. 146
( 155 .)


required ˜a special quality of protection™ by reason of the ˜grave and possibly
fatal consequences™ which would be likely to follow from publication.
It was also clear to the judge that the restriction was necessary in a democratic
society to satisfy a strong and pressing need, since she was satis¬ed on the evi-
dence that there was a real possibility that publication would expose the claimants
to revenge attacks, violating their rights under Articles 2 and 3. The grant of
the injunctions would substantially reduce that risk and was proportionate to the
legitimate aim pursued, in particular since newspapers could not otherwise
be relied upon not to publish information about the identity or addresses of
the claimants. (The injunctions might not have been appropriate, said the judge,
796 British Government and the Constitution

if it had been only Article 8 that was likely to be breached.) Injunctions were
accordingly granted contra mundum “ against the whole world, prohibiting the
disclosure of information which would reveal the identity or whereabouts of
the claimants.

4 Freedom of assembly
˜The freedom to demonstrate one™s views in public “ within the law “ is funda-
mental to a democracy™ (Review of the Public Order Act 1936, Cmnd 7891/1980,
para 36). As Tugendhat J stated in Austin v Metropolitan Police Commissioner
[2005] EWHC 480, [2005] HRLR 20, [80]:

Political demonstrations have long been a central feature of [British] life. Before the exten-
sion of the franchise in the nineteenth century they were the only means by which the public
could make known their views. But they were generally treated as rebellions, whether they
were violent or not. Out of the upheavals in the 16th and 17th centuries there came to be
recognised a right of free speech and a free assembly. There are repeated re-affirmations by
the Courts of the importance of these rights in a democracy. Large modern democracies
operate through representation and elections. Political demonstrations are one of the few
ways that members of the public can impress upon their representatives and upon candi-
dates the importance of issues in which they might otherwise not take an interest.

(See further on this case, below). Lord Scarman, in his Report on the Red Lion
Square Disorders of 15 June 1974 (Cmnd 5919/1975) numbered amongst our
˜fundamental human rights™ the rights of ˜peaceful assembly and public protest™
(at 1). Freedom of assembly bears a close relation to freedom of speech, for in
the constitutional context our concern is with assemblies held to further a polit-
ical campaign or to mount a public protest: such assemblies have the purpose
of communication, by argument, pressure or persuasion.

Frederick Schauer, Free Speech: A Philosophical Enquiry (1982),
pp 201“2

Much speech takes place in settings in which the only issues as to regulation are those that
relate to the content of the communication. Whether we should regulate matter appearing
in books, newspapers, and Hyde Park Corner orations, for example, is determined by what
is said, and our estimation of the dangers that might flow from the particular communica-
tive content of the speech.
Traditionally, these concerns with content have constituted the only important free speech
questions. But as speech has moved into new settings, new considerations not related to
content have appeared. When people communicate by picketing, through the use of demon-
strations or in parades, interests not related to the content of the communication are
implicated. Parades interfere with the flow of traffic, demonstrations may prevent people
797 Liberty and the constitution

from going where they wish to go, and picketing may interfere with the operation of a busi-
ness or office. All of these are legitimate concerns. Yet these settings for communication are
becoming increasingly prevalent in contemporary society. Reconciling the free speech inter-
ests with the acknowledged importance of traffic- and crowd-control has as a result become
an increasingly important problem for free speech theory.
It is tempting to say that this type of communication is less important. Communication by
parades, demonstrations and picketing is more emotional than intellectual, and more fully
argued statements of the positions involved are available in books, newspapers, magazines
and other less obstructive communicative formats. If we cut off ˜speech in the streets™, there
remain readily available alternative forums, and there is little danger that some ideas will
remain unsaid. Indeed, restricting speech of this type may well support some of the values
protected by a system of freedom of speech, by forcing communication into channels more
conducive to rational argument and deliberation, thereby increasing the overall level of
civility in public discourse.
Acceptance of such a position, however, requires that we ignore an important phenome-
non in contemporary communication. When people first started talking and writing about
freedom of speech and freedom of the press, there existed only a few forums for commu-
nication. There was no radio or television or cinema, few newspapers, few periodicals, and
comparatively few political tracts published for private distribution. It was not at all
unreasonable to assume that a mildly expressed and closely reasoned political or social or
theological argument would in fact be read or heard by most people having any interest in
such matters. But now, with radio, television and film, with almost innumerable newspapers,
magazines, books and pamphlets, and with so many people speaking out on so many
different subjects, there is perhaps ˜too much™ speech, in the sense that it is impossible to
read or hear even a minute percentage of what is being expressed. There is a din of speech,
and our limited capacity to read or to hear has resulted in effective censorship by the
proliferation of opinion rather than by the restriction of opinion. We learn no more from a
thousand people all speaking at the same time than we learn from total silence.
Under such circumstances it is frequently necessary, literally or figuratively, to shout to be
heard. One method of gaining a listener™s attention is by the use of offensive words or
pictures. Another, more relevant here, is through the use of placards, large groups of people,
loud noises and all the other attention-getting devices that are part of parades, picketing
and demonstrations. To restrict these methods of communication is to restrict the effective-
ness of speech, and also to restrict the extent to which new or controversial ideas may be
brought to the attention of potential listeners.
Moreover, important free speech values are served by emotive utterances. This is most
apparent under the catharsis argument [discussed by the author in chapter 6 of his book].
But it is equally important under the argument from democracy. As a voter I am interested
not only in what others feel about a certain issue, but also in how many people share that
view, and in how strongly that opinion is held. As a public official I am equally concerned
(or should be) with gauging the extent and the strength of public opinion. In addition,
freedom of speech serves a legitimizing function, in holding that people should be bound
by official policy if they have had, through speech, the opportunity to participate (even if
798 British Government and the Constitution

