The late, great John Peel was renowned for playing records at the wrong speed, so much so that a compilation of music that he championed through the 70s and 80s was called “Right time,, wrong speed”. The same might be said for the Supreme Court following judgment yesterday (Lord Kerr giving the single speech) in DB v Chief Constable of PSNI, the case arising out of the policing of flag protests that occurred in Belfast for a few months in late 2012 and early 2013. This blog is not going to be a detailed summary of the decision, something Leanne Woods has provided today on the UK Human Rights blog. Instead, it offers an alternative perspective on the critical part of the judgment that goes to the scope of Art 11, which protect peaceful assemblies, and the nature of the police’s duties and power in relation to such protests. The analogy with John Peel is apt: the Court was correct in the view it reached on the (non) policing of the loyalist flag protests but its reasoning is flawed. Indeed, that reasoning – unless nipped in the bud – opens up the prospect for restrictive policing, in Northern Ireland and on the mainland, in the future.
The gist of the case – a judicial review – was that in deciding they did not have the power to take preventive action in respect of protests that had not been notified under s.6 of the Public Processions (Northern Ireland) Act 1998, the police, specifically ACC Kerr (Gold Command) had misconstrued their legal powers. In doing so, they misunderstood the nature of Art 11 and undermined the 1998 Act. The Chief Constable lost in the High Court – Treacy J deciding that in considering whether to stop the marches, ACC Kerr felt he was inhibited from doing so by the 1998 Act and thus “labouring under a material misapprehension as to the proper scope of police powers and the legal context in which they were operating” – but succeeded before the Northern Ireland Court of Appeal (Sir Declan Morgan LCJ, Girvan LJ and Weir J [2014] NICA 56). There, the central issue was whether the police response to the parades was based on the need to take account of “the possibility of violence and disorder giving rise to article 2 risks both in the immediate vicinity and in the wider Northern Ireland community”.
The Supreme Court reversed the NICA, and found for DB. There are interesting discussions in the judgment on operational policing discretion in the context of protests (at [71]-[76]) but this is not our concern. In Lord Kerr’s view, in their handling of the flags protests, the PSNI misconstrued their legal powers to stop parades passing through or adjacent to the nationalist Short Strand area of Belfast. The extent of their powers and indeed duty (under s.32 of the Police (Northern Ireland) Act 2000, a general duty to prevent the commission of offences) was not “legally complicated” ([65]), though as Lord Kerr conceded, this was perhaps clearer only in hindsight. I too think the legal position is relatively straightforward… only not in the way the Supreme Court did.
The nub of the finding – and we see this in several places – is that a protest that is not notified is illegal and, as a matter of law, that this then required the police to take preventive action. The police – and this is the Court’s view, albeit very much a paraphrasing – were doubly wrong: not only did they not have any power to prevent marches that had not been notified, but they had a duty to prevent them.
Contrary to ACC Kerr’s stated position, they could indeed be stopped solely because they were unnotified. There certainly was such a thing as an illegal parade under the Public Processions Act ([65]).
It is here where I think the Supreme Court errs. It is the case that where the proposed organiser of a public procession fails to give notice to the police, both the organiser and (in Northern Ireland) anyone who takes part in it leave themselves exposed to arrest under s.6(7) of the 1998 Act. Does this mean the protest march is illegal or unlawful? The law needs to distinguish actors from event. While from a legal perspective it must be hard to disaggregate “the march” from those taking part in it, conceptually they remain distinct. In fact, even in the strict legal sense, the two are not (necessarily) coterminous. It is only an offence knowingly to take part in an unnotified march; s.6(8) offers a defence for anyone arrested under s.6(7) to show that they did not know of, and neither suspected nor had reason to suspect, the failure to notify the police. It is very unlikely surely that, had there been no notification of the Women’s March in Belfast a week or so back, all of the several hundred women who were there would have known that. Yet, Lord Kerr’s approach – the eliding of protest with protesters, each and both acting unlawfully – risks empowering (and indeed actually requiring) the police to break up each and every march where the organiser has not given the correct notice.
