Article 11 Flashcards
Step 1: What is Article 11?
Article 11 is the right to freedom of assembly and association. It’s a qualified right so the state can interfere with the right so long as it’s justified under Article 11(2).
The Council of Europe says ‘the rights of individuals to gather with other people and make their collective vioce heard is fundamental to a properly-functioning democracy’
It is a collective right as it protects the rights of the individuals to join together in collective action
Step 2: What are the 3 distinct rights under Article 11
- the freedom to form peaceful assembly
- the freedom to associate with others
- freedom to join trade unions
Step 3: Freedom of peaceful assembly
It is broadly interpreted and applies to the organisation of, and participation in, static meetings or sit-ins, marches, public processions and demonstrations
It is unlikely to applt to social or sporting gatherings
The state has a positive obligation to protect the right to peaceful assembly and as such must take reasonable steps to prevent violence against demonstraters
This is not however, a guarantee of safety, if the state has taken reasonable steps there isa margin of appreciation
Step 4: Freedom of peaceful assembly
Case Law
- Cisse v France: The state must take reasonable steps to prevent violence against demonstrators
- DPP v Jones (Margaret): a peaceful assembly can occur on a highway as long as it doesn’t unreasonably interfere or obstruct it
- Plattform v Austria: An assembly is still peaceful even if it’ll provoke counter demonstration
- Ollinger v Austria: assembly can also be refused if it infringes the rights of the public however, the restriction must be proportionate
- Appleby v UK: A private owner can prohibit demonstrators
Step 5: Freedom of peaceful assembly
State cannot ban assemblies
The state cannot issue a ban on assemblies but it may require the demonstrators to notify the authorities or apply for authorisation in advance of the assembly.
If the state refuses, they must justify their decision and if permission is not granted, there needs to a be right to appeal the decision
Step 6: Freedom of association with others
Guarantees the right for people to come together to form a froup or association. Also includes the right of an individual to not join a group
Association doesn’t include the right to spend time with certain people
McFeeley v UK: An association should be a stable group and set up for a common purpose
Although professional bodies are not an ‘association’, political parties have been. ECtHR has underlined the importance of protecting individuals from being penalised disproportionately for membership of a political party (Redfearn v UK)
Step 7: freedom to join trade unions
Trade unions are recognised as associations under Article 11 but are also mentioned specifically: everyone has the right to join and form a trade union
National Union of Belgian Police v Belgium: An individual has the right to join a trade union of their choice
Young, James and Webster v UK: There could be a breach of Article 11 if an employee was forced to join a trade union
Right doesn’t include the right for a union to be recognised or the right to strike. Restrictions can be made regarding secondary picketing and the trade unions have the right to expel a member
Step 8: Article 11 (2)
Any interference with Article 11 must be?
- prescribed by law
- have a legitimate aim
- be necessary in a democratic society
Step 9: Article 11 (2)
What does prescibed by law mean
There is a law that allow for it to be taken away
Step 10: Article 11 (2)
Prescribed by law: Breach of the peace
UK common law restricts assmebly and association
Defined in R v Howell: There is a breach of the peace wherever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through assault, an affray, a riot, unlawful assembly or other disturbance
Thus any violence of threat of it during a meeting or procession will allow the state (usually the police) to take preventative action
Laporte: The police should only act if there is a reasonable belief of imminent breach of the peace
Step 11: Article 11 (2)
Prescribed by law: Trespass to land
This is an intrusion onto another person’s land. It’s defined as an ‘unjusifiable interference with land which is in the immediate and exclusive possession of another’
Area of tort and can result in an injunction or claim for damages
s.61 Criminal Justice and Public Order Act 1994 allows the police to direct trespassers from land after the occupier has asked them to leave but has failed, when they have either damaged the land, threatened the occupier, or have more than 6 vehicles on the land
