The Public Order Act 1986 - Essay Example

?“Article 11 of the ECHR, the freedom of assembly and association, protects an important right in a democracy but restrictions imposed in it such as the Public Order Act 1986 means that the balance is too much in favour of the interests of the state” ~ A critical evaluation Introduction Article 11(1) of the ECHR provides the right to freedom of association and freedom of peaceful assembly.1 The right to freedom of association safeguards the right of an individual to form or join associations, and it is seen as an essential component of democracy, safeguarding a citizen’s interests. The right to freedom of peaceful assembly protects an individual’s right to protest in a peaceful manner, and it is deemed necessary for promoting social changes. However, as a counterbalance to these rights there various legal provisions in the UK that allow for policing of protests. The law of protest in the UK is inherently complex, with both the common law and constitutional provisions playing significant roles. The Public Order Act 1986 is one of the major legislations that frame conditions to which protest demonstrations and marches are subject.2 This act allows the UK police to levy conditions that are deemed necessary for preventing property damage, public disorder, or stop protestors from intimidating others, while making it compulsory for the protestors to present a prior notification to the police. Failing to adhere to the stated conditions is an offence entailing arrest under the common law. Besides the Public Order Act 1986, there are various other provisions such as the stop and search provisions created under the Police and Criminal Evidence Act 19843 and the Serious Organised Crime and Police Act 2005 (SOCPA)4 that prohibit protests and demonstrations in specific areas without prior notification and permission. For example, areas surrounding the Parliament Square and Trafalgar Square come under the SOCPA designated areas. Kettling is another controversial provision, where the police create an area of containment where protestors and demonstrators can be controlled, and it comes under the Public Order Act. Thus, while Article 11(1) of the ECHR aims at protecting an important right in a democracy, restrictions imposed in legislations such as the Public Order Act 1986, tend to make the balance in favour of the interests of the state. This essay critically analyses the aforementioned statement suggesting that the policing of protests as provided by the Public Order Act 1986 favours the interests of the state over the democratic rights of an individual as provided by the ECHR. Discussion Under provisions made by the ECHR, the Home Office and the police are under obligations to comply with the rights set out in the treaty; however, at the same time the provisions under the UK common law are also taken into consideration. The UK Government is required to protect all that come under its jurisdiction, which includes demonstrators, protestors, those targeted by the protestors, the public and the police.5 There are two obligation types owed by the UK under the ECHR: positive and negative. A positive obligation makes it necessary for the government to frame protective or preventive measures to secure rights listed in article 11 of the ECHR, whereas under the negative obligation they must stop from taking certain protective or preventive measures. For example, under a negative obligation the UK Government cannot place hurdles in front of those wanting to protest.6 A positive obligation, on the other hand, helps counter protests and makes it compulsory for the government to frame measures that safeguard individuals from the actions of others (such as those targeted by the protestors or business firms against whom individuals may want to protest). Article 11 of the ECHR makes provisions that safeguard the rights of protestors and demonstrators taking part in peaceful assemblies from state interference. Article 11 comprises two interlinked rights: the right not to be stopped from associating and meeting (except as allowed under a negative obligation), and the duty of the government to adopt measures that ensure the protection of rights under a positive obligation.7 Therefore, effective freedom of assembly does not translate into mere non-interference by the state, and if individuals act in a manner that undermines rights provided in Article 11, the state could intervene to uphold those rights.8-9 However, the state is not under absolute obligation to adopt positive measures in order to ensure support for peaceful assemblies.10 The right to freedom of assembly, while supporting protests on public roads that may disrupt traffic and public movement,11 refrains from supporting violent protests.12 In case of a violation, in order to ascertain the nature of a demonstration, the courts must analyse the real intention of the protestors and demonstrators. 13 The right to freedom of assembly does not entail protection on private properties, and in Appleby v UK, the ECHR found no apparent violation of the rights to freedom of assembly or expression in the instance where demonstrators were restrained from distributing leaflets within a shopping complex. In this context, the ECHR ruled, ‘a positive obligation could arise for the State to protect the enjoyment of the Convention rights by regulating property rights’. 14 Any form of state interference that restrains an individual’s right to freedom of assembly must necessarily possess a legal sanctity. It is also the duty of the state to come up with convincing reasons that justify any interference, which must be shown to have been in proportion to the objectives being pursued in the protest.15 In a particular instance where a protest was opposed by the state claiming ‘disruption to public order,’ the ECHR ruled, ‘it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings’.16 This translates into the fact that state police should exercise maximum restraint and be extremely slow in interfering or barricading a peaceful protest, owing to the violent activities by a minority. Therefore, it is evident that under the ECHR provisions, the right to express and assemble is an essential component of democracy, which must be protected under all circumstances, and it is a state’s obligation to protect these rights and no restrictions can be imposed unless suitably justified. A look at the English law revealed that while there are many instances of freedom of expression and public protests in the UK, traditionally these are not viewed as positive rights. The