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Direct action, Convention values and the Human Rights Act

Published online by Cambridge University Press:  02 January 2018

Helen Fenwick  and
Gavin Phillipson
Helen Fenwick
Affiliation:
University of Durham
Gavin Phillipson
Affiliation:
University of Durham
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Abstract

The direct action form of protest is becoming an increasingly significant form of political expression. This paper considers such protest in relation to the guarantees of free expression and peaceful assembly under arts 10 and 11 of the European Convention on Human Rights, now binding on United Kingdom public authorities under the Human Rights Act 1998. Its aim is to set out a framework of principle which would guide and underpin judicial approaches to the application of the Convention to domestic criminal law aimed at such protest, specifically ss 68 and 69 of the Criminal Justice and Public Order Act 1994. It argues that, because of the deficiencies of the Strasbourg case law in this area, an activist judicial stance, one reliant on underlying Convention values, will be required if there is to be any significant change to the traditional, illiberal domestic approach to direct action.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 4 , November 2001 , pp. 535 - 568
Copyright
Copyright © Society of Legal Scholars 2001

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References

1 See ‘Labour's tough tactics to halt fuel protest’ Observer, 5 November 2000.

2. The Freight Transport Association said in a statement: ‘Tankers have been followed by protesters and required to return to base, and drivers are being subjected to substantial personal pressure. The reconstructions of the nation's supply chain cannot happen while protesters prevent tanker drivers from going about their lawful business.’‘Britain Comes to a Standstill’ Daily Telegraph, 14 September 2000.

3. The Freight Transport Association, in a press release issued on 14 September 2000 noted: ‘The UK supply chain was on the brink of a massive crisis. Deliveries of food, medical supplies, animal feed, dairy products and everything else were seriously at risk’: http://www.freighttaxes.compress.120.00.htm.

4. Petrol supplies at most garages ran out within a few days, so that motorists unable to obtain petrol were unable to use their cars for commuting and social purposes.

5. Some social workers, health visitors and care workers, who had run out of petrol, were unable to visit their clients.

6. The Health Service was placed on a red alert on 14 September. While ambulances were able to obtain supplies of petrol, increasing numbers of doctors, nurses and support staff were unable to get to work.

7. Bus services were restricted in many parts of the country due to shortages of diesel.

8. As well, of course, as the freedom of the tanker drivers.

9. HRA, s 6(1). Article 10 of the ECHR provides for the right to freedom of expression: art 11 for the right to freedom of peaceful assembly and association. The second paragraph of each contains exceptions to the primary right: see n 111 below.

10. See nn 21, 23, 28 and 29 and accompanying text below.

11. See text ton 41ff below.

12. See Steel v UK (1998) 28 EHRR 603 and Hashman and Harrup v UK (1999) 30 EHRR 241, both discussed below.

13. Since the main concern of this paper is the impact of the ECHR on domestic law governing this area, the discussion is confined to legal theory relevant to the ECHR; however, the authors make no implication that perspectives from sociology and political theory have no role in play in this area.

14. This paper does not address the applicability of this argument to strikes, which may involve protest but which, since they involve the withdrawal of one's own labour rather than the disruption of the actions of others, arguably raise somewhat different issues.

15. Specifically, ss 63 and 68–71.

16. (1996) Times, 14 August, Transcript, Smith Bernal.

17. Case C0/3496/97, judgment 4 March 1998, Transcript, Smith Bernal, noted Mead (1998) Crim LR 870.

18. Namely, a note by Mead, n 17 above.

19. Winder was reported in The Times only (n 16 above): Capon not at all.

20. The phrase is taken from G Monbiot (1997) TLS, 8 March.

21. See generally Jordan, G ‘Politics without Parties: a Growing Trend?’ (1998) 51(3) Parliamentary Affairs 314.CrossRefGoogle Scholar

22. See Bryant, B Twyford Down: roads, campaigning and environmental law (London: E & FN Spon, 1996)Google Scholar; Doherty, B, ‘Opposition to Road Building’ (1998) 5 l(3) Parliamentary Affairs 370 CrossRefGoogle Scholar; Green Party Election Manifesto ‘Roads to Nowhere’ (1997) Transport Section.

