COURT TO DISRUPT DISRUPTIVE PROTESTS – AGAIN?

In late July, the Supreme Court heard two days’ argument on one of the liveliest, and contentious, issues in protest law: how far should domestic law tolerate disruptive or obstructive protesters being able to say they had a “lawful” or “reasonable” excuse for their actions, specifically they were ‘simply’ exercising their right to protest peacefully? The case –  Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill – is a little more complicated in that the issue was how far should a court “read in” such a defence where the Act, the statute was silent i.e. where there was no defence? Reading in is a Human Rights Act tool, or notion, done to render compatibility between domestic law and the ECHR. To that extent, when it is decided, it will operate in tandem with another important Supreme Court decision in June 2021: Ziegler. This settled the easier issue – legally speaking anyway: where a statute creating a criminal offence included a reasonable/lawful excuse defence, a disruptive or obstructive protester could avail themselves of that by demonstrating that ‘all’ they were doing was protesting non-violently. It would be for the State, for the CPS, to show that it would nonetheless not be a disproportionate interference with the exercise of that right to convict. Lord Hamblen in that case (at para [71] onwards) indicated some of the factors that should be taken into account in making that assessment.

There is still some dispute about whether or not Ziegler is limited to allowing disruptive/obstructive protesters to lay claim to that defence only if charged with obstruction of the highway (as they were in that case) contrary to s.137 Highways Act 1980 or is it of more general application to all crimes with reasonable/lawful excuse defences written in? That may well be decided by another protest case working its way through the courts, the Attorney General’s referral to the Court of Appeal in the Colston Four case. This was argued in late June, and judgment is awaited.

To a considerable degree, the legal issues in the current NI Supreme Court challenge reflects a High Court decision earlier this year, Cuciurean (an appeal by way of case stated) – where the defendant lost (and on which see this blog of mine), that is he was unsuccessful in persuading the Court that where an Act creates an offence but is silent about defences then a Court would not read one in. The crime there was aggravated trespass, under s.68 of the Criminal Justice and Public Order Act (CJPOA) 1994. Although leave to appeal to the Supreme Court was given in Cuciurean, the case will not proceed there as it has been dropped by the defendant. That seems a shame to me as clarity in the law from the highest court would have been welcome, more so as the Supreme Court might well take the opportunity in the AG NI Reference to offer views on the position, but without having heard full argument and indeed where the issues do not fully overlap. That might be problematic to put it mildly.

This blog provides a critique of the short critique of the case law in the area, or some of it anyway. It does not seek to answer the normative “ought” question of whether and how far society – and within that, our legal system – should tolerate such forms of civil disobedience and direct action as constituting legitimate political activity. We might think here of the local action in Peckham in June to obstruct a Home Office deportation  and in July, Just Stop Oil activists gluing themselves to artworks and a vegan activist group who poured milk over the floor of Harrods. In other words, it will not solve the question of whether or not taking direct action is, could be or should never be a proportionate political response to a perceived socio-economic or other problem. Its focus is simply doctrinal and to a lesser degree socio-legal: what does and what might case law tell us, and how the law might play out?

The facts of the AG NI reference are straightforward enough to provide context for the challenge and discussion. The Abortion Services (Safe Access Zones) Bill, a proposed Northern Irish law, put before the Assembly by a backbench member, allows for the automatic creation of 100m “safe access zones” outside any abortion clinic. This is enforced by means of criminal offences such as (cl. 5(2)(a), the subject of the present challenge: doing an act “in a safe access zone with the intent of, or reckless as to whether it has the effect of influencing a protected person, whether directly or indirectly.” The Bill contains no express or patent “reasonable excuse” or similar defences. It is unlawful, as a matter of the devolved framework for Northern Ireland, to pass laws that are not compatible with the ECHR. Thus, the question for the Supreme Court was whether that provision disproportionately interfered with the rights of persons who wish to express their opposition to the provision of abortion treatment services in Northern Ireland, that is constituted a disproportionate restriction on the exercise of the Article 10/11 rights of Northern Irish citizens to protest. If it did, it would be beyond the competence of the Assembly to pass it. The case then turned on whether such protections for free speech should, could or even must be read into that void. If they could etc, the Bill would be lawful in devolved terms.

In effect then, the appeal turns on whether the High Court was right to hold in Cuciurean that an Act is a self-contained system, one which does not need a defence to be read in – had Parliament wished to confer one, it would have done – and the Human Rights Act (HRA) adds nothing to that. In doing so, it preferred one line of case law over another, and we might reasonably assume, the Supreme Court in the instant AG NI Reference, will have that choice before it too. My argument is that the High Court in Cuciurean was wrong to favour that line of case law – Bauer and James – over Connolly, Dehal, Scottow (in 2020) and Lee Brown (in the Northern Ireland Court of Appeal in 2021) and so there is no reason for the Supreme Court in the instant Reference to follow suit. Indeed, there are good reasons to prefer the Connolly line. The arguments are:-

• There was a series of judicial missteps in that former line of case law culminating in quite an erratic path being sown
• Relatedly, the role played by proportionality in such criminal prosecutions has been misunderstood and/or confused.
• The express holding in Cuciurean that Parliament has already struck the Convention balance in framing the section does not stand up to scrutiny
• There is equally a line of Strasbourg case law that supports the contention that “reasonable excuse” can come into play despite there being no express warrant on the face of domestic legislation.

First, there is good, existing High Court authority that holds that a court may, indeed perhaps should, read words in to create a defence where there was none. That case is Connolly from 2007. A devout Catholic was charged under s.1 of the Malicious Communications Act 1988 with sending grossly offensive or indecent communications, viz. photos of aborted foetuses to local pharmacists, as part of her campaign against abortion. There are no defences in the 1988; it is made out provided the Crown proves the sender’s purpose is to cause distress or anxiety to the recipient. Dyson LJ was prepared to take one of two routes to interpreting the statute in line with the ECHR. First, to give a heightened, more Convention-compatible reading to the words “grossly offensive” or “indecent” and secondly (at [18]) to “read into section 1 a provision to the effect that the section will not apply where to create an offence would be a breach of a person’s Convention rights, ie a breach of article 10(1), not justified under article 10(2)….[which is] the inevitable consequence of section 3 of the HRA.” Connolly was binding on the High Court in Cuciurean yet it is not cited despite being referred to in argument by his counsel.

There are similarly supportive cases such as Scottow in 2020 (similarly a prosecution for malicious communications on Twitter under s.127 Communications Act 2003) and Lee Brown in 2021 (hate speech under the Northern Irish equivalent of s.19 POA 1986) but these might better be seen as cases in which either the decision to prosecute or the conviction were assessed for proportionality, which is not quite the same thing. Here, it is probably true that those two cases conflict with what was said and decided in both Bauer and in James – but even if that is right, it still leaves open as good, clear authority for the proposition that it is open to a court to read a statute that creates an offence as subject to implied limitations, in effect creating a form of Convention-based defence even if there is no express “reasonable excuse” to hang it upon. It would of course be open to the Supreme Court as the higher court to overrule it, but that needs to be done clearly and deliberately and in a reasoned fashion

I am not entirely convinced in any event that Bauer and James stand up as well as the Court in Cuciurean thought they did. Bauer in part depends on the rejection by the same judge – Moses LJ – of a decision he reached a few years earlier in Dehal. With all respect, this is not convincingly done and there is confusion about what that earlier case decided and how it was reasoned. James too is open to question. Again, the Court misconceptualises Dehal, on the question of proportionality. More critically, the case is about the prosecution for failing to obey a police direction at a protest. It is here, the giving of a direction, the Court says is where questions of proportionality can be decided. It is in short, easier to support and to fathom a decision holding there should be no proportionality defence read in, in cases where a protester is not totally debarred from doing so. 

Another important factor in the High Court decision in Cuciurean, and critical to its reasoning is its holding that in all cases where Parliament has established a framework for the creation of an offence, that framework is self-contained. Not only does no defence need to be read in if there is not one, but the Court must assume that Parliament has already conducted a proportionality exercise and decided where the appropriate balance between rights and social order should be struck. This is not a sustainable position and flies in the face of principle and case law. It is unprincipled since the whole scheme of the HRA, and s.6 in particular which imposes duties of Convention-compliance on public authorities, including courts, is one where decisions by other state agents e.g. the police, are subject to review on grounds of proportionality. It is not and never has been an answer to the exercise of discretionary power – such as would occur with arrests of protesters for crimes – to say: “Parliament has struck the balance. There is no role for you, the judge to play. My decisions are not amenable to challenge on human rights grounds of proportionality.” If such were the case, not only would be it be unprincipled and lacking in normative appropriateness, it goes against the grain of countless cases, both policing/protest and more widely. Brehony is a protest case on point, the challenge to the imposition of s14 conditions on an assembly outside Marks and Spencer in Manchester. Bean J ([23]) was “content to assume that the Chief Constable’s decision in this case is reviewable on proportionality grounds.” Percy – an appeal against conviction under s.5 POA 1986 for a peace campaigner who daubed “No To Star Wars” on the US flag outside a USAF airbase in Suffolk – and a little further back, Singh – a dispersal order case that reached the Court of Appeal under the old s.30 Anti-social Behaviour Act 2003 – would be others.

