AS TO THE ADMISSIBILITY OF

Application No. 31416/96

by Arthur U. PENDRAGON

against the United Kingdom

The European Commission of Human Rights sitting in private on 19 October 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS  

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE   

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÎRSAN

P. LORENZEN

E. BIELIŪNAS  

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 November 1995 by Arthur U. PENDRAGON against the United Kingdom and registered on 7 May 1996 under file No. 31416/96;

 Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

-   the observations submitted by the respondent Government on 5 November 1997 and the observations in reply submitted by the applicant on 6 March 1998; 

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1954 and resident in Hampshire.  He is represented before the Commission by Mr P. Leach, a solicitor from the organisation "Liberty", based in London.  The facts of the case, as submitted by the parties, may be summarised as follows.

A. The particular circumstances of the case

The applicant is the Honoured Pendragon of the Glastonbury Order of Druids.  In 1995 the applicant wished to hold a Druidic service at the summer solstice on 21 June, at the Hele Stone which is near to a main road and close to the monument "Stonehenge" (in recent years the applicant has been denied access to Stonehenge itself). For the preceding seven years the applicant had held similar services at the spring and autumn equinox and winter solstice, attracting about thirty people on each occasion, without causing any disorder.

 Stonehenge is a monument that predates the Iron Age and consists of a circle of stones which are aligned to the midsummer sunrise.  The sun rises above the Hele Stone on the date of the summer solstice. It is accepted by prehistorians that the original purpose of Stonehenge was as a scene of gatherings at the moment of the midsummer sunrise. The Iron Age Druids of Britain were highly-respected healers, judges, prophets and teachers of mystical philosophy. Whilst it appears that there is no evidence that Iron Age Druids built or presided at Stonehenge, it is likely that the tribes of the Stonehenge period (about two thousand years before the Iron Age Druids) had Druid-like figures amongst their number. 

The modern Druid Orders have been reconstructing rituals, that are favoured by academics as possibly having been performed by the builders of Stonehenge, since the beginning of this century.  These reconstructed rituals have taken place continuously for approximately the last 100 years at Stonehenge, prior to such assemblies being forbidden in the late 1980s. 

In the mid 1980s many non-Druid people also attended Stonehenge for the summer solstice, often staying, camping and holding festivals in the surrounding area.  In 1983 and 1984, some 30,000 people attended, and serious disorder broke out.

The Druid Orders were recognised by the police and English Heritage (who control the Stonehenge site), as having responsibly attempted to organise lawful and peaceful gatherings at Stonehenge.  However, in 1986 English Heritage closed the site for the summer solstice and have done so since.  Following the enactment of the Public Order Act 1986 (as amended) ("the Act"), various powers conferred on the police were used to prevent public order disturbances at Stonehenge at the time of the summer solstice.

On 17 January 1995 the Chief Constable of Wiltshire applied to the Salisbury District Council for an order under section 14A of the Act, prohibiting all trespassory assemblies within a radius of 4 miles from the junction of roads adjoining the Stonehenge Monument, between 11.59 p.m. on 17 June 1995 and 11.59 p.m. on 21 June 1995. In the ten or so previous years, similar orders had been made, aimed at preventing gatherings.  In his application the Chief Constable stated (inter alia):

 "My belief at this stage is that there is still a strong desire on the part of many New Age Travellers, and others, to establish festival sites on vulnerable pieces of land and, in particular, on the symbolic Stonehenge Monument site at the time of the summer solstice.  In 1994 a total of 40 persons attempted to gain access to the Stonehenge Monument site at the summer solstice dawn which signifies a continuing hard core of individuals intent on gaining access.  Whilst I am encouraged by the diminishing confrontations which have occurred at Stonehenge in recent years, in my judgment it is still necessary to reinforce the messages emanating from our recent successful operations."

The District Council acceded to the request, and the Secretary of State was asked, as required by the Act, for his consent.  On 4 May 1995, the applicant made written representations through his lawyer to the Secretary of State to complain about the impact of such an order on his ability to carry out any Druidic ceremonies near Stonehenge.  The Secretary of State considered the representations made on behalf of the applicant, and gave his consent to the order before it was made on 22 May 1995.  In his reply of 9 June 1995 to the applicant's solicitor's letter the Secretary of State explained:

"4. The matters raised in your letter were indeed considered in discussions between this Department, the Council and Wiltshire Constabulary.

5. Following these discussions, the Secretary of State was fully satisfied that the application for the order was properly made by the police within the terms of section 14A and that the Council were entirely justified in seeking his consent to the order.  He also concluded that the proposed order was reasonable and necessary, and accordingly gave his consent.

