Howarth v Commissioner of Police of the Metropolis

Introduction

This is a claim for judicial review brought by Mr David Howarth (“Mr Howarth”) against the Commissioner of Police of the Metropolis (“the Commissioner”) challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest. The claim is brought with permission granted by Mr Justice Wilkie on 11 March 2011.

The Facts

The facts of the matter are not disputed in any material respect.

On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. Mr Howarth and his companions had been alerted to the proposed demonstration by a website operated by Crude Awakening. The site did not identify the location of the intended demonstration but readers were invited to join one of three “blocs” of intending demonstrators meeting at three different mainline railway stations in London. It seems that by late September 2010 at the latest the police were also aware of the website and of the proposed demonstration there advertised.

Included in the invitation to demonstrate appearing on the website was the following passage:

“Ready yourself for a day at the office, trading floor, well or refinery. Come dressed as a banker, oil worker/prospector, or just in a boiler suit etc. With the tools of your trade…brief cases, office furniture, drilling equipment, hard hats, oil (molasses/treacle), symbolic (!) chains, bags or wads of money etc…”

The Commissioner’s evidence indicates that the police were aware that at previous demonstrations of this type molasses had been used to simulate slicks of oil. On some occasions molasses had been sprayed to a height of 15 feet up the walls of buildings and balls of molasses had been propelled by makeshift catapults. Chalk had also been used to make protest marks at previous demonstration sites. It is not disputed by Mr Howarth that the use of such materials in such a manner is capable of causing criminal damage in law, albeit of a non-permanent nature. It is not disputed by the Commissioner that neither Mr Howarth nor any of his companions was carrying any such items with them on 16 October 2010.

Prior to the date of the demonstration the police had considered applying for search warrants of premises suspected as being used to store such items. However, this course was ruled out as being potentially unjustifiably discouraging of lawful protest and also as being impracticable in all the circumstances. It was left open that searches might be carried out as demonstrators left the relevant premises but no such searches were in fact carried out. The power of search to be invoked would have been section 1 of the Police and Criminal Evidence Act 1984 (“PACE”). I return below to the relevant provisions of that section because it was the power conferred by that section upon which the officer relied in conducting the search of Mr Howarth as he travelled to the demonstration by train.

Mr Howarth and his friends proposed to join a group of protestors who were to assemble at Euston station in London. They arrived late at that station and the main group had already left. They found out from the “Twitter” website, however, that the protestors intended to travel to Stanford le Hope in Essex from Fenchurch Street station. Mr Howarth and his friends went to that station but again arrived too late to join the main group that had gone on there from Euston. They boarded the next train destined for Stanford le Hope, which was due to depart at about 12 noon. While awaiting the train’s departure another “bloc” of intending protestors arrived and also boarded the train.

It seems from the public order log opened for the case by the “Silver Commander”, Superintendent Julia Pendry, that she first noted at 1120 hours that morning that the demonstrators might be heading to Stanford le Hope, in the vicinity of an oil refinery at Coryton in Essex. At 1135 she noted that protestors had gathered on the relevant platform at Fenchurch Street station.

At 1155 (Footnote: ¹) Supt. Pendry directed the Bronze Commander (3), Chief Inspector Dave McGinley of the City of London Police, that police officers were to go on the train with protestors. She noted the following:

“Protestors are in possession of large amounts of chalk being carried in suitcases. Particularly large amount, not known the impact of intended target. It can reasonably be having articles with intent to destroy and damage property at the oil refinery.” [sic]

Supt. Pendry states that she cannot recall the precise nature of the intelligence which identified protestors as being in possession of chalk but she believes that she may have received a telephone call imparting that information. She goes on to say in her witness statement,

“As a result of this intelligence I directed CI McGinley to search the protestors on the train. In giving him this direction I made him fully aware of the nature of the intelligence so that he could satisfy himself that there were reasonable grounds to carry out the searches. The nature of the intelligence was that it related to the group of protestors and not identifiable individuals…[I]t was only at 1155 am once I had been aware that the protestors were in possession of chalk, that I gave the direction that they should be searched. ”

In his evidence CI McGinley recites his own knowledge of the use of molasses and chalk by protestors at earlier demonstrations. He states that at 1151 (Footnote: ²) his “runner” recorded that intelligence had been received from Supt. Pendry that protestors were believed to have items designed to cause criminal damage and that,

“Superintendent Pendry informed me that she had grounds to support any search and would justify these.”

