18- Article 11 ECHR: right to freedom of assembly and association

Question 1

What English law is relevant when determining compatibility with ECHR obligations and the consequences when English law appears to interfere?

Answer 1

1. For the protection of the rights and freedoms of others
2. Proportionality and police powers
3. Assembly in a public place
4. Breach of the peace, trespass to land, control of processions
   and and associated police powers
5. Statutory restrictions
6. The Public Order Act 1986
7. Control of processions etc

Question 2

How are statutory restrictions in relation to removing trespassers from land (in)compatible with ECHR obligations?

Answer 2

s 61 of the Criminal Justice and Public Order Act 1994 allows the police to direct trespassers on the land to leave where the occupier had already told them to do so and either:
- they have damaged the land
- they have used threatening, insulting behaviour to the occupier
or their family/employees, or
- between them they have 6 or more vehicles on the land.

Failure to obey or returning within 3 months is an offence.

s 62 allows police to seize vehicles of persons failing to comply with a direction under s 61

Question 3

How are statutory restrictions in relation to raves (in)compatible with ECHR obligations?

Answer 3

Rave: gathering on land in the open air of 20 or more persons at which amplified music is played during the night.

s 63 CJPOA 1994 allows the police to direct persons gathering on land for a rave to leave.

Failure to comply or returning within 7 days is an offence.

Question 4

How are statutory restrictions in relation to aggravated trespass (in)compatible with ECHR obligations?

Question 5

How is the Public Order Act 1986 (in)compatible with ECHR obligations?

Answer 5

It sets out several offences which can occur where there are demonstrations/protests.

These offences include:

1. RIOT:
   
   • under s1 of the Act, used for most serious cases usually linked to planned/spontaneous serious outbreaks of sustained violence.
2. VIOLENT DISORDER
   
   • under s2 of the Act, used in relation to serious disorder falling short of riot.
3. AFFRAY
   
   • under s3 of the Act, used when the behaviour of the accused puts in fear members of the public. There must be some conduct beyond the use of words, which is threatening and directed towards a person/persons.
4. S4 AND S5 OF THE ACT
   
   • s4: causing fear or provocation of violence, causing intentional harassment, alarm or distress. This includes making threats to innocent bystanders or throwing missiles in a demonstration.
   • s5: causing harassment, alarm or distress. This is used for less serious incidents of anti-social behaviour, such as continuously shouting abuse at passers-by.

Question 6

How is the control of processions (in)compatible with ECHR obligations?

Answer 6

Restrictions on the right to demonstrate are controversial. The state is obliged to deal with conflicting interests using the principle of proportionality, which is the balance between the individual right and others in the community.

A public procession is considered any number of people moving along a route.

A public assembly is 2 or more people gathered together in a public place.

Question 7

How does the legislation work for control of processions?

Answer 7

With respect to processions the main UK legislation is found as follows:

S 11 POA 1986
- sets out requirements to give advance notice of public processions.

S 12 POA 1986
- permits the police to impose conditions on public processions.

S 13 POA 1986
- gives power to prohibit processions.

S 14 POA 1986
- gives power to impose conditions on public assemblies.

S 137 Highways Act 1980
- creates the offence of wilful obstruction of the highway and gives power to order removal of the obstruction.