unsuccessfully) in the process of formulating official policy. In terms of this function, parades,
picketing and demonstrations are a way of attempting to influence official policy and are
thus a part of the total process.
I am not arguing that parades, demonstrations and picketing should always be protected.
Nor am I arguing that there are not good reasons for restricting speech when it takes these
forms. What I am arguing is that there are good reasons for recognizing this type of speech
as being important, and that there seem to be no good reasons for relegating these forms
of communication to some inferior status in the free speech hierarchy. The question is not
one of balancing a less legitimate form of speech against legitimate governmental interests
in peace and order, but rather is one of balancing an important and legitimate form of com-
munication against important and legitimate governmental interests. When so formulated
the problem is a difficult one, but one that is fortunately slightly more susceptible to ratio-
nal resolution than some other free speech problems.

See too Eric Barendt™s discussion of the value of freedom of assembly in
J Beatson and Y Cripps, Freedom of Expression and Freedom of Information
(2000), pp 165“9, suggesting that freedom of assembly is also important for
other values than freedom of speech, as in enabling unrepresented groups in
society to participate in political activity.

(a) Common law: the classic authorities
˜It can hardly be said™, remarked Dicey (Law of the Constitution (1885), p 271),
˜that our constitution knows of such a thing as any speci¬c right of public
meeting™. On the other hand, he went on to say, if persons holding a meeting
did not break the law they could not, as a general rule, be required by the
authorities to disperse. This is the traditional view of constitutional ˜rights™ as
merely residual liberties. The potential strength of this approach was famously
illustrated in the following case.

Beatty v Gillbanks (1882) 9 QBD 308 (DC)
The Salvation Army were in the habit of marching in procession through the
streets of Weston-super-Mare. Their objectives were peaceable but they were
accompanied by vociferous supporters and opposed by a militant organisation,
the Skeleton Army, which on several occasions violently resisted their passage,
causing outbreaks of disorder on the streets. Local magistrates published a
notice ordering all persons ˜to abstain from assembling to the disturbance of the
public peace™, but on the following Sunday the Salvationists set out as usual, and
as usual were followed by a large and noisy crowd. The police met the proces-
sion and told Beatty, one of the leaders, that they must obey the magistrates™
notice and disperse. Beatty refused and, the march continuing, he and other
leaders were arrested. None of them had committed acts of violence, but on
being brought before justices of the peace they were found to have unlawfully
799 Liberty and the constitution

and tumultuously assembled and were bound over (required to ¬nd sureties to
keep the peace) for twelve months. They appealed by way of case stated to the
Divisional Court, which gave judgment for the appellants.

Field J: I am of opinion that this order cannot be supported. The matter arises in this way.
The appellants have, with others, formed themselves into an association for religious
exercises among themselves, and for a religious revival, if I may use that word, which they
desire to further among certain classes of the community. No one imputes to this associa-
tion any other object, and so far from wishing to carry that out with violence, their opinions
seem to be opposed to such a course, and, at all events in the present case, they made no
opposition to the authorities. That being their lawful object, they assembled as they had
done before and marched in procession through the streets of Weston-super-Mare. No one
can say that such an assembly is in itself an unlawful one. The appellants complain that in
consequence of this assembly they have been found guilty of a crime of which there is no
reasonable evidence that they have been guilty. The charge against them is, that they unlaw-
fully and tumultuously assembled, with others, to the disturbance of the public peace and
against the peace of the Queen. Before they can be convicted it must be shewn that this
offence has been committed. There is no doubt that they and with them others assembled
together in great numbers, but such an assembly to be unlawful must be tumultuous and
against the peace. As far as these appellants are concerned there was nothing in their
conduct when they were assembled together which was either tumultuous or against the
peace. But it is said, that the conduct pursued by them on this occasion was such, as on
several previous occasions, had produced riots and disturbance of the peace and terror to the
inhabitants, and that the appellants knowing when they assembled together that such con-
sequences would again arise are liable to this charge.
Now I entirely concede that every one must be taken to intend the natural consequences
of his own acts, and it is clear to me that if this disturbance of the peace was the natural
consequence of acts of the appellants they would be liable, and the justices would have been
right in binding them over. But the evidence set forth in the case does not support this
contention; on the contrary, it shews that the disturbances were caused by other people
antagonistic to the appellants, and that no acts of violence were committed by them.
In Hawkins™ Pleas of the Crown, s 9, it is said, ˜An unlawful assembly according to the
common opinion is a disturbance of the peace by persons barely assembling together with
the intention to do a thing which if it were executed would make them rioters, but neither
actually executing it nor making a motion toward the execution of it.™ On this definition,
standing alone, it is clear that the appellants were guilty of no offence, for it cannot be
contended that they had any intention to commit any riotous act. The paragraph, however,
continues thus, ˜But this seems to be much too narrow a definition. For any meeting what-
ever of great numbers of people, with such circumstances of terror as cannot but endanger
the public peace and raise fears and jealousies among the king™s subjects, seems properly to
be called an unlawful assembly, as where great numbers, complaining of a common griev-
ance, meet together, armed in a warlike manner, in order to consult together concerning the
most proper means for the recovery of their interests; for no man can foresee what may be
the event of such an assembly.™ Examples are then given, but in each the circumstances of
800 British Government and the Constitution