In his own log, CI McGinley noted as follows:

“Train held in station for short time info from SX [Silver Commander] that the group have articles to be used in connection with criminal damage. SX will be able to justify the supporting grounds. Officers are to be mindful that police are not looking for items such as D locks or lock-on equipment that might be used for non-violent direct action. We are looking for items such as molasses, details provided at intel briefing earlier. Confirmed couple of minutes after with silver runner that the intel relates to group not identified individuals and there is supporting grounds to do this lawfully.”

DC McGinley states that at 1157 the relevant officers were briefed at the station. He goes on to say specifically that he did not give a direction to search all people on the train. The officers were informed that protestors were equipped with articles to be used in the commission of criminal damage, such as molasses. He does not recall mentioning chalk, although two of his officers state that they were aware that chalk was to be looked for. He informed the team that the intelligence related to the protestors as a group and not to identifiable individuals. Inspector Bethel of the Metropolitan Police was in direct charge of the relevant officers who boarded the train and he noted from his briefing by CI McGinley the following:

“Stop and search protestors on train. Info from SX. Persons likely to be in possession of molasses and other articles for use in crim dam. Search for articles for use in causing criminal damage…”.

Insp. Bethel says that he told his officers that information had been received from the Silver Commander that protestors on the train were equipped with articles, particularly molasses, likely to be used in criminal damage and that it was only obvious protestors that were to be searched. While the Inspector did not note this, he states that he recalled CI McGinley mentioning chalk as a relevant item and that he mentioned this in turn to his officers. He states that he did not give any directions as to the extent of the search to be carried out, leaving this to the discretion of the searching officers.

The officer who searched Mr Howarth was Police Constable Dennis Babin. PC Babin speaks about the briefing from Insp. Bethel and says that he and his colleagues were told that information had been received by the Silver Commander that protestors on the train were equipped with articles likely to be used in criminal damage and that chalk was mentioned. He says that they were told that the intelligence related to protestors on the train “and not ordinary members of the public”. Again his information was that the intelligence was not specific to an individual but related to the group as a whole. He states that he carried out a number of searches on the train but that he cannot recall the search on either Mr Howarth or one of his friends whom it seems he also searched. He says that before carrying out any search he asked questions to ascertain whether or not the relevant passenger was an intending protestor. He says that he was looking for articles such as chalk, spray paint or highlighters and that he searched bags, pockets and trousers and in some cases wallets (believing that chalk might be kept in these). He found no relevant articles.

The witnesses for Mr Howarth say that while they were waiting for the departure of the train about 50 officers of the Metropolitan and City forces lined up on the platform and that, about 15 minutes after the published departure time, the officers boarded the train, effectively blocking the carriage exits. The train left the station and the officers then began searching those who appeared to be protestors. Mr Howarth says that he felt intimidated by the searches. He and all his companions were searched. One of these was told that the officers were looking for sugary substances (such as treacle) and for chalk. Mr Howarth himself was given a “pat-down” search and his external jacket and trouser pockets were searched; his wallet was opened and closed by the officer, who however did not look into it. Following the search Mr Howarth was given the official form stating the reason for the search which stated:

“Identified as part of a group believed to be carrying articles in relation to criminal damage travelling on the train”.

On arrival at Stanford le Hope, the police escorted the protestors, including Mr Howarth and his group, to the demonstration which, he estimates, involved about 200 people who blockaded the refinery. No disturbances are noted in the evidence and the demonstration appears to have taken place without incident and with Mr Howarth participating.

The Claims

Mr Howarth contends that the search of him on this occasion was unlawful and in breach of section 1(3) of PACE; he claims a declaration accordingly. He also claims declarations that the search violated his rights under Articles 8, 10 and 11 of the European Convention on Human Rights and Fundamental Freedoms (“the ECHR”), constituting unlawful interference with his private life, his freedom of expression and freedom association. He also claims damages for breaches of section 6 of the Human Rights Act 1998 (HRA 1998) and for assault at common law.

The Commissioner contests each of these claims.

PACE/ECHR and the arguments in outline

Section 1 of PACE provides, materially for present purposes, as follows:

“(2)

Subject to subsection (3) to (5) below, a constable –

(a)

may search –

(i)

any person …

for…prohibited articles… and

(b)

may detain a person…for the purpose of such a search.

