Tag Archives: policing

FLAGGING UP A MISCONCEPTION

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”.

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The Dog That Barked Rather Quietly: The Role of Law in Social Movement Studies

On Wednesday this week (27th) I gave a talk at a symposium organised by UEA’s School of Politics, Philosophy and Language. The theme of the day was media, activism and politics. I rather went against the grain and spoke about the role & relevance of law for social movement scholars, and activists. I plan in this short blog to outline a couple of the keys points I made

I am a Johnny-Come-Lately to social movement scholarship, having been almost all my academic life rather a dull(ish) doctrinal lawyer, albeit one who has dabbled in the socio-legal aspects of protesting. Probably less of the come-lately, and more of the “train delayed not yet arrived” if I am being honest.

That said, what I have gleaned so far from reading the literature – immersing would be too strong a term – on law and social movements is a double-whammy omission:

  • the dominant focus of law and social movements scholars (whether lawyers or sociologists) is on using law as part of the group’s strategic armoury, what Charles Tilly referred to as repertoire of contention. This, I argued, marginalises its relevance to a whole host of other issues that social movement scholars look at as, say, a structuring force. As Michael McCann put it in his review piece in the Annual Review of Law and Social Science: “many of the more recent studies build on relatively narrow but unarticulated conceptions of law, mostly focusing on litigation outcomes and the roles of lawyers.” (McCann, 2006).
  • and even within the literature in using law, the focus is almost exclusively on legal mobilisation, that is law before and in the courts, either proactively or reactively. This too offers only at best a partial explanation of the role of law within the armoury of an SMO.

Even then, the appearance of law in the literature is still rather nascent, perhaps only in the last decade or so and is very much a US-driven phenomenon. For example, The Blackwell Companion has nothing in its index for law, two pages listed for law enforcement, and two for “justice systems”, and eight pages listed where “legislation” is mentioned. By contrast mass media, mobilisation and movement participation each have entries into tens, along with sub-entries. There are honourable exceptions this side of the pond, such as Graeme Hayes at Aston or Brian Doherty at Keele, and Chris Hilson in the Law School at Reading.

The talk was in three parts. The first sought to provide various alternative perspectives or conceptualisations of law, in addition to it being broadly a study of rules (Where do they come from? What do they assert? How are clashes of rules resolved?). Again as McCann put it “…much scholarship is committed to making claims about law without clearly thinking through the complex, multiple dimensions of what often are recognized as law and legality” (McCann, 2006). I offered law as binary – are you an employee, yes/no? – and law as constitutive, creating relationships, of rights, of duties, establishing definitions and categories. Law is also a schematic – establishing interdependent framework of rules – and structuring responses. We might also conceive of law as a formalised system of dispute resolution, offering order, not the chance of chaos. Lastly, we might conceive of law as concerned with values and norms, with a legitimating function.

The next offered some suggestions as to how law – even in its most rule-maker guise – could shed light on the various interests or research questions SMO scholars have, broadly (and very basically):

  • Initiation: what might trigger someone into acting, and what process is behind turning that atomised individual anger into collective action – how and why and when does a group emerge, and mobilise?
  • Organisation: what form does and should a group take to maximise strength? How does it grow – how does it represent itself / is it represented in order to garner support? How are internal tensions managed?
  • Goals: what are the group’s aims? What counts as success? What factors – opportunity structures – determine success?
  • Operation: what does and should the group do to achieve its aims? What strategies or tactics – repertoires of contention – do/should they adopt? How, why and when might strategies change.

Just taking a few of those. So clearly the law can provide an initiating trigger – such as the legal ban on certain groups voting or on same-sex marriage. Law might provide the background structuring canvas – in common law systems, landowners cannot be forced to use their property or to rent it out; it can, broadly speaking, sit vacant – so a whole squatting movement might grow. It might not be the law on the books that is the problem but the law in action – the discriminatory use of vagrancy laws in the 1970s gave rise to Scrap SUS. Law might also help frame the claim – using the language of rights (disability rights: Vanhala, 2002) or TaxJustice. Law might impose an organisational straitjacket, requiring certain forms (and this is especially so in the labour movement) such as an “organiser” under certain public order laws. It might provide a structural suggestive skew towards more formal organising – such as we can see in the UK in the Transparency of Lobbying, Third Party Campaigning and Trade Union Administration Act 2013 which cut by 2/3 the amount third parties can spend in a general election campaign, while holding the line for registered parties.