23. This protest attracted media attention at various points in the late 1990s and in early 2001: see n 49 below. For general discussion of the protest tactics of the animal rights movement, see Gamer, R ‘Defending Animal Rights’ (1998) 51(3) Parliamentary Affairs 458.Google Scholar

24. See McLeod, R ‘Calf Exports at Brightlingsea’ (1998) 51(3) Parliamentary Affairs 345 CrossRefGoogle Scholar.

25. The Conservative party never won a majority of the popular vote in the General Elections of 1979, 1983, 1987 and 1992 (for the figures, see Loveland, I Constitutional Law: A Critical Introduction (London: Butterworths, 2nd edn, 2000) at p 205)Google Scholar. This inability of Parliament arose at different times both from the domination of Parliament by the large Conservative majorities of the Thatcher years and, later, the close rapprochement between Conservative and Labour parties on many aspects of policy, particularly policing and public order: see Fenwick, H Civil Rights: New Labour, Freedom and the Human Rights Act (London: Pearson, 2000) esp pp 10–11.Google Scholar

26. Legislation Against Terrorism: A Consultation Paper (1998) Cm 4178.

27. By using the rubric ‘terrorist’ to denote the groups to be targeted, it sought to deflect the opposition which would have arisen had the terrorism offences merely been used overtly as a means of curbing the activities of environmental activists and the like, under a new public order Act. See further, Fenwick, n 25 above, ch 3, and pp 113–115.

28. Section 41 of what is now the Criminal Justice and Police Act 2001 allows a constable to give a direction to protestors, inter alia, to leave the scene where they are outside or in the vicinity of a dwelling and the constable reasonably believes: (a) that they are seeking to persuade the person living at the dwelling not to do something he or she is entitled to do or to do something he or she is not under any obligation to do; and (b) that the presence of the protestor(s) is likely to result in causing harassment, alarm or distress to the victim. Disobedience to an order is an (arrestable) offence.

29. See the Newbury bypass website at http://geocities.com/newburybypass/index.html; Reports of Protests at Newbury Daily Telegraph, 11 January and 30 April 1999; the Greenpeace website at http://greenPeace.org.uk/. Direct action protests are likely to be deployed against the Hastings bypass throughout 2001.

30. See eg ‘What drives our anger’ (Leader) Daily Telegraph, 14 September 2000.

31. The then Conservative leader, William Hague, notoriously referred to the protestors as ‘fine, upstanding citizens’: n 2 above. By 14 September, when the country was facing massive disruption, he finally urged the protestors, whom he said had made ‘a powerful point’ to call off their action: ibid.

32. See generally, Feldman, D ‘The Human Rights Act 1998 and constitutional principles’ (1999) 19 LS 165.Google Scholar

33. HRA, s 3(1).

34. HRA, s 7.

35. HRA, s 6(1): ‘It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights.’

36. The courts are specifically included in the definition of ‘public authority’ (s 6(3)(a) HRA) and the police clearly fall within the general definition.

37. Only ‘public authorities’ are bound by the ECHR rights under s 6(1) HRA and proceedings for breach of the rights under s 7(1)(a) may only be taken against public authorities. However, s 3(1) HRA also requires that all statutes be interpreted compatibly with the ECHR rights, where possible, and this will include those governing relations between private parties (as confirmed in Wilson v First County Trust Limited (2001) 3 WLR 42); the Act will probably also have some indirect effect upon common law governing relations between private parties, but nearly all commentators agree that the Act will not make the rights directly justiciable against private actors: see eg Hunt, M ‘The Horizontal Effect of the Human Rights Act’ (1998) PL 423 at 442Google Scholar; Phillipson, G ‘The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?’ (1999) 62(6) MLR 824 at 826-828CrossRefGoogle Scholar; Buxton, LJ ‘The Human Rights Act and Private Law’ (2000) 116 LQR 48 Google Scholar. For a contrary view, see Wade, H W R ‘Horizons of Horizontality’ (2000) 116 LQR 217.Google Scholar

38. Allegations were made that the fuel companies themselves appeared to sympathise with the campaign and possibly colluded with it in some instances; it was clearly in their commercial interests to do so since a reduction in the tax charged on fuel would enable them to increase prices and thus increase their profits.

39. In this respect, it bears some similarity with anti-GM direct action protests, which likewise formed part of a general campaign that enjoyed widespread public and press support.

40. ‘Those who do not have the capability or resources to exercise expression through the conventional media’: Bevan, V T ‘Protest and Public Disorder’ (1979) PL 163 at 187.Google Scholar

41. The action of green campaigners at the recent summit on climate change in November 2000 in the Hague, in building a ring of sandbags around the city to symbolise the threat of rising sea levels had no disruptive effect upon the summit and was not intended to.

42. See the discussion of the legitimacy of civil disobedience in Rawls, J A Theory of Justice (Oxford: Oxford University Press, 1973) ch 7Google Scholar; Finnis, J Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) p 359ffGoogle Scholar; Dworkin, R Taking Rights Seriously (London: Duckworths, 1978) chs 7 and 8Google ScholarPubMed.

