Human Rights: Example essay A – Right to protest
To what extent are the rights of political protestors protected when considering the
domestic legal framework of the United Kingdom
The rights of political protestors are entrenched within articles ten and eleven of the Human
Rights Act1, freedom of expression and the right to peaceful assembly, whilst article 5 and
the restriction of liberty also offers measures which ensure the prevention of the unlawful
detainment of those seeking peaceful protest. ‘Free expression is an inherent part of liberal
democracies, a form of government based on self-governance, respect for a multiplicity of
views, and the right of individuals to develop their minds and fortunes as they please as long
as others are not injured”2 leaving the police to strike a balance between the protection of
rights and the protection of others.
The legal framework of human rights within the UK is made up of the International
Covenant on Civil and political rights,3 The Charter of fundamental rights of the European
Union4 alongside the Human Rights Act5, with which ‘the rights to freedom of peaceful
assembly and freedom of associated [were] directly and fully guaranteed in domestic law for
the first time.’6 These freedoms and rights are balanced against police powers designed to
safeguard these freedoms. The powers of the police in regards to protests are defined in a
series of statutory instruments; Criminal law act 1967, Police and Criminal Evidence Act
1984, Criminal Justice and Public Order Act, Regulation of Investigatory Powers Act 1000,
Terrorism Act 2000 and the Serious Organised Crime and Police Act 2005. In the balancing of
both forms of statutory instruments, it is clear that there are ‘no systematic human rights
abuses in the policing of protest’7 within the legal framework of the United Kingdom.
However there is ‘significant mismatch between the perceptions of protesters and the
police about the way in which protest is managed’ which could ‘serve to diminish, rather
than facilitate, protest’8. By looking at police prevention of breaches of the peace through
kettling, as well as the police limitations upon protest assemblies and processions, it
becomes clear ‘complex and multi-layered legislative framework for public order policing’ 9
can create difficulties in the policing of protests and subsequently the protection of the
rights of those protestors. It cannot be said that rights of political protestors are in jeopardy,
but more responsibility can be taken by the police to ensure that these rights are upheld to
their fullest potential, as is
1
Human Rights Act 1998
2
Freedom of Expression in the 21st Century, Trager and Dickerson, Pine Forge Press, inc. 1999
3
International Covenant on Civil and political rights
4
The Charter of fundamental rights of the European Union
5
Human Rights Act 1998
6
http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_11.pdf p.378
7
6. ibid
8
Joint Committee on Human Right, 2009. Demonstrating respect for rights? A human rights approach to policing protest. Seventh Report
of Session 2008-08, volume I. London: The Stationery Office para.66
9
Joint Committee on Human Right, 2009. Demonstrating respect for rights? A human rights approach to policing protest. Seventh Report
of Session 2008-08, volume I. London: The Stationery Office.
, …………………….
During protests, the police are used to attempt to ensure the safety of those within and
outside the protest whilst demonstrating their rights of expression and assembly under
articles ten and eleven of the Human Rights Act. An example of this would be the risk of, or
the event of a breach of the peace. Within R v Howell10 (info) Watkins LJ defines a breach of
the peace as ‘whenever harm is actually done or is likely to be done to a person or in his
presence to his property or a person is in fear of being so harmed through an assault, an
affray, a riot, unlawful assembly or other disturbance.’
The use of kettling, or corralling, defined by Scorer as ‘cordons of police contain a crowd
within a limited area’11 remains an issue in which the rights of political protestors are
seemingly insufficiently protected by the domestic legal framework of the United Kingdom.
This issue is described by Michael Mansfield QC as ‘Legitimate and peaceful mass
demonstrations… being policed off the streets. Increasingly, heavy-handed tactics are being
employed’ with kettling acting as ‘part of a general policy by successive authoritarian
governments. They brook no opposition and contrive a compliant society upon which they
can wreak havoc with their elitist economic policies.’ 12 This distrust in authoritarian force
and economic elitism directly opposes the idea of ‘inalienable rights’ 13 which should be
accessible to all and not at all politicized.