What I think the Court has done in Cuciurean is confuse and conflate two different forms of proportionality; the discretionary legislative scheme in the abstract and the specific operation of the discretion on the ground in any instant situation. It is, or might be, perfectly fine to eschew judicial control of the former, but not or never of the latter. Overd and Others v CC Avon and Somerset is a recent example of that latter where (at paras [83]-[84]) the Court assessed, in Article 9/10 terms, the proportionality of the arrest of a group of four Christian preachers for racially aggravated s.5 offence and s.50 Police Reform etc Act 2002. Other cases support that, and to the extent that Saini J in the recent Divisional Court decision in Bennett is saying different, again with respect I think His Lordship may have elided two different things.

There is another reason to treat Cuciurean with caution on the proportionality point, that Parliament has already, and conclusively, struck the Convention balance when it framed the section. It is this. An arbitrary division arises, between those offences which have an inbuilt defence and those which do not. Of course, there is the retort that this is deliberately of Parliament’s making, of its own volition. That might be true but my own research into the passing of the CJPOA and s.68 specifically shows that the question of whether or not to include a defence might well not be one that is put before Parliament at all. Are we right and sensible to conclude this is still a positive choice by parliamentarians? I am doubtful that we should, and certainly if its end-point is the removal courts and judges from the equation as possible defenders of rights (one effective reading of s.6) and consequent shifting of all the power onto the police. They alone have the power to decide which of various offences to charge a disruptive protester with – and putting it as neutrally as possible, why would an officer arrest someone for intentional nuisance (now in statutory form, in s.78 Police Crime etc Act 2022) which has a “reasonable excuse” defence written in, in s.78(3) rather than aggravated trespass which does not?

The last point to make is that at Strasbourg level (i.e. at the European Court of Human Rights) there is no indication in the case law that a pivotal factor is the absence or presence of something akin to a “reasonable excuse” defence. There are several cases where the Court has considered the proportionality of any charge/arrest/conviction even if it has not then gone on to determine that there was no violation because the state’s response was disproportionate. Cuciurean precludes a court from even that first investigation, let alone the conclusion. My own research has produced the following three:

• Barraco v France: a road obstruction case, from 2009 in which protesters were charged under L412-1 of the Code de la Route (judgment only in French)
• Kudrevicius v Lithuania:  similarly a road block protest, decided by the Court in 2015, in which the farmers were charged under Article 124¹ of the Code of Administrative Law Offences.
• Drieman v Norway:  this was a Greenpeace protest trying to disrupt whale fishing off the Norwegian coast, and the group was charged under s. 14 and 53 of the Sea Waters Fisheries Act

What we will soon know is whether the AG Northern Ireland’s Reference might mark a turning point – with marginalisation of Ziegler to its very specific facts, and effective approval of the line in the sand marked by Cuciurean – or will it mark a continuation of that route? Of course, and perhaps to conclude here, how far either remain “good law” if and when the planned reforms to the HRA, and especially the watering down of the “so far as possible” test in current s.3, but that remains a protest to come!

Some thoughts on DPP v Cuciurean [2022] EWHC 736 Admin

NB 1  These notes and views are ex tempore, thought about and written about in the three hours since judgment was handed down this morning

NB 2 In the interests of full transparency, I should disclose limited “behind the scenes” involvement with defence counsel, and that I attended Court where I took some notes

1. The Divisional Court judgment is open to criticism in holding that the statutory scheme in s.68 on its face constitutes a proportionate restriction on Art10/11 rights

• The line of cases where Courts have become more deferential to domestic decision-makers, culminating in Animal Defenders – sometimes called “process-based review”, a term coined by Judge Spano, is premised on legislatures actually undertaking and being seen to undertake balancing exercise when deliberating.

• Animal Defenders seems to have totally misunderstood or misused ([71]). The point is not, or is less, that parliament cannot “enact a general measure which address proportionality itself”. That is not in doubt. The issue is whether Parliament has done enough to secure that choice against subsequent judicial evaluation. Animal Defenders indicates the sorts of criteria by which a court might assess that. That simply has not and cannot have happened here with s.68. The legislation here predates the HRA by some four years; I have not yet gone back to Hansard but would struggle to believe such a process was undertaken by the HoC in 1993/4

• Relatedly, the principle of legality might well have pointed the court in a different direction:
  • Lord Hoffmann in R v Home Secretary ex parte Simms [2000] 2 AC 115 at 131 where he said “… the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

• We would expect more since the effect here of the restriction is conviction and possible imprisonment not a lesser regulatory wrong or refusal to transmit an advert (see on this Perincek v Switzerland, brought to my attention by @amrit_lohia)

• At a higher, normative level it rather risks undermining the whole statutory protective scheme in the HRA by obviating any role for judges once Parliament has legislated, and this would apply (given the lesser impact) to matters outside criminal law: how would, to take just one example of thousands, the Divisional Court explain what the HL did in Mendoza v Ghaidan – why was the Rent Act 1977 not deemed a sufficiently proportionate and balanced scheme?

• The Divisional Court was wrong to hold/assert that there is no warrant for proportionality exercise to be conducted by a judge absent some opening such as “lawful excuse” or “reasonable excuse” defence in the statutory scheme creating the offence.
  • Connolly v DPP [2007] EWHC 37 was put before the Court in argument yet the judgment is silent. It is clear Div Court authority (by Lord Dyson CJ) for “reading in” of Art. 10 where there is no such defence, by giving a heightened meaning to the words “grossly offensive” or “insulting” or “by reading into [the section] a provision to the effect that the section will not apply where to create an offence would be a breach of a person’s Convention rights, ie a breach of article 10(1), not justified under article 10(2).” Exactly the same could have been achieved by reading ‘disruption’ or ‘obstruction’ in the same way and it was incumbent on the High Court in the instant case to explain how it would have disposed of it

• There are ECHR cases where the Strasbourg Court has undertaken Art10/11 analysis of disruptive protests despite the domestic law containing no such limiting or qualifying defence. I have done my best this morning to check these three:-

Barraco v France –          L412-1 of the Code de la Route

Kurevicius v Lithuania –   Art 124 of the Code of Administrative Law Offences

Drieman v Norway –       s. 14 and 53 of the Sea Waters Fisheries Act

• While the Divisional Court is correct (at [80]) that the health protection context of Leigh – the successful JR of the Met in relation to the Sarah Everard vigil – is important, I am not so sure that it can be side-lined as easily. The case as a whole can certainly be read as one in which Parliament’s say on a statutory scheme did not obviate the need for (there) the police to conduct their own proportionality analysis. In other words, if the Divisional Court was right here, then in Leigh why was the scheme differently viewed (intriguingly, by the LCJ who sat there too) – it cannot be simply that “that was the police, this is the court” since s.6 of the HRA knows of no distinction.

2. The Court is also exposed in its analysis of the trespassory element to the s.68 offence.

It is the case that there has been no Strasbourg decision establishing a right to enter “obviously” private land and to hold a protest there. That said, I think there are areas of the judgment where the Court either elides matters or fails properly to distinguish or explain. This is aside from the matter of quasi-public land as a third way and warranting different protection and access rights, a topic beyond the confines of this short post other than to note than several – Kevin Gray, Jacob Rowbottom and I have all argued that a more granular analytical framework is needed than simply a bifurcated one.

• Appleby is an oft-misunderstood and misapplied case. This is no exception. It is a case where the UK’s positive obligation under Art 10/11 was in issue. Thus proportionality came into the equation then at the engagement stage. It would not necessarily be the same in domestic law when asked of a similarly situated body.

• In any event where it and similar cases are held up as authority for the proposition that A10/A11 confers no right of entry, that is because of the factual matrix of a group seeking permission to enter/be there to erect some stalls. It is not a case that decided once you are on land X what can you do on it… as that was not the issue

• That becomes important in s.68 aggravated trespass as the offence is not one that can be committed simply by trespassing i.e. by being there. It is committed by trespass plus …, as we know from Barnard v DPP (again not cited in judgment although Bauer with similar reasoning is)

• There is a case where Art10/A11 analysis was carried out by a court in context of what we’d term “trespass  but not on obviously public land to which everyone had entry or right of access”: R (Singh) v CC West Midlands [2006] EWCA Civ 1118, a s.30 dispersal case but where the protesting group had gained access to the theatre (where a play they objected was being performed) and had staged a protest there. While the time line is not that easy to make out, my reading is that while the dispersal order covered the group outside, the triggering disruptive behaviour all occurred inside – to staff, to theatre premises etc. There was no issue of the court simply saying “Art 10 and 11 do not apply here given where these events took place” – instead the proportionality of the policing measure is assessed based on what they were doing inside and out. For anyone interested, the relevant paras are [108] et seq.

• While it might seem a counter-intuitive point (and perhaps it might prove to be one!), the court’s analysis in the instant case of protests “carried out in locations to which the public has a right of access, like highways” ([39] of Barraco and Kudrevicius) seems to put the cart before the horse. As a matter of domestic law that is so and indeed we know from DPP v Jones and Lloyd in 1999 that that limited right of access might extend to certain forms of protest i.e. is not limited simply to passing and repassing but that is not the question: the question “is there a right of access onto land in order to protest” is not properly answered if one starts with by saying: ‘The present case is concerned with trespass on land to which the public has not right of access at all’ ([39]). The premise begs the question. In fact, the judgment is premised on there being identifiable “public places” (see emphasis in [35] and [37]) yet with no definition other than that self-supporting one.

• In its assessment of whether a conviction under s.68 is per se proportionate ([74] – [80]), I think the Court falls into error on several occasions:
  • Its first and second points (paras 74-75) need eliding into one; since s.68 cannot be committed solely by trespassing, it is only that additional act that can be said to be aimed at protecting A1P1 property rights
  • The Court has failed to appreciate the reach of s.68 and in so doing erred in concluding that it is necessarily a proportionate scheme. While charges under s.68 do require that additional Barnard act, I am not sure that ([76]) “protests carried out for the purposes of disrupting or obstructing the lawful activities of others” do not lie at the core of Art 10/11. Rather, what the Strasbourg Court said in Kudrevicius was this (at [97])

“In the Court’s view, although not an uncommon occurrence in the context of the exercise of freedom of assembly in modern societies, physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by Article 11 of the Convention”

In other words, it needs an obstructive activity – not simply the intention. Yet, under s.68 someone might be guilty of an offence without that being possible: the case of Winder v DPP is instructive here

“The result of Winder v DPP is that the protest activity engaged in need not be one that is even capable of intimidating, disrupting or obstructing. As long as at the time it is performed, the protester intends it should have that effect and the activity can be said to be more than ‘merely preparatory’ to that end, the offence is committed. The case has been heavily criticised by commentators. (taken from my own book, p260)

3. The Divisional Court makes some points about s.6 of the HRA that I am not at all sure are that well-founded.

Nothing is provided by way of support for its averring that “Section 6 applies if both (a) Convention rights such as articles 10 and 11 are engaged and (b) proportionality is an ingredient of the offence and therefore something which the prosecution has to prove.” I am not surprised by that omission as this is new to me as what s.6 covers – there is certainly no warrant on the face of s.6 and I am not sure what cases the Court had in mind when constructing those lines. It seems to resemble more of a QED. It leads into this problem too, identified in part by Cuciurean’s counsel (Tim Moloney QC) during the proceedings (albeit paraphrased here): if the Court is right that offences containing no identifiable “reasonable excuse” defence require nothing of the court to be read in or by way of proportionality, that all being assumed from the legislative scheme, then this results in a division within the criminal law of what we’d term “Convention-applicable offences” and “non Convention-applicable offences” where no ECHR analysis is ever needed. First, that, we’d expect, would have required greater positive enunciation or imprimatur by Parliament than this by the back door judicial approach and sanctioning – creation of whole new criminal law scheme by silence and omission. Second is this different point. It removes the court from any role in checking – perhaps even approving – the application of the criminal law to citizens even where that bites on the exercise of a Convention right conferred on them by Parliament. What that means, and this is the real problem, is that it allocates solely to the police the decision about citizens enjoying their rights. In socio-legal terms, what will rein the police in from charging wherever possible with an offence that is out of the reach of the Convention – any sensible officer would avoid s.137 and use s.68, on the basis that disruptive etc protests take a protester outwith the limited wider right to use the public highway conferred by the HL in Jones and Lloyd. The history of the common law and especially of rights-jurisprudence is towards imposing greater restraint on state bodies and control over otherwise arbitrary exercises of discretion – Cuciurean expands that.

4. There is no doubt that Ziegler needs revisiting in order to assess its reach.

It is true that there is nothing in Ziegler that positively states that the proportionality criteria it expounds – or rather Lords Hamblen and Stephens do – are applicable to all offences, but then that is not how a ratio would work. It was “interesting” that the Divisional Court in the instant case (at [47]) picked up on an obiter in Richardson by Lord Hughes and decided it should be “accorded very great respect” but equally seem to have missed the more expansive statement by Lady Arden in Ziegler (which I would say is part of the ratio or at least is less obviously obiter). She says this: “The Human Rights Act 1998 has had a substantial effect on public order offences and made it important not to approach them with any preconception as to what is or is not lawful” (at [92]). That, it seems to me, offers a view of wider reach of the holding than simply to s.137. Be that as it may. It seems very likely that the Supreme Court will be asked to revisit a case a little over a year since it decided it and asked whether the Divisional Court was right to hold that

“it is impossible to read the judgments in Ziegler as deciding that there is a general principle in our criminal law that where a person is being tried for an offence which does engage articles 10 and 11, the prosecution, in addition to satisfying the ingredients of the offence, must also prove that a conviction would be a proportionate interference with those rights.

Watch this space.

ADDENDA

Amazing what comes to you walking the dog in sleet, refreshed and distracted

A. While this is of tangential relevance to the disposal and any possible appeal, the case yet again highlights the need to think “better” about property holdings – for public law trespasses/protests/free speech at the very least. The land here was owned by HS2 but for the purposes of a large scale public utilities project, a rail route. In many jurisdictions this would have been “obviously” public land, rather than owned privately by a plc or corporate entity. How land is held and by whom affects the exercise of these publicly-bestowed rights and, in turn, engages questions of state or public action – the decision to contract out or to sell off being those of government. I do not have all, many, any of the answers but do know we need to address this more fully on as some others have – the notion of quasi-public is as good a place as any to start.

B. Of more relevance to the disposal, this thought struck me. Have the constituent elements of s.68 been made out? The facts are not clear. What activity of HS2 was disrupted or obstructed by C over the two days 16-18 March 2021? It requires someone present on the land (Tilly v DPP) who is doing an activity. There was no building going on. If HS2 employees are simply there, is that enough? Is being there and taking measures to ensure C is evicted enough? This might become circular and/or raises the Q can C be guilty of aggravated trespass – that is trespass plus, following Barnard – simply by resisting the act of eviction? Is obstructing one’s own eviction – the lawfulness of which is yet to be decided, that being the Q in point – enough to make good the offence? I do not know but with the disposal today, we will never know (unless successfully appealed) as the outcome is a direction to convict

And a two more thoughts, one clarification over night…

C. In terms of Ziegler, it seems to me the options are:- it applies only to s.137; it applies wherever there is a “reasonable/lawful excuse” or closely worded similar defence (and we might note here that the accompanying s.69 which allows an officer to give directions on reasonable belief an aggravated trespass is being committed does so in s.69(4)(b)); it applies or can be applied wherever there is some wording that can be given a s.3 HRA “heightened” (or narrowed reading as suits, along the lines of Connolly – such as, here, obstruction or disruption i.e. obstructing in s.68 includes only those obstructive protests that it would be proportionate for the state to restrict given D’s Art 10/11 rights (given the Ziegler criteria); where there is no such wording, we reach the age-old constitutional conundrum and I suspect that a declaration of incompatibility under s.4 HRA is the appropriate relief not expansion via s.3…though I imagine those cases to be few given the actus reus of protest-/activism-restricting offences tend to be activities to which a heightened meaning can be given.

D. Raising this without really an answer or having researched/thought about it deeply: there is much in the case about the application of A1P1, the right peacefully to enjoy possessions, as a counterpoise to C’s rights under Art10/11. It was set up as a right in conflict, neither given equal or higher priority – as with Art8/Art 10 media privacy cases – but I wonder of that is correct. The cases cited – Canada Goose etc – all involved either (both) private company v private protester or private law actions for injunctions etc. None involved the state v private protester, which is what we have here with a prosecution for a criminal offence. The state has no rights, none under A1P1 or any other, and so is the relevance of A1P1 lesser, not an equal right but as a countervailing interest in the Art10(2)/11(2) proportionality exercise? If so, the point is not moot as the burden remains on the state to show a legitimate and balanced reason for limiting C’s rights – rather than C having to show his own case why HS2’s A1P1 rights should lose to his right…if that makes sense? The questions(s) then are whether there is case law one way or another which hold that the property rights of a non-party (that is, not party to the criminal proceedings between state and X) are in play and how – is it somehow the case that the state, through the DPP/CPS, is deemed to hold them or be the guardian of them? If no case, what should our normative position here be? it strikes me that that leads onto Qs about the relative roles of private law and public/criminal law – in short, and perhaps trite: if HS2 wanted its property rights protected in a free-standing way, it should have pursued C itself. where it does not (or chooses not to or cannot) it is at the mercy of their being given lesser weight as a countervailing Art10(2)/11(2) interest.

