In March 2009 there was a march in Luton to welcome home soldiers of the Royal Anglian Regiment who had been serving in Afghanistan. Muslim protesters were present. They wished to protest about British involvement in that country. Subsequently, seven of them were charged under the Public Order Act 1986 s.5. - (threatening, abusive, insulting words etc) - which is triable only in the Magistrates' Courts. Five men were convicted and their convictions were challenged in the High Court on an "appeal by way of case stated." Their appeals were dismissed.
One of the arguments on appeal was that the prosecutions were an abuse of process. This was rejected. The Police had facilitated their protest but had certainly not given them a blank cheque to shout abusive words such as "British soldiers murderers" or "Baby killers" or "Rapists all of you." The Police had not given any assurances that the men would not be prosecuted. Clearly, the concern of the Police was to manage what had potential to become a serious public order situation between those wishing to recognise the service of the soldiers and those seeking to protest. The European Convention on Human Rights Article 10 allowed freedom of expression but here the prosecutions were justified and the defendants had overstepped the mark. The exercise of freedom of expression carries with it duties and responsibilities and this is recognised in Article 10 which permits restrictions on the right in order to (inter alia) prevent disorder or crime.
Interestingly, it appear that it took several weeks before any of these men were charged. This was expalined by the need to view a considerable amount of video footage taken by the Police at the time. Further, the case took 6 days in the Magistrates' Court before a District Judge (Magistrates' Courts) sitting alone. The High Court commented that it was not obvious
why that should been so though there had been some "inclement waether." Six day summary trials are (fortunately) very much the exception and, with proper application of good case management, ought to remain that way.
It is commonly overlooked in media reports and in some comments by politicians that the vast majority of the Convention rights are not absolute rights but are subject to qualifications. All the Convention seeks is that the restrictions are:
- prescribed by law
- necessary in a democratic society
- the means adopted are proportionate to the aim sought.
"Luton army parade protesters lose High Court appeal" - BBC 16th February.
Addendum 18th February: The Law Think blog has some very interesting and well presented items relating to Human Rights. In "Going it alone - is a British Bill of Rights really the answer", Stephen Dimelow points out the value in having an external arbiter in our legal system. He says that it "ensures" that British judges don't become a target for political point scoring. I have no doubt that the external arbiter is beneficial but, given Theresa May's comments in Parliament this week, I doubt that British Judges will be safe in the future from "point scoring." In "Celebrated decisions of the European Court of Human Rights", Yaaser Vanderman points out some European Court of Human Rights decisions which have enabled the media to publish material which would, under English law, have not seen light of day (e.g. material relating to the drug Thalidomide). The media, some of which has been vociferous in attacking matters such as "votes for prisoners", actually owes much to the European Convention and the European Court of Human Rights. Perhaps more controversial is "Mosley's law and protecting celebrities from idle gossip" by Leon Glenister. Max Mosley has argued in the European Court of Human Rights that the media should notify an individual before publishing an item about the person's private life. Judgment is expected in the near future. Presumably, upon receipt of notification, the individual could then seek an injunction to prevent publication. Of course, whilst much that is published is "idle gossip", there is surely some public interest in knowing about the true characters and activities of those who are involved not just in politics but also in the governance of the media, sports etc.