<<

. 149
( 155 .)



>>

ditions or to ban processions under these statutory provisions are in principle
open to judicial review. It might be contended that the decision was reached on
irrelevant grounds or was ˜unreasonable™ (irrational or perverse), but in matters
813 Liberty and the constitution


of such problematical judgement these defects are not easily established. A chal-
lenge on the ground of unreasonableness to a banning order (made under
the provisions of the previous Public Order Act 1936) was unsuccessful in
Kent v Metropolitan Police Commissioner, The Times, 15 May 1981. (See further
Had¬eld, ˜Public order, police powers and judicial review™ [1993] Crim LR 915.)
A challenge under the Human Rights Act 1998 would, however, be mounted on
a di¬erent basis, and in particular (1) the onus would rest on the public author-
ity to justify the restriction or ban imposed; and (2) even though the restriction
might survive a challenge based on irrationality, the more stringent require-
ment of proportionality has now to be met by virtue of Article 11(2).
A decision to restrict or ban will not necessarily be found to be incompatible
with the Convention right of freedom of assembly. A general ban on processions
in London for a period of two months, imposed under the 1936 Act, was held
by the European Commission of Human Rights to be justi¬ed in terms of
Article 11(2) as being necessary for the prevention of disorder, even though pro-
cessions with peaceful objectives were caught by the ban: Christians against
Racism and Fascism v United Kingdom (1980) 21 DR 138. The necessity for any
such ban would, however, have to be assessed by the courts with reference to the
particular circumstances and with due regard to the principle that it should not
be a disproportionate response to the threat of disorder.
The Criminal Justice and Public Order Act 1994 introduced new restrictions,
applicable in speci¬ed circumstances to persons who trespass on land. Section
68 created an o¬ence of aggravated trespass, committed by trespassers whose
actions are intended to intimidate, obstruct or disrupt any lawful activity on the
land. This provision was principally aimed at hunt saboteurs and those who
disrupt events such as the Grand National. The generality of the provision may,
however, present a threat to non-violent protesters against, for example, road
schemes or destruction of trees or intensive livestock rearing. Section 70, intro-
ducing a new section 14A into the Public Order Act 1986, extended the banning
power “ previously limited to public processions “ to trespassory assemblies (of
twenty or more persons) which may result in ˜serious disruption to the life of
the community™ or in signi¬cant damage to land or buildings of historical,
architectural, archaeological or scienti¬c importance. A chief o¬cer of police,
reasonably believing that such disruption or damage may occur, may apply to
the district council for an order prohibiting, for a speci¬ed period, the holding
of all trespassory assemblies in the district or part of it, and the council may then
make such an order (with or without modi¬cations) if the Secretary of State
gives consent. (In London the Metropolitan Police Commissioner may himself
make a like order with the consent of the Secretary of State.) This provision was
targeted at the sort of mass trespass that had taken place at Stonehenge, but
again a much wider range of activities may fall within the broad terms of
the section.
Enacted as a response to particular public order and policing di¬culties
which it was thought could not be overcome by using the existing law, these
814 British Government and the Constitution


provisions of the Criminal Justice and Public Order Act confer far-reaching dis-
cretionary powers on the police and e¬ect a further encroachment upon
freedom to protest. Consider what Peter Thornton, chairman of the Civil
Liberties Trust, wrote with reference to the Act (The Times, 8 March 1994):

Public protest is designed to inform, persuade and cajole. It may be a nuisance; it may be
intended to be. It is often noisy and inconvenient. But it should not be banned or curbed;
nor should peaceful protestors be put at risk of prosecution.

When a meeting or procession is held, for greatest e¬ect, in the streets, the
limits of lawful conduct by those attending are narrow and uncertain. Lord
Scarman said in his Report on the Red Lion Square Disorders of 15 June 1974
(Cmnd 5919/1975), p 38, that here too the right to demonstrate ˜of course
exists, subject only to limits required by the need for good order and the passage
of tra¬c™. But the restrictions are potentially far-reaching. Those attending a
meeting on the highway are at risk of committing the o¬ence of wilful obstruc-
tion of the highway, contrary to the Highways Act 1980, section 137. They may
also be guilty of public nuisance: see the restrictive judgment of Forbes J in
Hubbard v Pitt [1976] QB 142. A right to assemble on the highway was given
a quali¬ed recognition in the following case.


Director of Public Prosecutions v Jones [1999] 2 AC 240 (HL)
The defendants were among a group of protesters, more than twenty in number,
who had gathered on the grass verge of a public highway adjacent to the perime-
ter fence of Stonehenge. The local council had made an order under section 14A
of the Public Order Act 1986 prohibiting trespassory assemblies in an area
which included Stonehenge and the place in which the demonstration took
place. The protesters were peaceful and, although the grass verge was part of the
public highway, it was found as a fact that they had not caused an obstruction.
The defendants were charged with taking part in a trespassory assembly pro-
hibited under section 14A and were convicted. Their conviction was upheld by
the Divisional Court and they appealed to the House of Lords.
The defendants were plainly guilty of the o¬ence if their conduct in gather-
ing on the highway constituted a trespass. The appeal raised the question of the
extent of the public™s right to use the public highway: the Divisional Court had
ruled that a non-obstructive, peaceful assembly, such as had taken place on this
occasion, exceeded the public™s right and so must necessarily be trespassory.
One interpretation of earlier case law was that the highway might be used by the
public only ˜to pass and repass™ and at most to do anything incidental or ancil-
lary to the right of passage (eg stopping to consult a street map or to have a rest).
This was the view preferred by the minority (Lords Slynn and Hope) in the
House of Lords. Standing or sitting on the highway in order to demonstrate had
815 Liberty and the constitution


nothing to do with use of the highway for passing and repassing and accordingly
must be a trespass. The majority (Lords Irvine LC, Clyde and Hutton) derived
a wider principle from earlier decisions: any reasonable and usual mode of
using the highway is lawful, provided that it is consistent with the general
public™s right of passage. (What is reasonable or usual ˜may develop and change
from one period of history to another™, observed Lord Clyde.) This conclusion
was expressed as follows by Lord Irvine LC:

I conclude . . . the law to be that the public highway is a public place which the public may
enjoy for any reasonable purpose, provided the activity in question does not amount to a
public or private nuisance and does not obstruct the highway by unreasonably impeding the
primary right of the public to pass and repass; within these qualifications there is a public
right of peaceful assembly on the highway.

It was held by the majority that an assembly on the highway was not necessar-
ily unlawful; the ruling of the Divisional Court to the contrary was wrong;
the assembly in this case had not exceeded the limits of lawful public use of the
highway. The defendants™ appeal was accordingly allowed.
It was a somewhat unusual feature of this case that the assembly was held on
a part of the highway “ the grass verge “ not normally used for public passage.
Had the protesters assembled on the part of the highway along which people
passed the result might have been di¬erent. The requirement that a gathering
on the highway must be non-obstructive leaves little room for a public right to
assemble there.
DPP v Jones was decided before the Human Rights Act 1998 had come into
force. The matter should now be approached from the standpoint of the right
of assembly assured by Article 11 of the European Convention. The decision of
the House of Lords is doubtless consistent with the result that would be required
by an application of Article 11 to the same facts, but the Convention right may
be more strongly forti¬ed (by the strict limits placed by Article 11(2) upon
restrictions of the right) than the quali¬ed right admitted by the House of
Lords. (See further Fenwick and Phillipson, ˜Public protest, the Human Rights
Act and judicial responses to political expression™ [2000] PL 627.)
Appleby v United Kingdom (2003) 37 EHRR 38 concerned a peaceful protest
not on the highway but in a privately owned public space “ a shopping mall that,
since its construction, formed the centre of a particular town. Protesters wanted
to collect signatures for a petition arguing that the only remaining public
playing ¬eld near the town centre should not be built on, as the local council
was apparently planning. The manager of the shopping mall refused to allow
the protesters to collect signatures in the mall. The European Court of Human
Rights held that this ban constituted an infringement of neither Articles 10
nor 11. Three reasons were furnished: ¬rst, the property rights of the shopping
mall owner needed to be borne in mind; secondly, Articles 10 and 11 do not
816 British Government and the Constitution


bestow any freedom of forum for the exercise of their rights, and thirdly, the
restriction on the protesters™ ability to communicate their views was limited to
the entrance areas and passageways of the mall “ they were not prevented from
obtaining permission from the individual businesses within the mall, nor from
distributing lea¬‚ets and collecting signatures outside the mall. (For an excellent
analysis, see Rowbottom, ˜Property and participation: a right of access for
expressive activities™ [2005] EHRLR 186.)
The need to balance freedom of assembly and public order has arisen in an
acute form in Northern Ireland. Traditional parades held in the ˜marching
season™, although often taking place peacefully, have sometimes been, or have
been perceived as being, triumphalist and intimidatory, and on some occasions
have resulted in serious public disorder. The Public Processions (Northern
Ireland) Act 1998 made a fresh attempt to deal with the problem, with an
emphasis on fostering local agreement on contested parades. The Act estab-
lished an independent body, the Parades Commission for Northern Ireland,
which has a duty ˜to promote and facilitate mediation as a means of resolving
disputes concerning public processions™ (s 2(1)(b)). The Commission issues a
code of conduct applicable to public processions and to meetings of protesters
against them, and has power to impose conditions on persons organising or
taking part in a procession, having regard not only to considerations of public
order but to ˜any impact which the procession may have on relationships within
the community™. In the last resort processions can be prohibited by the
Secretary of State (s 11). (See generally www.paradescommission.org/.)
The Public Order Act 1986 contains a series of o¬ences criminalising various
actions and forms of behaviour that may catch protesters. The more serious
o¬ences of riot, violent disorder, a¬ray and fear or provocation of violence
(ss 1“4) are relatively unobjectionable, but it is the more minor o¬ences which
may be said to blur the line between the criminal and the merely irritating.
Demonstrators whose conduct inclines simply to the boisterous may fall foul of
section 5 of the Public Order Act 1986, which makes it an o¬ence to use threat-
ening, abusive or insulting words or behaviour, or disorderly behaviour, which
is likely to cause (not necessarily actually causing) harassment, alarm or distress
to another who is within sight or hearing. The Government itself remarked of
this o¬ence when ¬rst proposing it that it was ˜not easy to de¬ne the o¬ence in
a manner which conforms with the normally precise de¬nitions of the criminal
law™ (Review of Public Order Law, Cmnd 9510/1985, para 3.26; see further,
Geddis, ˜Free speech martyrs or unreasonable threats to social peace?™ [2004]
PL 853). ATH Smith, O¬ences Against Public Order (1987), p 117, says of this
provision:


Because of the potential breadth of the language in which the section is drafted, it affords
scope for injudicious policing; considerable common sense and restraint on the part of the
police will be called for in the application of the section.
817 Liberty and the constitution