(3)

This section does not give a constable power to search a person…unless he has reasonable grounds for suspecting that he will find…prohibited articles…

(7)

An article is prohibited for the purposes of this Part of this Act if it is –…

(b)

an article –

(i)

made or adapted for use in the course of or in connection with an offence to which this paragraph applies; or

(ii)

intended by the person having it with him for such use by him or by some other person.

(8)

The offences to which subsection (7)(b)(i) above applies are-…

(e)

offences under section 1 of the Criminal Damage Act 1971 (destroying or damaging property).”

Pursuant to Section 6 of the Human Rights Act it is unlawful for a public authority, including a police officer, to act in a manner which is incompatible with a right arising under the ECHR. Article 8 of the Convention provides as follows:

“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 freedom of others.”

Article 10 is in these terms:

“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.

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.”

Finally, Article 11 provides:

“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 or for the protection of the rights and freedoms 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.”

Mr Howarth argues that the search of him was unlawful, within the terms of Section 1(3) of PACE, because the officer who conducted the search did not in fact have any grounds to suspect him of being in possession of a prohibited article and merely did what he was told under orders from a superior. It is submitted that attendance at a mass demonstration was an insufficient basis for reasonable suspicion of possession of prohibited articles. It is also contended that it was irrational at common law to search such a large number of people for items which at most were likely to cause “only” minor and transient damage.

It is further submitted that Mr Howarth’s ECHR rights, under the Articles quoted above, were infringed. It is accepted that the searches were conducted for a legitimate purpose, namely the prevention of crime, but the argument is that they were not “prescribed by law” (because there were outwith the bounds set by PACE) and were disproportionate because (among other things) of the following features: Mr Howarth was exercising a right of peaceful protest; large numbers were searched in a detailed and intrusive fashion; the searches were intimidating; there were no grounds to search Mr Howarth personally; there was no focus on the types of prohibited articles suggested by police intelligence; the search was premature in that no damage was imminent; the damage could only have been minor and transient. The manner of the searches, it is said, was calculated to impair the rights of freedom of expression and of assembly protected by the ECHR.

The Commissioner submits that the searching officer (PC Babin), upon whom it is accepted the attention must focus, did have reasonable grounds for suspecting that he would find prohibited articles on Mr Howarth. The grounds arose out of the totality of the intelligence picture, identifying at least chalk and molasses as potential prohibited articles. Suspicion of the group of protestors as a whole was sufficient grounds for searching all in the group. In this regard the Commissioner relies upon sections 66(1)(a)(i) and 67(11) of PACE, providing for the issue by the Secretary of State of Codes of Practice for police searches, such codes being taken into account if any provision of them appears to the court to be relevant to any question arising in proceedings before it. The Commissioner refers by analogy to paragraph 2.6 of Code A (relating to “stop and search”) which provides:

“Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully or weapons or controlled drugs, and wear a distinctive item of clothing or other means of identification to indicate their membership of the group or gang, that distinctive item of clothing or other means of identification may provide reasonable grounds to stop and search a person.”

The Commissioner also relies on the “arrest” case of Cumming & ors. v Chief Constable of Northumbria Constabulary [2003] EWCA Civ 1844 (where the arrest of six people, suspected of tampering with video evidence on suspicion of perverting the course of justice, was held to be justified even though logically no more than two of the group could have committed the alleged offence).

So far as the ECHR is concerned the Commissioner does not accept that Mr Howarth’s rights under the Convention were engaged by the nature of search conducted on him. It is submitted that his rights of expression and assembly were not infringed; his attendance at the demonstration was not impeded. Further, and in any event, it is submitted that the search was in accordance with the law, for the legitimate purpose of preventing crime and not disproportionate in all the circumstances.

Taking first the arguments arising upon section 1 of PACE it is common ground that attention must focus upon PC Babin who, for the search to have been lawful, must himself have had reasonable grounds for suspecting that he would find prohibited articles. Miss Mountfield QC, appearing for Mr Howarth, did not go so far as to contend that searches of groups of persons must be unlawful unless the officer reasonably suspects that such articles will be found on each of those searched.

It is common ground that it is the information and understanding of PC Babin at the time of the search of Mr Howarth that matters, even if some of that information and understanding had come from wider police intelligence. A search is not lawful if the searching officer merely relies upon superior orders. The matter was put as follows by Lord Steyn in O’Hara v The Chief Constable of Northern Ireland [1997] AC 286, 293 D:

“For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.”

