Helga Law Journal - 01.01.2021, Page 171

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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whose functions are functions of a public nature.”289 Therefore, bodies such as
the police, the courts, and local government are all required to fulfil the positive
and negative obligations that Articles 10 and 11 entail. The ECHR only requires
‘reasonable and appropriate measures’ to safeguard the right,290 and derogations
are permitted as neither right is absolute, thus the state can be seen to be under
a general obligation of neutrality and to advocate a conciliatory stance.291
6.3 Policing and Positive Obligations Relating to Protest
As a public authority, the police are required to act compatibly with the
Convention and therefore are under a duty in certain circumstances to safeguard
rights of assembly and expression. The police “must demonstrate a certain degree
of tolerance towards the protest and anticipate a level of public disruption” in
relation to non-violent demonstrations.292 Recent reports293 also indicate the
adoption of a presumption in favour of facilitating peaceful protest as the
standing point for policing protest. However, the police are also tasked with
maintaining public order and safety and so must balance the safety and rights of
the general public and the rights of the protestors.294 The police mainly seek to
fulfil their facilitative role in three ways– police presence at demonstrations, co-
operation prior to and during the assembly, and by using legislation to charge
violent acts and to prohibit demonstrations that may lead to violence.
6.3.1 Police Presence at Demonstrations
In Ärzte, the European Court recognised a facilitative duty by requiring that there
is an adequate police presence in response to violent and disruptive opposition.295
Police presence, whilst sometimes leading to conflict with protestors, can be
facilitative of protest as it deters violence and enables the demonstration to take
place without interference from private individuals e.g. prevents violent counter-
demonstrations. An example of this was the Bristol ‘Gays Against Sharia’ march
which involved around 40 protestors but had a police presence involving more
than 100 officers, 10 police riot vans, mounted officers and a law enforcement
drone.296

289 ibid.
290 ‘Ärzte für das Leben’ (n 6).
291 Akandji-Kombe (n 3) 51.
292 HMCIC ‘Adapting to Protest’ (n 2) 4.
293 Committee on Human Rights, Facilitating Peaceful protest, 10th report of session 2010-11, Joint
committee on Human Rights, HL paper 123, 25th March 2011, and also Her Majesty’s Chief
Inspector of Constabulary, Adapting to Protest: Nurturing the British Model of Policing (2009).
294 HMCIC ‘Adapting to Protest’ (n 2) 5.
295 Her Majesty’s Chief Inspector of Constabulary, Adapting to Protest: Nurturing the British Model of
Policing (2009) 61.
296Alex Ballinger, 'Massive Police Presence Keeps ‘Gays Against Sharia’ March and Counter-Protests
Under Wraps' Bristol Post (2018) <https://www.bristolpost.co.uk/news/bristol-news/massive-
police-presence-keeps-gays-1511608> accessed 12 July 2018.The march was organised by activists
6.3.2 Co-Operation Between the Police and Protestors
In order to ensure that police involvement is proportionate to the size of the
event, procedures have been implemented to increase co-operation between
themselves and the organisers such that demonstrations can occur peacefully and
that threats are mitigated. The organiser is required to notify the police of the
date, time, route of the demonstration, along with the details of the organisers,
six days in advance.297 This allows the police to determine the appropriate level
of police presence and to manage any risks – for example the Public Order Act
allows the police to impose conditions as to the route, location, duration and the
number of people present if there is a reasonable belief that serious public
disorder, damage to property or disruption to community life or the intimidation
of others may occur.298 These conditions have the potential to prevent, instead
of facilitating, the exercise of Article 10 and 11, and so require the Police to
ensure that such conditions are proportionate to the risk that requires mitigating.
The police have undertaken a ‘no surprises’ approach299 to policing protests
with communication between organisers and the police before and during
demonstrations, for example communicating via social media or tailored leaflets
and ensuring that stewards are also used to ensure the protest remains peaceful.300
This ensures that police presence is both facilitative, as threats are managed, and
appropriate to the demonstration.
6.3.3 Statutory Powers
One fundamental aspect of the positive obligations of Articles 10 and 11 is to
protect those exercising such rights from violence from private individuals. Thus,
the police have multiple statutory and common law powers to address such
situations. If a chief officer reasonably believes that imposing conditions are not
sufficient to prevent serious public disorder, they can apply to the local council
or Secretary of State for an an order prohibiting the holding of public processions
or a particular class of public procession in the area or part of the area for a
period of up to 3 months.301 Alongside the more traditional and well-known
criminal law offences e.g. assault and battery, the Public Order Act 1986 defines
a number of statutory offences, including riot, violent disorder, affray, causing
fear or provocation of violence and causing harassment, alarm and distress which
can be utilised against those being violent and threatening other’s exercise of
expression and assembly. Common law powers regarding breaches of the peace
also exist; there is a duty to seek to prevent by arrest or any action short of, any

with links to the far right and faced counter protests from anti-fascist and LGBT+ groups. The two
groups were kept at a distance by the police to prevent clashes.
297 ibid.
298 ibid ss.12 and 14.
299 HMCIC ‘Nurturing the British Model’ (n 17) 36.
300 Joint Committee on Human Rights, Facilitating Peaceful protest, 10th report of session 2010-11, Joint
committee on Human Rights, HL paper 123, 25th March 2011.
301 n 21 s 13(1).