43. Article 11 protects only freedom of ‘peaceful’ assembly. Where the right under art 10 is also at stake, ‘this restriction should probably also be read into Article 10… in order to ensure the consistency and coherence of the two Articles’: Fenwick, H ‘The Right to Protest, the Human Rights Act and the Margin of Appreciation’ (1999) 62(4) MLR 491 at 497.CrossRefGoogle Scholar

44. The discussion also brings in the linked value of freedom of assembly: see text to nn 53, 63 and 64 below. For Strasbourg's approach to the interrelationship between arts 10 and 11, see text to nn 116 and 117 below. For a useful general discussion of justifications for freedom of expression, see Barendt, E Freedom of speech (Oxford: Oxford University Press, 1987) ch 1.Google Scholar

45. See Mill's, J S ‘On Liberty’ in Cowling, M (ed) Selected Writings of John Stuart Mill (Cambridge, New York: CUP, 1968) p 121 Google Scholar; for discussion see Greenwalt, K ‘Free Speech Justifications’ (1989) 89 Col LR 119 at 130–141.CrossRefGoogle Scholar

46. The argument in essence is that that since citizens cannot participate fully in a democracy unless they have a reasonable understanding of political issues, open debate on such matters is essential to ensure the proper working of a democracy. See eg Meiklejohn ‘The First Amendment is an Absolute’ (1961) Sup Ct Rev 245 and Political Freedom (1960) esp pp 115–124.

47. The thesis is that the freedom to engage in the free expression and reception of ideas and opinions in various media is essential to human development. See Emerson, C ‘Towards a General Theory of the First Amendment’ (1963) 72 Yale LJ 877 at 879–880CrossRefGoogle Scholar; M Redish Freedom of Expression (Indianapolis: Michie Co, 1984) pp 20–30; K Greenwalt, n 45 above, at 143–145.

48. The basic proposition is that matters of substantive moral choice must be left to the individual (subject, of course, to his duty to respect the basic rights of others); therefore the state offends against human dignity, or treats certain citizens with contempt, if the coercive powers of the law are used to enforce the moral convictions of some upon others by content- based restrictions upon speech. See generally Dworkin, R ‘Do We Have a Right to Pornography?’ in A Matter of Principle (Oxford: Clarendon, 1985)Google Scholar; Rawls, n 42 above; Scanlon, T ‘A Theory of Freedom of Expression’ (1972) 1 Phil and Pub Aff 216.Google Scholar

49. Direct action protest may indirectly generate debate and scrutiny of the issues it raises - in the media and sometimes in the form of official inquiries. The use of intensive direct action at Huntingdon Life Sciences against the use of animals in medical research in January 2001 provides an example of the effect of such action in terms of re-igniting serious debate on aspects of the issue: see eg (2001) Guardian, 16 January at 7 and 22 January at 5; Radio 4's World At One 15 January 2001; and two lengthy Channel 4 documentaries in the same week. See further http://www.huntingdon.com; http://www.vivisinfo.org/HLS.html; http://www.freezone.co.uk/liberationmag/huntingex.htm.

50. Barendt, E ‘Freedom of Assembly’ in Beatson, and Cripps, (eds) Freedom of Expression and Freedom of Information (Oxford: Clarendon, 2000) p 165.Google Scholar

51. Barendt has described it as ‘the most influential theory in the development of twentieth century free speech law’: n 44 above, p 23. One of the fundamental aims of the ECHR is to uphold democratic values: where such values are perceived as being especially at stake the margin of appreciation conceded to the state (see below) has tended to be narrow. See eg the comments of the court in Dudgeon v UK (1981) A 45, para 53 and Socialist Parry v Turkey (1999) 27 EHRR 5 1 as to the need for pluralism and tolerance in a democracy. See Harris, D J, O'Boyle, K and Warbrick, C Law of the European Convention on Human Rights (London: Butterworths, 1995) pp 397 and 414.Google Scholar

52. Lingens v Austria (1986) A 103, para 42.

53. NAACP v Alubuma 357 US 449 (1958) at 460.

54. Lehideux v France (1998) 5 BHRC 548, para 53. In Socialist Party and ors v Turkey (1999) 27 EHRR 51 it was held that the ECHR required toleration of diverse political programmes other than those which call for ‘the use of violence, an uprising or any other form of rejection of democratic principles’: (paras 4647). See the similar reasoning employed in Kuhnen v FRG 56 DR 205 (1988).

55. The court has found that ‘Any interpretation of the [Convention] rights and freedoms … has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society’: United Communist Party of Turkey v Turkey (1998) RJD 1998-1, No 62, para 45.

