Freedom of Assembly (L34/35)

Question 1

What does A11 of the ECHR (freedom of assembly) state?

Answer 1

1. Everyone has the right to freedom of peaceful assembly…
2. No restrictions shall be placed on the exercise of [this] right[] other than such as are prescribed by law and are necessary in a democratic society in the interests 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…

Question 2

What is significant about the case of Beatty v Gillbanks (1882) 9 QBD 308 (DC) and what does it tell us about the common law foundations of the right to freedom of assembly?

Answer 2

Salvation Army and Skeleton Army, in Western-super-Mare, Somerset.

Salvation Army could not be stopped from doing something lawful because of the unlawful behaviour of others (unless the unlawful behaviour was the “natural consequence” of the Salvation Army’s actions).

Echoes of the rule of law here: compare Entick v Carrington (1765).

Question 3

What does the case of Duncan v Jones [1936] 1 KB 218 (DC) tell us about the restrictions to the common law freedom of assembly?

Answer 3

Duncan wanted to address an assembled gathering in the street.
Police reasonably apprehended a breach of the peace and instructed Duncan not to address the crowd.
She continued, and was arrested for obstructing an officer in the execution of his duty.
The court convicted her. How to square this with Beatty v Gillbanks?

Question 4

What does the case of Redmond- Bate v DPP [2000] HRLR 249 (DC) tell us about the law today?

Answer 4

An arrest for obstruction of police officer in execution of duty will be lawful only if the police officer is acting in execution of duty.
Exercising powers to prevent breach of the peace will be lawful only if the police officer reasonably apprehends an imminent breach of the peace.
Even then, police action must be proportionate.
Provoking a crowd to violence = the police may intervene on the speaker/protestor.
A crowd acting violently (or threatening to) where that is not the natural consequence of the speaker’s actions = the police should intervene on the crowd, rather than on the speaker/protestor.

Question 5

What happened in the case of Moss v McLachlin [1985] IRLR 76?

Answer 5

Striking miners were prevented from proceeding to a colliery two miles away because police apprehended that, at the colliery, there would be a breach of the peace.
- Reasonable?
- Imminent breach of the peace?
- Very abstract… flexible….
Police action upheld as lawful.

Question 6

What is significant about the case of R (Laporte) v Chief Constable Gloucestershire [2006] UKHL 55?

Answer 6

UKHL, overturning lower courts, ruled that the police had acted unlawfully — they had acted to prevent a breach of the peace from becoming imminent rather than acting in the face of a breach of the piece that was imminent.

Central role of proportionality in the UKHL judgments – police action was premature but also indiscriminate (in failing to distinguish between lawful and violent protestors).

Question 7

What does the case of Austin v MPC [2009] UKHL 5 tell us about the law surrounding police kettling?

Answer 7

Breach of Article 5 ECHR (right to liberty and security of the person)?
UKHL held: no breach of Convention rights.

ECtHR upheld this verdict, on the basis that the police had take the “least intrusive and most effective” action to contain a “volatile and dangerous” situation (para 66).

Applied (and extended?) in R (Hicks) v MPC [2017] UKSC 9, concerning anti-monarchy protestors at Prince William’s wedding.

Question 8

What are the major offences under the Public Order Act 1986?

Answer 8

Riots (s1); Violent disorder (s2); Affray (s3); Fear or provocation of violence (s4).

Question 8

What is the offence of riots under s1 of the Public Order Act 1986?

Answer 8

12 or more people.
Using or threatening violence.
Causing fear for personal safety.
Max sentence 10 years.

Question 9

What is the offence of violent disorder under s2 of the Public Order Act 1986?

Answer 9

3 or more people.
Using or threatening violence.
Causing fear for personal safety.
Max sentence 5 years.

Question 10

What is the offence of affray under s3 of the Public Order Act 1986?

Answer 10

A person.
Using or threatening violence.
Causing fear for personal safety.
Max sentence 3 years.

Question 11

What is the offence of fear or provocation of violence under s4 of the Public Order Act 1986?

Answer 11

A person.
Using threatening or abusive words or behaviour.
Intent to cause fear of immediate violence.
Max sentence 6 months.

Question 12

What are the minor offences under the Public Order Act 1986?

Answer 12

Intentional harassment, alarm or distress (s4A); Harassment, alarm or distress (s5).

