PRELIMINARY PLEA OF OBJECTION TO COMPETENCY Statement to Helensburgh District Court on ‘Devolution Issue’. Maire-Colette Wilkie, Tuesday 22nd June 2004
Preliminary Plea of Objection to Competency
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Your Honour, I have a Preliminary Plea of Objection to Competency in the form of a devolution issue, in accordance with Section 6(1) of the Human Rights Act 1998, and Section 57(2) of the Scotland Act 1998. My Minute of Notice to Raise a Devolution Issue has been lodged with the Court and copies intimated to the Procurator Fiscal, the Lord Advocate and the Advocate General. In reaching its conclusion on this devolution issue I trust that, in accordance with Section 2(1) of the Human Rights Act 1998, the Court will take careful note of the judgments, decisions, declarations and advisory opinions of the European Court and the European Commission contained in the cases to which I will refer. I have copies of the reports of all these cases available for the use of the Court when and if requested.
What is the devolution issue that I ask the Court to decide? The question arises from the policy of “selective” arresting practised by Strathclyde police at a demonstration at the North Gate of Her Majesty’s Naval Base, Clyde, on 22nd April last year. In the circumstances that existed at the locus on that day, were the police officers acting lawfully when they arrested me and thus prevented me from continuing to exercise my rights to freedom of expression and peaceful assembly while, at the same time and place, and at a distance of only a few metres away from me, these same police officers permitted a large group of protestors to exercise the same rights without interruption for many hours until the demonstration ended? None of the protestors in that group was arrested.
In the circumstances of the demonstration on 22nd April, Articles 10, 11 and 14 of the European Convention for the Protection of Human Rights, as incorporated into Scottish law, guaranteed my prima facie rights to freedom of expression, freedom of assembly and association, and the prohibition of discrimination. For reasons that I will shortly set out to the Court, it is my submission that my arrest on the day in question violated the freedoms defined and protected by these three Articles and was, therefore, unlawful.
Section 6(1) of the Human Rights Act 1998 states that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Subsection 3 of that Section makes it clear that “public authority” includes a court, a tribunal and “any person whose functions are of a public nature”,
which obviously includes the police.
Now the Court will be aware that the exercise of the freedoms specified in two of the Articles I have quoted, Articles 10 and 11, may be subject to restrictions placed upon them as set out in the second paragraphs of each of these Articles. These restrictions may be collectively described as constraints “necessary in a democratic society”. Their relevance and applicability in the context of my arrest on 22nd April I will examine in detail in due course.
At this point, however, I wish to direct the attention of the Court to the third Article I have quoted, Article 14, and to the self-evident fact that in respect of Article 14 there is no paragraph two. The prohibition of discrimination is both absolute and universal. In relation to Article 14 there are no restrictions that may be described as “being necessary in a democratic society”. Discrimination in relation to the enjoyment of the rights and freedoms set forth in the Human Rights Convention cannot be justified in any circumstances.
Your Honour, it is, therefore, abundantly clear that Article 14 MUST at the same time prohibit discrimination in the imposition of restrictions on the exercise of those rights and freedoms.
On 22nd April last year at a peaceful demonstration at the North Gate of the Faslane Naval Base, the police carried out a premeditated policy of deliberate discrimination. By arresting me and preventing me from continuing to exercise my rights to freedom of expression and peaceful assembly, and by not arresting other protestors in the same locus at the same time, the police, as a public authority, acted in a way which is incompatible with my Convention rights, and which is, therefore, unlawful.
In terms of the component details of the charge of Breach of the Peace brought against me, by no stretch of the imagination could it be claimed that the group of demonstrators who were NOT arrested, contravened the law any less severely than the Procurator Fiscal has alleged in his complaint against me. With the Court’s permission I will in due course produce evidence in support of that fact.
To complete this outline of my Objection to Competency argument, since as I claim, my arrest was unlawful, the Procurator Fiscal by instituting proceedings against me is also acting in a way that is incompatible with a Convention right.
Thus he has no power to prosecute me on these charges and, for the same reason, it would be unlawful for this Court to allow these charges to be brought to trial.