56. The preamble to the ECHR notes that the European countries which framed the Convention had ‘a common heritage of… the rule of law’ . Under the Convention, restrictions upon those rights which are not absolute must be ‘prescribed by’ or ‘in accordance with the law’ . For particular comments on the rule of law see Klass (1978) A 28, para 55; Sunday Times v United Kingdom (1979) A 30, joint dissenting Opinion, para 7.

57. Sherr, A Freedom of Protest, Public Order and the Law (Oxford: Oxford University Press, 1989) p 14.Google Scholar

58. For example, it probably would be possible for two observers with radically opposed political positions on the importance of ‘green issues’ generally, nevertheless to agree that a campaign directed against the decision of President Bush to withdraw the United States from the Kyoto Treaty on Climate Change engaged a more important issue than a local campaign against a new bypass outside a small town. This would be so both because the objects of the particular campaigns cannot seriously be said to be of equivalent importance: one concerns possible effects upon the entire world population, the other only the few thousand inhabitants of the particular town, and while both have significance for the wider causes they relate to, again the extent of this significance also clearly is unequal.

59. In the case of road-building, the extent to which the outcome may be said to represent an application of the democratic process is debatable, but there is provision for it. Under s 258 of the Highways Act 1980, objections may be made by those directly and indirectly affected, and usually a Public Inquiry will be arranged and conducted by an ‘independent’ inspector - a civil servant in the Department of Transport - who then makes a recommendation to the Secretary of State.

60. As in the case of the fuel protest itself the Conservative Party avowedly offers a more ‘pro-motorist’ set of policies than Labour. Its manifesto for the June 2001 General Election offered a substantial - 6p per litre - cut in the price of petrol.

61. See Steel v UK (1998) 28 EHRR 603 and Hashman and Harrup v UK (1999) 30 EHRR 24 1.

62. 69 Bverfge 315, 343–347 (1985).

63. Barendt, n 50 above, p 15.

64. As Barendt (ibid) points out, in relation to the German Brokdogcase, freedom of assembly ‘enables people, especially minorities, to participate in the political process. Participation rights are not exhausted by membership of political parties… the exercise of the right enables protesters to express their personalities by their physical presence…’

65. Karst ‘Equality as a Central Principle in the First Amendment’ 43 U Chi LR at 20, 43.

66. See generally, Dworkin, n 48 above; Scanlon, n 48 above.

67. See Tushnet, M ‘An Essay on Rights’ (1984) 62(8) Texas LR.Google Scholar

68. See Socialist Parry and ors v Turkey (1999) 27 EHRR 51, paras 41, 47 and 50, in which the court linked the guarantees of assembly, expression and association together.

69. See Otto Preminger Institute v Austria (1994) 19 EHRR 34, para 49.

70. In News Verlags v Austria (2000) No 31457/96, the court, in finding that art 10 ECHR was engaged by an interference with choice even where the expression had no ‘information value’, pointed out that: ‘the prohibition… limited the applicant company's choice as to… form.’

71. Protection for many personal choices is afforded by art 8 ECHR; in Dudgeon (1982) 4 EHRR 149, the court relied on the circumscription of choice imposed upon the applicant by the very existence of the legislation in question in finding that ‘particularly serious reasons [must exist] before interferences on the part of the authorities can be legitimate for the purpose of paragraph 2’ (para 49). See also Burghartz v Switzerland (1994) A 280-B: art 11 reflects the value of individual choice outside the clearly private sphere in protecting freedom of association.

72. Handyside v UK (1976) 1 EHRR 737, para 49.

73. Barendt, n 44 above, pp 15–16.

74. In Anderson v UK (1998) EHRLR218, the European Commission found that art 11 ECHR does not cover assembly for purely social purposes. However, a different finding could be made at Strasbourg in future since the court is not bound by its own or the Commission's findings. It could also be made in the domestic courts since the Strasbourg jurisprudence is not binding under s 2 HRA.

75. Cossey v UK (1990) A 184, para 37 (emphasis added).

76. For these purposes we include imprisonment upon refusing to be bound over after committing a breach of the peace. The arrest and imprisonment in Steel were based on breach of the peace, not a criminal offence in the United Kingdom, but the court (which applies an autonomous notion of criminal offences) found that criminal sanctions had been applied.

77. Clearly the cost to public bodies, and the consequent diversion of resources from other public services, could be a relevant factor to be taken into account in interpreting the extent of protection to be afforded by the ECHR to direct action protest: see text to n 75 above.

