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The Human Rights Act & the Right to Protest

The right to protest has been in the spotlight recently – particularly because of the case of the “Colston 4” who pulled down a statue during a Black Lives Matter protest. Three relevant rights under our Human Rights Act came up in the case: the right to freedom of thought (Article 9), the right to freedom of expression (Article 10) and the right to freedom of assembly (Article 11). The court also looked at a series of earlier cases to help make their decision.

We explain how our Human Rights Act relates to the Colston 4 case and what developments we’ve seen in human rights and protest law recently.

28 September 2022: Attorney General’s Reference on a Point of Law (202201151 B3)

In June 2020, there was a march in Bristol in support of the Black Lives Matter movement. The march went past a statue of Edward Colston – an English merchant born in 1636 who made a lot of money of transporting enslaved people. Four people (known as the Colston 4) participating in the march pulled the statue down using ropes and rolled it into Bristol harbour.

They were then prosecuted (i.e. taken to court by the UK state) for property damage, which is illegal under the Criminal Damage Act 1971. They argued that their prosecution was a disproportionate interference with their human rights, including the rights to freedom of thought, expression, and assembly.

Articles 10 and 11 of the Human Rights Act are non-absolute rights, which means they can be restricted in circumstances that are lawful, legitimate (for a good reason) and proportionate. Article 9 is a mixed right – the right to have a belief is absolute and can never be interfered with, but the right to act on or “manifest” that belief is non-absolute.

The prosecution said that only peaceful protest is protected by the Human Rights Act – and they said that pulling down the statue was not peaceful. They also said that even if the Colston 4’s rights were protected by the Human Rights Act, it was not disproportionate to prosecute them because the court could carry out a proportionality assessment.

The judge did not say whether or not he thought the Colston 4 were acting peacefully but did agree that the court could deal with proportionality. He said that if the jury were not persuaded by any of the protestors’ other defences, they could consider whether convicting them would be a disproportionate interference with their human rights.

The jury found the Colston 4 not guilty – but it is not known whether it was on the basis of their human rights or one of their other defences (because juries can’t talk about why they reached their decision).

The Attorney General, who advises the UK Government on legal matters, referred the case to the Court of Appeal. The Court of Appeal could not change the outcome of the case, but the Attorney General asked for clarification on whether human rights can provide a defence in a criminal damage case. Their answer will affect people in a similar situation in the future.

The Court was asked:

  • what principles should judges apply when determining whether Articles 9, 10 and 11 are engaged (i.e. need to be considered) in cases concerning potential convictions for acts of damage during protest; and
  • when should juries decide on issues of proportionality?

On 28th September 2022, the Court of Appeal gave its judgment. It decided that protestors cannot rely on their human rights as a defence if they cause damage in a way that is violent or not peaceful. They said that protestors can be violent towards objects (as in the Colston case) as well as people. They also said that even if protestors are acting peacefully and so their human rights are engaged, it is not disproportionate to convict someone for significant damage caused during a peaceful protest. This means that it is lawful for people’s rights to freedom of thought, expression and assembly to be restricted in such cases. It would still be up to a public authority to show that any restriction is legitimate and proportionate, which would depend on the facts of each individual case.

The Court then said that juries should not be asked to consider an issue if there’s only one reasonable answer. In this case, because the Court said there is no way conviction for violent or significant property damage during a protest could be a disproportionate interference with human rights, the jury should not be asked to consider proportionality in such cases.

Following this reasoning, the Colston protestors would not have been able to rely on their human rights as a defence to their conviction for property damage. However, because it is not known whether they were found not guilty on human rights grounds or on different grounds, the not guilty verdict cannot be changed. This means the Colston 4 are not affected by the Court of Appeal’s decision in this case – but future protestors will be.

This is the latest in a series of significant protest cases, new laws and draft laws (Bills) that have been introduced recently.

25 June 2021: DPP v Zeigler

Nora Ziegler and three other protestors blocked the road to the Excel Centre in East London in the days before it was due to host an arms (i.e. weapons) fair. They were protesting the arms trade. They were convicted for obstructing the highway without lawful excuse, which is illegal under the Highways Act 1980. However, if a person has a lawful excuse for obstructing the highway, they can use this as a defence.

They argued that their human right to protest, protected by Articles 10 and 11 of the Human Rights Act, gives them a lawful excuse to obstruct the highway. Their conviction therefore constituted an interference with their human rights. They said it was disproportionate – particularly as members of the public were able to get to the Excel Centre by a different route so the impact on other people was minimal. The court agreed with them and overturned their convictions.

11 March 2022: Leigh v Commissioner of the Metropolitan Police

Jessica Leigh and three others were members of a collective called Reclaim These Streets. They planned to hold a vigil in memory of Sarah Everard, who was murdered by a Metropolitan Police officer. However, the police told them it would be unlawful under the Coronavirus Regulations that were in place at the time, which prevented gathering without reasonable excuse. As a result of the police’s advice, the vigil was cancelled.

The Court found that the police should have recognised that a reasonable excuse under the Coronavirus Regulations included the right to protest (and gather) peacefully, as protected by Articles 10 and 11 of the Human Rights Act. The vigil wouldn’t have been unlawful. The police had therefore disproportionately interfered with Reclaim These Streets members’ human rights.

