The Criminal Justice And Public Order Act - Case Study Example

 The Criminal Justice And Public Order Act 1. Life seeks to challenge the local authority on two grounds, i.e., (a) abortion is ultra vires and (b) is in violation of Article 2 of ECHR. At the outset, it may be difficult for Life to win a suit premised on the bases that abortion is ultra vires, because it would then have to prove that Wulfrun local authority is acting beyond its delegated powers. The Sexual Health Act of 2009 however, specifically allows it to advise on contraception and it could be argued that abortion is a form of contraception. This would make it difficult for Life to argue that the local authority is acting outside the scope of its powers, since it could be argued that legislation does support its activities. Article 2 of the European Convention of Human rights states that “everyone’s right to life shall be protected by the law” unless the individual has been sentenced to execution on the basis of a sentence of a Court of law. The ECHR1 is based upon the Universal declaration of Human Rights2, in which Article 1 states clearly that “all human beings are born free and equal in dignity and rights.” (Copelon et al, 2005:120). Life’s chances to win this suit on the basis of application of Article 2 appear doubtful, because the precedent established by the Courts has not generally supported the position that the fetus is a person and thereby entitled to the protection of Article 2 of ECHR. The major, and possibly the only issue that Life can put forward to support its position however, is the fetal right to life, which was also the issue in the case of Vo v France3 before the European Court of Human Rights. A doctor in France was negligent in providing pre-natal care, which resulted in the abortion of a pregnancy that was wanted by the parents. The ECHR however did not directly address the issue of whether or not a fetus is a person; rather it acquitted the doctor by finding that the 20 to 21 week old fetus did not qualify as a human person under the French criminal code. Since Article 2 states “everyone’s right to life”, it may be argues that this includes the fetus as well, but the ECHR has not clarified this issue in the Vo v France ruling. Since ECHR is based upon the Universal Declaration of Human Rights, which clarifies the necessary precondition of “human being” to be entitled to rights, it may be difficult to prove the fetus is a “human being”. As Copelon et al (2005) have also pointed out, most legal instruments formulated in favour of protection of the right to life are directed to people after they have been born and not before. Hence Life’s chances to win this suit may be limited. 2. Where locus standi is concerned, an individual directly affected by a decision by a local authority would have standing to challenge it through a judicial review application. Where third parties are concerned however, it would first be necessary to establish that the third party in question has “sufficient interest” in the impact of such decisions, as was set out in the Fleet Street Casuals Case4. Where the organization Life is concerned, it is not an individual directly impacted by the decision of the Wulfrun authority to provide abortion counselling services, hence it would be classed as a third party that is interested in ensuring that abortion is not offered as one of the contraception alternatives. Therefore, it would also be necessary to establish that Life has sufficient interest in the matter. While it could be argued that Life’s aims and objectives are to prevent abortion, hence it has sufficient interest in preventing an initiative by the local authority to make abortion easily available through the local hospital, this may be difficult to sustain, since the Sexual health Act of 2009 does empower active counselling on contraceptive measures. Working in Life’s favour however, is the legal precedent established in two cases that have allowed a locus standi for third parties, i.e., Covent Garden Community Association Ltd v Greater London Council5 and R v North Hertfordshire District Council, ex parte Sullivan.6 In both these cases, it was decided that third parties in general do have locus standi; however in the Covent garden case, the decision was not set out in favour of the third party because the case did not establish that the local authority has acted ultra vires. Applying these precedents, Life may be able to establish locus standi to contest a decision of the Wulfrun authority, but it would also concomitantly have to prove that the local authority was acting outside the designated scope of its powers. Since the Sexual Health Act of 2009 may be applied and would appear to support Wulfrun’s counselling services on abortion, it may be difficult for Life to prove that Wulfrun has been acting ultra vires. If Life is to successfully establish locus standi in this case, the best way may be for a member of Life directly affected by the abortion services offered by Wulfrun Authority to file suit, on grounds of