The Human Rights Act & the Right to Protest

Jessica Leigh and three others were members of a collective called Reclaim These Streets. They planned to hold a vigil in memory of Sarah Everard, who was murdered by a Metropolitan Police officer. However, the police told them it would be unlawful under the Coronavirus Regulations that were in place at the time, which prevented gathering without reasonable excuse. As a result of the police’s advice, the vigil was cancelled.

The Court found that the police should have recognised that a reasonable excuse under the Coronavirus Regulations included the right to protest (and gather) peacefully, as protected by Articles 10 and 11 of the Human Rights Act. The vigil wouldn’t have been unlawful. The police had therefore disproportionately interfered with Reclaim These Streets members’ human rights.

The police attempted to appeal the decision twice but both were refused because there was “no arguable basis [that] the court’s decision was wrong.”

Elliott Cuciurean dug and occupied a tunnel on private land in protest the construction of the HS2 train line. He was convicted of aggravated trespass under Section 68 of the Criminal Justice and Public Order Act 1994. He argued that his conviction was a disproportionate interference with his human rights and relied on the case of DDP v Ziegler, above. However, the Court said the two cases were different because Ziegler involved obstructing the highway, which has a defence of lawful excuse, whereas Cuciurean involved aggravated trespass, which doesn’t have a similar defence.

The court said that when someone is accused of an offence that doesn’t have a defence of lawful excuse, then their human rights related to protesting and the proportionality of restricting those rights do not necessarily have to be considered. It depends on the offence in question. In Elliott’s case, the court said that there was no need to consider whether the conviction was a proportionate interference with human rights because it protects public order and private property and trespassing on private property is not at the “heart” of protest anyway.

This meant Elliott was still convicted.

In March 2021, Cathryn Bolton attended a vigil to mourn Sarah Everard’s death and brought along her son. Police told her she was in breach of the Coronavirus Regulations and gave her a Fixed Penalty Notice. They also told her they would report her to social services for bringing her son with her.

Cathryn pleaded not guilty on the basis that her attendance at the vigil was protected by her Article 10 and 11 of the Human Rights Act. After the case of Leigh v Metropolitan Police (above), which approved the same defence, the prosecution dropped the case against Cathryn.

Karen Reissman was an NHS nurses who organised a socially distanced protect against the UK Government’s proposed 1% pay rise for NHS workers. She was fined £10,000 by Greater Manchester Police for breaching the Coronavirus Regulations which banned gatherings. Patricia Gallagher was also an NHS worker who attended the protest and was arrested by police and fined £200.

Both women sought legal advice from Bindmans LLP, who represented Reclaim These Streets in Leigh v Commissioner of the Metropolitan Police. Greater Manchester Police then accepted that the arrest and fines were unlawful and withdrew them as the police had “misunderstood” the Coronavirus Regulations.

Many of the cases brought to court have focused on what happens when crimes are committed during or as part of the protest and whether convicting people of that crime has to be balanced against their human rights. The courts seem to agree that crimes that involve violent or serious damage are not protected by our Human Rights Act. Similarly, if something is always a crime regardless of whether or not someone has a “lawful excuse” to do it, it won’t automatically be protected by our Human Rights Act (although might be, depending on how the law is written). If, however, something is only a crime if someone doesn’t have a “lawful excuse” to do it, their human rights might be the excuse. As a conviction would interfere with those rights, it should only go ahead if it is proportionate.

Although the Police, Crime, Sentencing and Courts Act was passed in April 2022, many of the provisions that affect protest took effect from 28 June 2022.

The Act makes a number of changes that will make it easier for police to restrict protests. For example, police can impose maximum noise levels on a protest. This will make it harder to run large protests. The Act also extends the area around Parliament where people are not allowed to block cars – making it harder for protests to catch the attention of Parliamentarians.

You can read more about how the Police, Crime, Sentencing and Courts Act affects the right to protest on Liberty’s website.

The Public Order Bill was introduced on 11 May 2022 and reached Committee Stage in the House of Lords on 16 November 2022. This is where members of the House of Lords examine the Bill line-by-line.

In the Bill, the UK Government has attempted to reintroduce some of the more extreme clauses that the House of Lords voted out of the Police, Crime, Sentencing and Courts Act. This includes making “locking on” an offence (i.e. a protestor making themselves difficult to remove by attaching themselves to their surroundings). It would also allow for orders banning particular individuals from joining protests and expand police’s powers of stop and search.

In a briefing to the House of Commons on the Bill, human rights charity Justice said, “The Bill is unlikely to be compliant with the European Convention on Human Rights (“ECHR”), in particular Article 10 ECHR (freedom of expression) and Article 11 ECHR (freedom of assembly and association).”

The Home Secretary, Suella Braverman, however, said, “The police need strengthened and tougher powers to match the rise in self-defeating protest tactics and that’s what the Public Order Bill will do."

The future of protest protections: UK Parliament has been passing increasing restrictive laws on the Right to protest at a time when there are significant protests against the Government and State itself. Last month saw 50 simultaneous protests against the cost-of-living crisis while climate change activists Just Stop Oil recently completed 32 days of continuous action.

As with all rights in the Human Rights Act, rights to protest are about enabling ordinary people to hold those in power to account. With this right seemingly at risk in other areas of law, it is more essential than ever that the foundational protections under our Human Rights Act are not weakened – whether through the Rights Removal Bill or any other manner of reform.