In considering whether Geoff Daniels and/or ProD can use the Human Rights Act 1998 to challenge the decision of the Chief Constable of Collingwood District Police, it is essential to consider the Act in its entirety, in conjunction with the relevant conventions and statutes involved in the scenario. It is clear that Geoff/ProD’s convention rights under Article 10 freedom of expression and Article 11 freedom of assembly and association are being interfered with.
The Human Rights Act 1998, came into force in full on 2nd October 2000; guaranteeing the Convention rights of the individual against interference by the state and enabling people in the UK to enforce these rights and liberties in UK courts. Section 2(1) imposes a duty on UK courts to consider the decisions of the ECtHR, meaning European case law can be used as persuasive authority, even though there is no mandate to follow it. Section 3 (1) of the Act states: ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’ Where the courts cannot do so, they may quash or disapply subordinate legislation. In addition under section 4, the higher courts can declare that the offending provisions of an Act of Parliament are incompatible with Convention rights.
The Convention is treated as a Living Instrument and is capable of being interpreted in light of current conditions. In practice, the standards applied by the Strasbourg court provide the minimum consideration to be applied in cases where a breach of Convention rights is alleged, however, the courts are encouraged to develop their own domestic jurisprudence of human rights, with respect to the applicable domestic circumstances in accordance with the doctrine of the margin of appreciation. The ECtHR recognises that domestic courts are often better able to balance the rights of all involved in relation to their societal norms.
The guiding principle of the Act is that all public authorities must act compatibly with the human rights specified within it, thus effectively imposing a duty on public authorities to respect Convention rights. Section 6 of the Act clearly outlines the obligations imposed upon public authorities including the police. Theoretically, the assurances afforded by articles 10 and 11 mean that freedom of expression and peaceful assembly must now, in effect, be ‘supported’ by public authorities as opposed to merely tolerated. In addition, public order provisions can now be challenged and judicial review of decisions affecting the nature and scope of protest can be sought.
Section 7 of the Act states that: ‘a person who claims that a public authority has acted or proposes to act in a way that is unlawful under the Act may bring proceedings against the authority under the Act in the appropriate court or tribunal, or may rely on the Convention right concerned in any legal proceedings.’ The test to be applied here is outlined in Article 34 of the ECHR. It should be noted that Strasbourg case law has established that organisations and interest groups have no right to bring proceedings unless they are directly affected by the act, as is the case with ProD – Klass v Germany
The Convention recognises that some human rights cannot be guaranteed absolutely. In the interest of the whole, it may be necessary to balance the rights of the individual with the rights of a democratic society. These are known as qualified rights under the Convention and include Articles 10 and 11, both of which are in question in this case. These rights are described in two parts; the first part sets out the right and the second part qualifies the right by identifying the exceptions to it.
In deciding freedom of expression cases under article 10, the ECtHR adopted a 5 stage approach:
- whether there is a right protected under Article 10;
- whether there has been an interference with such right;
- whether such interference has been “prescribed by law”;
- whether the interference has served one of the “legitimate aims”;
- whether the interference has been “necessary in a democratic society”
The group, individually and collectively, have the right to freedom of expression and the right to freedom of peaceful assembly and freedom of association under the Act, subject in each case to the exceptions set out in articles 10 and 11 respectively. In Steel v UKthe ECtHR concluded that all forms of protest that can be interpreted as the expression of opinion potentially will fall within the protection of article 10. Furthermore any restriction placed on a peaceful public gathering for any purpose will require a court to consider the demands of article 11. In R v Chief Constable of Gloucestershire and others Lord Woolf CJ remarked:
The rights to freedom of expression, and assembly and association, which are protected by arts.10 and 11 of the ECHR respectively, are of the greatest importance to the proper functioning of any democracy. Any intrusion upon the rights, either by the developing common law or by the intervention of statute law, has to be jealously scrutinized. (para 35)
With respect to interference with convention rights in this case, the first condition, which dictates that any demonstration to be held by the group, must be at least 5 miles from GDXS plc’s main gates, nullifies the impact of the message the group planned to convey to the Zimbabwe Government delegation and could be effectively construed as a ban. Furthermore, the condition disallowing public speeches criticizing the Government of Zimbabwe is a clear breach of article 10. The third condition, which limits the number of demonstrators to 10, may infringe on article 11 because ProD has a local membership of approximately 250 and the condition excludes 96% of the membership from freely assembling to demonstrate as a group. Moreover, the final condition states that the Police reserve the right to cancel the demonstration immediately in the event of any counter demonstration. The ECtHR has held that the state is under a duty to protect citizens wishing to exercise their right to freely assemble against counter-demonstrators. In Ärtze für das Leben v. Austria the court stated:
‘…In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate’
Therefore, the police should devise alternative strategies to ensure that ProD’s demonstration can take place peacefully in the event of counter demonstration.
