treatm ent and both parties accepted the p otential d angers o f w h at they did.
T his area of law rem ains an exam ple o f the crim inalisation o f private sexual
activ ity betw een con senting ad ults and it is not clear w hat public interest is
served by its suppression. In R v Brown the H ouse o f L ords suggested that
there w as the danger o f the corrup tion o f others. O n such a view a court is
asked to m ake a m oral ju dgm ent about w hat is or is not m orally acceptable
p riv ate behav iou r and this is a position it is increasingly difficult to justify.
T here is clearly a case for the law in this area to be review ed and reconsidered
as a m atter o f sexual privacy. Setting the B oundaries, how ever, does not deal
w'ith the issue.
21.4.5 Public activity

C on sent betw een adults m ay be thou ght to ju stify sexual practices but only in
so far as they are conducted in private. A ctivities w hich are acceptable in
private can becom e crim inal w hen conducted in public. C on sent, this tim e of
the pu blic, rem ains the u n derlyin g issue: the pu blic are legitim ately protected
from the actions they do not w ant or choose to experience.
26 Ap. 2 1 6 2 7 /9 3 ; (1997) 24 EH RR 39.

27 [1997] QB 47.
28 (1999) The Tim es, 15 October.
A narrow definition of 'private' has been applied in respect of indecency

betw een m en and buggery, one w hich excludes activity in a private place of
m ore than two persons, though, as w e have seen, follow ing A D T v United
Kingdom, this m ay now be hard to sustain. 'P rivate', in respect of these
offences, also expressly excludes public lavatories. Sexual acts in public are
also dealt with under general legislation. Section 5 of the Public O rder Act 1986
covers the use of 'insulting' or 'disorderly' behaviour within the hearing or
sight of a person likely to be caused 'harassm ent, alarm or distress' thereby.
The com m on law offence of 'outraging public decency' is also used.29 The
courts m ust decide w hether an act in public is of such a 'lew d, obscene or
disgusting nature as to am ount to an outrage to public decency'.30
Setting the Boundaries endorses two strong principles w hich should guide the
law in this area. U nfortunately they m ay w ork against each other. First, the
law should not discrim inate betw een heterosexual and hom osexual acts.
Second, the law should concern itself with public order m atters and aim to
protect the public from harassm ent, alarm and distress. U nder this, second,
public order principle, the fact that an activity takes place in a public place
does not necessarily im ply that an offence is com m itted (courting couples in
deserted lay-bys are protected from the law). It also m eans that different
standards m ay apply in different places reflecting the likely expectations of the
public (different standards m ay be acceptable in a red light district than in a
shopping mall). The problem is that the public order standard, being caused
harassm ent, alarm or distress by sex in public, is not necessarily neutral as
betw'een different types of sexual activity. The public m ay continue to have
significant hom ophobic elem ents am ong it and som e parents m ay be m ore
worried that their children should w itness hom osexual rather than heterosex
ual acts. If so, the public order principle m ay generate m ore prosecutions of
hom osexual than of heterosexual public displays thus underm ining the first
principle. The policy of the law will need to decide w hether the principle of
neutrality has priority over the public order principle. The H um an Rights Act
1998 is unlikely to help. There is no C onvention right to sexual activity in
public to w hich freedom from discrim ination under A rticle 14 can apply. The
principle of equality under the law, enshrined in the com m on law, requires
that any 'harassm ent, alarm or distress' alleged by m em bers of the public
should be discounted to the extent that it flows from the sexual orientation of
those involved. This, by im plication, is the position in Setting the Boundaries.31
21.5 Transsexuals
Sexuality is linked to a person's sense of his or her identity and to their sense
of self-w orth. A significant num ber of people change their sexual identity from
that determ ined by parents and m edical staff at birth and so registered. It is a
highly com plex issue reflecting a range of physical conditions, psychological
dispositions, social practices and m edical interventions only loosely covered
29 There are about 60 prosecutions each year.

3(1 See Chapter 22 for a fuller discussion of the case law.
31 Implied from section 8.4.
Sexual freedom 395
by the term 'transsexual'. A significant civil liberties issue has developed

regarding those w ho seek legal and official recognition of their change of
gender. It m ay be a change of birth certificate or other official docum ent that
is required and the purpose can be just to achieve full social and adm inistra
tive recognition of w hat has occurred or it m ay be for a m ore specific purpose
such as to get m arried or divorced. A state's refusal to am end a birth certificate
can m ake married fam ily life for a transsexual person difficult to achieve.
Inability to have other docum entation, such as a driving licence or a national
insurance card, changed can m ake life difficult in em ploym ent. Underlying it
is the sense that unless such official recognition is obtained, transsexual
persons will not be fully and equally recognised as citizens and will suffer
unjustified discrim ination and em barrassm ent at the hands of officials, work
colleagues and others.
United Kingdom law has continued to uphold the position that, for
m atrim onial causes, the courts will not recognise a gender reassignm ent.32 The
position w as recently confirm ed in Bellinger v Bellinger (2001 ).33 The Court of
Appeal recognised that there have been m ajor changes in m edical understand
ing and in moral attitudes but held that im portant questions of public status
and recognition are involved when it com es to the registration of birth,
adoption, m arriage, divorce, nullity and death. These are not m atters that
should be reduced to the subjective will of the parties. It was for Parliam ent
to determ ine the preconditions for the registration of gender.34
There is very little to prevent the governm ent from seeking changes in the
law to m ake it com patible w ith the gigantic advances in m edical understand
ing and practices that have occurred since the 1970s. If no change occurs when,
in reality, the factual position of a transsexual is very sim ilar in all but history
to a person with unchanged gender, any failure to change will take on the
appearance of m oral disapproval and would be hard for a governm ent to
sustain. Change is on the way. This was recognised by an interdepartm ental
working party w hich reported, with options for change, to Parliam ent in July
2000 .
Pressure on the governm ent to regularise all legal and adm inistrative
disadvantages for transsexuals is now m uch greater follow ing the change in
its position by the European Court of H um an Rights. In issue are A rticles 8
and 12 and also 14. In earlier cases, such as Rees v United Kingdom (1986),35
followed by Cossey v United Kingdom (1991),36 the Court had refused to declare
that a refusal to change a birth certificate, even though it clearly led to
discrim ination is respect of the m atrim onial rights of the parties, violated the
Convention. The general position was m aintained in Sheffield and Horsham v
United Kingdom (1999)37 but in this case the Court recognised that the
32 Corbett v Corbett (otherwise A shley) [1970] 2 All ER 33.

33 [2001] EW CA Civ 1140; [2002] 1 All ER.
34 A strong dissent by Thorpe LJ stresses the medical and moral changes and developments in
Europe, and claims that Parliament, on issues such as these, has given the court m ore room for
com ing to its own conclusions than the majority recognise.
35 (1986) 9 EHRR 56.
36 (1991) 13 EHRR 622.
37 (1999) 27 EHRR 163.
Convention position is evolving to reflect a more tolerant and inclusive

sensibility and therefore the situation needed to be kept under review.38 In
Goodwin v United Kingdom (2002) and 7 v United Kingdom (2002)39 the Court has
finally changed its position. It has held that refusing to give full legal and
adm inistrative acknow ledgm ent of a person's gender reassignm ent, including
changing a birth certificate, was a direct violation of A rticle 8 and A rticle 12.
The Court acknow ledged its previous case law but asserted the need to
m aintain a 'dynam ic and evolutive' approach to the Convention. The Court
notices both the gradual change in official opinion in the United Kingdom
w'hich mirrored the international tendency. To refuse to take appropriate
adm inistrative and legal steps is no longer w ithin the m argin of appreciation
of the U nited Kingdom . At the tim e of w riting it was not clear w hat steps the
U nited K ingdom governm ent w ould take to m eet the requirem ents of these
decisions.
38 B v France (1993) 16 EHRR 1.

39 Ap. 2 8 9 5 7 /9 5 and 2 5 6 8 0 /9 4 respectively; on the law, the judgments have the sam e text.
22
Obscenity and indecency
22.1 Introduction
M any people gain con sid erable and o bsessiv e pleasu re from pictu res, books,
film s, vid eo, Internet sites, etc. w hich are sexually exp licit or very v iolent or
com bine both. H istorically, these m atters have never been left to ind ividu al
taste and to the m arket. States, inclu d ing the U nited K ingd om , actin g through
secu lar or ecclesiastical processes, have often tried to restrict the availab ility of
such m aterial m easured against a standard o f social acceptability. The
standard changes ov er tim e and has ap p aren tly been getting m ore liberal over
the last h alf century. The standard changes not only in relation to w hat people
feel is tolerable b u t also in relation to the kinds of im ages that are m ade
available. C u rrently p orn og rap h ic and violent m aterial is restricted by
regulatory pow ers (e.g. in broad castin g), by the crim inal law (e.g. the pow er
o f the cou rts to p u nish for obscene p u blication), by ad m inistrative pow ers,
such as o f seizu re and forfeitu re, even in the absen ce of a crim inal conviction
(e.g. the pow ers of C u stom s and E xcise) and by other m ethod s such as
planning law (e.g. op ening sex sh op s).1
22.2 Harm
T he m ost com p elling argum en t for law s w hich m ake the d istribution of
porn ograph y a crim inal offence is that p orn og rap h y causes harm to others.
John S tuart M ill's basic point2 w as that a p roper acceptance o f the liberty of
the in d ividu al in a free society, a society devoted to the greatest happ in ess of
its m em bers, m eans that the state ought not to restrict tastes and pursuits on
the sufficient ground s that they are im m oral or bad for the people involved.
The only ground necessary and sufficient for restricting a p erso n 's freedom is
that his or her activities cause harm to others.3 'H arm ' is a term that can m ean
alm ost anything. U nless it is to be a principle o f such vagu en ess as to be
capable o f ju stifying ju st about any d egree o f restriction, it needs to be
confined. T he m ost com p elling restriction is to require the person alleging
1 See generally Robertson, G. (1979) O bscenity. London: W eidenfeld & N icolson.

2 Mill, J.S., On Liberty, ch apter 1, in Mill, John Stuart (1968) U tilitasianism , Liberty an d R epresentative
G overnm ent. London: Dent.
3 The 'h arm ' principle w as the w orking assum ption, only occasionally departed from , of the
W illiam s C om m ittee (1979) w hich investigated the United K ingdom 's law s on obscenity and
film censorship.
398 Human Rights and Civil Liberties
they are harm ed to show that, in som e reasonably proxim ate way, they
have been harm ed in their interests: they are no longer able to pursue their
own tastes and pursuits because, for exam ple, they have been physically
injured or em otionally dam aged, their property taken aw ay or their liberty
restricted.
There is som e evidence of an apparent link of pornography w ith violent
crim e but this is controversial and challenged and it is not clear w hether the
pornography causes the violence or w hether people who like violent por
nography are also likely to be violent men. It is also unclear w hether there is
sufficient proxim ity betw een looking at the pornography and the harmful
actions to justify intervention. Fem inist theory has also suggested various
form s of harm derived from pornography.4 O ne argum ent is that pornography
explains and causes violence to wom en. This is a straightforw ard argum ent
from harm but w hich is subject to the general difficulties w ith the idea outlined
above. O ther fem inist argum ents are to do with projection and prom otion of
a particular view of w om en as defined through the experiences of men, as
sexual objects and as socially subordinate. This m ay be an argum ent in its own
account or it m ay also be a version of the argum ent from moral welfare,
outrage and, in particular, corruption discussed below . It is not an argum ent
about 'harm ' in the narrow stipulated sense.
The actual legal regulation of pornography is based on principles and
assum ptions that go beyond restricting harm ful activities in the stipulated
sense. W e find in the law three different but interrelated concepts. The state
m ay prosecute: first, in order to uphold m oral values; second, to protect the
public from being outraged; and third, to protect persons from being depraved
or corrupted. W e will be exploring these three different but interrelated
concepts in this chapter.
A tendency to 'deprave and corrupt' is the basis of obscenity. Section 2(4)
of the Obscene Publications Act 1959 prohibits com m on law proceedings
against publications w hich such a tendency. The com m on law offence of
obscene libel has, therefore, been rendered inoperative. The com m on law does,
however, retain its bite in respect of upholding m orality and preserving the
public from outrage since those concepts do not, necessarily, involve depravity
and corruption.
22.3 Public good
The publication of w orks w ith sexual or violent them es m ay deal w ith matters
of public concern. They m ay, like D.H. Law rence's Lady Chatterley's Lover, be
driven by a political desire to raise social aw areness and prom ote discussion
on sexual m atters; they m ay wish to m ake a political or religious3 point by
graphic and distressing im ages aimed at shocking the public out of its
com placency; they m ay claim the justification of art as im ages with a
4 For exam ple, Russell, D.E.H. (ed.) (1993) M aking Violence Sexy: Fem inist Views on Pornography.
Buckingham: Open University Press.
5 R v H icklin (1868) LR 3 QB 360, the case which defines 'obscenity' for legal purposes, involved
an anti-Papist pamphlet.
O bscenity and indecency 399
fascination and tend ency to d elight, or they m ay claim to prom ote the public
good by prov id ing a virtual reality by w hich u n desirable tend encies, say to
sexual or other violence, are relieved. W ithout a doubt such w orks can set
going significant social d ebate on the natu re o f society and the valu es it m ay
or m ay not possess. C laim s to kn ow w hat is or is not acceptable are often
controversial, reflecting both different theories o f the relation ship o f the law
and m orality bu t also, perhaps, the interests o f different age groups, o f m en
and w om en or o f ethnic or religiou s groups. A rgu m ents about m oral
standards are often argum ents about w ho has p o w er in society rather than a
politically innocent arg u m en t about m orals. A n im portan t legal question,
w hich w ill com e up in w hat follow s, is the extent to w hich the law perm its
argum ents about the public good of the w orks that w ould otherw ise be
punished as obscene or indecent.
22.4 Human rights
O bscenity and p orn ograph y is likely to eng age the right to freed om of
expression found, in p articular, u n d er A rticle 10(1) EC H R, a scheduled
C on vention right u n d er the H um an Rights A ct 1998. A ny prosecu tion will
need ju stification in term s o f A rticle 10(2). O n one view , pornography, a m ere
form o f pleasure, ought not to have a hum an rights d efen ce at all. Legal
regulation should be left to the v iew o f the m ajority as expressed through
representative institutions and there is no good reason w hy the m orally
im portan t langu age of hu m an rights, w hich describes those valu es w hich
ought to trum p the collective w ill, should ap p ly to the provision of
pornography. O f cou rse such an argum en t does not ap p ly w here there is an
alleged pu blic good to the w ork.
Th e C on vention issue is likely to be w hether a prosecu tion or regulatory
restriction can be authorised by A rticle 10(2). P rosecutors need to show , first,
that the law un der w hich the case is brou ght m eets the C on vention standard
o f legality. C on cepts such as 'm o ral w elfare' or 'in d ecen cy' are p otentially
open to the claim that they do not describe m atters w ith sufficient p recision to
enable people to regulate their actions. Second , the prosecu tion or restriction
m ust serve a legitim ate purpose. A rticle 10(2) accepts the 'p rotection o f . . .
m orals' as a legitim ate pu rpose for restricting expression and this w ill cover
m ost prosecu tions. Third , a prosecu tion m u st be 'n ecessary in a d em ocratic
society'. T h e C on vention gives a very high valu e to expression w hich engages
w ith political and social issues, broad ly d efined ,6 and w hich will inclu d e the
sexual m orality o f society. A rticle 10 protects speech w hich can 'offend, shock
or d isturb the State o r any section o f the p o p u lation '.7 T hese points suggest
that state actions against sexu al or v iolent w orks can be incom patible w ith
A rticle 10, particu larly if the w orks have credible claim s to p olitical or artistic
significance. O n the other hand the C ou rt o f H um an R ights has tended to
assert that nation states enjoy a w ide m argin of appreciation on m oral
6 Lingens v A ustria (1986) 8 EHRR 407.