emotional and mental distress and loss. For instance, in the case of R v Greater London Council ex parte Blackburn7, Mr and Mrs Blackburn challenged the local authority on their film censorship functions on grounds that the test used by the local authority to determine the extent of pornographic content in films was invalid. They contended that since they were taxpayers and lived in the local region and also had children who could be affected by the pornographic content of films, they had locus standi to challenge the legality of the test set out by the local authority since it directly affected them. This may also be relevant and applicable in the case of Life, if one of its members filed the case, because individual locus standi could be easily established. 3. The Public Order Act of 1986 would apply in this instance and the members of Life could be held to be guilty of gathering for a common purpose that is potentially criminal8. The European Convention of Human Rights includes among its umbrella of rights guaranteed to people, the right to freedom of speech and association which may also include the freedom to protest9. But this right to public assembly is not one of the fundamental rights, such as that of the right to life or the right against torture10, therefore these rights may be regulated to some extent by the Government through the police in the interest of maintaining law and order and Life’s exercise of its right to protest may fall outside the purview of the rights guaranteed under the ECHR. Life may therefore be guilty of violating public law and order. Life’s actions may also violate the provisions of the Crowd Control Act of 2008. Firstly, they have chosen to gather outside the Town Center, which is specifically prohibited. Secondly, Life’s static group comprises 30 persons whereas the maximum number allowed is only 10. Additionally, the confrontations between Sam and Margaret on the one hand and George and Richard on the other hand, may be construed to have moved beyond the limits of acceptable conduct that falls within the parameters of law and order. Applying Section 5 of the Public Order Act, any kind of disorderly behaviour that causes anxiety or distress to another person would be construed as an offence. Sam accusing Margaret of being a murderess does fall within this category of offence. Similarly, the pictures of aborted foetuses would, without doubt, cause distress and anxiety, as demonstrated in Gladys fainting out of shock after seeing the pictures. Richard and George’s altercation which is threatening to get nasty could also constitute a serious disturbance of the public peace. 4. The provisions of the Public Order Act, as extended into the Criminal Justice and Public Order Act of 1994 to cope with criminal and terrorist elements, has resulted in a wider range of activities being construed as criminal offences.11 Since the Security Services Act of 1996, the meaning of public assembly and public protest has taken on a new meaning, because the Security Act of 1996 it sets out a principle of “common purpose” to control the public agenda in the interest of controlling terrorism and public disorder, so that; “conduct which constitutes one or more offences shall be regarded as a serious crime where it involves conduct by a large number of persons in pursuit of a common purpose.”12 It is this definition of common purpose that renders most public assembly potentially criminal. It enhances police control by indicating that even minor offenses such as trespassing or holding marches without gaining the consent of the police could be deemed to be a criminal activity13. Ultimately, any group of public persons who demonstrate to express their protest against a particular policy or for a particular reason which is not necessarily criminal in nature, are doing it for some “common purpose” and thus can be liable. The use of disorderly behaviour that could cause another person to feel distress or anxiety would itself be construed as an offence.14 All of these can be applied in Life’s case and easily establish that criminal liability does exist and it could be argued that the arrest of Sam, George and Jenny was a legitimate and legal response by the police. Gathering outside the Town Center in numbers sufficient to be intimidating to other members of the public seeking to use the abortion counselling services could constitute a “common purpose” which is also in contravention of the existing legislation. Moreover, the Crowd Control Act of 2008 specifically gives the police permission to immediately arrest members of a static group in excess of 10 members gathering outside the Town Center. In addition, the three members of Life were engaging in acts that were causing distress to members of the public, i.e., by handing out pictures of aborted foetuses; therefore the police were well within their rights. 