terror exist in the assembly itself, either in its object or mode of carrying it out, and there is
the widest difference between such cases and the present. What has happened here is that
an unlawful organisation has assumed to itself the right to prevent the appellants and others
from lawfully assembling together, and the finding of the justices amounts to this, that a
man may be convicted for doing a lawful act if he knows that his doing it may cause another
to do an unlawful act. There is no authority for such a proposition, and the question of the
justices whether the facts stated in the case constituted the offence charged in the infor-
mation must therefore be answered in the negative.

Cave J concurred.

Even if the reasoning of Field J on the question of the causation of the disorder
was somewhat super¬cial (see Bevan [1979] PL 163, 178; M Supperstone,
Brownlie™s Law of Public Order and National Security (2nd edn 1981), pp 126“7),
the case stands as a beacon, in upholding the legality of peaceful public assem-
bly and the principle that a gathering does not become unlawful because other
persons are so in¬‚amed by it as to commit acts of violence. The dictum of
O™Brien J in R v Londonderry Justices (1891) 28 LR Ir 440, 450, is consistent with
this principle:

If danger arises from the exercise of lawful rights resulting in a breach of the peace, the
remedy is the presence of sufficient force to prevent that result, not the legal condemnation
of those who exercise those rights.

Although only rarely since applied by the courts (and more often distinguished,
as in O™Kelly v Harvey (1883) 10 LR Ir 285 and Wise v Dunning [1902] 1 KB 167),
the principle of Beatty v Gillbanks has never been overthrown, has continued to
inform public discussion (as in Lord Scarman™s Report on The Red Lion Square
Disorders of 15 June 1974, Cmnd 5919/1975, paras 69“70) and has, in general,
guided public authorities in the use of their discretionary powers “ for example,
to ban the holding of processions (now under section 13 of the Public Order Act
1986): see Gearty, in C McCrudden and G Chambers (eds), Individual Rights
and the Law in Britain (1994), p 55.
Beatty v Gillbanks, it has been remarked, ˜is essentially concerned with prior
control, in the form of formal restraining orders imposed by courts or admin-
istrators or by the police, rather than with the duty or power of police o¬cers
responding instantly to actual threats to the public peace™ (DGT Williams, in
A Doob and E Greenspan (eds), Perspectives in Criminal Law (1985), p 116).
Persons taking part in peaceful public processions or meetings have had to
submit to directions given by police on the spot in exercising their preventive
powers to preserve the peace. This quali¬cation (or is it more than a
˜quali¬cation™?) of the Beatty v Gillbanks principle was ¬rmly embedded in the
law by the decision in Duncan v Jones (below) and the two precedents have
endured in uneasy misalliance since that time.
801 Liberty and the constitution

Duncan v Jones [1936] 1 KB 218 (DC)
Mrs Duncan was about to address a meeting in the street opposite the entrance
to an unemployed training centre. After a meeting addressed by her in the same
place fourteen months previously, a disturbance had taken place inside the
centre. On this occasion police o¬cers, reasonably believing “ it was afterwards
found “ that a breach of the peace might again occur, told Mrs Duncan that the
meeting must not be held in that place but might instead be held in another
street nearby. When she insisted on addressing those present, she was arrested
and subsequently convicted by magistrates of the statutory o¬ence of obstruct-
ing a constable in the execution of his duty. Mrs Duncan appealed to the
Divisional Court.

Lord Hewart CJ: There have been moments during the argument in this case when it
appeared to be suggested that the Court had to do with a grave case involving what is called
the right of public meeting. I say ˜called,™ because English law does not recognise any special
right of public meeting for political or other purposes. The right of assembly, as Professor
Dicey puts it, is nothing more than a view taken by the Court of the individual liberty of the
subject. If I thought that the present case raised a question which has been held in suspense
by more than one writer on constitutional law “ namely, whether an assembly can properly
be held to be unlawful merely because the holding of it is expected to give rise to a breach


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( 155 .)