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The Question centres around the Nature of Right to Protest and Limitations of these rights. What are these limits? Cite recent cases and challenges. Include cases DPP v Jones, Paul and Others v Mayor of London, City of London v Tamesamede and Others Dicuss Art 10 and 11 ECHR. Public Order Act 1986 and Common Law authority.  Include LaPorte and especially LJ Binghams opinion. The increase in Public Order Laws and Police Powers.Over extension of Police powers. Increased criminal offences relating to same ….what is behind this ? Serious Organised Crime and Police Act 2005. Also discuss  ‘kettling’ Austin and Others …proportionate ? Moral Conventions v Political Conventions. To what extent has  our Constitutional Arrangement strayed away from our democratic ideals

The purpose of this essay is to examine the nature of the Right to Protest and the limitations upon these rights.

Background

There has been great debate regarding the Right to Protest. The debate has largely centered around the character and scope of the human rights to the notions of assembly and freedom of speech: Articles 10 and 11 of the European Convention on Human Rights. Interestingly, the right to protest has gained significant attention with the Occupy London, Occupy ‘the Banks’ protests across most Western nations: see: Hirst v Chief Constable of West Yorkshire (1986) 85 Cr App Rep 143; DPP v Jones [1999] 2 AC 240. The Occupy London protests have brought attention to the careful balance that must be in order to uphold the rights of individual protesters and that of the right of the public, or private entities, to not be the subject of undue interference.

The Right to Protest

The recent judgment of City of London v Samade & Ors [2012] EWCA Civ 160, raised several important nuances regarding the Right to Protest and Assembly. By way of background, it is useful to note that the right to protest in a fundamental tradition in both the history of the common law and, more generally, politics in England and Wales: see, for example, Bill of Rights 1688 s 5 (repealed), Public Order Act 1986. The later act came about as a result of the Southall riots of 1979 and the Brixton riots of 1981. In a more holistic analysis, the right to protest in the UK was more of a negative right, as opposed to a positive one. To expand on this, it is useful to refer to Duncan V Jones [1936] 1 KB 218 where it was held by Lord Heward CJ at 222 ‘English law does not recognise any special right of public meeting for political or other purposes. The right of assembly . . . is nothing more than a view taken by the court, of the individual liberty of the subject’. This was again enunciated in R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 where it was stated by Lord Bingham that‘the approach of the English common law to freedom of expression and assembly was hesitant and negative, permitting that which was not prohibited . . . “it can hardly be said that our constitution knows of such a thing as any specific right of public meeting’. Despite this, the right to assemble after passing of the Human Rights Act 1998 has lead to a positive right to assemble peacefull and has been argued to be a true change in the constitution of England and Wales: Redmond Bate v DPP (1999) 7 BHRC 375. However, this change has not come without resistance and there have been some laws passed to criminalise the right to protest:  Serious Organised Crime and Police Act 2005 Pt 4.

Under the ECHR, everybody is entitled to the right to freedom of assembly: Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the European Convention on Human Rights) art 11.1. The Convention is incorporated in the United Kingdom by the Human Rights Act 1998. There is no allowance for restrictions on the utilisation of this right. Thus, since freedom of assembly is a ‘convention right’ for the purposes Human Rights Act 1998 and it is thus in contravention for any public authority to against in contradiction to it:  Human Rights Act 1998 ss 1(1)(a), (3)26Sch 1.

Limitations and scope of the Right to Protest

The right to assemble and protest is intended to be interpreted broadly with reference to its purpose: Djavit An v Turkey (2003) 40 EHRR 1002, ECtHR. It is, at its core, a negative right not intended to be hampered or curbed by the government. However, the state is obligated to take pro-active steps to guarantee that the right to peaceful assembly: see, for example, Plattform Arzte fur das Leben v Austria (1988) 13 EHRR 204. It is evident that the right to peaceful assembly is neither given oxygen nor detracted by the actual intentions of the protest themselves nor by the number of people who support the protest: City of London Corporation v Samede [2012] EWHC 34 (QB) at [155]:

‘it is not for the court to venture views of its own on the substance of the protest itself, or to gauge how effective it has been in bringing the protesters’ views to the fore. The Convention rights in play are neither strengthened nor weakened by a subjective response to the aims of the protest itself or by the level of support it seems to command . . . the court cannot — indeed, must not — attempt to adjudicate on the merits of the protest. To do that would go against the very spirit of the European Convention on Human Rights art 10 and art 11 . . . the right to protest is the right to protest right or wrong, misguidedly or obviously correctly, for morally dubious aims or for aims that are wholly virtuous’

Practically speaking, the Right to Protest and Assembly is extended to the way in which protestors aim to communicate their opinions and to the location where they wish to express their views: Mayor of London (on behalf of the Greater London Authority) v Hall [2010] EWCA Civ 817. It incorporates the participation in private and public meetings: Rassemblement Jurassien and Unité v Switzerland (1979) 17 DR 93.

Article 11 is a right which can only be restricted in the cases where interests of national security, public security, health are at risk: Mayor of London (on behalf of the Greater London Authority) v Hall [2010] EWCA Civ 817. Each interference with Article 11 needs to be proportionate: European Convention on Human Rights art 11.2; Baczkowski v Poland (2007) 48 EHRR 475, ECtHR.

In other words, the more fundamental question is how precisely the courts focus on the reasons put forward for curbing the right to protest under Article 11. This, of course, relies on interpretation on a case-by-case basis and is thus one open to differing views.

 

 

 


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