The Serious Organised Crime and Police Act 2005 - Assignment Example

The Serious Organised Crime and Police Act 2005 Part A Delineate and list clearly the elements which have to be proved for an offence to occur under s 132(1) of the Serious Organised Crime and Police Act 2005. The widely criticized legislation is not absolutely for prohibiting protests in the ‘designated area’. But section 132 is designed to impose severe restrictions upon protests in the designated area. This law is so harsh that protest even by a single, stationary and silent demonstrator, is an imprisonable offence unless six days’ notice (or, if this is not practicable, a minimum of 24 hours’ notice), including notice of the duration of the protest, is given to the police. Spontaneous protest is forbidden, even if it is entirely peaceful and carried out in response to the swift pace of political events. Some question are asked here that indicate the severity of this law. 1. What defenses under s 132 can a defendant plead? The only defense a person who is accused of an offence under subsection (1) is that if proves that he/she has got permission from authorities in advance. 2. What words in s 132(1) are likely to cause problems of interpretation? Give reasons for your answer. The actual words of section 132(1) are quoted here it will help in correctly answering the question. The words are: 1) Any person who- (a) Organises a demonstration in a public place in the designated area, or (b) Takes part in a demonstration in a public place in the designated area, or (c) Carries on a demonstration by himself in a public place in the designated area, is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under section 134(2). The last portion of part (c) is somewhat confusing. It does not clearly describe that authorization before start of demonstration. 3. Where would you look within an Act of Parliament to help resolve some of these issues of interpretation? Does this Act help in any way? Interoperation for that confusing phrase is given in clause (3), it says: (3) Subsection (1) does not apply if the demonstration is- (a) a public procession of which notice is required to be given under subsection (1) of section 11 of the Public Order Act 1986 (c. 64), or of which (by virtue of subsection (2) of that section) notice is not required to be given, or (b) a public procession for the purposes of section 12 or 13 of that Act. (4) Subsection (1) also does not apply in relation to any conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52). (5) If subsection (1) does not apply by virtue of subsection (3) or (4), nothing in sections 133 to 136 applies either. (6) Section 14 of the Public Order Act 1986 (imposition of conditions on public assemblies) does not apply in relation to a public assembly which is also a demonstration in a public place in the designated area. 4. What is meant by the words “on summary conviction”? Where would such a decision be made and by whom? The word summary conviction indicates that there will be no complete trial. The authorized magistrate can summarily convict the offender. The act clearly says about summary conviction in many of its clauses. (5) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 4 on the standard scale, or to both. (7B) A person guilty of an offence under subsection (7A) shall be liable, on summary conviction, to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 4 on the standard scale, or to both. Part B Explain the legal issues in the two decisions, R v Evans and R v Haw below? Haw Case Last July Brian Haw, 56, won a legal battle to continue his vigil due to a drafting error in a new law banning unauthorised protests in Westminster. The High Court ruled in favour of Mr. Haw, from Redditch, Worcestershire, who claimed he was exempt as his protest pre-dated the legislation. The government is urging the Court of Appeal to overturn that decision. The law states that anyone wanting to demonstrate in a half-mile zone in central London must have permission from the police when the demonstration starts. Last year, lawyers for Mr Haw argued his demonstration had begun four years earlier and therefore he did not have to apply for authorisation. The government said Mr Haw posed a potential security risk and described his argument as absurd. But judges ruled by a 2-1 majority in his favour. Since then the Serious Organised Crime and Police Act 2005 has seen several demonstrations quickly disbanded - from a cabbies' protest over proposed law changes to anti-war demonstrations. But Mr Haw, the intended target of the new law, has remained in place, with his large display of anti-war banners, placards and flags. David Pannick QC, representing Home Secretary Charles Clarke, told the Court of Appeal judges: "The appeal raises a short but important, and indeed interesting, question of statutory construction." Mr Haw sleeps in the square, where he first appeared in June 2001 demonstrating against Western sanctions on Iraq. He later began protesting against British involvement in the US-led war and its aftermath. The appeal judges have reserved their decision. No date was given for the ruling. Evans Case Maya Evans, 25, recited the 97 names by the Cenotaph memorial to Britain's war dead in Whitehall, near Downing Street. She was found guilty of breaking a new law stopping unauthorised demonstration within half a mile of Parliament. The home secretary said as a young student activist he had always asked the police first before any protest. He said that he understood Ms Evans "was not prepared, as a matter of principle to seek authorisation". Ms Evans, a vegan cook from Hastings, was given a conditional discharge and ordered to pay £100 costs after being found guilty of breaching the Serious Organised Crime and Police Act 2005. When I was a young student activist we used to organise much larger demonstrations than this outside Westminster, but always agreed with the police " The question is whether within a kilometre of Parliament the kinds of demonstrations which could take place can take place without the authorisation of the police - and that's why Parliament legislated as it did," he said. "If the lady concerned had wanted to make her demonstration in the way that many, many other people make their demonstrations in Westminster, outside Downing Street, outside government offices, the police would have had no reason as far as I can see to stop her doing it. "Of course it was a modest demonstration. I think she's entitled to make that demonstration in accordance with the law - that's the way that things have always gone. Critics claim Ms Evans arrest and conviction was over the top for what was seen as a peaceful protest. They also accuse the government of clamping down on freedom of speech. But Lord Falconer, the Lord Chancellor, said the law was a "sensible" precaution to stop disorder rather than an attack on free speech. Asked about the case on Tuesday Lord Falconer said: "Freedom of speech is alive and well in this country. We are a country which could not be freer in its press, in what we say. "The idea that we take a measure, which is a public order measure, designed to protect our Parliament building, as depriving us of freedom of speech is ridiculously overdone. "There isn't a country in the world that doesn't take particular measures to protect its Parliament." The new law was initially intended to remove Brian Haw, an anti-war protester who has camped in Parliament Square for four years. Part C Arguments to be used by the appellants and defendants in these cases Majority of la lawyers, dedicated to advancing justice, human rights and the rule of law can not agree with the provisions of Police Act 2005. These arguments concerns the Serious Organised Crime and Police Act 2005 (Designated Area) Order 2005. These arguments can be produced before both Houses of Parliament on the Serious Organised Crime and Police Bill. Some amendments are proposed to the Bill for Committee stage in the House of Lords. The clauses that became sections 132-137 of the Act, are very severe as they imposed ‘severe restrictions on peaceful protest’. In relation to the clause that became section 138, under which this Order is made. People are concerned by the extent of the designated area. It is believed that if these provisions are retained the area should be designated by Parliament, rather than by granting a discretion to the Home Secretary. The maximum radius proposed is greatly excessive; a protest one kilometre from Parliament would not be heard or seen from Parliament Square. The area proposed would encompass Trafalgar Square, a traditional and important focal point for protests. It would also cover parts of Millbank, Whitehall, parts of St. James’s park and stretch across the Thames onto the south bank. Much of the area does not contain parliamentary or government buildings. There is no legitimate reason for extending the area in this way. A similar concerns about the area proposed under the Order. Freedom of expression and assembly, protected under Articles 10 and 11 of the European Convention respectively, will be seriously restricted in the ‘designated area’. The European Court of Human Rights (ECtHR) has repeatedly emphasised that freedom of expression constitutes an essential foundation of democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment1. The Commission has also said that freedom of assembly is a fundamental right in a democracy and…is one of the foundations of such a society. Interferences with the rights to expression and assembly must be proportionate and in pursuit of a legitimate aim, such as the prevention of disorder or crime. They must also be ‘prescribed by law’, which includes the requirement that the measures should be accompanied by adequate and effective safeguards to protect against arbitrary interferences with Convention rights. The effect of the Act is not altogether to prevent protest in the ‘designated area’, sections 132-137 impose severe restrictions upon it. Protest there, even by a single, stationary and silent demonstrator, is an imprisonable offence unless six days’ notice (or, if this is not practicable, a minimum of 24 hours’ notice), including notice of the duration of the protest, is given to the police. Spontaneous protest is forbidden, even if it is entirely peaceful and carried out in response to the swift pace of political events. The Commissioner’s power to impose conditions on demonstrations on receipt of a notice is very broadly drawn. A protest planned to take place in Parliament Square can be moved to another location entirely. An all-night vigil in memory of a political prisoner can be curtailed to twenty minutes and moved into the obscurity of a side-road. A group who want to form a large assembly to demonstrate the breadth of opposition to an unpopular policy can be told that only five of them can attend. A person who wants to protest about a controversial Bill during its Commons debate can be told that they can only demonstrate once the debate has concluded. Such restrictions go to the very substance of the rights under Articles 10 and 11. The Commissioner must reasonably believe the conditions he imposes to be necessary on listed grounds. However, these grounds include ‘disruption to the life of the community’. It is clear that any large demonstration is likely to cause some disruption; notably, the Convention protects peaceful assemblies even if they are disruptive.3 Further, the requirement of ‘reasonable belief’ sets a low standard, particularly since the Commissioner’s decision will usually be reviewed ex post facto when the substance of the right (e.g. to protest against a particular Bill) may have been permanently removed due to the passage of time. Section 137 of the Act also criminalizes the use of loudspeakers by protestors in the designated area. As well as making it difficult to co-ordinate songs and chants by demonstrators, we believe that the section may make it difficult for organisers to marshal demonstrators effectively and keep them in the appropriate areas – which could cause added disruption and danger. In addition to their direct effects, these sections may have a general ‘chilling effect’ on protests within the designated area and around it, since potential demonstrators may be deterred by hearing of criminal offences connected with demonstrations in central London, or of the arrest of other demonstrators. For these reasons, the area should be drawn as narrowly as possible to fulfil its stated purposes. It should not allow arbitrary restrictions on protest to take place. It should be recalled, in this context, that the police already have extensive powers of stop and search, for example under section 44 Terrorism Act 2000, as well as powers to remove demonstrators who are unlawfully obstructing the highway. The stated purposes of the Act are connected with Parliament. The relevant part of the Act is headed ‘demonstrations in the vicinity of Parliament. At Commons Committee stage, Caroline Flint MP, then a Home Office minister, said We intend to lay an order with a precise area to be covered, and we intend to consult the Metropolitan police. It will cover the area where the demonstrations will disrupt the work of Parliament and hinder access to the House. Parliament could mean Millbank, 1 Parliament Street or Norman Shaw. We have to map out the buildings of Parliament that would be affected. Unfortunately 1km radius may be excessive, but 100m or 250m might not incorporate some of those other buildings. The ostensible purpose of the law is therefore to prevent disruption to the work of Parliament and access to the House, and to assuage security concerns. However, the zone defined in paragraph 1 of the Order extends far beyond Parliament. It has clearly been designed to extend around the government buildings in Whitehall such as the Ministry of Defense and HM Treasury. It also extends across the Thames and onto the South Bank into an area that is not populated by parliamentary or even government buildings but includes instead Lambeth Palace, St Thomas’s hospital, and County Hall. One effect of this legislation will therefore be to impose severe curbs upon protest outside many key Government ministries. The Government is, to a large extent, insulating itself from the sight or hearing of peaceful demonstrations through this Order. Further, the area goes beyond that required to fulfil the stated purposes of the legislation. Security concerns may be no higher on the parts of the South Bank included than they would be in many other parts of central London. The effect of the Order as currently drafted is therefore both disproportionately to restrict the freedoms of expression and assembly and to allow arbitrary interferences with those rights. Although we oppose the relevant sections of the Act, we recommend that, if the Order is enacted, it be amended so as to confine its application to parliamentary buildings and their environs. We hope that the harmful effects of the legislation will thereby be minimised. Reference/Bibliography Statutory Instrument 2005 No. 1521 (C. 66) The Serious Organised Crime and Police Act 2005 (Commencement No. 1, Transitional and Transitory Provisions) Order 2005 National Assembly for Wales Statutory Instruments THE LAND OF FREE SPEECH? 14 Police to Arrest One Woman Who's Hauled to Court and Fined. Her Crime? Reciting the Names of Britain's Iraq Dead within Earshot of No10. (2005, December 8). The Daily Mail (London, England), p. 1. Talking of Free Speech. ANSWERS TO CORRESPONDENTS. (2006, January 16). The Daily Mail (London, England), p. 57. Read More