I will now expand upon my grounds for raising this devolution issue as summarised in my Minute of Notice of Intention placed before the Court.
My grounds for raising this devolution issue are summarised in paragraph two of the Minute that I have placed before the Court. However, to fully substantiate the argument I have outlined will require some expansion of the core facts already supplied in my Minute.
In noting these facts I would ask the Court to keep in mind the criteria set out in the second paragraphs of Articles 10 and 11 of Part 1 of Schedule 1 of the Human Rights Act 1998. These define the circumstances in which it may be lawful to place restrictions upon the exercise of these two Convention Rights. The Court will recall that the two principal constraints are that any restrictions applied must be both “prescribed by law” and “necessary in a democratic society”. However, for guidance as to how these restrictions may be lawfully applied it is necessary to refer to relevant decisions of the European Court of Human Rights.
At this point I wish to bring three cases to the attention of the Court. In Steele v. United Kingdom (1999) 28 EHRR 602 at paragraphs 92 and 101, the European Court of Human Rights held that “protests which took the form of physically limiting activities of which the applicants disapproved were valid expressions of opinion within the meaning of Article 10.” To this ruling I would add Feldek v. Slovakia, 12th July 2001, at paragraphs 72 and 74, where the ECHR has stated “there is little scope under Article 10(2) for restrictions on political speech, or on debate on questions of public interest”.
The third case I wish to quote at this stage is Iatrides v. Greece (2000) 30 EHRR 97, where at paragraph 58 the ECHR has pronounced, “the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention”. Restrictions on the exercise of an Article 10 right cannot be “prescribed by law” and “necessary in a democratic society” if such interference supports, facilitates or otherwise assists an illegal State activity.
Now, your Honour, I will return to what I have referred to in my outline argument as “the circumstances that existed at the locus on the day”. In particular I consider it relevant and persuasive to remind the Court of the wider legal context in which the 22nd April demonstration took place. On that day last spring the United Kingdom was engaged in a war the legality of which was then, and is still now, highly contentious. A very substantial proportion of the public had strongly opposed the involvement of British armed forces. Hundreds of thousands of people had taken to the streets of London and Glasgow in a protest which was continued in our demonstration at the North Gate of Her Majesty’s Naval Base, Clyde. On that day, in that locus, opposition to war merged with a well-founded fear that the Iraq conflict might precipitate the horror of the first use of British Trident nuclear weapons.
To fully explain the legal circumstances relating to the 22nd April demonstration, it is necessary to remind the Court that in the months prior to the attack on Iraq, Mr Hoon, the Secretary of State for Defence, had stated three times in public that “in the right conditions, we would be willing to use our nuclear weapons”. On each occasion he spoke in a context which made it quite clear that he was referring to the use of Trident nuclear weapons in response to an attack by weapons of mass destruction on British troops in the field. In the 50-year history of the so-called “deterrent” this was the first time that the UK had openly threatened the actual use of its nuclear weapons in a war-fighting situation.
For the record, the Court will need to be reminded of the occasions on which these threats were made. On Wednesday 20th March 2002, the Secretary of State appeared as a witness before the House of Commons Defence Select Committee. The officially minuted proceedings make it clear that the UK is prepared to use nuclear weapons against “rogue” states such as Iraq, if they ever use weapons of mass destruction, biological or chemical, not against the British homeland, but against our troops in the field.
The crucial disclosures start at paragraph 234 with a discussion about UK general deterrence in relation to an attack on the British mainland. However, paragraph 236 moves on to a specific question from Jim Knight MP who asked: “Do you think such a state would be deterred by our deterrent from using weapons of mass destruction against our forces in the field?” Mr Hoon’s answer is “the United Kingdom possesses nuclear weapons and has the willingness and ability to use them in appropriate circumstances”. In paragraph 237 he adds, “in the right conditions we would be willing to use our nuclear weapons….” The context makes it quite clear that Mr Hoon is referring to a nuclear response by the UK to an attack with weapons of mass destruction on British forces in the field. (Reference: Evidence Presented by Rt. Hon. Geoffrey Hoon, to House of Commons Select Committee on Defence, Wednesday 20th March 2002.)