It is at the operational level that there has been most focus. SMO choices tend to fall into institutional (e.g. political campaigning, lobbying, litigation) or confrontational, carrying out a range of repertoires of contention or protests, over a spectrum from peaceful to civil disobedience to non-violent direct action to outright violent insurrection. Most of the focus, both here and more so in the US, has been on legal mobilisation, or litigation strategy – whether pro-active, such as bringing JR – as in the recent PLP case – or reactively. Within that latter, Vanhala (2011) helpfully distinguishes strategies of active reaction or passive reaction. The former is where one seeks out by formal acts of NVDA or civil disobedience – awaiting a prosecution (or perhaps civil SLAPP: Hilson, 2016) then to co-opt the court process for a “political” defence, airing grievances more widely – for both internal and external mobilising purposes (on which see Doherty and Hayes generally). There are clear problems associated with such approaches. We might think of Galanter’s (1974) idea of repeat players v one-off hitters and the fact that activists ‘must articulate their claims so that they fall within the categories previously established by an amalgam of constitutional, statutory, administrative, common, and case law’ which in turn ‘shape the progress and outcome of movement claims in important ways’ (Andersen 2006). Another would be the linked problem of judicialisation. As Hilson (2016) puts it, “the whole point of a SLAPP suit is to convert a matter of public interest into a technical private law dispute, robbing it of political framing and providing a legal one instead”. In short, the legal process might not be sufficiently attuned to the bigger picture, to the “real” claim or concern, or the group’s goals – what we might term doctrinal disjuncture. In the Cornerhouse challenge to the SFO decision to discontinue the investigation into alleged corruption by BAe Systems in relation to the Al Yamamah defence contract with Saudi Arabia, the applicants lost (simply) because judicial review is not responsive to a merits-based challenge.

The paper neared its close by offering a more enriched and nuanced legal terrain for SMOs to traverse, located within the earlier framework – differing conceptions of law. This paper will highlight just two, of those four. The preference for law over disorder is most easily seen in the formalised system of dispute resolution, without resort to force, the idea really of legal mobilisation. In contrast we can see law as favouring if not disorder per se then disruption. We need think no more than to the disruptive – preventive – capacities of modern policing, and mass arrests (without subsequent charge) or bail conditions – all in fact sanctioned by law. Alternatively, law itself can be used as a disruptive repertoire – and I am thinking here of the mass compliance with the Westminster notification system called for by Mark Thomas. Law acts with constitutive power when it, for example, dictates the availability of places to mobilise or hold actions by conferring the status of “public” or “private” upon it, with all that entails for access. It also defines what can be done at place X, rendering the ordinary and commonplace an act of resistance: it is not unlawful to read out the names of the dead, but it is if you do so at the Cenotaph within the 1km boundary of Westminster without notification. Legal rules thus construct political deviance: while no one has been arrested for playing hopscotch, protesters have been arrested for chalking on the pavement, and charged with criminal damage (Hardman [1986] Crim LR 330).

The paper ended by re-asserting that law was a vast resource for both SMOs and those studying it but that at the moment, we were scratching the surface in only one or two areas. The problem, I argued, might be that law is not fully or usually thought of – either by its scholars (though far less so now) and others – as a social construct, and a reflexive one at that. The focus perhaps had been on what law was – and less on what it did or was capable of doing. Previously law had been seen as something in parallel – whereas I am offering law in an undergirding role.

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The (police) pen is mightier than the sword

A rather strange thing happened today. I had decided to dedicate my last research day of the summer to re-reading a couple of articles by US academic Timothy Zick, one of the very few commentators engaging with something I have been thinking about: the relationship between place, and space, and protest. In one, he was analysing recent developments such as free speech zones at party conventions and the penning in of protesters behind wire mesh. At lunch, I glanced at my Twitter feed to discover the High Court had just handed down judgment in the UK’s first protest pen case, Wright v Commissioner of Police for the Metropolis. This short post will summarise and analyse the judgment of Jay J (yes, really Jay J!) and offer one or two brief thoughts on where this might leave us in thinking about “the place of protest, the places of protest” – which is the lengthier piece I am currently working on.  It is by no means a comprehensive analysis or note.