7 H andy side v United K ingdom (1979) 1 EHRR 737.
question s in clu ding those inv olv ing ind ecency,8 o bscenity9 and blasp h em y,10
the C o u rt's v iew bein g that m oral standards are n either certain nor com m on
throu ghou t E urope and that state au th orities are best placed to d ecid e w hat is
or is not acceptable. M u ch d ep ends, therefore, on how a w ork is presented to
the C ou rt - as b ein g m erely p orn og rap h ic or w hether it has p olitical or artistic
significance. It follow s that d om estic cou rt proceedings should allow the
argum en t for political or social significance to be m ade.
22.5 Moral welfare
O ne b asis for legal restriction o f p orn ograph y is to p rotect the 'm oral w elfare
o f the state'. T his im plies the existen ces o f certain m inim u m standards of
prop er b ehav iou r in the p reservation of w hich the state has an interest. The
assu m ption m u st be that these stand ard s are necessary for the coh erence and
identity o f the state; perhaps they are one o f the con ditions under w hich the
allegian ce o f people can be required. In any event the state is entitled to
uphold the standards and to crim inalise not only a breach o f the standards but
also its ad v o cacy .11
22.5.1 Conspiracy to corrupt public morals

There is no offence o f corrup ting p u blic m orals. A ny such offence w ould be so
uncertain that individuals would find it hard to know w hether their actions were
crim inal or not thus v iolating the p rinciple o f 'le g ality '.12 C on sp iring to corrup t
pu blic m orals, how ever, rem ains an offence. It con sists in an agreem ent w ith
others to do an act w hich underm ines the m oral w elfare of the state. The Crim inal
Law A ct 1977 abolished offences of conspiracy unless the actions to be perform ed
on the basis o f the agreem ent w ould be crim inal. H ow ever, a con sp iracy to
corrupt public m orals was retained as one of three exceptions to this general ru le.13
The offence escapes red und ancy un der section 2(4) o f the O bscene Publications
Act 1959 becau se an act w hich corrupts public m orals need not necessarily have
obscenity (d epravity and corrup tion o f those affected) as its essence and also
becau se the offence can be com m itted on the b asis of an agreem ent to p u blish a
w ork prom oting im m orality, even if, in the end, no pu blication, takes place.
Th e m ain point o f the offence is to prevent the prom otion or ad vocacy of
actions or states o f affairs w hich u n derm ine m orality even if those actions or
states o f affairs are not unlaw ful. The offence w as d eclared in Shaw v D PP
(1962)14 w here the H ouse o f L ords upheld the con viction of a m an for
publishing a con tact m agazine for prostitutes. It is fo r the jury, properly
directed, to decide w hether an agreem ent w ould lead to corrup tion o f m oral
8 S an d G v U nited K ingdom (1991) A p. 1 7 6 3 4 /9 1 .

9 For exam ple, M u ller v Sw itzerland (1991) 13 EH RR 212.
10 See C hapter 23.
11 See the discussion of the 'enforcem ent of m orals' in C hapter 21.
12 In H ashm an an d H arru p v the U nited Kingdom (1999) Ap. 2 5 5 9 4 /9 4 the concept of 'good
behaviour" w as held to be too im precise to justify a binding over pow er by m agistrates.
13 A conspiracy to outrage public decency and to defraud are also retained.
14 [19621 AC 220; confirmed in K nuller v DPP [1973] AC 435.
Obscenity and indecency 401
welfare. The offence is open to all the objections concerning the enforcem ent
of m orals: w hether there is a coherent m orality inherent in the state; if there
is, how is it identified and is its protection by the state necessary?15
Schedule 1, A rticle 10 of the H um an Rights Act 1998 is engaged. Any
restriction of freedom of expression m ust, under A rticle 10(2), satisfy the test
o f legality. The offence does have a basis in law , since it has been confirmed
twice by the H ouse of Lords, but there m ust rem ain an issue about w hether
the activities caught by the offence are defined with sufficient precision to meet
the requirem ent that a person m ust be able to predict, with reasonable
certainty, w hether his or her actions are within the law. Though the offence
pursues one of the legitim ate aim s in A rticle 10(2) (it is for the 'protection of
. .. m orals'), any prosecution would need to be 'necessary in a dem ocratic
society': m eeting a pressing social need by a proportionate action. O f
significance here is that there is no explicit public interest defence and its
absence lim its the ability of the defendant to challenge the need for the
prosecution. Given the liberalisation of values in contem porary society, the
strong sense that moral values are relative to time, place and culture, and
given the strong opposition in the courts to censorship, it is perhaps unlikely
that, in the foreseeable future, prosecutions will take place.
22.6 Outraging public decency
The essence of this idea is that the public are entitled to be protected from
sights and sounds w hich induce in them a sense of outrage. There is no need
to show that a person is harm ed in their interests - the point of any offence is
not that anyone has been injured, their property rem oved or their freedom s
curtailed. The offence aim s to protect people's feelings rather than som e
alleged set of m oral values inherent in society. W hat is protected is the alleged
right of the public not to be offended, shocked or disturbed by w hat is
available to them. Liberal theory tends to deny that the state has any right to
suppress an activity m erely because other people are offended or shocked,
even deeply, by the know ledge that it is going on. The absence of harm to
others' interests is sufficient to cause doubt on w hether this is properly w ithin
the scope of the crim inal law. The offence that people feel is, as it were, for
them to deal with, it does not justify the suppression of the freedom of others.
To allow the outraged feelings of som e to dictate w hat others can or cannot
do gives a particular group unequal pow er to veto and control the lives of
others. Furtherm ore, the sense of outrage is a feeling; it is validated by the
sense of self of the person outraged and does not need further reasoning or
justification on principled grounds, it is a m ere assertion of power. O f course
it is possible to argue that harm of a psychological kind is done to others by
their being offended. But, as suggested above, this argum ent w eakens the
justificatory pow er of the 'harm ' principle since it m erges all types of objection
to the m aterial involved. M oral objection or objection on the grounds of
causing outrage in others is sim ply seen as a version of harm , and so 'harm to
15 See Chapter 21 in which these m atters are discussed.

others' can no longer play a useful role is d istin gu ishing approp riate from
in approp riate ground s for the intervention of the law.
Liberal theory justifies offences of outraging public d ecency in so far as the
point o f any p rosecu tion is less the sense o f outrage and m ore the need that
m em bers o f the pu blic are entitled to go about their ow n business, particularly
in public places, w ithout bein g shocked or offended by the activities o f others.
Then the point o f the offence is to p rotect the pu blic space for the public. T he
freedom o f the pu blic is curtailed if they are un able to avoid experiences,
sights and sou nd s they w ould rather not have. Liberal political theory has
alw ays recognised that d ifferent standards can apply in relation to w hat is
tolerated in public and w hat is tolerated in private. T he d istin ction can be
found in respect o f sexual offences and it also goes som e w ay to ju stify the
strict con trols exercised by regulators ov er broad cast m edia and advertising.
C on versely, it m ay also explain w hy cin em as and theatres are exem pted from
prosecu tion for outraging the p u b lic.16 If it is the public natu re o f acts w hich
is the bu rd en o f the offence it should be reflected in the w ay the offence is
proved and it should m ake the offence difficult to establish in respect of actions
d one only in the presence o f a con senting and inform ed audience.
22.6.1 Conspiracy to outrage public decency and outraging public

decency
O u traging pu blic decency is a com m on law offence; it is also an offence to
con sp ire w ith another to do the sam e. T h e C rim in al Law A ct 1977 retains the
latter offence. T h e offence w as given H ouse o f L ords approval in Shaw v DPP
and K nu ller v DPP. M ale hom osexu al encounters in pu blic lavatories,
sim ulated sexual intercou rse and nude bathing are exam ples o f com m on
targets o f the offence, and not necessarily in the past. It is cu rren tly used
against brothel-keep ers and ow ners o f pubs and clubs pu tting on sex show s
o f variou s kind s.17 T he offence is not confined to sexual actio n s18 and can be
used in a con text w hich raises issues o f freedom o f expression.
G, an artist, exhibited in the second defendant's art gallery. The exhibits included
freeze dried foetuses attached as earrings to model’s heads. The exhibition was open
to the public and G had undertaken some promotional activities. G was convicted of
outraging public decency.
HELD: G’s conviction was upheld.
R v Gibson [1991] 1 All ER 439 CA
In Gibson the C o u rt o f A ppeal recognised the offence and that it could still be
prosecuted w here the essence o f the offence w as not obscenity. The act m ust
be in public w ith at least tw o non-p articipants present.19 There should be
ev id ence that those w ho w itnessed the act w ere in fact outraged; w ithou t this
16 Section 2(4A ), Obscene Publications A ct 1959; s. 2(4)(a), Theatres A ct 1968.

17 For a recent case, in which the prosecution failed for other reasons, see R v Paul M cM anu s an d
A ndrew Cross [2001] E W C A C rim 2455.
'* For exam ple, R v Lynn (1788) 2 Tern Rep 733, disinterring a corpse.
19 R v W alker [19961 1 C r A pp Rep 111.
evid ence there is a d anger is that the offence w ill be refocused as an offence
protectin g the m oral w elfare o f society rather than p rotectin g the pu blic from
outrage. T here m ust be evid ence o f a high ly ind ecent act (or o f an agreem ent
to p erform an act) from w hich a sen se o f outrage is likely to flow . In Kn idler
v D PP Lord Sim on defined ind ecency as going 'beyond offending the
su sceptibilities of, or even shockin g, reasonable people. R ecognised m inim um
standards of decency . . . are likely to vary from tim e to tim e . . . the jury
should be invited , w here approp riate, to rem em ber that they live in a plural
society, w ith a trad ition o f tolerance tow ards m inorities, and this atm osphere
o f toleration is itself part o f pu blic decency7.20 The m ens rea o f the offence is
intend ing to do an act w hich, a ju ry finds, outrages public d ecency; it does not
require p ro o f o f an intention to outrage. T here is no 'p u blic interest' d efence
allow ed. Such a defence has b een brou ght in for obscene acts and it w ould
seem to be arbitrary, thou gh clearly accepted b y the cou rts,21 that Parliam ent
confined the d efen ce to o bscenity alone.22
D espite the absen ce o f a pu blic interest d efence, G ib so n 's p rosecu tion and
the offence in general term s, w as upheld by the C om m ission for H um an Rights
in S and G v United Kingdom (1991 ).23 The prosecu tion w as a restriction on
freed om o f expression w hich m et the various requ irem ents o f A rticle 10(2): it
w as prescribed by law , for a legitim ate pu rpose and it w as proportionate to a
pressing social need. The au th ority o f the case is not great since m u ch o f it
turns on the d octrine o f the m argin o f appreciation, and this doctrine does not
apply in d om estic law . U nited K ingd om courts, d ecid ing cases un der the
H um an Rights A ct 1998, m u st decide for them selves w hether the ab sen ce o f a
public interest d efen ce m eans that the issues under A rticle 10(2) cannot be
properly explored. O u traging pu blic d ecency is d istingu ished from statu tory
obscenity on this point; it also need s to be distinguished from the statu tory
offence u n d er section 5 of the P ublic O rd er A ct 1986, o f causing 'harassm ent,
alarm or d istress' by u sing or d isplaying insultin g w ords or visual rep resen
tations.24 Section 5(3) perm its the d efence that the con du ct w as 'reasonable'.
It has b een argued by the Law C om m ission that the offence should be
abolished but at the present tim e abolition is not proposed.25
22.7 Tending to deprave and corrupt
The third focus o f the law is the idea that ind iv id u als can be protected from a
form o f harm : bein g depraved and corrupted by sights and sounds. It is not
harm to interests in the narrow sen se o f harm but, perhaps, a species of
psychological harm . A s such it is su bject to the accu sation o f o v er
20 K nuller v D PP [1973] A C 435, 495, per Lord Simon.

21 K v Gibson [1991] 1 All ER 439, CA.
22 Section 2(4), Theatres A ct 1968 and s. 2(4A ), O bscene Publications A ct 1959 also exem pt the
theatre and cinem as (film exhibitors) from prosecutions for indecency, thus confining the
crim inal law to obscenity and so m aking available the public interest offence to prosecutions.
23 (1991) Ap. 1 7 6 3 4 /9 1 .
24 Section 5, Public O rder A ct 1986, discussed in C hapter 17.
25 See also Feldm an, D. (2002) Civil Liberties an d H um an Rights in England an d W ales, 2nd edn.
O xford: O xford University Press, pp. 9 3 3 -8 .
inclu siveness: too broad a con cept o f harm loses it pow er to ju stify legal
restriction. The law appears as a form o f paternalism w hich seeks to protect
ind ividu als from them selves. It suffers from the m ain defect o f paternalism
w hich is that ad ult persons, w ho ought to be able to decide for them selves
w hat is good for them , are b ein g denied w hat they w ant becau se others believe
it is bad for them . It benefits from the m ain point of p aternalism w hich is the
protection o f child ren and the vulnerable. It is d ifferent in princip le from either
the idea o f u p hold ing society 's alleged m oral valu es (it claim s not to be
protectin g society b u t protectin g ind ividu als from a form of self-harm ) or
protectin g the public from things that they think are offensive (a socially
recognised standard o f d ep ravity and corrup tion is not n ecessarily the sam e
thing as peo p le's opinions abou t w hat is offensive).
22.7.1 Obscene Publications Act 1959

The offence relating to d ep ravity and corrup tion is in the O b scene Publications
A ct 1959 w hich provides the basis for the law against pornography. Section
2(4) o f the A ct outlaw s com m on law offences o f obscenity.
1 Test of obscenity
(1) For the purposes of this Act an article shall be deemed to be obscene if its effect
or (where the article comprises two or more distinct items) the effect of any one
of its items is, if taken as a whole, such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant circumstances, to read, see or hear
the m atter contained or embodied in it.
The offence is the p u blication o f an obscene article w hether or not for gain and
the possession o f an obscene article w ith a view to its pu blication for gain .26
P ossession o f an obscene article for pleasure is not an offence un der the Act.
P ublication is w id ely defined to inclu de selling, d istributing and lending, for
exam ple, and also, for film s, show ing. A rticles covered by the A ct include books,
m agazines, new spapers, CDs, tapes, pictures and pornography supplied directly
through the Internet.27 Film s, videos, new spapers, advertisem ents and broadcast
program m es are also included though, for these, the A ct is a last line o f defence.
These m edia are also subject to the various regulatory regim es, statu tory and
volu ntary, that apply to them .28 P lays and other theatrical prod uction s are not
covered by the d efinition o f 'article' in the A ct b u t equiv alen t provisions,
inclu d ing a public good d efence, are found in the T heatres A ct 1968.
Deprave and corrupt

There is no d efinition o f d ep ravity and corrup tion.29 T hese are for the good
sen se and ord in ary experience o f the ju ry. N or is it a m atter for expert
26 Section 1, Obscene Publications A ct 1964 m akes the possession of an obscene article w ith a view
to its publication for gain an offence.
27 The last w ords of s. l(3)(b ) w ere introduced un der the Crim inal Justice and Public O rder Act
1994. Difficulties of enforcing the laws in a practical w ay are considerable.
215 See C hapter 11.
29 The statutory definition follows the com m on law definition in R v H icklin (1868) LR 3 QB 360.
opinion.30 A belief in the judgm ent of the ju ry is im portant for the credibility
of the offence. There are difficulties, how ever. First, different juries m ay have
different standards and this w ill lead to inconsistency in the application of the
crim inal law throughout the country. Secondly, the offence can be tried
sum m arily in w hich case the test for corruption is for m agistrates, by no m eans
a cross section of ordinary sensibility.
A jury m ust be satisfied that the w ork is m ore than in bad taste or
undesirable31 and som ething m ore than repulsive, loathsom e32 or lewd or
indecent.33 In the trial of D.H. Law rence's Lady Chatterley's Lover M r Justice
Byrne defined the terms: 'to deprave m eans to m ake m orally bad, to pervert,
to debase, or corrupt m orally. The words "to corrup t" m ean to render m orally
unsound or rotten, to destroy the m oral purity or chastity of, to pervert, to ruin
a good quality, to debase, to defile . . . ' W hether these definitions assist a jury
is doubtful; the w ords used are contestable and depend upon different
individuals' understandings. N evertheless it is clear that obscenity is at the
high end of the scale. By leaving the test to the jury, defenders of the law will
say it allows the standard to change with changing social values. Opponents
will argue that it m akes the test im possibly uncertain and unpredictable with
crim inal liability depending on the unchallengeable prejudices of different
m em bers of the jury. The difficulty for any jury is com pounded by the fact that
depravity and corruption is a state of mind w hich is to be assum ed from the
experience of the article in question and does not need to be proved in terms
of bad or perverted consequential actions. There m ay be evidence that sexual
crim e m ay be linked to pornography but such evidence is not essential to any
prosecution for obscene publication. There m ust be evidence that a significant
proportion of those w ho experience the article have been corrupted. Evidence
that the m ain w itnesses w ere police officers, who are unlikely to be depraved
and corrupted by w hat they experience, m ay mean that no offence is
com m itted.34 H owever, the argum ent that those m ost likely to experience the
publication, visitors to sex shops or cinem as, are depraved and corrupted
before they see or read the w ork in question, failed.35 The lack of the need for
such external proof im plies the issue is not harm to others. Linking this with
the im possibility of proving a state of m ind, and w hat em erges is an offence
w hose essence is the saving of individuals from them selves and w hat others
see as a sham eful and pointless activity.
Public good
The capacity for the prosecution authorities to use obscenity law against works
of artistic im portance or of political significance led to the m ost im portant
innovation in the 1959 Act: the public good defence under section 4.
30 R v Anderson [1972] 3 All ER 1152.

