Crowd Control Act As Legislation For Avoidness Violent Demonstrations - Essay Example

Crowd Control Act As Legislation For Avoidness Violent Demonstrations Life has a fair chance of success if it decides to challenge the decisions of Wulfrun Local Authority based on the argument that the acts of the agency is ultra vires. In the case of Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997), an act becomes ultra vires when it (a) involves the abuse of power, (b) when the entity or agency entrusted to implement a law or a statute acted unreasonably and (c) when the entity or agency did not act in accordance with the rules of natural justice. These criteria for declaring an act as ultra vires were later on affirmed in the case of Bromley LBC v Greater London Council [1983] AC 768 and in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. In the case at bar, what the Wulfran Local Authority had in mind when it enacted the Sexual Health Act 2009 was to “establish counselling services for young people in their area with a view to addressing the health risks associated with sexually transmitted disease and to advise on contraception.” Clearly, the law only talked about addressing the risks of diseases and counselling. It did not purport to adopt drastic measures such as abortion to solve problems of unwanted pregnancy. However, the implementation of the law is flawed and the people who were instructed to implement the law went beyond the call of their duty. The fact that the Wulfran Local Authority acceded to the wished of Margaret, the project coordinator, to “enter into a partnership with the local health authority whereby she and her colleagues will advise on abortion” is clearly a beyond the original intent of the law. Clearly, the act of Wulfran Local Authority fall within the first and second category set under the case of Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997). The Sexual Health Act 2009 empowered Wulfran Local Authority to provide counselling services. Counselling and abortion are two different things. They are not synonymous and much as Margaret and the Wulfran Local Authority want to help women solve their problems regarding unwanted pregnancies, they cannot just do so without any express authority as provided by law. Note that based on the Latin legal maxim “expressio unius est exclusio alterius”, what is not included in the authority conferred by law shall be deemed excluded. When it comes to the administration of the grant funds provided by the government, Wulfran Local Authority used some of the grant money it received for its counselling program to the health authority that provide abortion services and this is clearly a case of abuse of power. The Wulfran Local Authority does not have the power to channel grant funds to finance other activities and since the program is supposed to be only for counselling and not abortion, the use of the money to pay for the services of the health authority that provide abortion services is illegal. On the other hand, the contention of the Life that the abortion services provided by Wulfran Local Authority constitute a violation of article 2 of the ECHR is meritorious. The first part of Article 2 of the ECHR clearly states that “Everyone's right to life shall be protected by law.” The protection accorded by law is however not absolute. The second part of Article 2 of the ECHR outlined the exceptions when the right to life may be curtailed. These cases involve the defence against unlawful violence, the use of force to effect an arrest or to prevent a person who is lawfully detained from escaping and the use of force to quell insurrection or riot (see Section 2 paragraph 2 of the ECHR). Obviously, abortion to prevent unwanted pregnancy is not included in the exception. According to the decision of the case of McCann v. United Kingdom (1995) 21 EHRR 97, the exception provided for in Section 2 of the ECHR does not give express permission to kill but rather only permits the use of force that might deprive life in extreme situations. In fact, in certain circumstances, the government has the duty to foresee and prevent situations that can lead to the loss of life (Ovey, Clare; White, Robin C. A. (2006). Based on the rulings of the court regarding the right to life as stated in Section 2 of the ECHR, Life can successfully challenge the acts of Wulfran Local Authority. Question 2 Yes, Life has the legal standing to bring a suit against Wulfrun Local Authority for abuse of authority and misuse of power. Note that the case at bar involves public law and public interest thus, a legitimate organization which has a stake over the matter can bring a suit against the erring authority. To establish locus standi, Life need to present proofs required under the law and to fulfill a set of criteria. Although Section 31(3) Supreme Court Act 1981, has strived to provide a unified criteria on when a person or organization will have legal standing in court, the court still flip-flop on its decision when it comes to locus standi. Accordingly the case of R v Thames Magistrates’ Court, ex parte Greenbaum (1957) 55 LGR 129) for person or organization to have legal standing in court to bring an action