6. The Secretary of State did consider what modifications might be made to the order, in particular as to its duration and geographical extent.  However, he took the view that the order proposed by the Council, in the terms proposed, was required to meet the circumstances anticipated by the police.

7. I am not sure what "special provisions" you envisaged might be made for Druids generally, or your client in particular.  You will know that by section 14A(5) an order prohibits any [his emphasis] assembly fitting the descriptions in that subsection.  It would not therefore be possible to limit an order so that it does not apply to certain categories of trespassory assembly, other than those described in subsection (5); in particular, it cannot apply to an assembly held with the permission of the landowner.

...

9. You say that you are nevertheless concerned that the police may take the view that your client and those wishing to attend the Druid service cannot attend the area subject to the order, and that any dispute about this may lead to your client or others being arrested.  You ask for an assurance from the council or the police that the order will not be applied to your client and his followers.

10. The manner in which the order is enforced in respect of your client, his followers or anyone else is for the Chief Constable and his officers, acting according to sections 14B and 14C of the Act.  This is not something which is subject to directions from the Home Office."

On 8 May 1995, there was a mass trespass at Stonehenge and damage to the monument.  There was a further trespass on 1 June which resulted in the monument being invaded by about 30 people.

On 9 June 1995, the applicant brought judicial review proceedings in the High Court.  He challenged the lawfulness of the order made by Salisbury District Council, on the basis that insufficient weight had been given to his rights to freedom of religion and/or freedom of assembly before the order was made.  Mr Justice Laws rejected the applicant's challenge to the order on the basis that to hold an assembly on a public highway would amount to a civil wrong, that the Secretary of State was entitled to balance the applicant's rights against those of the wider community and that whilst there was no evidence that the applicant or any of the Druids who might attend his meeting would cause any trouble or act other than peacefully, under section 14A of the Act, it was impossible to make an order prohibiting only those intent on trouble or those with non-peaceful intentions, from Stonehenge.

On 21 June 1995, at 00.11 hrs. the applicant was arrested outside the Stonehenge perimeter fence in the proximity of the Hele stone, which was within the 4 mile exclusion zone.  There were in excess of 20 people at the service being held by the applicant, who was in full ceremonial dress.  The police approached the gathering and using a loud hailer made a broadcast that the assembly was contrary to section 14A of the Act and the participants should leave immediately or be arrested.  The applicant was in addition served with a written notice explaining the 4 mile exclusion zone.  The police requested the applicant to leave the site; however he refused and was consequently arrested.  The applicant was taken to Salisbury Police Station, where he arrived at 00.53 hrs.  He was charged at 5.37 hrs. on 21 June 1995 with taking part in a prohibited assembly contrary to section 14A (5) of the Act (the charge was subsequently amended to refer to section 14B (2) of the Act).  He was detained for approximately 11 1/2 hours in total and was then taken before the magistrates and released on unconditional bail at 11.45 hrs. on 21 June 1995 (several hours after the summer solstice sunrise had taken place).

The applicant was tried before the Salisbury Magistrates' Court and acquitted on 13 September 1995.

B. Relevant domestic law

Section 14A of the Public Order Act 1986 (as amended by section 70 of the Criminal Justice and Public Order Act 1994) ("the Act") provides, so far as relevant, as follows:

"(1) If at any time the chief officer of police reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only a limited right of access and that the assembly-

(a) is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public's right of access and

(b) may result-

(i) in serious disruption to the life of the community, or

(ii) where the land, or a building or monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument,

he may apply to the council of the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or a part of it, as specified.

(2) On receiving such an application, a council may-

(a) in England and Wales, with the consent of the Secretary of State make an order either in the terms of the application or with such modifications as may be approved by the Secretary of State;

......

(5) An order prohibiting the holding of trespassory assemblies operates to prohibit any assembly which-

(a) is held on land to which the public has no right of access or only a limited right of access, and

(b) takes place in the prohibited circumstances, that is to say, without the permission of the occupier of the land or so as to exceed the limits of any permission of his or the limits of the public's right of access.

(6) No order under this section shall prohibit the holding of assemblies for a period exceeding 4 days or in an area exceeding an area represented by a circle with a radius of 5 miles from a specified centre.

(9) ...

"assembly" means an assembly of 20 or more persons."

Section 14B of the Public Order Act 1986 (as amended by section 70 of the Criminal Justice and Public Order Act 1994) provides, so far as relevant:

"(2) A person who takes part in an assembly which he knows is prohibited by an order under section 14A is guilty of an offence."

COMPLAINTS

The applicant complains that his rights under Articles 9, 10 and 11 of the Convention were violated, in that he was prevented from being present or carrying out a Druid ceremony at Stonehenge at the sunrise of 21 June 1995 and was arrested and detained in police custody.  He complains that the law in the United Kingdom failed to protect his rights sufficiently under Articles 9, 10 and 11 of the Convention. 

Further the applicant complains of a violation of Article 14 of the Convention, because by prohibiting all people from celebrating the summer solstice at Stonehenge, Druids were disproportionately discriminated against, since the summer solstice has particular significance for their beliefs. 

Finally, the applicant complains under Article 13 of the Convention that he had no remedy available to him in the law of the United Kingdom capable of effectively challenging the order made under the Act.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 November 1995 and registered on 7 May 1996.

On 20 May 1997 the Plenary Commission decided to transfer the application to it.

On 27 May 1997 the Commission decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 5 November 1997, after an extension of the time-limit fixed for that purpose.  The applicant replied on 6 March 1998, after two extensions of the time-limit. 

On 12 December 1997 the Commission granted the applicant legal aid.

THE LAW

1. The applicant complains that the order made under section 14A of the Act has denied him his right to freedom of religion, expression and assembly in breach of Articles 9, 10 and 11 of the Convention.

The Commission recalls that it has previously declared inadmissible a case concerning druidic access to Stonehenge (Chappell v. the United Kingdom, No. 12587/86, Dec. 14.7.97, D.R. 53, p. 241).  That case dealt principally with the complaints raised under Article 9 of the Convention, although it also considered the Article 11 issues.  In the present case, the Commission notes that the powers exercised by the police derived from the Public Order Act 1986 as amended, and those powers are concerned principally with limitations on certain types of assembly.  In the present case, the Commission will therefore deal with the case principally under Article 11 of the Convention, whilst having regard to Articles 9 and 10 of the Convention (see also No. 25522/94, Dec. 6.4.95, D.R. 81-A, p. 146, at p. 151).

 Article 11 of the Convention provides as follows:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society [inter alia] ... for the prevention of disorder or crime..."

The Government accept that the order interfered with the applicant's right to freedom of peaceful assembly, but contend that such interference was justified as pursuing a legitimate aim and being necessary in a democratic society.  In particular, they point out that the Act sets up a number of safeguards against an unnecessary resort to section 14A, namely the requirement that the Chief Constable, the local council and the Secretary of State must all agree on the order and its terms.  The order was necessary because the other powers in the Act did not provide adequate protection against a threatened mass invasion of private or public property by disorderly elements causing danger to the public or sections of it, resulting in disorder, to the detriment and damage of a prehistoric site of incalculable importance and resulting in interference with the rights and freedoms of members of the public.

The applicant underlines that Article 11 declares a right, but contends that that right is absent from domestic law.  He bases this contention on the findings in the case of DPP v. Jones and Lloyd ([1997] 2 All ER 119): the Divisional Court in that case held that use of the highway for purposes incidental to passage and repassage is limited where an order has been made under section 14A such that a peaceful assembly of 20 or more persons can become "trespassory".  An appeal against that decision is pending before the House of Lords. He considers that the question whether the order complies with the requirements of Article 11 para. 2 of the Convention does not arise because domestic law rests on the premise that no right to peaceful assembly exists in English law.

The Commission recalls that under Article 11 of the Convention, the right to freedom of peaceful assembly may only be restricted if such restrictions are "prescribed by law and are necessary in a democratic society [inter alia] ... for the prevention of disorder or crime ...".

The applicant's arrest and subsequent detention interfered with his right to freedom of peaceful assembly.

The Commission does not accept the relevance of the applicant's submissions as to the case of DPP v. Jones and Lloyd.  The question for the Commission is not whether or not domestic law contains a particular right (the Convention does not require incorporation of its substantive provisions into domestic law - see the Court's comments in the context of Article 13 in the case of James and others v. the United Kingdom, Series A no. 98, p. 47, para. 85), but rather whether the applicant's Convention right was respected.  The Commission notes that the applicant was ultimately not convicted before the Salisbury Magistrates Court, and that the case of DPP v. Jones and Lloyd was decided later.

 The Commission must therefore determine whether the interference with the applicant's rights was compatible with Article 11 para. 2 of the Convention.