This category error leads to an analytical failing. In seeming to define out from the scope of the protection of Art 11 all protests that are “illegal”, Lord Kerr has misconstrued Strasbourg jurisprudence. His construction of an illegal protest as a legal entity, rather than unpeaceful protesters, is not one that has ever been accepted by the European Court of Human Rights. The notion of an illegal or unlawful protest – whether parade, march, assembly or some other repertoire of contention, in Charles Tilly’s terms – has no pedigree. There is clear and constant case law, starting perhaps with Ezelin in 1991 – where it was asserted that the right in Art 11 was so important that it could not be restricted “so long as the person concerned does not himself commit any reprehensible act” ([53]) – that asserts that
a situation of unlawfulness, such as …the staging of a demonstration without prior notification, does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly. In other words, the absence of prior notification and the ensuing “unlawfulness” of the event, which the authorities consider to be an assembly, do not give carte blanche to the authorities; the domestic authorities’ reaction to a public event remains restricted by the proportionality and necessity requirements of Article 11 of the Convention (Novikova v Russia [2016] ECHR 388, [163])
While this does not mean that the parade or protest per se is immune from policing intervention, whether that be prevention (in advance) or dispersal while it is taking place, it does mean that any such interventions must be measured, proportionate and balanced. If challenged, as here, that is something that must be assessed ex post. It is engaging in that analysis that the Supreme Court singly fails to do. Instead the Court elevates a principle found in Molnar (at [37]) – that “the absence of prior notification can never be a legitimate basis for crowd dispersal” – to its reverse. Lord Kerr concludes from that the “ECtHR has made it clear that, in general, a requirement to notify an intention to hold a parade and a decision to disperse a parade or protest which has not been notified will not infringe article 11” (at [61]). That is not what Molnar holds at all, and neither do subsequent cases. In Berladir, the Court made clear that where there was no prior notification the decision “to disperse the ensuing demonstration solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, may amount to a disproportionate restriction on freedom of peaceful assembly” (at [43]). In Primov, the Strasbourg Court said this:
While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, the Court emphasises that their enforcement cannot become an end in itself. In particular, where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings. Consequently, the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11. Thus, it should be established why the demonstration was not authorised in the first place, what was the public interest at stake, and what were the risks represented by the demonstration (at [118]-[119]).
The correct approach for the Court here would have been, having found that notice had not been given, not immediately to deem the march wholesale as illegal, thus requiring police intervention, but to move to the second stage of any analysis where it is alleged there has been an interference with a qualified right: to assess whether dispersing or preventing it would have met a pressing social need. That is why this is the right record at the wrong speed. On any reasonable assessment, the PSNI had the power in law to step in and to regulate the flags marches, even quite possibly to have imposed quite restrictive constraints, and were mistaken in both asserting they did not, and then policing the marches on that mistaken basis. Where the Court took a wrong turn was in concluding that this power – duty in fact – arose simply because an organiser, or small cadre of organisers had deliberately flouted the need to give notice. That approach removes automatically an individual’s right to peaceful assembly.
By construing s.6 of the 1998 Act as it did, the Supreme Court risks instituting a policing scheme that breaches the ECHR. In fact, the very structure of s.6 leaves open a human rights challenge, absent this Supreme Court decision. Since it is an offence for anyone taking part in an unnotified march to be arrested under s.6(7) then, assuming either sufficient police manpower or a small enough march, everyone could be arrested. The march would naturally come to an end – for want of any participants – and would do so irrespective of it being deemed an illegal march, under the ratio of DB. The fact that at the police station a handful of minutes later or later at trial, every participant succeeded in the s.6(8) defence – proving they did not know of the failure to notify – would arrive too late for the right to peaceful protest effectively to be exercised. The essence of the right had been extinguished at source on the day by mass arrests, notwithstanding later individual criminal vindication.
That risk is exacerbated were that ratio to be transferred across unthinkingly to the mainland. Here, in England, the scheme in the Public Order Act 1986 has one critical difference. It is only an organiser under s.11 who commits an offence if they fail to give six days notice (s.11(7)); participants do nothing wrong simply taking part in an unnotified march. This makes the notion of an illegal march or unlawful protest yet more problematic. Most people taking part in a march that had not been notified would have committed no crime at all.
Whether in Northern Ireland or elsewhere, constructing the law such that everyone on a protest vicariously suffers the flaws and omissions of others, of the organisers, seems to fly in the face of the individualised nature of human rights. This is not the first example of the courts sanctioning a collective policing response to an individualised concern or risk. I wrote this about the House of Lords decision in Austin, the kettling case. This decision
edges us closer to a position of “illegal gathering”, a concept hitherto unknown in English law but all too familiar elsewhere…The historic position taken in English law is to allow the targeting of individuals either by turning them away or permitting them to be arrested but to confer immunity on the group itself as a separate entity. What we see in Austin is effectively collective guilt by association–and the larger the potentially guilty group (that is the larger the numbers of those threatening or becoming violent), the more defensible it is for the police to exercise indiscriminate control ([2009] EHRLR 376, 393).
When the European Court sanctioned that approach when Austin reached it. It is to be hoped that if DB is taken there, Strasbourg adopts a very different approach to the idea of “illegal protests”.
protestmatters 
David, I agree fully with the Article 11 points raised here, and I also agree that using the term ‘unlawful’ or ‘illegal’ assembly too easily elides individual and collective liability. At this level, your central concern – to avoid the concept of an ‘unlawful’ or ‘illegal’ assembly – is most straightforwardly addressed by a more accurately worded description (using the term ‘unnotified’ rather than either ‘unlawful’ or ‘illegal’). Using the language of an ‘unnotified’ procession, captures the collectivity, but avoids the attribution of ‘unlawfulness’ or ‘illegality’ to the whole (at least, prior to the point at which a dispersal order is lawfully given – more of which, below).
At the risk of making a point that might emulate John Peel in another way (‘playing records made by sulky Belgian art students in basements dying of TB’), I’m less sure that the notion of ‘unlawful/illegal protest’ can be dispensed with entirely.
Obviously liability under s.6(7) for failing to submit a notification gives rise to individual liability, and similarly any assessment of peacefulness should be based on individual behaviour (drawing on the Ezelin test that provides that so long as someone does not themselves behave in a reprehensible manner, their right to peaceful assembly should continue to be protected).
However, at some point, the assembly (qua assembly) must be regarded collectively. This might be when it comes to assessing the impact of an assembly on the rights of others, given that the impact of an assembly may derive solely/primarily from its collective characteristics – its size, or also perhaps frequency/duration. These are not matters that can be assessed purely at an individual level.
Of-course, an assembly that impacts on the rights of others doesn’t become ‘unlawful’ for that reason alone. Such ‘an assembly’ would however become ‘unlawful’ – as in, not permitted to continue as ‘an assembly’ – from the moment that the police lawfully require it to disperse. Indeed, an assembly would become descriptively ‘unlawful’ from the moment a dispersal order was given for any lawful reason (not simply where the underlying reason derives from its collective characteristics). As such, the preceding paragraph (relating to the ‘collective characteristics’/’impact on the rights of others’ point, and drawing attention to the collective nature of assembling, and the legal considerations that follow.) is in some ways superfluous to my core argument.
While again there would clearly be individual liability (eg. for failing to obey the lawful directions of a police officer), I am not so sure that the conceptual brightline between the individual and collective is as easy to maintain – and burrowing further down this path opens up the existential questions of a ‘fundamentally prior’ nature bravely ventured by Lord Brown in the critical mass bicycle ride case of Kay v MPS 2008 (when is a procession even a procession?)
Thinking further of the law in England and Wales (rather than in N. Ireland), I recognize that liability under s 14, and indeed s 14B, of the Public Order Act is framed individually (it is directed at ‘persons’ taking part etc.). Similarly, too, the dispersal power under s 35 of the Anti-social Behaviour, Crime and Policing Act 2014 (which can be used against persons taking part in an unnotified procession) is for use against individuals. Indeed, while the old s 30 Anti-social Behaviour Act dispersal power could be used only against groups of two or more persons, the direction was still to be issued to ‘persons in the group’.
But the question of how accurately to describe an unnotified procession/assembly whose participants have been issued with a lawful dispersal order still remains – whatever the legal basis for the dispersal (eg in contravention of an injunction order issued against ‘persons unknown’).
In short, even though this exact question doesn’t arise on the facts of the case (since the challenge in DB arose precisely because the police did not intervene to require dispersal), and while I fully agree that the courts ought to be much more precise when ascribing ‘unlawfulness’ or ‘illegality’ (and that there is indeed no legal pedigree for attributing collective liability) I am less sure that we can dispense entirely with ‘the notion of an illegal or unlawful protest’ at a descriptive level.
Interested to hear your thoughts!
Michael
Many thanks for the comments and splendid contribution. I’m not sure we’re a millions miles apart. I’ll not deal with each and every point but perhaps might just say this in response
1. I do still think there is, if not in the legal sense, a difference between the marchers on the march and the march itself. They are not one in the same. Appreciate this is more sociological /psychological territory but we see this with assemblies certainly – separate from and different from “simply” those people who happen to be there at any one time. At the very least there is an interactivity – between protesters and between protesters and onlookers. This I think we’d both agree on, and have discussed many times
2. I accept it is harder to disentangle a march from the marchers at a legal level.
3. My worry is that by labelling the flags protests “illegal” or “unlawful” rather than as you suggest “unnotified” this opens up a line of analysis that is simply wrong. Illegal things are bad and must be stopped. The police are there to stop bad things happening…therefore they must do so
4. The problem is that it is an easy, if false, leap from that to “unpeaceful”, eliding the two, and then from there defining the protest out of the scope of A11. That, as we both know from countless Strasbourg cases, is not the approach.
5. It is here that we look to the collectivity, as you suggest – the collective harms and collective (as well as individual gains) each going into the proportionality exercise. It is this that Lord Kerr misses, by leaping latching onto the per se illegality of an unnotified march.
6. I do think, aside from (but exacerbated by) the judgment there are real issues with the statutory scheme in NI, that had not crossed my mind before, it being different in that one regard from England – where in latter only organisers face arrest. I’d be interested in your or anyone’s thoughts. I may have missed something blindingly obvious but if both organisers and participants face arrest, that does leave the march open to being closed down simply for non-notification by a one or two. That deprives the rest of their A11 rights straight off. Hard to see how that can be ECHR-compatible, unless the police read their arrest powers as subject to the right (an interesting and novel approach, I’d guess)
Strasbourg judgment today in Lashmankin and Others v Russia http://hudoc.echr.coe.int/eng?i=001-170857 at paras 461-3 flatly contradicts para 61 UK Supreme Court judgment in DB v Chief Constable of PSNI:
“461. It is significant that any breach of the procedure for the conduct of public events or any unlawful act by a participant, no matter how small or innocuous, may serve as a ground for the authorities’ decision to terminate a public event. Similarly, the participants may be escorted to the police station or administratively arrested in connection with an administrative offence of breaching the established procedure for the conduct of public events, which is widely formulated and covers any breach of procedure, even a minor one (see paragraphs 298 and 302 above). In particular, Russian law permits dispersal of a public event and arrest of the participants for the sole reason that no notification has been lodged or that the event is taking place at a location or time that has not been approved by the authorities, regardless of the existence of any disorder or of any real nuisance to the rights of others. The facts of the present case, as well as of other cases examined previously, show that the authorities display zero tolerance towards unlawful assemblies, even if they are peaceful, involve few participants and create only minimal or no disruption of ordinary life (see paragraphs 46, 91, 101, 115, 141, 142 and 210 above, see also Malofeyeva, cited above, §§ 137 and 140; Kasparov and Others, cited above, § 95; Navalnyy and Yashin v. Russia, no. 76204/11, § 65, 4 December 2014; and Novikova and Others v. Russia, nos. 25501/07, 57569/11, 80153/12, 5790/13 and 35015/13, §§ 136, 171,175 and 179-83, 26 April 2016). In all the above cases the domestic authorities made no attempt to verify the extent of the risks posed by the protestors, or to verify whether it had been necessary to disperse them. Nor was there any noticeable assessment of whether the applicants’ escort to the police station or administrative arrest had been necessary in the circumstances, as required by the Constitutional Court in its judgments of 16 June 2009 and 17 January 2012 (see paragraphs 311 and 312 above). Moreover, the dispersal and arrest of participants occurred within a very short time after the beginning of the assembly, showing the authorities’ impatience to end the unlawful public event before the protesters had had sufficient time to express their position of protest and to draw the attention of the public to their concerns (see, for similar reasoning, Oya Ataman, cited above, § 41, and Samüt Karabulut v. Turkey, no. 16999/04, § 37, 27 January 2009; see also, by contrast, Éva Molnár, cited above, §§ 42 and 43, and Nosov and Others v. Russia, nos. 9117/04 and 10441/04, §§ 58-60, 20 February 2014).
462. The Court takes note of the Government’s argument that since States had the right to require notification of assemblies they should be able to sanction those who participated in assemblies that did not comply with the requirement by dispersing or arresting them and by convicting them of administrative offences. It reiterates in this connection that enforcement of rules governing public assemblies, although important, cannot become an end in itself. In particular, where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (see Kudrevičius and Others, §§ 150 and 151, cited in paragraph 412 above). The Court considers that the authorities could have attained their goals by allowing the applicants to complete their protest and perhaps imposing a reasonable fine on the spot or later on (see Novikova and Others, cited above, § 175; see also Taranenko v. Russia, no. 19554/05, §§ 75 and 95, 15 May 2014 on the chilling effect that a disproportionately severe sanction may have on the sanctioned person and other persons taking part in protest actions).
463. In view of the above considerations, the Court finds that by ending the applicants’ protests and taking some of them to the police station, the authorities failed to show the requisite degree of tolerance, in breach of the requirements of Article 11 § 2 of the Convention (as set out in the case of Kudrevičius and Others, §§ 150 and 151, cited in paragraph 412 above).”