QUESTION TITLE: (Question 4) Banville is a (hypothetical) large cosmopolitan town in England. It has, in recent years, had strained relations between its inhabitants, who represent a variety of different racial, cultural and religious groups. Press reports suggest that the English Union of Fascists (EUOF) plans to organize a public protest in Banville on a Saturday afternoon within the next fortnight, in order to highlight their opposition to the Government’s immigration and asylum policy. These reports suggest that, potentially without notice, the EUOF intends to parade
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through the main street of Banville, passing by a mosque and a synagogue, before holding a meeting for their supporters in a town centre warehouse which has been hired for that purpose. The Chief Constable with responsibility for Banville considers that both the parade and the assembly should, ideally, be prohibited. She is concerned that the parade will not merely inconvenience shoppers, but that it will provoke potentially violent counter-demonstrations from opponents. Intelligence reports also suggest that prominent Fascist leaders from different parts of Europe will be present, and that racially inflammatory speeches are likely to be made at the meeting.
Advise the Chief Constable of the various options and powers that are available to her consistent with the law relating to freedom of assembly and freedom of expression in this area
- Introduction
The stakeholders in this scenario are the English Union of Fascists (EUOF), the Chief Constable (CC) and the residents of Banville. Article 11(1) of the European Convention on Human Rights (ECHR) sets out that ‘everyone has a right to freedom of peaceful assembly’[1]and article 11(2) provides that restrictions placed on this right must be ‘prescribed by law and necessary in a democratic society in the interests of national security or public safety.’[2]With regards to the right to freedom of assembly, it is important to acknowledge that there is friction between the right to protest (the right of EUOF to protest) and the right of members of the public not to be disturbed by the protest/powers of the state (right to freedom from protest). With reference to this, the CC has a range of judicial and legislative options and powers available to her with regards to the EUOF. The main issues here concern the protest, the parade, and the meeting.
- Reports Suggesting a Public Protest – Assembly
In relation to the press reports which suggest that the EUOF intend to organise a public protest in Banville on a Saturday afternoon, there are various options and statutory powers that the CC can exercise.
2.1. Powers to Impose Restrictions
The scenario uses the expression ‘public protest,’ which as illustrated in Flockhart v Robinson[3]depicts a public assembly as there is no body of persons moving along a route, and this is governed by section 12 of the Public Order Act (POA),[4] which gives the CC power to impose restrictions on public protests.
Essentially, the EUOF appears to have fulfilled the criteria under section 14 POA as the potential protest could be classified as a public assembly. This section defines a public assembly as an assembly of two or more people which is partly in the open air.[5] However, section 14 also permits restrictions if there is a reasonable belief that there will be serious public disorder, serious damage to property, serious disruption to the life of the community, or if the purpose of the march is intimidatory.[6] Consequently, it appears that the CC may statutorily exercise her power under s.14 POA to restrict the protest on the ground that allowing the protest to go ahead would result in serious public disorder. Due to the diverse racial, cultural, and religious context of Banville and the strained relations between its inhabitants arising from religious and cultural pluralism, that already exists in the town, there is an implication that the protest would not be appropriate. The CC can also suggest that there is a reasonable belief that the protest may result in violence from the opposition or even from residents of Banville who feel threatened by the protest. Strained relations have impacted the community in ‘recent years’ which would suggest that the animosities between these groups are perhaps still rife, thus providing more reason for the CC to impose restrictions on the protest.
As the facts set out that the public protest will be taking place in Banville (large cosmopolitan town) on a Saturday afternoon, (a potentially busy period of the week) with the purpose of highlighting the EUOF’s opposition to the government’s immigration and asylum policy, the life of the community would be disrupted. The combination of these factors aggravates the planned EUOF’s protest as they pose a serious risk to disrupting the life of the community because people present in the town may not be able to go about their daily businesses.
Considering the potential disturbance to community life and peace, the CC has the power under section 14 to specify particular areas which the EUOF may not enter during the protest, she may also restrict the number of the protestors, as well as the duration of the protest. A common law supplement to these statutory powers is the case of Police v Reid,[7] which is precedent that whatever conditions are imposed on protestors, these conditions must be lawful and proportionate. In this case, the conditions imposed by a police officer on a protest outside the South African embassy was not lawful and was a ‘disproportionate interference with the rights’ of the protestors. The CC must also have access to some information concerning the protest before she imposes any conditions. As per DPP v Baillie[8]where Bailee had released phone numbers showing where a rave would be held. The police in the case wished to impose conditions, but for this to be done, the police must identify a time and place for the public assembly. Here, the time is reported to be a Saturday afternoon and the place has been reported to be in Banville. There is an implication that given the day of the week and time period, and the nature of the protest (immigration and asylum policy), the protest is proposed to be held in a potentially busy location. Nevertheless, should the CC decide to impose the conditions discussed above, R (Brehony) v Greater Manchester[9]provides that she is under a duty to provide sufficient reasons for the conditions imposed.