for cirtiorari, it needs to establish a particular grievance to be resolved. On the other hand, R v Lewisham Union Guardians [1897] 1 QB 498; R v Russell, ex parte Beaverbrook Newspapers Ltd [1969] 1 QB 342) said that to file a case of mandamus, a person or an organization needs to establish a specific legal right. As a whole, the general understanding is that for a person or organization to have locus standi, it must have sufficient interest in the issue at hand. In the case of Life, it can argue that it has legal standing to file a case in court against Wulfrun Local Authority using the decision in case of R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No 2) [1994] 4 All ER 329. Actually, the case of Greenpeace is analogous to the case of Life. In our hypothetical case Life is a national organization with international links and it serves as a pressure organization and watchdog on the government and other organizations whose decisions and acts may affect the public. As an organized group with clear direction and advocacy, Life is not just a nuisance organization that is out to disturb the peace. Like Greenpeace, it has legitimate goals and is working towards the betterment of society as a whole. As a legitimate pressure group, life has the right to challenge the decisions of public bodies. As aptly states by Otton J in the case of Greenpeace, pressure groups need to have locus standi to question the legitimacy of the decisions and actions of public bodies to protect the interest of the public. Without the lawful intervention of legitimate pressure groups, a great deal of abuse of power in the government may go on unabated or unchecked. Another argument that Life can use to establish the fact that it has the legal standing to bring suit against Wulfrun Local Authority is the argument of the count in the case of R v Somerset County Council and ARC Southern Limited ex p Dixon Queen's Bench Division (Crown Office List) 75 P & CR 175, [1997] JPL 1030. According to the court in this case, a well placed call of the attention of the court regarding the misuse of public powers or the abuse of public authority is meritorious. In the case of Life, going to court and challenging the authority of the Wulfrun Local Authority to provide abortion services in line with the provisions of Sexual Health Act 2009 may prove to be successful. Question Three Based on the provisions of Public Order Act 1986, there are at least two possible public order offences committed in the scenario namely, the violation of Section 4: Fear or provocation of violence and 5: Harassment, alarm or distress. Under Section 4, a person is said to be guilty of fear or provocation of violence when “(a) uses towards another person threatening, abusive or insulting words or behaviour, or (b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting, with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked (see Section 4 paragraph 1 Public Order Act 1986).” Under Section 5, a person is said to be guilty of harassment, alarm or distress if he/she (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. (see Section 5 paragraph 1 Public Order Act 1986) of the” This type of offence may be committed by a person both in public and privates places. However, “no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling” (see Section 5 paragraph 2 Public Order Act 1986). In our hypothetical case, thirty local members of Life protested in the premises of the counseling services. The members displayed placards depicting aborted foetuses. The pictures displayed by the group were undoubtedly gruesome that a passer-by fainted upon seeing them. Moreover, the group called Margaret a murderess and engaged in a heated argument with her. This situation potentially falls within the ambit of Section 5 of Public Order Act 1986. Most of the elements required under the law are present namely (a) the use of threatening and abuse words, (b) the display of writings containing threatening and abusive words which caused alarm and distress, and (c) the offence being committed in a public place. Another potential violation of the law occurs when Richard, a member of the crowd, grabs the placards and threatened George. The act of Richard constitutes a possible violation of Section 5 of Public Order Act 1986. The possible elements of the offence present in this scenario are (a) the use of abusive and threatening words, (b) the threat of unlawful violence and (c) the commission of the aforementioned acts in a public place. Note that in this case, there is strong evidence that violence would result from the arguments between Richard and George. The aggressive act of Richard is tearing down the placards can incited passionate response which could result in unlawful acts of violence. Since there was no clear showing that indeed acts of violence occurred during the confrontation, we cannot say for sure if there was a violation of Section 2 (violent disorder) of Public Order Act 1986. Question Four The legitimacy of the arrest of Sam, George and Jenny is arguable. Note that there are two potential public offences in this case and these offences have different requisites that need to be met before the police or the