E. Related is this point on trespass. The court at [74] says this: “section 68 has the legitimate aim of protecting property rights in accordance with A1P1. Indeed, interference by an individual with the right to peaceful enjoyment of possessions can give rise to a positive obligation on the part of the State to ensure sufficient protection for such rights in its legal system”. But if that 2nd sentence holds good, why is trespass not a crime in domestic, UK law? If there be such a positive obligation, then either this is met by the tort – so s.68 cannot or does not serve that purpose – or the UK is in breach because we have not criminalised all trespasses (though incrementally we are nearing that!) Section must then have a different aim – and we touch upon this in [75]-[76] but as I suggest in the main blog, the Court does not fully appreciate the sorts of harms captured by the section – Winder v DPP (1996) 160 JP 713 DC would be a case in point; the argument I made in my book is that that case effectively allows for arrest (or risks it) on intention provide an act is done with that intention, even if it is not capable of achieving it. The Div. Court here in Cuciurean I suggest has significantly underplayed the width or potential of s.68 and thus in the balancing exercise, attributed the wrong weight on one side of the scales.

Some fuller initial thoughts on the Police, Crime, Sentencing, and Courts Bill 2011 – the new public order powers in clauses 54-60

I have included in this link a longer paper, with a bit more law in it, for those who like that sort of thing

initial-thoughts-on-the-police-bill-2021-full-versionDownload

PROTEST POLICING IN A PANDEMIC

MEAD PROTEST POLICING IN A PANDEMIC 2021Download

SOME INITIAL THOUGHTS ON THE POLICE, CRIME, SENTENCING & COURTS BILL – THE NEW PUBLIC ORDER POWERS IN CLAUSES 54-60

These proposals are the first major changes planned to the Public Order Act (POA) 1986 in nearly 20 years, when the minimum number to constitute an assembly in s.14 was brought down from 20 to two.  Previously, the only change had been to introduce a statutory to ban certain “trespassory assemblies’ (s.14A) in 1994, putting public processions and assemblies much more on a par. The Bill is here, and the relevant clauses (that will become sections if it is passed) are cl.54-60. There is a fuller paper with more law in it also on this blog, for those interested in that sort of thing.

In outline, the bill proposes

• Creation of a new trigger for the power to impose conditions on both public processions and assemblies, one based on noisiness. This has two elements: the noise generated by those taking part
  • may result in serious disruption to the activities of an organisation which are carried on in the vicinity [whatever that might mean] OR
  • may have a significant and relevant impact on persons in the vicinity
    • Relevant impact here meaning
      • it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity OR
      • it may cause such persons to suffer serious unease, alarm or distress
    • Significance of the impact is a function of likely number who may experience the relevant impact, its likely duration and likely intensity
• Creating parity between s.12 and s.14 by removing the caveat in s.14(1) that conditions on assemblies can only be imposed on place, maximum duration, or maximum number (and as appear necessary to prevent the disorder etc). The new power for assemblies will be limited only by necessity
• Conferring of a power on the Home Secretary to make Regulations governing the meaning of “serious disruption to the life of the community” and the new “serious disruption to the activities of an organisation” carried on in the vicinity
• The offences that protesters might commit under ss.12 and 14 have been extended in that the prosecution no longer needs to prove they knew of the conditions; it is enough that they ought to have known.
• An increase in some penalties to 51 weeks, from three months, and fines on standard scale 4 (from 3).
• Broadening the geographical reach of the controlled area around Westminster AND adding obstructing vehicular access to/exit from the Parliamentary Estate to the list of prohibited activities (currently, broadly, amplified noise equipment and tens/overnight sleeping equipment) – and a power to list an alternative area in Regulations should Parliament re-locate temporarily.
• Abolition of the common law offence of public nuisance, replaced by a much wider statutory offence of intentionally or recklessly causing public nuisance.
• A new power to impose conditions on one-person protests in public places on similar lines to those above i.e. reasonable belief that the noise generated will seriously disrupt the activities of an organisation or cause significant impact on people in the vicinity.

Some general thoughts

• The range of planned changes is surprising, given the impetus for change – certainly one of the drivers – was the loss in the High Court by the Met in the Jenny Jones judicial review. It is hard to see how any will actually address the perceived problem. The issue there for the Met was their argument that a single officer could impose  London-wide conditions on XR. The High Court held that an officer had to be at every “scene” where conditions were going to be imposed, in order to assess the necessity on the ground each time.  This Bill does nothing to assist the Met on that specific issue…so why is it needed?

• Yet again, there is no explicit inclusion of proportionality as the gauge by which officers should test whether or not to impose conditions. Proportionality is a standard means for evaluating the balancing of rights against wider social interests, such as disruption to traffic or business, yet it is absent on the face of this Bill.

• This real problem for protesters and activists is not (always) so much the law – the legal rules and position – but how this is implemented and interpreted on the ground by officers; generally speaking the wider framed the law, even more widely used will be the operational power. As I put it in my recent Kings Law Journal article “Policing Protest in a Pandemic” (2021), “The reality of protest is often at odds with its legality”. Many might feel ‘chilled’ or might turn up but feel under an obligation to abide by what turn out to be legally invalid conditions. Very few will end up in court where, with appropriate legal advice, the conditions and/or arrests might be challenged.

• These changes follow the same evolutionary and restrictive path that we can trace back, say, to 1936 and the first Public Order Act to deal with Mosley and his Blackshirts, and to that extent come as no surprise. The opportunity once again to consider it all in the round, taking account of all interests and all voices – not just those institutional voices of the police, and indirectly here it seems local disrupted communities – has again been missed.

• Further, the Bill, like the Public Order Act before it, and like almost all public discourse around the protest and activism conceives it as an individualised play-off: protester(s) A against business(es) B and bystander(s) C, a bilateral relationship. There is little or no sense of the wider social value of a protest. Using this Bill to open up a discussion of who really benefits from protest, and thus who might lose from its being restricted would be enormously helpful.

• The greater increase in policing power is likely to come from not simply the changes but the changes allied to general preventive powers, combined with an expansion of discretion. For example, adding obstruction of vehicular access to/exit from, say, the House of Commons to the list of prohibited activities in the area, broadly amplified noise and tents/sleeping equipment is a great change. Both of those again broadly require some equipment whereas obstruction does not. It can be committed (Bill, cl 57(3)(a) “by the use of any item or otherwise”. Anyone in the area becomes a potential suspect, not just those with sleeping bags or loudspeakers. They can now much more easily be given a direction to desist, and failure without reasonable excuse constitutes an offence.

• The plans in effect to allow officers to impose conditions on assemblies (now of only one) and on public processions based on the likely noise disruption or impact bring similar, but greater concerns. The most obvious point I suppose is that protests are almost always noisy either because of numbers, or simply because of the fact that this is the way to communicate a message to bystanders, and to show solidarity between members. A power to regulate assemblies and marches simply because an office has the prospective ‘reasonable belief’ that the noise might have certain effects is in many ways an existential attack on the right to protest, one that might end up almost shifting the burden onto protesters – either, somehow, to say “we will be quiet”(!) or “the noise we make will not reach the level as to cause serious disruption or significant impact”.

• There is a new power which will allow the Home Secretary to make Regulations – with much less parliamentary scrutiny – that affect primary legislation, s.12 and s.14 of the POA 1986. It does so here by empowering the Home Secretary to define any expression in the following two terms “serious disruption to the activities of an organisation which are carried on in the vicinity” or “serious disruption to the life of the community”. This too is worrying.

• That protesters, if the Bill passes, would be liable to arrest for failing to comply with conditions that they ‘ought to have known’ about, what lawyers terms constructive or Nelsonian knowledge, will again only strengthen the hand of the state since the CPS (and before the police when arresting) no longer need to prove actual knowledge. Turning a blind eye to the obvious will not help.

