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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 (05 February 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/23.html Cite as: [2009] EWCA Civ 23 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(LORD JUSTICE MAURICE KAY AND MR JUSTICE WALKER
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WALL
and
LORD JUSTICE STANLEY BURNTON
____________________
Tabernacle |
Appellant |
|
- and - |
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The Secretary of State for Defence |
Respondent |
____________________
Mr Gordon Nardell (instructed by The Treasury Solicitor) for the Secretary of State for Defence
Hearing dates : 26 November 2008
____________________
Crown Copyright ©
Lord Justice Laws:
INTRODUCTION
THE FACTS
THE LEGISLATION
"(1) Where any land belonging to a Secretary of State or to a volunteer corps is for the time being appropriated by or with the consent of a Secretary of State for any military purpose, a Secretary of State may make byelaws for regulating the use of the land for the purposes to which it is appropriated, and for securing the public against danger arising from that use, with power to prohibit all intrusion on the land and all obstruction of the use thereof
(2) Where any such byelaws permit the public to use the land for any purpose when not used for the military purpose to which it is appropriated, those byelaws may also provide for the government of the land when so used by the public, and the preservation of order and good conduct thereon, and for the prevention of nuisances, obstructions, encampments, and encroachments thereon, and for the prevention of any injury to the same, or to anything growing or erected thereon, and for the prevention of anything interfering with the orderly use thereof by the public for the purpose permitted by the byelaws."
"Subject to the provisions of these byelaws, members of the public are permitted to use all parts of the Controlled Areas not specially enclosed or entry to which is not shown by signs or fences as being prohibited or restricted, for any lawful purpose at all times when the Controlled Areas are not being used for the military purpose for which they are appropriated."
Paragraph 7(2) of the 2007 Byelaws opens with the words "No person shall within the Controlled Areas ", and there then follow twenty prohibited acts, listed under (a)-(t). I should read paragraph 7(2)(f), (g) and (j):
"(f) camp in tents, caravans, trees or otherwise;
(g) attach any thing to, or place any thing over any wall, fence, structure or other surface;
(j) act in any way likely to cause annoyance, nuisance or injury to other persons "
Contravention of any provision of Byelaw 7 is a criminal offence: see Byelaw 9.
"(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
(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."
I should also set out Article 11:
"(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others "
THE ISSUE
THE SECRETARY OF STATE'S CASE
The Legal Setting
"... the Government had to decide whether it would be fitting to permit the use of the Square by any organisation that had declared its support for the perpetrators of violence of that kind and they had no hesitation in deciding that it would be an affront to the British people to do so. The Government having made the decision, it would be wrong to attempt to distinguish between different organisations..."
"Having regard to the fact that the refusal of permission did not amount to a blanket prohibition on the holding of the applicants' rally but only prevented the use of a high profile location (other venues being available in central London)... the restriction in the present case may be regarded as proportionate and justified as necessary in a democratic society within the meaning of Article 11(2) of the Convention."
"31. ... [The] margin of appreciation extends in particular to the choice of the - reasonable and appropriate - means to be used by the authorities to ensure that lawful manifestations can take place peacefully...
32. [W]hen he chose this event for his demonstration against the Austrian armed forces, Mr Chorherr must have realised that it might lead to a disturbance requiring measures of restraint, which in this instance, moreover, were not excessive. Finally, when the Constitutional Court approved these measures it expressly found that in the circumstances of the case they had been intended to prevent breaches of the peace and not to frustrate the expression of an opinion...
33. In the light of these findings, it cannot be said that the authorities overstepped the margin of appreciation which they enjoyed in order to determine whether the measures in issue were 'necessary in a democratic society' and in particular whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued."
"[R]easonable time, manner, and place restrictions have been upheld, provided at any rate that they leave ample alternative channels for communication of the ideas an information."
One may compare the decision of the Divisional Court in Blum v DPP & Orsv DPP [2007] UKHRR 233 in which it was held that a requirement for prior authorisation of a demonstration would not generally be repugnant to ECHR Article 11.
