Constitutional and Administrative Law - Freedom of assembly PDF

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Public Week 18 – Freedom of assembly The right to assembly is connected with the right to freedom of expression People might assemble for all sorts of reasons including the purely social but it is in relation to protest that the right to freedom of assembly assumes constitutional importance In 20...

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Public Week 18 – Freedom of assembly 

The right to assembly is connected with the right to freedom of expression

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People might assemble for all sorts of reasons including the purely social but it is in relation to protest that the right to freedom of assembly assumes constitutional importance

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In 2007 environmental activist broke in and caused £30,000 worth of damage to a power station but were acquitted at their subsequent criminal trial having convinced the jury that they had a lawful excuse for the action because it was intended to draw attention to and to prevent climate change

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Art 11 of the ECHR sets out the right of freedom of assembly and provides a benchmark against which to measure English law

Article 11 

Art 11.1 provides that everyone has the right to freedom of peaceful assembly

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Art 11.2 indicates how freedom of assemble may legitimately be restricted

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Conduct will fall within the protective effect of art 11 only if two conditions are met: the conduct must be a peaceful assembly this covers both private meetings and meeting on public thoroughfares as well as static meetings and public processions

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Art 11 does not however offer any protection to those who wish to engage I violent behaviour

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Assemblies will also be unprotected by art 11 to the extent that it is necessary in a democratic society to restrict such assemblies for any of the purposes set out in art 11.2

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Peaceful assembly must be permitted except and only to the extent that its restriction is necessary

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The right to protest is then a qualified right meaning that it must yield in the face of more compelling legitimate interests

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It is unacceptable for the state to stand by and refuse to take any steps to safe guard legitimate protestors interests against the unreasonable threatening or violent behaviour of others

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ECHR has held that art 11 imposes not only a negative obligation on states not to prohibited protests but also a positive obligation to facilitate peaceful protest

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Platform AFDL v Austria concerned an open air religious ceremony being held by ant abortion protestors that was interrupted by 500 counter demonstrators. The court held that the right to protest would be devalued If those with opposing views were effectively given an unlimited right to disrupt and thus deter such protests. The state

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was therefore positively obliged to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully 

The ECHR held that the Austrian authorities had taken all reasonable steps to protect the anti abortionists right to protests the fact that their ceremony had nevertheless been disrupted did not mean that the authorities had failed to do what was required of them

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Second because the stat is not under and absolute obligation to facilitate peaceful protests it may be lawful for the authorities to close down such a protest if it Is provoking others to respond with violence

Domestic law 

English law draws distinctions between conduct that is always unacceptable and that which is potentially acceptable – conduct amounting to riot and violence falls into this category

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There are two principle issues: 1. Is the distinction acceptably drawn between conduct that is absolutely prohibited and that which is in principle permitted by subject to regulation. At what point for instance does the disruption offence or disturbance caused by a given form of protest become so substantial as to warrants its prohibition 2. Is the regime of regulation supplied by English law satisfactory in terms of the balance it strikes between the competing rights and interests that are often in tension in this area

Prohibition of certain types of behaviour 

Part one of the public order act 1986 criminalises a number of forms of behaviour

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Offences under s1-3 are riot violent disorder and affray all of which involve the intentional or reckless sue or threat of unlawful violence such as to cause a person of reasonable firmness to fear for his personal safety

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Section 4 and 5 create offences concerning fear or provocation of violence intentional harassment alarm or distress

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Liability can arise only if the defendant has engaged in relevant conduct including threatening or abusive behaviour

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In Brutus v Cozens it was held that parliament had intended the phrase insulting behaviour to bear its ordinary meaning

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For criminal liability to arise not only must the person concerned engage in relevant conduct, the conduct must have a relevant impact

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Under s4 the conduct must make it likely that unlawful violence will be anticipated or provoked

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Harassment 

The protection from harassment act 1997 sets out three forms of behaviour that constitute criminal offences

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First s4.1 makes it an offence to:

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Pursue a course of conduct that causes another person to fear on at least two occasions that violence will be used against him

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Provided that the perpetrator knows or ought to know what his conduct will cause violence to be feared on each occasion

S1.1 says that an offence is committed when a person: 

Engages in a course of conduct that amounts to harassment of another person

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Provided that he knows or ought to know that the course of conduct amounts to harassment

S1.1a says that an offence occurs when a persons: 

Engages in a course of conduct that involves harassment of two or more person

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Knows or ought to know that the course of conduct involves harassment

