Where articles 9-11 of the European Convention on Human Rights are engaged, but the offence is where the ingredients of the offence themselves strike the proportionality balance, if the ingredients are made out and the defendant is convicted, there is no breach of the defendant’s convention rights.
The Divisional Court has overturned the acquittal of the respondent of an offence under section 14 of the Public Order Act 1986 in Director of Public Prosecutions v Cathy Eastburn [2023] EWHC 1063 (Admin) which concerned an Extinction Rebellion demonstration which took place in and around Parliament Square, London, in September 2020.
Section 14 of the 1986 Act entitles a senior police officer who believes that a public assembly may result in serious public disorder, damage to property or disruption to community life, to give directions imposing on persons organising or taking part in the assembly, such conditions as to where it may be held, its maximum duration or maximum persons who may attend, as appears necessary.
A direction under section 14 of the 1986 Act had been given by the assistant commissioner of the Metropolitan Police that the assembly was to be confined to Parliament Square Garden and not the busy roads surrounding the gardens on all sides. The respondent, who was exercising her rights under articles 10 (Freedom of Expression) and 11 (Freedom of Assembly) of the ECHR, sat down in Parliament Street. She was informed by police officers of the section 14 direction and was given an opportunity to leave. She failed to do so.
The respondent was arrested and charged with failing to comply with the section 14 direction. A judge at the City of London Magistrates Court found the offence proved but acquitted her because she had not caused or contributed to anything other than very minor disruption and a conviction was not a proportionate restriction of her ECHR rights. The DPP appealed.
The Divisional Court found where the prosecution satisfies the statutory tests for the imposition of a direction or condition under section 14 of the 1986 Act is proof that the imposition of the condition was proportionate (James v DPP [2015] EWCH 3296 (Admin)). There is no requirement for the prosecution to prove that a conviction would be a proportionate interference with those rights.
Having found the ingredients of the offence proved the judge should have convicted the respondent without further consideration. The case was remitted back to the Magistrates Court with a direction to convict.
Louise Clark is a property law consultant and mediator
