Article 11 - Evaluation Flashcards
AO1: Breach of the peace
common law, not criminal but if the Magistrates’ Court have ‘bound-over’ a person to keep the peace, it is a criminal offence to break that order.
Defined R v Howell - ‘a person is in fear of being harmed… through an assault, a riot, unlawful assembly or other disturbance’
R (Laporte) v CC of Gloucester Police - power of the police to stop in anticipation of breach of peace must be proportionate. Police also have power of arrest and entry under the law
AO1: Trespass to land
is a tort
remedies include injunctions or damages.
Can be a crime if:
- trespassers commit criminal damage (Criminal Damage Act 1971);
- if they have damaged the land or threatened the occupier (s.61 CJPOA);
- if it is aggravated trespass (s.68 CJPOA) or damage to an historical or scientific site (s.70 CJPOA)
AO3: Margin of appreciation
One way that Art 11 creates a fair balance between the rights of the individual and the rights of the community is the margin of appreciation that is used (P)
In many cases, where the state has taken reasonable steps, the ECtHR will give them a wide margin of appreciation which recognises that what is tolerated in one state, may not in another (DP).
However, developments in certain states have caused some concern for the Council of Europe, for example Turkey have given their police the power to carry firearms and Spain have introduced heavy fines for the organisers of spontaneous protests (WDP).
AO3: Protection of Peaceful Protest
A way that Art 11 somewhat provides a balance is that when the state takes reasonable steps to protect a peaceful protest, it is not a guarantee of safety (P).
Plattform v Austria highlighted the positive obligation to take reasonable steps in this way, but it was highlighted that they could not guarantee the safety of the protestors when they were hit by eggs (DP).
Furthermore, there is not a right to assemble wherever the group wishes to do so as seen in Appleby v UK, however, this is usually seen as an important right to uphold and has been protected by the ECtHR in DPP v Jones and the domestic (UK) courts in Tabernacle v SoS for Defence (WDP).
AO3: Joining a political party
The ECtHR have given a lot of protection to people who join a political party under freedom of association with others (P).
The ECtHR was highly critical of the case of Redfearn v UK where a member of the BNP was sacked from work despite having no allegations made against him (DP).
It said the fact there was no law to stop this from happening meant there was ‘potential for abuse’ and also said the state must make measures to protect all employees from this (WDP).
AO3: Breach of the peace
One aspect of UK law which is arguably unfair on the rights of an individual is the common law of breach of the peace where the law is vague which means it is easy to establish that a breach of the peace has occurred (P).
Although it is a civil court order that is imposed, any breach of this Magistrates’ Court order results in criminal sanctions, including prison (DP).
Moreover, the police have very wide ranging powers including the power to stop, arrest and enter property without a warrant (WDP).
In addition, kettling of protesters is sometimes also used to prevent a breach of the peace as in Mengesha and these powers have a potential to conflict with the European Convention on Human Rights, especially Article 5 and Article 10 (VWDP)
Conclusion
There seems to be an imbalance between the rights of the individual and the rights of the community. Although Art. 11 itself protects many rights of free association and the ECtHR upholds and protects these rights, introductions of UK law have left in the state with lots of power including breach of the peace and public order offences.