The following weekend, when Mr Hoon appeared on the Jonathan Dimbleby programme on Sunday 24th March 2002, he repeated his statement “that if there is a threat to our deployed forces, if they come under attack by weapons of mass destruction, and by that specifically chemical, biological weapons, then we would reserve the option….to use nuclear weapons”. (Reference: Media Transcription Service Transcript Ref. No: 7420, Sunday 24th March 2002.) The Defence Secretary also made very similar statements in the House of Commons Defence Debate on 29th April 2002 (Reference Hansard Columns 664, 665 and 666).
Your Honour, Mr Hoon’s repeated threats constituted a gross violation of international humanitarian law as summarised in the 8th July 1996 Opinion of the International Court of Justice. This judgement states at paragraph 105(2)E, “It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular, the principles and rules of humanitarian law.
However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.” (Ref: Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, General List No. 95, July 8th 1996, paragraph 105(2)E.) Your Honour, it is clear that the distinguished judges of the World Court had concluded that the only military situation in which the threat or use of nuclear weapons MIGHT POSSIBLY BE LAWFUL was one in which the VERY SURVIVAL OF THE STATE would be at stake. By no stretch of the imagination could it be argued that the very survival of the British State would be at risk as a result of a chemical or biological attack on troops in the field.
Thus Mr Hoon’s threats were clearly unlawful in international humanitarian law, which is, of course, part of the law of Scotland. (Ref: Oppenheim’s “International Law Vol. 1, 9th edition, 1992, p.56, “As regards the United Kingdom all such rules of customary international law as are universally recognised or have at any rate received the assent of this country are per se part of the law of the land.”)
In the circumstances of the 22nd April 2003 demonstration, at the time when the Iraq war was ongoing, the unlawfulness of Mr. Hoon’s threats are further confirmed by the opinion of Lords Prosser, Kirkwood and Penrose in the Lord Advocate’s Reference No. 1 (2000). In that authoritative decision, these distinguished Judges of the Scottish High Court state at paragraph 95 “Moreover, where there is already armed conflict, with identifiable belligerents, one can readily envisage threats of illegal use of nuclear weapons which, as a matter of international humanitarian law, are to be equiparated with that illegal use, and are thus themselves illegal”.
For these reasons the active deployment of Trident nuclear submarines from their Faslane Base on 22nd April last year was illegal since they were the only means available to the British Government to carry out its unlawful threat of nuclear retaliation should it decide to do so. Your Honour, in the light of the fact that the State activity against which I was protesting, namely the deployment and threatened use of the Trident missile submarine fleet, was illegal on the day in question, I claim that my arrest by Strathclyde police was an unlawful interference with my peaceful exercise of my Convention rights.
In deciding whether or not a Devolution Issue has been raised, this Court must also assess whether the reasons given by the Crown for the interference by the police with my peaceful exercise of my Convention rights are relevant, sufficient and proportionate. In arresting me was a fair balance struck between the demands of the general interest of the community and the statutory legal requirement to protect my fundament human rights? From the ruling of the European Court in the case of Smith and Grady v. United Kingdom (27th September 1999) at paragraph 99, we find that the onus of establishing that an interference is proportionate rests on the state.
If my arrest was the only action available to the police in the circumstances of the demonstration of 22nd April, the Procurator Fiscal will have to explain very fully to this Court the reasons why one group of protestors were permitted to exercise their Convention rights without interruption for many hours, and why none of the protestors in that group was arrested. Why was it necessary to arrest me when it was not necessary to arrest Mr Sheridan or his colleagues?
In assessing the Fiscal’s reply the Court should take note of the opinion of the European Court in Vogt v. Germany (1996) 21 E.H.R.R. 205, in which the applicant complained that her dismissal as a teacher was in breach of Articles 10 and 11. In that case the ECHR expressed the view, at paragraph 61, that the reasons which had been put forward in justification of the interference with the applicant’s freedom of expression were “not sufficient to establish convincingly that it was necessary in a democratic society to dismiss her”.
