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18.3 Peaceful assembly: meetings, marches and demonstrations
(p 392, passim)
A decision by the UK Supreme Court has created some attention in relation to the right of peaceful ‘protest’ (the ECHR right in Article 11 is to peaceful ‘assembly’) which is seen as significant in the light of protests such as by Extinction Rebellion and Insulate Britain. Such protests have disruption as an avowed aim (the strategy of Extinction Rebellion has included the aim of taking ‘police resources to a breaking point’ (R (Jones) v CPM [2019] EWHC 2957, paras 16 and 76)) and, therefore, are different from protests which are a form of advocacy and which accept a duty to cooperate with the police.
The decision is DPP v Ziegler [2021] UKSC 23 which concerned an appeal by the prosecution (DPP) against a District Judge’s acquittal of demonstrators against the arms trade, on the grounds that they had a lawful excuse for wilful obstruction of the highway (a defence allowed under s137 Highways Act 1980).
The case deals with whether such protests (those aiming at disruption) are protected at all by Article 11. Do they, for the purposes of UK law under the HRA, come within the concept of ‘peaceful assembly’, as discussed at 18.3.2? The answer is ‘yes’. In coming to this conclusion, the UKSC took into account significant Convention law (as it is required to do by section 2 HRA – see Chapter 4, 4.3, page 70). In particular, reference was made to the leading Grand Chamber case, Kudrevicius v Lithuania (see 18.3.2), where Article 11(1) was applied to protests which blocked the main roads of Lithuania for up to two days; and also to Primov v Russia App 17391/06, judgment of 12 June 2014, which involved a fierce response by the authorities to an attempted gathering which might have disrupted traffic during the day (not a Grand Chamber judgment).
These cases, especially Kudrevicius, suggest that Article 11 applies even if the intention of the organisers is to cause severe disruption, so that Extinction Rebellion (and so on) will enjoy the protection of Article 11.
But it is vital to remember that Article 11 is a qualified right which is subject to interference by the authorities so long as the interference satisfies Article 11(2): it is authorised by ‘law’ (see Chapter 6.2); it is for one of the purposes listed in Article 11(2); and it is ‘necessary in a democratic society’, which is normally applied in terms of ‘proportionality’ and the existence of a ‘fair balance’ between the interests of the protesters and the public or other interests for which the interference is conducted.
All that Ziegler does is to insist that police interferences with protests which are non-violent on the part of the protesters, but which are aimed at serious disruption for others, are compatible with Article 11(2). The judgment, for example, emphasises the factors that make up a proportionality judgment, in particular as listed in City of London v Samede (see Chapter 18, 18.6.2, page 398). A non-exhaustive list includes: whether continuing the protest would breach domestic law, the importance of the location of the protest, its duration, the degree of occupation of land, and the extent of actual interference with others including affected property owners and the public (see para 39 of Samede). Furthermore, proportionality involves finding a ‘fair balance’ between the different interests affected and the right of the protestors. The Supreme Court, in Ziegler, noticed a point in Kudrevicius that protest done with the aim of disruption is not at the ‘core’ of the freedom protected by Article 11 (see para 67). It follows that, where disruption is the aim, the protesters’ rights will have a relatively low ‘weight’ in the balance and will therefore be easily outweighed by the interests of others and the public. Ziegler, perhaps, gives less than it might seem.
A second issue in Ziegler is the test for an appeal court when dealing with an appeal, by way of ‘case stated’ from a magistrate, where the issue is the proportionality of an interference with a Convention right.
The normal approach in ‘case stated’ is for the appeal court to ask itself whether the decision was irrational or perverse (i.e. quite a low intensity scrutiny). In the context of human rights law and ‘proportionality’, this is taken to mean ‘ an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.’ This gives quite a lot of space for judicial analysis, but it is made clear that an appeal cannot be allowed just because the appeal court would have taken a different view. This approach to the judicial approach to proportionality which relates to an appeal to a higher court against the decision on proportionality of a lower court can be considered in relation to the general approach to the proportionality test for government actions, discussed in Chapter 4, 4.6.1 (page 99).