A Briefer on The Right to Protest and Police Powers - Assignment Example

? A Briefer on The Right to Protest and Police Powers Introduction The right to peaceful protest remains one of the central foundations of any democratic polity, and it is a right that cannot be restricted1. At several junctures in our life as a nation, street protests and demonstrations have altered the course of history and all over the world, there are examples of how public protests have toppled despotic leaderships and restored human rights and democracy. However, the right to public protest is not without limitations. The London riots have demonstrated that there is a fine line between legitimate protest and public riots and it is essential for any State to clamp down on illegal activities while maintaining and ensuring the rights of citizens to peaceful protests for valid grievances. There is always a tension between the exercise of police powers and the Constitutional requirement of preserving human rights and civil liberties. This paper analyses the legal framework surrounding the right to peaceful protest and police powers. It will look first at the law governing peaceful protest as reposed in the Human Rights Act of 1998 and the European Convention on Human Rights, as well as examine how these provisions have been interpreted in relevant jurisprudence. After which, this paper will then look into the police powers in general, examining the corners of the Police and Criminal Evidence Act 1984. Lastly, because this paper is upon the request of the National Students Organisation, this paper will also touch upon the Youth Justice Policy. Before proceeding it is important to look at the principles that undergird public protest. One of the most significant justifications for this right is that it provides an avenue for marginalised groups who otherwise would have no mainstream outlet. To quote Barnum, ‘the public forum may be the only forum available to many groups or points of view’2. This rationale is particularly important, in light of the interest group that is requesting this paper. Students often find themselves in asymmetrical relationships vis a vis their professors or their educational institutions. That is why it is absolutely vital that their rights be adequately protected. A. The UK Law on Peaceful Protest: European Convention on Human Rights and the Human Rights Act 1998 The pertinent legal provision that applies to the right to public protest is in Article 11 of the European Convention on Human Rights (hereinafter, ECHR), which states as follows: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” (first paragraph, Article 11). The second paragraph qualifies the scope of the freedom of peaceful assembly and the freedom of association, by laying down the limitations to this right and reiterating the power of agents of the state, such as the police and armed forces, to impose lawful restrictions. The restrictions to this right are as follows: (1) interests of national security or public safety, (2) for the prevention of disorder or crime, (3) for the protection of health or morals or for the protection of the rights and freedoms of others. Article 11 should be seen alongside the right guaranteed in Article 10 of the ECHR, on which is enshrined the right of “freedom of opinion” which “shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” It is important to note that these provisions carry both a negative and positive obligation for the state: the negative obligation is the obligation not to interfere in the exercise of the right to peaceful assembly and freedom of opinion, and the positive obligation is to take positive measures towards the free and meaningful exercise of these rights3. The operative word in the provision would be the word “peaceful” and there has been some debate over whether or not a particular form of protest may be denominated as peaceful. The ECHR has held that the right to peaceful assembly “is of such importance that it cannot be restricted in any way, so long as the person concerned does not himself commit any reprehensible act.4” According to Fenwick, public protest can be categorised as “peaceful persuasion, offensive or insulting persuasion, intimidation, symbolic or persuasive physical obstruction or interference, actual physical obstruction or interference, forceful physical obstruction, and violence.5” It would appear that the key variable in determining whether or not a form of protest is considered “peaceful” and is therefore covered by the guarantees under Article 11 is whether it is violent in itself, or whether the violence is incidental to the protest action.6 This essentially means that speech which are offensive, or shocking or disturbing, are still likewise covered by the protective mantle of Article 11. What are the examples of peaceful assemblies that are permissible? Mass actions, demonstrations and rallies are considered permissible7 as well as sit-in demonstrations, even if such demonstrations disrupt the flow of traffic8. The court has traditionally recognised that any demonstration may “cause a certain level of disruption to ordinary life and encounter hostility9” and demonstrators display “an arrogance which assumes that spreading the word is always more important than the mess which, often literally, the exercise leaves behind.10” In order to come up with regulations, the The Panel of Experts on Freedom of Assembly of the Office for Democratic Institutions and Human Rights (ODIHR) and the Organisation for Security and Co-operation in Europe (OSCE) have produced Guidelines on Freedom of Peaceful Assembly. In the Guidelines, it was stated: The regulatory authority has a duty to strike a proper balance between the important freedom of peaceful assembly and the competing rights of those who live, work, shop, trade, and carry on business in the locality affected by an assembly… Mere