Prevention of breaches of the peace can be considered as a way of ensuring the safety of
political protestors, however some argue that police use of ‘kettling’ can be seen to
overstep the line between protection, and the Human Rights Act. As established in
Williamson v Chief Constable of the West Midlands Police [2003] 14, breaches of the peace
are part of UK common law, thus not a crime incurring no punitive measures, only licence
for preventative action on the part of relevant authorities, in this case the police force.
One of the examples of the use of kettling in case law is R (on the application of Laporte) v
Chief Constable of Gloucestershire15. The facts of the case are as follows; en route to a
legitimate demonstration (DEFINE) outside of a United States airbase, the vehicle on which
the claimant arrived was stopped and searched. After having confiscated a number of items
the police considered dangerous16, a decision was taken by the police that by permitting the
coach to proceed would cause a breach of the peace. Judicial review was applied for by the
claimant on the grounds that the protesters were unable to attend the demonstration,
alongside the vehicle being subjected to a forced return to London accompanied by a police
escort. following articles ten and eleven it was held that the actions of the police constituted
a breach of these articles as there existed no threat imminent enough to justify arrest, thus
the actions of the police in limiting freedoms specified by these articles was deemed
10
Regina v. Howell (errol) court of appeal (criminal division) [1982] qb 416, [1981] 3 all er 383, [1981] 3 wlr 501, 73 cr app rep 31, 146 jp
13
11
Scorer, ‘Kettling matters’ [2011] NLJ Vol 161, Issue 7452
12
http://www.theguardian.com/commentisfree/2013/mar/10/dangerous-police-protest-alfie-meadows
13
Universal Declaration of Human Rights 1948
14
Williamson v Chief Constable of the West Midlands Police [2003] EWCA Civ 337
15
R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
16
Police and Criminal Evidence Act 1984 ss.1-2
To what extent are the rights of political protestors protected when considering the
domestic legal framework of the United Kingdom
The rights of political protestors are entrenched within articles ten and eleven of the Human
Rights Act1, freedom of expression and the right to peaceful assembly, whilst article 5 and
the restriction of liberty also offers measures which ensure the prevention of the unlawful
detainment of those seeking peaceful protest. ‘Free expression is an inherent part of liberal
democracies, a form of government based on self-governance, respect for a multiplicity of
views, and the right of individuals to develop their minds and fortunes as they please as long
as others are not injured”2 leaving the police to strike a balance between the protection of
rights and the protection of others.
The legal framework of human rights within the UK is made up of the International
Covenant on Civil and political rights,3 The Charter of fundamental rights of the European
Union4 alongside the Human Rights Act5, with which ‘the rights to freedom of peaceful
assembly and freedom of associated [were] directly and fully guaranteed in domestic law for
the first time.’6 These freedoms and rights are balanced against police powers designed to
safeguard these freedoms. The powers of the police in regards to protests are defined in a
series of statutory instruments; Criminal law act 1967, Police and Criminal Evidence Act
1984, Criminal Justice and Public Order Act, Regulation of Investigatory Powers Act 1000,
Terrorism Act 2000 and the Serious Organised Crime and Police Act 2005. In the balancing of
both forms of statutory instruments, it is clear that there are ‘no systematic human rights
abuses in the policing of protest’7 within the legal framework of the United Kingdom.