The phrase ‘in accordance with the law’, was considered by the ECtHR in Malone v UK. In Silver v UK it was held that the Malone test should be applied to the phrase ‘prescribed by law’, employed in articles 9–11 of the Convention. The three part test for determining that a measure is in accordance with the law was identified as follows:
- It must have a sufficiently established legal basis;
- It must be accessible so as to allow those affected to know what the law states; and
- It must be formulated with sufficient certainty to enable people to understand it and to regulate their conduct by it.
Based on the facts presented, the Chief Constable is relying upon section 14 of the Public Order Act 1986 to justify the conditions being imposed – the legislation readily passes the test. However, the Chief Constable has imposed conditions which overreach the scope of the legislation. The conditions which may be imposed on a public assembly can only relate to location, duration, and the number of persons constituting the assembly. Therefore, the police have no authority under the Act to impose conditions 2, 4 or 5. It is important to note that the Public Order Act 1986 does not provide for a right of appeal against a condition imposed under s.14. Therefore, Geoff/ProD will have to proceed by way of judicial review to challenge the legality of the decision. DPP v. Jones illustrates that although the police must be careful not to exceed their powers under s.14, if they do, it will not necessarily invalidate the notice because a court may sever the offending conditions where appropriate court.
The next consideration is whether the interference is pursuant to a legitimate aim. Based on significant Strasbourg jurisprudence, the ECtHR ordinarily accepts that, any interference of a right imposed by the ‘state’, can be interpreted in such a way as to fall within one of the broad categories of ‘legitimate aim’ without extensive analysis of the nature of the limitation. Meaning it is unlikely that a breach will be established on this ground.
In accordance with section 14 of the 1986 Act, there are two alternative bases on which directions may be given under s 14(1). Section 14(1)(b) permits the police to give directions imposing conditions on an assembly if the purpose of the persons organising the assembly is the intimidation of others. Section 14(1)(a), permits the senior police officer who reasonably believes that the assembly may result in serious public disorder, serious damage to property or serious disruption to the life of the community, to give appropriate directions.
In consideration of the facts presented, the Chief Constable has not specifically identified what grounds he based his decision on. Brehony v Chief Constable of Greater Manchester Police demonstrates that in cases where conditions are imposed in advance of a public assembly, pursuant to s.14(1)(a), the Chief Constable is under a duty to provide his reasons for imposing conditions. Bean J stated:
I consider that a s.14(2)(b) direction must identify which limb of s.14(1) is being relied on — the ‘no fault’ provision (as I have described it) of s.14(1)(a), or the fault provision of s.14(1)(b). If, as in this case, the direction is being given pursuant to s.14(1)(a), the direction must identify whether the reasonable belief is that the assembly may result in serious public disorder, or serious damage to property, or serious disruption to the life of the community (or all three or only two of them).
Bean J further qualified the duty to give reasons under s.14(2)(b) by saying:
I do not consider that the chief officer’s reasons for forming the belief which he has formed have to be given in great detail, but they must be sufficient to enable the demonstrators to understand why directions are being given, and to enable a court (if the matter goes to court), to assess, once the Judge is presented with evidence as to the facts, whether the belief was reasonable or not.
This condition has not been met and therefore it is virtually impossible to determine the reasonableness of the decision. However, the facts provided make no mention of the group planning to intimidate anyone and there is no indication that the group intends anything other than a lawful assembly. The fact that the group planned to block the main entrance to GDXS plc’s office could be grounds for restriction since that would interfere with the rights of GDXS plc and potentially cause disorder. Are there reasonable grounds to support the belief of serious public disorder, serious damage to property or serious disruption to the life of the community? Considering that this event is taking place on a Saturday, as opposed to normal business hours, how disruptive would this demonstration really be? Clearly, this needs to be examined to ensure the ‘state’ can justify the interference with Geoff/ProD’s Convention rights.
The Chief Constable’s decision in this case is reviewable on proportionality grounds.
The test of proportionality is extremely important and it is the most demanding criterion for establishing whether interference with a right is justifiable under the Convention.