31 R v Seeker and W arburg [19541 2 All ER 687.
32 R v Anderson [1972] 3 All ER 1152.
33 R v A nderson [1972] 3 All ER 1152.
31 R v Claylon and H alsey (1963) 1 QB 163.
35 DPP v Whyte [1972] AC 849.
4 Defence of public good

Subject to subsection (1 A) of this section a person shall not be convicted of an offence
against section 2 of this Act, and an order for forfeiture shall not be made under the
foregoing section, if it is proved that publication of the article in question is justified
as being for the public good on the ground that it is in the interests of science,
literature, art or learning, or of other objects of general concern.
'O th er objects o f general con cern ' m ay inclu de w orks w ith an underlying
political pu rpose, such as obscene caricatures; edu cational p u rposes m ay also
com e w ithin the general category, though these m ay also be w ithin the
'interests o f science'. This public good d efen ce is m ore narrow ly defined in
respect o f film s. Su bsection 1A, relatin g specifically to film s or sou nd tracks,
perm its the pu blic good d efen ce only in respect o f the interests o f 'd ram a,
opera, ballet or any other art, or o f literatu re or learning' and exclu d es the
general category. G iven the im portan ce o f the film m edia this is an im portan t
constraint w hich appears to m ake entirely arbitrary d istinctions betw een
d ifferent m edia. P rosecution o f film s, unlike other m ed ia, requ ire the consent
o f the DPP.
P ublic good is a m atter for the jury. U nlike the test for o bscenity, it can be
proved on the basis o f expert evidence. O bscenity trials, like that o f Ladi/
Chatterley's Lover, have been fam ou s for the procession o f notable people
speaking up in d efen ce o f seriou s w orks o f art. T h e job for the ju ry is to decide,
first, w hether the article is obscene, second w hether p u blication w ould be for
the public good and, third, w hether the pu blic good is sufficiently strong to
ju stify the p u blication o f an otherw ise obscene w ork.36 It is a strange judgm ent
to m ake: that a bo ok has both a tend ency to d ep rave and corrup t yet it is in
the pu blic good it should be published. T h e pu blic good defence clearly allow s
argum en ts about the need for, and proportionality of, a ban to be properly
aired in cou rt as is required u n d er A rticle 10(2) ECH R.
Seizure and forfeiture

Section 3 o f the O bscene P ublications A ct 1959 authorises a m agistrate to issue
a search w arrant in resp ect of obscene articles being kept fo r sale. The w arrant
is issued to a p olice officer w ho can enter prem ises and rem ove articles that
he or she reasonably believes are obscene. A m agistrate can then ord er the
articles to be forfeited. T he test for obscenity is the sam e but, in respect of
forfeitu re, the sound sen se o f the jury is not available. The pu blic good d efence
under section 4 applies and any interested party, inclu ding the 'ow ner, auth or
o r m aker' o f the articles' can challenge a forfeitu re order.
22.8 Other provisions
O ther statu tes restrict the use o f ind ecent or obscene articles. For exam ple, the
Indecent D isplays (C ontrol) A ct 1981 prohibits the d isp lay o f ind ecent m atter
in public places and inclu des a pow er o f seizure. It is an offence to send
obscene or ind ecent articles through the post or obscene or ind ecent m essages
36 R v Calder and Boyars Ltd [19691 1 Q B 15.

ov er the teleph one.37 T hese offences can all be tried sum m arily; again the
alleged role o f the ju ry in d eterm ining w hat are pu blicly acceptable standards
is lost; sim ilarly there is no express pu blic good d efen ce and so, to provide
that, the H um an Rights A ct 1998 w ill need to be relied upon.
The im portation o f ind ecent o r obscene articles is prohibited u n d er section
42 o f the C u stom s C on solid ation A ct 1876 and such goods, if seized , can be
forfeited u n d er the provisions o f section 49 C u stom s and E xcise M anagem ent
A ct 1979. S eizu re by custom s of obscene or ind ecent articles from a European
U nion cou ntry is likely to be a quan titativ e restriction on im ports, unlaw fu l
un d er A rticle 28 EC Treaty. A rticle 30 perm its such restrictions on ground s of
'p u blic m orality' but requ ires that such perm itted restrictions 'm u st not
con stitute a m eans o f arbitrary d iscrim in ation or d isguised restriction on trade
betw een m em ber states'. R estrictions on m aterial w hich w ould also be banned
under the O b scene P ublication s A ct 1959 are not arbitrary.38 Since, under
d om estic law , confiscation and fo rfeitu re is confined to obscene articles and
not (in the absen ce o f public display) ind ecent articles, a sim ilar restriction
should be read into section 49 gov erning C u sto m s' seizu res.39
22.9 The protection of children
L iberal theory perm its paternalist restrictions on freed om o f speech in order

to protect the interests o f child ren. The general argum en t about auton om y is
com patible w ith restrictions aim ed at protecting child ren from abuse, d anger
and un desirable tem ptation. In the context o f pornography, the law creates a
range o f offences relating to ind ecent photographs o f children.
The P rotection o f C h ild ren A ct 1978 m akes the taking, p erm itting to be
taken, m aking, d istributing, show ing, p ossession w ith a view to distribution
or show ing or the ad vertisin g o f ind ecent photographs o f child ren an offence.
Section 160 o f the C rim in al Ju stice A ct 1988 m akes the m ere possession, for
personal use, o f such photographs an offence. Im ages d ow nload ed from the
Internet, and those opened from an e-m ail attach m ent,40 are included.
D ow nload ing has been held to be 'm akin g' a p h otograph and w ithin the scope
o f the m ore seriou s offence un der the 1978 A ct.41 W hether a p ictu re is ind ecent
is for the ju dgm ent o f jury or m agistrate. T here are provisions u n d er the A ct
fo r search, seizu re and forfeitu re sim ilar to those un der the O bscene
P ublications Act. T h e penalty is sev ere w ith ten years' im prisonm ent un der the
1978 A ct and five years' u n d er the 1988 A ct as the m axim um on trial by
ind ictm ent.42 Innocent p ossession or possession for a legitim ate reason, such
as research into pornography, is a d efen ce.43
57 Section 85(3), Postal Services A ct 2000 anti s. 43(1), Telecom m unications A ct 1984, to send
indecent or obscene m essages over the telephone.
38 R v H etw [1981] AC 850.
w Feldm an, op. cit., p. 950.
40 R v Sm ith [2002] E W C A C rim 683; The Tim es 23 April.
41 R v Bowden [2000] 2 All ER 418.
42 The penalties w ere increased to these m axim um s by s. 41, Crim inal Justice and C ou rt Services
A ct 2000 w hich m ade m ere possession an indictable offence.
43 Section 160(2), Crim inal Justice A ct 1988; A tkins v DPP [2000] 2 All ER 425.
T he C rim in al Ju stice and Public O rd er A ct 1994 enlarged the reach o f both

A cts to inclu de 'p su ed o -p ho to grap hs'. T hese are im ages, m ad e by a com puter,
w hich ap p ear to be photographs. T hey m ay, in fact, be one or m ore innocent
photographs loaded onto a com p u ter and altered into an ind ecent im age.44
S im ilarly a photograph is w ithin the scop e o f the A cts if it appears to be, but
is not, the p hotograph o f a child. N o child need, therefore, be harm ed in the
p rocess o f m akin g these photographs and, o f course, the offence is established
w ithout having to prove that any harm to others results from the possession
etc. o f the psued o-photograp h. W hether the protection o f child ren is, in fact,
served by this extension is unclear. N everth eless the offences have been held,
by the C ou rt o f A ppeal, to be com patible w ith both A rticle 8 and, in particular,
A rticle 10 EC H R , as bein g p rop ortionate and necessary restrictions on freed om
o f expression fo r the prevention o f crim e and the p rotection o f m orals.45
22.10 Prior restraints
T here is no cen sorship in the U nited K ingdom , u sing that term to m ean the
existen ce o f a go v ernm ent office w hose prior approval is necessary before
anything can be published or broad cast. M any o f the various m ed ia through
w hich sexual or v iolent im ages and ideas are con veyed are subject not to
cen sorship bu t to regulation. U su ally the regulation w ill be b y a bod y m ore of
less ind ep en den t o f go v ernm ent w hich w ill have been eith er establish ed by the
governm ent by statu te or by self-regulation as an alternative to governm ent
action. C h ap ter 11, on the m ed ia, describes the system o f regulation and
focuses m ainly on regulation p ertaining to p olitical im p artiality and privacy.
T he sam e regulation also d eals w ith obscenity and indecency.
22.10.1 The theatre

N either subsidised n o r com m ercial theatre is subject to regulation. C en sorship
by the Lord C h am b erlain 's office w as abolished by the Theatres A ct 1968. The
O bscene P u blication s A ct 1959 does not apply to the theatre bu t there are
equivalen t provisions in the Theatres A ct 1968. By section 2(4)(a) o f that A ct,
an obscenity charge cannot be circu m vented by the charge o f outraging public
d ecency. In this w ay freed om o f expression in the theatre is protected against
m oralising opposition at least to the extent that those w ho seek the closure of
a play m u st m eet the h igh er obscenity standard. A 'p u blic good ' defence,
sim ilar to section 4 o f the O bscene P ublications A ct 1959, is av ailable to
d efen dan ts in an o bscenity prosecution. A s w ell as obscenity, it is an offence
to pu t on a play w hich w as intended to p rov oke a breach o f the peace or (m ore
44 ' . . . it is possible on a com puter screen to take the picture of a child's face from a Kays or
G rattons catalogue, transpose it onto the pornographic im age of an adult, alter the size of the
breasts, the pubic hair and other parts of the anatom y, and m ake it ap p ear that the indecent
photograph is that of a child.' M r Mike O'Brien M P, H C C om m ittee Co. 742 (quoted in C ard,
R. and W ard, R. (1994) The C rim inal Ju stice an d Public O rder A ct 1994. Bristol: Jordan Publishing,
p. 109).
45 R v Sm ethurst 12002] 1 C r A pp Rep 6 .
controversially) was likely to have that effect.46 Sim ilarly, a play w hich is likely
to stir up racial hatred is an offence.47
22.10.2 Press
As discussed in Chapter 11, the press is subject to voluntary self-regulation by
the Press C om plaints Com m ission which operates on the basis of a Code of
Practice. The Code does not have specific sections on indecency and so the
portrayal of sex and violence, absent som e other feature such as privacy or the
treatm ent of children, cannot be the basis of a com plaint. The Com m ission is
satisfied with the standard of obscenity and indecency set by the general law
and w hich applies to the press.
22.10.3 Advertising
A dvertising is subject to strict regulation either (for press, poster or m agazines)
on a voluntary basis, through the A dvertising Standards A uthority, or (for
broadcast advertising) through the statutory pow ers of the Independent
Television Authority (to be replaced by Ofcom ). Both authorities regulate on
the basis of Codes of Practice and restrict portrayals of sexual and violent
activity. The A dvertising Standards A uthority requires advertisem ents to be
'decent' and, specifically, paragraph 5.1 of the Code requires advertisers to
avoid serious or w idespread offence on the grounds of sex. Paragraph 11.1
prohibits advertisers from condoning or provoking violence - which is not the
sam e thing as prohibiting violent im agery.48 The Independent Television
C om m ission's Code has sim ilar provisions.
22.10.4 Film
Films are subject to the O bscene Publications A ct 1959, which includes a public
good defence. U nder section 2(4A) that defence cannot be circum vented by a
prosecution for outraging decency or conspiracy to corrupt public m orals. Film
prosecutions require the consent of the Director of Public Prosecutions.
Local authorities license cinem as and do so 'on such term s and conditions
and subject to such restrictions . . . as they think fit', although they have a duty
to prohibit children from attending unsuitable films.49 Invariably local authori
ties license on the basis of category certification by the British Board of Film
Classification though, on general principles of adm inistrative law, they must
retain their discretion and be willing, in particular instances, to m ake their
own judgm ent about a particular film. Local authorities have additional
powers only to license sex shops and sex cinem as in certain areas and to refuse
a licence in others.50
46 Section 6 , Theatres Act 1968.

47 Section 20, Public Order A ct 1986.
48 Paragraph 13.
49 Section 1, Cinemas Act 1985.
50 Section 2, Local Government (Miscellaneous Provisions) Act 1982.
T he B ritish Board o f Film C lassification review s all film s and vid eos w hich
are to be show n or m ad e av ailable to the pu blic and gives them a classification:
U for unclassified , PG that the film should only be seen by child ren on the
basis o f paren tal gu idance, and the classifications of 1 2 ,1 5 and 18 w hich m ean
that the film is un su itable to be seen by child ren and you ng persons you nger
than the specified age. 12A perm its a film to be seen by a child u n d er 12 so
long as accom panied by an adult. T h e category R18 applies to vid eos to be sold
through sex shops. T he Board operates on the basis of general p rinciples and
on gu id elin es w hich d escribe the general standards approp riate to each
classification and the m atters of con cern such as drugs or the portrayal of
child ren, w hich classifiers w ill bear in m ind. T he p rinciples are that adults
should be free to v iew a film provided it is law ful and not p otentially harm ful,
that film s should be able to reach their w idest approp riate aud ience, that the
context of sexual and v iolent im ages is im portan t and that the classification
gu idelin es should be regularly review ed to reflect changes in public taste,
attitu d es and concerns.'’1
T h e B o ard 's w ork can be controversial. T hrou gh the link w ith cinem a
licensing by local auth orities, classification is, in effect, cen sorship.52 The Board
can, in effect, p rev ent ad ults from seeing film s or scenes even though these do
not reach the 'd ep rav e or corru p t' standard o f the crim inal law . C u rrently the
B o ard 's central con cern is w ith the protection o f child ren though even here the
B o ard 's m ost recent classification, 12A , perm its you ng child ren to see film s the
B oard thinks are u n su itable for them so long as they are accom p anied by an
adult. Som e argue that the role o f the Board should be ad visory, to give
con su m er ad vice assisting parents and ad ults to m ake inform ed choices about
the film s they w ish to see.53
22.11 Videos
Like film s, vid eos are subject to the O bscene P ublication s A ct 1959. V id eos are
seen at hom e, not in pu blic places. T here is and has been great con cern that
children and parents, in particular, need , at the least, inform ation about the
con tent and suitability of videos they are pu rch asing or borrow ing. The Video
R ecordings A ct 1984s4 introduced a system by w hich all videos are to be
classified by the British Board o f Film C lassification. V ariou s offences are
created for the supply or possession for pu rposes o f supply o f unclassified
videos. V id eos classified R 18 are for su p p ly through sex shops only. T h e A ct
requ ires that there be an ind ep en den t appeals process and the V id eo A ppeals
C om m ittee has been established for that purpose.
Section 4A identified m atters to w hich the Board m u st have regard.
51 Guidelines can be found under 'policy' on the B oard's website: w w w .b b fc.co .u k /.

