‘I disapprove of what you say, but I will defend to the death your right to say it’ Voltaire
Scotland has a long history of contentious parades and protests, industrial disputes, civil rights, anti-war, loyalist/republican parades and recently the rise of the Scottish Defence League. It is, therefore, fitting that we are privileged to have some of the foremost academic thinkers in this area working in Scotland, Steve Reicher at St Andrews, who co-authored one of the most authoritative accounts of the London disorder last year, (Mad Mobs and English Men) and Hugo Gorringe and Michael Rosie at Edinburgh, whose study of protests during G8 is one of the few specifically Scottish studies of protest, an area they continue to develop.
I have a professional interest in this area as a police officer and also an academic interest. My Master’s thesis was a critical discourse analysis of the policing response to the Faslane 365 protest.
This blog has been developed from a presentation that I gave to the Dundee Policing and Criminal Justice Network.
It will start with a discussion about the ‘Right to Protest’ and then look at some case law related to this right.
In recent years, certainly since the disorder during the G20 protests in London and the subsequent HMIC report, Adapting to Protest, the strategic priorities for the police have been focused on facilitating peaceful protest, rather than lawful protest. However, there is no enshrined right under the Human Rights Act 1998 to protest, but the right can be derived from the following articles
- Article 9: Right to freedom of thought, conscience and religion
- Article 10: Right to freedom of expression
- Article 11: Right to freedom of assembly
These rights are not absolute, the state can restrict them for a variety of reasons, the most pertinent for parades and protest being to prevent crime and disorder, however, the disorder must be significant, Redmond-Bate v DPP (1999) states
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom to speak only inoffensively is not worth having.
LJ Gross in Abdul v DPP found that the right to free speech can be restricted if what is being said goes beyond legitimate protest and is a clear threat to public order.
The House of Lords, in Laporte v Chief Constable of Gloucestershire Constabulary stated
The rights to freedom of expression, and assembly and association, which are protected by Articles 10 and 11 of ECHR respectively, are of the greatest importance to the proper functioning of any democracy. Any intrusion upon the rights…has to be jealously scrutinised.
When assessing whether to restrict a human right, the police use the following test,
- Proportionate – is the police action proportionate to the threat, is there a less intrusive method of achieving the objective
- Legal – is there a legal basis for the police action
- Accountable – are decisions accountable
- Necessary – is the action necessary to prevent disorder
In Scotland, the duty of the police to preserve order is derived from Section 17(1)(a) Police (Scotland) Act 1967 which states
Subject to the provisions of this act, it shall be the duty of the constables of the police force to guard, patrol and watch so as to preserve order
I will look at three cases which are very important in terms of the policing of contentious parades and demonstrations and which demonstrate the PLAN mnemonic namely
- Austin -v- Commissioner of Police of the Metropolis (2009)
- R (Laporte) -v- Chief Constable of Gloucestershire Constabulary (2006)
- R (McClure & Moos) -v- Commissioner of Police of the Metropolis (2009)
The first of these is represents a landmark case, where police contained protestors for many hours in Oxford Circus. Lois Austin brought a claim that by doing so they had breached her rights under Article 5 Right to Liberty. The background to the case was that in 2000, there had been serious disorder in London during the Mayday ‘celebrations.’ In 2001, the police had intelligence that a similar situation would arise and thus took the decision to cordon (‘kettle’) the group in Oxford Circus, along with people who were not involved. The House of Lords (echoed by a recent ECHR judgement) found it was
- Necessary – there was nothing else the police could have done that would have been effective to prevent serious rioting
- Legal – the legal duty to maintain order and protect property
- Accountable – the police were able to show that other steps had been considered but discounted
- Proportionate – only as a last resort and only for the minimum period necessary, with steps taken to allow obvious non-demonstrators to leave.
This contrasts with the judgement in Laporte, where she was on a coach of protestors heading to a US Airbase to protest against attacks in Iraq. The coach was stopped and escorted back to London. The court held that Laporte’s rights under Articles 10 and 11 had been illegally interfered with; specifically the court held that the police action was not lawful because the feared breach of the peace was not imminent and that it was not proportionate to restrict Laporte’s rights because she was in the company of others who might, at some time in the future commit a breach of the peace.
He difference between these two cases, which, prima facie, appear similar comes down to the concept of ‘imminence.’ In Austin, the judges accepted that the breach of the peace was imminent, and as such, the only way to prevent it was to detain the persons likely to cause the breach. In Laporte, the breach of the peace was not imminent, there was the opportunity to employ other tactics to prevent the breach of the peace.
The final case, McLure and Moos, refers to the protests surrounding the G20 in London in 2009. There was a peaceful Climate Camp at the Carbon Exchange which blocked a major thoroughfare for 10-12 hours. The police contained and then cleared, using force, the climate camp. The court held that this action was lawful as the time provided was more than sufficient to allow the exercise of rights under Articles 10 and 11
Articles 9, 10 and 11, when taken as a whole provide a right to protest which the police have an obligation to protect. Where the police wish to restrict that right, there actions must be necessary and proportionate and legal. In addition, the police must be able to account for their actions, demonstrating that other options had been considered and rejected and that the course of action undertaken was the least restrictive to achieve the objective and was undertaken in good faith.