In R. v. Shayler (2003) 1 A.C. 247, Lord Bingham of Cornhill stated at paragraph 23, “One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it are relevant and sufficient under Article 10(2): The Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245, 277-278, paragraph 62.
Even if the Procurator Fiscal can convince this Court that, in the circumstances of 22nd April 2003, there had been “a pressing social need” to interrupt my peaceful protest, he has to show that the action taken to interfere with my exercise of my Convention rights was no more than was strictly necessary. In R. v, Shayler at paragraph 61, Lord Hope of Craighead defined the requirements of proportionality as follows: “The first is whether the objective which is sought to be achieved – the pressing social need – is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used, impair the right as minimally as is reasonably possible”.
Your Honour, I submit that, in the circumstances of the day, if it is established that there was “a pressing social need” to interrupt my peaceful protest, that need would have been fully satisfied by the police detaining me and removing me from the scene. This is a method of controlling demonstrators that they have used effectively on numerous other occasions. I would suggest that the assumption that the alleged criminal aspects of my peaceful protest justified my arrest, detention and subsequent court proceedings, is further undermined by the fact that it took nearly ten months for the Procurator Fiscal to send me a citation. Further, one member of our Adomnan group who was arrested a few minutes after me, has never received his citation, and a second member, also arrested at the some time, has had all charges against her dropped.
The level of protection that should be accorded to an individual’s Article 10 rights will ultimately depend on the particular circumstances, but it is clear from ECHR cases that political expression which contributes to public discussion should attract the highest safeguards. As we have already noted, the European Court has stated in Feldek v. Slovakia (12th July 2001) at paragraph 42, that “there is little scope under Article 10(2) for restrictions on political speech or on debate on questions of public interest.” The demonstration on 22nd April was very much an expression of political opinion, which, no doubt, was one reason the event attracted the active participation of a significant number of professional Scottish politicians.
But, to again quote the Opinion of Lords Prosser, Kirkwood and Penrose, “Demonstration and protest and civil disobedience have a long and indeed proud history” (Lord Advocate’s Reference No.1 of 2000 paragraph 17). Unfortunately, the arrest policies adopted by Strathclyde police do not always respect this proud history or the fundamental human rights of the protestors.
The 800 plus people who took part in the demonstration at Faslane on 22nd April were there because serious matters of national concern weighed heavily on their minds and consciences. As responsible citizens of a country engaged in an unprovoked attack, involving the threatened use of nuclear weapons, on a sovereign nation, the police should have respected their rights to freedom of expression and assembly as guaranteed by Articles 10 and 11 since, as the European Court has ruled, political expression which contributes to public discussion will attract the highest safeguards.
In the event, protestors were treated in what seems to have been a totally arbitrary manner as far as their human rights were concerned. Some were permitted to continue their peaceful occupation of areas of the North Gate access road for many hours, while others were arrested within minutes of establishing themselves on the carriageway.
I travelled to Faslane on 22nd April 2003 as a member of the Adomnan of Iona Affinity Group of Trident Ploughshares. Seven members of our Group attended at the North Gate of H.M. Naval Base, Clyde, arriving at about 11.40 a.m., accompanied by our legal observer. Our first hour at the locus was mainly spent taking part in a Service of Holy Communion conducted by the Convenor of the Church and Nation Committee of the Church of Scotland. Incidentally, several members of the Adomnan Group are present here today and are willing to testify to the Court if Your Honour would find that helpful.
In addition to supporting the general demonstration against Trident and the Iraq war, our Group had arranged in advance by letter, as a courtesy, to hand to the Base Commander, Rear Admiral Derek Anthony, or his representative, an important document. This was a copy of our application to the International Criminal Court in The Hague which requested the indictment of the Prime Minister, the Foreign Secretary, the Defence Secretary and the Faslane Base Commander on charges related to the continued deployment and threatened use of British nuclear weapons in violation of international humanitarian law and International Treaty obligations. Regrettably, Admiral Anthony’s representative, a Captain Bramley, failed to keep the previously agreed appointment, but Your Honour may be interested to know that our submission was received and formally acknowledged by the International Criminal Court and is currently awaiting the attention of the Prosecutor and his staff.
