Director of Public Prosecutions v Haw

Statutory powers conferred on the Commissioner of Police of the Metropolis may be exercised by a subordinate where the statutory scheme and the practical nature of the function imply a power to delegate. The specific power to impose conditions on demonstrations under the Serious Organised Crime and Police Act 2005 was such a function. Authorisation itself was mandatory where proper notice had been given, but the conditions were discretionary and technical.

Conditions restricting protest must be reasonable, proportionate and sufficiently clear to satisfy the requirement that Convention rights be restricted according to law. Where the trial judge has heard the evidence and found conditions unclear and unworkable, an appellate court hearing a case stated will not readily interfere with that conclusion.

The Director of Public Prosecutions appealed by way of case stated from the decision of District Judge Purdy in the City of Westminster Magistrates’ Court on 22 January 2007. The district judge ruled that Brian Haw had no case to answer on allegations that he knowingly breached conditions imposed on his demonstration in Parliament Square under section 134 of the Serious Organised Crime and Police Act 2005.

The appeal raised two questions: whether the Commissioner’s statutory power to impose conditions could be exercised by a subordinate; and whether the conditions were ultra vires or incompatible with Articles 10 and 11 of the Convention because they lacked clarity.

1. Delegation. The appeal succeeded on the first issue. The Carltona principle applies to statutory powers conferred on a minister, subject to express or implied statutory restriction. Where a statutory office-holder’s responsibilities are such that delegation is inevitable, an implied power to delegate may arise. Sections 9A, 9C and 9F of the Police Act 1996 permit delegation in specified circumstances but do not exclude delegation to other officers where the nature of the function implies that power.
2. Authorisation under section 134 was mandatory once the requisite notice had been given. The discretionary function was the imposition of conditions which, in the Commissioner’s reasonable opinion, were necessary to prevent the statutory risks. Determining such conditions was a technical and fact-sensitive task. The volume and nature of demonstrations made it impossible to conclude that Parliament intended the Commissioner personally to determine every condition. The power could therefore be delegated to an officer of appropriate rank.
3. Convention compatibility and clarity. Conditions under section 134 had to be reasonable and proportionate. That standard corresponded substantially to proportionality when restrictions on Articles 10 and 11 were assessed. Conditions also had to be sufficiently certain and workable to satisfy the requirement that restrictions be according to law.
4. The district judge had heard the evidence and found that the conditions, taken together, lacked clarity and were unworkable. The Divisional Court was not in a position to reject that conclusion on the material before it. The conditions were therefore incompatible with the applicable certainty requirement, and the respondent remained entitled to the ruling that there was no case to answer. The police were advised that simpler, potentially more restrictive conditions might be required.

• City of Westminster Magistrates’ Court: District Judge Purdy ruled that there was no case for the respondent to answer on the alleged breaches of conditions imposed under section 134 of the Serious Organised Crime and Police Act 2005.
• High Court (Administrative Court): The appeal by way of case stated was determined. The court held that the Commissioner’s power could be delegated, but upheld the conclusion that the conditions lacked clarity and could not stand.