by David Mead. Oxford and Portland, OR: Hart Publishing. 2010. 530pp. Paper. $90.00/£45.00. ISBN: 9781841136219.
Reviewed by Deidre Bourke, Faculty of Law, University of Auckland. Email: deidre.bourke [at] gmail.com.
This text, by David Mead, provides a comprehensive review, and critical analysis, of the legal framework regulating protest in the United Kingdom today. This is no small task in a field growing ever more complex due to the introduction, in recent years, of a huge array of overlapping criminal justice and anti-terrorism laws. The powers of the police, the range of new criminal sanctions available and rules regulating where and when protest may occur are examined. However Mead’s review extends still further to consider the use of private law measures, such as the tort of nuisance and civil injunctions by companies and other private bodies against protesters. In this way Mead provides an often over-looked aspect of the framework: how the public-private law divide impacts on protesters, both in terms of affecting where people can protest and what sanctions can be imposed on them. Mead pulls together the plethora of domestic legislation and case law affecting the right to protest in order to critically assess how protest rights operate in practice and what balance is currently being struck. A core part of his analysis involves tracing the impact of the Human Rights Act 1998 (‘HRA’) in this environment. In addition to an extensive review of the domestic framework Mead also provides the first detailed analysis of Strasbourg case law on Articles 10 and 11 of the European Convention on Human Rights 1950 (‘ECHR’), dealing with freedom of expression and freedom of assembly and association. Mead’s analysis of the Strasbourg jurisprudence is used to inform his evaluation of the domestic position and provides an interesting point for comparison. So detailed is the review of the ECHR case law many no doubt will find the text invaluable simply for this resource alone.
In the early chapters Mead explains some of the core distinctions made in his analysis. Protests for example are distinguished on the basis of whether they are entirely peaceful, disruptive or obstructive, and whether that disruption is incidentally or inevitably disruptive. The categorisation scheme adopted is that of Fenwick and Phillipson and their framework provides the basis for much of Mead’s analysis. Correspondingly, chapter 5 considers the rights of protesters in relation to peaceful protests where any disruption is incidental or short-lived, while chapter 6 deals with protests intentionally disruptive or obstructive. While such detailed categorisation may seem to overly complicate matters, and will always be blurry at the edges, the value of adopting such a framework becomes immediately clear when the domestic and Strasbourg jurisprudence is examined. The framework assists to disentangle, at least in part, the reasoning of the judges both in the United Kingdom and at [*412] Strasbourg. Mead’s analysis clearly demonstrates for example that obstructive and deliberately disruptive protest has little chance of protection under either the ECHR or HRA, and that restrictions on persons protesting in such a manner will inevitably be seen as both a justified limit on the protesters’ rights, and as proportionate. Interestingly however he notes that there appears to be increasing acceptance, at Strasbourgh, of incidentally disruptive protests, with the court more clearly starting to differentiate between simple disruption and actual disorder. This softening up in approach reflects clearer judicial recognition of the important role protest plays in a liberal democracy, and acceptance that to be an effective right, protests must be allowed to annoy or disrupt to at least a degree.
Mead distinguishes the approach at Strasbough from that in the United Kingdom where the courts are inconsistent even in relation to peaceful protest, and no clear principles have yet started to emerge. Indeed Mead notes instances where all protest, even peaceful in nature was banned, even where only a limited number of individuals had caused any harassment such as in UNIVERSITY OF OXFORD v. BROUGHTON (2008) and another instance where it was held legal to hold protesters in a cordon for several hours without suspicion they done, or planned to do, any wrong (AUSTIN v. COMMISSIONER OF POLICE (2009)). He also cites a host of legislation now in place that hampers peaceful protest even where that protest causes little or no disruption, to name just a few: s132 – 138 of the Serious Organised Crime and Police Act 2005 (SOCPA) which requires prior authorisation of all protest near Parliament and a range of other public buildings and sites; s321 of the Communications Act 2003 banning all political advertising; s14 Public Order Act 1986 allowing police to impose conditions on assemblies of as few as two persons; and s61 of the Criminal Justice and Public Order Act 1994 (CJPOA) which allows police to act as long as they “reasonably believe” an occupier has taken reasonable steps to ask a person to leave, even where damage caused is minimal, or only caused by a single protester.
Mead contends that in the United Kingdom protesters are often viewed as ‘likely lawbreakers’, to the extent that practices such as kettling have become standard rather than measures of last resort.
Mead is concerned about the potential chilling effect all these laws and policies have on protest and protesters and the text essentially argues that a far more expansive degree of rights protection is needed or the danger is that even peaceful protest will have effectively been stamped out as a legitimate tactic for social movements. As with many laws introduced under urgency and as a reaction to highly emotive issues, Mead’s concern is that the large array of very broadly worded legislation aimed at preventing terrorism is inevitably being used in circumstances other than originally intended. Mead argues that the mere presence of such legislation often in turn begins to colour of the minds of agencies, especially police.
Many may disagree with the highly liberal stance taken by Mead regarding the right to protest in the light of the terrorist attacks of the past decade. The [*413] United Kingdom has also seen the emergence of a number of direct action type campaigns by animal rights activists and environmental groups over issues such as genetic engineering and animal research. Mead concedes that police face a range of new challenges in this environment and that allowing protesters a greater degree of freedom would make their job more difficult. However, he argues that it is crucial to separate out truly terrorist activities from simple criminal offending. In not doing so the result is that in practice a single action of a protester is now able to be dealt with under sometimes three or four different offences, and that even relatively minor acts, certainly nothing like ‘terrorist’ in nature, are falling within their ambit.