At about 1.50 p.m., having completed our business with the Base Commander as far as we were permitted, we joined the several hundred protestors who were occupying the access road in front of the North Gate. Our Group sat down in a small circle and commenced the short Act of Prayer used by members of the Iona Community when they gather. Within a very few minutes our prayers were interrupted by a women police officer. Other officers soon joined her and proceeded to arrest the members of our Group one by one. By 2.30 p.m., all seven members of the Adomnan of Iona Affinity Group had been arrested, processed, charged, photographed and shut up in vehicles for transport to their respective police stations.
No doubt Strathclyde Police could congratulate themselves on their speed and efficiency, but was their action lawful in the circumstances of the day? That is the key question that this Court must decide in the light of the provisions of the Scotland Act 1998, the Human Rights Act 1998, relevant decisions of the European Court of Human Rights, and the evidence I am presenting.
Your Honour, shortly before 12 noon on the day in question, when moving among the assembled crowd of protestors at the locus, I observed a Group who were already well established in a commanding position in the centre of the access road. This group consisted of at least eight individuals including two in wheel chairs. They were all very securely chained together and it was clear from the signs they displayed that they were supporters of a particular political party. Prominent among these protestors was Mr Tommy Sheridan, MSP. Subsequently, as I was being driven away from the scene in a police van at approximately 3 p.m., I noted that Mr Sheridan and his Group remained in their place occupying exactly the same position in which I had observed them some three hours previously.
Your Honour, why had this Group of politicians been permitted to continue their protest unchallenged and uninterrupted? Were their human rights more important than mine? If, as the Procurator Fiscal may maintain, that in the circumstances of the day it was “necessary in a democratic society” for me to be arrested, why was it not necessary for them to be arrested also when they were carrying out exactly the same form of protest as I was? Perhaps even more to the point, since clearly it was not necessary for the politicians to be arrested, the Fiscal must provide this Court with a very convincing argument detailing why my arrest was absolutely necessary, why my fundamental Convention rights had to be violated, “in a democratic society”.
Whatever arguments the Procurator Fiscal may produce, that I was the victim of police discrimination cannot be denied. For that reason it is clear that my arrest was also a violation of my rights under Article 14 of the Convention, a claim that I will address in detail shortly as the third strand of my Plea of Objection to Competency.
Since I was present at the locus for only part of the day in question I have obtained from Mr. Sheridan and his colleagues a signed statement which describes the involvement of his Group of protestors throughout the whole period of the demonstration. With your permission, Your Honour, I would like to read it to the Court.
QUOTE FROM SIGNED STATEMENT BY TOMMY SHERIDAN MSP AND HIS COLLEAGUES.
To return to my own involvement and arrest at the 22nd April demonstration, the complaint of the Procurator Fiscal against me states, and I quote: –
“The charge against you is that on 22 April 2003 at A814 North Entrance HMNB Clyde, Faslane, you MAIRE-COLETTE WILKIE did, while acting with others, conduct yourself in a disorderly manner, sit on the roadway, obstruct the free flow of traffic, refuse to desist when required to do so and commit a breach of the peace.”
With these details of the charge against me in mind amounting to an alleged breach of the peace, the question I should like the Procurator Fiscal to answer is this. Since Mr Sheridan and his friends clearly committed all the offences that in my case have led to a charge of a breach of the peace, why were he and his Group of protestors not similarly arrested and charged? They occupied much more of the road surface for far longer than I did. Moreover, unlike the Adomnan Group, the politicians were visibly chained together and that by itself would, in the past practice of this Court, be likely to earn them a heavier penalty if convicted.
Your Honour, I submit that, in the circumstances of the day, it is absolutely clear that in arresting me and my colleagues in the Adomnan Group, and not arresting Mr Sheridan and his group, the police were exercising discrimination which is incompatible with Article 14 of Schedule 1 to the Human Rights Act 1998 and is, therefore, unlawful.
