Are some events unprotestable?

The sad news of Her Majesty the Queen Elizabeth II’s passing unsurprisingly induced a very emotional and wideranging response from the British public. Grabbing many of the headlines was the reawakening of the age-old debate regarding the nature and necessity of what some call an anachronistic and undemocratic institution and others call our Royal Family. Those contrasting sentiments manifested publicly, presented an unusual situation in the protest world.

The ECHR

Under the European Convention on Human Rights (ECHR, still currently preserved in the law of England and Wales by the Human Rights Act 1998), Article 10 provides citizens of contracting states the right of freedom of expression. It is through this right that individuals can freely “receive and impart information and ideas without interference by public authority”. However, unlike certain other rights and freedoms found in the ECHR, Article 10 is a qualified right; it is not absolute. This means the right to exercise this freedom “carries with it duties and responsibilities” and so the state retains power to restrict it “as necessary in a democratic society” such as may be “in the interests of national security, territorial integrity or public safety, [or] for the prevention of disorder and crime” (Article 10(2)).

Article 10 in England & Wales

In England and Wales, it is through domestically invoking Article 10 rights that those wishing to partake in peaceful, public demonstrations can do so. Protests that are expansive, well-attended and/or controversial tend to attract a police presence and it is, broadly speaking, the police’s responsibility to monitor and manage the situation to ensure it remains peaceful. In theory, arrests occur where the police have reason to believe a protestor has moved from simply exercising their Article 10 rights to infringing a domestic criminal law and in doing so, fallen foul of the qualifications provided in Article 10(2). It is not the police’s role to stifle free speech.

Whether the wider public agree with the ideas, aims or actions of those protesting is usually part of a secondary conversation, but is not typically something protestors face when in the thick of the action. Clashes between those holding opposing ideas do occur, but rarely are the numbers stacked in favour of non-protestors. Yet, this was he peculiarity seen in the protests around the Queen’s passing. Republican protestors were significantly outnumbered, faced hostilities from those around them and were largely forced to hold their tongue on the matter. Those that did not, faced police intervention. It is this atypical confrontation which gives rise to an interesting question (for lawyers, at least): can prevailing public sentiment move the qualification markers of Article 10? To analyse this, it is first necessary to understand how Article 10 of the ECHR is implemented at macro and micro levels and its scope in this context.

Application of the ECHR in domestic law

The ECHR exists to protect a very broad array of fundamental human rights and contracting states are naturally required to adhere strictly to its provisions. However, the framework through which a contracting state implements the ECHR is not prescribed. While the European Court of Human Rights (ECtHR) retains a supervisory role in ensuring the minimum standard of each right is met, it cedes the legislative ground to national governments, whom it deems are better placed to understand the economic, political and cultural landscape. The thinking being, national governments are therefore also better placed to apply an appropriate framework to protect these agreed rights for its citizens. It is only when the national systems fail to surpass the minimum standard of protection that the ECtHR intervenes.

Scope of Article 10

As stated above, Article 10 of the ECHR outlines the base level of protection to be afforded to individuals to express and receive opinions free from state intervention, subject to certain qualifications. European case law goes beyond the broad definition provided and has sought to define the boundaries with more clarity. Of particular relevance to this discussion are the cases of Handyside v the UK (1979-80) 1 EHRR 737 which discusses, inter alia, whether the popularity of ideas and information shared should affect the protection afforded and Özgür Gündem v Turkey (2001) 31 EHRR 49 which describes the positive duty placed on contracting states to safeguard every person’s enjoyment of the right to freedom of expression, even from each other. Two quotes from each judgment best illustrate this. Handyside (at [49]) explains freedom of expression: “[…] is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.’

The case of Özgür Gündem v Turkey involved a newspaper company whose main office had to close due to the torrent of attacks and abuse it suffered. In its judgment (at [43]), the ECtHR said: “Genuine, effective exercise of this freedom does not depend merely on the state’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in contracting states, the difficulties involved in policing modern societies and the choices which must be made in terms of priorities and resources.” Any domestic framework enacting Article 10 must give careful consideration to ensure that the freedom of expression is not impinged by dissenting views of others and where there is encroachment of Article 10 rights by another individual of section of society, the state must provide sufficient, reasonable protection to prevent this.

So how does this relate back to the republican protestors? To exemplify the issue, it is necessary to choose a case study. A particular case that made the media recently was the arrest of an individual who, during King Charles III’s proclamation in Oxford, asked “Who elected him?” (theguardian.com/uk-news/2022/ sep/11/republican-protesters-arrested-kingcharles- proclamation-events). This drew an angry response from the crowd and the result was his arrest under section 5 of the Public Order Act 1986 (POA 1986). Press reports also discuss charges of breach of the peace in Edinburgh. This article does not discuss those as this is a criminal offence in Scotland, not England and Wales. Additionally, there has been no reports of arrests under breach of the peace outside of Scotland. Section 5(1) POA 1986 is defined as follows: “A person is guilty of an offence if he – (a) uses threatening [or abusive] words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening [or abusive], within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.”

Assuming the words used were, in the circumstances, threatening or abusive, or the behaviour was disorderly, the question left to satisfy the actus reus is whether those present were likely to be caused harassment, alarm or distress. Of course, this is a fact-specific question; abusive words used in a pub on a Saturday evening are less likely to cause such a response than if the same behavior was displayed in a public library. The difficulty in the present case is that it is difficult to imagine that such ordinary language as “who elected him?” could ever be likely to evoke such a response in any context. It must follow then that the national mourning of Queen Elizabeth II left the nation susceptible to such an extreme response – ie those present at King Charles III’s proclamations were extremely vulnerable to being alarmed, harassed or distress. A nationwide example of the eggshell skull principle? Given this man’s arrest, the upshot then must mean then that dissenting words and signs during a time of national mourning are never lawful, even with the protections afforded under Article 10. Furthermore, where those surrounding a dissenting individual show disapproval, the authorities seek to enact the will of the majority, rather than provide the protection afforded under Article 10. This feels like a dangerous precedent to set in a country where freedom of speech is deemed a fundamental human right. It is also seemingly at odds with Handyside and Özgür Gündem.

Conclusion

So, it seems, prevailing public sentiment is, to some degree, capable of moving the markers of when freedom of speech can be exercised – and it could be said it can do so with extreme results. It should be stated the arrests were few in number – and even in the example used, it is yet to work its way through the criminal justice system. However, on the face of it, voicing disagreement with the undemocratic process of proclaiming a new King may be seen by many to be about as low a form of protest one can imagine – and yet, it is sufficient to find yourself in handcuffs. A worrisome prospect. Perhaps some events are unprotestable.

Joseph Hume is an associate with Corker Binning: corkerbinning.com