78. See text to n 112 below.

79. Judgment of 9 June 1999; reported (1999) J Civ Lib 390.

80. The defendants had been served with an ex parte interim injunction under s 3 of the Protection from Harassment Act 1997, which she was seeking to challenge. After she had been served with the injunction, she continued to demonstrate peacefully, at the fur farm. She was charged with the offence under s 2 of the 1997 Act and the High Court found that pursuit of a course of harassment in breach of an injunction would preclude establishing the defence of reasonableness. The Act provides a remedy of imprisonment for breach of an injunction; there is therefore no reason why its breach should also be determinative of separate criminal proceedings.

81. On the applicability of s 14A of the Public Order Act 1986 to an instance of peaceful protest on the highway.

82. See Fenwick, H and Phillipson, G ‘Public Protest, the Human Rights Act and Judicial Responses to Political Expression’ (2000) PL 627.Google Scholar

83. Huntingdon Life Sciences Lid arid anor v Curtin and ors (1998) 3(1) J Civ Lib 37.

84. (1996) 1 J Civ Lib 75. The findings were affirmed in Bibby v Chief Constable of Essex (2000) Times, 24 April.

85. See R v Howell (1981) 3 All ER 383 for a comprehensive definition.

86. ‘Land’ is defined in s 61(9); it does not include metalled highway or buildings apart from certain agricultural buildings and scheduled monuments; common land and non- metalled roads are included.

87. Section 69(1)(a).

88. Section 69(1)(b).

89. Section 69(3)(a). 90. Section 69(3)(b).

91. Section 69(4)(b).

92. Case C0/3496/97, judgment 4 March 1998, Transcript, Smith Bernal; see D Mead (1998) Crim LR 870 (quotations are from the transcript).

93. The wording of the confrontation is most readily available in Mead, n 92 above, at 871 where he reproduces that part of the transcript of the judgment.

94. The Crown Court had heard an appeal from the magistrates' court.

95. In the exchange with the officer, one said, ‘I have no intention of disrupting [the hunt] …’; another, ‘We're here quite peacefully … simply videoing what is going on’: Mead, n 92 above, at 871.

96. As Mead notes: n 92 above, at 875.

97. ‘The fact that the appellants were not… committing an offence under s 68 plainly… does not provide a reasonable excuse for not leaving the land. So to hold would emasculate the obvious intention of the section.’ Per Lord Bingham, Case C0/3496/97 (1998), Transcript.

98. The first protestor said, immediately before he was arrested, ‘I'm not prepared to leave the land because I don't believe I'm committing any offence’; the second, ‘I don't understand’: Mead, n 92 above, at 87 1.

99. The European Court of Human Rights had not delivered judgment in Steel at this point (judgment was delivered on 23 September 1998) and Capon was decided on 4 March 1998; however, the decision of the Commission, which made a like finding as to the applicability of art 10 of the ECHR was delivered on 9 April 1997.

100. In this respect, the new offence under s 41 of the Criminal Justice and Police Act 2001 (n 28 above) is identical. It is more draconian, however, in that it catches protest which is neither threatening, insulting, abusive, disorderly or obstructive, provided that a constable reasonably believes it is likely to cause harassment, alarm or distress and the conduct takes place outside or in the vicinity of a dwelling.

101. As Mead remarks: ‘… it must be very difficult to “know” within s 69(3) that a direction has been given if the police are permitted such wide and uncertain language as this.’ Above n 92. at 872.

102. (1996) Times, 14 August, Transcript, Smith Bernal (quotations are from the Transcript).

103. There is no offence of attempting to commit summary offences unless specifically provided for in the statute creating the offence: s 1(4) Criminal Attempts Act 1981.

104. ‘The running after the hunt was, in the undisputed circumstances of the present case, sufficiently closely connected to the intended disruption as to be, in the words of the Criminal Attempts Act 1981, “more than merely preparatory”.’

105. (1999) Times, 9 November, Transcript Smith Bernal.

106. ‘If the Police Sergeant had been found to have based his reasonable belief [that the s 68 offence was being committed] simply on the fact that [they] were present at the scene then… it would be necessary… to consider whether presence alone might be intimidatory … obstructive … or disruptive.’ Lord Bingham LCJ, obiter.

107. Laws LJ left open the possibility that occupying land in the company with numerous others could constitute the required ‘act’ other than trespass.