To substantiate this claim I refer to the European Court of Human Rights ruling in National and Provincial Building Society v. United Kingdom 1997 – VII, 2325, paragraph 88, which states that for the application of Article14, the persons in question must be in “relatively similar” positions. From the description already supplied to the Court of the situations of Mr. Sheridan and his political friends and of the Adomnan Group and myself, it is established beyond reasonable doubt that there were no significant differences between the positions and behaviour of the two groups of protestors that could justify the chargeof breach of the peace in my case, but not in the case of Mr. Sheridan.
In the Belgian Linguistics Case (1968 A6) the European Court has ruled that where the persons in question are in relatively similar positions, the remaining issue is whether the difference in treatment accorded to the two parties has an “objective and reasonable” justification. Further, from Sutherland v. United Kingdom 1 July 1997, 25186/94, we learn that the onus of establishing such a justification lies on the state. From Lindsay v. United Kingdom 11089/84 DR 49, 181 and Darby v. Sweden 1991 A187, paragraph 31, there is confirmation that a difference in treatment will be discriminatory if it does not pursue an objective, reasonable and legitimate aim.
Thus, your Honour, the onus is on the Procurator Fiscal to supply this Court with an objective, reasonable and legitimate aim to justify the discrimination which was practiced against me on 22nd April last year when I was arrested and charged with breach of the peace. If he cannot do so to the satisfaction of the Court then my arrest was an unlawful violation of my right under Article 14 of the Convention.
In deciding whether or not the discrimination practiced against me was justified or not, the Court should be aware that the policy of making “selective arrests” adopted by Strathclyde police at the North Gate of HMNB Clyde on 22nd April last year was both deliberate and premeditated. At Helensburgh Police Station at 3 p.m. on both Thursday 3rd and Monday 14th April 2003, meetings to discuss arrangements for the 22nd April demonstration took place between Chief Superintendent Mitch Roger, Chief Inspector Jim Irvine, Inspector Andy Haggarty and representatives of Trident Ploughshares and Scottish CND. (Jane Tallents, Marilyn Croser and Morag Balfour).
At these meetings the police officers asked if any of the ‘usual politicians’ would be present on 22nd April. Having been advised that several Members of the Scottish Parliament and parliamentary candidates were expected to take part, the officers made clear that they thought that their only motive was to attract favourable publicity for their campaigns for the Elections to be held nine days later on 1st May 2003. While the general approach during these liaison meetings was to facilitate everybody’s right to make a peaceful protest, the police clearly gave the impression that they had complete disdain for Mr Sheridan and his colleagues. Despite reassurances by the representatives of the organisers of the demonstration that the politicians were welcome participants and their integrity not in doubt, the police officers continued to express their opinion that they saw them as significantly different from the other protesters.
Clearly, this policy decision by senior officers not to arrest certain people was intended to override any legal constraints related to the behaviour of particular protestors on the day. Even if, by all normal standards, some protestors were seen to be committing a breach of the peace, if they were recognisable politicians their protest would not be interrupted. Preventing politicians from attracting media attention was to take priority over keeping the North Gate access road free from obstructions to traffic. One wonders just how “flagrantly” the MSPs would have had to behave in order to be rewarded by arrest!
So, your Honour, it is perfectly logical to conclude that the single critical factor which led to my arrest on 22nd April last year was that I was NOT identified as a politician. If for any reason I had decided to attach myself to Mr Sheridan’s group I would NOT have been arrested. The Court must decide if the fact that I was NOT identified as a politician is an “objective and reasonable” justification for the difference in treatment accorded to Mr Sheridan and myself. In making that decision I trust that the rulings of the European Court in the cases I have already quoted, that a difference in treatment will be discriminatory if it does not pursue an objective, reasonable and legitimate aim, will bind this Court in my favour.
Your Honour, the purpose of my submission has been to demonstrate that a “devolution issue” arises from my arrest at the North Gate of HMNB Clyde, on 22nd April last year. That nature of that “devolution issue” was defined in the “Minute of Notice” I lodged with the Court on 17th March 2004. In asserting that my arrest, and the subsequent proceedings on summary complaint, are incompatible with Articles 10, 11 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, I have presented four separate lines of argument, each supported by relevant rulings of the European Court or the European Commission. To conclude, I will summarise my four arguments.
