Helga Law Journal - 01.01.2021, Side 168

Helga Law Journal - 01.01.2021, Side 168
Helga Law Journal Vol. 1, 2021 172 International Legal Research Group 173 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.
Side 1
Side 2
Side 3
Side 4
Side 5
Side 6
Side 7
Side 8
Side 9
Side 10
Side 11
Side 12
Side 13
Side 14
Side 15
Side 16
Side 17
Side 18
Side 19
Side 20
Side 21
Side 22
Side 23
Side 24
Side 25
Side 26
Side 27
Side 28
Side 29
Side 30
Side 31
Side 32
Side 33
Side 34
Side 35
Side 36
Side 37
Side 38
Side 39
Side 40
Side 41
Side 42
Side 43
Side 44
Side 45
Side 46
Side 47
Side 48
Side 49
Side 50
Side 51
Side 52
Side 53
Side 54
Side 55
Side 56
Side 57
Side 58
Side 59
Side 60
Side 61
Side 62
Side 63
Side 64
Side 65
Side 66
Side 67
Side 68
Side 69
Side 70
Side 71
Side 72
Side 73
Side 74
Side 75
Side 76
Side 77
Side 78
Side 79
Side 80
Side 81
Side 82
Side 83
Side 84
Side 85
Side 86
Side 87
Side 88
Side 89
Side 90
Side 91
Side 92
Side 93
Side 94
Side 95
Side 96
Side 97
Side 98
Side 99
Side 100
Side 101
Side 102
Side 103
Side 104
Side 105
Side 106
Side 107
Side 108
Side 109
Side 110
Side 111
Side 112
Side 113
Side 114
Side 115
Side 116
Side 117
Side 118
Side 119
Side 120
Side 121
Side 122
Side 123
Side 124
Side 125
Side 126
Side 127
Side 128
Side 129
Side 130
Side 131
Side 132
Side 133
Side 134
Side 135
Side 136
Side 137
Side 138
Side 139
Side 140
Side 141
Side 142
Side 143
Side 144
Side 145
Side 146
Side 147
Side 148
Side 149
Side 150
Side 151
Side 152
Side 153
Side 154
Side 155
Side 156
Side 157
Side 158
Side 159
Side 160
Side 161
Side 162
Side 163
Side 164
Side 165
Side 166
Side 167
Side 168
Side 169
Side 170
Side 171
Side 172
Side 173
Side 174
Side 175
Side 176
Side 177
Side 178
Side 179
Side 180
Side 181
Side 182
Side 183
Side 184
Side 185
Side 186
Side 187
Side 188
Side 189
Side 190
Side 191
Side 192
Side 193
Side 194
Side 195
Side 196
Side 197
Side 198
Side 199
Side 200
Side 201
Side 202
Side 203
Side 204
Side 205
Side 206
Side 207
Side 208
Side 209
Side 210
Side 211
Side 212
Side 213
Side 214
Side 215
Side 216
Side 217
Side 218
Side 219
Side 220
Side 221
Side 222
Side 223
Side 224

x

Helga Law Journal

Direkte link

Hvis du vil linke til denne avis/magasin, skal du bruge disse links:

Link til denne avis/magasin: Helga Law Journal
https://timarit.is/publication/1677

Link til dette eksemplar:

Link til denne side:

Link til denne artikel:

Venligst ikke link direkte til billeder eller PDfs på Timarit.is, da sådanne webadresser kan ændres uden advarsel. Brug venligst de angivne webadresser for at linke til sitet.