• The Bill proposes to put the common law offence of public nuisance onto a statutory footing. While usually we would welcome such moves, it is hard to see what purpose it will serve as the old law had almost become redundant through being overtaken by  the spread of environmental protection offences and of offences relating to grossly offensive communications. This change revivifies an almost moribund offence, and provides prosecutors, and before them the police, with considerable latitude to take action. The offence will be committed by intentionally or recklessly causing serious harm (by act or omission with ‘serious harm’ defined as death, personal injury, or disease; or loss of or damage to property. The injury does not need itself to be serious – so would, say, include breaking someone’s fingernail – and neither does the damage. This new offence is therefore a prime candidate for use against almost any activists who does anything more than simply march or hold a demo – and even they might be covered since “serious harm” also includes ‘serious annoyance’.

EXECUTIVE SUMMARY: PROTESTING IN THE TIME OF CORONAVIRUS: CHANGES TO REGULATION 7 IN ENGLAND

The following summarises yesterday’s longer blog post, discussing the changes in England to Reg 7 (and to Reg 6) in The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 and can be read in conjunction with this submission to the JCHR.

1. The main shift will be to relegate Reg 6 – formerly the centrepiece of the lockdown powers – to be replaced by the prohibition in Reg 7 on gatherings. Reg 7 has as result been expanded and modified. Reg 6 formerly prohibited leaving one’s place of residence without reasonable excuse – with a non-exhaustive list of over a dozen examples. Non-exhaustive because it would be possible to argue X reason was a reasonable excuse despite not appearing in that list. Reg 6 is now a prohibition on staying overnight away from your place of residence without reasonable excuse. We, in England at least, are now able to leave our homes. That list remains broadly the same, but with, for example, the addition of exemptions for ‘elite athletes’ (Reg 6(1)(b)). Instead, the focus – in terms of preventing the spread, and keeping the R number (well) below 1 – is on how gatherings are regulated.

 

2. As from yesterday (1 June) Reg 7 now restricts us (in England) from participating, in either public or private places, in outdoor gatherings of more than six, and indoor gatherings of more than one (i.e. two or more). Instead of being constructed around the notion of reasonable excuse, this is missing. Instead, twelve exemptions are created. The list is therefore exhaustive (though this will be refined later in this paper).

 

3. There are constitutional concerns surrounding the urgent procedure by which the change in the law – not in primary legislation but in secondary legislation, a statutory instrument (SI), what barrister Tom Hickman QC typified on Twitter as “abracadabra governance.

 

4. The full package of measures includes criminalisation in Reg 9 – the creation of a definition of criminal offences, allowing for formal arrest, charge and prosecution – and informal enforcement powers in Reg 8, whereby police officers can direct someone to return home or leave a gathering.

 

5. The main change in Reg7 is that it now covers gatherings in private as well as public places but expands, outdoors, the maximum number from two to six while at the same time reducing, indoors, the maximum from two to one. Reg 7 formerly did not distinguish between indoors and outdoors (largely because of the restrictions on leaving one’s house in Reg6 rendered that largely unnecessary).

 

6. There is now a little more clarity on what constitutes a gathering – a term not generally used previously in domestic legislation, which has favoured the more widely used ‘assembly’. Under Reg 7 as amended, a gathering is where two or more ‘are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any activity with each other’.

 

7. On first reading (and several subsequent ones), the first more specific – “engaging in any form of social interaction” – is subsumed and thus covered by the latter more general “undertaking any activity”, with engaging in and undertaking being near-synonyms.

 

8. While meeting/conversing/interacting on-line would seem to be covered by virtue of the fact that the internet is a ‘place’, a privately owned one – and so seemingly brought within the Regulation for the first time by this change – it occurs neither indoors nor outdoors, so on-line activity and (political) organising remain outside the scope of the restriction.

 

9. The new definition offers no real help on how we identify a gathering – how close must two people be before they “gather”? I hold to my earlier view that, since these Regulations were introduced for health-protection reasons, that is the guiding interpretative principle. From that it follows, that two people more than 2m apart cannot constitute a gathering. Even then, is that, and should that be the test or the only test? Reg 7 refers not simply to gathering, but to participating in one. In turn, this connotes – something Dr Geoff Pearson pointed out to me earlier – if not some mental element than something more than happenstance congregation, some deliberate act of coming together. I think this is what would allow us to distinguish various early morning commuters all waiting at the bus stop. I have revised my view from yesterday – I think this provides a more plausible route out than attributing to the words “with each other ” as I put it yesterday ‘ form of active conjoining rather than simply locational co-incidence’.

 

10. The inclusion of private indoor places and limiting it to one means that I am unable to have even a single guest in my house. The reduction in maximum numbers from two to one here is minimal. The effect of what was formerly Reg 6 meant that very few of us would have had good reason to be in someone else’s house such that while a gathering of two of more in a private indoors place was lawful under Reg 7, it was not under Reg 6. It does now expose us both (since we are both ‘gathering’) whereas previously the householder (such as Prof Neil Ferguson) was not in breach of the Reg 6 prohibition on leaving their house. As many have pointed out, the one person limit has an arguably disproportionate effect on the family life (i.e. under Art 8) of those who do not live with each other in the same household.

 

11. It also opens up – or perhaps does not close down – the opportunities for policing of private places, matters always for policing discretion. They can choose to police private indoor places, or choose not to – and there may well be groups who will be or might feel likely subject to greater, invasive policing.

 

12. One such group might be political activists, a few seeking to plan and organise. While the police have long some power to enter private premises such as a meeting hall (Thomas v Sawkins, 1935) that was limited to cases where they suspected an imminent breach of the peace. Reg 7 has the potential to allow much greater levels of policing of political activists should the police choose. That is a worry.

 

13. The new rules also produce this counter-intuitive result, one that flies in the face of the health-related purpose that must underpin the Regulations, or their interpretation: up to six people can gather with impunity outside. Strangely, this means that a household of five together can only gather with one other person – hosting a BBQ in the garden for example – but a person living alone person can invite five others; the health risks are very different. The explanation must be the ease and effectiveness of policing and enforcement.

 

14. There are interesting issues around the choice of slightly different structure to Reg 6 and Reg 7. As we saw above, not having a reasonable excuse is part of the definition of the restriction on (now) staying overnight. For Reg 7, covering gatherings, it is not part of the restriction/prohibition but of the offence: under Reg 9 it is only an offence to gather if I do so without reasonable excuse. Why does this matter? Mainly because much of the policing of the Regulation will not be by formal charge/prosecution but informal enforcement, utilising powers to direct in Reg 9. This allows officers to take action where they consider someone is contravening either Reg 6 or Reg 7; it is only for Reg 6 directions then that the officer must also consider the reasonableness of any excuse since that comprises part of the restriction.

 

15. Why then might that be important? One reasonable excuse that (especially) a protester or someone not able to see their partner could use would be that not allowing them deprives them of their ECHR right, under Arts 10/11 or Art 8: my reasonable excuse for gathering is that I am exercising my Convention right to assemble and protest peacefully. That avenue is foreclosed for informal enforcement, though remains open if charged and prosecuted under Reg 9. Another route to try to secure protection would be that the scope of the term “gathering” should be read (utilising s.3 of the HRA) so as to exclude gatherings that would be protected by Arts 10/11 as expressive assemblies.

 

16. All of which leads on finally to the matter of protesting and where this change leaves the right to protest in England in light, for example, of arrests made of XR protesters in London over the weekend of 30 May, with Black Lives Matter protests ongoing and scheduled for this coming weekend across the UK.

 

17. There is nothing in the Regulations, or anywhere else (there has been no derogation) that restricts the rights we all have, in the ECHR and under the HRA, peacefully to assemble and protest, under Arts 10-11. The Regulations, and Reg 7 especially, must be interpreted (if matters go to court) and put into operation by police officers bearing in mind their statutory duty to act in an ECHR-compliant manner. This is contained in s.6 HRA, a piece of primary legislation, and therefore of greater constitutional standing or value than the Regulations in a statutory instrument. One route would be to suggest, if challenged or questioned, that groups of protesters more than 2m apart do not constitute a gathering in the sense the term is used in Reg 7. Twenty, fifty, one hundred of us all 2m+ apart are not gathering. Such a reading preserves the constitutional value of politically participative protest, over and above (say) the value of social or recreational value of six friends having a BBQ.

 

18. The point to be made is this – though I’d concede that persuading an officer ‘on the ground’ to accept will be difficult, given that the amended National Police Chief’s Council Guidance Note is silent on the matter. How and why – bearing in mind we are thinking solely in health related terms, not public order – can a group of ‘socially distanced’ six friends meet for an afternoon BBQ at the river and stay outside long into the evening (there is no time limit in the Regulations or in Government Guidance) but a group of seven or eight political activists cannot hold a twenty minute vigil 2m apart on the steps of a Town Hall this weekend to mark the death of George Floyd in Mineapolis. That seems an indefensible distinction, one that does not properly recognise the value of free speech and peaceful assembly, nor protect it.