Argument 1. My arrest was an unlawful interference with my peaceful exercise of my Article 10 right of freedom of expression since the European Court has ruled that “the rule of law is inherent in all the Articles of the Convention”, which means that restrictions on an Article 10 right cannot be “prescribed by law” and “necessary in a democratic society” if such interference supports, facilitates or otherwise assists an illegal state activity. I have explained that on the day of my arrest, the active deployment of Trident nuclear submarines from their Faslane Base was an illegal state activity since they were the only means available to the British Government to carry out its unlawful threats of nuclear retaliation should it decide to do so. Moreover, the legality of the Iraq war in which the Trident submarines were engaged was, and still is, highly contentious, and was a resort to armed force which cannot be classed, “beyond all reasonable doubts”, as a legitimate state activity.
Argument 2. My arrest was also an unlawful interference with my peaceful exercise of my Article 10 and 11 rights since, as I have described, the European Court has ruled that the Procurator Fiscal must establish that the interference was both necessary and proportionate, and was the only action available to the police in the circumstances. This was manifestly not the case since, as I have explained, there were other protestors involved in the same demonstration at the same locus and time, who were permitted to continue to exercise their Convention rights throughout the day, and were not arrested or interrupted in any way. However, even if the Fiscal does maintain that my arrest was necessary, he must still establish that the police action taken against me was proportionate. Since their stated purpose of maintaining the free flow of traffic would have been fully served if they had simply detained me and removed me from the scene, it is clear that my arrest, detention and subsequent court proceedings do not comply with the requirements of proportionality set out by Lord Hope in R. v. Shayler.
Argument 3. My arrest was also an unlawful interference with my peaceful exercise of my Article 10 rights since the European Court has made it clear that “there is little scope for under Article 10(2) for restrictions on political speech or on debate on questions of public interest”. The demonstration on 22nd April 2003 was very much an expression of political opinion, and should have attracted from the authorities the highest safeguards to ensure the fundamental human rights to freedom of expression and peaceful assembly were upheld for me and for all participants. In the event the actions of the police showed a total disregard for the provisions of the Human Rights Act 1998 and the Scotland Act 1998.
Argument 4. My arrest was also an unlawful violation of the principle stated in Article 14 of the Convention when considered in conjunction with my rights as guaranteed under Articles 10 and 11. The Court has been given the facts that my peaceful exercise of those substantive rights was stopped by the intervention of the arresting officers when, at the same time and place, other protestors were permitted to continue their exercise of their freedoms of expression and assembly for many hours without any action being taken against them. The rulings of the European Court that I have quoted set out the criteria which define unlawful discrimination, and conclude that a difference in treatment of the kind I suffered will be discriminatory if it does not pursue an objective, reasonable and legitimate aim. From the evidence I have presented to the Court that the policy of making “selective arrests”, adopted by Strathclyde police on 22nd April 2003, was both deliberate and premeditated, it is clear that the critical factor which led to my arrest on that day was that I was NOT identified as a politician. I submit, Your Honour, that that justification for my difference in treatment does NOT satisfy the criteria established by the European Court, and for that reason my arrest was unlawful.
In opposing the arguments I have raised, the Procurator Fiscal has referred the case of “Lucas v. United Kingdom” which came before the European Court of Human Rights on 18th March 2003. The Procurator Fiscal has claimed that the European Court’s decision in this case applies so closely to the “devolution issue” I have brought before this Court that further debate is unnecessary. Your Honour, I will show that this claim is not soundly based, is misleading and should be disregarded entirely.
Your Honour, as I stated at the outset, the key issue in my case, is my claim that I was the victim of unlawful discrimination when my fundamental human rights to freedom of peaceful assembly and expression were violated by my arrest on 22nd April 2003. Hence, the proper interpretation of the application of Article 14, the Prohibition of Discrimination, is central to the resolution of the “devolution issue” I have presented. But, from my readings of the published reports of the case of Caroline Lucas before the European Court of Human Rights (ECHR application 39013/02), I will state categorically that I can find no reference of any kind, either direct or implied, to Article 14 or is there any discussion of the prohibition of discrimination. So it is blindingly obvious that the Lucas case, at the most generous interpretation, can have only a very limited relevance to my “devolution issue”.