"the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws intended to safeguard the assets of the community as a whole, such as the environment..."
The Secretary of State's Justification of paragraph 7(2)(f) of the 2007 Byelaws
"23. As a matter of policy, there is a general prohibition on unauthorised camping across the Defence Estate. It is only allowed with express permission. The reasons include operational and security concerns. Dealing specifically with Aldermaston, Mr Pinchen says that camping in the vicinity of the security fence is not appropriate for security reasons. If it were allowed, additional surveillance would be necessary. Camping can be used as a base, a cover or a distraction in relation to terrorist or similar activities. There are no publicly accessible sanitation facilities anywhere in the Controlled Areas. AWE have received numerous complaints about the AWPC and its occupants, ranging from the leaving of human excreta in the area to passing motorists beeping their horns The claimant denies all allegations of antisocial behaviour and we are content to accept that, in general, the members of the AWPC do not behave badly. They have been camping there or thereabouts for many years and the prohibition on camping in the Byelaws has existed since at least 1986. We have previously explained why it has not been enforced over the years."
The reference to a previous explanation is to paragraph 5 of the Divisional Court's judgment:
"It seems that the 1986 Byelaws were never used against the AWPC, probably because there was for a time some doubt as to whether the women were on land belonging to the Secretary of State and, more recently, because of apprehension about the impact of the Human Rights Act 1998."
THE APPELLANT'S CASE
The Legal Setting
"Defacing a flag, deliberately using a seat on a bus supposedly reserved for citizens of a different race, in order to defy a racist law on segregation, going on a hunger strike, carrying out a silent vigil, and attending a peace camp are well-known ways in which political messages about fundamentally important political matters can be very powerfully expressed albeit silently."
The Secretary of State's Justification of paragraph 7(2)(f) of the 2007 Byelaws
"18. ... The question for PC Tennant was whether there was a threat of violence and if so, from whom it was coming. If there was no real threat, no question of intervention for breach of the peace arose. If the appellant and her companions were (like the street preacher in Wise v Dunning) being so provocative that someone in the crowd, without behaving wholly unreasonably, might be moved to violence he was entitled to ask them to stop and to arrest them if they would not. If the threat of disorder or violence was coming from passers-by who were taking the opportunity to react so as to cause trouble (like the Skeleton Army in Beatty v Gilbanks), then it was they and not the preachers who should be asked to desist and arrested if they would not."
THE DECISION OF THE DIVISIONAL COURT
"The questions become: has the Secretary of State established that the prohibition on camping is necessary in a democratic society and that it satisfies a pressing social need by reference to the reasons set out in Articles 10(2) and 11(2). Has he accordingly established the proportionality of the prohibition ? In our judgment, the answer to both questions is in the affirmative. We attach some significance to the fact that the prohibition only limits freedom of association and of expression on the property of the Secretary of State. Importantly, a prohibition on camping only impacts on one form of association and expression. Mr Pievsky is eloquent on the significance of camping to his client and her colleagues but we see his point more in terms of poetry than of true principle. In our judgment, the evidence of Mr Pinchen and the matters to which we have referred enable the Secretary of State to justify the prohibition on camping."
CONCLUSIONS
The Legal Setting
The Secretary of State's Justification of paragraph 7(2)(f) of the 2007 Byelaws
Lord Justice Wall :
The MOD recognises that members of the public may have strongly held opinions about military activity, not least about the development and manufacture of nuclear weapons It entirely respects the entitlement of individuals to express views and participate in protest activity about those matters. The MOD's aim in making and enforcing byelaws for Controlled "Areas is not to prevent people from participating in such activity, but to impose on all who wish to use the Controlled Areas the regulation considered necessary to enable the Ministry to offer public access in a way that is compatible with the operational requirements of the establishment".
"I would like to emphasise how fundamental camping is to the AWPC's protests at Aldermaston. As AWPC's name suggests, its very nature is the camp. Without the camp AWPC simply would not exist ."
Lord Justice Stanley Burnton: