Freedom Of Assembly And Association Notes

• Differs from the right to freedom of expression – this is about having the opportunity to say what you think effectively. It’s about means of communication.

• Freedom of assembly provides a practical means by which to exercise freedom of expression.

• High profile protests included fuel prices, fox hunting and G20 in London.

Striking a balance:

• Individual interests must be balanced against public interest. Those who wish to protest must have their interests weighed against those who do not wish to be bothered,

• Williams: the here is a compromise that ‘seeks to balance the competing demands of freedom of speech and assembly on the one hand and the preservation of the Queen’s Peace on the other’

• Balance is contextual: protest on a motorway is more problematic than in a park; peaceful protest is different to violent; direct action against the activity is clearly more of a problem than communication about the issue.

• The balance is multidimensional: must balance rights of protesters, counter-protesters, people living and working nearby and wider society (big protests cost the public purse) – should we give all of these interests equal value?

Article 11

• Two part form, where 11(2) details the extent (and exceptions to) the right. It is a qualified right:

  • Necessary in a democratic society in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

• The thrust of Art 11 is that freedom of assembly should be permitted unless restriction is necessary. Two conditions must be met for Article 11 protection:

  • it must be ‘peaceful assembly’. This covers ‘both private meetings and meeting on public thoroughfares, as well as static meeting and public processions’ (Kuznetsov v Russia)

  • It must not be ‘necessary in a democratic society’ to restrict the assembly – this applies even to peaceful assembly.

Principles for extraction:

1. The state are obliged to aid those who wish to protest peacefully that are being met with violent opposition. Art 11 imposes not only a negative obligation but a positive one to facilitate peaceful protest.

• Plattform ‘Ärtze für das Leben’ v Austria – An open-air religious ceremony which was advocating a pro-life stance was interrupted by 500 counter-demonstrators by using loudspeakers and throwing eggs. The anti-abortionists argued that the authorities did not provide them sufficient protection from the disruption of the counter-demonstrators. The court held that if there was an unlimited right to disrupt peaceful protest, peaceful protest would be devalued. The state was under a positive obligation ‘to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully’. There is, however, no requirement for the state to provide an absolute guarantee to prevent intimidation or disruption. Ultimately, in this case, the state was found to have taken all relevant measures and won the case.

2. Because there is no absolute obligation, the state may close down a peaceful protest if it is provoking or seems likely to provoke others into a violent response. The ECtHR has tended to require authorities to focus on those inciting violence and to only infringe on the rights of the peaceful protesters where absolutely necessary; there is a qualified duty to focus police attention on those who are reacting violently.

3. What about the rights of people wishing to raise a legitimate counter-protest? What rights do they have?

• Öllinger v Austria – Two groups wished to hold ceremonies in the same Slazburg cemetery. One was for Jews killed by the SS during the Holocaust. The other was for SS officers killed in WWII. The SS ceremony had been held for 40 years, and the Jewish ceremony planned as a counter-demonstration against it. The Austrian authorities banned the Jewish ceremony on the grounds that it was to avoid the risk of disorder and to protect the rights of those who wanted to attend the SS ceremony. The ECtHR found that in the absence of clear evidence of the likelihood of violence, an absolute ban of the protest was neither a necessary nor proportionate restriction. They said: ‘if every probability of tension and heated exchange between opposing groups during a demonstration was to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing different views’. Mead labels the – ‘the right to counter-demonstrate’.

Domestic Law

• In the UK there are extensive legislative and common law rules governing the management of protests. Bear in mind that these should be interpreted in a manner that gives effect to Art 11.

• English law distinguished between unacceptable conduct and potentially acceptable conduct. The former is impermissible entirely and is a criminal offence. This includes things like riot and violent disorder. For the latter category, the conduct is generally lawful and it will therefore depend on the circumstances whether it could constitute a situation governed by Art 11(2).

• English law criminalises anything that is ‘insulting’ and carried out ‘within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’ But this runs the risk of criminalising what may be legitimate forms of protest – is it not natural that some protest may cause alarm or distress (think showing pictures of dead puppies)? Does it strike the balance properly?

PROHIBITION OF CERTAIN TYPES OF BEHAVIOUR

Public Order Act 1986

• Sections 1-3 are concerned with riot, violent disorder and affray. These all involve the intentional or reckless use or threat of unlawful violence to cause a person or reasonable firmness to fear for his personal safety.

• Sections 4, 4A and 5 create offences concerning fear or provocation of violence; intentional harassment, alarm, or distress; and harassment, alarm or distress.

Breakdown:

• s.1 – riot.

• s.2 – violent disorder

• s.3 – affray

• s.4 – fear or...

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