The test of lawfulness of a search is, it is accepted, the same in all material respects as that for the lawfulness of an arrest by a police officer. It is set out in the three questions posed in the judgment of Woolf LJ (as he then was) in Castorina v Chief Constable of Surrey (10 June 1988, unreported):

“1.

Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer’s state of mind.

2.

Assuming the officer had the necessary suspicion, was there reasonable cause for suspicion? This is a purely objective requirement to be determined by the judge if necessary on the facts found by a jury.

3.

If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has been exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.”

It is accepted that PC Babin acted in good faith. While initially Miss Mountfield suggested that his written evidence did not demonstrate satisfactorily that he did suspect that he would find prohibited articles on Mr Howarth, she did accept that PC Babin did suspect that if the group of protesters was searched prohibited articles would be found in the possession of one or more of them. However, she submitted that that suspicion was not enough to satisfy the criterion in Woolf LJ’s second question, namely that there must be reasonable cause for suspicion in an objective sense. Equally, she argued that the suspicion held was not sufficient to justify the exercise of the discretion to search, in accordance with the third Castorina criterion.

Miss Mountfield argued that the court should reject the analogy drawn with paragraph 2.6 of Code A and with the Cummings case. It was submitted that under that paragraph of Code A the police are to be assumed to have evidence of a propensity of a defined group to offend in a particular manner and adequate means to identify members of the group. In the Cummings case again the group was defined and relatively small. In the present case, she pointed out, the group was relatively large and with no defining means of identification unless it could be seen or discovered that they were intending participants in the demonstration. Moreover, the items involved were only capable of causing temporary damage of a fairly minor nature. In addition, Mr Howarth was not carrying either a suitcase or any other large item of luggage of the type referred to in Supt. Pendry’s log.

The fact remains that the intelligence imparted to PC Babin’s group was that in past demonstrations molasses and chalk had been used in a significant manner to daub buildings and other parts of the relevant sites and for molasses to be used as missiles causing damage. The officers had been informed that the group as a whole was suspected of carrying such items. There appears to have been no difficulty in identifying demonstrators and the searches were confined to them alone; other passengers were not searched. Both CI McGinley and Insp. Bethel say in evidence that a blanket search was not envisaged in their briefings and that the extent and nature of the searches conducted were left to the individual officers.

Miss Mountfield recognised that the items identified by the police intelligence were capable of causing criminal damage, although she referred us to one case in the Crown Court where spitting on a police officer’s coat was held to be such a minor “damage” to the coat as not to be criminal damage within the meaning of the 1971 Act at all: see A v The Queen [1978] Crim LR 689. Clearly in this case the damage contemplated by reference to the intelligence and the past experience of such demonstrations could potentially have been far more extensive than in A’s case.

In my judgment, having regard to the intelligence and the potential for damage, PC Babin did reasonably suspect that if he and his colleagues carried out the search prohibited items would be found on one or more of the protestors. It is well recognised that the threshold for the existence of reasonable grounds for suspicion is low: see Raissi v The Commissioner [2008] EWCA Civ 1237, per Sir Anthony Clarke MR, citing a number of previous authorities to that effect. As already stated, it is accepted that it is not necessarily essential in all cases for the searching officer reasonably to suspect each and every individual member of a suspected group to be carrying the offending items before the search of members of the group is lawful. Once that point is accepted, the feature of “group searching” seems to me to go to the third Castorina question, namely whether the officer’s decision to search individuals, given his suspicion of the group, reasonably held, went beyond the bounds of decision open to an officer in such circumstances.

Clearly, there must be limits to such group searches. All will depend on the circumstances of each individual case. One can imagine that a search for a single item of technically offending material (for example, a paint spray) might not justify the searching of a very large group of demonstrators, but the search of such a group, in which one as yet unidentified individual is reasonably suspected of carrying a bomb, might be very different.