On 30th March 2011, Shimon Peres, the President of Israel came to the UK on a state visit. He was due to give the keynote speech at a seminar at Chatham House in London, recognising 60 years of British-Israeli diplomatic relations. The Palestinian Solidarity Campaign decided to hold a demonstration outside and Joseph Wright, the claimant, was part of it along with about 40 others. He was contained in a police pen between shortly after 09:27 and 10:42, implemented as a security measure to prevent a breach of the peace. He claimed damages for damages at common law (for false imprisonment, assault and battery) and under section 8 of the Human Rights Act (for breaches of his rights under Articles 5, 10 and 11 of the ECHR). None of his claims succeeded. In terms of the operative, tripartite test (see [27]) set recently by Moses LJ in Mengesha, the High Court decided there was a reasonable apprehension of an imminent breach of the peace – that is, the officer honestly believed a breach was imminent and that belief was made on reasonable grounds – the measure was necessary and was also proportionate. It is clear from the judgment that the operating factor was the claimant shouting out (at 09:27), “Shimon Peres is coming this way” as his official car appeared on the scene, and beckoning to others. It is at that point that Wright is gently pushed into the pen. Though not without a measure of hesitation (see [60]), Jay J concluded on the balance of probabilities that the officer did have reasonable grounds.

The principal ground for the containment was a belief that one or more persons, whoever they might be, would seek to advance at speed in the direction of Mr Peres’ car. [The police] interpreted [Wright’s shout] as liable to provoke action of this nature, regardless of whether that was in fact his intention. [The officer] no doubt also believed that the Claimant himself might form the vanguard of such action: self-evidently, he could not know what was passing through the Claimant’s mind. He had to respond in rapid real time to the situation as it was developing before him (at [61]).

The containment was both necessary – the alternative source of power to control, s.14 of the Public Order Act being unavailable – and proportionate, His Lordship rejecting the argument that the police should have waited and arrested individuals as and when the need and justification arose (see [68]-[69]). Thus the common law claim (and, synonymous with it, that under Article 5) failed. So did the claims under the HRA for breaches of the qualified rights in Arts 10-11, in light of the earlier findings on proportionality and necessity.

Wright is one of long line of cases in the past few years in which the ability of the police to control protests using the residual common law power to prevent breaches of the peace by imposing some form of containment has been before the courts. None has ultimately been successful. Most well-known is the domestic and ECHR case of Austin, on which I have blogged elsewhere. Moos and McClure, though it succeeded at first instance – the court holding that as the threat didn’t come from the contained group, imposing a kettle was unlawful – was overturned, on what might be thought a technicality, by the Court of Appeal: that the court below had not taken the correct approach to assessing the imminence of the breach. Even kettling children was held not to raise any especial problems for the police under the Children Act 1989, according to the High Court in Castle. Mengesha is a success but is properly not seen as a challenge to the imposition of a kettle but to how it was operated and in fact brought to an end, holding it was unlawful as a condition of leaving a kettle to demand (request?) personal details and to be photographed. Wright though is the first police pen case to come before the Courts and for that reason alone is important. Whether much turns on being contained – kettled – by officers linking arms, or by maintaining a line of horses or by physically constructing a pen with barriers does seem moot – and to miss the point somewhat, which is the seeming uncontrollability of this power. While Laporte did trim some excesses from the common law – and its nadir of Moss and McLachlan during the 1985 miners’ strike – it is, as Andrew Ashworth makes clear ([2007] Crim LR 576), very much a decision on its facts: had the police not been candid enough to admit the threat at Fairford was not imminent, it would have gone the other way. While we should not judge or assess the validity of claims for legal reform like football scores, the fact that no one has successfully challenged the imposition of police containment in four attempts should make us pause for thought. It more and more resembles arbitrary, random mass detention on suspicion of very little indeed. More so when the police rely on the common law power when they cannot avail themselves of the statutory power – with its carefully crafted balanced framework. Richard Stone makes this point, and finds limited echoes in some of the words of Lord Bingham in Laporte (at [45]). Wright, it is to be hoped, can only strengthen calls for codification of the common law power – perhaps as part of the coalition’s plans to restore the right of non-violent protest promised in their 2010 Agreement (oh look, there’s a pig in the sky).