disruption, or even opposition to an assembly, is not therefore, of itself, a reason to impose prior restrictions on it. In sum, the jurisprudence of the ECHR, it would appear that the Court considers as “peaceful” behavior that may be considered insulting or offensive to others, but not behavior that would demonstrate violence or incite others to violence. Obviously, in this day and age where more daring tactics are used and where the complex problems of the day often require drastic measures from the unheard and voiceless, it is hard to draw a line and determine where the freedom ends and the incursion on other people’s rights begins. In the case of Plattform “Artze Fur das Leben” v. Austria11, the ECHR considered as protected speech a peaceful procession and open air service even though, as it said, “a peaceful demonstration may annoy or give offense to persons opposed to the ideas or claims that it is seeking to promote.” But in the case of Steel and Others v. UK12, the ECHR held that the police agents were justified in restricting the protest because they might incite other people to violence. Now we proceed to what is meant by “Assembly”. A very interesting case is the case of Kivenmaa v. Finland13. Must an assembly be organized and have a determined number of individuals participating? Kivenmaa led a group of 25 in distributing leaflets and displaying a banner to shame a visiting head of state for human rights violations in his home country. The Finnish government said that it was an assembly and since there was no notification given to authorities beforehand, it was an illegal assembly. Kivenmaa argued that she was merely exercising her freedom of expression. The Human Rights Committee held that a “gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration.14” and consequently, there was no requirement on her part to notify authorities. The ECHR must be read alongside the Human Rights Act 1998 because these two laws – one at the level of the European Union and the other at the domestic level – provide the legal infrastructure for the The Human Rights Act came into force in October 2000 and implements in the law of the United Kingdom the principles enshrined in the European Convention on Human Rights. It consists of three main innovations: first, it explicitly prohibits a state agent or public official from violating the rights enshrined in the ECHR, second, it allows UK courts to hear human rights cases without the applicant or complainant having to go to the European Court of Human Rights in Strasbourg, Austria; and third, it harmonises UK legislation with the rights embodied in the ECHR, such that if a particular piece of UK legislation is susceptible of two interpretations, the interpretation consistent with the ECHR shall be upheld. When it is impossible to interpret the legislation in a manner that complies with the ECHR, the domestic court must come up with a “Declaration of Incompatibility”. A very interesting case that came up in the post-HRA era is the case of Percy v. Director of Public Prosecutions15, in which the appellant was charged for defacing an American flag at an American air base by writing on it “Stop Star Wars” and then stomping on it. It was ultimately found that appellant’s conviction under the Public Order Act was inconsistent with her rights under the European Convention on Human Rights. More importantly, however, the court looked at public protest using the framework of freedom of expression. Indeed, we see how the jurisprudence on public protest continues to evolve, taking on different dimensions and permutations, depending on how it is interpreted at a particular juncture, and under what specific conditions. B. Police Powers This part discusses the breadth of powers given to the police to regulate and when warranted, restrict, public protests, which is found in various pieces of legislation. The Criminal Justice and Public Order Act 1994 was criticized by many for what they felt were incursions on civil liberties. There are provisions in the said Act which can be used against protesters, and which indeed had already been used. Section 60, for example, gives police officers the right to stop and search if he or she “reasonably believes that incidents involving serious violence may take place in the locality in his police area” or that “persons are carrying deadly weapons or offensive weapons.” The law also gives the police powers to remove persons attending or preparing for a rave,” such rave being characterized as one where the music is an emission or succession of repetitive beats. The Police and Criminal Evidence Act (PACE) 1984 is the main piece of legislation for the conduct and powers of police officers in England and Wales. There was much controversy that attended its enactment because many quarters felt that it gave the police too much powers. The power given to the police to conduct searches under the PACE has been the subject of criticism as well. For public protesters, it is important to remember that before a police officer can conduct a valid search, the following information must be given: the constable’s name and the name of the police station to which he is attached, the reason for the search, the grounds in law for the search, and that a copy of the search form will be made available on demand for twelve months16.   