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Published: Fri, 12 Oct 2018
The law on freedom of speech and freedom of assembly
In this scenario, there is a question of whether PC Brown was within his powers as a police officer to arrest Simeon. Is Simeon simply exercising his right to freedom of speech and freedom of assembly by publicly preaching the Gospel? If he is, then the police officer will have breached his statutory powers, unless, as seems likely in this situation, it was reasonably necessary for PC Brown to act in order to preserve the peace. The advent of the European Convention on Human Rights (incorporated into English law by the Human Rights Act 1998) also has a bearing on this scenario, as Simeon may have a claim for breach of one of his rights protected in this Charter. The most likely actions in which Simeon would succeed include a breach of Article 5 (concerned with the individual’s right to liberty and security of his person), which, if he establishes such a breach, will entitle him to compensation. Articles 9 and 10 would also offer Simeon potential redress, concerned as they are with freedom of thought and religious belief (including the freedom to manifest one’s belief in public). There are, then, a number of questions which need to be considered.
It is a statutory offence to obstruct a police officer from carrying out his duty under s89 of the Police Act 1996. Under this section, it is an offence either to resist, or wilfully to obstruct an officer from carrying out his duty. PC Brown clearly has a statutory duty to maintain the peace in the community. It is possible that a court would find that Simeon, by refusing to stop preaching, was preventing PC Brown from carrying out this duty. Obstruction in this context has been widely defined by the courts. It can be either active or passive. In this instance, Simeon’s refusal to stop preaching is an example of a passive obstruction, as he fails to respond to the officer’s order (Johnson v Phillips).
Ever since the seminal eighteenth century case of Entick v Carrington, the courts have been alert to the abuse of executive powers by infringing on civil liberties. In more recent years, the courts have, on occasion, stressed the right of the individual to protest. Otton J commented that “The courts have long recognised the right of free speech to protest on matters of public concern and to demonstrate on the one hand and the need for peace and good order on the other” (Hirst and Agu v Chief Constable of West Yorkshire). Despite this judicial willingness to preserve the citizen’s right to freedom of speech, however, this is tempered by an alternative interpretation of such ‘rights’. following Hohfeld, a ‘right’ may actually be, in this case, a privilege. The right to freedom of speech imposes no duty on another, and as such, would not be described by Hohfeld as a right at all. If this is the case, Simeon, although free to protest and demonstrate, is obliged to do so in a peaceable manner, without contravening any laws. By riling the crowd in this scenario, it is possible that Simeon would be constituting a breach of the peace.
The concept of breach of the peace has a long history in English law, despite not having been granted a clear judicial definition until recently. As late as 1954, Professor Glanville Williams mentioned the “surprising lack of authoritative definition of what one would suppose to be a fundamental concept in criminal law.” When the Court of Appeal did arrive at a definition, unfortunately two differently constituted courts described breach of the peace slightly differently. In one instance, the court suggested that both the police and the ordinary citizen had the power of arrest when there is a reasonable apprehension of an imminent breach of the peace, or where a breach of the peace has already been committed. Such a breach occurs where harm is done, or threatened to be done, to a person, or, in his presence, to his property (R v Howell). It is significant that the European Court of Human Rights later affirmed that this was sufficiently clear a definition to satisfy Article 5(1)(c) of the ECHR (Steel v United Kingdom). In relation to this scenario, PC Brown would probably be considered to have been within his right to arrest Simeon, as the crowd were threatening violence against Simeon. The interesting factor here, however, is that it was not Simeon who was threatening the breach of the peace, but rather those around him who were becoming provoked by his oratory.
The second, not entirely consistent, decision regarding breach of the peace came the same year. It was held, again by the Court of Appeal, that there is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented from doing so by another (R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board). It is possible that in relation to the present scenario, it could be argued that by refusing to stop preaching when asked to do so by PC Brown, Simeon is preventing the police office from doing his lawful duty (I.e. in preserving the peace), and the PC is therefore within his right to arrest Simeon. It seems unlikely, however, that a court would consider Simeon’s response to constitute a ‘criminal obstruction’, which is what would be required to justify PC Brown’s arrest following this case.
There is a significant difference between a ‘detention’ and an arrest. Following the recent case of R (on the application of Laporte) v Chief Constable of the Gloucesteshire Constabulary, anything more than a ‘transitory detention’ to prevent a breach of the peace will be unlawful unless an actual arrest is made. This ‘transitory detention’ “cannot last for long” according to May LJ in that case. In the present instance, however, this offers no redress to Simeon, as an actual arrest was made by PC Brown.
