The freedom to protest belongs to the family o so-called qualified rights. It means that in case of these rights the court has to balance the infringement of the private right by the state with the public interests such as national security. To reach the compromise in case of qualified right the principle of proportionality has to be used.
The principle of proportionality is a political maxim which states that no layer of government should take any action that exceeds what is reasonably expected to achieve the desired objective.
The freedom of expression constitutes one of the essential foundations of a democratic society. It is certainly one of the basic conditions for its progress and development.
The judges of British courts even before the enactment of the Human Rights Act recognised the right to freedom of expression. In one of the cases1 in High Court Mr Justice Laws (as he then was) said:
‘There is a general principle in our law that the expression of opinion and the conveyance of information will not be restrained by the courts, save on pressing grounds. Freedom of expression is as much a sinew of a common law as it was of the European Convention.’
Freedom of expression and freedom of assembly are the rights protected by the Human Rights Act. The act forbids governments and other public authorities (including police) from violating these rights. Nevertheless there are some limitations on these rights in order to prevent unrest, violence and crime. The limitations are put also to protect the rights and freedoms of others.
Freedom to protest is one of the main freedoms citizens have access to thanks to the Human Rights Act 1998. The articles which are considering the freedom to protest are articles 10 and 11.
Accordingly to the legislation everyone has got the right to freedom of expression which should include freedom to have opinions and to receive and impart information and ideas without interference by public authorities. 2
However there is no state with an absolute freedom to protest. As on every right there are some formalities, conditions, restrictions and sometimes penalties prescribed by law in the interest of safety of the democratic society. Freedom to protest is a great responsibility and as such it carries with it duties. 3
Nevertheless the only restrictions which can be placed on the exercise of these rights are such as are prescribed by law, and are necessary for the prevention of disorder and crime, and to upkeep the safety of the democratic society. 4
In this particular case Alan, the chair person of the organisation NOHELO informed the police about the willingness to organise a protest 20 days before it supposed to take place. He informed about the subject-matter of the protest and the venue where he wanted it to take place.
The protesters arrived to the place (bust dual carriageway) at 3 pm and Alan was told by the police that he is running an illegal march. He was told that some conditions have to be complied with if he wants to continue the march. Police informed him that the protesters should move to the quiet lane away from traffic and once they will reach the destination they can only gather there for half an hour in front of the proposed site.
There are often very good reasons for seeking to prevent demonstration from taking place. Some demonstrations and protests might lead to the unnecessary occurrence of crime and violence or disruption of some sort. It also may be that if unpopular organisation is allowed to hold a meeting there will be a counter-demonstration and they might clash. It is a matter of balancing rights and ensuring that the relevant decision is not an arbitrary one.
Clearly the Police’s proposition to re-route the march along quiet lane away from traffic seems to be very reasonable requirement. The road chosen by Alan is a bust dual carriageway and it might be dangerous for the group of 80 protesters to walk along of it. As well it causes traffic problems and angry drivers might be a reason for riots, disorder and thus breach of peace.
However the requirement to gather at the site only for half an hour might be arguable. The period of thirty minutes seems to be very short and I do not really see the reason why the length of protest should be so short.
When Alan was asked by the Police to re-route along the quiet lane away from traffic he picked up the megaphone and told the demonstrators to ignore police’s instruction and carry on walking. The article 11 of Human Rights Act 1998 is the requirement of peaceful assembly. The thing which is taken into consideration reflecting on this issue is the conduct of the person who applied for the permission to protest, not the conduct of the actual demonstrators. Not complying with the authorities orders might count as a breach of peace and a threat to the conducting of peaceful demonstration thus detainment of Alan might had been a reasonable step to upkeep peaceful demonstration.
During the demonstration traffic jam resulted and Betty started to talk to people who get out of their cars. She was trying to educate people about environmental issues. Some of the car drivers were shouting back at her. After some time a police officer intervened and arrested her.
This case seems to be very similar to Redmond-Bate v DPP 5 apart from the fact that in the case mentioned a police officer at least asked the demonstrator to stop before arresting her. In this case he did not even ask Betty to stop.
Sedley LJ said free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative so long as it did not provoke violence. Freedom only to speak inoffensively is not worth of having.
Betty was talking about environmental issues, which are very important for the nowadays industrialised society. The education in this topic is highly desirable to prevent the environmental disaster in the future. The police officer had no good reason to believe that breach of peace was imminent.