The police attempted to appeal the decision twice but both were refused because there was “no arguable basis [that] the court’s decision was wrong.”

30 March 2022: DPP v Cuciurean

Elliott Cuciurean dug and occupied a tunnel on private land in protest the construction of the HS2 train line. He was convicted of aggravated trespass under Section 68 of the Criminal Justice and Public Order Act 1994. He argued that his conviction was a disproportionate interference with his human rights and relied on the case of DDP v Ziegler, above. However, the Court said the two cases were different because Ziegler involved obstructing the highway, which has a defence of lawful excuse, whereas Cuciurean involved aggravated trespass, which doesn’t have a similar defence.

The court said that when someone is accused of an offence that doesn’t have a defence of lawful excuse, then their human rights related to protesting and the proportionality of restricting those rights do not necessarily have to be considered. It depends on the offence in question. In Elliott’s case, the court said that there was no need to consider whether the conviction was a proportionate interference with human rights because it protects public order and private property and trespassing on private property is not at the “heart” of protest anyway.

This meant Elliott was still convicted.

07 April 2022: Bolton v Merseyside Police

In March 2021, Cathryn Bolton attended a vigil to mourn Sarah Everard’s death and brought along her son. Police told her she was in breach of the Coronavirus Regulations and gave her a Fixed Penalty Notice. They also told her they would report her to social services for bringing her son with her.

Cathryn pleaded not guilty on the basis that her attendance at the vigil was protected by her Article 10 and 11 of the Human Rights Act. After the case of Leigh v Metropolitan Police (above), which approved the same defence, the prosecution dropped the case against Cathryn.

25 May 2022: Reissmann and Gallagher v Greater Manchester Police

Karen Reissman was an NHS nurses who organised a socially distanced protect against the UK Government’s proposed 1% pay rise for NHS workers. She was fined £10,000 by Greater Manchester Police for breaching the Coronavirus Regulations which banned gatherings. Patricia Gallagher was also an NHS worker who attended the protest and was arrested by police and fined £200.

Both women sought legal advice from Bindmans LLP, who represented Reclaim These Streets in Leigh v Commissioner of the Metropolitan Police. Greater Manchester Police then accepted that the arrest and fines were unlawful and withdrew them as the police had “misunderstood” the Coronavirus Regulations.

BIHR Explains

Many of the cases brought to court have focused on what happens when crimes are committed during or as part of the protest and whether convicting people of that crime has to be balanced against their human rights. The courts seem to agree that crimes that involve violent or serious damage are not protected by our Human Rights Act. Similarly, if something is always a crime regardless of whether or not someone has a “lawful excuse” to do it, it won’t automatically be protected by our Human Rights Act (although might be, depending on how the law is written). If, however, something is only a crime if someone doesn’t have a “lawful excuse” to do it, their human rights might be the excuse. As a conviction would interfere with those rights, it should only go ahead if it is proportionate.

28 June 2022: Police, Crime, Sentencing and Courts Act 2022

Although the Police, Crime, Sentencing and Courts Act was passed in April 2022, many of the provisions that affect protest took effect from 28 June 2022.

The Act makes a number of changes that will make it easier for police to restrict protests. For example, police can impose maximum noise levels on a protest. This will make it harder to run large protests. The Act also extends the area around Parliament where people are not allowed to block cars – making it harder for protests to catch the attention of Parliamentarians.

You can read more about how the Police, Crime, Sentencing and Courts Act affects the right to protest on Liberty’s website.

16 November 2022: Public Order Bill

The Public Order Bill was introduced on 11 May 2022 and reached Committee Stage in the House of Lords on 16 November 2022. This is where members of the House of Lords examine the Bill line-by-line.

In the Bill, the UK Government has attempted to reintroduce some of the more extreme clauses that the House of Lords voted out of the Police, Crime, Sentencing and Courts Act. This includes making “locking on” an offence (i.e. a protestor making themselves difficult to remove by attaching themselves to their surroundings). It would also allow for orders banning particular individuals from joining protests and expand police’s powers of stop and search.

In a briefing to the House of Commons on the Bill, human rights charity Justice said, “The Bill is unlikely to be compliant with the European Convention on Human Rights (“ECHR”), in particular Article 10 ECHR (freedom of expression) and Article 11 ECHR (freedom of assembly and association).

The Home Secretary, Suella Braverman, however, said, “The police need strengthened and tougher powers to match the rise in self-defeating protest tactics and that’s what the Public Order Bill will do."

BIHR Explains

The future of protest protections: UK Parliament has been passing increasing restrictive laws on the Right to protest at a time when there are significant protests against the Government and State itself. Last month saw 50 simultaneous protests against the cost-of-living crisis while climate change activists Just Stop Oil recently completed 32 days of continuous action.

As with all rights in the Human Rights Act, rights to protest are about enabling ordinary people to hold those in power to account. With this right seemingly at risk in other areas of law, it is more essential than ever that the foundational protections under our Human Rights Act are not weakened – whether through the Rights Removal Bill or any other manner of reform.

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