Helga Law Journal - 01.01.2021, Blaðsíða 166

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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freedom of protest.246 A year after the ruling, on 9 December 2010, there was
another instance of what Mansfield calls “a dangerous use of police force to quell
the protest.”247 The march containing around 15,000 people, most of whom were
students and staff, was aimed to protest against cuts in education and the changes
in the tuition fees. There was a kettling of the crowd at 3:23 p.m. for nearly 6
hours.248 Moreover, there was another incidence of kettling at Westminster
Bridge which involved 3,000-4,000 people being tightly packed in very cold
weather conditions. The police also exercised force on the protestors, causing
Meadows grave head injury.249 The police response has been condemned by the
UN Special rapporteur250. Mansfield argues that these responses by the police are
part of a general trend of an increasing use of kettling and police force.251 This
confirms Mead’s observation of how the decision in Austin, after which the
prevention of disorder became more readily available as a justification for the
restriction of the right to freedom of protest, can dangerously threaten such a
fundamental human right.252
5.2.3 Stop and Search Powers
Additionally, the police are also granted stop and search powers, exercised in
order to pre-empt and prevent crimes, particularly in relation to terrorism.
Previously, this area was governed by Section 44 of the Terrorism Act 2000,
under which the chief constable is authorized to stop and search pedestrians and
vehicles if they consider it “expedient” in order to prevent terrorism.253 The
open-ended and vague legislative lexis “expedient” potentially has far-reaching
consequences on the right to freedom to protest. This is demonstrated in Gillan
and Quinton v UK.254 To briefly reiterate the facts, the applicants were Mr Gillan
who was on a bicycle and carrying a rucksack, and Ms Quinton, a journalist, who
was ordered to stop filming despite showing her press cards. The House of Lords
ruled that the right to protest is not an absolute rule. The word “expedient” was
interpreted loosely; Lord Bingham suggested that it need not be “necessary,”255
and confirmed the Court of Appeal interpretation of the word which ruled that

246 David Mead, The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Era
(Bloomsbury UK 2010) 9-11.
247 Michael Mansfield, ‘A dangerous use of police force to quell protest’, The Guardian, (London, 3
March 2013).
248 ibid.
249 ibid.
250 ibid.
251 (n 29).
252 Mead (n 28) 355.
253 Terrorism Act 2000, Section 44(3).
254 R (on the application of Gillan (FC) and another (FC) (Appellants) v Commissioner of Police of Metropolis and
another (Respondents) 2006 UKHL 12.
255 ibid, 15.
police can exercise stop and search powers where they consider such an action
“advantageous.”256
It has been argued that the word “advantageous” is a very vague
interpretation of the legislation which can justify and even encourage significant
restrictions to the right to protest.257 This was recognized by the ECtHR, who
ruled that section 44 powers unjustifiably interfered with Article 8.258 It held that
the first and second stage of the test was fulfilled: s44 powers did have a legal
basis, and they did address a legitimate aim: prevention of crime.259 Nevertheless,
the third stage of proportionality could not be surpassed. It objected to the
interpretation of “expedient” as “advantageous,” the result of which was that
there was “no requirement of any assessment of the proportionality of the
measure,”260 leading to “a clear risk of arbitrariness in the grant of such a broad
discretion to the police officer.”261 These risks were actualised when the 82-year-
old Walter Wolfgang was dismissed from the 2005 Labour Party conference for
criticizing Jack Straw on Iraq.262 His return was prevented under Section 44. This
case shows that the broad way in which Section 44 powers had been defined can
infringe on the people’s ability to exercise their right to freedom of protest and
the right to freedom of expression.
Largely due to the decision in Gillian v UK, the Section 44 powers were
repealed and replaced by Protection of Freedoms Act 2012, Section 59. This
demonstrates the influence of the ECtHR on the UK. Now, the senior police
officer can stop and search only if they reasonably suspect that an act of terrorism
will take place and reasonably consider that the authorization is necessary to
prevent such an act.263 Furthermore, any such power can now exist very
restrictively, in terms of space and duration. Spatially, the authorization will apply
only to a specified area which the officer reasonably considers no greater than
necessary.264 In terms of time, the authorization should be for a specified
duration to a maximum of 14 days265 (as opposed to the 28-day period authorized
previously)266, and should be confirmed by the Secretary of Space within 48 hours
of the issue. The reformed law is relatively much more in favour of the right to
peaceful protest. As Cape observes, “the new regime … is significantly more
stringent than that under the TA 2000 s.44 and is more likely to satisfy the ECHR

256 ibid, 25.
257 ibid.
258 Gillan and Quinton v UK App no 4158/05 (ECtHR, 12 January 2010).
259 ibid, 65.
260 ibid, 80.
261 ibid, 85.
262 Andrew Sparrow, ‘Heckler, 82, who dared called Straw a liar is held under terrorist law’, the
Telegraph, (London, 29 September 2005).
263 Protection of Freedoms Act 2012, Section 59.
264 Protection of Freedoms Act 2012, Section 59.
265 Protection of Freedoms Act 2012, Section 59.
266 Protection of Freedoms Act 2012, Section 44.