In examining the issues relating to Articles 10 and 11, the Lucas case depended essentially on a consideration of elements of Scottish domestic law. Before reaching its verdict, the European Court undertook an exhaustive examination of the law related to “breach of the peace” in Scotland which, incidentally, was used recently (4th May 2004) by the Scottish High Court of Justiciary as important evidence when five judges considered appeals against convictions for breach of the peace. But, as my “Minute of Notice of Intention to Raise a Devolution Issue” clearly indicates, the application of the law concerning breach of the peace has no part to play in my current submission to this court.
In essence, Ms Lucas’s complaint to the European Court centred on her belief that her conviction before Helensburgh District Court for “breach of the peace” was unsound. Then, if and only if, the ECHR agreed that she had been wrongly convicted, she would be able to press her human rights claims that, since her arrest and detention were not in accordance with domestic law, the interference with her rights under Articles 10 and 11 was not “prescribed by law” and, therefore, not justified.
If I may, I will quote from the COMPLAINTS section on page 4 of the ECHR Report: “the evidence offered by the prosecution did not establish that she was guilty of the offence of breach of the peace, and that the Justice of the Peace was not entitled to find that her conduct would have been genuinely alarming and disturbing to a reasonable person as required by domestic law. The applicant claims, inter alia, that there was no evidence of actual harm and that her conduct was not “flagrant” as required by the dictum of the High Court in Smith v. Donnelly [(2001) Scottish Law Reports 1007].”
In other words, Ms Lucas asked the European Court to overturn her conviction for “breach of the peace” on the grounds that it did not conform to Scottish domestic law. As her appeal against her conviction had already been twice rejected by the Scottish High Court, her failure to win her case in Europe was, in my opinion, surely to be expected.
Ms Lucas’ complaint that her arrest and detention were an interference with her rights under Articles 10 and 11 was based on her assertion that her conviction for breach of the peace was not in accordance with domestic law and consequently not prescribed by law. When her conviction appeal submission was rejected by the European Court her Article 10 and 11 complaints became unsustainable.
Ms. Lucas also complained that her arrest, detention and conviction constituted an unjustified interference with her rights under Article 11, the right to freedom of peaceful assembly. The European Court rejected her plea on the grounds that the interference must be regarded as justified under the terms of paragraph 2 of Article 11. But, in assessing the significance of that decision in our present debate, it is essential to remember the critical difference between my case and the Lucas case which is summarised in the word “discrimination”. My Article 11 human rights were violated because my exercise of my freedom of peaceful assembly was interrupted without just cause when others in an exactly similar situation were permitted to exercise their rights without interference.
One final point of comparison between the Lucas case and my own derives from what I have called “the circumstances that existed at the locus on the day”. In particular, I have referred to “the wider legal context”. On 22nd April last year when I was arrested, the United Kingdom was engaged in a war the legality of which was then, and is still now, highly contentious. A very substantial proportion of the public had strongly opposed the involvement of British armed forces. Hundreds of thousands of people had taken to the streets of London and Glasgow in a protest that was continued in our demonstration at the North Gate of Her Majesty’s Naval Base, Clyde. On that day, in that locus, opposition to war merged with a well-founded fear that the Iraq conflict might precipitate the horror of the first use of British Trident nuclear weapons. When Caroline Lucas was arrested on 12th February 2001 none of these moral, legal and psychological factors were applicable, and the need for respect for fundamental human rights by the police, was then less obvious and compelling.
I will concede that in respect of the facts that Ms Lucas and myself are both female and were both arrested and charged with breach of the peace on different dates for our peaceful protests at the North Gate of Faslane, similarities exist between our two cases. But beyond those incidental elements, I submit there are no significant matters arising from Lucas case which will be helpful to the Court in assessing the arguments that I have presented.