The right to protest

Speakers’ Corner, Hyde Park

A post about freedom of speech – protection, balance and proportionality

This week, with outpourings of grief following the death of Queen Elizabeth II, a minority of anti-Monarchists have had to bite their tongues, adjudging that now is not an appropriate moment to vent their political and social views. However some from the fanatical fringe, or the impetuous immature, have shown out with protests and insults that have offended a distressed nation. They have been arrested and removed. They have been silenced.

The eighteen articles in Schedule 1 Part 1 of the Human Rights Act 1989 provide a barrage of rights protected by law. In particular Article 10 provides for freedom of expression. The protection is not, however, unqualified.

‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

As a lawyer I cannot but imagine that the actions of police have been lawful in the present circumstances. The response from the Monarchists alone – including the swinging of fists – justified police action to prevent a breach of the peace. On the other hand libertarian commentators such as Brendan O’Neill writing in the Spectator have challenged the concept of silencing this minority, contending that their freedom of speech is ‘the most essential liberty’.

Of course that is to mount the right of a protester way above the interests of the general public that may not share their views. Whilst some of us might agree with O’Neill conceptually, where we depart is in the manner of exercise of protest. We have issues with the shouting of an obscenity, just as we do with the blocking of a motorway by protesters.

The Police, Crime, Sentencing and Courts Act 2022 has gone some way to amend the Public Order Act 1986, but both Acts failed to achieve a social balance between the protection of free speech and the prevention of harm.

That got me looking back to 1872 and the Parks Regulation Act which enshrined the right to protest at ‘Speakers’ Corner’, Hyde Park London. It built on the long-held right of those to be executed at Tyburn Gallows to make a final speech there before their hanging. In 1866 the Reform League, being locked out of the park, removed the railings so as to gain entry and by the next year Home Secretary Spencer Walpole resigned when police and troops declined to intervene against the protesters.

Perhaps Prime Minister Truss should consider new ways to protect the freedoms of thought and expression, whilst responding to the public desire for proportionality of protest. Designating safe protected protest venues, as was done at Hyde Park, might go some way to achieve this, as would the recognition of prescribed methods of protest that balance free speech with public order?

Advertisements appearing below this post are placed by the platform not the writer. They are neither endorsed nor monetarised.

Vaccine passport

A post to consider whether and why we should have digital proof of Covid-19 vaccination.

My Oxford AstraZenica first jab was delivered on the penultimate day of January when I was called to the vaccination centre as ‘an extra’ so as to avoid wasting the last drop of an opened batch. The needle slipped into my upper arm without more than ‘a scratch’. That night, and for 24 hours, my immune system kicked in leaving me tired, weak, fuzzy and fragile. On Monday I awoke with just a tender deltoid. For me, both before and since, the decision to be vaccinated was effortless.

Before leaving the vaccination centre I was handed a Covid-19 record card, showing my name, the date of delivery and the batch number. Glancing across, I realised that the information was simply copied out from a computer screen, linking the National Immunisation Vaccination System digitally to my NHS number.

And the purpose of this post? It’s simple – why not make the digital record available to those that seek it? And, on topic, why should vaccination not be a requirement to attend court?

Whilst Nadhim Zahawi, known as the ‘Vaccine Minister’, is on record as saying that the UK government is “looking at the technology” to create vaccine passports, the Chancellor of the Duchy of Lancaster, Michael Gove has said a vaccine passport was “not the plan,” although businesses would be able to “make decisions about who they will admit and why”.

Perhaps those businesses will get to deploy the proposed Mvine-iProov UK passport which enables a person’s test result or vaccination status to be registered and proved, curiously, without disclosing their identity. Two companies are currently engaged in passport trials for health authorities, due to complete by 31 March 2021.

Elsewhere in Europe the idea of a vaccine passport appears to be gathering momentum. Greece has urged the EU to introduce a vaccination certificate to enable ‘free movement of those vaccinated’, no doubt to rescue their tourist industry. Denmark is already developing a vaccination passport for Danes, and Estonia is creating a vaccine ‘smart yellow card’. Interestingly, Spain has taken another route – and is compiling a database of refuseniks.

