1st of Fracking protest arrests in Balcombe CRAWLEY Magistrates Court SITTING AT Brighton 7.1.2014 FOR TRIAL (3 DAYS) R -v- NAMES OF DEFENDANTS REMOVED SKELETON ARGUMENT on behalf of the defence: Proportionality of the prosecution Introduction The Defendants were charged with ‘besetting’ contrary to s.241 of TURLA 2005, however, they now faces a sole charge of obstruction of the highway. A log had been placed on the road earlier in the day, although it is accepted by the Crown that the Defendants were not involved in that they are said to have been sitting in the road later in the day. The Defendant Michael Atkins (URN: 47NC 0414413) faces an additional charge of assaulting a constable in the execution of his duty it being alleged that he assaulted PC Charlotte Pitman contrary to Section 89(1) of the Police Act 1996. It is submitted that the defendants were engaged in a peaceful protest, exercising their right to freedom of expression and assembly. In the circumstances of the case the prosecution of the Defendants is disproportionate. Freedom of expression Article 10 provides: 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. Any lawful interference with these rights must be necessary in a democratic society in pursuit of the legitimate aims set out in the article and there must be proportionality between the means employed and the aims pursued. Freedom of expression extends “not only to information or ideas that are favourably received, or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb the state or nay sector of the populous”, Handyside v UK 1 EHRR 737. In addition ‘free speech was not confined to the inoffensive, but extended to the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it did not tend to provoke violence’ and freedom to speak inoffensively is not worth having, Redmond-Bate v Director of Public Prosecutions [2000] HRLR 249. Participation in a protest of demonstration constitutes an act of expression attracting the protection of Article 10, Steel v UK 28 EHRR 603. Where rights under Article 10 are engaged, restrictions on that right must be ‘narrowly construed’ and the justification for any criminal sanction must be ‘convincingly established’, Sunday Times v UK (No.2) 14 EHRR 229. Proportionality of prosecution legal framework Clearly the Police, Crown Prosecution Service and the Court are required to act compatibly with Article 10. As a result any prosecution that imposes a restriction/penalty on article 10 and 11 rights has to have been shown to be in accordance with the law, necessary and proportionate. A balancing exercise must be conducted in each case. It was stated in Dehal v DPP [2005] EWHC 2154 (Admin) that: There has been and could be no challenge to the finding as to the appellants ntention, but that does not help in any way as to the proportionality of the criminal Prosecution. Nor does the fact that the notice was not objectively reasonable. The court had earlier, apparently, found that there was no basis for the allegation being made against the Temple. What was needed was not merely a conclusion, namely that the prosecution was a proportionate response, but a careful analysis of the reasons why it was necessary to bring a criminal prosecution at all. In order to justify one of the essential foundations of democratic society the prosecution must demonstrate that it is being brought in pursuit of a legitimate aim, namely the protection of society against violence and that a criminal prosecution is the only method necessary to achieve that aim. The court must carefully consider those considerations and set out their findings as to why they have reached their conclusion. So much is well−settled. Indeed, in Hammond v Director of Public Prosecutions [2004] EWHC 69 Admin, which was cited, the careful questions the justices posed to themselves in that case and their answers are set out at paragraph 19 of that decision... I repeat, the important factor upon which the Crown Court should have focused and upon which on its face it appears not to have focused is the justification for bringing any criminal prosecution at all. However insulting, however unjustified what the appellant said about the President of the Temple, a criminal prosecution was unlawful as a result of section 3 of the Human Rights Act and Article 10 unless and until it could be established that such a prosecution was necessary in order to prevent public disorder. There is no such finding or any justification whatever given in the case stated. In those circumstances, whether this case be meritorious or not, I am bound to allow the appeal. There was, in short, no basis found by the Crown Court for concluding that this prosecution was a proportionate response to his conduct. In those circumstances I would answer question 1 No. It follows that question 2 must also be answered in the negative.’ In Bauer and Others v DPP [2013] EWHC 634 (Admin) Moses LJ restricts his remarks made in Dehal, however, these are were obiter remarks about aggravated trespass and did not address the principles established in Mumin Abdul and Others v DPP [2011] EWHC 247. Mumin suggests these are considerations that can be addressed at the close of the prosecution case or as an abuse of process. However given the court is required to act compatibly, it is further submitted it is can also be a consideration at the close of the case; in light of any defence evidence being heard. Submissions The Defendants are said to have sat on the road. The defendants were engaged in a peaceful protest. Independent of any consideration of ECHR rights any decision to prosecute must be made in accordance with Crown Prosecution Service policy or failure to follow relevant policy renders a subsequent prosecution an abuse of process. The Crown Prosecution Service policy on prosecuting protest cases as set out in appendix 1. It is submitted that when applying the above criteria to the present case the policy suggests that no prosecution is required. It is unclear if there has been any proper review of the prosecution against the defendants, where necessity and proportionality have been considered. The Code of Crown Prosecutors in charging protestors has not been met in relation to the defendant. The prosecution of the defendants is disproportionate. There has been an inconsistency of treatment between individuals. BBC News - In pictures: Fracking protest arrests in Balcombe bbc.co.uk
Posted on: Sat, 16 Nov 2013 00:25:18 +0000
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