There are other police powers that have implications on the right to protest. To name a few: police officers can arrest a person for breach of the peace, which takes place when there is an act done or threatened which harms a person or his property in his presence, or puts a person in fear of such harm. The relationship of this power to public protest is manifest in the case of R (Laporte) v. Chief Constable of Gloucestershire Constabulary,17 where travellers were coming from London in the hopes of staging a demonstration. They were intercepted and held inside the coach until they got back to London. The court held that while the police might have been justified in preventing them from going to the demonstration, they were not justified in detaining them in their coaches and forcing the coach back to London. This was, according to the Court of Appeals, an encroachment on their right to liberty. Another possibility is the use of Section 30 of the Anti-Social Behaviour Act, allowing dispersal orders when there is reasonable grounds to believe that the public has been alarmed or distressed by the presence of groups of two or more persons and if Anti-Social behaviour is a common problem in the area. At this point, we must not turn our attention to youth justice policies by the government, of particular import considering that we are dealing with the issue of student groups and public protests. Since 1997, the New Labour introduced a panoply of new youth justice mechanisms designed to reflect the government’s tough new attitude against crime and disorder. The main objectives of the new policy were to reduce the number of first time entrants, to reduce re-offending, to reduce the amount of time between the arrest of an individual and his sentencing date, and to reduce the number of children in custody18. Goldson, in his article “Youth Policy: Bullying The New Labour Way” (2005) stated: “The Crime and Disorder Act 1998 served to completely restructure the youth justice apparatus. It also introduced a range of new, often repressive powers and sentencing disposals.19” The reforms that have been implemented appear to be more focused on retribution and public order, and have forgotten that criminal justice – particularly criminal justice involving children – need to have a restorative and rehabilitative component as well. In very strong words, Hogg20 called the Crime and Disorder Act 1998 “the latest step to enforce social cohesion by coercion.” In similar vein, Walsh21 stated that “the Government’s youth justice policy is more concerned with maintaining order within the community than with the welfare of the child.” Secondly, these Youth Justice policies ignore class, gender and racial fault lines. The proponents of the policy already knew that class and access to wealth and opportunity are implicated in the issues concerning youth crimes. In the Respect Action Plan, it was clearly stated that: Anti-social behavior, which is the most visible sign of disrespect, is a major social justice issue. One in three people living on a low income, in social housing or in inner cities perceive their area as suffering from high levels of anti-social behaviour. (5). Many of those who live in these enclaves are non-white minorities, often of African descent. Statistics demonstrate that “black boys are 6.7 times more likely than their white counterparts to have custodial sentences in excess of 12 months imposed upon them in the crown court, and black child prisoners are more likely than white detainees to encounter additional adversity within custodial institutions owing to racist practices.”22. This racism in the implementation of youth justices policies only exacerbate the tensions and create in the youth being incarcerated a growing sense of resentment and social isolation.Finally, an important issue that needs to be raised is the issue of procedural due process and human rights. For example, the government has set out to “preempt” crime by undertaking preemptive interventions. However, a consequence of that is that it brings to fore serious procedural due process, in particular presumption of innocence issues. What this will result in – indeed, what it has resulted in – is profiling on the basis of preconceived notions and biases, thus allowing racist impulses to influence the application and enforcement of criminal justice. This is already manifest in the responses to the London riots, with early speculation being that the rioters were black young people, when in fact a good number of them were white, middle class Britons. There is also concern that the policy allowing the Police to give reprimands and warnings would in effect make the police take on the role of “investigator, prosecutor, judge and jury”, for which they are completely untrained. In fact, to quote Bell (1999: 202) “the police are particularly poor judges of the quality of their own evidence.” It is feared that this has only resulted in, not only an ineffective mechanism to control crime, but also an ineffective mechanism to gently guide the child offender towards his or her rehabilitation. It will also create fear of authority that will only lead to more unhealthy behaviour in the future. (word count: 3030) Bibliography Aldemir v Turkey, App. No. 32124/02, 18 December 2007, Bukta v Hungary, App. No. 25691/04, 17 July 2007 Fernwick, Helen. “The Right to Protest, The Human Rights Act and the Margin of Appreciation.” (1999) 62 Modern Law Review, p. 494 G v Germany, App. No. 13079/87, 60 DR 256 Goldson, B. “Youth Policy: Bullying the New Labour Way”. (2005) Socialist Review. Available at http://www.socialistreview.org.uk/article.php?articlenumber=9543. Hogg, J. G. (1999) Crime and Disorder Act: First Crack in the Threshold. Family Law. Aug. 574 Kivenmaa v. Finland, Communication No. 412/1990, U.N. Doc. CCPR/C/50/D/412/1990 (1994). Oya Ataman v Turkey, App. No. 74552/01, 5 December 2006 Plattform "Arzte fur das Leben" (Doctors for the Right to Life) v. Austria, 5/1987/128/179 , ECHR, 25 May 1988 Rai, Allmond and "Negotiate Now" v UK (1995) 19 EHRR CD-93. Solomon, E. and Garside, R. (2008). Ten Years of Labour’s Youth Justice Reforms: An Independent Audit. London: Center for Crime and Justice Studies. Steel and Others v. United Kingdom. 67/1997/851/1058, ECHR, 23 September 1998 Walsh, C. (1999) “Imposing Order: Child Safety Orders and Local Child Curfew Schemes.” Journal of Social Welfare and Family Law. 21: 2. 135–49. Read More