In this scenario, any restriction to either articles 10 and 11 must be in response to a ‘pressing social need’ and the interference should be no greater than is necessary to satisfy that social need. The ECtHR insists that ‘a balance must be struck between the need to positively uphold the ability of individuals to exercise their rights to freedom of expression and assembly and the need to prevent public disorder or interference with the rights of others.’
As mentioned previously, the conditions imposed by the police effectively result in a ban of the demonstration. In addition, the fact that the police have invoked the Public Order Act may lead the general public to view the demonstration & ProD as unlawful, thus compromising the image of the group and its activities, further diminishing their ability to deliver their message. Moreover, limiting a demonstration which was originally planned for 8 hours to a maximum of 2 hours severely impedes the group’s ability to assemble and ‘impart information and ideas’. Similarly the censorship of the content permitted to be imparted defeats the purpose of the demonstration and seriously restricts freedom of expression. Can this interference realistically be considered proportionate on the facts of the case?
Strasbourg case law emphasises that there is little scope under art 10(2) of the Convention for restrictions on political speech or debates on questions of public interest. The reasons given by the State to justify the limitation must be “relevant and sufficient”; the State should use the least restrictive means available and the limitation must be proportionate to the aim pursued. There is, however, a fine line between the degree of restriction necessary to safeguard other human rights, and an encroachment on the freedom of assembly and expression. The test is the presence of the element of violence. The ECtHR warned in Sener v Turkey, that States should not use the criminal law to restrict freedom of expression unless it is truly necessary and the Court stated that this principle applies even in situations involving armed conflict! Clearly, the Court made this decision in consideration of the conditions prevalent in the respondent state at the time of the complaint; which leads into the doctrine of the margin of appreciation.
Handyside v UK set out the essence of this doctrine when the Court stated that:
By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the … ‘necessity’ of a ‘restriction’ or ‘penalty’ … it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of ‘necessity’ in this context. Consequently, Article 10(2) leaves to the contracting states a margin of appreciation.
Therefore, it is appropriate to apply the margin of appreciation to this case because the convention rights involved are qualified and the rules of necessity and proportionality must be considered in light of the prevailing societal conditions in Collingwood/UK with the knowledge that the ECtHR could ultimately overrule the decision if the margin of appreciation was too wide.
In conclusion, the facts of the case demonstrate that the conditions imposed interfere with Geoff/ProD’s convention rights and it follows that they should be able to use the Human Rights Act 1998 to challenge the decision by way of judicial review.
- Parpworth N, Constitutional and Administrative Law, 4th edition, Oxford University Press
Other Written Sources
- Lech Garlicki, ‘Article 10 of the European Convention on Human Rights and Limitations of Freedom of Expression’ (Report) (1 October 2003) CDL-JU(2003)33 accessed 19 December 2007
- George Letsas, ‘Two Concepts of the Margin of Appreciation’ Oxford Journal of Legal Studies,
- 2006, Volume 26/Issue 4 (1 December 2006) OJLS 2006 26 (705) accessed via LexisNexis Butterworths 3 January 2008
- Neil Parpworth & Katharine Thompson, ‘Challenging the Lawfulness of Conditions Imposed on a Public Assembly’ Justice of the Peace/2005/Issue 42 (15 October 2005) 169 JPN 808 – accessed via LexisNexis Butterworths 3 January 2008
- PeaceRights, ‘The Right to Protest Under UK Law: A Civil Liberty in Decline?’ (Report)
- (March 2007) accessed 21 December 2007
Table of Cases
- Ärtze für das Leben v Austria (1988) 13 EHRR 204, para.32
- Brehony v Chief Constable of Greater Manchester Police  EWHC Admin 640
- Director of Public Prosecutions v Jones  EWHC 110 Admin
- Handyside v United Kingdom (1976) 1 EHRR 737
- Klass v Germany (1978) 2 EHRR 214
- Lingens v. Austria, 8 July 1986, Application No. 9815/82, paras. 39-40
- Malone v United Kingdom (1984) 7 EHRR 14
- R (Laporte and others) v Chief Constable of Gloucestershire and others  EWCA Civ 1639
- Refah Partisi and others v Turkey, 13 February 2003, para 98.
- Sener v. Turkey, Application no. 26680/95, 18 July 2000, paras. 40, 42
- Silver v United Kingdom (1983) 5 EHRR 347
- Steel v United Kingdom (1999) 28 EHRR 603 at para 92.
- Surek v Turkey (No 1)  ECHR 26682/95 at para 61
- Tyrer v United Kingdom A 26 (1978); (1979–80) 2 EHRR 1
- Human Rights Act 1998
- Public Order Act 1986
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