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Intends to persuade someone not to do something that he is entitled or required to do or to do something he is not obliged to do

Statutory powers to regulate protests Regulating public assemblies 

Section 14 of the public order act 1986 gives the police certain powers to regulate public assemblies

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Powers only apply when three conditions are met: 1. The gathering is of two or more persons 2. It occurs in a public place 3. It takes place wholly or partly in the open air

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The power to regulate public assemblies is only triggered in certain circumstances

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The relevant police officer must reasonably believe one of the following things: 1. The assembly may result in serious public disorder serious damage to a poet or serious disruption to the life of the community

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2. The organisers purpose is to intimidate people in order to compel them not to do something that they have a right to do or to do something that they have a right not to do 

If at least one of those criteria is met the relevant police officer may set conditions concerning the location of the assembly its duration and how many people may take part

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It is a criminal offence to organise or take part in a public seemingly and knowingly fail to comply with such a condition

Prohibiting trespasser assemblies 

The power under s14 does not extend to banning public assemblies

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S14c allow steps to be taken to ban and to criminalise the organisation of an participating in trespassory assemblies

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S14 only applies to gatherings of 20 or more persons

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The power only applies to land in the open air to which the public has no or only a limited right of access. This means that the s14 power does not extend to gatherings on common land to which the public has an unlimited right of access

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The head of the relevant police force must reasonably believe that the assembly is likely to be held without the permission of or in breach of terms laid down by the occupier of the land and that the assembly will result in serious disruption to the life of the community or significant damage to land a building or a moment that is historically architecturally or scientifically important

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S14a prohibition mat be imposed only with the agreement of secretary of state and the local authority

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A persons commits a criminal offence by taking part in or organising an assembly prohibited under a s14a – orders only have the effect of prohibiting assemblies to the extent that they constitute trespass

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If the protestors have a right to be on the land or have the permission of the occupier of the land to be there the s14a order does not prohibit the protest

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In Jones the HOL had no difficulty in concluding that he conduct at stake in that case was perfectly reasonable that the defendants had not therefore exceeded their right to be present on the highway and that they had not committed the offence of taking part in a prohibited trespassory assembly

Public spaces protection orders 

Public space protection orders were introduced by the anti social behaviour crime and policing act 2014

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Such an order can be made by local authorities if both of the following conditions are satisfied: 

Activities have occurred in a public place that have had a detrimental effect on the quality of life of those in the locality

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The effect of the activities is persistent or continuing in nature in such as to make the activities unreasonable and justifies the restrictions in question

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If those conditions are met and the local authority makes a PSPO it can thereby prohibit specified things from being done in the relevant area and or require people to do specified things when undertaking specified activities

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PSPOs can remain in force for three years

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Breaching them without reasonable excuse is a criminal offence

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PSPOs are concerned with matter such as dog fouling and the consumption of alcohol

Demonstrations near the palace of Westminster 

S123-8 of the serious organised crime and police act 2005 made it a criminal offence to organise or participate in a demonstration within a kilometre of parliament square unless the proper permission of the police was obtained

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Failure to comply is a criminal offence – this meant that is was possible to criminalise protests at particular locations

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The inappropriateness of the restrictions imposed by s132-8 of the 2005 act was recognised by the coalition government following the 2010 election and those provisions were repealed by the police reform and social responsibility act 2011

Regulating and prohibiting processions 

The legal regime for regulating public processions is contained in s11-13 of the public order act 1986

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It differs in two key aspects from that which applies to assemblies:

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There is no requirement to give the police notice of an assembly it is normally necessary to give the police advanced notice of processions that are intended to demonstrate support for or opposition to a particular view to publicise a cause or campaign or to mark or commemorate an event. The notice must include details such as processed dates times and route. Organisers of processions commit a criminal offence if the procession goes ahead without such notice having been given or if the timing or route of the procession differs from that specified in the notice given to the police

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There is a power to ban public processions. The power can only be exercised if the head of the relevant police force reasonably believes that the imposition

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of conditions will be insufficient to prevent serious public disorder and the agreement of the home secretary and the local authority is needed Breach of the peace 

A breach of the peace is something that disturbs the peace

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It means something that interferes with the normal state of affairs in which members of the community love together peaceably

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The definition is set out in R v Howell – a breach of the peace arises whenever any one of the following three things occur or is likely to occur as a result of violence:

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A persons is injured

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A person fears being injured

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A person property is damaged in his presence

Breach of the peace is not itself an offence but it triggers police powers to intervene in relation to those who are causing the breach

When may the police intervene? 