2.2. Freedom of expression
The CC believes the assembly and procession should be prohibited. With regards to assemblies, it is usually more difficult to impose restrictions or bans as there is a heightened presence of freedom of expression compared to a procession. It is evident from this that public order law is concerned with the association of freedom of assembly and freedom of expression. This also involves the exercise of balancing the conflicting interests: interests of individuals to gather versus the powers of the state to intervene (right to protest vs right from protest). This is one of the frictions of public order law because the EUOF would argue that, as well as article 11,[10] they are exercising their freedom of expression rights under article 10 which provides the ‘right to freedom of expression.’[11] This is an important discussion to briefly cover as the CC must acknowledge the underlying principles pertinent to the EUOF’s right to freedom of expression and the importance of this right. This includes:[12]
i. Democracy
The EUOF may argue that protesting about the government’s policy is an avenue for them to assert their rights under democracy and challenge the government’s policy and that freedom of expression is a mechanism which is an ‘essential foundation of democracy and the development of citizens’.[13]
ii. Truth
In relation to the truth argument, freedom of expression is a platform for citizens to investigate the truth and which ideology to subscribe to. In Bose Corporation v Consumers Union, it was established that ‘freedom to speak…is essential to the common quest for truth and vitality of society as a whole’.[14] This is a valuable statement because although Banville is a pluralistic society which has had tensions in previous years, the proposed EUOF protest provides the EUOF with the freedom and choice to display what they believe the truth is, and what ideology they wish to subscribe to.
iii. Self-fulfilment
Although a slightly weaker argument compared to truth and democracy, because the protest is not a form of art, the EUOF may submit that the proposed public protest allows for the group to display and communicate their thoughts and emotions about the government policy.
- Reports Suggesting a Parade – Procession
If the proposed EUOF protest includes a parade through the main streets of Banville, as the reports suggest, this becomes a procession and no longer an assembly, because there becomes a ‘body of persons moving along a route’.[15]
3.1. Power of Procession – notice
Section 11(1)[16] POA requires the leader of the EUOF parade to submit written advance notice six days prior to the parade which stipulates the date, time and route of the parade. Applying the law, the EUOF would be committing a criminal offence as the reports suggest that the group intends to parade potentially without notice and there is no appropriate defence available.[17]
3.2. Imposing Conditions on Public Processions
Section 12[18] of the POA provides that restrictions can be imposed if there is reasonable belief that a procession or march will result in serious: public disorder, damage to property, disruption to the life of the community, or if the purpose of the march organisers is intimidatory. The facts imply the parade will potentially result in serious public disorder, and the CC reasonably believes the parade will provoke potentially violent counter-demonstrations. Therefore, the CC has the power to alter the route of the procession, specify the areas which the marchers may not enter, restrict the number of marchers and the duration of the procession. Serious disruption to the life of the community will potentially affect the harmony of the community. This exemplifies the tension between freedom to protest and freedom from protest. Critically, serious disruption is an appropriate reason for the CC to impose conditions because the reports state inter-alia, that the parade will be passing by a mosque and a synagogue.
Having regard to the pre-existing tensions in Banville, this route may not be appropriate for the parade, as the presence of religious places of worship is inextricably tied to immigration matters. Consequently, given that the demographics of both places of worship largely consist of ethnic minorities and the nature of the parade, which is to oppose the immigration and asylum policy, allowing this route may result in serious violence.
3.3 Powers to Ban Procession
Section 13[19] POA gives the CC power to ban the procession (parade) for up to three months if she reasonably believes that the section 12 powers are insufficient to prevent serious public disorder. The ban must be done with the consent of the secretary of state or district council,[20] and the CC must act reasonably. The CC has the power to ban a ‘class’ of procession,[21] and the ‘class’ here is possibly a procession which has the potential to stir up racial tensions and provoke violent counter-demonstrations. The EUOF’s parade resembles the then home secretary, Theresa May’s ban on the English Defence League (far-right group) marching in Bradford in 2010, as previous demonstrations by the group resulted in ‘violence, as well as racist and Islamophobic chanting.’[22] Therefore, it would appear that similar actions could be taken by the CC, since there is an implication that the proposed procession by the EUOF may result in violence, given the pluralistic nature of Banville.
3.4 Additional Legislative Powers
Furthermore, the Highways Act[23] is a supplementary legislation that the CC could rely on. Section 137 of the Act makes it an offence to ‘wilfully obstruct the free passage along a highway’. The parade will most likely inconvenience shoppers as well as obstruct movements on the pavements and it is taking place on the main streets of Banville, this location can be anticipated to be busy. The parade passing by the mosque and synagogue would potentially inconvenience the worshippers there at the time and may prevent free and peaceful movement to and from their respective places of worship.
Section 5 POA makes it an offence to use threatening or abusive words or behaviour or to display any writing, sign, or other visible representation which is threatening. The CC may rely on this provision, and despite the little information provided as to the size of the parade, we can expect there to be words, signage or visual representations used, which may cause worshipers at the mosque and synagogue or even residents of Banville to feel threatened.
- Common Law Control
As well as legislative powers, public order law provides the CC with common law control. The CC is concerned that the parade will ‘provoke potentially violent counter-demonstrations’ and racially inflammatory speeches are likely to be made at the warehouse meeting. Under the common law control of breach of the peace, the CC can make an arrest to prevent unlawful violence against people or property. R v Howell,[24] highlights that a breach occurs when an act is done or threatened to be done, which harms a person or is likely to cause harm to a person or put them in fear of such harm. Applying the Howell principles, there is a concern that the EUOF parade and particularly the meeting at the warehouse will provoke violent counter-demonstrations and this is a response from the opposition which has the potential to cause violence, and therefore this is evidently a sufficient reason for the CC to find the potential for a breach of the peace. The racially inflammatory speeches may also result in residents of Banville or those around the warehouse to feel threatened or put them in fear of harm as the meeting is proposed to be held at the warehouse in the town centre which is a busy location and may attract the attention of residents. This is further buttressed by the Moss v McLachlan[25] case which provides that preventing a breach of peace is lawful if the officer (CC) honestly and reasonably believed allowing the act to continue would result in a breach of the peace.
The Redmond-Bate[26] case, however, provides a new-fangled direction by asserting that free speech is a right which must be protected, provided it does not encourage violence. (Lord Sedley: ‘Free speech includes… the eccentric, heretical and the unwelcome… provided it does not tend to provoke violence’).[27] The EUOF’s article 10 rights would dwindle here as the parade and meeting will potentially provoke violence. Philosophically, restricting freedom of expression here would be justifiable as doing so would ‘prevent harm to others’ as J.S Mill alluded to with the ‘Harm principle.’[28]
However, the CC would experience difficulty proving breach of the peace with regard to the principles established in the Laporte case,[29] which concerned police officers sending back people on board of vehicles which were on their way from London to a rally by an anarchist group. The action of the police was held to be disproportionate as the breach of the peace was not ‘sufficiently imminent’. This requirement of imminence may prove challenging for the CC with regards to the EUOF as the reports state the parade/meeting will be happening in two weeks’ time, therefore, no suggestion of an imminent breach of the peace.
- Meeting in the Town Centre Warehouse
With regards to the meeting, the facts of the scenario state that ‘prominent Fascist leaders from Europe will be present and racially inflammatory speeches are likely to be made.’
5.1. Racially Inflammatory Speeches and Fascist leaders
This issue is addressed under section 18 of the POA[30] which sets out the offence of inciting racial hatred through the use of ‘threatening, abusive or insulting words or behaviour or displays of written material which is threatening, abusive or insulting’. The provision regulates how racist ideas/beliefs are communicated,[31] and the requirement is intention or recklessness to incite racial hatred. The facts of the scenario suggest that ‘racially inflammatory speeches are likely to be made’ and given that prominent Fascist leaders from Europe will be present, this suggests the meeting will be on a large-scale. While this would be contentious in a normal situation, given the pluralistic nature of Banville and the previous racial and cultural tensions in the town, the potential for inflammatory speeches at the meeting heightens matters, as the CC must acknowledge the potential for the speeches to cause grave social harm in Banville.[32]
Additionally, prominent fascist leaders are reported to be present at the meeting and because this is a Fascist group, there is a likelihood that fascist clothing may be worn as a symbol of the group, which is an offence under section 1 POA.[33]
- Conclusion
The CC has a range of legislative and judicial powers which she can make use of; the powers to impose conditions on assemblies and processions, breach of the peace. She wishes to prohibit both the parade and assembly and usually, this may seem somewhat unreasonable as there is arguably some political value to the public protest (immigration and asylum policy) and as previously discussed, free speech here holds value as per democracy, truth, and self-fulfilment. With regards to the meeting, the CC will possibly have greater power to ban this if she is able to argue the ‘class’, which is racially motivated, would not be appropriate despite EUOF’s right to freedom of expression. This is because Banville has suffered racial tensions in the past and the meeting may unearth further tensions given the pluralistic nature of the town and this would also satisfy article 11(2).