Of course the real problem of the power is its indiscriminate use – and potential – bringing into the realms of Foucauldian discipline, if not of punishment, many who (simply put) are not, will not be and have no desire to be troublesome, disruptive, aggressive let alone violent. I have no idea who Joseph Wright is – and certainly make no claim to know what he was thinking that morning – but if shouting out “Shimon Peres is coming this way” constitutes grounds to be pushed, ever so slightly, into a place you do not want to be, and where you think your protest will be less effective, then we have reached a very sorry state indeed. Will Directioneers (note to Ed – contemporary cultural reference to show awareness) be corralled outside the O2 as they spot their heroes and make to rush towards them? If not, and I suspect not, we have a clear case of what under US 1st Amendment jurisprudence would be seen as content-based regulation.

In terms of the judgment itself, it must contort ordinary English language to hold – as Jay J did ([14]) that the earlier containment (from 09:07 – 09:27) was voluntary. Not that anything turns on this, since Wright’s claim was for the later period, but holding it was voluntary as being borne out by the fact that one or two were allowed to leave does not really tell us about the imposition of the containment in first place. In any event the admitted fact that some of the group were warned they would be arrested for breach of the peace if they did not comply does rather change the contours.

Secondly, it is puzzling that Jay J looked only to Nicol and Selvanayagam when assessing the position where Y breaches the peace as a result of X acting reasonably in the exercise of his rights. After all here, that is simply all Wright was doing when shouting out – and as we have seen, that was key in his losing the case: he was exercising is free standing right to free speech, under Article 10. Nicol is, first, a case from 1995, and so decided before the HRA came into force. Why not the 1999 case of Redmond-Bate, clearly decided by Sedley LJ with one eye on the HRA even if not in force? In any event, these are simply the wrong cases to use – they provide the wrong framework for resolution. The worry in the instant case was that Wright’s conduct – his words – would provoke others in his group to attack or approach Peres’ car – not that another group would be so outraged (if anyone could be outraged by “look there’s Peres”) as to attack the Palestinian Solidarity Campaign. None of the cases – not Beatty v Gillbanks, nor Wise v Dunning – is precedent for what was feared here. Even if they were, they could surely be distinguished on the basis of lack of any inflammatory language – hence the relevance of Redmond-Bate, where the citizen was successful. Last, Jay J (at [66]) seems to have conflated two separate legal questions, that of the reasonable apprehension on the part of the police and the reasonableness of the protester’s actions, or words: “I have found that his actions were such as to cause the police reasonably to apprehend that someone would rush forwards in the direction of Mr Peres’ car. That would have been unreasonable action liable to cause a breach of the peace, whether it be directly … or indirectly.”

My last point goes to some of the wider concerns about place and space that I hope to explore in my longer article. I shall allude only to a little of it, and discuss a few of them very briefly. One of the reasons that Jay J decided there was no breach of Article 10 or 11 was ([74]) that the “interference …was in any event close to minimal: the Claimant was still free to demonstrate and to associate, albeit not quite where he wished to.” That is not the marginal point it seems. First, it denies any autonomy to the speaker: his, or her, choice about venue and location – the advantages of spot A over spot B in terms of efficacy – is given no weight. After all, had Wright wanted to protest where the pen was, no doubt they would have tried to sooner but it must have been ruled out for good reason. We thus have the state dictating where – not simply when and on what – we can lawfully protest. This is not new – routes are regularly re-routed (as took place last weekend for the EDL’s planned march in the East End of London) – but there is a wider public interest at stake here. Penning people into a small area, barricading them apart, sends out a message: protest is something frowned upon, something not valued – or not as valued as allowing a foreign president undisturbed access to a building – something to be discouraged, and something that is discouraged – or at least is discouraged on topic X, something much worse as creates skew – as something that is only to occur on terms set by the state – which, of course, has a vested interest in (and rightful duty of) preventing disorder – and so will favour orderly protests over disorderly. It is true too – and see my earlier point about One Direction – that protest tends to be oppositional, tends to be against “stuff”: very few turn out to clap and cheer government policy on a daily basis and if any were to, the likelihood is that they wouldn’t get cross. People who are against things, against decisions, against policies, tend to get crosser…and as governments make decisions and have policies, naturally people want to protest against them – so protest, and protest space and protest places, are always and essentially contested, battles in and of power – trying to get more, trying to keep what they have… so is it fair, is it right, is it sensible that the likely targets of that ire – the state, at least in the shape of its police force – should be the ones to set the terms of engagement? This was what I was thinking about today, prompted by two splendid pieces by Tim Zick on “spatial tactics” and “expressive topography” here and here, and which came to a head in Wright.

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