As a lawyer, I am not persuaded by ‘human rights’ arguments of vaccine refusers who deny others the right to prove their vaccine status. Unlike the USA, here in the UK (see the link to the Court of Protection case E (Vaccine) 2021 EWCOP 7) courts have always balanced rights with responsibilities. Whilst the job of government is to protect and ensure public health, the views of a minority should not sway government policy from measures that will preclude, minimise or identify virus risk. Those who decline the vaccine may do so, but they should not be protected from the inference that, as unvaccinated people, they may be the next vectors of the virus.

My concerns go beyond those of the travel industry. What of the care homes where elderly and vulnerable residents are put at needless risk by so-called ‘carers’ who have ‘exercised their right’ to refuse a vaccine? Am I alone in feeling that anyone who takes responsibility for another’s health should be expected to minimise their role in Covid transmission?

Air travel and care settings are not the principal hot houses for passing on the virus. Studies have shown that the workplace is also a high-risk environment. As many lawyers have been classified as key workers, perhaps now is the time to face our ethical responsibility, like Pimlico Plumbers, and ensure we are vaccinated as a professional requirement?

Whilst an advert may appear at the foot, this blog is neither monetarised, nor endorsing any product

Crisis in Policing?

A post for those interested in the incidents of crime and how it is recorded 

Investigation of crime is now centre stage this week following publication of the HMICFRS report on policing across England and Wales.

Its author, H M Inspector of Constabulary Matt Parr, finds many positives in recent policing, but identifies a number of troubling concerns.

In this blog I want to consider one of them –  the issue of detection and prevention of crime.

With a noticeable reduction in police investigation and detection of crime, public confidence in policing diminishes. It produces a void, in which the public is reluctant to report crimes, anticipating an unsympathetic, non-proactive response from police.

Published statistics show that only 4.2% of domestic burglaries result in charges. Additionally, there are some strikingly low figures about car crime resolution, says Matt Parr, (3.5% of motor vehicle thefts resulting in charges) “meaning most of the public simply give up reporting it because the chances of anything positive happening are so slim”. “The public has rumbled that the police capacity to deal with this is extremely limited”.

The likelihood of the police bringing someone to justice following a criminal investigation is decreasing. In England and Wales, a suspect was charged in 7.8 percent of recorded crimes last year, down from 9.1 percent the year before. “Forces do not do enough to make progress with cases using alternative sources of evidence”, says Parr, “and there is limited understanding as to why so many victims seem to be losing faith in the criminal justice system”.

He goes on to add, “the proportion of victims of crime who are unwilling to support a prosecution has nearly doubled from 13.2% to 22.6% in the same period, raising doubts over how long society will tolerate a situation where, for some types of crime, a suspect was charged in less than 4% of cases”. “If you are the subject of a minor burglary or minor assault or car crime, I think people have now got to the stage where their expectations are low and the police live down to those expectations because they simply don’t have the capacity to deal with it”.

According to the report, “ten forces need to improve their understanding of the outcomes of their investigations to ensure they are effectively pursuing justice on behalf of victims. Overall, there are stark differences in the investigation a victim of crime will receive, depending on the police force responsible for investigating it. This variation has many causes, so forces need to understand and address this divergence in the experiences of victims of crime”.

It seems that matters are further exacerbated by a failure of courts to apply sufficient deterrent sanctions to offenders. In forces such as Durham where police response, investigation and detection are rated as ‘excellent’, the public complains that courts no longer impose adequate sentences. Whilst restorative justice outcomes are available and increasingly popular for juvenile offenders, the limited number of sentencing options generally results in a miss-match between the offence and the public’s view of justice.

Failures of our police and criminal justice systems will result an increase in crime and the risk of public interventions in place of police enforcement. This is precisely what happened when policing lost community support in Northern Ireland. We cannot afford the same to happen here. Perhaps policing and criminal justice in England and Wales should be given fresh priority before the public loses its confidence in organisations for which it pays and to which it delegates powers?

Stephen Twist was formerly a police officer, criminal barrister and recently a restorative justice practitioner with the Youth Offending Panel

Whilst an advert may appear at the foot, this blog is neither monetarised, nor endorsing any product

Farnham Puppy Farm murders

ACC Stuart Cundy, Surrey Police – Photo courtesy of bbc.co.uk

A post that examines whether gun control needs to be reviewed in the light of Farnham

23 February 2014, Farnham in Surrey, Christine Lee and her daughter Lucy were shot dead by John Lowe.

The weapon was a simple shot gun. It, together with other guns had been taken from him by police in March 2013 following concerns raised by Christine Lee’s other daughter Stacy Banner. By July 2013 they were returned.