Anti-social behaviour legislation has also been used to police protests.
Section 30 of the Anti-social Behaviour Act 2003 gives the police the power to
order the dispersal of groups of persons in cases where members of the public
have been ˜intimidated, harassed, alarmed or distressed™. This power is available
only where a senior o¬cer has given an ˜authorisation™ that the power will be
exercisable in a certain locality and for a certain period of time. Two such autho-
risations had been made in respect of particular streets in central Birmingham.
The anti-social behaviour in connection with which the authorisations had
been made related to drunken city-centre revelry in the lead-up to Christmas
and to skate-boarding. A group of Sikhs protested against the performance of a
play, Behzti, at the Birmingham Repertory Theatre, which is located within the
area to which the authorisations applied. When the police relied on their section
30 powers to order the protesters to disperse, the protesters objected on the basis
that the authorisations required under section 30 had been made in respect of
behaviour that was wholly unconnected to their protest. They argued that the
section 30 regime should be strictly construed as relating to persistent problems
of anti-social behaviour and should not be applied to public protests, to which
the regime of the Public Order Act 1986 instead applies. They further argued
that the order to disperse was disproportionate. These arguments were rejected
by the Court of Appeal, which upheld the legality of the police actions: see
R (Singh) v Chief Constable of West Midlands Police [2006] EWCA Civ 1118,
(2006) 156 NLJ 1400. (Note that Scotland has its own legislation in this area: see
the Antisocial Behaviour (Scotland) Act 2004.)
In addition to the Public Order Act and the anti-social behaviour legislation,
a considerable range of criminal legislation has been added to the statute book
since 1997 in an attempt, in particular, to respond to the intimidatory and
sometimes violent tactics employed by militant animal rights protesters. Note
in particular the Protection from Harassment Act 1997 and provisions of
the Criminal Justice and Police Act 2001 (s 42) and of the Serious Organised
Crime and Police Act 2005 (see, especially, sections 125“7 and 145 of the 2005
Act; note too sections 132“8 of that Act, regulating demonstrations in the
vicinity of Parliament, on which see R (Haw) v Secretary of State for the Home
Department [2006] 3 WLR 40, considered above, pp 735“7). On the Protection
from Harassment Act 1997, see University of Oxford v Broughton [2006] EWCA
Civ 1305, concerning the long-running protests against the construction of a
new research laboratory in Oxford that, when completed, will be used in part
for experimentation on living animals.
Other important decisions a¬ecting the right to protest and freedom of
assembly, considered earlier in this chapter, are R (Gillan) v Metropolitan Police
Commissioner [2006] UKHL 12, [2006] 2 AC 307 (see above, p 771) and R v
Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772 (see above, pp 771“2).
(See further, H Fenwick, Civil Rights: New Labour, Freedom and the Human
Rights Act (2000), ch 4; N Whitty, T Murphy and S Livingstone, Civil Liberties
Law: The Human Rights Act Era (2001), ch 2; D Feldman, Civil Liberties and
818 British Government and the Constitution


Human Rights in England and Wales (2nd edn 2002), ch 18; S Bailey, D Harris
and D Ormerod, Civil Liberties: Cases and Materials (5th edn 2001), ch 4; and
Fenwick and Phillipson, ˜Public protest, the Human Rights Act and judicial
responses to political expression™ [2000] PL 627 and ˜Direct action, Convention
values and the Human Rights Act™ (2001) 21 LS 535.)
Index




Abel, Richard, 773 advisory committees, 411
abortion, 483“4, 600, 788“93 Advocate General for Northern Ireland, 368
Abraham, Ann, 623 Advocate General for Scotland, 368
access to information Afghanistan, 465
See also Freedom of Information Act Agriculture Committee (HC), 613, 617
accountability, 135“7 Alexander, Lord, 526
public interest, 563 Allan, T.R.S, 61, 100, 167, 169, 327, 332“3,
access to justice, legal aid, 737“9 334, 663, 701
accountability Allen, Douglas, 558
access to information, 135“7 Allen, Graham, 389
conditional lending, 20 Amery, L.S., 192, 527
constitutional principle, 132“7 Amnesty International, 83, 548, 683
contracted out services, 489 Anderson, Benedict, 17
democracy and, 132 Anderson, Gavin, 16, 20
elections, 494 animal experiments, 95
executive agencies, 409“10, 411 anti-social behaviour, 817
Freedom of Information Act, 563 appeals
good governance and, 26 appeal tribunals, 717
ministerial responsibility, 133“5, 566 judicial review and, 655
popular accountability, 493 tribunal decisions, 723
public bodies, 135 Archer, Peter, 579

<<

. 149
( 155 .)



>>