Demonstrations Limited by POA leglislation

A demonstration is a bastion of constitutional and democratic influence. It goes beyond simply proving a point or highlighting awareness, it is a symbolic expression of freedom. This so called "people power" has the ability to change and influence the laws which are binding on our society. Within the United Kingdom protest is very much in vogue. A marked contrast to the direct action approaches favoured in the latter half of the 1990's. 1 Events such as the War in Iraq and the G20 summit have hit the headlines as protestors disrupted London.

With the eyes of the world watching such events unfold policing is a different task and has subsequently seen controversial tactics deployed. 3 A constant balancing act must be maintained between the rights of the protesters to protest, property owners and the greater good. This is further clouded as a distinction between peaceful and violent protest is hard to distinguish. With the introduction of the Human Rights Act 1998 we have for the first time a codified protection of civil liberties linked to this expression.

The most relevant provisions being Article 11, "everyone has the right to freedom of peaceful assembly" and Article 10 which states, "everyone has the right to freedom of expression… " It is essential to review what impact this act has had on the approach used by the courts and to its reference to policing powers employed. The contention surrounding demonstrations is the damage and violent element which can occur. As seen by the recent anti-capitalist movements.

Rather than ban protests altogether the courts have always affirmed that peaceful assembly is a fundament right, stated by Lord Denning in Hubbard v. Pitt [1976] QB 142 "… the right to assembly. So also is the right to meet together, to go in procession, to demonstrate, and to protest… As long as it is done in peaceably and in good order… "4 Rather than viewing "rights" as necessity, it is evident that the courts regard it to mean a privilege albeit a strong one.

The approach of the courts has been to allow assembly but they are willing to intervene if other rights are at stake through unlawful action. 6 The major issue at stake regarding assemblies is the different fractions which could incite violence in an otherwise peaceful protest. In Beatty v. Gilbanks (1882) 15 Cox CC 138, a Salvation Army demonstration was disrupted by an opposing group. When directed by the police to end the demonstration the leader did not comply and was subsequently arrested. The court held that the demonstration could not be deemed unlawful simply due to this interference.

As a means of imposing order on demonstrations the police have implemented the common law doctrine of a breach of the peace. This provision is used to prevent trouble and has been deployed as crowd control measures. This creates a fine line between prevention and a removal of liberties, as highlighted by the controversial "kettling" methods of mass crowd containment. This reliance on breach of the peace has been expressly criticised for its lack of democratic review and its lack of allowed expression.

It has been long argued that expression is a more central theme of protest as a means of conveying a message. This stance has been recognised through the European courts in the case of Steel & Others v. Uk (1999) 28 EHRR 603 it was stated that expression was "an essential foundation of democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment".

This was echoed in the German case of Brokdorf (1985) 69 BVerfGE 315, Barendt stated freedom of assembly "enables people, especially minorities, to participate in the political process …the exercise of the right enables protesters to express their personalities by their physical presence … "8 The impressed hope was that the introduction of the Human Rights Act would allow for such freedoms under review of breach of the peace enactment. The introduction of the Human Rights Act 1998 came into force in 2000, allowing the UK to perform to the provision of articles 10 and 11 of the European Convention.

The move saw Sedley LJ in the case of Redmond-Bate v Director of Public Prosecutions (1999) 163 J. P.789, to refer to a "constitutional shift. "9 Sedley LJ was anticipating the certainties that the HRA would define via the defined expression granted under the breach of the peace. The articles provisions guaranteed a benchmark standard; this would depart from the heavy focus on public order which is constrictive to rights under the breach of the peace. The anticipated "shift" was evident since the subsequent introduction of the HRA as was seen in the case of Laporte v. Chief Constable of Gloucestershire [2006] UKHL 55, [2007] 2 W. L. R 46.

This case is now the authority regarding breach of the peace powers. It is important to review this case before looking retrospect at the development pre-HRA, in previous judicial rulings. The facts of Laporte centre on a lady travelling via a bus to a planned protest against the war in Iraq. As the police feared that some of the party were planning violence the buses were ordered to return. The previous view was under breach of the peace preventative steps could be taken if reasonable, even in the light of breaches which were not imminent.

The House of Lords affirmed the provision of article 10 and 11 of the HRA and stated that imminent breaches must be apparent before any action can be used which contravenes articles 10 and 11. The case of Ziliberberg v. Moldova (App. No. 61821/00) was referenced: "an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour".

The Laporte judgement helped to provide clarity as to when preventative action could be taken. Previous case law afforded the police greater discretion, thus contracting individual rights. The cases of Piddington v. Bates [1961] 1 W. L. R. 16212 and Moss v. McLachlan [1985] I. R. L. R 7613 were contended. The facts of Moss centre on a miners strike, in which miners travelled around the country in order to join other picket lines. The police blocked routes to other collieries and made arrests of anyone who breached the blockade.

The court held that the police reasonably applied a breach of the peace as they had experience and knowledge of the intention. There was also public dissemination of the news regarding the other sites. The decision reached in Moss has not been mirror by a majority of decisions but it did match a similar verdict concluded from Duncan v. Jones [1936] 1 KB 218. 14 A woman holding a meeting outside a job centre was arrested after failure to move down the road. The police officer arrested the woman and the courts confirm the reasonable apprehension of a breach of the peace.

The basis of the judgement was past experience of a similar matching incident. These two cases do highlight the radical departure now evident through Laporte and the HRA influence; however it is worth noting that not all cases that pre-date the HRA feature such a low threshold of reasonable apprehension. The case of Foy v. Chief Constable of Kent is notable as it predates Moss and also features striking miners. In this instance it was held that preventing movement was not valid under breach of the peace.

The Laporte verdict was a real check on policing powers through proportionality and necessity. Its reasoning was more related to ECHR principles and Strasbourg concepts. 15 This approach was not extended to the contrasting case of Austin v. Commissioner of the Police for the Metropolis [2009] UKHL 5. During the May Day demonstrations in London, the police contained a large group of demonstrators. This action was perceived as necessary in order to stop a breach of the peace. However one such protestor (Austin) who was a peaceful protestor was detained for 7 hours.

Like Leporte she launched a judicial review against the Police Commissioner, on the ground of a breach of Article 5 ECHR (the right to liberty and security of person. ) The action failed as the courts ruled that Article 5 only prohibits arbitrary deprivation of liberty. The police were acting in the reasonable interests of administering a breach of the peace in the interests of the wider community, thus their actions were not arbitrary. This contrasting opinion does not adhere to the proportionality test used in Laporte, if it had done so the entrapment of innocent protesters and bystanders would have fallen within article 5.