The final chapter of the book — on liberty and the constitution — closes with an examination of freedom of assembly. The year 2012 has seen a series of cases decided on this topic. None has transformed the law, but several are worthy of note.
In the section on common law powers and breach of the peace (pp 823-31) we include an extract from Austin in the House of Lords (pp 827-31) and we note that the claimant, who had been unsuccessful in the Lords, had taken her case to the ECtHR in Strasbourg. Well, she lost there as well, the Grand Chamber ruling in March 2012 that the infamous police “kettling” operation at Oxford Circus in May 2001 did not breach Article 5 ECHR. Agreeing with the House of Lords, the ECtHR held that the particular facts of the case disclosed no “deprivation of liberty” within the meaning of Art 5. Accordingly, the Court did not consider any question of justification (see para 67 of the Court’s judgment). For a penetrating critique of the ECtHR’s judgment, see this excellent blog post by David Mead.
At p 831 we note that the decision[s] in Austin do not mean that kettling will always be a lawful police tactic. That must be right: but the only case we could cite as an example of kettling being ruled unlawful (Moos and McClure) has since been overturned on appeal. In January of this year the Court of Appeal ruled, contrary to the judgment of the lower court, that the Metropolitan Police’s use of kettling with regard to protests in the City of London in 2009 were not unlawful (see R (McClure and Moos) v MPC  EWCA Civ 12). The Court of Appeal had the following to say (at para 94):
We have concluded that a decision to contain [i.e. to kettle] a substantial crowd of demonstrators, whose behaviour, though at times unruly and somewhat violent, did not of itself justify containment, was justifiable on the ground that containment was the least drastic way of preventing what the police officer responsible for the decision reasonably apprehended would otherwise be imminent and serious breaches of the peace …
The Court accepted that kettling should not be undertaken “unless it was absolutely necessary” but ruled none the less that it may be adopted where it is reasonably believed that a breach of the peace is imminent, that there are no less intrusive means of crowd control that will prevent the breach of the peace, and where it is otherwise reasonable and proportionate (para 95).
The McClure and Moos case arose out of policing in London on the same day as Ian Tomlinson was killed after having been assaulted by a police officer (his death is noted at p 831 of the book). The officer in question was tried for manslaughter but was acquitted by the jury in July 2012.
Finally on common law powers and breach of the peace, to be noted is the recent first-instance decision of the Divisional Court in R (Hicks and others) v MPC  EWHC 1947 (Admin). This case concerned a series of arrests and other police actions taken in Greater London on the day of the Royal Wedding (29 April 2011). The campaign group Republic organised a “Not the Royal Wedding” alternative event on that day, which took place at Red Lion Square. Other groups were also suspected by the police of seeking to hold protests: a key issue for the police was that such protests and alternative events would not be permitted to disrupt the Royal Wedding. A central issue in the case was whether the Metropolitan Police operated a policy (or a practice on the ground) of equating “intention to protest” in London on the day in question with “intention to cause unlawful disruption”, thereby adopting an impermissibly low threshold of tolerance for lawful protest, resulting in a series of unlawful arrests. The court (Richards LJ and Openshaw J) found that there had been no such policy (or practice) and that the particular arrests and other police activity complained of in the case were not, on the facts, unlawful. Other arrests on the day in question, not part of the Hicks and others claims, had been recognised by the police as having been unlawful and were settled with out of court compensation agreements. At least some of those arrests held in Hicks and others to have been lawful seem to stretch the concept of the “imminence” of a breach of the peace quite some distance. The court found them to be within the limits of the law as set out in Laporte (see pp 824-7 of the book), but in at least some instances the application of Laporte to the facts may strike some readers as questionable.
There is one last case from 2012 to note on freedom of assembly. This case does not concern common law powers and breach of the peace, but the extent of the right to assemble on the highway. This matter is considered at pp 836-42 of the book, where DPP v Jones and Hall v Mayor of London are discussed. To these cases we must now add City of London v Samede  EWCA Civ 160. In this case the Court of Appeal upheld the lawfulness of orders made by a lower court the effect of which was to break up the camp that had been set up outside St Paul’s Cathedral in the City of London from October 2011 until February 2012. This camp was associated with the Occupy movement that had seen similar camps set up in cities across the world (notably in the US). As in Hall, the judgment in Samede sought to set down something of the limits of the right to use the highway as a location for sustained public protest. At para 49 the Court ruled that, notwithstanding that the protestors’ rights under Articles 10 and 11 ECHR are undoubtedly engaged,
it is very difficult to see how they could ever prevail against the will of the landowner, when they continuously and exclusively occupying public land, breaching not just the owner’s property rights … but significantly interfering with the public and Convention rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely.