Geller and another, R (on the application of) v The Secretary of State for the Home Department  EWCA Civ – read judgment
This short case involves the old dilemma of public order law: whether it is right to shut down speech when the speaker himself does not intend to incite violence, but whose presence it is said may lead third parties to commit violence. Indeed the facts of this particular case go further than that , because the applicants had no plans to make any public address during their proposed visit to Britain. It was their presence alone which was feared would inflame “community tensions”.
The applicants were two well-known US writers whose critical views of Islam led to them being prevented from entering the country in May 2013, to speak at a rally in the aftermath of the terrorist murder of Drummer Lee Rigby. An exclusion order was issued against them on grounds of public order, of which they sought judicial review. This was their appeal against the Immigration Tribunal’s refusal to allow them to proceed with the judicial review claim.
Pamela Geller is a Jewish-American blogger. She and Robert Spencer, another critic of Islamic fundamentalism, are co-founders of the Freedom Defense Initiative and Stop the Islamization of America. Both openly confirm their membership of these groups which they state are opposed to spread of extreme Islam and Sharia Law. Robert Spencer is reported to have said the following:
… it [Islam] is a religion and is a belief system that mandates warfare against unbelievers for the purpose for establishing a societal model that is absolutely incompatible with Western society and because of media and general government unwillingness to face the sources of Islamic terrorism these things remain largely unknown.
Neither of the applicants have any convictions in the US or the UK.
The applicants were proposing to visit the UK in the aftermath of the murder of Drummer Lee Rigby by Islamist extremist terrorists in Woolwich on May 22, 2013. They were to address a rally planned by the English Defence League, (“EDL”), in Greenwich on Saturday 29 June 2013, that being the date of the annual Armed Forces Day celebration at Woolwich Barracks, an event which would obviously assume special poignancy taking place as it would only 6 weeks after Drummer Rigby’s death.
The EDL welcomes support from anyone who stands against Islamic extremism, including Muslims.
It was the advice of the Metropolitan Police to the Home Secretary that the attendance of the applicants at the EDL event was “clearly not conducive to the public good” as their presence would be likely to augment the number of people attending in order to oppose the purpose of the rally. It was further the advice of the Metropolitan Police that should the applicants be allowed to address the proposed rally “it would undermine community cohesion and may provoke serious violence.”
After the July 2005 bombings in London, new powers under the Immigration Act 1971 were sought to exclude any non-European Economic Area (EEA) national on various public interest grounds, including their supposed intention to
foster hatred which might lead to inter-community violence
The specific reasons given for the exclusion order in this case was that the attendance of the applicants was likely to augment the number of people that attend to oppose the EDL event. [my italics]
Whereas members of the United Against Fascism group would have attended in any case, the presence of Robert Spencer and Pamela Geller will in all likelihood widen this to Muslim groups and local residents, as well as those with a specific aversion to these individuals.
It was chiefly participation in the rally by the group that led to these speakers being banned from the UK.
The applicants argued, inter alia, that the “unacceptable behaviours” policy under which the secretary of state had acted was unlawful for lack of clarity, and that it was outwith the purpose of the law in that it cut across one of the statute’s main objectives, which was to curtail offensive speech via and/or theological views.
They also submitted that the secretary of state’s decision amounted to a disproportionate interference with their free speech rights under Article 10 of the ECHR.
The Court dismissed their appeal.
Reasoning behind the decision
The “unacceptable behaviours” policy was not unlawful. There was no reason for parting company with Carnwath LJ who had concluded in R (on the application of Naik) v Secretary of State for the Home Department  EWCA Civ 1546,that the policy, which he described as “specific and clearly defined”, was sufficiently certain for the purpose of lawfulness (see my post on Naik).
Nor was there any prospect of a successful claim under Article 10. This was a case where the police had advised that significant public disorder and serious violence might ensue from the proposed visit. The proposed visit was to join an EDL rally in Woolwich at a time of great inter-community tension and sensitivity, in the relatively immediate aftermath of an incident of a particularly shocking nature, unprecedented on a British street, at any rate in recent history. The police had particularised associated incidents of violence which had occurred despite significant police operations. The police had been unable to prevent violence on the previous occasions and feared that their task on this occasion would be made the more difficult by the proposed presence of the appellants. The Court was confident that, in advising the Home Secretary,
the police were properly mindful of their responsibilities in seeking to keep the various factions apart and, generally, to curtail or to contain violence and disorder. The gravamen of their advice was however that their powers would not be adequate to safeguard public order.
Tomlinson LJ did not see that as an abnegation of responsibility on their part. Rather, it seemed to him “a carefully judged appraisal, in the light of recent experience, and at a time of highly charged community tensions, of how circumstances might develop in a manner beyond the reasonable ability of the police to control, and to represent sensible advice directed to minimising that risk in a proportionate manner.” The Court therefore rejected the suggestion that it could be argued that the Home Secretary had acted disproportionately, in other words that she had given no proper consideration to methods other than exclusion as a proportionate manner of dealing with the problem of public disorder which might arise consequent upon the applicants’ presence at the rally.
Accordingly, the Court concluded, the proposed judicial review had no prospect of success. The applicants had failed to demonstrate an arguable case which merits full investigation and, despite the fact that basic freedoms are engaged, there was no compelling reason to permit the matter to go forward to a full hearing.
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