The line between legitimate protest and anti-social behaviour

30 August 2019 by

Public order cases involving protests have always sparked controversy, with the collision between the state’s responsibility to ensure the smooth running of civil society and the individual citizen’s right to draw attention to what they regard as a pressing moral concern.

The optics on this are tricky. Protesters giving up their time and energy to raise attention; police moving them on. Which do we support, freedom of physical movement or free expression of thoughts?

There is a welter of debate and criminal legislation behind public protest action and this or that provision that authorises arrest. With the recent case of Dulgheriu & otrs v Ealing Council [2019] EWCA Civ 1490, I want to focus attention on what exactly triggers a prohibition of public protest under Section 59 of the Anti-social Behaviour, Crime and Policing Act of 2014. This provision allows councils to local authorities to issue a “Public Service Protection Order (“PSPO”) to prohibit public protests if they are satisfied that these are “detrimental” to the quality of life of “those in the locality”. Anyone who fails to comply with the requirements of a PSPO or to violate any prohibition contained in the order is liable to a fine of £1000.

The Court of Appeal dismissed a challenge to one of these PSPOs prohibiting anti-abortion protests in the immediate vicinity of Marie Stopes’ UK West London Centre. The Court concluded that the judge below had been correct to find that the pro-life activists’ activities had a detrimental effect within the meaning of s.59 of the 2014 Act. The Article 8 rights of the women wanting to access the clinic’s abortion procedures had been engaged and outweighed the pro-life activists’ rights under Articles 9, 10 and 11.

Legal and factual background

Chapter 2 of the 2014 Act empowers local authorities to make PSPOs if the two main conditions in section 59 are met.


The first condition is that:

(i) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or

(ii) it is likely that activities will be carried on in a public place within that area and that they will have such an effect

The second condition is that if the effect of the activities is or is likely to be

(i) of a persistent or continuing nature

(ii) is, or is likely to be, such as to make the activities unreasonable, and

(iii) justifies the restrictions imposed by the notice.

Two issues lay at the heart of this appeal:

(i) whether a local authority had the power to make a PSPO where the activity to be regulated impacted only or primarily on the quality of life of occasional visitors to the locality rather than on those who reside or work in the locality or visit it regularly; and

(ii) whether the restrictions imposed by the PSPO were compatible with the rights to freedom of religion, expression and assembly under the European Convention on Human Rights.

The appellants had for many years congregated immediately outside the Marie Stopes clinic to persuade the women visiting it from having abortions. They did this by trying to dissuade them from entering the clinic, handing out leaflets, displaying posters depicting foetuses at various stages of gestation and holding group vigils. Pro-choice activists also protested outside the clinic. The local authority unsuccessfully encouraged the opposing groups to reach a compromise. It launched a public consultation which concluded that the activities outside the clinic were having a detrimental effect on the locality. Witnesses submitted evidence of the activists’ behaviour including:

  • The display of lifelike foetus dolls;
  • Threats that users of the Centre would go to Hell;
  • Referring to users of the Centre as “Mum”.
  • The handing out of rosary beads to users and passers-by;
  • Pursuing users of the Centre with leaflets;
  • Not leaving users with enough room to pass into the Centre;
  • The playing of loud music and chanting from pro-choice activists;
  • The taking of photographs of persons using the clinic;
  • Young children passing by exposed to images of foetuses.

Ealing imposed a PSPO which prohibited all abortion-related protests within a substantial safe zone around the clinic save as to limited protest within a designated area 100 metres away from the clinic entrance.

The judge rejected the appellants’ challenge to the validity of this order.

Arguments before the Court of Appeal

The appellants submitted that the judge had erred in a number of respects, including

(1) holding that the phrase “those in the locality” in s.59(2)(a) of the Act applied to occasional visitors such as women who visited a clinic for abortion procedures;

(2) holding that the Article 8 rights of those using the clinic were engaged;

(3) giving too little weight to the appellants’ rights under Articles 9, 10 and 11 of the Convention, when considering whether the PSPO constituted an interference that was necessary in a democratic society.

(4) giving insufficient consideration to whether the terms of the PSPO could have been formulated in a less restrictive way.

The Court of Appeal’s decision

It was clear from the terms of the Act that Parliament had deliberately decided not to limit the expression “those in the locality”. There was no reason to construe “those in the locality” as narrowly as those who lived and worked in the area. The appellants had relied upon the view of May J in  Summers v London Borough of Richmond Upon Thames [2018] EWHC 782 (Admin), [2018] 1 WLR 4729, at [24], that the expression “those in the locality” in section 59 of the 2014 Act “must be read to include those who regularly visit or work in the locality, in addition to residents”.

But the expression “those in the locality” in s.59 covered not only residents and those who regularly visited or worked in the locality but also others depended on the precise local circumstances. Such a rigid and hard edged limitation as that for which the appellants contended,

would also apparently apply to patients in hospitals and hospices and medical services generally and those visiting such patients, would not only be unworkable in practice in distinguishing regular from irregular visitors but would potentially produce considerable uncertainty as to the legality of a PSPO and is highly unlikely to have been the intention of Parliament.