Step 11: Article 11 (2)
Prescribed by law: Trespass to land
What is a rave
defined as gathering on land in the open air of 20+ people at which amplified music is played during the night and is likely to cause distress to the local inhabitants
Step 11: Article 11 (2)
Prescribed by law: Trespass to land
What is aggravated trespass
defined in s.68 CJPOA and makes it an offence to intimidate, obstruct or disrupt people carrying out a lawful activity. Aggravated trespass is usually on land but has been extended to include buildings (DPP v Chivers)
Step 11: Article 11 (2)
Prescribed by law: Trespass to land
What is trespassory assembly
s.70 CJPOA, Without the permission of the occupier and could result in disruption or damage to a site of historical or scientific importance
Step 11: Article 11 (2)
Prescribed by law: Trespass to land
What is squatting
s.144 LASPOA 2012, D must be in a residential building as a trespasser and is living or intends to live in the building. s.6 and s.7 Criminal Law Act 1977 also makes it an offence to use or threaten violence for the purposes of entering the property and failing to leave when asked
Step 11: Article 11 (2)
Prescribed by law: Trespass to land
Damage by trespassers/highway blocking/definition of trespassers
- Damage by trespassers: Criminal Damage Act 1971
- Highway blocking: Highways Act 1980
- Definition of trespassers: Ellis v Loftus CJPOA 1994
Step 12: Article 11 (2)
Prescribed by law: Trespass to land
s.1 Public Order Act 1986
Riot
12+ people use/threaten unlawful violence for a common purpose and their combines conduct would cause a reasonable person to fear for their safety
Step 12: Article 11 (2)
Prescribed by law: Trespass to land
s.2 Public Order Act 1986
Violent disorder
3+ people use/threaten unlawful violence and their combined conduct would cause a reasonable person to fear for their safety
Step 12: Article 11 (2)
Prescribed by law: Trespass to land
s.3 Public Order Act 1986
affray
1 person uses/threatens unlawful violence to another and their conduct would cause a reasonable person to fear for their safety
Step 12: Article 11 (2)
Prescribed by law: Trespass to land
s.4 Public Order Act 1986
causing fear or provocation of violence
intent to cause a person harassment, alarm, or distress, Ising threatening behaviour, or displays which are threatening. Intent to cause that person to believe that immediate unlawful violence will be used against him or another or be provoked
Step 12: Article 11 (2)
Prescribed by law: Trespass to land
s.4A Public Order Act 1986
causing intentional harassment, alarm, or distress
intent to cause a person harassment, arm or distress using threateming/disorderly behaviour or visibly displays signs of threats causing harassment, alarm or distress
Step 12: Article 11 (2)
Prescribed by law: Trespass to land
s.5 Public Order Act 1986
causing harassment, alarm or distress
using threatening or disorderly behaviour. Visible displays of threatening or abusive language within the hearing or sight of a person likely to cause harassment, alarm or distress
Step 13: Article 11 (2)
What are the legitimate aims under Article 11 (2)
- Interests of national security or public safety
- ECtHR accepts a wide margin of appreciation
- R (Laporte) v CC Gloucestershire: The police should only act if there is a reasonable belief of imminent breach of the peace
- Prevention of disorder or crime
- Wide margin of appreciation as they want to protect public safety
- Cisse v France but in Laporte the state were heavy handed
- Protection of health or morals
- Cisse v France: there were genuine concerns over health of the hunger strikers
- Larmela v Finland: MoJ refused to register the association and the state was permitted to deny this with the aim of protecting the health and morals of the country
- Protection of the rights and freedoms of others
- Ensures that the law must balance these interests using the principles of proportionality
- Countryside Alliance v A-G: The protection of others’ rights and freedoms ensures the law must balance these interests using the principles of proportionality
Article 14: Necessary in a democratic society
Proportionality
Is the interference proportionate to achieving the aim?
Margin of appreciation
The amount of ‘wiggle room’ the state has
The state’s margin of appreciation is also recognised by the ECtHR in relation to Article 11. Recently, ECtHR has expressed concern over the adoption by some states of restrictive laws allowing the use of sanctions and force against the protest
eg. recently Turkey has been criticised for extending the police to use firearms