52 The Board's original nam e w as British Board of Film Censors.
53 This m ove has been predicted by A ndreas W hittam Smith w hen he retired as chairm an of the
Board in 2002.
54 Am ended by the Video Recordings A ct 1993.
Video Recordings Act 1984

4 A . . . special regard to harm to potential viewers or, through their behaviour, to
society, by the manner in which the work deals with:
(a) cruel behaviour
(b) illegal drugs
(c) violent behaviour or incidents
(d) horrific behaviour in incidents
(e) human sexual activity.
In the B o ard 's view these statu te-based standards m erely em bod y its existing
p rinciples bu t requ ire it to be m ore explicit and open in the w ay they are
applied.
U nd er the H um an Rights A ct 1998 the requ irem ent that any restriction on
freed om o f expression m u st be proscribed by law is likely to be m et since the
ground s o f restriction are clarified both in the A ct and statem ents o f guidance.
T he m ere fact that d iscretion is handed to a bod y such as the BBFC does not
itself offend against the p rinciple o f legality.55 There is a legitim ate pu rpose to
such classification, nam ely the protection o f m orals. The m ajor question is
proportionality. T he m argin o f appreciation does not apply to d om estic courts.
Jud icial d eferen ce to a bod y established by P arliam ent specifically to m ake the
ju d gm ents involved is p roper bu t o f no assistan ce if tw o such bod ies disagree.
In R v Video Appeals Committee o f the British Board o f Film Classification ex parte
the British Board o f Film Classification 56 the courts upheld the view o f the Video
A ppeals C om m ittee that, con trary to the view o f the Board, p roportionality
under A rticle 10 E C H R required certain sexu ally explicit and v iolent vid eos to
be given an R 18 classification and m ade available. The B o ard 's 'p rin cip les'
requ ired it to take into account 'potential' harm and it had refused classifica
tion until the potential risks of the vid eos in question could, if at all, be
quantified. The V id eo A ppeals C o m m ittee's view w as that unquantified
p otential harm w as too sp ecu lativ e to be given m u ch w eight as a ground of
restriction in a p rop ortionate ju d g m ent about classification. As regards R18
videos it also should be accepted that, in the absen ce o f evid ence to the
contrary, the risks o f child ren view ing the videos w as slight. A s a con sequ ence
o f this case, the Board has reconsid ered its gu id elin es on the R 18 category in
the d irection o f tolerance fo r ad ult entertainm en t on the basis o f inform ative
classification
22.12 Broadcasting
T he O bscene P ublications A ct 1959 applies to b road cast m atter. H ow ever the

p rim ary w ay in w hich v iolent and sexu ally explicit m atter is d ealt w ith is
throu gh the regulatory system for television and radio w hich has been
d escribed in C h apter 11. T h e prim ary d uty is on the broad casters to ensure
that program m es do not offend against 'good taste and d ecen cy '.5' These
55 W ingrove v U nited Kingdom (1996) 24 EHRR 1, paragrap h 40.

56 [2000] EM LR 850.
57 Section 6 , Broadcasting A ct 1990; paragraph 5.1(d) in the BBC's Agreem ent w ith the
governm ent.
standards are further d eveloped in the Ind epen d ent Telev ision C o m m ission 's
Program m e C od e and the B B C 's Produ cer G u idelines. The B roadcasting
Stand ard s C om m ission 's C od e of Stand ard s for bro ad castin g (discussed in
C h ap ter 11) inclu des detailed d iscu ssion o f w hat is acceptable regarding the
portrayal o f sexual or v iolent conduct. T h e au th ority the C om m ission claim s
for its ad jud ication s, based on the C od e, is that o f social opinion, derived from
research rather than ju st the p aternalistic instincts o f the great and the good.
O f p articular im portan ce for the C om m ission is to protect child ren through the
con cep t of a tim ed 'w atersh ed ' before w hich portrayals o f sex and violence
should be lim ited. H ow ever, som e m atters, such as the portrayal o f actual
rather than sim ulated intercou rse, rem ain im p rop er in the C o m m ission 's view
even if show n very late at night.
M uch bu t not all satellite television is regulated by the ITC . T hat w hich is
not is still subject to the O bscene P ublication s A ct 1959 and to a further pow er
o f the S ecretary o f State to p roscribe a foreign satellite service - a television or
radio service provided by a person not u n d er U nited K ingdom ju risd iction
w ho is providing a satellite service received in the U nited K ingdom . It is an
offence to su p p o rt a proscribed service by w ays such as by ad vertisin g on it
or su p p lying it w ith services o f various kind s.58 A ny ord er m u st be in the
pu blic interest and com p atible w ith the U nited K in gd o m 's international
obligations. E uropean satellite stations m ay be protected by E uropean C o m
m u nity law . A d irective 'T elev isio n w ithout F ron tiers'51' perm its restrictions on
cross-frontier broad casts in ord er to p rev ent 'im pairm ent to the physical,
m ental or m oral d evelopm ent o f m in o rs', not on general 'good taste and
d ecency' grounds. N everth eless the C ou rt o f A ppeal has up held the view that
the proscribing o f a D anish satellite station broad castin g ad ult porn ograph y
w as com patible w ith the D irective.60
22.13 Internet61
T he Internet is the m ajor sou rce o f easily av ailable porn ograph y and m u ch of
it m eets the test for o bscenity u n d er the law . Child porn ograph y, in particular,
seem s to be w idely available.
T h e O bscene P ublications A ct 1959 and the com m on law offences can apply
to w ords and im ages on the Internet, though it m u st be possible to identify a
person responsible. M aintain in g a com m ercial w ebsite sellin g hardcore im ages
d irectly or, m ore usually, by lin king it back to an overseas site w hich is outside
the ju risd iction, can com e w ithin the concept o f 'pu blication ' in the A ct.62
D irect enforcem ent u n d er the A ct rem ains difficult and requ ires coop eration
at international level betw een governm ents and police forces. A s w e have seen,
58 Sections 177 and 178, Broadcasting A ct 1990.

59 Directive 97/36.
60 R v Secretary o f State for C ulture, M edia an d Sport ex parte D anish S atellite Television [1999] C LY
3916 QBD; [1999] 3 C M LR 919 C A. See also E rotica R en dez-V ou s [2001] All ER (EC) 577.
61 Akdeniz, Y., W alker, C. and W all, D. (2000) T he In tern et, Law an d Society. London: Pearson
Education, chapters 9 and 10, on w hich this section is based.
« R v Perrin (Stephanie Laurent) [2002] E W C A C rim 747; R v W addon (G raham ) [1999] ITCLR 422,
affirmed C A 6 April 2000 (2000 W L 491456).
the dow nloading and storage of a pornographic 'pseudo-photograph' of a

child is an offence.
There is pressure for m ore intense regulation. The defenders of the Internet,
on the other hand, w ish to see it as an area of freedom , available to all, which
should not be regulated, and em phatically not to the very strict standards of
terrestrial television. A ttem pts at regulation by Act of Parliam ent will need to
be com patible with A rticle 10 ECHR.
An alternative is self-regulation by using rating and filtering system s. These
are electronic devices, introduced to the distribution process, such as by an ISP
(rating) or adopted by the receiving com puter (filtering), used to inhibit the
introduction of violent or sexually explicit images. These devices are widely
used but are open to objections, first, generally to the principle of censorship
and, second, to the claim that they filter out m atter that ought not to be
censored because, for exam ple, it reflects the interests of unpopular sexual
m inorities. It also enables the authorities to take or encourage action against
w ebsites w ithout it having to be proved that they m eet the test of illegality.63
This is censorship by com m ercial organisations and it m ay be difficult to raise
free speech objections on the basis of A rticle 10 ECHR. Conversely, rating and
filtering m ay create a false sense of security.
Internet W atch Foundation (w w w .IW F.org.uk) is an industry-based self-
regulatory body, established in 1996 w ith the support of the United K ingdom
governm ent. Funded by the industry it also enjoys som e assistance from the
European Union. It aim s to m onitor the Internet, receive com plaints from the
public, and liaise w ith police and ISPs. The criteria on w hich it acts is
'potential' illegality. It can encourage the rating of a site w ithout proof of
obscenity. Its principal target is pornography involving children.
63 Letter from Metropolitan Police to ISPs in 1996 listing alleged pornographic sites; cited in
Akdeniz et al., p. 223.
23
Religious freedom and
blasphemy
23.1 Introduction
It is fundam ental to m odern liberalism that individuals should enjoy religious

freedom and that the state should not prom ote a particular religion or
denom ination as a requirem ent for its citizens or officials. Religion affects
individuals' personal and spiritual relationships to God but also deals with
ethical and m oral questions about right behaviour in various areas often
involving sexual and fam ily life. As such, religion can have political overtones.
Organised religion m ay influence behaviour and contribute to the question of
what the law should or should not perm it. Through this social and m oral
influence, but also through the proselytising tendency of m any religions,
religious people and their churches m ay seek to affect the lives of others, and
som etim es to lim it their liberty - over sexual behaviour, for exam ple. From the
liberal point of view, therefore, it is reasonable to restrict religious freedom in
order to protect the rights and freedom s of others.
The liberal position is challenged. For m any, som e form of religious identity
is not only a basic good for individuals but also a perfectly reasonable
foundation on w hich a state can be built. Som e states such, as Ireland,
recognise God in their constitution or, like the U nited Kingdom , have an
established church. In practice, such provisions are not necessarily incom pat
ible with religious tolerance. The problem arises when, on the basis of this
religious connection, certain requirem ents are im posed on, for exam ple, the
education system or religious tests are im posed for those who m ay serve the
state in an official capacity. The claim is that the integrity, coherence and
decency of a society requires this kind of religious identity and that the state
is thereby entitled to enforce, by law, both the m oral and theological precepts
of the religion.
23.2 Discrimination law
Religious freedom , the freedom to adhere to a religion's beliefs and practise

its tenets, is protected in various ways in different circum stances and subject
to different conditions, by com m on law and statute.1 There is, how ever, no
1 See Hamilton, C. (1995) Family I.aw and Religion. London: Sweet & Maxwell.
Religious freedom and blasphem y 415
express statu tory equiv alen t to the provisions o f the Race R elations A ct 1976
or the Sex D iscrim ination A ct 1 9 7 5 / although som e religiou s groups m ay also
be ethnic groups and hence w ithin the p rotection o f the 1976 A cts.3 U nd er the
E C 's Fram ew ork D irective on d iscrim in ation, m easures to outlaw religious
d iscrim in ation in the w orkplace m u st be in effect by the end o f 2 0 0 3 .1 The
A nti-terrorism , C rim e and Secu rity A ct 2001 am ends the C rim e and D isord er
A ct 1998 to m ake religiou sly aggravated offences like racially aggravated
offences and capable o f m ore severe p u nishm ent than the non-aggravated
form o f the offence.
2 3 .3 H u m a n rights
U n d er the H um an R ights A ct 1998, U nited K ingd om cou rts m ust interpret

statu tory provisions and evalu ate the actions of public au th orities against the
standards o f A rticle 9 EC H R , w hich protects freed om o f thought, conscience
and religion. T he text is quoted in C h apter 2. The A rticle gives absolu te
protection to a p erso n 's freedom to ad here to a religiou s d octrine but perm its
legal restrictions on the activities by w hich such b elief m ay be m anifested.
These restrictions are lim ited in w ays broad ly sim ilar to those by w hich
privacy, freed om of expression and freed om o f association m ay be lim ited .s
R estriction s m u st be on the basis o f law for one o f the legitim ate pu rposes and
any restriction m u st be a p rop ortionate response to a p ressing social need.
Freed om o f thought, con scien ce and religion is understood by the C ou rt of
H um an Rights as one of the foun dations of a d em ocratic and pluralist society.6
A rticle 9 protects a w ide range o f beliefs, by no m eans confined to the m ajor
religions or to beliefs w hich encom pass the notion of m an 's relation w ith a
deity.7 There is no absolu te protection for m an ifestations of belief. An action
w hich is m otivated by religion but w hich is not in itself a requ irem ent of
religiou s observan ce, w ill n o t generally be protected u n d er A rticle 9(2).s
Sim ilarly, the C ou rt has not been sym p athetic to claim s based on a tension
betw een d uties ow ed to an em p loyer u n d er a con tract o f em ploym ent and
religiou s observan ce.9 T h e p luralism w hich ju stifies religiou s freed om entails
the p ossibility o f restrictions on the m an ifestation o f that freed om in ord er to
2 N orthern Ireland's law does have express provisions outlaw ing various form s of religious
discrim ination. These reflect the particular circum stances of the conflict there.
5 M andla v D ow ell Lee 119831 2 AC 548, referring to Sikhs; Tow er H am lets LBC v R abin [19891 ICR
693, referring to Jews
4 Fram ew ork Directive 2 0 0 0 /7 8 /E C . O ther form s of discrim ination have longer before they need
to be brought into effect.
5 Church o f X v U nited Kingdom (1968) 12 YB 306. The restriction in the interests of the econom ic
well-being of the country is only found in relation to privacy.
6 Kokkinakis v G reece (1993) 17 EH RR 397.
7 Freedom of thought and conscience is a 'precious asset for atheists, agnostics, sceptics and the
un concerned'. N arrow political beliefs are excluded: M cF eely v United K ingdom (1981) 3 EHRR
161.
8 For exam ple: a religious-based refusal to pay a proportion of taxation equivalent to expenditure
on nuclear weapons. Conscientious objectors to m ilitary service have also generally failed to
obtain the protection of the C ourt. Advertisem ents will not enjoy Article 9 protection just
because thev are placed in a religious context (X v Sweden (1976) 16 DR 44).
9 A hm ed v United Kingdom (1981) 22 DR 27; Stedm an v United K ingdom [1997] EH RLR 545.
ensure that everybod y else's beliefs are pro tected .10 A rticle 9 m ay im pose
po sitive obligations on states to provide law s and rem ed ies to protect religious
people from im prop er attacks on their re lig io n " or from other actions,
inclu d ing in the con text o f private em ploym ent, w hich violate the freed om
protected by A rticle 9.12
O ther A rticles of the C on vention m ay be relevan t to religiou s belief, inclu ding
A rticle 14 w hich prevents, am ong others, religiou s d iscrim in ation in respect o f a
p erso n 's exercise of any o f the C on vention rights and freed om s and A rticle 10,
freedom of expression , or A rticle 8, the righ t to respect for private and fam ily
life. Even rights to property, un der A rticle 1 o f the First Protocol, can be
involved, w hen planning questions for religiou s build ing arise, for exam p le.13
Section 13 o f the H um an R ights A ct 1998 appears to give extra w eight to
religious claim s un der the A ct. It w as agreed to by the governm ent as a
con cession to religiou s organisations w ho feared that provisions in the
C onvention, in p articular the non-d iscrim ination provisions, u n d er A rticle 14,
m ight requ ire schools and other institutions to take steps that w ould
un derm ine their religiou s identity.
13 Freedom of thought, conscience and religion

(1) If a court's determination of any question arising under this Act might affect the
exercise by a religious organisation (itself or its members collectively) of the
Convention right to freedom of thought, conscience and religion, it must have
particular regard to the importance of that right.
(2) In this section 'court' includes a tribunal.
It is hard to see how this m easure has m u ch of su bstance in it since a court

can hardly do anything else than have 'p articu lar reg ard ' to A rticle 9, if A rticle
9 is in issue in a case.
23.4 Common law
T hou gh it m ay have been once, C h ristianity is not part o f the com m on law in
the sen se that non-C hristian or even anti-C hristian pu rposes w ill, if otherw ise
law ful, be supported by the law . In Bozeman v Secular Society Ltd (1917)14 a gift
to the Secu lar Society w as upheld by the H ouse o f Lords against a claim that
it w as u n law fu l becau se the Society sou ght to d en y the truth o f Christianity.
Lord P arker could find no basis in statute, general crim inal law or public
policy for holding the gift inv alid .15 A part from the exclu sion of R om an
C ath olics from the C row n,16 statu tory religiou s tests have been abolished in
10 K okkin akis v G reece (1993) 17 EH RR 397, paragrap h 33.

