Helga Law Journal - 01.01.2021, Blaðsíða 168

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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concerns.”267 This is an example of the ECHR contributing positively to the
protection of the right to peaceful protest in the UK. Nevertheless, the criterion
of “reasonable suspicion” may still be ambiguous and can permit potentially
dangerous unnecessary restrictions.
5.2.4 Terrorism
Terrorism is a particularly serious category of crime which the government
should protect the public against. It can pose an existential threat to societies and
can injure/kill a considerable number of people, although its emotive rhetoric
can often exaggerate and multiply the real level of harm it causes.268 Particularly
in the post-9/11 world, the very topic of terrorism generates the public
perception that anything can – and should – be done in order to fight terrorism.269
Nevertheless, at the heart of terrorist legislation lies a very delicate balance
between liberty, to which freedom of protest is an essential component, and
security.
The broad definition of “terrorism” arguably shifts the balance towards
security270. This is demonstrated in R v Gul,271 which concerned the conviction
of a law student under Section 2 of the Terrorism Act272 for “terrorist
publications,” including publications which are likely to be understood as ‘a direct
or indirect encouragement…to the commission, preparation, or instigation of
acts of terrorism.’ The applicant was charged with Section 2273 after the police
found videos on his computer, including those depicting terrorist attacks on the
civilians. The case is crucial for the opinions of Lord Neuberger and Lord Judge
who reluctantly accepted the “concerningly wide”274 definition of terrorism in
Section 1 of the Terrorism Act 2000, which includes military attacks by a non-
state armed group against any state or inter-governmental organization forces in
the context of a non-international armed conflict. Such a wide interpretation can
easily justify restrictions on protests through an appeal to terrorism, even where
the nexus between the alleged offence and terrorism is not self-evident. For
example, the trial of James Matthews, a former British soldier volunteer joining
Kurdish forces to fight Islamic State group extremists, depicts that even military
acts at the time approved by the government can later be condemned as terrorist

267 Ed Cape, The Counter-Terrorism Provision of the Protection of Freedom Act 2012: Preventing Misuse or a Case
of Smoke and Mirrors, (2013) 4 Criminal Law Review.
268 David Anderson, “Shielding the compass: How to fight terrorism without defeating the law”,
(2013), Journal of Politicial Philosophy.
269 Waldron, however, cautions his readers that we should be aware of the difference between the
emotive appeal of the anti-terrorist legislation and the real impact of such legislation in the fight
against terrorism. Jeremy Waldron, “Security and Liberty: The Image of Balance”, (2003), 195.
270 Ibid.
271 R v Gul (Appellant) 2013 UKSC 64.
272 Terrorism Act 2006, Section 2(3).
273 ibid.
274 ibid, 38.
acts.275 While not a straightforward act of protest, his military activity may also
be considered a form of protest against terrorism. Perhaps paradoxically,
however, his ‘protest’ against terrorism was restricted in order to fight terrorism.
In any case, his inclusion in the Terrorism Act 2000 demonstrates that
justificatory grounds of fighting terrorism can cover protest, which one may not
perceive as promoting terrorism.
5.2.5 Surveillance
Recently, the right to freedom of protest has been restricted with increasing
surveillance. This can be seen in a case recently brought by Liberty R (On the
application of Wood) v Commissioner of Police of the Metropolis.276 In order to be able to
attend the AGMs, Wood bought a share in a company with links to arms trade.
While there was no problem during the meeting, the police claimed that they saw
him talking to a known arms industry protestor after the conference. The police
surveilled Wood; upon his refusal to reveal his identity, he was tracked by the
police to the underground station where they sought to discover his identity from
his travel documents. Wood’s claim of a violation of Article 8 ECHR – the right
to respect for private and family life – was rejected by the House of Lords. The
case is currently on appeal to the ECtHR where the human rights organization,
Liberty, has argued that “taking, storing and dissemination of photos of peaceful
protesters is an unjustified interference with the right to private life.”277 The
retention of such data also discourages potential future protestors, thereby
harming the very exercise of the right.
5.3 Conclusion
The most common justification for the restriction on the right to freedom of
protest, as it has been shown, is the need to prevent/reduce the risk of crimes,
and maintain public order in society. At the UK level, the police have various
means at their disposal to realise these objectives, such as through kettling or
stop-and-search powers.278 Overall, there is now a trend towards the
specification and limitation of such powers, thereby also limiting the authorised
justifications for the restriction on the right to liberty. Even then, many of the
police powers and justifications for the restriction on the right to freedom of
protest have been questioned by many human rights organisations. Essentially,
this is a very controversial area, and justifying the restrictions on the right to
protest involve striking a delicate balance between the need to maintain order

275 Lizzie Dearden, “James Matthews: Former British Army soldier who fought Isis in Syria now faces
terror charge”, the Independent, (London, 7 February 2018)
276 Liberty R (On the application of Wood) v Commissioner of Police of the Metropolis 2009 EWCA Civ 414.
277 (n 9).
278 While section 44 stop-and-search powers are now repealed, the police authorities retain the liberty
to question suspects, although now on more restricted grounds allowed by the Protection of
Freedoms Act 2012.