 

 

PROTESTING IN THE TIME OF CORONAVIRUS: CHANGES TO REGULATION 7 IN ENGLAND

I have written about the restriction on ‘gatherings’ in Reg 7 of The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 previously, and submitted evidence to the JCHR on it as well. The focus of most previous commentary has been on Reg 6, imposing what is usually referred to as a ‘lockdown’, prohibiting us (in England at least) from leaving our homes except with good reason, ’reasonable excuse’. There was little need to dissect Reg 7, or for it to be applied, since we were all, in general terms at least, forbidden from being outside. That, of course, is rather a simplification: Reg 6 identified many instances of what would be considered a ‘reasonable excuse’, as well as the general catch-all. The harshness of the general prohibition was ameliorated too by relaxation on 13 May, by allowing us to take exercise and visit public open air spaces with someone else.

 

Today, changes were made (subject to Parliamentary approval within 28 days) the result of which is to place Reg 7 firmly in the spotlight, and very much to relegate Reg 6 to a bit part. We, in England at least, are now able to leave our homes; the restriction now is that we must not stay overnight somewhere else, unless we have a reasonable excuse. That list remains broadly the same, but with, for example, the addition of exemptions for ‘elite athletes’ (Reg 6(1)(b)). Instead, the focus – in terms of preventing the spread, and keeping the R number (well) below 1 – is on how gatherings are regulated.

 

Others have commented on the constitutional dynamics that arise from the way these changes came about: published late on a Sunday afternoon, to come into effect at 11:30 the following day, excluding Parliament from any ex ante scrutiny, using the urgency of the need for the measures, what barrister Tom Hickman QC typified as “abracadabra governance”. I do not propose to add to that, other than to express agreement.

 

 

 

Instead, I want to offer a few thoughts on the new, fleshed-out Reg 7, outlining where it differs from the previous iteration and suggesting what seem to me to be ongoing areas of concern.

Formerly, gatherings of more than two in a public place were prohibited (with attendant criminalisation in Reg 9 and enforcement powers in Reg 8) unless one of four exemptions applied: same household, essential for work purposes, to attend a funeral, or was reasonable necessary to facilitate a house move; to provide care or assistance to a vulnerable person; to provide emergency assistance; or to participate in legal proceedings/fulfil a legal obligation. The new prohibition retains some elements of that. The list of permitted reasons to exceed the restriction on gatherings is exhaustive; there is no general caveat of “reasonable excuse” with examples of what might constitute it. Since Reg 7 will be doing much more of the legwork, replacing in effect the general prohibition on what was old Reg 6 – which was drafted in that manner – this is surprising. However, while the prohibition is absolute subject to those listed exceptions, Reg 9 which creates the offence of contravening the prohibition on gathering does include a ‘reasonable excuse’ defence. This offers the possibility of seeking to argue that the protected Convention right of freedom of assembly/freedom of speech (in ECHR Arts 11 and 10 respectively) – effectively a right to protest – constitutes the reasonable excuse for gathering. I made this point in my evidence to the JCHR (para 10). Another route by which to render the Regulations ECHR-compliant would be to argue that the scope of the term “gathering” should be read (utilising s.3 of the HRA) so as to exclude gatherings that would be protected by Arts 10/11 as expressive assemblies. Those two routes should avoid the alternative (should a case be brought) of declaring Reg 7 incompatible with those two protected Convention rights. That would mean, since they are contained in secondary legislation, there would be no question of a court “only” declaring them incompatible under s.4 of the HRA; issues of parliamentary sovereignty, at the heart of the s.3/s.4 scheme, do not obtain. Regulation 7 would be susceptible to being struck down, of no effect.

 

 

Some of the points I raised in that submission and my earlier blog post have been dealt with, although not necessarily satisfactorily. There is now greater clarity on what constitutes a gathering – a term not generally used previously in domestic legislation, which has favoured the more widely used ‘assembly’. Under the Regulations as amended, a gathering is where two or more ‘are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any activity with each other’. This begs more questions than it forecloses.

 

1. The first “engaging in any form of social interaction with each other” is presumably rendered otiose by the latter – “any activity” must encompass “social interaction”. Why then might the drafter have chosen a specific and a general? I did have a rather detailed, and likely very dull, attempt at an explanation – seeking to draw out subtle differences but in truth I suspect that using two near-synonyms is simply surplusage, belt and braces. The alternatives must be read as interchangeable, with the latter, general ‘undertake’ – to enter/embark upon, to begin – taking precedence over ‘engage’ (to embark on any business’; to enter upon or employ oneself in an action).

 

(For those interested, I was exploring whether the purposive ‘in order to’ might be disjunctive:  gathering is either two or more who are ‘present together in the same place in order to engage in any form of social interaction with each ‘ OR that it is two or more who are ‘present together in the same place to undertake any activity with each other’. The former would imply two (or more) with synchronicity of location and intention i.e. two people together at place X plan/intend/have as their purpose to have some form of social interaction, but are currently doing nothing together. The latter ‘only’ covers those who are together in one place and are actually undertaking an activity with some other person It is hard, in truth, to see what is added by taking such a precursor, inchoate approach to the wording OR, if such an approach is mandated by that strangely but deliberately constructed phrase, then it is overly broad, capturing too many activities and/or allowing too much policing discretion and creating too much uncertainty. The alternative angle I explored was that ‘undertake’ can also mean commit to future action such that a gathering is either two or more who are ‘present together in the same place in order to [so that they may] engage in any form of social interaction with each other OR that it is two or more who are ‘present together in the same place in order [so that they may] undertake [commit to doing] any activity with each other’. Again, it is hard to see what is added by each.)

 

2. Being present together in the same place – might this now include meeting/conversing on-line? If not, why not – is it that the internet is or, or cannot be “a place” (and is either no place, or all places?) There is much written on that to gainsay that approach. In the US, Justice Kennedy described the internet as “the modern public square” (Packingham v North Carolina 137 SCt 1730, 1737 (2017)). Is it that no one is present together – there is always a microsecond (at least) between A posting on say Facebook or Twitter, and B seeing it, or replying, or liking? The matter did not arise under Reg 7 in is first guise, as that only prohibited gatherings in a public place, and so did not bite upon virtual gatherings.

 

3. The definition does not really help us identify what activities might sensibly be prohibited – what is the real target of the new rule? – so that we might avoid doing them. Perhaps, put another way, the word ‘with’ is being asked to do a lot of heavy lifting – if I am at a bus stop, waiting for No.37, and there are six others there too, am I not engaged in the activity of “waiting” with them? Am I not ‘with’ other supporters in the away end at Carrow Road? It would not be a stretch of normal use of English to describe it thus, but to obviate such over-reach (or what we might presume is unintended overreach) does ‘with’ need to encompass some form of agreed activity rather than simply meaning “alongside” or even “near”, some form of active conjoining rather than simply locational co-incidence?

 

 

The major change in the Regs is the inclusion now of all places, both public and private. My earlier criticism (JCHR evidence, para 21) – that there was no definition of “public place” – obviously falls by the wayside. The extension probably provides an answer to the question at 2. above since it further goes on to identify the rule as covering (i) public or private indoor places and (ii) public or private outdoor places. In other words, though the internet and a webpage are a place, and a private one at that, they are neither indoors nor outdoors (at least not as defined elsewhere in the Regs). Nonetheless, there are a few concerns.

 

First, we should note that the prohibition formerly applied only where more than two people gathered in a public place. Now, in indoor public and private places, it covers any gathering of two or more i.e. once I am no longer alone in my house or any other ‘substantially enclosed’ (Reg 7(3)(b)) indoor place. To some extent, this change is simply replicating the previous Reg 6 scheme; while I am no longer barred from leaving my home, I am barred from going into anyone else’s unless say it is for work. The end result is the same – households remain in indoor silos. While previously (subject to the general ban in Reg 6) I could have invited someone into my kitchen or my garden, I can now only invite them into my garden. The rationale is clearly the notion that the risk of spread and infection is far greater inside than outside. It does produce interesting results. As many have noted on Twitter, it still prohibits couples who for a variety of reasons might live in separate households from meeting in the house of one of them and, indeed, prevents two people who are not in the same household (i.e. partners living together) from having sex with each other indoors at least. Though, as one commentator noticed, it does not prevent A inviting B into their home for sex and B paying for it, as that falls within the work exception for A! (NB – I have tried to find out who this was, I read it in passing, but cannot now do so; very happy to attribute). The new rules also produce this counter-intuitive result, one that flies in the face of the health-related purpose that must underpin the Regulations, or their interpretation: up to six people can gather with impunity outside. Strangely, this means that a household of five together can only gather with one other person – hosting a BBQ in the garden for example – but a person living alone person can invite five others; the health risks are very different. The explanation must be the ease and effectiveness of policing and enforcement – in outdoor places, it is simpler to count and see of the gathering numbers more than six, rather than complicated questions about relationships to each other. If the gathering numbers more than six (outdoors), then the (policing) question arises: are you all in the same household? The Regulations say nothing here about onus of proof. It is here that we reach a structural problem with the design of the Regulations.