Question 13

What is the offence of intentional harassment, alarm or distress under s4A of the Public Order Act 1986?

Answer 13

Using threatening, abusive or insulting words or behaviour, or disorderly behaviour.
Intending to cause another person harassment, alarm or distress.
Max sentence 6 months.

Question 14

What is the offence of harassment, alarm or distress under s5 of the Public Order Act 1986?

Answer 14

Using threatening, abusive or insulting words or behaviour, or disorderly behaviour.
Having the effect of causing another person harassment, alarm or distress.
Max sentence a fine.

Question 15

What happened in the case of Brutus v Cozens [1973] AC 854?

Answer 15

Predecessor offence was not committed by anti-apartheid protestor protesting on court at Wimbledon, on basis that the protest was not ‘insulting’.

Question 16

What happened in the case of Norwood v DPP [2002] EWHC 156 (Admin)?

Answer 16

Offence was committed by display of BNP poster showing the Twin Towers in flames and the words “Islam out of Britain”.
Conviction later upheld in ECtHR in Norwood v UK.

Question 17

What are there regulatory powers under the Public Order Act 1986?

Answer 17

s11: Requirement to give advance notice of public processions.
s12: Power to impose conditions on public processions.
s13: Power to prohibit public procession.
s14: Power to impose conditions on public assemblies.
s14A: Power to prohibit trespassory assemblies (added in 1994).

Question 18

What is the regulatory power to impose conditions on public processions under s12 of the 1986 Act?

Answer 18

If senior police officer believes of threat of serious public disorder, serious damage to property, or “serious disruption to the life of the community”, or because purpose of procession is “the intimidation of others”; conditions may extend to the proposed route of the procession.

NB police powers extended and clarified in Police, Crime, Sentencing and Courts Act 2022.

Question 19

When may s13 of the 1986 Act be exercised?

Answer 19

Exercisable by public authority on application of chief constable, if police believe s12 powers insufficient.

Question 20

What did Serious Organised Crime and Police Act 2005, ss132-8 do and what has it been replaced by?

Answer 20

Made it an offence to organise or participate in a demonstration within 1km of Parliament Square without prior permission of police.

Repealed and replaced by fresh provisions in the Police Reform and Social Responsibility Act 2011, Part 3 (ss141-149A).

Question 21

What happened in the case of Hall v Mayor of London [2010] EWCA Civ 817?

Answer 21

Regulations made by the GLA to clear Parliament Square of protestors who had been encamped there were lawful and were not a disproportionate interferences with Articles 10 and 11 ECHR.

Question 22

What does the Serious Organised Crime and Police Act 2005, ss128-129 do?

Answer 22

Make it an offence to trespass on a designated site. The Scottish Parliamentary Estate was designated as such a site in Oct 2021.

Question 23

What is significant about the case of DPP v Jones [1999] 2 AC 240 (HL)?

Answer 23

Earlier case law held that reasonable use of the highway must pertain to passage and repassage (and anything ancillary or incidental to passage).

HL liberalised this. Lord Irvine LC said: “the public highway is a public place which the public may enjoy for any reasonable purpose” provided it is neither a nuisance nor an obstruction.

Question 24

What happened in the case of DPP v Ziegler [2021] UKSC 23 and why is it significant?

Answer 24

Div Ct ruled that Ziegler being charged with this offence was compatible with A11; UKSC overturned this.
Majority ruled that A11 means that to engage in public protest must now be understood as a lawful excuse for the purposes of the offence, and that this lawful excuse needs to be weighed against the public’s right to use the highway for free passage.

Here, given the nature of the road (just an access route to the actual arms fair, not for other members of the public) and the duration of the obstruction, charging Ziegler with the offence was held to be disproportionate.

Thus, the deliberate physical obstruction of the highway is now within the scope of “peaceful” assembly under A11.

Question 25

What is set out in the Public Order Bill (2022-23)?

Answer 25

New criminal offences of locking-on and tunnelling.
New police powers of stop and search (even without reasonable suspicion).
Parliament’s Joint Committee on Human Rights has warned the Bill may be in breach of A11.

Opposition amendment has added new provision creating a “buffer zone” around abortion clinics. Similar provision in NI was upheld by UKSC in Reference by Attorney General for NI [2022] UKSC 32. Similar legislation has been proposed by Scottish Ministers.