That interpretation was not consistent with the Home Office’s statutory guidance on PSPOs. Turner J in the court below had found that some of those who visited the clinic had been left with significant emotional and psychological damage which has lasted substantial periods of time due to the protestors’ conduct. The local authority had therefore been correct to interpret the expression “those in the locality” in s.59(2)(a) as capable of embracing occasional visitors and to decide that the women, their family members and supporters visiting the clinic fell within that section.

The appellants also contended that the Article 8 rights of the visitors to the Centre had not been engaged. They submitted, inter alia, that the activities which were the subject of the PSPO were in a public place, and that the activists were doing no more than taking advantage of a public highway. They had not kept any record or publication of what the women visiting the clinic were doing. Finally, they sought to convince the court that there could be no expectation on the part of the service users that they would not engage with those who entered the Centre, as abortion is a controversial topic of general public importance. On the contrary, the expectation was that there would be some engagement by protesters with those seeking to use the services of the Centre.

The Court of Appeal disagreed. A woman’s decision whether to have an abortion is an “intensely personal and sensitive matter” which falls within Article 8. This has been repeatedly confirmed both by local courts and the ECtHR (P v Poland [2012] ECHR 1853). In Re Northern Ireland’s Human Rights Commission’s application for judicial review [2018] UKSC 27[2019] 1 All ER 173 at [6] Lady Hale observed that

for those women who become pregnant, or who are obliged to carry a pregnancy to term, against their will, there can be few greater invasions of their autonomy and bodily integrity.

The protestors’ activities therefore engaged the Article 8 rights of those visiting the clinic both in terms of their right to autonomy in wishing to carry through their decision to have an abortion and their reasonable desire and legitimate expectation that their visit would not receive any more publicity than was inevitably involved in accessing and leaving the clinic across a public space and highway.

As for the appellants’ rights to manifest their religion or beliefs under Article 9, there was no question that these were engaged, and the judge below had not underplayed their significance. The Article 9 rights could not have carried more weight in the balancing exercise than the protestors’ rights under Articles 10 and 11 to which the local authority was required by s.72 to have regard when deciding whether to make the PSPO.

Engagement of the protestors’ Article 9 rights could not have tipped the balance against the making of the PSPO if the local authority had otherwise been justified in making it.

Finally, the CA concluded that the judge had been entitled to find that, on the particular facts of the case, the Article 8 rights of the service users visiting the clinic outweighed the rights of the appellants and other pro-life protestors under Articles 9, 10 and 11, and that the terms of the PSPO were proportionate. Furthermore, the PSPO’s terms were not impermissibly vague or excessive.

Comment

This case shines a light on one of the most contentious issues of our time: the policing of ideas. However much one may disapprove of the activities of the protesters, none of them were actively preventing a legal abortion taking place. Startling children with pictures of foetuses may be in bad taste, but it’s not illegal. Whichever side one stands on the pro-life/pro-choice divide, it’s worth a thought experiment. Would extinction rebellion fit within the criteria for PSPO? What about anti- or pro-Brexit marches, etc?

The Home Office statutory guidance document describes the purpose of PSPOs thus:

Public Spaces Protection Orders are intended to deal with a particular nuisance or problem in a specific area that is detrimental to the local community’s quality of life, by imposing conditions on the use of that area which apply to everyone. They are intended to help ensure that the law- abiding majority can use and enjoy public spaces, safe from anti-social behaviour.

The objective of this legislation is to “put victims first”. In the context of public protests, this means that

In deciding to place restrictions on a particular public space, councils should consider the knock on effects of that decision and ensure that this is a reasonable and proportionate response to incidents of anti-social behaviour in the area. Introducing a blanket ban on a particular activity may simply displace the behaviour and create victims elsewhere.

As the guidance document points out, anti-social behaviour powers should only be exercised with “due regard to issues of proportionality: is the restriction proposed proportionate to the specific harm or nuisance that is being caused?”

The Extinction Rebellion protests which started in April 2019 have continued and extended across central London. Initially, the police issued numerous orders under the Public Order Act 1986 to move the climate protestors to an area near Marble Arch and limit their ability to disrupt transport networks. The process of issuing orders and arresting those who were non-compliant was slow and some commentators questioned why the police were not using force to move the protestors. The police response was that they had “no legal basis to do so”:

These are peaceful protesters; while disruptive their actions are not violent towards police, themselves or other members of the public. We are looking at other tactics such as tighter police cordons, but again that is resource intensive in terms of officer numbers and more often than not it just shifts the protesters to another location nearby, and does not assist in reopening roads. (House of Commons Library Briefing Paper, No. 03658, 2 May 2019 “Protests around Parliament”)

Since the referendum on Britain’s membership of the European Union in 2016 protestors have regularly gathered in and around Parliament Square to demonstrate both in favour and against Brexit. College Green and other parts of this area are governed by specific legislation that governs protest near parliament. But the Metropolitan Police Commander assured the Joint Committee on Human Rights that officers had not engaged in the confrontations with MPs outside parliament because “the criminal threshold had not been reached”.

With regard to the ER protests, Adrian Usher told the JCHR that “the legislation associated with policy protest is quite dated … policing and protest has moved on and …legislation should follow suit”.

Perhaps legislation has moved a little too far, from the prevention of illegal action to the deplatforming of unpopular ideas.

Philip Havers QC and Alasdair Henderson of 1 Crown Office Row acted for the appellants in this case.

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retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment wolves women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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