Helga Law Journal - 01.01.2021, Page 136

Helga Law Journal - 01.01.2021, Page 136
Helga Law Journal Vol. 1, 2021 140 International Legal Research Group 141 the water and at the fishing lines.26 Simon Brown LJ held that there was ‘a real risk’ that the appellants ‘would, unless inhibited by bind over, conduct themselves similarly in the future’ and thereby provoke the anglers to resort to violence.27 It is notable that both ex parte Ward and Nicol concerned direct action protests. Unlike communicative protests – which are tolerated more as they are seen as signs of a healthy democracy – such orchestrated attempts to impose one’s will on others arguably present an affront to democracy and can justifiably be restricted more harshly.28 The decision of the DC in Nicol was guided by this logic. Unsurprisingly, the case representing the first judicial attempt at narrowing police discretion in favour of protecting the right to protest – Redmond-Bate v DPP – concerned an activity which was anything but obstructive. After three female Christian fundamentalists were asked by a police officer to stop preaching, having attracted some hostile companions, they refused and were charged with wilful obstruction.29 For Sedley LJ, the determinative question was ‘whether, in the light of what the officer knew and perceived at the time …it was reasonable to fear an imminent breach of the peace’, the threat of which was coming from the person who was to be arrested.30 Appropriately, he held that the women’s activity could not cause a reasonable apprehension of an imminent breach of the peace for which they would be responsible.31 The decisions of the HL in Laporte and Austin represent the most recent judicial re-statement of the balance between the common law powers of the police to prevent breaches of the peace, and the legal protection of the right to protest. Since both cases were decided after the enactment of the HRA, a brief overview of its impact on the constitutional framework of the UK is required before we proceed any further. 1.5 Impact of the HRA The HRA marked the true emergence of a right to protest in the UK.32 This right consists of a negative obligation not to place unnecessary restrictions in the way of those wishing to protest peacefully, as well as a positive obligation to facilitate 26 Nicol v DPP [1996] Crim LR 318. 27 ibid 319. 28 Mead (n 4) 9. 29 Redmond-Bate v DPP [2000] HRLR 249. 30 ibid (emphasis added). 31 ibid 251. 32 Salát (n 9) 15; Article 11 of the ECHR only protects peaceful protests (Ciraklar v Turkey App no 19601/92 (ECtHR, 19 January 1995). ECtHR jurisprudence on Article 11 also makes clear that its protection extends to both organisers and participants ((CARAF) v UK App no 8440/78 (ECtHR, 16 July 1980), both static assemblies and moving processions, held either in private or on public thoroughfares (Rassemblement Jurassien Unité (n 22)). protest by, for example, providing adequate police presence and making public space available.33 Articles 10 and 11 of the ECHR are qualified by clawback clauses by which an interference with an individual’s right to protest could be justified as a permissible restriction. First, the measure must be “prescribed by law,” meaning that it must have an accessible and certain legal basis. Second, it must seek to achieve one or more of the legitimate aims listed in the second paragraph of either Article. This stage is usually satisfied by raising ‘the prevention of disorder or crime’ as a legitimate objective.34 Finally, the measure must be ‘necessary in a democratic society’ and justified as meeting a “pressing social need.”35 This is usually the crucial question on which the compatibility of a measure with Articles 10 and 11 falls to be decided, and it involves an assessment of the proportionality of the interference.36 Indeed, another significant impact of the HRA was the inauguration of proportionality as the ground on which to challenge administrative decisions as illegitimate interferences with fundamental (Convention) rights. Lastly, under section 6 of the HRA, public authorities such as the police and the courts have a duty to act compatibly with Convention rights. In Steel v UK, the Strasbourg judges subjected to the three-stage Convention compatibility test the decisions of the police to arrest and detain five protesters for breach of the peace, as well as magistrates’ orders to bind over two of them.37 The applicants challenged the actions taken against them as unlawful interferences with their rights.38 The ECtHR found that the general concept of breach of the peace, as well as the particular binding over orders that were issued against the first two applicants, were formulated with sufficient precision to satisfy the requirement of lawfulness under Article 5(1) as well as the “prescribed by law” test under Articles 10(2) and 11(2). However, only the arrest and detention of the first two applicants – who had engaged in deliberately disruptive action39 – was in accordance with English law as the police and national courts had reason to believe that they had caused or were likely to cause a breach of the peace. In contrast, the protest of the last three had been entirely communicative and peaceful,40 and in the absence of a decision of a UK court, the Strasbourg judges 33 Mead (n 4) 71; In Platform “Arzte fur das Leben” v Austria App no 10126/82 (ECtHR, 21 June 1988) the Strasbourg court ruled that ‘effective freedom of peaceful assembly cannot … be reduced to a mere duty on the part of the State not to interfere … Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be’, including protection against counter-demonstrations. 34 Mead (n 4) 34-36. 35 ibid 52. 36 ibid. 37 Steel v UK App no 68416/01 (ECtHR, 15 May 2005). 38 ibid. Their claims regarded Articles 5, 10 and 11 of the ECHR. 39 One had attempted to obstruct a grouse-shoot and the other had repeatedly broken into a construction site. 40 They handed out leaflets and held up banners in protest against the sale of fighter helicopters.
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