The Commission recalls that a norm cannot be regarded as a "law" for the purposes of Article 11 para. 2 of the Convention unless it is "formulated with sufficient precision to enable the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail" (see, for a case in the context of Article 11 of the Convention, Eur. Court HR, Ezelin v. France judgment of 26 April 1991, Series A no. 202, p. 21, para. 45).  In the present case, the provisions of section 14A of the Act were known to the applicant, and they set up a clear procedure which had to be complied with before the order could be drawn up, involving input from the local council, the chief constable and the Secretary of State.  The applicant was able to make representations before the order was drawn up, and was able to challenge it in court before it entered into force.  Further, the order was limited in both time and space: it was valid for four days, and applied to an area of four miles around Stonehenge.  It has not been suggested in the present case that the police powers of arrest were not prescribed by law.

The Commission thus considers that the restriction on the applicant's freedom of assembly was "prescribed by law" within the meaning of Article 11 para. 2 of the Convention.

The Commission has no doubt as to the need to protect Stonehenge, and accepts that the disorder at the site in previous years and immediately before the order was made could justify steps of a preventive nature.  The aim pursued by the restriction was therefore compatible with Article 11 para. 2 of the Convention.

There remains the question of whether the steps taken were "necessary in a democratic society", that is, whether they were proportionate to the aim of preventing disorder, in particular given that the applicant himself (and his assembly) was not likely to create disorder, and given that he wished to use the site for the purpose for which it was in all likelihood originally intended.  Further, the applicant did not expect to have access to the site itself, but would have been content to remain close to the Hele Stone, on the verge of a trunk road and outside the perimeter fence of the monument.

The Commission accepts that the applicant's assembly would have been legitimate, and that the assembly was of a religious nature, such that Article 9 of the Convention may also be relevant.  However, as the Commission has held on a number of occasions, public order concerns may justify a prohibition in a given case (see, for example, No. 8440/78, Dec. 16.7.80, D.R. 21, p. 138, concerning a two month ban on public processions other than customary ones in London, or No. 25522/94, Dec. 6.4.95, D.R. 81-A, p. 146, concerning a general ban on demonstrations concerning Northern Ireland in Trafalgar Square, in London).  In the present case, as in the above-mentioned case of Chappell v. the United Kingdom, the Commission notes that there had been considerable disorder at Stonehenge in previous years and more recently (indeed, the facts of DPP v. Jones and Lloyd relate to a non-religious assembly in May 1995), and it cannot be considered to be an unreasonable response to prohibit assemblies at Stonehenge for a given period.  Whilst accepting that the limitations to the order (four days' restrictions for four miles around Stonehenge) do not benefit the applicant, the Commission must have regard to them in assessing the overall proportionality of the restriction on the applicant's Article 11 rights.  In this respect, the Commission notes that the ban did not affect groups of less than 20 persons and that it was open to the applicant to practise his religion or belief in a smaller group, even within the four mile exclusion zone.

Bearing all these factors in mind, the Commission considers that the interference with the applicant's right to freedom of assembly can reasonably be regarded as "necessary in a democratic society ... for the prevention of disorder" within the meaning of Article 11 para. 2 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

2. The applicant also complains that the prohibition on celebrating the summer solstice in the immediate vicinity of Stonehenge disproportionately affected Druids, for whom the summer solstice had particular significance and that this constituted discrimination in contravention of Article 14 of the Convention.

 Article 14 of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Commission notes that there is no evidence that Druids were treated in any way differently from any other groups of people wishing or attempting to observe the summer solstice in the vicinity of Stonehenge.  Whilst the Commission recognises that Druids may hold particular beliefs associated with the summer solstice, the Commission finds that the ban on observing the summer solstice in the vicinity of Stonehenge cannot be said to have had a disproportionate effect on Druids as opposed to other groups who wanted to observe the summer solstice due to different beliefs or purely secular reasons.  Nor does the Commission find any evidence of any discriminatory treatment of the applicant in connection with his arrest and detention.  Finally, the Commission recalls its decision in No. 12587/86 (cited above) where individuals and organisations interested in Stonehenge consulted with the authorities to try to find alternative solutions to the ban.  In the present case, the Commission notes the applicant has not suggested any alternative solution to the ban which could accommodate his religious needs without attracting massive groups of visitors likely to endanger Stonehenge.  In these circumstances, the Commission finds that there is no evidence of discrimination against the applicant in the enjoyment of his Convention rights.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

3. The applicant further complains that there was no possibility of effectively challenging the order made under the Act and this constituted a violation of Article 13 of the Convention.

Article 13 of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Commission recalls that the guarantees of Article 13 apply only to a grievance which can be regarded as "arguable" (cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).  In the present case, the Commission has rejected the substantive claims as disclosing no appearance of a violation of the Convention.  For similar reasons, they cannot be regarded as "arguable".

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. 

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                        S. TRECHSEL

         Secretary                                       President

      to the Commission                   of the Commission