In my judgment, it did not go beyond the reasonable responses of a police officer to the intelligence received to search the protestors in this case. As I have already said, intelligence and past experience gave a reasonable anticipation of significant damage. The group while not small was confined to a number of passengers on a train. Steps were taken to identify those searched as protestors and the searches carried out appear to have been of the type that has become very common both in public places and on admission to private venues for entertainment or travel. While all such searches are intrusive to some extent, these searches were not excessive in character having regard to the nature of the suspicion held. I bear in mind moreover that this was not a case where the organisers of the protest had consulted with the police to assist in the orderly conduct of the event as happens in the case of many peaceful demonstrations today. This was not a protest characterised by the organisers’ advance co-operation with the police to ensure mutual facilitation of protest and the preservation of law and order. Enhanced concern was to that extent justified.

I conclude, therefore, that the search was within the power conferred upon PC Babin under section 1 of PACE. The question still remains whether the search infringed Mr Howarth’s rights under any one or more of Articles 8, 10 or 11 of the ECHR.

Turning first to Article 8, it was not accepted on the Commissioner’s behalf that the search engaged that article at all. Mr Basu, appearing for the Commissioner, relied upon the passage in the speech of Lord Bingham in Gillan v The Commissioner [2006] 2 AC 307, 344 D-H, paragraph 28 where his Lordship said this:

“The claimants contended that the exercise of the section 45 stop and search power necessarily involves the interference with the exercise of the article 8(1) right, and therefore had to be justified under article 8(2). The defendants did not accept that there would necessarily be such interference, but accepted that there might, as where (for instance) an officer in the course of a search perused an address book, or diary, or correspondence. I have no doubt but that the defendants’ concession is rightly made. I am, however, doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that “private life” has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.”

This passage contrasts starkly with the judgment of the European Court of Human Rights in the same case at paragraphs 63 and 64 where the Court said,

“63.

The government argues that in certain circumstances a particularly intrusive search may amount to an interference with an individual’s art.8 rights, as may a search which involves perusing an address book or diary or correspondence, but that a superficial search which does not involve the discovery of such items does not do so. The Court is unable to accept this view. Irrespective of whether in any particular case correspondence or diaries or other private documents are discovered and read or other intimate items are revealed in the search, the Court considers that the use of coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. Although the search is undertaken in public place, this does not mean that art.8 is inapplicable. Indeed, in the Courts view, the public nature of the search may, in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his wider companions or the wider public.

64.

The Court is also unpersuaded by the analogy drawn with the search of to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual art.8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under s.44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.”

Miss Mountfield submitted that Lord Bingham’s comment was obiter dictum as the engagement of article 8 had been conceded by the Commissioner. However, it can be seen that the concession only went to searches of an address book, a diary and/or correspondence. Further, it is clear that the European Court was rejecting Lord Bingham’s view which was the basis of the Government’s argument on the point before that court. Mr Basu, for his part, argued that the European Court’s view was confined to “detailed searches” (whatever that term might mean) which the search of Mr Howarth clearly was not, even on his own evidence. We are, of course, bound by any decision of the House of Lords (see K v Lambeth BC [2006] 2 AC 465) in the case of conflict with the European Court.

Assuming hypothetically however, that Article 8 were engaged, the question would still arise whether the saving in Article 8.2 applies. In my judgment, the interference was “in accordance with the law” because it was authorised by section 1 of PACE, for the reasons already stated. It is accepted that the search was conducted in the interests of the prevention of crime. The question that remains is whether it was a proportionate action necessary for that purpose in a democratic society. Miss Mountfield also submits that that question is to an extent to be measured by the fact that Mr Howarth was in the course of attempting to exercise his rights of freedom of expression and assembly within the meaning of Articles 10 and 11.

Miss Mountfield argued that the search could not be justified in these terms. She said that the search was calculated in fact to deter lawful protest and went beyond what was necessary in the circumstances. She submitted that it was open to the police to wait and see whether demonstrators sought to use the items concerned to cause damage at the scene and they could have left intervention until at that stage. For my part, I consider that last suggestion to be unrealistic. Intervention then would almost certainly have been too late. It would have required officers to have the capacity to act at exactly the right time and at the right place towards precisely the right offender. It seems to me that given the reasonable suspicion of significant damage in the past and actual intelligence of similar intentions on this occasion, it was a sensible reaction to the problem to try to prevent trouble before it happened by a moderate search of those suspected of being possible offenders. It was a manner of ensuring, rather than preventing peaceful protest. It was far removed from the action taken by police officers suspecting a breach of the peace in R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105.