The key question in ascertaining whether PC Brown’s arrest was lawful is whether his apprehension of a breach of the peace was reasonable. This will be a matter of fact for the court to decide. In this instance, the fact the PC Brown has recognised Simeon as a “well known local character”, suggests there is a history of public orations. If these have previously become violent, as on this occasion it appears to be, this would help the police officer’s claim that his was a ‘reasonable’ apprehension of a breach (Beatty v Gillbanks). This requirement is in place in order to safeguard the individual citizen’s liberty against unjustified police interference. The action of the officer must also be proportionate to the legitimate aim pursued. Even if the domestic court found PC Brown’s action in arresting Simeon to be reasonable necessary to maintain the peace, it is possible that Simeon could have an action in the European Court of Human Rights. Simeon would need to establish that PC Brown’s arrest of him was disproportionate to the need to keep the peace. If he did, he could establish a breach of Article 8 of the ECHR (McLeod v Unite Kingdom). Despite this possibility as a last resort, however, the domestic courts’ recent decisions have seen a more robust approach, and suggest that Simeon would have a stronger case for unlawful arrest. Beldam LJ stated recently that “there must … be a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully” (Foulkes v Chief Constable of the Merseyside Police). In the present context, this simply suggests that PC Brown would have a harder job in proving that the risk of a breach was imminent.
In the same case, Beldam LJ went on to state that although he was “prepared to accept that a constable may exceptionally have the power to arrest a person whose behaviour is lawful but provocative, it is a power which ought to be exercised by him only in the clearest of circumstances…” In this case, PC Brown is interfering with a civil liberty of Simeon to free speech and free assembly. In continuing to speak, Simeon is not breaking the law, and PC Brown will again have a difficult time in persuading a court that this was the case in the present instance. The common law power of the police to detain, however, may be considered to have been put to good use in order to preserve the peace in a demonstration (of which Simeon’s display could be considered one) (Chief Constable of Cleveland Constabulary v McGrogan).
The most significant aspect of the current scenario is the question of whether PC Brown’s arrest of Simeon was lawful . For it to be lawful, it is necessary for the constable to show that the power derived from some lawful authority. Such an authority may be a warrant for arrest of the individual granted by a magistrate pursuant to the Magistrates’ Courts Act 1980, s1. Such a warrant has clearly not been granted in the present instance, as PC Brown is responding to an immediate development. The constable could also rely on statutory provisions for arrest under the Public Order Act 1986, or the Police and Criminal Evidence Act 1984. Under s24 of the latter act, an officer may arrest without a warrant, a person who is about to commit an arrest able offence, or whom the officer has reasonable grounds for suspecting is about to commit an arrest able offence.
Assuming Simeon’s arrest is lawful, he will not enjoy the statutory protections set out in the Police and Criminal Evidence Act 1984 (PACE). This is because breach of the peace is not classified as a crime; therefore, when he is arrested, Simeon has not been detained for an ‘offence’. Despite this, however, if the police were not to apply the PACE detention provisions, and it did turn out that the arrest was unlawful (for example, it was for a longer period of time than was necessary to prevent a breach of the peace), Simeon would have redress at common law.
European Convention on Human Rights
Human Rights Act 1998
Magistrates’ Courts Act 1980
Police Act 1996
Police and Criminal Evidence Act 1984
Public Order Act 1986
Beatty v Gillbanks  9 QBD 308
Chief Constable of Cleveland Constabulary v McGrogan  EWCA Civ 86
Entick v Carrington  2 Wils 275
Foulkes v Chief Constable of the Merseyside Police  3 All ER 705
Hirst and Agu v Chief Constable of West Yorkshire  85 Cr App Rep 143
Johnson v Phillips  3 All ER 682
McLeod v United Kingdom  27 EHRR 493
R v Howell  QB 416
R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board  QB 458
R (on the application of Laporte) v Chief Constable of the Gloucesteshire Constabulary  EWHC 253 (Admin)
Steel v United Kingdom  28 EHRR 603
Leyland, P., and Woods, T., Administrative Law (Oxford, 2002)
Parpworth, N., Constitutional and Administrative Law (LexisNexis, 2004)
 Quoted in Parpworth, N., Constitutional and Administrative Law (LexisNexis, 2002), p498
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