18/9/07
I submit that these cases should not have been brought and should not be tried, for the following reasons:
The provisions of sections 132-138 of the Serious Organised Crime and Police Act 2005 include widely drawn restrictions on the freedom of expression we enjoy under the European Convention on Human Rights; the provisions of the ECHR are now enshrined in UK law.
The European Court of Human Rights has made a number of rulings which clarify the conditions which must apply when such restrictions are made. For example:
Silver v UK - March 25 1983. 5 EHRR 347, talks about the circumstances in which unwritten law is prescribed -
"Such a law will be prescribed - where a wide discretionary power is given, and non-statutory guidance sets out the manner in which the discretion is to be exercised and provided that this is accessible to those concerned."
Sunday Times v UK - April 26 1979 (1979-80 2 EHRR 245 para 49) describes how restrictions must be tightly drawn, foreseeable and predictable.
The unwritten processes must be adequately accessible… and be formulated with sufficient precision to enable the citizen to regulate his conduct and to foresee the consequences.
Judge Zekia (in Judgement dated 29 march 1979):
"Any restriction affecting the exercise of the right of freedom of expression must be reasonably foreseeable and predictable. You cannot enjoy or exercise the right to freedom of expression if the enjoyment of such right is made conditional and subject to a law or a rule or principle abounding in uncertainties. This would be tantamount to an undue restriction, even to a denial of such freedom of expression."
Judge Evrigenis in same case:
"The restrictions on the right to freedom of expression which are provided for in paragraph 2 of Article 10 (of the ECHR) constitute exceptions to the exercise of that right. As such, they not only must be narrowly interpreted (Klass and others judgement 1978) but also presuppose a definition of domestic law which is sufficiently clear and unambiguous, thus permitting anyone exercising his freedom of expression to act with reasonable certainty as to the consequences in law of this conduct."
SOCPA gives a wide discretionary power to the police, with no guidance whatsoever, accessible or otherwise, to set out the manner in which this discretion is to be exercised.
Written and accessible guidance on the "unwritten law" of SOCPA, for example the authorisation process, with safeguards to ensure that these powers are not arbitrarily abused, does not and has never existed under SOCPA s 132-138. Charges brought under SOCPA are unlawful and an abuse of process.
There is caselaw to confirm court powers and duties in such cases:
R v Horseferry Road Magistrates Court ex parte Bennet, 1994 (AC1)
The House of Lords confirmed that justices have the power to stay criminal proceedings on the grounds of abuse of process.
Connelly v DPP, 1964 (AC 1254)
The House of Lords recognised that the court has a general and inherent power to protect its process from abuse and that this power must include a power to safeguard an accused person from oppression and prejudice.
R v Beckford, 1996 (2 Cr App R 167)
"… two main strands can be detected in the authorities:
(a) cases where the court concludes that the defendant cannot receive a fair trial and
(b) cases where the court concludes that it would be unfair for the defendant to be tried."
Summary
Where processes are unknown, unforeseeable and not easily accessible, it is an abuse of process to bring any criminal proceedings.
Processes must be in place before any interference of our right to freedom of speech can lawfully occur.
I therefore submit that to proceed with a criminal trial on charges of taking part in an unauthorised demonstration within the designated area under SOCPA 2005 would be an abuse of process and unlawful.