Hashman and Harrup v the United Kingdom - 25594/94 [2011] ECHR 1658 (14 September 2011)

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The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicants’ freedom of expression in that a “binding-over” order placed on them did not comply with the requirement set out in the Convention that it should be “prescribed by law” (violation of Article 10) (see details in Appendix);

Having invited the government of the United Kingdom to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Recalling Interim Resolution ResDH(2005)59 adopted on 6 July 2005 in this case, in which the Committee urged the United Kingdom authorities to take the remaining measures necessary to meet its obligations under the Convention without further delay;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

The case concerns the issue of a “binding-over” order by Gillingham Magistrates’ court. In response to the disruption of a fox-hunt, the applicants had a “binding-over” order imposed on them on 7 September 1993 which prohibited further breaches of the peace and behaviour contra bonos mores.

The Court considered that the binding-over order, based on the notion of “behaviour contra bonos mores”, was too vague (§ 40 of the judgment), and therefore did not comply with the requirement set out in the Convention that it should be “prescribed by law” (violation of Article 10).

The one-year binding-over order imposed on the applicants expired in September 1994. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

In response to the judgment, and pending a full review of binding-over orders, interim measures were taken in the form of guidance issued to prosecutors via the “Crown Prosecution Service Casework Bulletin No. 6 of 2000”. This stipulated that prosecutors should not ask courts to consider binding-over orders unless there is evidence of past conduct which, if repeated, is likely to cause a breach of the peace. In addition, the guidance also suggested that courts could be encouraged to ensure that the behaviour to be avoided was made quite clear in the order. Another interim measure was taken by issuing a document in March 2003 which recommended that courts issuing binding-over orders should not distribute requirements such as “to keep the peace” or “to be of good behaviour”, but rather the individual concerned be bound over to do or refrain from performing specific activities.

After widespread consultation in December 2006 and input from the Criminal Procedures Rules Committee, Amendment no.15 to the Consolidated Criminal Practice Direction was issued (available at http://www.justice.gov.uk/about/hmcts/index.htm). The amended Practice Direction specifies that courts should no longer bind an individual over “to be of good behaviour”, and instead the court should identify the specific conduct or activity from which the individual should refrain (§ III.31.3 of the Practice Direction). The details of the conduct or activities from which the individual should refrain should be specified by the court in a written order served on all relevant parties (§ III.31.4).

As regards the possibility of making representations to the court before a binding-over order is imposed, the amended Practice Direction stipulates that the court should give the individual who would be subject to the order and the prosecutor the opportunity to make representations, both as to the making of the order and as to its terms (§ III.31.5). When fixing the amount of the recognisance, courts should also hear representation as to the individual’s financial circumstances (§ III.31.11). Lastly, before the court exercises a power to commit the individual to custody, the individual should be given the opportunity to see a duty solicitor or another legal representative and be represented in proceedings (§ III.31.13).

The judgment of the European Court has been published in several law reports, including at (2000) 30 EHRR 241; [2000] Crim LR 185; [1999] EHRLR 342; Times LR, 1/10/98.

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the United Kingdom has thus complied with their obligations under Article 46, paragraph 1, of the Convention.

1 Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
--	-	6 000 GBP	6 000 GBP
Paid on 21/02/2000

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You are here: BAILII >> Databases >> European Court of Human Rights >> Hashman and Harrup v the United Kingdom - 25594/94 [2011] ECHR 1658 (14 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1658.html Cite as: [2011] ECHR 1658