108. See generally on this provision Bennion, F ‘What interpretation is “possible” under s 3(1) of the Human Rights Act 1998?’ (2000) PL 77.Google Scholar

109. An exception to this duty arises under s 6(2) but, it is submitted, will be unlikely to apply: where a court finds the actions of a public authority to be unlawful under the ECHR, it would then have to consider whether, given the terms of the relevant legislation, the actions were nevertheless lawful as a matter of domestic law on the basis either that the statute required the action in question (s6(2)(a)), or that the authorities in question were enforcing a clearly incompatible legislative provision (s6(2)(b)). Sections 68 and 69 do not require officers to arrest under those provisions so that s 6(2)(a) could not apply. Moreover, it is suggested that neither s 68 nor s 69 are incapable of being read compatibly with the ECHR, since, as discussed below, they are open to a number of interpretations, some of which would allow their lawful use only in response to quite serious circumstances. Police officers and courts are therefore unlikely to be able to rely on s 6(2)(b).

110. Courts and tribunals are expressly stated to be public authorities under the Human Rights Act 1998: s 6(3).

111. That is, one contained in the second paragraph of the article in question; those likely to be relevant in public protest cases, specified in both articles, are measures necessary for the protection of ‘public safety [or] public health, the prevention of disorder or crime… [or] the protection of the rights and freedoms of others’.

112. Olsson v Sweden (1988) A 130 para 67. They must also, under art 14 of the ECHR, be applied in a non-discriminatory fashion.

113. HRA, s 2(1).

114. R v Secretary of state of the Environment, Transport and the Regions, exp Alconbury Developments Ltd/exp Holding and Barnes plc (2001) 2 All ER 929 at 968 (in line with the prediction of D Feldman: see ‘The Human Rights Act 1998 and constitutional principles’ (1999) 19 LS 165 at 193)Google Scholar.

115. There have been comparatively few decisions by the court (Plattform ‘ärzte für das Leben’ v Austria (1988) A 139; Ezelin v France (1991) A 202; Steel v UK (1998) 28 EHRR 603; Chorherr v Austria (1993) A 266-B; Hashman and Harrup v UK (1 999) 30 EHRR 241. Most of the jurisprudence consists of admissibility decisions in the Commission, finding that the application was manifestly ill-founded.

116. G v FRG (1980) 21 DR 138. See also Ezelin v France (1991) A 202, para 35

117. Steel v UK (1998) 28 EHRR 603; see also Hashman and Harrup v UK (2000).

118. See Fenwick and Phillipson, n 82 above.

119. This doctrine reflects the courts' view that the role of the ECHR in protecting human rights is subsidiary to the role of the national legal system (Handyside v UK (1976) A 24, para 48) and that since the domestic authorities are in many cases better placed than the international judge to balance individual rights against general societal interests, Strasbourg will operate a restrained review of the balance struck. Ezelin v France is probably the only exception in this context. Indeed, three dissenting judges - Ryssdal, Matscher and Pettiti - complained that the doctrine of the margin of appreciation had improperly played little or no part in the court's judgment.

120. Chorherr v Austrici (1993) A 266-B.

121. See the crucial findings in Steel v UK, Hashman and Harrup v UK (2000) and Gv FRG 21 DR 138 (1980) that direct action fell within the scope of arts 10 and 11 ECHR.

122. While such terse reasoning is a typical feature of the Strasbourg case law (see eg Dickson, B ‘The Common Law and the European Convention’ in Dickson, B (ed) Human Rights and the European Convention (London: Sweet & Maxwell, 1997) pp 216–217)Google Scholar, the tendency is particularly marked in protest cases: cf eg the reasoning devoted to the proportionality issue in News Verlags v Austria No 31457/96, 11 January 2000 (a case concerning media freedom - six lengthy paragraphs compared with that in Steel v UK - one paragraph).

123. See Fenwick and Phillipson, n 82 above, at 629–630.

124. (1998) 28 EHRR 603.

125. (1999) 30 EHRR 241. Hashman does not offer much guidance as to the scope of protection for direct action since, having found that blowing a horn with the intention of disrupting a hunt was a form of expression within art 10 ECHR, the court went on to find that the interference was not ‘prescribed by law’: the domestic law - the contra bono mores doctrine - was found to be insufficiently precise.

126. See Steel v UK (1998) 28 EHRR 623, para 92: ‘It is true that the protests took the form of physically impeding the activities of which the applicants disapproved, but the Court considers nonetheless that they constituted expressions of opinion with the meaning of Article 10.’

127. G v FRG (1980) 21 DR 138.

128. The like finding made by the Commission in G v FRG similarly took the form of a bare assertion.

129. Text to n 41ff above.

130. G v FRG (1980) 21 DR 138.

131. The case also concerned third, fourth and fifth applicants, who had engaged in purely peaceful protests with no element of obstruction or other ‘action’.