constable can make arrest. For offences under the provisions of section 4 of Public Order Act 1986, the police “may arrest without warrant anyone he reasonably suspects is committing an offence under this section” (see Article 4 par 3 Public Order Act 1986). In other words, upon arrival at the scene and the police may immediately arrest persons whom they believe to be involved in the crime. In our case, only Richard and George were engaged in a potentially violent situation. In the absence of any reasonable evidences that points to the fact that Sam and Jenny also committed acts of violence, the police cannot lawfully arrest them. Given this situation, we can say that only George may be lawfully arrested. Can Sam, George and Jenny be arrested within the ambit of Section 5 of the Public Order Act 1986? No. Under Section 5, before the police or the constable can arrest the offenders, he needs to issue warnings to the offenders first. If the offenders continue to perform the act after being asked to stop by the police or the constable, then that is the time when they may be arrested. In the case at bar, the constable did not issue warnings to the alleged perpetrators before making an arrest. In effect, if such arrest is based on violations committed under Section 5, such arrest can be considered as arbitrary or unlawful. Question Five According to Article 15 of the ECHR, derogation means the partial revocation of a law. It can also mean a delay in the implementation thereof. Since derogation can have huge consequences, states are encouraged to exercise this right caution. In effect, states cannot exercise this right without meeting certain criteria. In order for the contracting states to validly exercise their right to derogation, a state of emergency much be present giving rise to (a) actual or imminent disasters ( see A v United Kingdom( 2009) ECHR 301 paragraphs 181 and 190), (b) the emergency involves the whole nation ( see A v United Kingdom ( 2009) ECHR 301 paragraph 177), (c) the situation threatens the existence of organized life in the community or the nation (see Aksoy v. Turkey (1997) 23 EHRR 553 paragraph 70), and (d) when the restrictions or measures allowed under the ECHR are plainly inadequate to meet the situation at hand ( see Greek case (1969) 12 YB 1 at 71-72, paragraphs 152-154). In our hypothetical case, the attempt of the state to exercise its power of derogation by enacting the Crowd Control Act 2008 is unreasonable and unlawful. First, we have to consider that in our hypothetical case, there was not clear showing that the country was under a state emergency which warrants the government to enact measures to control the movements of individuals. In fact, the case did not mention also situation which may constitute imminent danger to the state and to its citizens. What the case merely pointed out was that the government wanted to ensure that the town centre is free from violent demonstrations. Although a state does not need to wait until disaster strikes before it exercise its rights to derogation, the enactment of the Crowd Control Act 2008 is still questionable. Since violent demonstrations in the town centre obviously does not warrant a national emergency (see A v United Kingdom (2009) ECHR 301) nor does it threaten the organized life of the country (Aksoy v. Turkey (1997) 23 EHRR 553), the derogation could not be considered as valid. The treatment of the police on the alleged violators of Crowd Control Act 2008 is another matter. Note that the Act provides that a group of more than 10 people who are static can be arrested for violation of the Prohibited Assembly provision of the Crowd Control Act 2008. Clearly, this provision effectively deprived people the right to peacefully assemble. Moreover, as stated in the facts of our case, the demonstrators were corralled for 1 hour and they were arrested and charged thereafter by virtue of the Prohibited Assembly provision of the law. There was no clear showing as to whether or not these people were informed of the nature of their offences or if they were accorded due process of law. Technically, the Prohibited Assembly provision is a direct contravention of Article 5 of the ECHR which guarantees the right to liberty and security. Since the criteria for derogation has not been met in this case, the implementation of Crowd Control Act 2008 can be challenged in court. References: 1. A v United Kingdom( 2009) ECHR 301 2. Aksoy v. Turkey (1997) 23 EHRR 553 3. Bromley LBC v Greater London Council [1983] AC 768 4. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 5. European Convention on Human Rights 6. Greek case (1969) 12 YB 1 7. McCann v. United Kingdom 1995) 21 EHRR 97 8. Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997) 9. Public Order Act 1986 10. R v Inspectorate of Pollution, ex parte Greenpeace Ltd (No 2) [1994] 4 All ER 329 11. R v Lewisham Union Guardians [1897] 1 QB 498 12. R v Russell, ex parte Beaverbrook Newspapers Ltd [1969] 1 QB 342) 13. R v Somerset County Council and ARC Southern Limited ex p Dixon Queen's Bench Division (Crown Office List) 75 P & CR 175, [1997] JPL 1030 14. R v Thames Magistrates’ Court, ex parte Greenbaum (1957) 55 LGR 129) Read More