John Lowe was Christine Lee’s partner. His cache of seven shotguns were kept by him at Keepers Cottage Stud under his shotgun certificate. At the time of the killing he was 82 years of age. His long-term relationship with Christine Lee had been marred by years of conflict. The case had an uncanny resemblance to that of Michael Atherton.

Today, John Lowe was convicted of murder and awaits sentence. After the verdict, this blogger was placed on stand-by by BBC Radio 4 PM programme. As matters progressed, Kevin Hurley, the Police and Crime Commissioner for Surrey agreed to comment, and unconvincingly, whilst deflecting on ‘cuts’ to the service, blamed Surrey Police staff a ‘flawed decision that failed to meet national standards’.

I see it differently. Time may indeed tell that clerical officers in an under-resourced office at Surrey Police Headquarters made mistakes. A head of department may be disciplined. National standards (which the blogger finds convoluted) may not have been followed.

But the essence of the problem lies not in the guidelines, but the rules that require the return of weapons to a certificate holder.

The debate has not yet matured to this level of examination, but under current firearms law, the possession of a shotgun is a ‘right’ not a ‘privilege’. An applicant does not have to ‘earn’ the opportunity to hold a weapon, nor to demonstrate anything other than it will be locked up securely.  A shotgun certificate “shall be granted” unless the applicant is a prohibited person (for example a known criminal who has served time), is demonstrated not to have a good reason to possess a weapon, or is shown to be “a danger to the public safety or the peace”.

The Farnham puppy farm dilema is not as uncommon as first appears. It’s just that fortuitously, the horror perpetrated by John Lowe is extremely rare.

Throughout police services in the UK, talented, informed and experienced firearms officers will tell you of cases where weapons have been anxiously returned to certificate holders, simply because the rules do not permit any other course.

Courts (usually at first instance the justices), interpret the law just as they are required to do – strictly. When the burden is on a firearms officer to demonstrate that an applicant has no good purpose or will be a danger to the public or the peace, the fact that the applicant has amassed an arsenal of weapons and wanders their neighbourhood dressed in military fatigues is largely irrelevant.

Contrary to Nigel Farage’s ill-judged comments back in January 2014, the 1997 restrictions following Dunblane did not go far enough. Then, and now, the criteria for possessing a firearm of any kind should be changed to one of privilege, and not of right.

The gun lobby will squeal; those who are committed to individual freedoms will protest; but neither group tend to be the victim of gun crime. It is the Christine Lees and the Susan McGoldricks that commonly carry the death penalty for our unruly rules.

China – new legislation on police detention

A post examining dissension in undemocratic jurisdictions

With thanks to the Guardian 8 March 2012

Photograph: David Gray/Reuters

Earlier this month, China unveiled legislation allowing police to hold those suspected of ‘state crimes’ at unknown and unnamed locations, but after much controversy, has removed a secrecy clause permitting police to hold some suspects for up to six months without informing their families.

State security crimes include subversion and other vaguely-worded charges often used against dissidents.

Having spent 11 months of the last five years in Buenos Aires I became familiar with the stories of ‘los desaparecidos’ of Argentina – up to 30,000 dissidents that in the late 1970’s were spirited away at nightfall, some to be dropped from aircraft into the Atlantic, many never to be seen again. Now, each Thursday, the female relatives and supporters of the disappeared silently circle Plaza de Mayo (between  the Presidential Palace Casa Rosada and the Parliament Congreso) – in memory and in protest.

With the amendment of the Chinese legislation, legalised disappearances may be avoided in  China, but the overall import of the new procedure is far from clear.

When Pu Zhiqiang, a Beijing lawyer who has taken on sensitive cases such as those involving dissidents, spoke out about the issue of enforcement of the legislation, police attended his offices to prevent him making further comment.

How many lawyers working as we do in democratically accountable systems take for granted some aspects of  important protection offered by our laws against state control? Are we  conditioned in a moderate climate to perceive the excesses of unaccountable detention as a distant and unlikely threat? Now within our global environment, it is not even more important that we are prominent and heard on these issues? Perhaps that is one of the essential justifications for an independent Bar; something worth fighting for.