132. Fenwick and Phillipson, n 82 above, at 641–642.

133. The first applicant, it found, ‘had created a danger of serious physical injury to herself and others and had formed part of a protest which risked culminating in disorder and violence’: (1998) 28 EHRR 623, para 105. The court referred to its reasoning in relation to the first applicant in support of its finding in relation to the second, but neither of these factors was present in relation to the second applicant, so the reference was not only worthless, but positively misleading (as the court seemed partially to accept in noting that the risk of disorder was ‘arguably less serious than that caused by the first applicant’: para 109).

134. (1999) 30 EHRR 241.

135. 21 DR 138 (1980).

136. The protest was intended to mark the third anniversary of the NATO Twin-Track Agreement (NATO-Doppelbeschluß).

137. Text to n 41ff above.

138. Under s 240 of the German Criminal Code.

139. It accepted that ‘the applicant and the other demonstrators had not been actively violent in the course of the sit-in concerned’.

140. (1991) A 202.

141. (1991) A 202, para 49.

142. (1991) A 202, para 53.

143. See Fenwick and Phillipson, n 82 above, at 643–646 and n 144 below.

144. In R v DPP, ex p Kebilene (1999) 3 WLR 972, Lord Hope rejected any domestic application of the margin of appreciation doctrine, but went on: ‘In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of [the democratic body or person] whose act or decision is said to be incompatible with the Convention.’ This approach has now been confirmed in a number of cases decided after the HRA came into force: see nn 147 and 148 below; also Pannick, D ‘Principles of interpretation of Convention rights under the Human Rights Act and the discretionary area of judgment’ (1998) PL 545 Google Scholar; Hunt, M, Singh, R and Demetriou, M ‘Is there a role for the “margin of appreciation” in national law after the Human Rights Act?’ (1999) 1 EHRLR 15 at 549–551Google Scholar.

145. That is, Parliament's decision to enact the relevant legislation in the first place.

146. Clearly, the general issue of how far, and in what circumstances courts should defer to the decisions of democratic bodies cannot be explored here. For discussion, see eg Fenwick, H Civil Rights: New Labour, Freedom and the HRA (London: Pearson, 2000) pp 138–139 Google Scholar: Gearty, C ‘Democracy and Human Rights in the European Court of Human Rights: a Critical Appraisal’ (2000) 51(3) NILQ 381.Google Scholar

147. See R v secretary of state of the Environment, Transport and the Regions, exp Alconbury Developments Ltd/exp Holding and Barnes plc (2001) 2 All ER 929, HL; Brown v Stott (2001) 2 WLR 8 17 at 835, PC.

148. See eg R v Secretary of state for the Home Department, exp Isiko (2001) HRLR 15.

149. See R v Offen and ors (2001) 1 WLR 253; Douglas and ors v Hello! Ltd (2001) 2 WLR 992; Venables, Thompson v News Group Newspapers Ltd, Associated Newspapers Ltd, MGM Ltd (2001) 1 All ER 908; R v A (2001) 2 WLR 1546.

150. Many of the arguments canvassed below would also be applicable to other powers which may be used against direct action protestors: these include: ss 4A, 5 and 12 Public Order Act 1986, powers to arrest for breach of the peace allied with the power to arrest for obstruction of a police officer in the course of his duties; Protection from Harassment Act 1997, s 1.

151. See text to n 124ff above. The findings were that protestors who were arrested and detained after, respectively, obstructing a grouse-shoot and sitting in the path of road-making equipment had suffered a prima facie violation of art 10.

152. See text following n 115 above.

153. Because, under s 2(1), they are not bound by Strasbourg jurisprudence. But see text to n 114 above.

154. Even where an arrest and detention had occurred but no further action had been taken, an interference might be viewed as subsisting on the basis that protestors would not be able to exercise their ECHR rights free from the fear of arrest and charges: see Dudgeon v UK (1982) 4 EHRR 149.

155. Reference here is to the first two applicants.

156. Text to n 142 above.

157. This reading must be adopted to render Steel (which found the arrest and imprisonment of obstructive protestors) compatible with Ezelin. See above, p 557.

158. The approach of their Lordships in R v A (2001) 2 WLR 1546 to the new interpretation to be given to s 41 of the Youth Justice and Criminal Evidence Act 1999 in the light of s 3(1) of the HRA indicates that quite drastic interpretative revisions may be expected under the HRA.

159. The new offence under s 41 of the Criminal Justice and Police Act 2001 (n 28 above) similarly allows for conviction on the basis of a reasonable, though mistaken belief that harassment, alarm or distress was likely to be caused by the protest.

