Freedom of Assembly Cases Flashcards
Baczkowski and Others v Poland (2007)
ECHR Art 11
o The participants must be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents.
o ‘[T]he possibility of violent counter demonstrations, or the possibility of extremists with violent intentions, (…) joining the demonstration cannot as such take away that right.’
Arzte fur das Leben v Austria (1998)
ECHR Art 11
o Anti-abortion demonstration approved in location A
o Applied to move to location B, approved but inform organizers that police may not be able to provide protection against counter-protestors
o Applicants claim violation of Article 11 ECHR positive obligation: Austria failed to take adequate steps to ensure demonstrations occurred without any trouble.
o “A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents.”
Christians Against Racism and Fascism v UK (1980)
ECHR Art 11
o A religious group was banned from holding a march in London on the basis that a counter-demonstration by the National Front was being planned and could erupt in violence
• Previous marches had ended in violence and damage to property
o “Under Article 11(1) of the Convention, the right to freedom of peaceful assembly is secured to everyone who has the intention of organising a peaceful demonstration…the possibility of violent counter-demonstrations, or the possibility of extremists with violent intentions, not members of the organising association, joining the demonstration cannot as such take away that right.”
o “Even if there is a real risk of a public procession resulting in disorder by developments outside the control of those organising it, such procession does not for this reason alone fall outside the scope of Article 11(1) of the Convention, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that provision.”
o Overall, on balance, the ban was justified
• “A general ban of demonstrations can only be justified if there is a real danger of their resulting in disorder which cannot be prevented by other less stringent measures…”
• At the time in England, tense atmosphere resulting from a series of riots and disturbances occasioned by public processions of the National Front
• Fear of being unable to prevent grave damage to persons and property
Director of Public Prosecutions v Jones (1999)
Public Order Act 1986
• A group was organising an assembly to be held at Stonehenge. Fearing that damage would be caused to the monument, the chief officer made an order for a trespassory assembly
• The assembly went forward as planned on the highway outside Stonehenge and some people were arrested. They challenged the lawfulness of their arrest
• The protesters argued that they were not trespassing because they had a right to be on public highway for the purposes of peaceful protest.
• The questions for the Court to address:
• Does the assembly fall within the scope of s.14A of the 1986 Act: i.e. Was it a trespassory assembly?
• Had the police exceeded the limits of the public’s right of access to the highway?
• What are citizens or the public allowed to use the highways for?
• Held:
• To limit lawful use of the highway to that which is literally ‘incidental or ancillary’ to the right of passage would be to place an unrealistic and unwarranted restriction on commonplace day-to-day activities. The law should not make unlawful what is commonplace and well accepted.”
• The highway “is a place which the public may enjoy for any reasonable purpose, provided that the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass: within these qualifications there is a public right of peaceful assembly on the highway.”
• Peacefully protesting on public highways was permissible
R (on the application of Laporte) v Chief Constable, Gloucestershire (2006)
ECHR Art 11
o R (on the application of Laporte) v Chief Constable, Gloucestershire (2006)
• Police ordered a bus of protesters headed to an RAF base to return to London
• HoL found this action of the police to be unlawful
• Where no breach of the peace has yet occurred, a reasonable apprehension of an imminent breach was required before any form of preventative action was permissible. To be imminent the officer concerned must “think that [the breach] is likely to happen”
• As the chief constable did not consider a breach of the peace imminent when the coaches were stopped, his actions in ordering the coaches back to London was unlawful
• In any event, four of the five law lords held that the police action was premature, indiscriminate and therefore represented a disproportionate restriction to Ms Laporte’s Article 11 right
• “An individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour”
Austin and Another v Commissioner of Police of the Metropolis (2009)
ECHR Art 11
• The claimants had been present during a demonstration policed by the respondent
• They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours
• “The police are under a duty to keep the peace when a riot is threatened, and to take reasonable steps to prevent serious public disorder, especially if it involves violence to individuals and property. Any sensible person living in a modern democracy would reasonably expect to be confined, or at least accept that it was proper that she could be confined, within a limited space by the police, in some circumstances”
