Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The Grand Chamber of the European Court of Human Rights held that the United Kingdom violated Article 10 of the European Convention on Human Rights on the ground that the legal basis for the imposition of an order on two individuals was not “prescribed by the law”. Two protesters had attempted to disrupt a fox hunt and had been ordered to “keep the peace and be of good behaviour” in future. The domestic courts held that the protesters’ behavior was “contra bonos mores” which justified a guarantee that they would abstain from disrupting the hunters. The Court held that as they had not been found to have acted unlawfully in their protest against the hunt, the order was one to refrain from undetermined and uncertain behavior and therefore was not foreseeable and not a justifiable limitation of the protesters’ right to freedom of expression.
On March 3, 1993, Joseph Hashman and Wanda Harrup, two nationals of the United Kingdom blew a hunting horn and engaged in “hallooing” with the intention to disrupt the Portman Hunt, a fox hunt in England. Hashman and Harrup described themselves as “hunt saboteurs” and had sought to distract the dogs from hunting and therefore killing foxes as part of the hunt. Their actions at Portman Hunt made some of the dogs involved in the hunt restless and distracted and one dog was killed 30 minutes after the sounds of the hunting horns after running across a road and being hit by a truck. The hunters lodged a complaint alleging that Hashman and Harrup’s behavior was in breach of the peace and contra bonos mores (against good morals) as it endangered the dogs as well as other users of the road nearby.
On September 7, 1993, Hashman and Harrup were brought before the Gillingham Magistrates Court which bound them over to “keep the peace and be of good behaviour in the sum of 100 pounds sterling for twelve months” [para. 5]. In the United Kingdom, magistrates have the power to “bind over”: a common-law proceeding that grants the courts the power to require a person whose behavior causes or could cause violence or a breach of peace to enter a promise or a “recognizance” to “keep the peace or be of good behavior for a specified period of time” secured by a sum of money fixed by the court if the person in question does not consent to this [para. 15]. The magistrate may order the arrest of the individual either for a maximum of six months under 1980 legislation or indefinitely under 1361 legislation or the common law.
Hashman and Harrup appealed to the Crown Court, which dismissed the appeal. The Crown Court held that Hashman and Harrup’s behavior had not committed a breach of the peace nor was it likely to cause a breach of the peace as there had been no violence or threats of violence. However, the Court held that Hashman and Harrup’s actions had been “a deliberate attempt to interfere with the Portman Hunt and to take hounds out of the control of the huntsman” and were therefore unlawful and contra bonos mores [para. 7]. The Crown Court noted that Hashman and Harrup “would repeat their behaviour unless it were checked by the sanction of a bind over” and that the power to bind over was “wider than the power of arrest and could be exercised whenever it was proved either that there had been a breach of the peace or that there had been behaviour contra bonos mores, since a breach of the peace is ex hypothesi contra bonos mores” [para. 7].
Hashman and Harrup lodged a complaint to the European Commission of Human Rights, arguing that their right to freedom of expression under Article 10 of the European Convention on Human Rights was violated by the binding over. The Commission referred the matter to the European Court of Human Rights.
Article 10(1) states: “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.”
Article 10(2) provides for the limitation of the right: “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.”
The European Court of Human Rights delivered a majority judgment of sixteen to one. Judge Baka delivered a dissenting judgment. The central issues for the Court’s determination were whether Hashman and Harrup’s conduct of blowing a horn and hallooing constituted an expression of opinion within the meaning of Article 10(1), and then whether a restriction to that right through the binding over was “prescribed by law” in terms of Article 10(2).
Hashman and Harrup argued that the law on conduct contra bonos mores lacked sufficient objective criteria to satisfy the requirements of Article 10(2) and that an order not to act contra bonos mores cannot inform the person subject of the order what it might or might not lawfully do, and so it cannot be defined as “prescribed by law” [para. 30].
The Government argued that the power to bind over to be of good behaviour had a legitimate purpose as it served as a vital tool in controlling anti-social behaviour which had the potential to escalate into criminal conduct. It submitted that the concepts of breach of peace and conduct contra bonos mores were “sufficiently precise and certain to comply with the requirement under Article 10(2) that any limitations on freedom of expression be ‘prescribed by law’” [para. 29]. The Government accepted that the concept of behavior contra bonos mores was broad but maintained that this breadth was necessary and that the power to bind over “gave magistrates a vital tool in controlling anti-social behaviour which had the potential to escalate into criminal conduct” [para. 29].
The Court set out the British law on breach of the peace and conduct contra bonos mores. It noted that a “breach of peace” refers to any conduct that provokes violence in others although “it is not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others” [para. 11]. Contra bonos mores behaviour is defined as a “conduct which has the property of being wrong rather than right in the judgment of the majority of contemporary fellow citizens” [para. 13]. For binding over for both a breach of the peace and conduct contra bonos mores “there had to be some reason to believe that there might be a repetition of the conduct complained of before an order to be of good behaviour could be made” [para. 14].
The Court confirmed that Hashman and Harrup’s conduct as hunt saboteurs did constitute an expression of opinion in terms of Article 10, and so the measures taken against them were an interference of their right.
In assessing whether the restrictions were “prescribed by law”, the Court emphasized that although one of the elements is foreseeability, as a law must be “formulated with sufficient precision to enable the citizen to regulate his conduct”, rigidity of a law prevents its ability to adapt to changing circumstances [para. 31]. It also stressed that careful scrutiny must be applied to cases in which there is a prior restraint on freedom of expression. The Court referred to its case in Steel v United Kingdom which had held that “the elements of breach of the peace were adequately defined by English law” [para. 33] but distinguished the present case from the Steel case by noting that, in the present case, the binding over order was “purely prospective” whereas in Steel the case concerned whether breaches of the peace had, in fact, occurred. This meant that the parties in the Steel case who had been bound over not to commit any further breaches of the peace knew what kind of conduct was prohibited because they had already been found to have committed conduct which breached the peace, whereas in the present case there was no such foreseeability.
The Court rejected the Government’s argument that the concept of contra bonos mores had the same meaning as conduct “likely to cause annoyance” and noted that because conduct contra bonos mores is defined as conduct that is “wrong rather than right in the judgment of the majority of contemporary fellow citizens”, there is no actual description of any conduct in the definition; it relates only to conduct which other citizens deem wrong [para. 38].
Accordingly, the Court held that, as Hashman and Harrup had no way of knowing what conduct was prohibited, the restriction of the binding over was not prescribed by law and therefore infringed Article 10.
Judge Baka delivered a dissenting judgment in which he described the majority judgment as an overreach by the Court in interpreting domestic legal norms. The Judge would have held that Hashman and Harrup should have known what kind of behaviour was contra bonos mores in the context of their case and what they were ordered to abstain from doing, and that the binding over decision imposed an unmistakable obligation – especially as they had interrupted a lawfully organized activity. Judge Baka would have held that the specific anti-social behaviour prohibited by the binding over was therefore foreseeable and complied with Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by affirming that a prior restriction of the right to freedom of expression by application of concepts such as contra bonos mores which do not provide foreseeability of prohibited conduct does not comply with the requirements set by Article 10.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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