11 D ubow ska an d Skup v Poland (1997) 24 EHRR CD 75.
12 The im plication of Stedm an v U nited Kingdom [1997] EH RLR 545; M rs Stedm an's com plaint, that
her private em ployer m ade her w ork on the Sabbath, w as unsuccessful on its m erits not because
no state interest w as engaged.
13 IS K C O N v U nited K ingdom (1994) 18 EHRR C D 133 w here it w as argu ed, unsuccessfully, that
the C ourt should perm it a narrow er m argin of appreciation in respect of religious-based
planning applications.
14 [1917] AC 406.
15 Bow m an v S ecular Society Ltd [1917] A C 406, 434.
16 A ct of Settlem ent 1700, s. 2.
respect of public functions, though religious organisations, such as faith

schools, seem to be able to discrim inate in respect of who they em ploy.
Such discrim ination, in respect of public office, m ight be incom patible with
A rticle 14, as a C onvention right, m easured w ith A rticle 9. The O aths A ct 1978
provides a form of oath for C hristians and Jew s and allow s others to choose to
affirm .17
Private dispositions of property in favour of one religion and withdrawn
from others, such as through a charitable donation or in a will, are valid
despite their discrim inatory quality. Donative and testam entary freedom
outw eighs religious d iscrim ination.,x Section 34 of the Race Relations Act 1976
outlaw s discrim ination on grounds of colour for charitable donations but has
not, despite suggestions, been extended to include religious discrim ination.
W hether such donative and testam entary discrim ination is incom patible with
C onvention rights is not clear. A ny engagem ent of Convention rights would
require positive duties on states to im pose non-discrim inatory rules in the
private sphere generally, and not confine them to em ploym ent. Such disposi
tions are a clear and strong m anifestation of religious belief19 and m ay give
sufficient grounds for the kind of 'reasonable and objective' justification for
differences in treatm ent that are perm itted under the jurisprudence relating to
A rticle 14 ECH R.20
23.5 Religious exemptions
The law m ay prom ote religious freedom by providing exceptions to the

general law in order to protect the necessities of religious observance.21 For
exam ple, single-sex m inistry is perm itted as one of the exceptions in the Sex
D iscrim ination Act 1975, overseas polygam ous m arriages, w hich m ay have a
religious justification, are recognised, and m ale follow ers o f the Sikh religion,
w ho m ust w ear turbans, have exem ption from legal requirem ents to w ear
crash hats22 or safety helm ets.23
Such exem ptions as these are justified as being necessary for believers if
basic tenets and m anifestations of belief are to be upheld. They also have little,
if any, im pact on others. W here m anifestations of religious belief have an
im pact on a person's ability to w ork as directed by an em ployer, the courts
have been m uch less sym pathetic and have generally not allow ed claim s by
em ployees for exem ption from contractual duties in order to pursue religious
observance, even w here there is a general statutory duty on an em ployer not
17 Oaths Act 1978, s. 5. No provision for an Islamic oath has been made.
18 Blathivayt v Baron Caw ley [1976] AC 397; Re Lysaght [1966] Ch 191; Re Tuck's Settlem ent Trust
[19761 Ch 99.
19 See Lord Cross in Blathwayt.
20 Belgian Linguistics Case (1979-80) 1 EHRR 784.
21 See, for exam ple, Bailey, S.H., Harris, D.J. and Jones, B.L. (1995) Civil Liberties Cases and M aterials,
4th edn. London: Butterworths, pp. 599-601.
22 The Road Traffic Act 1988, s. 16(2).
23 Employm ent Act 1989, ss. 11 and 12.
to d iscrim in ate on religiou s ground s.24 E m ployees' claim s have been rejected
by the C ou rt o f H um an R igh ts.25
The law does not norm ally perm it con scien tiou s objection, even if m otivated
by religiou s b elief, to relieve persons from the burdens o f the law such as the
paym ent o f tax for the pu rch ase o f arm am ents by Q u ak er pacifists.26 In such
cases w hat is in issue is not the d irect requ irem ents o f religiou s observation
bu t the m oral p erspectiv e that a religiou s b elief m ay engender. Fundam ental
to the ru le o f law in a dem ocracy is that all are boun d, even by the law s they
oppose. N or can con scien tiou s, religion-based b elief act as a d efen ce to w hat
w ould otherw ise be crim es.2' T here are som e areas in w hich con scien tiou s
objection, in clu ding religious based , is accepted. Section 4 o f the A bortion A ct
1967 is a good exam ple w hich, given that it could lead to v ery unequal
provision o f abortion services in p articular areas, illustrates bo th the v irtue and
the difficulty o f con scien tiou s objection provisions.28
23.6 The promotion of religion
A spects o f the law prom ote or give ad vantages to religion, particularly

C hristianity. T h e C h urch o f England, the established church, enjoys certain
ad vantages at the cost o f som e state interference in its internal affairs.29
A lth ou gh the leaders o f o ther religions m ay be appointed to the H ouse of
L ords none o f them enjoy the righ t ex officio to sit in the H ouse o f Lords. Legal
recognition o f Sund ay, the C h ristian Sabbath, as a special d ay is greatly
red uced and m ost restraints in the areas o f entertainm en ts and shopping have
now been lifted,30 though the extent to w hich the rights o f em ployees w ho
w ish not to w ork on Sund ay have been protected is questionable.
T rad itionally, the legal prom otion of C h ristianity has been through the state
m aintained edu cation system . T h e long-stand in g requ irem ent for C hristian
w orship in state schools (com m u nity or grant m aintained ) is now lessened.
C om m u nity schools are required to have a com pulsory act o f w orship that
m u st have a broad ly C h ristian character.31 Parents have individual rights to
w ithd raw their child ren from this.32 By section 394 of the E du cation A ct 1996
a school can seek p erm ission from the local ed u cation au th ority to be exem pt
from the requ irem ent for C h ristian w orship on ground s w hich inclu de the
fam ily background o f m any o f their pupils. P erm ission requ ires the approval
24 A hm ad v IL E A [1978] 1 All ER 574, C A , in w hich a M uslim teacher m issed 45 m inutes of his

teaching duties in ord er to attend Friday prayers. Section 30, Education A ct 1944 prevented
religious discrim ination in the recruitm ent of teachers or requiring teachers to give religious
instruction.
25 See above, note 9.
26 As in Cheney v Conn [1968] 1 All ER 779, dealing with a challenge to the validity of an A ct of
Parliam ent. The general position is upheld under ECH R in C v U nited Kingdom (1983) 3 7 DR 142.
27 Blake v DPP [1993] C rim LR 586; R v Senior [1899] 1 QB 283.
w See com m ents in C hapter 21.
29 H alsbury's Law s o f England, 4th edn. vol. 14 'Ecclesiastical L aw ' (1975), paragrap hs 3 4 5 -6 0 .
30 Sunday Trading A ct 1994, w hich allows large shops to open on Sundays for six hours; access
to entertainm ent is extended by the C inem as A ct 1985.
31 Section 70, School Standards and Fram ew ork A ct 1998, and Schedule 20.
32 Section 71, School Standards and Fram ew ork A ct 1998.
o f the edu cation au th o rity 's Stand in g A d v isory C ou ncil o f R eligiou s E d u ca
tion. The acts o f w orship can then be n on-d enom inational or can be d istinctive
o f another faith. A child w ho is not w ithd raw n by his or her parents can still
be com pelled to w orship in one religion or another. T hese exem ptions are
explained by A rticle 2, P rotocol 1 EC H R , the 'right to ed u catio n ', w hich
requ ires states to give effect to a right o f p aren ts that their child ren b e educated
in line w ith their, the p aren ts', religiou s and p hilosophical con viction s.33
Th e N ew Labour governm ent prom oted 'faith -b ased ' schools. T he link
betw een religion and m orality and ethics m akes such proposals controversial.
Difficult question s abou t sex edu cation, the equality o f the edu cational
provision for girls and the d egree o f acceptance and aw aren ess o f other faiths
are likely to arise in this context.
R eligion is also prom oted by religiou s organisations bein g able to benefit
from charitable status. T his can bring significant tax ad vantages, although it
also bring s lim its on, for exam ple, the pursuit o f political p u rp o ses,34 and it
brings supervision by the C h arity C om m issioners. It is in the con text o f groups
claim ing such ad vantages that the cou rts have had to deal w ith the question
o f w hat is a 'religio n ' and w hether groups such as the C h urch o f Scientology
or the M oonies cou nt as religions or w hether the Exclu sive Brethren, though
religiou s, can be charitable.35
23.7 The protection of religion: blasphemy
The issue o f blasp h em y is w hether religion, d istin ctively, should enjoy the
protection o f the law from criticism and attack. B lasphem y involves a tension
betw een a claim that religiou s b elief is o f such fundam ental significance for
persons that it need s the special protection o f the law and, on the o ther hand,
the d enial that the special claim s o f religion exist or are sufficiently strong to
override the rights o f others to freed om o f expression.
C riticism s o f the C h urch and C h ristianity w hich fell short o f heresy w ere, in
the pre and early-m od ern w orld, understood to be the con cern o f ecclesiastical
courts rather than the com m on law . By the end o f the seventeenth century, the
state began to replace the C h urch as the pu nisher of m orally u n acceptable
behav iou r36 and b lasp h em ou s libel w as accepted as a com m on law offence in
Attw oods' Case (1617).37 The basis o f com m on law ju risd iction w as partly the
protection o f m orality bu t, m ore significantly, an attack on religion, specifically
C h ristianity, underm ined the au th ority of the law s generally. 'If religion is a
cheat the body politic is threatened; the oaths, con tracts and obligations are
m ean in gless . . . C h ristianity is a parcel o f the law s o f E ngland '.38 A century
33 The reservation entered into by the United K ingdom in respect of the parental rights provision
of Article 2 relates to the m aintenance of efficient instruction and training and the avoidance of
unreasonable public expenditure. It is retained under the H um an Rights A ct 1998.
54 Davis, H. (2000) Political Freedom . London: C ontinuum , ch apter 4.
35 Bailey, H arris and Jones, op. cit., p. 580.
36 Unsw orth, C. (1995) 'B lasphem y, C ultural D ivergence and Legal R elativism ', 5 8 M LR 5, 658.
37 (1617) C ro Jac 421, 79 ER 359. For a review of the case law see R v C h ief M etropolitan S tipendiary
M agistrate ex parte C hou dhu ry [1991] 1 All ER 306.
38 Taylor's C ase (1676) Vent 293, 8 6 ER 189.
later, d u ring the repression aim ed at lim iting the influence o f the French
Revolu tion, blasph em ous libel w as used against p olitical opponen ts o f the
established order; again, an attack on C h ristianity w as seen as an attack on the
state and the law s.39 B lasphem ou s libel, on this view , inclu des w ithin the reach
o f the offence reasoned scepticism about, or refu tation of, the truths of
C hristianity. D uring the p olitically calm er and m ore scientifically aw are
nineteenth cen tury an apparen t shift in actus reus seem s to have occurred.
H onest and sober d isagreem ents betw een reasonable persons about the truth
o r otherw ise o f C h ristian d octrine are acceptable. Instead, blasp h em y is found
in the tone, the insulting spirit, of any attack.40 T h is position w as eventually
given H ouse o f Lords auth ority in Bowman v Secular Society (1917).41 D enying
the truth o f C h ristianity is not sufficient. T here m u st be an attack and it m ust
have a 'scu rrilous, ribald or con tu m eliou s' tone. A scu rrilou s tone is one of
buffoon-like jocularity, coarseness and ind ecency; a ribald tone is obscene or
involves coarse langu age or is abusive and low ; a con tum elious tone involves
insolent abuse or is insultin g or con tem ptu ou s or illustrates scornful rudeness,
tending to h u m iliation.42 T here w ere few reported d ecisions and the offence
w ent into d ecline.43
T h e law w as revived in R v Lemon (1979).44 Its origins w ere in a successful
p rosecu tion of the p u blication in Gay Nezvs, edited by Lem on, o f a poem by
Jam es K irkup, an established poet w ho w rote on gay them es. 'T he poem
pu rports to d escribe in explicit d etail acts o f sod om y and fellatio w ith the body
o f C h rist im m ed iately after H is death and to ascribe to H im d uring his lifetim e
prom iscuous hom osexual practices w ith the A postles and w ith other m en '.45 The
appeal to the H ouse o f Lords w as on the mens rea o f the offence w hich w as held
to be strict in the sense that no intention to blasp h em e need be proved, only an
intention to publish w hat is, objectively, a blasphem y. T h e case inv olv es a shift
in the general burden o f the offence. It is the offensiveness to others that com es
to the fore, the capacity of the w ork in issue to outrage religiou s feeling. This
capacity to offend can be found in seriou s w orks, in poem s, film s and novels,
w hich w ould not norm ally be thought of as 'scurrilous, ribald or contum elious'.
O ffensiveness to others has been accepted by the C om m ission and C ou rt of
H um an R ights as bein g an acceptable ground for a blasp h em y law . The
Strasbou rg institutions have allow ed bans o f blasp h em ou s w orks as being
w ithin the m argin o f appreciation of signatory states46 so long as the d en ial of
religiou s truth is not in itself a crim inal offence and crim inality is triggered by
a high d egree o f offensiveness.47 A law on blasp h em y is com p atible w ith
-w r y W illiam s (1797) H ow ell's State Trials, volum e 26, 656: the prosecution of the publisher of
Thom as Paine, T he A ge o f Reason.
40 R v H etherington (1841) 9 State Trials (NS) 563; R am say v F oote (1883) 15 C ox CC 231 w hich refers
to R v W addington (1822) 1 State Trials (NS), 107 ER 11.
41 [1917] AC 406.
42 These definitions are taken from the S horter O xford English Dictionary.
43 Few if any cases w ere reported after R v G ott (1922) 16 C r A pp Rep 87.
44 [1979] A C 617.
45 R v Lem on [19791 AC 617, 632, per Lord Diplock.
46 A w ide m argin of appreciation is com m only allowed on 'm oral' issues such as blasphem y or
obscenity.
47 W ingrove v U nited Kingdom Ap. 1 7 4 1 9 /9 0 ; (1997) 24 EH RR 1.
A rticle 10(2) ECH R (freedom of expression) as being to protect the rights of