5. In the context of the ECHR, derogation is the right of a public authority to bypass its obligation to adhere to the articles and the freedoms that must be assured under them. Article 15 of the ECHR specifically provides that “in time of war or other public emergency threatening the life of the nation”15, it would be acceptable for “any high contracting party” to take measures to eschew its obligations to the extent that the exigencies of the situation demand. There is however an additional stipulation under Article 15, that the derogation and measures taken in this regard must not be in contravention to other obligations due from Governments under international law. The principle of proportionality requires that from the perspective of international law, justifying abrogation requires that the severity, duration and scope of the public emergency need to be established16. Applying these principles, a State that seeks to implement a measure to abrogate its obligations under ECHR must satisfy two tests: (a) establish that exceptional circumstances of public emergency exist that justify abrogation because it threatens the life of the nation, i.e, designation and (b) measures of abrogation would specifically address the emergency in question, i.e, the interference issue17. In passing the Crowd Control Act of 2008, the Government has essentially provided the police powers to arrest individuals gathering in excess of 10 members outside the Town Center. This arises in contravention of Article 5 of the ECHR that states: “Everyone has the right to liberty and security of person”, meaning that they cannot be arrested without showing due cause for such action. Applying the two principles of proportionality outlined above, it must be noted that while terrorism may constitute an adequate threat to justify abrogation of Article 5, the Government may not be able to adequately justify the existence of such a threat to the extent that it poses an immediate threat to the life of the nation. Neither would the immediate arrest of more than 10 persons gathering outside the Town Center automatically address such a threat. Members of the public gather outside the Town Center to express their concerns about public affairs and their rights to freedom of assembly and expression of ideas would be severely restricted by the Crowd Control Act of 2008. Such measures therefore constitute a violation of the fundamental rights to life, liberty, privacy and security enshrined in the ECHR. When examining the steadily expanding powers that are being handed over to the police through legislation, it may be noted that the basic issue is the abrogation of the safeguards of the criminal process, as Lord Nicholls outlines: “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford”18. This abrogation has also steadily extended into the civil process and the curtailment of freedoms has affected not only the so-called terrorists but also members of the general public. , Lord Macintosh of Haringy had spoken out on the provisions concerning public order in the Criminal Justice Act of 1994 and has stated unequivocally that “these are repulsive extensions of police power in our society and at some stage, they will have to be removed.”19 On this basis, the derogation of the Government through the institution of the Crowd Control Act of 2008 does not appear to be justified on the basis of proportionality. It satisfies neither the designation issue nor the interference issue and may therefore not be justified. References: Annonymous, 1995.The Criminal Justice And Public Order Act 1994: What’s in it for you. New Statesman and Society London: February 17, 1995: 8(340) pp SS7 Annonymous, 1995.The Criminal Justice and Public Order Act 1994: What’s in it for you. New Statesman and Society London: February 17, 1995: 8(340) pp SS7 Britain: A blow for democracy: law Lords The Economist , December 18, 2004: 373(8406), pg 46 Copelon, Rhonda, Zampas, Christina, Brusie, Elizabeth and DeVore, Jacqueline, 2005. “Human rights begin at birth: International law and the claim of fetal rights”, Reproductive Health Matters, 13(26):120-129 Eissen, M, 1993. ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’ in R St J Macdonald, F Matscher and H Petzold (eds), The European System for the Protection of Human Rights (Dordrecht, Boston: Martinus Nijhoff, 1993) 125‑37. Tierney, S, 2005. ‘Determining the State of Exception: What Role for Parliament and the Courts?’ 68(4) Modern Law Review 668. Wasik, Martin and Taylor, Richard, 1994. Blackstone’s Guide to the Criminal Justice and Public Order Act 1994 London: Blackstone Press at pp 81 Legislation Cited: European Convention of Human Rights Public Order Act of 1986 Security Service Act of 1996 Universal Declaration of Human Rights Cases cited: Covent Garden Community Association Ltd v Greater London Council (1981) JPL 183 IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] STC 260, [1982] AC 617) R v Secretary of the State for the Home Department, ex parte Brind (1991) AC 696 R v Greater London Council ex parte Blackburn (1976) 1 WLR 550 R v North Hertfordshire District Council, ex parte Sullivan (1981) JPL 752 Vo v France App no 53924/00, European Court of Human Rights, 8 July, 2004. Read More