Helga Law Journal - 01.01.2021, Síða 136

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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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.