Eborn Legal Review – edited by Andrew Eborn
Punishing protestors – Should freedom of speech be cancelled at a time of mourning?
Grief is the price we pay for love. Is loss of freedom of speech the price we pay for grief?
- Queen’s funeral estimated 4 billion audience – most watched event in broadcast history
- Thousands made pilgrimage to pay respect and proclaim the new King
- Protestors – including those who oppose the monarchy – arrested
- Concerns expressed about loss of freedom of speech
- Does Police, Crime, Sentencing and Courts Act 2022 give police too much power?
The Queen has been a constant presence in our lives. Our longest serving monarch from 21st April 1926 to 8th September 2022 – 70 years 214 days (25,782 days).
During her reign there were 7 Popes from Pope Pius XII to Pope Francis, 14 US Presidents from Harry Truman to Joe Biden ,15 UK Prime Ministers from Winston Churchill to Liz Truss (Harold Wilson twice) and 7 James Bonds (including David Niven in Casino Royale).
The outpouring of grief is understandable. She was the world’s Granny.
People queued around the clock to pay their respects to The Queen Lying-in-State in Westminster Hall. At its longest the queue was more than 10 miles long with a wait time of over 24 hours – The Elizabeth Line / QEII.
The Queen’s Coronation on 2nd June 1953 was the first to be televised and is hailed as the dawn of the television age. It has been suggested that the broadcast of The Queen’s funeral on 19th September attracted an audience of more than 4 billion worldwide.
Over the 10 day mourning period, thousands exercised their right to gather to pay their respects and to proclaim the new King.
A number of protestors – including those who oppose the monarchy – were arrested.
Lèse-majesté (to do wrong to majesty) is an offence in some countries. Under Article 112 of Thailand’s Criminal Code it is an offence punishable by up to 10 years in prison to defame, insult or threaten the monarch of Thailand.
UK law, however, does not protect the monarchy from criticism.
Concerns have been expressed, including by the campaign group Liberty, about whether the right to protest – among people who oppose the monarchy – is being curtailed.
22 year old who shouted out “sick old man” to Prince Andrew as the Royal family marched from Palace of Holyrood to St Giles Cathedral on Royal mile in Edinburgh was arrested for breach of the peace.
A woman holding a sign with the words “abolish the monarchy” during a proclamation ceremony for the King Charles III in Edinburgh was also arrested and charged with a breach of the peace.
Symon Hill was arrested after shouting “who elected him?” during a proclamation ceremony in Oxford. He said he was later “de-arrested” by Thames Valley Police.
Barrister Paul Powlesland tweeted that he had been told by a police officer that he would be arrested if he wrote ‘Not My King’ on a blank piece of paper.
The video of his encounter with the police officer went viral leading to Deputy Assistant Commissioner, Stuart Cundy, tweeting: “The public absolutely have a right to protest and we have been making this clear to all officers involved in the extraordinary policing operation currently in place.”
The ability to voice dissent is vital to a functioning democracy.
Everyone in the UK has the right to protest peacefully.
The rights to freedom of expression and freedom of assembly are set out in the European Convention on Human Rights, incorporated into British law in 1998 in the Human Rights Act.
There are, however, limits to the exercise of these human rights including in the interests of national security or public safety and for the protection of the reputation or rights of others.
Protesters may be arrested under section 5 of Public Order Act 1986 which provides that a person is guilty of an offence if he uses “threatening or abusive words or behaviour or displays any writing, sign or other visible representation which is threatening within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”
In the year to March 2022, over 470,000 section 5 public order offences were recorded in England and Wales. This was a 36% increase on the number recorded in the pre-pandemic year to March 2020.
Protesters could also be arrested for “breach of the peace” where behaviour has caused, or may cause, harm to another person or their property.
In Scotland, a breach of the peace is a criminal offence and includes any conduct that could cause alarm to ordinary people and threaten serious disturbance to the community.
There were 3,137 breach of the peace offences recorded in Scotland in 2020/21.
Protests which are limited, targeted and peaceful have, however, been held to be lawful.
In the Ziegler case the Supreme Court ruled that demonstrators who had blocked a road at a military arms show should not have been convicted of obstruction under s137 Highways Act 1980 as their actions fell within the lawful authority or excuse defence as the protest was temporary and peaceful.
The Ziegler ruling led to the overturning of some convictions of Extinction Rebellion protestors. This in turn led to a call for more powers to control protests.
The new Police, Crime, Sentencing and Courts Act 2022 received Royal Assent on 28th April 2022. The Act gives more power to the police to restrict protests.
Under section 78 it is an offence to intentionally or recklessly cause public nuisance where an act creates a risk of, or causes, serious harm to the public or a section of the public, or obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large. “Serious harm” is defined to include “serious distress, serious annoyance, serious inconvenience or serious loss of amenity”.
The offence is punishable by imprisonment for a term not exceeding 10 years, a fine or both.
The government has maintained that the new measures are necessary to combat “highly disruptive and sometimes incredibly dangerous” protests by groups such as Extinction Rebellion which have been “a drain on public funds”.
The police have a duty to protect people’s right to protest as much as they have a duty to facilitate people’s right to express support, sorrow or pay their respects. There is a balance between the duty to maintain the peace and the rights of protestors.
As Evelyn Beatrice Hall pointed out in 1906 “I disapprove of what you say but I will defend to the death your right to say it”.
Having said farewell to our Queen we should not say farewell to our freedom of speech.
ANDREW EBORN – RIGHTING WRONGS
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