common law holds that while people are free to express, assemble and associate, they cannot resort to any form of illegal activities. Within the UK legal provisions, ‘assembly’ denotes both marches (processions) and static protests (assemblies), except in specified cases.17 While the term ‘procession’ refers to a number of individuals moving along a specific route, the UK law does not specify a minimum number for a gathering to be considered as a procession.18 While traditionally this freedom was safeguarded based on the right to assemble and associate (to the extent where their activities were not illegal), however, in practice the right to freedom of assembly barely triumphed, owing to the common and statutory law exceptions, where the approach remained ‘hesitant and negative, permitting that which was not prohibited’.19 In the UK, protests or demonstrations may be held in open-air public places with prior permission from the landowner, lacking which the assembly would be held as trespassing, leading to criminal liabilities. However, open-air public places do not imply gathering in parks that are governed by specific laws under local bodies, and a violation of such laws is a criminal offence. An individual or a group can stage a protest on roads, but it must be ‘reasonable and non-obstructive’ and must not violate the basic right of citizens to move around freely;20 and obstructing a highway is considered a criminal offence under the UK legal provisions.21 As regards policing the protests, any senior police officer can impose conditions, without any prior notice, in terms of the number of people that can assemble and the duration and location of the protest, under the Public Act 1986, section 14.22 The police may also ask for a complete ban on an assembly citing lack of permission from the owner, protest objectives to intimidate others, severe disruption of the normal public life, probable destruction of buildings, land, historical monuments or structures with scientific and archaeological significance. Under the UK law, it is necessary to present a prior notice in writing giving details to the police, for holding any form of public assembly that aims at supporting and/or opposing actions or views of other groups, event celebrations and publicity campaigns.23 If the requirements as presented in the prior notice do not match the actual location, route, time, or date of the assembly, the organisers are held guilty of offense. Besides these, concerning the right to freedom of expression, many restrictions apply to protestors and demonstrators and to media (under defamation laws) in the UK.24 Under the Public Order Act 1986, it is an offence to use insulting, abusive or threatening words, or display behaviour that insults, abuses or threatens, especially if the objective is related to arousing hatred in terms of sexual orientation, religion or racial bias. In the UK, there are various restrictions on public assemblies, and they are considered illegal and are liable to face criminal sanctions when: Trespassing without prior permission from the landowner, which is an offense under Public Order Act 1986 (section 14 A and C), Criminal Justice and Public Order Act 1994 (sections 61 and 68)25 and Serious Organised Crime and Police Act 2005 (section 112). Besides, there are other activities deemed as offense, as was observed in Chandler v DPP, where anti-nuclear activists attempted to assemble outside a RAF site, which was considered a violation of the Official Secrets Act 191;26 Violation of the law where public space is utilised without prior permission, or where there is a blocking of public roads; Failure to notify the police about a future assembly (Public Order Act 1986, section 11), failure to comply with restrictions set by the police (Public Order Act 1986, sections 12 and 14), and organising an assembly that has been prohibited (Public Order Act 1986, section 13); Where assembly resorts to affrays,27 violence,28 abusive or threatening activities,29 and/or riots30; Where the public assembly resorts to harassment; and Where the assembly obstructs normal functioning of a police officer on duty. 31-32 Conclusion From the above review, it can be suggested that provisions in various laws and statutes in the UK, especially under provisions made by the Public Order Act 1986, impose many restrictions on the right to freedom of association and peaceful assembly. The restrictions, which can be imposed by the UK police at any time without prior intimation, tend to favour the interests of the state over the democratic rights of an individual as provided by the ECHR. References Aldemir v Turkey, App. No. 32124/02 [18 December 2007] Appleby v UK, App. No. 44306/98 (6 May 2003) European Court of Human Rights Bukta v Hungary [2007] ECHR Application No 25691/04 (17 July 2007) Chandler v DPP [1964] AC 763 Christians Against Racism and Fascism v UK, App. No. 8440/78, 21 DR 138 (1980) Ciraklar v Turkey, App. No.19601/92, 80-A/B (E) D.R. 46 at 52 (1995) Director of Public Prosecutions v Jones [1999] AC 240, http://www.freebeagles.org/caselaw/CL_ob_jones_sum.html accessed 29th December 2013 ECHR 2012, http://www.echr.coe.int/Documents/Convention_ENG.pdf accessed 28th December 2013, G v Federal Republic of Germany, Appl. No. 13079/87, (6th march 1989), 60 DR 256 Gustafsson v Sweden (1996) 22 EHRR 409 Makhmudov v Russia, ECHR Application No 35082/04 (26 July 2007: FINAL 26/10/2007) Oya Ataman v Turkey, App. No. 74552/01, (5 December 2006), European Court of Human Rights Ouranio Toxo and Others v Greece, App. No. 74989/01, (Judgment of 20 October 2005) Piddington v Bates [1960] 3 All ER 660 Plattform ‘Artze fur das Leben’ v Austria (1991) 13 EHRR 204, European Court of Human Rights. R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, http://www.bailii.org/uk/cases/UKHL/2006/55.html accessed 29th December 2013 Redmond Bate v DPP [2000] HRLR 249 Slim v Stretch [1936] 2 All ER 1237 The National Archives (nd), Criminal Justice and Public Order Act 1994, http://www.legislation.gov.uk/ukpga/1994/33/contents accessed 29th December 2013, — — (nd), Public Order Act 1986, http://www.legislation.gov.uk/ukpga/1986/64/contents accessed 29th December 2013 — — (nd), Police and Criminal Evidence Act 1984, http://www.legislation.gov.uk/ukpga/1984/60/contents accessed 29th December 2013 — — (nd), Highways Act 1980, http://www.legislation.gov.uk/ukpga/1980/66/section/137 accessed 29th December 2013 — — (nd), Serious Organised Crime and Police Act 2005, http://www.legislation.gov.uk/ukpga/2005/15/contents accessed 28th December 2013 Read More