#3580 - Freedom Of Assembly And Association - Constitutional Law

• Differs from the right to freedom of expression – this is about having the opportunity to say what you think effectively. It’s about means of communication.

• Freedom of assembly provides a practical means by which to exercise freedom of expression.

• High profile protests included fuel prices, fox hunting and G20 in London.

Striking a balance:

• Individual interests must be balanced against public interest. Those who wish to protest must have their interests weighed against those who do not wish to be bothered,

• Williams: the here is a compromise that ‘seeks to balance the competing demands of freedom of speech and assembly on the one hand and the preservation of the Queen’s Peace on the other’

• Balance is contextual: protest on a motorway is more problematic than in a park; peaceful protest is different to violent; direct action against the activity is clearly more of a problem than communication about the issue.

• The balance is multidimensional: must balance rights of protesters, counter-protesters, people living and working nearby and wider society (big protests cost the public purse) – should we give all of these interests equal value?

Article 11

• Two part form, where 11(2) details the extent (and exceptions to) the right. It is a qualified right:

  • Necessary in a democratic society in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

• The thrust of Art 11 is that freedom of assembly should be permitted unless restriction is necessary. Two conditions must be met for Article 11 protection:

  • it must be ‘peaceful assembly’. This covers ‘both private meetings and meeting on public thoroughfares, as well as static meeting and public processions’ (Kuznetsov v Russia)

  • It must not be ‘necessary in a democratic society’ to restrict the assembly – this applies even to peaceful assembly.

Principles for extraction:

1. The state are obliged to aid those who wish to protest peacefully that are being met with violent opposition. Art 11 imposes not only a negative obligation but a positive one to facilitate peaceful protest.

• Plattform ‘Ärtze für das Leben’ v Austria – An open-air religious ceremony which was advocating a pro-life stance was interrupted by 500 counter-demonstrators by using loudspeakers and throwing eggs. The anti-abortionists argued that the authorities did not provide them sufficient protection from the disruption of the counter-demonstrators. The court held that if there was an unlimited right to disrupt peaceful protest, peaceful protest would be devalued. The state was under a positive obligation ‘to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully’. There is, however, no requirement for the state to provide an absolute guarantee to prevent intimidation or disruption. Ultimately, in this case, the state was found to have taken all relevant measures and won the case.

2. Because there is no absolute obligation, the state may close down a peaceful protest if it is provoking or seems likely to provoke others into a violent response. The ECtHR has tended to require authorities to focus on those inciting violence and to only infringe on the rights of the peaceful protesters where absolutely necessary; there is a qualified duty to focus police attention on those who are reacting violently.

3. What about the rights of people wishing to raise a legitimate counter-protest? What rights do they have?

• Öllinger v Austria – Two groups wished to hold ceremonies in the same Slazburg cemetery. One was for Jews killed by the SS during the Holocaust. The other was for SS officers killed in WWII. The SS ceremony had been held for 40 years, and the Jewish ceremony planned as a counter-demonstration against it. The Austrian authorities banned the Jewish ceremony on the grounds that it was to avoid the risk of disorder and to protect the rights of those who wanted to attend the SS ceremony. The ECtHR found that in the absence of clear evidence of the likelihood of violence, an absolute ban of the protest was neither a necessary nor proportionate restriction. They said: ‘if every probability of tension and heated exchange between opposing groups during a demonstration was to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing different views’. Mead labels the – ‘the right to counter-demonstrate’.

Domestic Law

• In the UK there are extensive legislative and common law rules governing the management of protests. Bear in mind that these should be interpreted in a manner that gives effect to Art 11.

• English law distinguished between unacceptable conduct and potentially acceptable conduct. The former is impermissible entirely and is a criminal offence. This includes things like riot and violent disorder. For the latter category, the conduct is generally lawful and it will therefore depend on the circumstances whether it could constitute a situation governed by Art 11(2).

• English law criminalises anything that is ‘insulting’ and carried out ‘within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’ But this runs the risk of criminalising what may be legitimate forms of protest – is it not natural that some protest may cause alarm or distress (think showing pictures of dead puppies)? Does it strike the balance properly?

PROHIBITION OF CERTAIN TYPES OF BEHAVIOUR

Public Order Act 1986

• Sections 1-3 are concerned with riot, violent disorder and affray. These all involve the intentional or reckless use or threat of unlawful violence to cause a person or reasonable firmness to fear for his personal safety.

• Sections 4, 4A and 5 create offences concerning fear or provocation of violence; intentional harassment, alarm, or distress; and harassment, alarm or distress.

Breakdown:

• s.1 – riot.

• s.2 – violent disorder

• s.3 – affray

• s.4 – fear or provocation of violence. There is an intended victim who believes that he will be subject to immediate person violence by D’s threatening, abusive or insulting words or behaviour, as well as distribution or writing, sign or other visible representation that is threatening, abusive or insulting. Requires intention or subjective recklessness as to the reaction of the victim.

• s.4A – intentional harassment, alarm or distress. There is an intended victim and who is caused harassment, alarm or distress by the threatening, abusive or insulting behaviour, or the writings or signs etc. There will be a defence where D was inside a dwelling and had no reason to believe that anyone outside would be subject to the behaviour in question, or if the conduct was reasonable.

• s.5 – harassment, alarm or distress. There is a person within hearing or sight likely to suffer harassment, alarm or distressed caused by the threatening, abusive or insulting behaviour, or the writing or signs etc. There will be a defence if there was no reason to believe that anyone was within hearing or seeing likely to be alarmed or distressed, as well as the defence for s.4A.

• ‘insulting behaviour’ should be taken to have its ordinary meaning. Lord Reid said an ordinary and sensible man knows an insult when he sees or hears it. (Brutus v Cozens). But the courts have still got it wrong in the past – a conviction for a gay couple who kissed in public was upheld in 1986 in Masterson v Holden.

• S.4 is not too problematic for peaceful protest. But s.4A and s.5 have the possibility to infringe or legitimate forms of protest and to criminalise protest they think might upset people (as in Masterson v Holden).

• It has been difficult for the UK courts to interpret the Public Order Act in a manner giving effect to Arts 10 and 11.

• One option is using the reasonableness defence. Taking part in a peaceful protest could render conduct reasonable.

• However, English law has arguably failed to reorientate.

  • Norwood v DPP – D displayed a poster reading ‘Islam out of Britain’ and ‘Protect the British People’. He was convicted under s.5 Public Order Act. His conviction was upheld and application to appeal to ECtHR denied on the grounds of protecting the rights of other. Auld LJ said that once conduct fulfils s.5 it would most often be found unreasonable. This analysis has undercut the reasonableness defence significantly.

  • Hammond v DPP – D was found guilty of a s.5 offence for preaching about the immorality for same sex relationships. He argued that he was merely expressing his opinion. The court found that his opinions were nevertheless insulting and due to the need to foster tolerance to all sectors of society, His conduct was unreasonable and therefore not subject to the reasonable conduct defence.

  • ProLife Alliance – HoL held that broadcasters acted lawfully in failing to broadcast a party election broadcast by an anti-abortionist party that contained images of terminated foetuses.

• Pro-civility – in favour of public decorum and limiting free speech in order to protect what we think proper.

• Alternative approach is to make people tolerate free speech even if they disagree with it. This approach was endorsed by Lord Scott when dissenting in ProLife. He said that the right to freedom of expression must include the right to ‘offend, shock or disturb’.

Criminal Justice and Public Order Act 1994

• S.68 – aggravated trespass. D trespasses on land where someone is carrying out or is about to carry out a lawful activity. The aggravated offence is through a) intimidating that person so as not to engage in...