Miss Mountfield argued that the molasses about which various officers had expressed concern could have been used in a legitimate way to carry out actions as part of a protest without causing damage, for example where molasses was smeared on demonstrators’ own clothing or other possessions to demonstrate dirt created by oil. She cited the example quoted by Laws LJ in summarising the claimant’s argument in Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 at paragraph 27. We were also referred to Őllinger v Austria (2008) 46 EHRR 38, page 859 to demonstrate the caution that must be afforded in carrying out actions that may indirectly inhibit expression or assembly, even if the individual protestor (viz. Mr Howarth here) was not actually deterred in assembling and protesting.

We were reminded too of the “constitutional shift” in the importance of the freedom of assembly and expression brought about by the 1998 Act and referred to the following passage in the speech of Lord Bingham in the Laporte case [2007] 2 AC at 126-7, paragraphs 34-36:

“The approach of the English common law to freedom of expression and assembly was hesitant and negative, permitting that which was not prohibited. Thus although Dicey in An Introduction to the Study of the law of the Constitution, 10^th ed (19590, in Part ii on the “Rule of Law”, included chapters VI and VII entitled “The Right to Freedom and Discussion” and “The Right of Public Meeting”, he wrote of the first, at pp 239-240, that “at no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech” and of the second, at p 271, that “it can hardly be said that our constitution knows of such a thing as any specific right of public meeting”. Lord Hewart CJ reflected the then current orthodoxy when he observed in Duncan v Jones [1936] 1 KB 218, 222, that “English law does not recognise any special right of public meeting for political or other purposes.” The Human Rights Act 1998, giving domestic effect to articles 10 and 11 of the European Convention, represented what Sedley LJ in Redmond-Bate v Director of Public Prosecutions163 JP 789, 795, aptly called a “constitutional shift.”

Article 10 confers a right to freedom of expression and article 11 to freedom of peaceful assembly. Neither right is absolute. The exercise of these rights may be restricted if the restriction is prescribed by law, necessary in a democratic society and directed to any one of a number of specified ends.

The Strasbourg court has recognised that exercise of the right to freedom of assembly and exercise of the right to free expression are often, in practice, closely associated: see, for example, Ezelin v France (1991) 14 EHRR 362, paras 37, 51; Djavit An v Turkey reports of Judgments and Decisions, 2003-III, p 231, para 39; Christian Democratic People’s Party v Moldova (Application No 28793/02) (unreported) 14 May 2006, para 62; Ollinger v Austria (Application No 76900/01) (unreported) 29 June 2006, para 38. The fundamental importance of these rights has been stressed. Thus in Steel v Untied Kingdom 28 EHHR 603, para 101, freedom of expression was said to constitute: “ an essential foundation of democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.” In Ezelin v France, para 53, the court considered

That the freedom to take part in a peaceful assembly-in this instance a demonstration that had not been prohibited-is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.”

Moreover, Lord Bingham went on to cite Ziliberberg v Moldova (Application No. 61821/00) where the European Court added that an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of a demonstration. Any prior restraint on freedom of expression “calls for the most careful scrutiny”: Sunday Times v United Kingdom (No. 2) (1991) 14 EHRR 229, paragraph 51 and Hashman & anor. v United Kingdom (1999) 30 EHRR 241, paragraph 32.

All these features I obviously accept and bear fully in mind. The rights of expression and of assembly protected by the Convention are indeed precious in a democratic society. However, there is a significant danger of the law becoming “over precious”, in a rather different sense, about minimal intrusions into privacy and alleged indirect infringements of the rights of privacy, assembly and expression which are the price today of participation in numerous lawful activities conducted in large groups of people. I do not forget that many such activities, such as travel and attendance at sporting and entertainment events are not rights protected by the Convention. I also note the point made by the European Court in Gillan that persons attending private events and those travelling by air can be taken to consent to such searches. Expression and assembly, like those other lawful activities, are nonetheless encouraged and fostered, rather than hindered, by sensible and good natured controls by the authorities and the sensible and good natured acceptance of such controls by members of the public. In my judgment, while the courts must be astute to guard individuals against true oppression, it is precisely this type of consideration that is envisaged by Articles 8.2, 10.2 and 11.2. In my view, what PC Babin did here was necessary and proportionate for the legitimate purpose that it is accepted existed on the facts of this case.

For these reasons, I do not find that any breaches of Article 8, 10 or 11 occurred by the lawful (and minimal) search carried out upon Mr Howarth and, for my part, I would dismiss the claim.

I agree.