Then both Alan and Betty were taken to the police station. The Police tried to interview Alan in the interview room however he was uncooperative and abusive towards them. When he refused to answer questions he was slapped in the face. As a consequence of the hit he was knocked to the floor. Nevertheless medical checks were not carried out. More than that, police left him in the interview room for a night, without food, water, bed or access to a toilet.
For me this situation clearly falls under the provisions of article 3 of the European Convention on Human Rights. This article states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
Also to fall within the scope of this section ill treatment must attain a minimum level of severity6. To assess the minimum all individual circumstances of the case such as the duration of the treatment, its physical and mental effects and in some cases sex, age and state of health of the victim must be taken into consideration. If there is any serious damage resulting from being slapped in the face it is very likely for the act to reach the level of minimal severity and thus to create an offence of torture under Human Rights Act. Other situations which appeared in this case and which are considered inhuman treatment belong to the group of techniques referred to as five techniques.
Alan was deprived of sleep as there was no sleeping facility provided in the room in which he was left overnight. He was also deprived of food and water. His cell did not have an access to the toilet and he was not given this opportunity by the guards to use the toilet and that creates another offence. States must ensure that everyone, including people in detention have access to safe sanitation. Lack of it creates inhuman conditions which are contrary to the basic human dignity which underpins human rights.
Five techniques which I mentioned before is a term describing certain interrogation policies adopted by the Northern Ireland and British governments in the 1970s. The five techniques are as follows wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink. Two of those situations have taken place in this particular case. Namely food and drink deprivation and deprivation of sleep. In 1978 the European Court of Human Right trial Ireland v United Kingdom ruled that the five techniques ‘did not occasion suffering of the particular intensity and cruelty implied by the word torture […] [but] amounted to a practice of inhuman and degrading treatment, in breach of the European Convention on Human Rights.
Betty is US citizen currently residing in the UK. It was discovered by the police that she is wanted in the United States for alleged murder. The US authorities requestedxtradition, however she argues that if found guilty she will be sentenced to death.
Article 3 of the European Convention on Human Rights prohibits ‘inhuman or degrading punishment’. Article 3 is unqualified, which means that a State is not permitted to justify a breach on any grounds. Death penalty is considered to fall within the provisions of article 3.
The decision to return a person to a country where there is a real risk that they will be in danger or torture, loss of life, or inhuman or degrading treatment would breach article 3. Hence, the courts have no choice but to prevent any extradition or deportation which would put a person at serious risk.
The leading case on this matter is the case of Soering v United Kingdom7. It is a landmark judgement of the European Court of Human Rights. The case established that extradition of a young German national to the United States to face charges of a capital murder violated Article 3 of the European Convention on Human Rights. The Article 3 prohibits torture and ‘inhuman or degrading treatment’. There are no exceptions or limitations on this right. The courts highlighted the fact that the prohibition has to be made in ‘absolute terms… irrespective of a victim’s conduct.’8
In this particular case Betty is also a suspect in the murder case and she might face a capital murder charge if she will be extradited back to the US.
Betty might apply to the European Court of Human Rights asserting that going back to the US she will face inhuman and degrading treatment, which is contrary to Article 3 of the European Convention on Human Rights. Before the case of Soering v United Kingdom the death penalty was never considered to be within the provisions of the expression ‘inhuman and degrading treatment’ more than this section 2(1) allows the death penalty to be exercised as long as the punishment is fair and prescribed by law.
However even if the death penalty itself is not a breach of human rights same as in the case of Soering, Betty might argue that there are also other factors such as being exposed to the death row phenomenon where she would be kept in detention for unknown period awaiting execution, which are capable of constituting breach of human rights.
In my opinion the outcome of Betty’s case would be similar to the case of Soering v United Kingdom where it was decided that ‘where it is certain or where there is a serious risk that the person will be subjected to torture or inhuman treatment the deportation or extradition would, in itself, under such circumstances constitute inhuman treatment.’
Apart from that the European Court of Human Rights concluded:
‘Having regard to the very long period of time spent on death row in such extreme conditions, with the ever presend and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, expecially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3.’
Accordingly to the principles set by ECHR the outcome of Betty’s case should be similar to the one reached in Soering.
Soering’s case enlarged the scope of the state’s liability for the breach of the convention. A signatory state must now consider the consequences of returning an individual to a third country where he might face treatment that breaches the convention.
Nevertheless if the sufficient assurance from the US government will be received that the death penalty will not be exercised Betty’s extradition will still take place as the breach of human rights will not take place.