Article 11

AQA a level law human rights law paper 3

What does Article 11.1 State?

everyone has the right to freedom of peaceful assembly, and to freedom of association with others, including the right to form trade unions for the protection of his interests

There is a positive duty on the state to…

protect the right to freedom of assembly and association: e.g. to protect demonstrators from counter-demonstrators

there is a negative duty on the state to…

not interfere with the right to freedom of assembly and association unless allowed under 11.2

Article 11.2 allows interference if the interference is: (3 things)

• prescribed by law

• necessary in a democratic society

• for a legitimate aim

Key case regarding protests and counter protestors

Beatty v Gillbanks - people could march peacefully and lawfully even though another group raised the possibility of conflict

More recent case example of the state being under a positive obligation to protect the right to freedom of assembly

UMO Llinden v Bulgaria - ECtHR held the measures were aimed at hindering the protests, and the bans were not necessary in a democratic society, as a democratic society should not ban protests and were not proportionate to the aim of national security or public safety.

Case where peaceful protestors can be disbanded without article 11 violation

Cisse v France - no breach as there were genuine concerns over the health of the hunger strikers and the sanitary conditions were totally inadequate

Case to show you do not have the right to assemble wherever you like

Appleby v Uk - The mall was privately owned and the owners refused them to demonstrate. A private land owner can prohibit an assembly as long as there is a suitable alternative.

Case for a demonstration may be allowed even where the rights of others are encroached on

Ollinger v Austria - ECtHR ruled it was disproportionate to ban a demonstration in a cemetery. State must consider the rights of others but a total ban is disproportionate

Case for defining an association

McFeely v UK - an association should be a stable group and set up for a purpose

What has the ECtHR underlined the importance of in relation to joining associations

Protecting individuals from disproportionate penalties for political party membership is vital. Redfearn v UK found a dismissal for BNP affiliation was a disproportionate breach of freedom of association

what will the state consider in seeing if the interference is necessary in a democratic society?

• is the state’s act effective

• is it the least intrusive measure possible

• does it deprive the ‘very essence of the right’

• is it balanced - competing interests of individual and community

what are the 4 legitimate aims?

• in the interests of national security or public safety

• for the prevention of disorder or crime

• for the protection of health and morals

• for the protection of the rights or freedoms of others

What case is important for the legitimate aim of national security/public safety?

Laporte case - HOL held stopping the coaches going to a protest at an airbase is lawful as a breach of the peace was feared. However returning the coaches to London was unlawful as it was not prescribed by law, necessary and was disproportionate action taken

Two cases for protection of health or morals

Cisse v France and Larmela v Finland

Difference between a march and a demonstration

March - moving protest, usually along a pre-planned route
Demonstration - static protest, ‘public assembly’ with 2 or more people in a public place

Laws on organising a march

S.11 POA 1986 - Advance Notice of Marches

Organiser must give written notice to police at least one week before, including date, start time, proposed route, and organiser's name/address - delivered by hand or recorded delivery. Failure to notify = fine up to £1,000 (unless reasonable excuse).

Law on police conditions set on the march

S.12 & 14 Public Order Act

Conditions imposed by Chief Constable, in writing, before the march. During the march, the most senior officer present may give oral instructions. Conditions apply where the officer believes the march will cause serious public disorder, property damage, or community disruption. May relate to duration and number of participants.

What happens if march organiser fails to comply with the conditions?

fined up to £2,500 and/or 3 months prison

Law on banning a march

S.13 Public Order Act

Chief Constable may ban a march for up to 3 months if conditions would not prevent serious public disorder - requires approval from local council and Home Secretary. 'Trespassory assemblies' may also be prohibited; organising or participating is an offence.

Requirement to give notice of a static demonstration

No notice required. S.12 & 14 POA 1986 allows conditions on public assemblies, imposed in advance or at the time.

What laws relate to obstruction of the highway/public road

s.137 of the Highways Act 1980 creates the offence of ‘wilful obstruction of the highway’, gives police power to order removal

Case on assembly on the highway

DPP v Jones - HOL held that a peaceful assembly which did not unreasonably obstruct the highway was not a trespassory assembly.

case on breach of the peace at G20 summit

R (on the application of McClure and Moos) - for the court to decide whether the decision of the police that a breach of the peace was imminent was reasonable. Here, it was.

What law applies to trespassers and under what conditions can the police direct trespassers to leave the land

S.61 of the Criminal Justice and Public Order Act 1994, and when the occupier has already asked them to leave and either: they have damaged the land; they have used threatening, abusive or insulting behaviour to the occupier; or they have 6 or more vehicles on the land.

What law allows police to direct people during a rave to leave

s.63 of the Criminal Justice and Public Order Act 1994, failure to comply is a criminal offence.

Law on aggravated trespass

s.68 of Criminal Justice and Public Order Act 1994, trespasses and does anything intended to have the effect of: Intimidating or deterring someone from engaging in a lawful activity on the land; obstructing that activity; disrupting that activity

Case on aggravated trespass

DPP v Chivers - land included buildings and chaining yourself to a stair railing and gluing yourself to the front door was aggravated trespass

Law on prohibiting trespassory assemblies

S.70 CJPOA 1994

Chief officer may apply to prohibit all trespassory assemblies for up to 4 days if they reasonably believe: the assembly will be held on land without public right of access; without the occupier's permission; and may cause serious community disruption or damage to a site of historical, archaeological or scientific importance.