 

Regs 6 and 7 do not create offences, or allow for enforcement. They impose requirements of restraint – formerly a prohibition on leaving one’s place of residence, now staying overnight at someone else’s, and on certain gatherings. Reg 9 creates the offence – comprising a reasonable excuse defence for Reg 7, it being absent in the requirement (as I discuss above) and a strict liability offence for Reg 6 but which itself does include it (in both an overarching claw-back, and with over a dozen illustrative examples) so the end result is the same: both offences can only be committed where someone ostensibly in breach does not also have a reasonable excuse. Whether we view “reasonable excuse” as part of the requirement (Reg 6) and thus part of the actus reus or, as with Reg 7, a defence to be raised by the accused matters only in that if it is a defence, some prima facie evidence has to be adduced in order for the matter to be live. The legal burden – proving beyond all reasonable doubt that there someone had no reasonable excuse – remains with the Crown. However, that might not in practice matter very much, because of the way the enforcement power in Reg 8 operates. Much of the policing of the Regulations relies not on formal court processes – charging for one of the various crimes – but through police officers being able to direct someone to return to the place where they live, or remove them there (where the officer considers they are contravening Reg 6) or directing gatherings to disperse, as well as directing people to return to the place where they live or removing them there (where the officer considers they are contravening Reg 7). It is here that the structure matters. Where a reasonable excuse is contained within, or as part of, the definition of the restriction, as it is in Reg 6, then an officer in order to act lawfully must not only consider whether someone is away from the place where they live (old Regs) or staying away overnight but also whether they might have a reasonable excuse. Where the existence of a reasonable excuse is not an integral aspect of the requirement, but only of its criminalisation (in a separate Regulation), they need not consider whether there is a reasonable excuse for the gathering.

 

To develop this further, even if, as I argued above, exercising my right to protest and assemble peacefully (under Art 11) might constitute a reasonable excuse, there is no need for an officer to consider as part of the process of lawfully directing a gathering to end. (As an aside, and rather technically, there are here issues to be explored around the duty in s.6 of the HRA, on officers not to act or reach decisions which disproportionately restrict those rights, but read in light of the “outcomes are all” approach at the heart of Begum [2006] UKHL 15 alongside, most recently RR v SoS for Work and Pensions [2019] UKSC 52).  For those who feel that policing decisions – to remove, and to direct a gathering to end – have wrongly deprived them of their statutorily-guaranteed rights, the solution can only be ex post and to the courts. One final point on this aspect: if today’s changes do herald a shift onto Reg 7 as the linchpin of enforcement, at the expense of Reg 6, we should bear in mind Reg 8(1). This remains unchanged and allows relevant persons, such as police officers, to “take such action as is necessary to enforce any requirement imposed” by Reg 7. There is no such power, with such width, to secure compliance with Reg 6. I would assume that necessary would be read as “proportionate” adopting on very different facts admittedly the approach that the House of Lords took to “necessary” in s.10 of the Contempt of Court Act 1981, where there was a risk to journalistic freedom: Ashworth Security Hospital v MGN Ltd [2002] UKHL 29 [61]-[62].

 

 

I’d like to conclude with some thoughts on where this change leaves the right to protest in England in light, for example, of arrests made of XR protesters in London over the weekend of 30 May.

While the amendment offers a little more insight into what constitutes a gathering, it fails to resolve the one, critical matter: how close must I be to someone else to be “gathering” with them? This is a point I made in my earlier blog, and submission to the JCHR. In short, the argument I made was that, given these regulations have been made under health prevention legislation, they must be read subject to that, not as public order provisions. From that should follow this conclusion: if I assemble or meet (certainly outdoors) more than 2m from someone else – and certainly if this is not for any great length of time – I am not acting unlawfully, as I am not ‘gathering” within the meaning of that word in the Regulations. Twenty, fifty, one hundred of us all 2m+ apart are not gathering. Such a reading preserves the constitutional value of politically participative protest, over and above (say) the value of social or recreational value of six friends having a BBQ – where, we should note, there is no time limit in the Regulations. Government Guidance, amended to take account of today’s changes, tells us little more, and neither does today’s amended National Police Chief’s Council Guidance Note. Noticeably, they make no reference to protest gatherings, not to any Convention-protection or indeed Convention-impact such as for example (and again noted by many on-line commentators and contributors) the impact on family life of partners in different households not being able to meet. The omission of both is not surprising. However, while we can explain the difference on grounds that bright lines facilitate ease of policing, in order to withstand HRA scrutiny, Government (if challenged) would need to be able to explain how and why – and solely in health related terms, not public order – why a group of six friends can meet for an afternoon BBQ and stay outside long into the evening provided they remain ‘socially distanced’ (i.e. 2m apart, though this is not in the law, the Regulations, but only in the soft law Guidance) but a group of seven or eight political activists cannot hold a twenty minute vigil 2m apart on the steps of a Town Hall this weekend to mark the death of George Floyd in Mineapolis. That, to my mind, seems an indefensible distinction.

The Government’s response to COVID-19: the human rights implications of the ban on gatherings in Regulation 7

1. The coronavirus undoubtedly poses such a threat that it engages the UK’s positive duty under Art 2 to take action to save life, and not to impose “harm” as an aspect of Arts 3 and 8. This paper does not address that but instead its focus is on one question, the human rights implications of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 specifically on Regulation 7, the restrictions on gatherings (and enforcement in Regulations 8-9).

2. Regulation 7 states that no one may participate in a gathering of more than two people in a public place except

(a) where all the persons in the gathering are members of the same household,

(b) where the gathering is essential for work purposes,

(c) to attend a funeral,

(d) where reasonably necessary—

(i) to facilitate a house move,

(ii) to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,

(iii) to provide emergency assistance, or

(iv) to participate in legal proceedings or fulfil a legal obligation. 

SUMMARY

3. Regulation 7 engages the right to assemble peacefully and to associate in Art 11 of the ECHR. Since it constitutes a restriction – indeed, a near-total ban on assemblies, limiting the number of participants to two save in very limited circumstances – on the right, it requires justification under Art 11(2). Critical here will be whether the Regulations are lawful – both as a matter of domestic law and in terms of certainty and foreseeability – and do they constitute a proportionate restriction given the clear and imminent threat to health and life? There are concerns with both.
4. If those concerns can be met by an interpretative approach – utilising s.3 of the HRA to confer (here) an Art 11 compatible reading, that would solve the problem. If not, and since these powers are contained in Regulations not in primary legislation then – absent a derogation order – the Regulations (or the offending parts) are susceptible to being declared unlawful and of no effect by virtue of s.6 of the HRA, s.4(4) offering no protection here.

COMPATIBILITY WITH ART 11

5. Article 11 covers both “gatherings” (to use the term in the Regulations) that are for a political/expressive purpose and those that have a more social flavour, such as 25 journalists meeting in a café to celebrate Che Guevara’s birthday (Emin Huseynov v. Azerbaijan) or the meeting of a hunt (Countryside Alliance v UK), those latter marking a significant change in the court’s approach since Anderson v UK (1997). Undoubtedly, protest assemblies or assemblies that are more obviously politically expressive will have heightened protection, under the usual ECHR ‘scheme’, meaning that restrictions on such assemblies will require greater justification, perhaps by being accorded a lesser margin of appreciation.

6. Regulation 7 prohibits most public gatherings; gatherings in private remain unaffected and thus subject ‘only’ to the ordinary powers of the police in e.g. s.14A Public Order Act (POA) 1986 (relating to trespassory assemblies), or the power to take action on private land in order to prevent a breach of the peace Thomas v Sawkins (1935).

7. Article 11 is a qualified right – the scope of protection is set out in Art 11(1) but allows for proportionate restrictions provided they are (i) prescribed by law and (ii) imposed in order to (taking our situation) protect health, public safety, or protect the rights of others such as the right to life in Art 2.

8. There are Art 11 concerns around Regulation 7, namely

i)     Legal certainty/foreseeability of application (the standard Sunday Times test under the ECHR)

• • How close/how far apart can three people be before they become a gathering?
  • What constitutes a “public place”?
  • Does it require a shared/collective intention?

ii)    Proportionality of the measure: is there a rational connection between the means chosen (the wording of the Regulations) and desired outcome, specifically

• • Why does it prohibit only gatherings in public?
  • Why is a political meeting treated less favourably than gatherings for other purposes?

