Extract from Hashman and Harrup v United Kingdom [2000] 30 EHRR 241

Extract from Hashman and Harrup v United Kingdom [2000] 30 EHRR 241
‘A. As to the existence of an interference with the applicants' freedom of Expression
27. The applicants, "hunt saboteurs", disrupted the Portman Hunt on 3 March 1993. Proceedings were brought
as a result of which they were bound over in the sum of £100 not to breach the peace and to be of good behaviour
for 12 months. [note: ‘binding over
28. The Court recalls that proceedings were brought against the applicants in respect of their behaviour while
protesting against fox hunting by disrupting the hunt. It is true that the protest took the form of impeding the
activities of which they disapproved, but the Court considers nonetheless that it constituted an expression of
opinion within the meaning of Article 10. [FN30]
The measures taken against the applicants were, therefore, an interference with their right to freedom of
expression.
FN30 See, e.g. Steel v. United Kingdom, loc. cit., para. 92.
B. Whether the interference was "prescribed by law"
… 31. The Court recalls that one of the requirements flowing from the expression "prescribed by law" is
foreseeability. A norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the
citizen to regulate his conduct. At the same time, whilst certainty in the law is highly desirable, it may bring in its
train excessive rigidity and the law must be able to keep pace with changing circumstances. The level of precision
required of domestic legislation--which cannot in any case provide for every eventuality--depends to a
considerable degree on the content of the instrument in question, the field it is designed to cover and the number
and status of those to whom it is addressed. [FN34]
FN34 See generally in this connection, Rekvenyi v. Hungary: 20 May 1999, para.
34.
32. The Court further recalls that prior restraint on freedom of expression must call for the most careful scrutiny
on its part. [FN35]
FN35 See, in the context of the necessity for a prior restraint, The Sunday Times v. United Kingdom (No. 2),
loc. cit., para. 51.
33. The Court has already considered the issue of "lawfulness" for the purposes of Article 5 of the Convention of
orders to be bound over to keep the peace and be of good behaviour. [FN36] In that case, the Court found that
the elements of breach of the peace were adequately defined by English law. [FN37]
FN36 In Steel v. United Kingdom, loc. cit., paras. 71-77.
FN37 ibid., para. 75.
34. The Court also considered whether the binding-over orders in that case were specific enough properly to be
described as "lawful order[s] of a court" within the meaning of Article 5(1)(b) of the Convention. It noted at
paragraph 76 of the judgment that:
... the orders were expressed in rather vague and general terms; the expression "to be of good behaviour" was
particularly imprecise and offered little guidance to the person bound over as to the type of conduct which would
amount to a breach of the order. However, in each *257 applicant's case the binding-over order was imposed
after a finding that she had committed a breach of the peace.
Having considered all the circumstances, the Court is satisfied that, given the context, it was sufficiently clear
that the applicants were being requested to agree to refrain from causing further, similar, breaches of the peace
during the ensuing 12 months.
The Court also noted that the requirement under Article 10(2) that an interference with the exercise of freedom
of expression be "prescribed by law" is similar to that under Article 5(1) that any deprivation of liberty be
"lawful". [FN38]
FN38 ibid., para. 94.
35. It is a feature of the present case that it concerns an interference with freedom of expression which was not
expressed to be a "sanction", or punishment, for behaviour of a certain type, but rather an order, imposed on the
applicants, not to breach the peace or behave contra bonos mores in the future. The binding-over order in the
present case thus had purely prospective effect. It did not require a finding that here had been a breach of the
peace. The case is thus different from the case of Steel, in which the proceedings brought against the first and
second applicants were in respect of breaches of the peace which were later found to have been committed.
36. The Court must consider the question of whether behaviour contra bonos mores is adequately defined for the
purposes of Article 10(2) of the Convention.
37. The Court first recalls that in its Steel judgment, it noted that the expression "to be of good behaviour" was
particularly imprecise and offered little guidance to the person bound over as to the type of conduct which would
amount to a breach of the order". [FN39] Those considerations apply equally in the present case, where the
applicants were not charged with any criminal offence, and were found not to have breached the peace.
FN39 ibid., para. 76.
38. The Court next notes that conduct contra bonos mores is defined as behaviour which is "wrong rather than
right in the judgment of the majority of contemporary fellow citizens". [FN40] ……..
FN40 See para. 13 above.
40. With specific reference to the facts of the present case, the Court does not accept that it must have been
evident to the applicants what they were being ordered not to do for the period of their binding over. Whilst in
the case of Steel the applicants had been found to have breached the peace, and the Court found that it was
apparent that the bind over related to similar behaviour, [FN43] the present applicants did not breach of the
peace, and given the lack of precision referred to above, it cannot be said that what they were being bound over
not to do must have been apparent to them.
FN43 ibid.
41. The Court thus finds that the order by which the applicants were bound over to keep the peace and not to
behave contra bonos mores did not comply with the requirement of Article 10(2) of the Convention that it be
"prescribed by law".
… 43. It follows that there has been a violation of Article 10 of the Convention.’