It is at this juncture Mead’s detailed study of the Strasbourg jurisprudence, with its rights-centred approach, provides a striking point of comparison. While human-rights based arguments are seldom considered in the lower level courts in the United Kingdom, the Strasbourg case law demonstrates the difference such an approach could make to the balance struck,shifting the focus firmly back to that of the individual and of their actions and rights. For example Mead believes that following BUKHA and ZILIBERBERG, it is likely a single person protesting at a designated site under SOCPA, who remains peaceful despite not giving the required notice, should be tolerated, and that the relevant penalties, being far more severe than those in ZILIBERBERG would be viewed as disproportionate.
Mead argues that the HRA has been far under utilised as a potential conduit for bringing Strasbourg principles closer to home. In particular Mead believes that section 3 of the HRA requiring legislation to be read compatibly with rights where possible, could act as a counterbalance to deal with some of the more broadly worded and subjective provisions now in place.
Mead’s chapter on the Strasbourg case law is one of the most detailed in the book, and draws heavily on an extensive content study he undertook in 2007. His discussion of the Strasbourg jurisprudence in chapter 3 is comprehensive. The material in this section is not just catalogued and reviewed, trends and conflicting cases are highlighted, and judicial reasoning thoroughly critiqued. The jurisprudence on Article 10 and 11 of the ECHR guaranteeing freedom of expression and assembly is assessed and each of the specific tests used by the court examined. What constitutes a ‘lawful interference with the right’? What does it mean to say something is ‘prescribed by law’? What kinds of things have been accepted or rejected as ‘legitimate aims’ or as ‘necessary in a democratic society’? When are States deferred to -- what is the ‘margin of appreciation’ in practice? Key cases such as BUKTA, ZILIBERBERG, CHORHERR, PATYI and OLLINGER are picked out and analysed in detail. Mead also examines how specific factors such as the nature of the interference with the right (a punishment, an advance ban, a permitting and authorisation scheme), the type of protest, and the actions of third parties or presence of counter demonstrations are dealt with by the court.
Mead’s examination of the Strasbourgh jurisprudence constitutes the first [*414] extensive analysis of this material and as such will be an invaluable resource to anyone with an interest, theoretical or practical, in this area.
Another relatively new area traversed by Mead is his study and focus on ‘the locus of protest’. The changing public-private law divide and its impact on protest is assessed. Mead maps changes in land ownership, the emergence of quasi-public bodies, privately run estates, malls and utilities. Mead feels the traditional presumption in favour of private property rights needs reassessment and balancing if the right to protest is to be meaningful in practice. On top of these changes the introduction of a wide range of new rules and offences has also had a negative impact on protest rights. For example aggravated trespass under the CJPOA now criminalises simply being on another’s land, and the new powers under SOCPA to designate areas where rights to assembly and protest are highly restricted means a much larger array of restrictions are in place today than ever before. Mead argues that the focus on controlling location rather than the behaviour of protesters or type of protest is misdirected but has in practice placed severe limitations on how, when and where protests can take place.
An expanding private sector is not only more able to affect the location of protest, but is taking a bigger role in controlling and preventing protest. Chapter 8 examines the range of private law remedies companies and other bodies are using against protesters. Mead reviews the range of actions available; such as defamation, trespass, nuisance and harassment and a range of economic torts; conspiracy, procuring or inducing a breach of contract. Civil injunctions are increasingly used to obtain court orders preventing groups from protesting outside companies and even universities. Mead points out that in this arena, governed by private law principles primarily concerned to protect property rights, human-rights issues are seldom central to determinations. The standard of proof is also set at a far lower level, even though the potential level of liability protesters face in dealing with large corporations using private law actions can be significant. Although the term is not used in the text, many of these cases fall squarely into what can be called the ‘Strategic Lawsuits Against Public Participation’ (‘SLAPP’) lawsuit category, a corporate tactic drawing increasing criticism globally.
While sometimes over-whelming in its detail, this book is an invaluable resource, offering an insightful analysis of what is a huge array of material and issues. This book will appeal to a wide range of readers, from academics to legal practitioners, to activists and campaigners operating at the cold face.
Fenwick, H. and G. Phillipson. (2001)”Direct Action, Convention Values and the Human Rights Act” LEGAL STUDIES Vol. 25/535.
Mead, D. 2007. “The right to peaceful protest under the European Convention on Human Rights – a content study of Strasbough case law.” EUROPEAN HUMAN RIGHTS LAW REVIEW 345-384. [*415]
AUSTIN v. COMMISSIONER OF POLICE  UKHL 5 (28 January 2009).
BUKTA v. HUNGARY  ECHR 25691/04 (17 July 2007)
CHORHERR v. AUSTRIA  ECHR 13308/87 (25 August 1993).
OLLINGER v. AUSTRIA  48 EHRR 38.
PATYI v. HUNGARY  ECHR 5529/05 (7 October 2008).
UNIVERSITY OF OXFORD v. BROUGHTON  EWHC 75 (QB).
ZILIBERBERG v. MOLDOVA  ECHR 61821/00 (1 February 2005).
© Copyright 2011 by the author, Deidre Bourke.