others. The right others are said to enjoy is to be protected from a high level
of insult and outrage to religious sensibility.48 The level of insult m ust be high
since there is am ple Strasbourg authority that free speech under the C onven
tion protects offensive and unpopular speech.49 In Choudhury v United Kingdom
(1991)50 the Com m ission denied that states had a positive duty to protect this
right by positive m easures which would apply equally for all religions.
However, m ore recently, in Dubowska and Skup v Poland (1997),51 the C om m is
sion suggested that there m ight be a positive duty on states to protect people
from being disturbed in their worship by 'the m anner in w hich religious
beliefs or doctrines are opposed'.
In the United Kingdom , blasphem ous libel is confined to serious insult to
the Christian religion alone of the w orld's religions if it is a body of general
beliefs that is attacked. A rguably, if the attack is on a church and its doctrines,
the offence is lim ited to Anglicanism . In R v Chief Metropolitan Stipendiary
Magistrate ex parte Choudhury (1991)52 the Court of Appeal declined to extend
the offence to other religions and this was accepted by the Com m ission of
H um an Rights in Strasbourg. O nce the point o f the crim e shifted from
upholding the authority of the laws and the established order to guarding
against offensiveness to individual religious sensibility, confining it to one
religion becam e arbitrary, a historical anom aly. In a m ulti-faith society there is
no good reason w hy follow ers o f only one of the faiths should enjoy this kind
of protection. Such arbitraryness led to calls for reform ; either the offence
should be abolished or extended to all religions. The Law Com m ission in its
review of the to p ic’3 argued for the abolition of the offence and its replacem ent
by offences of incitem ent to religious hatred.54
The m atter is highly controversial. If there is a need in m odern society for a
law of blasphem y, then it should be applied to all religions. This is a perfectly
creditable position, rooted in equality under the law. A general argum ent for
a law of blasphem y has as its target the liberal assum ption that the state has
no place in prom oting or giving special protection to religion. Critics of liberal
theory argue that its basic prem ises about persons and societies are over-
individualistic and that, as a theory, it fails to give sufficient credence to the
w ay any person's sense of self-hood, w ell-being and self-respect is rooted in
com m unity and collective understanding.55 The profundities of faith can be
central to w ell-being and self-respect in a way that rationally based political
beliefs or m oral rules are not. On this view it is justifiable for the law to protect
48 See in particular Lemon v United Kingdom (1982) 5 EHRR 123; Otto Prem inger Institute v Austria
(1995) 19 EHRR 34; W ingrove v United Kingdom Ap. 1741 9 /9 0 ; (1997) 24 EHRR 1.
49 H andyside v United Kingdom (1979) 1 EHRR 737, paragraph 49.
50 Ap. 174 3 9 /9 0 ; (1991) HRLJ 172.
51 (1997) 24 EHRR CD 75.
52 [1991] 1 All ER 306.
53 The Law Commission (1981) C riminal Law: Offences against Religion and Public Worship, Working
Paper 79; Report 145 (1985).
54 A minority of the Commission argued for an extension to cover all religions and denominations.
55 See, for exam ple, Sandel, M. (1982) Liberalism and the Limits o f justice. Cambridge: Cambridge
University Press. For sensitivity to the issue from within a liberal perspective see Kymlicka, W.
(1989) Liberalism, Com m unity and Culture. Oxford: Clarendon Press.
religious sensibility from the cruder and m ore vicious form s of attack. The
argum ent is particularly strong in respect of a m ulti-cultural society, such as
Great Britain, w here adherents to m inority faiths in particular m ay feel
particularly vulnerable.
The argum ents against a law of blasphem y, and hence against its universal
application, are particularly strong given that the crim e deals with highly
offensive rather than directly harm ful3* words. The liberal position rejects the
idea that a person can reasonably be punished m erely for offending others. No
harm is done to those w ho are offended: their interests are not harm ed since
the alleged blasphem y does not prevent them from worship. Free speech
m eans little unless it perm its speech w hich is unpopular and offensive.
O pponents of a law of blasphem y also point out that it gives an advantage to
the religious in any argum ent. It is like a trum p card w hich those of a religious
sensibility can play to stop argum ent and criticism of beliefs and practices.
Religious-based m orality and practices m ay need reform ; they can be highly
illiberal57 and can som etim es appear to justify unlaw ful violence.58 J.S. M ill's
fam ous defence of freedom of speech contains the idea that social progress can
result from the criticism of established views and beliefs and criticism s of
religion are likely to be highly offensive particularly in their first appearances.
There are also political objections to a law of blasphem y. The revival of the law
of blasphem y in the 1980s, and its continued significance today, has been
associated w ith the rise of the right wing in British politics and with the
authoritarianism that that brought.59 The extension of blasphem y to all
religions w ould also raise a range of form al problem s. In particular is the
difficult job of defining a religion. Even if it is possible to confine religion to
m ankind's relations with God, as distinct from 'ethics' which deals with
m ankind's relations to m an,60 there will alw ays be a range of claim s to
religious sensibility from outside the confines of the main world religions.
These would need to be decided by courts which m ay not be com petent to
m ake the judgm ent involved. M inority and eccentric views would be given an
unm erited protection. A further difficulty has been suggested: that different
religious groups m ay expect different degrees of protection from offensive
w ords and conduct.61 It m ay, for exam ple, be m uch easier to com m it a
blasphem y against Islam than against Christianity. Such differential treatm ent,
w hich m ay be necessary to m eet the aspirations of those seeking to protect
their religions, will be difficult to defend given that equality under the law is
the reason for extending blasphem y to all religions in the first place.
The alternative to a general law of blasphem y is the creation of offences of
incitem ent to religious hatred. The N ew Labour governm ent has been
56 There is som e authority for the view that blasphemous libel requires an anticipated breach of
the peace. This would narrow the offence to situations in which violence is a foreseeable,
proxim ate reaction to the alleged blasphemous act. The offence goes wider than this.
57 In relation to homosexuals and to the position of women, for example.
58 The 'fatwa' against Salman Rushdie is an obvious exam ple; the alleged involvement of the
Archbishop in Rwanda in the genocide of the Tutsi by the Hutu m ay be another.
59 The argum ent relates particularly to the period of the Conservative governm ent after 1979. On
the link to blasphemy See Unsworth, op. cit.
60 Re South Place Ethical Society [1980] 1 WLR 1565.
61 See Unsworth, op. cit.
sym p athetic to this approach, although its attem p t to attach such an offence to
the A nti-terrorism , C rim e and Secu rity A ct 2001 failed in Parliam ent. The
crucial issue is to ensure that such offences do not sim ply am ou nt to a law
against blasp h em y b y another nam e. O ne w ay is to ensure that, under any new
offences, it w ill be necessary for the state to prove an intention to cause
un reason able hatred o f religion w hich is likely to lead to violence. The
governm ent m ay relate such provisions w ith the provisions d ealing w ith
religiou s d iscrim in ation in em ploym ent that they m u st bring in d uring 2003.
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Index
ab o rtio n , 3 8 2 -4 L o n d o n sites, 306

A cts o f P arliam en t m arch es and p ro cessio n s, 3 1 3 -1 7
see S tatu te L aw and R igh ts m eetin g s, 303
ad m in istrativ e trib u n als, 147 no tice o f m arch es, 3 1 3 -1 4
ad v ertisin g o p p o sitio n v eto, 298, 301, 312
p o litical ad v e rtisin g , 189, 2 4 7 -8 p erm issio n o f lan d ow n e r, 3 0 3 -4
in d ecen cy , 409 p erm issio n o f p u b lic b o d ies, 3 0 4 -5
A d v ertisin g S ta n d a rd s A u th o rity , 56, 189, p olice p o licy , 296
409 p olice p o w er to en ter m e e tin g s, 3 0 9 -1 0
alle g ian ce to the cro w n , 251 p o sitiv e d u tie s on the state, 298
arrest, 8 8 -9 4 p ro v o ca tio n , 327
citizen , b y, 69, 91, 93 p u b lic sp ace s, 3 0 5 -6
d efin itio n , 88 riot, 327, 328
H u m an R igh ts A ct 1998, A rticle 5, 8 9 -9 0 T re sp a sso ry A sse m b ly , 3 2 1 -2
in fo rm atio n w h en arrested , 93 v io len t d iso rd er, 327
search w hen a rreste d , 9 4 - 5 w atch in g and b esettin g , 323
search o f p rem ises o f arrested p erso n 114 A sso ciatio n , F reed o m of, 236
su m m ary arrest, 9 0 - 3 , 2 9 9 -3 0 0 H u m an R ig h ts A ct 1998, S ch ed . 1 A rticle
terro rist su sp ects, 3 4 9 -5 0 11, 236
w arran t, by, 90 trad e u n io n s, p o litical p u rp o ses, 237
A sse m b ly , R ig h t o f p olitical restrictio n in em p lo y m e n t, 238
affray, 327 s e e : P olitical P arties
ag g rav ated tresp ass, 3 1 9 -2 0 au to n o m y , 4, 6 - 7 , 1 7 1 -2
bail co n d itio n s, 324
ban n in g m arch es, 3 1 5 -1 7 bail, 96, 151
b an n in g m eetin g s, 312 B ill o f R igh ts, fo r and ag ain st, 2 9 -3 0
b in d in g ov er, 324 b lasp h e m y
breach o f the p eace, 3 0 0 -3 , 3 0 9 -1 0 h isto ry , 4 1 9 -2 0
civ il rem ed ies and tresp asso ry m od ern law , 4 2 0 -3
d e m o n stra tio n s, 3 1 8 -1 9 H u m an R igh ts A ct S ch ed . 1 A rticle 10, 421
con d itio n s im p o sed on m arch es, 3 1 4 -1 5 refo rm p ro p o sals, 4 2 1 -3
con d itio n s im p o sed on m eetin g s, 3 1 1 -1 2 b o d ily in tegrity
co n text, 295 d efin ed , 368
d am ag e to p ro p erty , 3 2 2 -3 s e e : co rp o ral p u n ish m e n t; d eath p en alty ;
d em o n stratio n s, d efin ed , 317 m ed ical treatm en t
d isru p tio n o f m e e tin g s, 3 1 2 -1 3 b reach o f con fid e n ce , 1 9 8 -2 0 0
fear o f v io le n ce , 327 cele b ritie s, 200
fo reig n m issio n s, tresp ass on, 322 Freedom o f Inform ation A ct, exem ption, 273
h arassm en t, alarm or d istress, cau sin g, H u m an R igh ts A ct S ch ed . 1 A rticle 10, 292
3 2 5 -6 , 394 nation al secu rity , 2 8 9 -9 2
h ig h w ay s, u se o f for m ee tin g s and p riv acy co m p ared , 1 9 9 -2 0 0
d e m o n stra tio n s, 3 0 7 -9 , 320 p u b lic in terests d isclo su res, 200, 2 9 0 -1
H u m an R igh ts A ct S ch ed . 1 A rticles 11 Spy catcher, 220, 290
and 10, 2 9 7 -8 , 304, 3 0 6 -7 , 309, 3 1 0 -1 1 , b reach o f the p eace, 69, 113,
312, 316, 3 1 9 , 3 2 1 -2 , 327 2 9 9 -3 0 3
arrest, 89, 3 0 0 -3 P A C E 1984 C o d e E, 103

H u m an R ig h ts A ct S ch ed . 1 A rticles 5, 10, P ress C o m p lain ts C o m m issio n , 1 8 7 -8 , 366
11, 300, 3 0 2 -3 RIPA 2000 C o v e rt H um an S o u rces, 139
leg ality , and , 3 0 2 -2 R IPA 2000 C o v e rt S u rv e illa n ce , 139
o p p o sitio n v e to, 301, 312 R IPA 2000 In te rce p tio n of
re ce n t case law , 3 0 0 -3 C o m m u n ica tio n s, 139
se e : A sse m b ly , R ig h t of com m issio n e rs
B ritish B ro ad castin g C o rp o ratio n , 190, 191 S u rv e illa n ce C o m m issio n e rs, 134, 139, 276
L icen ce and A g re e m e n t, 191, 193 C h ie f S u rv e illa n ce C o m m issio n e r, 138,
p arty p o litical b ro ad casts, 2, 4 8 -9 139, 276
see: b ro ad castin g In tellig en ce S e rv ice s C o m m issio n e r, 80,
bro ad castin g 139, 143, 276
B ritish B ro ad castin g C o rp o ratio n , 1 9 0 ,1 9 1 In tercep tio n o f C o m m u n icatio n s
B ro ad castin g S tan d ard s C o m m issio n , 191, C o m m issio n e r, 139, 143
1 9 6 -7 P riv acy C o m m issio n e r (P C C ), 187
C o m m u n icatio n s Bill 2 0 0 2 -3 , 191, 192, In fo rm atio n C o m m issio n e r, 269, 3 6 3 -4
193, 196 co m m o n law and righ ts
co n ten t b an s by m in isters, 1 9 1 -2 co m m o n law and statu te, 17
H u m an R ig h ts A ct S ch ed . 1 A rticle 8, 197 E u ro p ean C o n v en tio n on H u m an R igh ts,
In d e p e n d e n t T ele v isio n C o m m issio n , 190, in flu en ce, 2 7 -8
191 n e g ativ e liberty , 16
in d ecen cy and o b scen ity , 4 1 1 -1 2 co m m u n ica tio n s d ata, 132
ju d icial rev iew o f p ro g ram m e con ten t, 195 co n fid en tiality
licen sin g and reg u latio n , 190 in ju n ctio n , 188
O ffice o f C o m m u n ica tio n s (O fco m ), 191, see: m ed ia freed o m ; press
194, 196 co n stitu tio n a l th eo ry , 8 -9
p arty p olitcal and election b ro ad casts, co n stitu tio n al statu tes, 18
2 4 8 -9 con tem p t o f cou rt, 206
p olitical ad v e rtisin g , 195, attack s on the ju d iciary , 217
p olitical im p artiality , 193 civ il and crim in al con tem p t, 211
p riv acy , 197 com m o n law co n te m p t and in ten tio n , 214,
p ro g ram m e sta n d a rd s, 1 9 2 -5 221
racist sen tim e n ts, 260 co n te m p o ran eo u s rep o rt, 2 2 6 -7
R ad io A u th o rity , 190, 191 C o n te m p t o f C o u rt A ct 1981, 214, 221
terro rism , ban , 351 C o u rts and T rib u n als in v o lv ed , 211
se e : m ed ia freed om d efin itio n , 206
fru stratin g the p o in t o f a cou rt o rd er, 220
citiz e n s' d u ties tow ard s the p o lice, 6 9 -7 0 H u m an R ig h ts A ct, S ch ed . 1 A rticle 10,
clo se d -circu it tele v isio n , 1 4 4 -5 2 0 9 -1 1 , 2 1 3 -1 4 , 215, 217, 218, 222, 227,
C o d es o f P ractice 228
A d v ertisin g S tan d ard s A u th o rity , 189, 409 H u m an R ig h ts A ct, S ch ed . 1 A rticle 6,
A -T C & S 2001 A ccess to C o m m u n icatio n s 2 0 8 -9 , 212, 215, 218, 222, 227, 229, 231
D ata, 132 in the face o f the cou rt, 215
B B C P ro d u ce r G u id e lin e s, 193, 412 in d irect in te rfe re n ce w ith trials, 2 1 5 -1 7
B ro ad castin g S tan d ard s C o m m issio n , 196, in flu en cin g a ju ry , 2 1 8 -1 9
412 in n o cen t p u b licatio n , 226
D P A 1998 C losed C ircu it T ele v isio n , 145 ju ries and secrecy , 231
ITC A d v e rtisin g S ta n d a rd s and P ractice, ju stificatio n s for, 2 0 6 -8
248, 409 m ed ia freed om , an d , 2 1 3 -1 5 , 217, 223
ITC P ro g ram m e C o d e, 191, 193, 366, 412 p ay m en ts to w itn esses, 216
O p en G o v ern m en t, 266 p re ju d g e m e n t, 218
P A C E 1984 C o d e A (sto p and search ), 72, press co v e rag e o f trials, 219
8 4 -5 , 346 p u b lic affairs, in cid en tal d iscu ssio n of,
P A C E 1984 C o d e B (en try search and 2 2 7 -9
seizu re ), 109, 110, 113, 116 pu b licatio n u n d er th e C o n te m p t o f C o u rt
P A C E 1984 C o d e C (d etain ed p erso n s), A ct, 222
98, 99, 100, 101, 1 0 3 -5 , 3 4 9 -5 0 p u n ish m en t, 212
Index 431
scan d alisin g the cou rt, 2 1 7 -1 8 S p e cial Im m ig ratio n A p p eals