In Duncan v Jones it was held that the police had acted lawfully and within the scope of their duty by requiring a protestor to desist

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The police may only arrest for breach of the peace if all the following conditions are satisfied: 

The person is acting unreasonably

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The natural consequence of his conduct is violence from a third party

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That violence is not wholly unreasonable

What can the police do? 

At common law the police possess powers to arrest and detain people in order to prevent or stop a breach of the peace

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In Moss v Mchlaughlin it was held that in the course of the stroke the police had been entitled to do as they had done provided that they honestly and reasonably formed the opinion that there is a real risk of a breach of the peace in the sense that it is in close proximity both in place and time then the conditions exist for reasonable preventative action including if necessary the measures taken in this case

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Laporte is now the leading case it concerned three coachloads of people travelling from London towards an airbase at which they planned to participate in a protest against the was in Iraq. The police stopped the coaches 5km from the airbase, having searched the coaches the police ordered the coaches and their occupants to turn back. It was held that the police had acted unlawfully

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Only when the police have reasonable grounds to believe that a breach of peace is imminent may they exercise such powers

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In Laporte when they stopped the coaches they did not think a breach of peace was imminent

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It was said that even if intervention were to have been permissible the police would have been unable to show that their reaction had constituted a necessary and proportionate limitation of the right to protest

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It was unreasonable to assume that the people on the coach would have become involved in violent confrontations upon arrival

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In the case of Austin the COA held that the detention for several hours of innocent third parties was lawful because in the exceptional circumstances of the case nothing less drastic would have sufficed to prevent an imminent breach of the peace

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People can be arrested for breach of the peace

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However there is no criminal offence of breach of peace, prosecution is only possible if the person can be charged with something that constitutes a substantive criminal offence such as resisting or wilfully obstructing a police constable in the execution of his duty

Evaluation 

It has been argued that the existence of the polices breach of the peace powers is incompatible with the requirements of the ECHR

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The definition of breach of the peace refers to damage or harm to persons or property but does not clearly identify the severity of the required damage or harm.

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Case law does not clearly specify the degree of likelihood necessary to trigger a breach of the peace.

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Concerns about the breadth of the police’s breach of the peace powers are potentially rendered less pressing by the fact that such powers now have to be exercised compatibly with the ECHR.

Article 5 

A person is not deprived of liberty simply because he is not permitted to enter or protest in a particular place.

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The right to freedom of assembly is rendered largely worthless if protestors can lawfully be corralled into a small area and required to remain there for several hours – kettling – it prevents precisely the kind of interaction between protestors and the wider public that makes demonstrations worthwhile.

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It has been argued that kettling constitutes an unlawful deprivation of liberty and should not therefore be used to restrict the right to protest.

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Austin v Commissioner of Police of the Metropolis – the police had good reason to expect that serious public disorder would occur in central London. 3,000 people were penned into Oxford Circus and prevented from leaving for 7 hours. This included many who had done nothing wrong – the police released 400 people who appeared to have nothing to do with the demonstration.

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When courts decide issues under Art 5, ask themselves: 

Has C been deprived of her liberty?

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If so, is that action rendered lawful by virtue of falling within one of the particular circumstances in which deprivation of liberty is permissible under Art 5?

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Maintaining public order is not one of the purposes for which deprivation of liberty may lawfully occur.

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The court held that, in the first place, 7 hours detention in Oxford Circus did not amount to deprivation of liberty – it did not compare to a prison cell.

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Factors relevant to determining whether it was deprivation of liberty: 

The specific situation of the individual

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The context in which the restriction of liberty occurs

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The extent to which it deviates from the paradigm of imprisonment

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Suggested that a restriction upon movement should not automatically be equated to a deprivation of liberty.

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The Court took the view that the police were acting for the legitimate purpose of attempting to prevent serious violence and disorder.

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On the court’s reasoning, whether something counts as a deprivation of liberty depends, in part, on whether the supposed ‘deprivation’ is being imposed for a legitimate purpose.

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The conclusion was based on a misunderstanding of ECtHR case law.

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In Saadi v UK – ECtHR held that if a detention is arbitrary – if it goes on for longer than is necessary or imposed in bad faith, then it will automatically convene Art 5.

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Art 5 guarantees freedom from deprivation of liberty, save in the specific circumstances listed in the Article, and even then only if the action is non-arbitrary – NOT that it guarantees freedom from...