However there is ‘significant mismatch between the perceptions of protesters and the
police about the way in which protest is managed’ which could ‘serve to diminish, rather
than facilitate, protest’8. By looking at police prevention of breaches of the peace through
kettling, as well as the police limitations upon protest assemblies and processions, it
becomes clear ‘complex and multi-layered legislative framework for public order policing’ 9
can create difficulties in the policing of protests and subsequently the protection of the
rights of those protestors. It cannot be said that rights of political protestors are in jeopardy,
but more responsibility can be taken by the police to ensure that these rights are upheld to
their fullest potential, as is
1
Human Rights Act 1998
2
Freedom of Expression in the 21st Century, Trager and Dickerson, Pine Forge Press, inc. 1999
3
International Covenant on Civil and political rights
4
The Charter of fundamental rights of the European Union
5
Human Rights Act 1998
6
http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_11.pdf p.378
7
6. ibid
8
Joint Committee on Human Right, 2009. Demonstrating respect for rights? A human rights approach to policing protest. Seventh Report
of Session 2008-08, volume I. London: The Stationery Office para.66
9
Joint Committee on Human Right, 2009. Demonstrating respect for rights? A human rights approach to policing protest. Seventh Report
of Session 2008-08, volume I. London: The Stationery Office.
, …………………….
During protests, the police are used to attempt to ensure the safety of those within and
outside the protest whilst demonstrating their rights of expression and assembly under
articles ten and eleven of the Human Rights Act. An example of this would be the risk of, or
the event of a breach of the peace. Within R v Howell10 (info) Watkins LJ defines a breach of
the peace as ‘whenever harm is actually done or is likely to be done to a person or in his
presence to his property or a person is in fear of being so harmed through an assault, an
affray, a riot, unlawful assembly or other disturbance.’
The use of kettling, or corralling, defined by Scorer as ‘cordons of police contain a crowd
within a limited area’11 remains an issue in which the rights of political protestors are
seemingly insufficiently protected by the domestic legal framework of the United Kingdom.
This issue is described by Michael Mansfield QC as ‘Legitimate and peaceful mass
demonstrations… being policed off the streets. Increasingly, heavy-handed tactics are being
employed’ with kettling acting as ‘part of a general policy by successive authoritarian
governments. They brook no opposition and contrive a compliant society upon which they
can wreak havoc with their elitist economic policies.’ 12 This distrust in authoritarian force
and economic elitism directly opposes the idea of ‘inalienable rights’ 13 which should be
accessible to all and not at all politicized.
Prevention of breaches of the peace can be considered as a way of ensuring the safety of
political protestors, however some argue that police use of ‘kettling’ can be seen to
overstep the line between protection, and the Human Rights Act. As established in
Williamson v Chief Constable of the West Midlands Police [2003] 14, breaches of the peace
are part of UK common law, thus not a crime incurring no punitive measures, only licence
for preventative action on the part of relevant authorities, in this case the police force.
One of the examples of the use of kettling in case law is R (on the application of Laporte) v
Chief Constable of Gloucestershire15. The facts of the case are as follows; en route to a
legitimate demonstration (DEFINE) outside of a United States airbase, the vehicle on which
the claimant arrived was stopped and searched. After having confiscated a number of items
the police considered dangerous16, a decision was taken by the police that by permitting the
coach to proceed would cause a breach of the peace. Judicial review was applied for by the
claimant on the grounds that the protesters were unable to attend the demonstration,
alongside the vehicle being subjected to a forced return to London accompanied by a police
escort. following articles ten and eleven it was held that the actions of the police constituted
a breach of these articles as there existed no threat imminent enough to justify arrest, thus
the actions of the police in limiting freedoms specified by these articles was deemed
10
Regina v. Howell (errol) court of appeal (criminal division) [1982] qb 416, [1981] 3 all er 383, [1981] 3 wlr 501, 73 cr app rep 31, 146 jp
13
11
Scorer, ‘Kettling matters’ [2011] NLJ Vol 161, Issue 7452
12
http://www.theguardian.com/commentisfree/2013/mar/10/dangerous-police-protest-alfie-meadows
13
Universal Declaration of Human Rights 1948
14
Williamson v Chief Constable of the West Midlands Police [2003] EWCA Civ 337
15
R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
16
Police and Criminal Evidence Act 1984 ss.1-2