BIBLIOGRAPHY
Primary sources
Cases
- Bose Corporation v Consumers Union [1984] 466 U.S. 485.
- Director of Public Prosecutions v Baillie [1995] Crim LR 446.
- Director of Public Prosecutions v Redmon-Bate [2000] HRLR 249.
- Moss v McLachlan 1985] IRLR 76.
- Flockhart v Robinson [1950] 2 KB 498, p.502.
- Handyside v the United Kingdom (95493/72) [1976] ECHR 5.
- Kent v Metropolitan Police Commissioner [1981] TLR.
- Police v Reid [1987] Crim LR 702.
- R (Brehony) v Chief Constable of Greater Manchester Police [2005] EWHC 640.
- R v Howell [1982] 1 QB 216.
- R (Laporte) v Chief Constable of Gloustershire [2007] 2 AC 105.
- R v Sheppard and Whittle [2010] EWCA Crim 65.
Legislation
- Public Order Act 1936.
- Public Order Act 1986.
- European Convention on Human Rights 1950.
- The Highways Act 1980.
Secondary Sources
- Elliot R “The Supreme Court’s Understanding of the Democratic Self-Government, Advancement of Truth and Knowledge and Individual Self-Realization Rationales for Protecting Freedom of Expression: Part I – Taking Stock” (2012) Supreme Court Law Review.
- Mill, John Stuart. ‘On Liberty’. London:Longman, Roberts & Green, 1869.
- Rumney N.S. P, “The British Experience of Racists Hate Speech Regulation: A Lesson for First Amendment Absolutists?” (2003) 32 Common Law World Review 117.
Online sources
[1] European Convention on Human Rights, art. 11(1)
[2] Ibid, art. 11(2)
[3] Flockhart v Robinson [1950] 2 KB 498
[4] Public Order Act 1986, s.12
[5] Ibid, s.16
[6] Ibid, s.14(1) (a) (b)
[7] Police v Reid [1987] Crim LR 702
[8] Director of Public Prosecutions v Baillie [1995] Crim LR 446
[9] R (Brehony) v Chief Constable of Greater Manchester Police [2005] EWHC 640
[10] European Convention on Human Rights, art. 11
[11] Ibid, art. 10
[12] Robin Elliot, “The Supreme Court’s Understanding of the Democratic Self-Government, Advancement of Truth and Knowledge and Individual Self-Realization Rationales for Protecting Freedom of Expression: Part I – Taking Stock” (59 Sup Ct Rev 435-512, 2012)
[13] Handyside v the United Kingdom (95493/72) [1976] ECHR 5
[14] Bose Corporation v Consumers Union [1984] 466 U.S. 485
[15] Flockhart v Robinson [1950] 2 KB 498, p.502
[16] Public Order Act, s.11(1)
[17] Ibid, s.11(8)
[18] ibid. s.12
[19] Public Order Act, s.13(1)
[20] Ibid. s.13(2)
[21] Kent v Metropolitan Police Commissioner [1981] TLR
[22] Matthew Taylor, The Guardian ‘March by English Defence league banned’ <https://www.theguardian.com/uk/2010/aug/20/english-defence-league-bradford-ban> accessed 20 August 2010
[23] The Highways Act 1980 s.137
[26] Director of Public Prosecutions v Redmon-Bate [2000] HRLR 249
[27] Ibid. para 20
[28] John Stuart Mills, On Liberty (1859) (London:Longman, Roberts & Green)
[29] R (Laporte) v Chief Constable of Gloustershire [2007] 2 AC 105
[30] Public Order Act 1986, s.4
[31] Phillip N. S. Rumney, ‘The British Experience of Racist Hate Speech Regulation: A Lesson for First Amendment Absolutists?’ (2003) 32 Comm. L. World Rev. 117, 2003
[32] R v Sheppard and Whittle [2010] EWCA Crim 65
[33] Public Order Act 1936, s.1
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