Helga Law Journal - 01.01.2021, Side 163

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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give the police advance notification of the planned protest, except where the
assembly is a funeral procession, or where it is unreasonable to require
notification.229 Otherwise, the failure to provide a notification is an offence. The
Act also gives powers to the police to impose conditions on the undertaking of
the protest as they consider necessary, for example on its time and place.230 These
involve restrictions on the exercise of right to freedom of protest, and under the
legislation, these restrictions are justified only if they are imposed with the
intention of preventing “serious public disorder” or where the purpose of the
protest is the “intimidation of others with a view to compelling them to do
something they have no right to do or not to do something they are entitled
to.”231 Failure to comply with the conditions imposed is an offence.232
Under Section 4 of the Public Order Act 1986, it is an offence for a person
to use threatening, abusive or insulting words or behaviour that cause, or can
possibly cause, harassment, alarm or distress to other people. It is evident that
peaceful pluralistic co-existence necessitates some degree of respect and care
when one is exercising their right to freedom of speech. Nevertheless, this
provision, without an accompanying definition of harassment, alarm or distress,
or any other guidance, can be an intrusive device for the peaceful protestors
exercising their freedom of expression233. There is a tense interplay between
fundamental rights of speech and protest, and the need to prevent crime that the
(unregulated) exercise of these rights can give rise to. One plausible way of
striking the delicate balance is proposed by Dworkin, who distinguishes between
merely offending people (which should not be prohibited), and attacking the
dignity of a group of people (which should be prohibited).234 This is a fine but
sensible line: protection of dignity is vital for the key values of pluralism,
tolerance and broadmindedness, while being offended is merely an emotional
and subjective response.235 However, this distinction is not clarified under the
current law, and a step in this direction may be desirable.
The way in which the right to freedom of protest may be restricted with the
aim of maintaining public order has recently been demonstrated with the legal
case surrounding the Ealing Council’s unanimous vote to create the first ever
‘safe zone’ around an abortion clinic in the UK which would shield protect
women from anti-abortion protestors.236 The ban has been upheld by the high
court, meaning that there is now a protest-free “buffer zone” around the clinic.
Justice Turner conceded that the ban interfered with the demonstrator’s right to
freedom of protest, he held that the ban was necessary in a democratic society.

229 Section 11, the Public Disorder Act 1986.
230 ibid, Section 14.
231 ibid, Section 14(1)(a) and (b).
232 ibid, Section 14(4).
233 (n 6).
234 Kai Moller, “The Global Model of Constitutional Rights”, (2013), 183.
235 Jeremy Waldron, “The Harm in Hate Speech” (2012), 139.
236 Sarah Marsh, ‘Decision to ban protests at London abortion clinic upheld’ The Guardian, (London,
2 July 2018).
The ban was justified in order to protect women from considerable distress and
intimidation by the protests.237 This demonstrates how the need to maintain
public order and protect others from alarm and distress may be used to restrict
the exercise of the right to freedom of protest.238
5.2.2 Kettling
One common method by which the right to protest is restricted is kettling, which
involves the police containing the people in a cordon in a specified area with the
intention of preventing the risk of public disorder. One example of how kettling
restricts the right to freedom of protest is demonstrated in Austin v Commissioner
of Police of Metropolis.239 The facts of the case have already been elaborated
elsewhere in the journal.240 Importantly, the approach taken by the House of
Lords –and approved by the ECtHR later in Austin and Others v UK241 -was to
examine the motive behind the restriction in order to decide whether it is
justifiable. Thus, the House of Lords (and agreed later by the ECtHR) argued
that the restriction on the applicant’s Article 5 –right to liberty and security –was
justified because of the motive of the police who reasonably perceived a “real risk,
not just to property, but also of serious personal injury and even death.”242
Such an approach can be dangerous for the protection of the right to
freedom of protest in the UK.243 Determining whether there has been a
restriction of liberty is less about what the police intended, and more about the
actual impact the police’s action had on the protestors. This has not been
emphasized by the ECtHR244 who confirmed the House of Lord’s decision,
referring to the uncooperative behaviour of the crowd and the duty of the police
to contain it when there is an anticipated real risk. It has been suggested that the
authorization of kettling should be allowed at a narrower scope. Liberty suggests
that not only can kettling dangerously over-restrict fundamental freedoms, but it
can also prove counter-productive in achieving its aims. Furthermore, while
kettling is done with the intention of preventing risks of violence and crime, it
can exacerbate the risk of confrontation and provoke the crowd. Accordingly, it
may not only fail to realise its objective of maintaining public order, but also
actually increase the risk of disorder and other crimes.245
Nonetheless, the decision in Austin has set the momentum in the opposite
direction, expanding and easing the justifications of kettling on the right to

237 ibid.
238 ibid.
239 Austin and another v Commissioner of the Police for the Metropolis [2009] UKHL 5.
240 Austin was present in Oxford Circus during May Day protests in 2001, but himself was not one
of the organisers. Despite this, he was prevented from leaving the area for about 7 hours. He alleged
a violation of his Article 5 of the ECHR; the right to liberty.
241 (n 17).
242 Austin v Metropolitan Police Commissioner [2005] EWHC 480 at [532].
243 (n 6).
244 Austin and Others v UK App nos 39692/09, 40713/09 and 41008/09.
245 (n 6).