9. Critical to the legal analysis is the fact that these Regulations were made under powers contained in the Public Health (Control of Disease) Act 1984 – they are not public order powers. As a matter of ordinary, domestic public law – standard judicial review principles (see e.g. R (oao Public Law Project) v Lord Chancellor [2016] UKSC 39) – they can only be used lawfully to achieve the statutory purposes in s.45C, s.45F and s.45P of the 1984 Act namely to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination. Using the power to make regulations with a different purpose, whether or not health related or entirely new – maintaining social order or minimising disruption to the economy – would be unlawful as ultra vires, as would utilising the powers in the Regulations but not for a health-related purpose.

10. The interpretation of the duty that Regulation 7 imposes on us all, and the exercise of the police powers in Regulation 8/9, must accord with that s.45 statutory purpose. What might that mean here?

Gathering in a public place

11. The Regulations uses different terminology ‘gathering’ from the more usual ‘assembly’ in public order legislation (e.g. s.14 POA 1986). It is not clear why the drafter has latched onto a different term, but we must assume it is designed to connote something else, though we know not what since there is no definition: perhaps less fixed, more transient, less purposive, less linked to political participation (though see above at 6.), something conveying a synthesis of assembly an association?

12. That said, the same questions over clarity/scope exist for ‘assembly’; s.16 of the POA 1986 takes us no further since its focus is on the location and number rather than how we can identify an assembly. The point has never been taken in reported cases – the closest was last year’s XR judicial review (R (oao Jones) v Commissioner of Police for the Metropolis [2019] EWHC 2957 Admin) but here the question was whether the was one or several public assemblies across London, for the purposes of s.14(1) of the POA 1986.

13. In summary: it would be safe to assume that ‘gathering’ will be given its ordinary English meaning, a coming together of people, but in some unknown way slightly different from ‘assembly’.

14. Nonetheless, and bearing in mind the scientific evidence on risk of spread, it follows that the only proper interpretation of “gathering” is a group of people at less than c.2m distance. The risk of infection otherwise is not non-existent but too low, as most likely to be outweighed by the consequent loss of Art 11 rights to assemble. In other words, it would be disproportionate to adopt any other meaning. Such a reading is in line with the unlimited restriction on household gatherings, and both are consistent with a health-related interpretation being adopted.

15. That too would remove any doubt over the application of Regulation 7 to on-line gatherings – organising etc on Facebook or meeting via Skype. By way of background, there is much discussion in NGO circles seeking to expand the meaning of assembly, and given protection, to include virtual assemblies. The slight risk that some activist groups have that the power in the Regulations might be used to control on-line political gatherings can also be met by considering the statutory purpose: it would be a misuse of power to seek to regulate on-line gatherings, under the guise of an undefined term.

16. However, the absence of any clear explanation/definition in the Regulations – and given the mixed messages in both the Government’s Guidance and media campaigns about ‘social distancing’ which stress the need to keep 2m apart only when exercising or shopping – risks creating a chill on the right to assemble in Art 11, or of it being over-policed using Regulation 8(9). People, through fear of violating the law and/or ignorant of its scope, will simply choose not to gather.

17. That is exacerbated by the lack of clarity in the Regulations about what constitutes a “public place”. There is no definition. Section 16 of the POA 1986 contains one, though that of course is not the parent Act, and does not govern health regulation or the prevention of spreading of infection, as we saw above: “any highway…and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.”

18. The Firearms Act 1968, as one example, contains a slightly narrower definition: “any highway…and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise” and it is yet narrower in the Criminal Justice and Police Ac 2001: “any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.

19. Which meaning should be adopted in the 2020 Regulations and, more importantly, if people do not know, they risk either (again) chilling their (protesting) behaviour, or breaching the Regulations and facing arrest under Reg 9?

20. A recent judicial review – R (oao Pereira) v Environment and Traffic Adjudicators [2020] EWHC 811 Admin – illustrates the difficulty of knowing the locational reach of traffic enforcement (P was issued a parking ticket when parked on her own privately-owned pavement) when a statute provides a definition. When it does not, the problems are magnified quite significantly.

21. Lastly, what, if any, amount of collective intention or purpose, is needed to constitute a gathering? Do, for example, a group of individuals queuing outside a supermarket “gather” (in the sense used in Regulation 7) there – and if so, why? If not, why not? The most recent iteration of the UN’s draft General Comment No.37 (on the ICCPR equivalent to Art 11) talks of an assembly being a gathering of persons having a “common expressive purpose”.
    

22. That though leads to this seeming contradiction or tension: if we require gatherings to display a common purpose, a formal exercise group of ten in a public park would be a gathering (and thus prohibited) whereas ten strangers who simply happen to stop and do sets of press ups etc would not. The health risk must be the same yet only one group is captured/banned. If, however, a gathering is constituted simply by three or more strangers being in the same place without any shared purpose – three dogwalkers all waiting to cross the road – then the risk of over-capture is (too) great.
    

23. Neither is necessarily preferable but clarity on scope, reach and ‘bite’ is needed.

Rational connection

24. At first sight, we might think Regulation 7 is redundant because of Regulation 6: groups of three or more are not able lawfully to congregate outside anyway because of the bite and reach of Regulation 6. That is not necessarily so. Regulation 6 does not prohibit being away from one’s home. It prohibits leaving one’s home without reasonable excuse, for example taking exercise or shopping for basic necessities. It does not mean that once outside only those activities can be performed – though of course, that is what many might feel and proving otherwise if arrested under Regulation 9(1) or directed under Regulation 8 will be very difficult. Nonetheless, it is currently lawful to be away from one’s home but not be shopping or exercising alone or only with members of the household, provided I left with the purpose in mind. That explains the need for Regulation 7, the near total ban on gatherings.

25. This though creates a problem. Since the statutory purpose can only be for health-related reasons, and not to maintain public order/prevent social disruption why is it limited to gatherings in public places? The focus only on public places indicates the purpose might not be health-related but might instead be control the public sphere. While it is, I would concede, unlikely factually, neither Regulation 6 (see above) not Regulation 7 would render the following scenario unlawful: a group of friends – who all left with avowed intention to go shopping for basic necessities – chance upon each other in the supermarket and decide to have an ad hoc barbecue back at the house of one of them.

26. This absence, the inclusion of public and exclusion of private places, of course can be explained on grounds of proportionality – the chances of it happening are low. Nonetheless, a concern that equating private with public would mean households ‘gather’ whenever three of them are inside is met by the specific exemption in Regulation 7(a); similarly, workers ‘gathering’ at their private workplace could continue since Regulation 7(b) specifically envisages that and allows it. The harms of infection and spread through ‘gatherings’ in private cinemas, clubs, bars etc has been met and obviated by Regulation 4 and Sched 2, Part 2 – they had to close.

27. In short, it is hard to see what sorts of other private events (technically ‘gatherings in private places’) that might be captured by an expanded definition (‘whether in a public or a private place’) should properly have been thought by the drafters and policy-makers to warrant exclusion, given the overriding health objectives: the risk of transmission. The concern of capturing those people mingling, ‘gathering’, in those private places that remain open – supermarkets etc – could and would be met by defining ‘gathering’ as requiring some shared, collective purpose.

28. The fact that it might thus be, in HRA terms, a proportionate measure – the harm caused by expanding the definition to include private places is outweighed by any benefits of allowing private gatherings – and so meet any Art 11 objections might not be enough. There would also be a possible claim on vires grounds: as drafted the limitation only on public places is not sufficient to effect the underlying statutory purpose of the 1984 Act, preventing the spread of infection between people not in the same household.

29. A linked concern – based not on the Regulations but on the Government’s Guidance – is this. There is a greater restriction imposed on politically expressive collaborative activity – a (protest) assembly – than is imposed on taking exercise, important as that latter is no doubt to wellbeing and health and thus to e.g. Art 2 and Art 8. The guidance tells us that “even when [shopping or exercising], you should be minimising time spent outside of the home and ensuring you are 2 metres apart from anyone outside of your household.” I can therefore do sit ups in the park 2m away from two of my friends but I cannot stand, discuss and weight up together the Government’s response to the current pandemic or make clear (if such exists) our collective frustration at it.

30. Such an example can only buttress the point made at 12. above: that three people more than 2m apart cannot constitute a gathering in law.

31. At times of collective crisis and threat, there is public value and benefit to social cohesion on such matters but, and it is a big but, there is also wider social value – i.e. to others, not just to me or whomever else gathers to protest – of that public demonstration of political engagement and commitment. There is of course more at stake here – the clear and obvious risk to health and life through not taking suppressing measures. Urgency also demands clarity and simplicity, both evident in Regulation 7 and, of course, the speed with which all of this was devised by officials and parliamentary counsel is incredibly impressive.

32. That said, there would be merit in seeking speedily to amend or clarify the Regulations along lines suggested above.

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”.

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

On Wednesday this week (27^th) 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.