The fact that the protestors are desperately sincere and are exercising a fundamental human right must not lead us to overlook the rights of the majority. '1 In the absence of a written constitution, the freedom of assembly is protected in the same way as other freedoms and liberties in English law. That is to say, people are free to assemble to the extent that their conduct is not otherwise unlawful. There is no general right to hold open-air meetings in the UK, but that does not mean every meeting is unlawful.
What the law in this area concerns itself with is the protection of the many while still upholding the rights of the few. This may be controlled by statute such as the Trafalgar Square Regulations 1952, or through the discretion of the police. The Public Order Act 1986 and the Criminal Justice and Public Order Act 1994 (CJPOA) have created a series of offences such as notification offences and failure to comply with certain stipulations outlined by statute or the police. However, the nature of the unwritten constitution creates considerable uncertainty over the degree that civil liberties are upheld.
The biggest point to note here is that the law acts if there is a threat to public order. An example of this comes from confrontations in the 1970s organised by the National Front and other fascist groups, such as the disorder in Red Lion Square, the event that probed a report by Lord Scarman (see quote above). Breach of the peace is commonly used by the police in public order situations. Although used to deal with a wide range of anti-social behaviour, this offence may serve as a flexible and adaptable restraint on different forms of public protest.
This is illustrated in the case of Beatty v. Gillbanks. 2 This arose out of the Salvation Army marching through Western Super Mare despite knowledge of violent opposition from the Skeleton Army, and an order not to do so from the magistrates' courts. One arrest was made and the meeting disbanded. It was held that the meeting was lawful as it was conducted lawfully and even so provoked a breach of the peace. Now contrast this to the case of Nicol v. Director of Public Prosecutions3 where protesters wanted to stop anglers from fishing so provoked them by blowing horns.
This was also lawful but held unreasonable so was likely to cause a breach of the peace. This decision affirms that this area of law is 'subject to a wide and uncertain test of reasonableness'. 4 It will be interesting to see the way that the courts deal with the May Day protest in London earlier this year. What was supposed to be a civilised protest against corporate culture and globalisation turned in to an anarchistic brawl where a lot of damage was done to shops and monuments. The way in which the violent protestors are separated from the majority will surely determine the right to protest the next time.
Powers to control processions throw more doubt on the continuity of the law. At common law, a procession in the streets is prima facie lawful, being no more than the collective exercise of the public right to use the highway for its primary purpose. 5 Because of this, statutory powers are needed to control them. Powers have been extended to control the processions under the Public Order Act 1986 which requires notice under section 11, and gives police considerable power to impose conditions and ban if necessary.
The best example of the use of these powers in a modern day situation comes from the Orangemen marching in Northern Ireland. There are two sides to every argument but is it not so that under the case mentioned earlier, Beatty v. Gillbanks, the peaceful marching invokes a violent reaction, thus making the march itself lawful. The only way of challenging the police's directions as to processions is by submitting them to judicial review. This gives greater power to the police as to their discretion over the circumstances.
It is necessary to discuss whether the 'inconvenience' to the majority justify restricting a minority who wish to protest peacefully. It can be seen that the common working of the legal framework prefers preservation of public order to the protection of protest. The police also have considerable powers in regulating public assemblies in the same 1986 Act. Conditions may be imposed as to the location and duration, as well as the number of people present. The main precedent in this situation comes from DPP v. Jones.
6 When a peaceful assembly was disbanded with convictions for those refusing to move from Stonehenge, Collins J made the point that 'the holding of a meeting, demonstration or a vigil on the highway, however peaceable, has nothing to do with the right of passage. Such activities may, if they do not cause an obstruction, be tolerated, but there is no legal right to pursue them. ' This, to a degree, infringes on the civil liberties of the individual whereupon it may take away the right that a person has to gather in a public place despite not obstructing the highway.
The law is not however there to impose in the freedom of speech as illustrated in the case of R. v. University of Liverpool ex parte Caesar-Gordon. 7 The fundamental concept of our constitution is freedom of speech. When a university refused permission for two diplomats to speak from the South African Embassy due to fear of public unrest, the courts said they were acting ultra vires its powers. This shows that the law is there to provide opportunities for freedom but there is considerable uncertainty over the discretion that the police have in upholding the civil liberties of the people.
Within this area of law there is a great scope for argument over the issue of the obstruction of the police in execution of their duty. The leading case in this area is Duncan v. Jones. 8 This concerned a woman arrested not for obstructing the highway or inflicting a breach of the peace but for obstruction of the police. The decision to convict her has been strongly criticised, especially in this quote by Goodhart; 'At first sight it may seem unreasonable to say that a police officer cannot take steps to prevent an act which, when committed becomes a punishable offence.
But it is on this distinction between prevention and punishment that freedom of speech, freedom of public meeting and freedom of the press are founded. 9 It also gives rise to the discussion regarding the powers of police officers. Will there reach a point whereupon the police are able to put intolerable restrictions upon the liberty of meeting? Take for example a group of Millwall football fans. These are notorious for their football hooliganism.
However, should they meet up and descend on a rival ground purely with the intention of going to the game, the police may soon have the power to forbid not just the minority of troublemakers, but all of the travelling support merely because a 'disturbance' had previously occurred in the past. It is obviously agreeable to stop troublemakers but there is an inequitable nature in relation to police powers. The Millwall scenario is reflected in case law from the miners' strike 1984-85. The case at hand was that of Moss v. McLachlan.
In this instance the defendants were ordered to turn back on a journey to another colliery some four miles away. The police suspected they were intending to join the picket line in support of fellow minors and that a breach of the peace might occur. When the minors refused to obey the order to turn back they were arrested for obstruction. Giving the police wide discretion the judge said that as long as the senior police officer honestly and reasonably formed the opinion that there was a real risk of the breach of the peace then he could take all the necessary measures to prevent it.
This was a dangerous precedent giving wide uncertainty as to police power in restricting freedom of movement. In conclusion it appears there are many discrepancies in this area of law as any, but what must be remembered is that the constitution is there to act as a foundation in upholding the civil liberties of the majority, but also to provide a fair basis form which the minorities have the freedom to be heard. After all, the law in itself will struggle to be equitable to everyone.