160. Section 69(1).

161. Text to nn 92-96 above.

162. As in Capon itself.

163. In McCunn v UK (1995) 21 EHRR 97 the court found that the shooting by soldiers of the SAS of members of the IRA on the mistaken but, as it was found, reasonable belief, that they posed an immediate threat to the lives of others did not violate the ECHR, art 2 right to life. (A breach was found in respect of the planning and control of the operation by the authorities.) In other words, the state could rely upon the exception contained in para 2(a) of art 2 -action strictly necessary in defence of any person from unlawful violence - even though there was in fact no immediate risk of such violence. This was because it was accepted that the soldiers had to make an instant decision whether to open fire. This approach is distinguishable from that which would be taken to a prosecution and conviction under s 69 - which similarly relies upon a mistaken but reasonable belief on the part of an agent of the state - because such decisions, clearly, are not ones which must be taken in the heat of the moment.

164. That is, mistaken in believing that that the protestors were committing, had committed or intended to commit the s 68 offence, or that two or more of them are trespassing and have the common purpose of intimidating or obstructing others under s 68.

165. Nicol v DPP (1996) 1 J Civ Lib 75 (a breach of the peace case).

166. The facts of Nicol (a breach of the peace case), although in that case, the anglers were neither old nor infirm. See text ton 84 above.

167. Whilst the fuel protest caused identifiable damage to the United Kingdom's economy, it should be noted that arts 10 and 1 1, unlike art 8, contain no para 2 exception allowing interferences with the primary right in the interests of ‘the economic well-being of the country’ . Protection of public health would be a possible legitimate aim, but, at most, would justify ensuring that sufficient supplies got through to medical staff.

168. The requirement that interferences be ‘prescribed by law’ would clearly be satisfied. 169. Section 2(b) and (c) above.

170. Text to n 131 ff above.

171. It has been accepted on judicial review that the Broadcasting Standards Commission was entitled to regard a company as having a right to privacy, but this was based on the wording of the specific legislation in question which referred to ‘natural or legal persons’ and the court expressly declined to comment on what art 8 ECHR might require in this respect: R v Broadcasting Standards Commission, exp BBC (2000) 3 All ER 989.

172. While it cannot reasonably be said that such action is the only or even the most effective way of publicising the cause concerned, it is those groups which aim directly at preventing others from carrying out activities of which they disapprove who must seek justification through such arguments.

173. The provision itself only requires, of course, that acts be done with the intention of causing such effects, but as has been suggested above, it may have to be reinterpreted to allow liability only where such effects were actually caused: text to nn 155–158 above.

174. Text ton 131ff above.

175. Handyside v UK (1976) 1 EHRR 737, para 49.

176. See text to n 58 above.

177. A Bill giving the option to ban or regulate hunting (the Wild Mammals (Hunting with Dogs) Bill) was considered by Parliament in 2000/01 but fell when Parliament was dissolved prior to the June 2001 General Election.

178. As Strasbourg regarded them: text to n 76 above.

179. In Department of Transport and ors v Williams (1993) 138 Sol Jo LB5, CA, interim injunctions based on civil trespass were upheld against demonstrators protesting against the construction of the Twyford Down motorway. The law of (private) nuisance provides an alternative possible remedy: see Winfield and Jolowicz on Tort (London: Sweet & Maxwell, 15th edn, 1998) p 404.

180. Sections 68 and 69 cany a possible penalty of three months' imprisonment (s 68(3); s 69(3)); by contrast, s 5 of the Public Order Act 1986 (threatening insulting or abusive words or behaviour or disorderly behaviour likely to cause harassment, alarm or distress) carries only a fine. On s 5, see further Smith, A T H Offences Against Public Order (London, 1987) pp 14–18.Google Scholar

181. (1998) 28 EHRR 603 at 650-651 (Judges Vilhjslmsson, Palm, Valticos and Makarczyk).

182. The Chancellor, Gordon Brown, had already abandoned the ‘fuel duty escalator’ in the Budget prior to the fuel protests.

183. Comparison may be made here with the manner in which the jurisprudence of the Canadian Supreme Court changed radically following the enactment of the Charter of Fundamental Rights, from orthodox ‘black letter’ analysis to a far more theorised and philosophical approach: see Leigh, I and Lustgarten, L ‘Making Rights Real: the Courts, Remedies and the Human Rights Act’ (1999) 55(3) CLJ 509 Google Scholar. There are arguably some early signs of such a shift in the House of Lords' decision in R v Secretaty of State of the Environment, Transport and the Regions, exp Alconbury Developments Ltd/ex p Holding and Barnes plc (2001) 2 All ER 929 at 979–980 (Lord Hoffmann).

184. See eg L de Lisle ‘My friends the truckers’ Guardian, 8 November 2000.

185. As indicated in the introduction, there is almost no domestic legal literature on the compatibility of direct action with human rights values.