S pycatcher in ju n ctio n , 220, 221, 2 9 0 -1 C o m m issio n , 343
sto p p in g a trial, 212, 219, 225 d ete n tio n , 95
strict liab ility , 214, 2 2 1 -6 A rticle 5 E C H R , an d , 9 6 -8
su b stan tial risk o f serio u s p re ju d ice , 223 exten d ed d ete n tio n u n d er P A C E , 9 7 -8
su m m ary p u n ish m en t, 212 g ro u n d s fo r d ete n tio n u n d e r P A C E , 96
corp o ral p u n ish m en t in tern atio n al terro rist su sp ects, w ith o u t
crim in al p u n ish m e n t, 371 trial, 343
ch ild ren , 3 7 1 -2 s e e : D etain ed P erso n s, R ig h ts of
ch ild re n 's h o m es, 373 D etain ed P erso n s, R ig h ts of, 9 8 -1 0 6
H u m an R igh ts A ct, S ch ed . 1 A rticle 3, fin g erp rin ts, 105, 349
3 7 1 -3 in fo rm ed o f rig h ts, 98
H u m an R igh ts A ct, S ch ed . 1 P ro to co l 1 in terv iew s, 1 0 3 -4
A rticle 2, 373 sam p les, takin g of, 105
cu sto d y officer, 95, 98 to h av e so m e o n e in fo rm ed , 99
C u sto m s and E xcise, 61, 80, 131 to legal ad v ice, 9 9 -1 0 0 , 3 4 9 -5 0
su rv e illan ce , b y , 1 3 4 -5 , 138 treatm en t o f d etain ed p erso n s, 1 0 3 -6 ,
im p o rtatio n o f in d ece n t articles, 407 3 4 9 -5 0
v u ln erab le p erso n s, 104
see: S ile n ce , R ig h t to
D ata P ro tectio n A ct, 3 6 0 - 7 D icey , A .V ., 14
co m p e n satio n , 364
D ata P ro tectio n D irectiv e, 360, 364, 366
D ata P ro tectio n P rin cip les, 3 6 1 -3 election s
e n fo rce m e n t n otice, 363 cam p aig n e x p e n d itu re s, 2 4 6 -7
ex e m p tio n s, 365 can d id atu re , 245
H u m an R ig h ts A ct S ch ed . 1 A rticle 8, 362 election m eetin g s, 247
In fo rm atio n C o m m issio n e r, 363 election sy stem in the U nited K in g d om ,
in fo rm atio n n o tice, 363 2 4 3 -4
In fo rm atio n T rib u n al, 3 6 3 -4 fran ch ise, 2 4 4 -5
jo u rn a listic, literary and artistic p u rp oses, H u m an R ig h ts A ct, S ch ed . 1 P ro to co l 1
3 6 5 -6 A rticle 3, 241, 2 4 2 -3
leg al rig h ts, 364 p arty election b ro ad casts, 249
m ain term s in th e A ct, 361 third p art e x p e n d itu re s, 247
n atio n al secu rity ex e m p tio n , 365 see: p olitical p arties
p e rso n al d ata, 361 E lecto ral C o m m issio n , 2 4 0 -1 , 244, 246, 249
p u b lic au th o ritie s, 367 en cry p ted d ata, 133
sen sitiv e p erso n al d ata, 362 en try , search and seizu re, by p o lice, 107
se e : p e rso n al in fo rm atio n arrested p erso n , o f p rem ises con tro lled
d efam atio n , 177, 182, 201 by, 114
p olitical and p u b lic b o d ie s, of, 202 entry and search by w arran t, 1 1 5 -1 7
qu alified p riv ileg e, 201 en try and search for p erso n s, 112
d eath p en alty , 3 6 9 -7 1 en try by co n sen t, 1 0 9 -1 0
IC C P R , 369 en try by p o lice at co m m o n law , 109
H u m an R igh ts A ct S ch ed . 1 P ro to co l 6, entry , search an seizu re at co m m o n law ,
370 111
d efen ce ad v isory n o tices, 2 9 3 -4 exclu d ed m aterial, 119, 1 2 0 -1 , 347
d em o cracy H u m an R igh ts A ct, S ch ed . 1 A rticle 8, 108
asse m b ly , righ t of, 298 H u m an R ig h ts A ct, S ch ed . 1 P ro to co l 1
co n ce p ts o f, 3, 5 - 6 A rticle 1, 108
freed om o f asso ciatio n , an d , 236 legal p riv ileg e, 1 1 8 -1 9 , 347
freed om o f exp re ssio n , and , 1 7 2 -3 , 202 O fficial S ecrets A ct 1911, 281
hate crim es, an d , 257 safeg u ard s, 116
p riv acy , con trasted w ith , 4 search o rd ers, 1 2 4 -5
d em o n stratio n s, m arch es and m eetin gs seizu re o f g o o d s, 113, 117
se e : A sse m b ly , R ig h t of sp ecial p ro ce d u re m aterial, 1 1 9 ,1 2 1 -4 , 347
d ep o rtatio n , 343 statu to ry p o w ers to en ter w ith o u t a
d eten tio n w ith o u t trial, 3 4 3 -5 w arran t, 111
terro rist in v e stig atio n , 3 4 7 -8 h earers' or sp e a k e rs' in terests, 1 7 1 -3 ,

E u ro p ean co m m u n ity law and 1 7 4 -5
E u ro p ean C o n v e n tio n on H u m an R igh ts, H um an R igh ts A ct 1998, an d , 123
2 2 -7 H u m an R igh ts A ct, S ch ed . 1 A rticle 10,
a d m issib ility , 26 1 7 9 -8 0 , 203, 2 5 3 -4
C o m m issio n o f H u m an R igh ts, 25 im p artiality o f p u blic b o d ies, 178
C o m m ittee o f M in isters o f the C o u n cil of in citem en t to d isaffectio n , 2 5 5 -6
E u ro p e, 25 in citem en t to racial h atred , 2 5 6 -6 0
C o u n cil o f E u ro p e, 23 in ju n ctio n s and p rio r restrain t, 176
C o u rt o f H u m an R igh ts, 23, 2 5 -6 ju stificatio n s for, 1 7 1 -3
d em o cracy , co n ce p t of, 4 0 -1 o p en g o v e rn m e n t, an d , 2 6 4 -5
d ero g a tio n , 42, 43, 344 p o litical sp eech , 179, 202, 250
in d iv id u al p etitio n , 23 priv ate p o w er, 175, 179
leg ality , p rin cip le of, 31, 45, 58, 136, 143, reg u latio n , 177
167, 348 sed itio u s lib el, 2 5 3 -4
m arg in o f ap p reciatio n , 32 su rv e illan ce , th reaten ed by, 126
o u tlin e o f p ro v isio n s, 2 3 -4 terro rism , an d , 330
p o sitiv e d u ties, 3 1 -2 , 76 see also: m ed ia freed om
p ro ced u re, 2 6 -7
p ro p o rtio n a lity , 3 3 -4 fair trials
p ro to co l 11, 24, 25, 50 access to the cou rt, 148, 1 5 1 -2 , 160
reserv atio n , 48 b a il, 151
U nited K in g d o m , im p act on, 27 com m o n law p rin cip le s, 1 4 6 -8
v ictim , 38 crim in al trials, 156
E u ro p ean C o n v e n tio n on H u m an R igh ts cu rativ e ap p eal, A rticle 6, 149
a rticles d elay , and A rticle 6, 151
P reface, 40-1 d isclo su re , 153
A rticle 1, 24, 41 eq u ality o f arm s, 1 5 1 -2
A rticles 2 -1 2 , 14, 16, 17, 18 and H u m an R igh ts A ct, S ch ed . 1 A rticle 6,
P ro to co ls 1 and 6: see u n d e r H u m an 1 4 8 -5 6 , 231, 276
R ig h ts A ct 1998 in table o f cases im p artiality , 155
A rticle 13, 4 9, 1 5 1 -2 in d ep en d e n ce , 1 5 5 -6
A rticle 15, 50, 180, 344 n atu ral ju stice o r fairn ess, 148, 155
A rticle 18, 45 n a tio n a l secu rity , 276
A rticle 24, 26 o u ster clau se s, 148
A rticle 34, 26, 38, 184, 197 p riso n e rs, 1 6 1 -2
A rticle 35, 26 p u b lic h earin g s and A rticle 6, 155, 2 2 9 -3 0
A rticle 41, 39 p u b lic in te re st im m u n ity , 1 5 3 -4
A rticle 43, 27 reaso n s for d ecisio n s, 1 5 4 -5
A rticle 57, 25 sco p e o f A rticle 6, 150
A rticle 58, 25 see: C o n te m p t o f C o u rt
E u rop ean U n io n , 20 film
C h arte r o f F u n d am en tal R igh ts, 22 B ritish Board o f Film C lassificatio n , 410
eu th an asia, 3 7 6 -7 licen sin g o f cin em as, 409
H u m an R igh ts A ct S ch ed . 1 A rticle 2, see: o b scen ity
3 7 6 -7 fo rce, u se o f by state a g en ts, 7 4 -7
H um an R igh ts A ct S ch ed . 1 A rticle 8, 377 by p o lice u n d e r P A C E , 113
exp re ssio n , freed om of, 123 freed o m o f in fo rm a tio n /o p e n g o v e rn m e n t
b ro a d ca stin g stan d ard s, 193 a b so lu te ex e m p tio n s, 270
civ il co n tem p t, 213 a rg u m en ts fo r o p en n ess, 2 6 3 -4
crim in al law , 1 7 7 -8 a rg u m en ts for secrecy , 2 6 1 -2
d efam atio n , 177, 182, 2 0 1 -3 C o d e o f P ractice, 2 6 6 -7 7
fo rm s o f exp re ssio n , 174 co m m e rcial secrets, 273
freed om o f in fo rm atio n , an d , 2 6 4 -5 co n fid en tial in fo rm atio n , 273
g en eral p rin cip le o f law , 171 d u ty to p u b lish , 267
harm , 175 e n fo rce m e n t, 2 6 8 -9
hate crim es and in citem en t, 257 e n v iro n m e n ta l in fo rm atio n , 272
Index 433
exem ptions, 2 7 0 -6 victim , 38

Freedom of Inform ation A ct 2000, 265, individual articles in Sched. 1, see:
2 6 6 -7 7 expression, freedom of; m edia
H um an Rights Act, Sched. 1 A rticles 8 freedom ; police; prisoners' rights;
and 10, 2 6 4 -5 privacy; silence, righ t to; stop and
Inform ation C om m issioner, 267, 268, 363 search; surveillance; terrorism ; and
Inform ation T ribunal, 268, 269, 3 6 3 -4 un der H um an Rights Act 1998 in
national security, 2 7 5 -6 , 281 Table o f C ases
overriding the C om m ission er, section 53,
270, 274 incitem en t to disaffection, 2 5 5 -6
Parliam entary C om m ission er, 268 incitem en t to racial hatred, 2 5 6 -9 , 326
policy m aking by governm ent, 2 7 4 -5 H um an R ights A ct, Sched. 1 A rticles 10 &
privileged inform ation, 273 17, 2 5 9 -6 0
public records, 2 6 2 -3 Independent Television C om m ission, 56, 60,
W hite Paper on O pen G overn m ent, 263, 190, 193, 248, 409
266 see: broadcasting
freedom of the press Inform ation C om m ission er, 132, 1 4 4 -5 , 267,
see: m edia freedom 363
free speech inhu m an and degrading treatm ent, 75
se e: expression, freedom of Intelligence and Secu rity C om m ittee, 80,
fundam ental rights, 2 0 -2 139, 282
international law , 18
G eneral C om m u nications H eadqu arters, 77 International C ovenant on C ivil and
Political Rights, 19, 1 5 7 -8 , 2 3 5 -6 , 284
Internet, 2 5 7-8
habeas corpus, 151
harm
freed om of expression, and, 175 Joint C om m ittee on H um an Rights, 40
hate crim es, 2 5 6 -6 0 judicial review , 58
H um an Rights A ct, 2 5 9 -6 0 grounds, 5 8 -9
'h om e', 108, 113 proportionality, 59
hum an rights, concept of public body, 5 6 -7
definition, 10
d erivation, 10 legal privilege, 118-19, 273
ind ividu alism , 1 2 -13 legality, 31, 45, 58
ju dicial politics, and, 11 conspiracy to corrupt public m orals, 400
other p olitical claim s, and, 10 dem onstrations, m arches and m eetings, 298
social and environm ental rights, 1 1 -12 life sentences, 167
H um an Rights A ct 1998, 2 8 -4 0 , 59 prison discipline, 161
argum ents for and against, 2 9 -3 0 surveillance, and, 127, 136, 137
declaration of incom patibility, 34 terrorist offences, 348
d eference, 3 2 -3 , 188, 189,195 life, right to, 76
d erogation, 344 see: euthanasia; prisoners' rights
freedom of religion, 40
freedom of speech, 40 m edia freedom , 1 22-3, 181-205
horizontal effect, 37, 175, 184 breach of confid ence, 198-200, 291
legislation, interpretation of, 34 celebrities, 200
necessary in a d em ocratic society, 14 2 ,1 7 9 civil contem pt of court, 213
Parliam ent, role of, 40 data protection, 358
p roportionality, 3 3 -4 , 45, 59, 142 defam ation and qualified privilege, 201
public authorities, 3 6 ,5 6 ,1 8 4 ,1 9 7 , 267, 304 D efence A dvisory N otices, 2 9 3 -4
reasons for the A ct, 28 definition, 181
rem ed ial ord ers, 3 5 -6 duty to im part inform ation and ideas, 183
rem edies and proceedings, 38 free expression, 175-6
Section 1, scheduled C onvention rights, general law , and the m edia, 182-3
130 harassm ent, 187, 198
Strasbou rg ju rispru d ence, influence of, 30 H um an R ights Act, Sched. 1 A rticle 10,
subord in ate legislation, im pact on, 34 1 83-4, 204
im partiality: press and broadcasting Internet, 4 1 2 -1 3

con trasted , 186 obscenity at com m on law , 398
im portance of a free press and m edia, 171, obscenity defined, 4 0 4 -5
1 8 2 ,1 8 3 , 200 outraging public d ecency, 4 0 1 -3
journalism and surveillance, 127, 130, 131, public good and publication, 398, 403,
134, 136, 187 4 0 5 -6
journalism and terrorism , 3 5 1 -3 satellite broad casting, 412
journalists, con tact w ith prisoners, 160, theatre, 408
165 W illiam s C om m ittee, 397
national security, 291 offensive w eapon, 8 3 -4
O fficial Secrets A ct 1989, 198, 281, 283, official secrets
28 8 -9 crim inal m atters d isclosed , 288
personal inform ation, 358, 3 6 5 -6 C row n servan ts, 283, 286, 287, 288
political libels, 202 dam aging disclosure, 286
privacy, 186-9 d efen ce m atters d isclosed , 2 8 6 -7
protection of sou rces, by journalists, 2 0 3 -5 d efences to prosecution, 283
public authorities, 184 disclosure of inform ation, 2 8 1 -2
responsible journalism , 201 governm ent contractors, 283, 286, 287, 288
search for journalistic m aterial, 119, 121, H um an R ights A ct Sched. 1, A rticle 10, 11
122-3, 203 280, 284, 288, 289
terrorism and investigative journalism , H um an R ights A ct Sched. 1, A rticle 6, 280
347 international relations m atters disclosed,
see: expression, freedom of; press; 2 8 7 -8
contem pt o f court m edia, further d isclosures by, 2 8 8 -9
m edical treatm ent, p atients' consent, 3 7 4 -7 O fficial Secrets A ct 1989, 2 8 2 -9
adult of sound m ind, 375 prohibited place, 280
adults w ho are incom petent, 3 7 9 -8 0 public interest d efences, lack of, 2 8 4 -5
children of sound m ind, 3 7 7 -8 search, 281
children w ho are incom petent, 3 7 8 -9 security and intelligence inform ation
circu m cision, 380-1 disclosure, 2 8 5 -6
H um an Rights A ct Sched. 1, A rticle 2, 3, 8, Shayler, D avid, 282, 284, 285, 286, 293
9, 379, 380 spying, 279-81
living w ill, 375 state, the, 280
non-th erapeutic treatm ent, 380 see: breach of confidence
om issions, 376 O m budsm an, P arliam entary, 80, 268
m isfeasance in public office, 165 open governm ent
see: freedom of inform ation
national security outraging public decency, 3 9 3 -4
data protection, and, 365
D efence A dvisory N otices, 2 9 3 -4 parliam entary suprem acy and rights, 1 4 -15
defined, 2 7 8 -9 party political and election broad casts, 2 4 8-9
freedom of inform ation, 2 7 5 -6 ju dicial challenges, 249
see: official secrets; breach of confidence personal inform ation, 3 5 7 -8
natural ju stice, fairness, 148 Data Protection D irective, 360, 364, 366
Freedom of Inform ation A ct, and, 2 7 1 -2
obscenity and related issues H um an R ights A ct, Sched. 1 A rticle 8, 359,
child pornography and internet, 4 0 7 -8 367
consp iracy to corrup t public m orals, H um an R ights Act, Sched. 1 A rticle 10,
400-1 358
fem inism , and, 398 m edia, and, 358
film s and public good d efence, 406 public authorities, and, 358, 366
harm , 397, 401 see: data protection
H um an Rights A ct Sched. 1 A rticle 10, police
3 9 9 -4 0 0 , 401, 403, 406, 413 accoun tability, 65
im portation of obscene or indecent assau lt o f a police officer, 6 9 -7 0
articles, 407 breach of the peace, 69, 113, 3 0 0 -3
indecent m atter, display of, 406 C h ief C on stables, 63, 64, 67
Index 435
civ il liab ility , 66 P ress C o m p lain ts C o m m issio n and

co m p lain ts ag ain st the p o lice, 6 7 -8 ju d icia l rev iew , 188
cu sto d y officer, 94 P ress C o m p lain ts C o m m issio n , 1 8 7 -9
force, u se o f by, 7 4 -7 p ress o w n e rsh ip , 1 8 5 -6
H o m e S e cre tary , 64, 66 press re g u la tio n , 1 8 5 -9
H u m an R igh ts A ct, an d , 66 P riv acy C o m m issio n e r, 187
In d e p e n d e n t P o lice C o m p lain ts p riv acy , 186
C o m m issio n , 68 p riv acy : C alcu tt re p o rts, 187
in tru siv e su rv eillan ce, by, 138 s e e : m ed ia freed om
ju d icial rev iew o f p o licy , 66 P rim e M in ister, and secu rity , 7 9 -8 0
kee p in g the p eace, d u ty of, 69 p riso n e rs7 righ ts
M acp h e rso n R ep o rt, 66 access to the co u rts, 160
m arch es and d e m o n stra tio n s, 2 9 6 -7 actio n for d am ag es, 164
M in istry o f D efen ce P o lice , 62 asso ciatio n , 165
N atio n al C rim e S q u ad , 63, 66 Bill o f R ig h ts, 164
N atio n al C rim in al In te llig e n ce S erv ice, 63, Board o f V isito rs, 161
78, 131, 134 C h ie f In sp ecto rs' re p o rts, 162
o b stru ctio n o f a p o lice officer, 69 co n d itio n s, 1 6 3 -4
P olice A u th o rities, 63 d iscip lin e , 1 6 1 -2
P olice C o m p lain ts A u th o rity , 68 E u ro p ean stan d ard s, 163
P olice Fed eratio n , 65 fair trial rig h ts, 162
p o lice fu n ctio n , the, 61 freed om o f exp re ssio n , 165
p o lice officers, 6 4 -5 H um an R igh ts A ct, S ch ed . 1, A rticles 2, 3
p olitical restrictio n s on officers, 65, 238, and 8, 163
245 in te rn atio n al law , 157
p o w ers, com m o n law , 6 8 -9 ju d icial rev iew , 164
p o w ers, statu to ry , 70 life sen te n ce , 167
p u b lic au th o ritie s, 61, 63 m arriag e, 165
Sp ecial B ran ch , 78, 285 m ed ical care, 165
sp ecial p olice fo rces, 62 P riso n R u les, 159, 161, 164
terro rist in v estig atio n p o w e rs, 3 4 5 -8 P rison S erv ice In stru ctio n s, 159
trad e u n ion m em b e rsh ip , 65 P riso n S e rv ice O rd e rs, 159
se e : stop and search , arrest; d eten tio n ; P riso n S erv ice, 158
d etain ed p erso n s, righ ts of; entry P rison s O m b u d sm a n , 159
search and seizu re; su rv eillan ce treatm en t, 1 6 2 -3
p o litical actio n , 4 v o tin g , 166
p o litical p articip atio n , 5, 2 3 5 -4 9 p riv acy
H u m an R ig h ts A ct S ch ed . 1, P ro to co l 1 b o d ily in teg rity , 368
A rticle 3, 243 b reach o f con fid e n ce , and , 1 9 8 -2 0 0
in tern atio n al law , 235, 243 B ro ad castin g S tan d ard s C o m m issio n , 196
rig h t to stand in electio n s, 241, 243 cele b ritie s, 200
p olitical p arties, 193, 236, 238, 239 co m m o n law , an d , 16
cam p aig n ex p e n d itu re s, 246 co m p a n ie s, an d , 197
data p ro tectio n and c an v assin g , 362 co n ce p ts o f, 4, 6 - 7
d o n atio n s to, 2 4 5 -6 H u m an R ig h ts A ct, S ch ed . 1 A rticle 8, 199
in te rn atio n al law , and , 236 in d ep en d en t grou nd o f actio n , 199
reg istratio n , 2 4 0 -2 in te rfe re n ce by su rv e illa n ce , 126 passim
p o litical restrictio n in e m p lo y m e n t, 2 3 8 -9 , m ed ia, in tru sio n in to , 181, 1 8 6 -9
245, 256 p olice p o w ers, and , 107
H u m an R ig h ts A ct S ch ed . 1, A rticles 10 p o litician s, an d , 203
and 11, 239 p ress, 1 8 6 -7
p o rn o g rap h y sex u al freed o m , an d , 385, 3 9 3 -4
se e : o b scen ity 'p riv ate and fam ily life ', 108
press p ro p o rtio n ality , 3 3 -4 , 45, 59,
ad v e rtisin g , 189 p ro p erty , 107, 109
in d ecen cy , 409 p u b lic au th o ritie s, 56
p olitical im p act, 186 attack on as sed itio n , 252
com m o n law , 56 serio u s crim e, 1 3 1 -2 , 142

freed o m o f in fo rm atio n and open sex u al freed om , 3 8 5 -6
g o v e rn m e n t, 2 6 6 -7 , 358 ag e o f c o n se n t, 389
H um an R ig h ts A ct 1998, 36, 56, 184, 197, b u g g e ry , 391, 392
267 e n fo rce m e n t o f m o rality , 3 8 6 -7
m ed ia o rg an isatio n s, 184 h o m o sexu ality , m ale, 3 9 1 -2
p erso n al d ata, 362 h o m o sexu ality , fem ale, 392
red ress o f g riev an ces, 59 H u m an R igh ts A ct, S ch ed . 1 A rticle 8, 388,
sou rces o f a u th o rity , g e n erally , 57 392, 393
statu to ry d efin itio n s, 56 H u m an R igh ts A ct, S ch ed . 1 A rticle 14,
se e : freed om of in fo rm atio n ; H u m an 392, 394
R ig h ts A ct in cest, 3 9 0-1
p u blic in terest im m u n ity , 1 5 3 -4 m en tally ill, 3 8 9 -9 0
p u b lic o rd er refo rm p ro p o sals: Settin g the B ou n daries,
see: d em o n stratio n s, m arch es and m eetings 3 8 7 -8 , 389, 390, 392, 393
p u blic reco rd s, 2 6 2 -3 sa d o -m a so ch ism , 3 9 2 -3
p u blic secto r, 5 5 -6 sex u al acts in p u b lic, 3 9 3 -4
p u n ish m en t, 369 silen ce, rig h t to, 1 0 0 -3
d raw in g a d v erse in feren ces, 1 0 1 -3
R ad io A u th o rity , 190 H u m an R ig h ts A ct S ch ed . 1, A rticle 6, 103
se e : b ro ad castin g state m e n ts u n d e r p en alty , 103
re aso n ab le su sp icio n , 7, 2 - 3 Sp ecial Im m ig ratio n A p p eals C o m m issio n ,
re lig io u s freed o m , 4 1 4 -2 3 153
con scien tio u s o b jectio n , 418 sp y in g , 2 7 9 -8 1
H u m an R ig h ts A ct S ch ed . 1 A rticle 9, state, as leg al co n cep t, 280
4 1 5 -1 6 statu te law and righ ts
H um an R igh ts A ct S ch ed . 1 A rticle 9, 417 in terp retatio n o f statu tes, 1 7 -1 8
w o rsh ip in sch o o ls, 418 stop and search , 72, 8 3 -6
see: b lasp h e m y ex te n t o f search , 84
re lig io u s h atred , 258 g ro u n d s, 84
road b lo ck s and ch eck s, 86 H um an R igh ts A ct 1998, A rticle 5, 84,
8 7 -8
search , b y p olice in relatio n to w h at g o o d s, 83
at tim e o f arrest, 9 4 -5 , 104 S. 60 C rim in a l Ju stice and P u b lic O rd er
in tim ate search , 105 A ct 1994, 86
o f d etained p erso n s, 104 safeg u ard s, 86
strip search , 105 w h ere e xercisab le, 83
see: en try , search and seizu re su rv eillan ce
S e cre t In tellig en ce S e rv ice , 77, 78 a d m issib ility o f ev id e n ce fro m , 144
su rv e illan ce , 135 a u th o risatio n o f, 127
Secu rity C o m m issio n , 79 b u sin e ss co m m u n ica tio n s, 1 3 0-1
secu rity serv ice, 77 C h ie f C o m m issio n e r, 135
acco u n ta b ility , 79 c o m m issio n e rs, 134, 143, 276
fu n ctio n s, 135 co m m u n ica tio n s d ata, 132
H u m an R igh ts A ct, and , 79 cov ert h u m an sou rce s, 137
in tern al p ro ced u res for co m p lain t, 292 C u sto m s and E xcise, b y, 1 3 4 -5
in tru siv e su rv eillan ce, by, 1 3 8 -9 d efin itio n , 126
Se cu rity T rib u n a l, 79, 135 d ev e lo p m e n t o f legal a u th o rity fo r, 1 2 7 -9
su rv e illan ce , 1 3 5 -6 d irected su rv eillan ce, 137
see: b re a ch o f co n fid en ce; n atio n al en cry p ted d ata, 133
secu rity ; official secrets H um an R igh ts A ct 1998, A rticles 8, 1 0 ,1 1 ,
Secu rity T rib u n a l, 80 131, 134, 136, 1 4 1 -4 , 179
sed itio n , 2 5 2 -5 in tru siv e su rv e illan ce , 137
freed om o f exp re ssio n , and , 2 5 3 -4 n o n -to rtio u s su rv e illan ce , 136
H u m an R igh ts A ct, S ch ed . 1 A rticle 10, O fficial S ecrets A ct 1989, d isclo su re, 288
2 5 4 -5 p o lice, b y, 1 3 4 -5
serio u s arrestab le offence, 73, 98 p u b lic au th o ritie s, p o w er of, 137
Index 43 7
p u b lic b en efits, 1 2 6 -7 in citin g terro rist acts o v erseas, 342

p u b lic th reats of, 127 in tern atio n al terro rism , 333
p u rp o ses, fo r w hich leg itim ate, 131 N orth ern Irelan d , 331, 333
R eg u latio n o f In v estig ato ry P ow ers A ct, p o ssessio n o f a terro rist a rticle , 341
129 p ro scrip tio n and d ep ro scrip tio n , 3 3 6 -4 0
re m o te d ev ices, 137 p ro scrip tio n o ffen ces, 3 3 9 -4 0
secret serv ices, 1 3 5 -6 rad ical p o litics and an ti-te rro rist
sen sitiv e a u th o risa tio n s, 1 3 4 -5 m e asu res, 329, 333
su p erv isio n , 139-41 sp ecial p o w ers, use of, 330
trib u n al, 135, 139, 1 4 0 -1 , 143 sto p and search , 346
w arran ts, 131 su sp ected te rro rists, p o lice po w ers
see: com m issio n e rs resp ectin g , 34 8 -5 1
S u rv e illa n ce T rib u n al, 1 4 0 -1 , 143 T erro rism A ct 2000, su m m ary , 335
terro rist in v e stig a tio n , 3 4 5 -8 , 352
terrorism terro rist o ffen ces, 340-1
arrest and d ete n tio n o f terro rists su sp ects, terro rist p ro p erty , 340
3 4 9 -5 0 w e ap o n s train in g , 341
b o rd e r co n tro ls, 342 see: d ep o rtatio n
cord on , 346 to rtu re, 75
cu sto m e r in fo rm atio n , d isclo su re , 348 tra n se x u a lity , 3 9 4 -6
d efen ces and rev erse o n u s p ro v isio n s, H u m an R ig h ts A ct S ch ed . 1 A rticles 8, 12
3 3 5 -6 , 353 and 14, 3 9 5 -6
d efin ition o f terro rism , 334 tre aso n , 250
d efin itio n o f terro rist, 348 tresp ass
d ete n tio n o f fo reig n su sp ects w ith o u t su rv eillan ce, and , 127
trial, 3 4 3 -5
d irectin g te rro rism , 341 u n b o rn , righ ts of, 375, 382
d isclo su re o ffen ces, 3 5 2 -3 H u m an R ig h ts A ct S ch ed . 1 A rticle 2,
d o m e stic terro rism , 333 3 8 3 -4
H u m an R ig h ts A ct S ch ed . 1, A rticles 2 U nited N atio n H u m an R igh ts C o m m ittee,
and 3, 75, 335, 344 20
H u m an R ig h ts A ct S ch ed . 1, A rticle 5, 342,
344, 346, 3 4 9 -5 0 v id e o s, 4 1 0 -1 1
H u m an R ig h ts A ct S ch ed . 1, A rticle 6, 336, B ritish B oard o f Film C lassificatio n , 411
351 v o te, rig h t to, 237
H u m an R igh ts A ct S ch ed . 1, A rticles 10 H u m an R ig h ts A ct, S ch ed . 1 P ro to co l 1,
and 11, 331, 3 3 7 -4 0 , 351 A rticle 3, 237

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Human Rights and Civil Liberties

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Human Rights

and Civil Liberties

P u blish ed sim u ltan e o u sly in the U SA and C an ad a by:

A ll rig h ts re se rv ed ; no p art o f this p u b licatio n m ay be rep rod u ced , stored in a retriev al

ISBN 1 843 9 2 008 5

B ritish L ib rary C a talo g u in g -in -P u b licatio n D ata

T y p ese t b y T W T y p ese ttin g , P ly m o u th , D evon.

Part I V alues and in stitutions

2 T he in stitu tion al settin g 14

Part II G eneral pow ers and duties of the state

4 The police and secu rity services 61

5 Police pow ers: stop and search, arrest and detention 82

6 Police pow ers: entry, search and seizure 107

8 T he right to a fair trial 146

9 P riso n ers' rights 157

Part III Freedom of expression and the m edia

11 The media 181

12 Contem pt of court 206

Part IV Political freedom

14 Political offences 250

15 A ccess to public information 261

15.3 Justification s for openn ess 263

16 N ation al security 278

17 Pub lic order and political action 295

18 T errorism and law 329

P art V Private life

20 B odily in tegrity 368

21 Sexual freedom 385

22 O b scenity and in decency 397

23 R eligious freedom and b lasp hem y 414

B ibliography o f w orks cited 424

The book is dedicated to m y m oth er and to the m em ory o f m y father.

A v B Pic [2002] 2 A ll ER 543, 176, 184, 199, 200, 201, 366

Atkins v DPP [2000] 2 A ll ER 425, 407

B v France (1993) 16 EHRR 1, 396

Barfod v D enm ark (1989) Ap. 11508/85, 210

C v S [1988] QB 135, 382

Chahal v United Kingdom Ap. 2 2 4 1 4 /9 3 ; (1997) 23 EH RR 413, 343, 370

D v United Kingdom Ap. 30 2 4 0 /9 6 ; (1997) 24 EHRR 423, 370

DPP v Barnard and others [2000] Crim LR 371, 320

Eckle v Germ any (1982) 5 EH RR 1, 39

F v West Berkshire Health Authority and another (M ental H ealth A ct Commission

G v DPP [1989] Crim LR 150, 93

I v United Kingdom (2002) Ap. 25 6 8 0 /9 4 , 396

Janaw ay v Salford AH A [1988] 2 W LR 1350 H L, 383

K v Austria A /2 5 5 -B (1993) Com Rep, 204

Lambert v Roberts [1981] 2 All ER 15, 110

Lindsay v United Kingdom (1979) 1 D & R 247, 243

M v H om e Office [1994] 1 A C 377, 57, 210

M usiqu e D iffusion Fran çaise v C om m ission [1983] E C R 1825, 21

N ational P anasonic (U K) Ltd v Com m ission [1980] EC R 2033, 21, 109

O berschlick v A ustria (1998) 25 E H R R 357, 203, 254

R v A [2001] U K H L 25; [2001] 3 All ER 1, 36, 148, 149, 208, 229

R v Adam s [1957] Crim LR 365, 376

R v C om m issioner o f Police o f the M etropolis ex parte Blackburn [1968] 2 QB 118, 66

R v Lord Chancellor ex parte Light foot [1998] 4 A LL ER 764, 18

R v Secretary o f State fo r the H om e D epartm ent ex parte H osenball [1977] 3 All ER

Re M B [1997] 8 Med LR 217, 375, 382

S v S [1972] AC 24, 380

Silver v United Kingdom (1983) 5 EH RR 347, 161

T v United Kingdom (1986) 49 D&R 5, 166

Valentine v DPOP [1997] CO D 339, 327

Van M echelen and others v The N etherlands Ap. 2 1 3 6 3 /9 3 ; (1997) 25 EH RR 647,

Walters v W.H. Smith [1914] KB 595, 91