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The Centre for Broadcasting and Journalism BA (Hons) Broadcast Journalism Freedom to Protest and Public Order Public Protest • Citizens of democracies enjoy the rights of freedom of speech • This allows for that freedom of expression to be manifested in public demonstrations • …but not public disorder Public Protest • Protests may be static in the form of posters or banners • Or they may be mobile in the form of processions and parades Public Protest • While public protest is allowed and desirable in a pluralist democracy it clearly needs to be orderly • The rights of others need to be considered just as much as the rights of the protestors Public Order • Public order is governed by a number of statutes designed to prevent serious disruption to individuals and society • Public Order Act 1936 • Public Order Act 1986 • Protection from Harassment Act 1997 • Race Relations Act 1976 • Criminal Justice and Public Order Acts Public Order Act 1986 • The Act was introduced following serious breakdown in public order in the 1970’s and early 1980’s • Red Lion Square Disorders 1974 • Brixton Riots 1981 • The Police retained common law powers and the earlier 1936 Act survived the passage of the new law O’Moran v DPP (1975) • Section 1 POA 1936 • Wearing of uniform signifying association with political party • Berets, dark glasses and dark clothing at a funeral did constitute the offence Public Order Act 1986 • Following the recommendation of the Law Commission • S.9 POA 1986 abolished the old common law offences of: • Riot • Rout • Unlawful assembly • Affray Public Order Act 1986 • Statutory Offences created • Riot (s.1 POA 1986) • Most serious of the public order offences carried out in a group context • 12 or more persons together threaten or use unlawful violence in common purpose Public Order Act 1986 • Violent Disorder • 3 or more persons must be using violence or threats of violence but not necessarily simultaneously Public Order Act 1986 • Affray (s.3 POA 1986) • Participating in fighting or other acts of violence of such a character as to cause alarm to members of the public • Essentially and offence against public order Public Order and Protests • Brutus v Cozens (1973) Anti apartheid demonstrators at Wimbledon • Insulting behaviour likely to cause a breach of the peace contrary to s5 POA 1936 (repealed) • Behaviour not ‘insulting’ albeit disgraceful Public Order and Protests • Chambers and Edwards v DPP (1995) • Road protesters interfering with survey • Obstructing theodolite and continuing to do so after being warned by police • Disorderly conduct a question of fact • Such behaviour capable of being ‘disorderly by rule in Brutus v Cozens Chambers and Edwards v DPP (1995) • This ruling could effect journalists where they have been asked or warned by police to remove themselves from certain places • Accident scenes, crime scenes etc. POA 1986 and Journalists • In 1995 a BBC cameraman was arrested at a coach crash scene • Police had asked him to leave and he had refused • Arrested for ‘own safety’ • Successful appeal against magistrates court conviction but told to consider the rights of others Highways Act 1959 • Section 121 HA 1959 grants police officers the power to require anyone on the highway to move on where ordered to do so by a constable • The officer may arrest any journalist or photographer who refuses to do so • But not on private land Police Act 1964 • Where a journalist or photographer is requested to leave a scene they may be arrested under s.51 Police Act 1964 • Refusing to leave may be construed as an activity making it more difficult for a police officer to carry out his duty Public Meetings Act 1908 • It is an offence to engage in disorderly conduct at a public meeting for the purpose of disrupting the transaction of the business for which the meeting was called together • It is difficult to see how a journalist might be caught by this one but intrusive questioning of delegates might cause ‘disruption’ Race Relations (Public Order Act 1986) • It is an offence to display, publish, or distribute material that is threatening, abusive, or insulting if the publisher intends to stir up racial hatred. If racial hatred is actually stirred up, this also falls under the definition. • The offence can be committed without any intent to stir up racial hatred and as a result, a journalist must be aware of inflammatory speeches and election manifestos. Protection from Harassment Act 1997 • This legislation may supplement the provisions of the Public Order Acts • As well as providing for tortious/civil remedies against those who engage in • A course of ‘harassing’ conduct • Harassment of another • Both actual or apprehended Protection from Harassment Act 1997 • The Act creates criminal liabilities • S.1(1) • A person must not pursue a course of conduct – • (a) which amounts to harassment of another • (b) which he ought to know amounts to harassment of another Protection from Harassment Act 1997 • S.2(1) • A person who pursues a course of conduct in breach of section 1 is guilty of an offence • By s.7(4) ‘conduct’ includes speech Journalists and PfHA Act 1997 • Journalists could face prosecution under the Act • The nature of their work frequently means they attempt or speak to or photograph individuals who do not wish for their attention • Laying ‘siege’ to houses for instance Journalists and PfHA Act 1997 • Legitimate public interest must be balanced against an individuals right to be free from harassment • Burris v Azadani  1 WLR 1372 • A government minister accused of adultery might be fair game, relatives of murder victims will not (US First Amendment approach) Journalists and PfHA Act 1997 • Journalists who ignore the NUJ codes of conduct or Press Complaints Commission rulings could be liable under the Act • O’Brien and Harrison (paparazzi) • Imprisoned for 90 and 60 days respectively • Chasing Arnold Schwarzenegger who had just come out of hospital Defences • Press Complaints Commission code of practice (26/11/97) • Exceptions to be made in the public interest • (a) Detecting or exposing crime or serious misdemeanour • (b) Protecting public health and safety • (c) Preventing the public from being misled Press Complaints Commission code of practice (26/11/97) • Not dissimilar from statutory defences under s.1(3) of the Act • (a) Preventing crime • (b) Pursued under enactment or rule of law • (c) Reasonableness The European Courts Position re Public Order • The ECtHR has been criticised for its apparent generosity to states Some ECHR Rulings • Janowski v Poland (1999) • Journalist intervened when two municipal police tried to move on a stall holder • Janowski informed them they had no legal authority to do so • And also called them ‘dumb oafs’ in the process Janowski v Poland (1999) • Convicted of public order offence preventing public servants from being ‘hindered’ in carrying out their duties • Janowski applied to the ECtHR on grounds the conviction violated his Article 10 rights • The court holds that his Art 10 rights permit him to criticise not ‘insult' public officials Janowski v Poland (1999) • ECtHR severely criticised for this ruling • Court has not taken account of the context of the words used • Journalist was explaining why municipal police could not legally order the stall holder to move • Therefore legitimate Article 10 right to criticise public servants Janowski v Poland (1999) • Insulting comments uttered in debate of public concern • Art 10 allows criticism of state functionaries • Even vitriolic criticism of their performance of duty Lingens v Austria (Nº2) (1986) • Attitude of ECtHR has chilling effect on journalism Choherr v Austria (1993) • Obscured military parade • Arrested for public order offence • ‘might have caused disturbance’(n actual evidence) • ECtHR accepted the broad assertion by the government • Did not consider legitimate right of demonstrator to expression of views Article 10 Derogations • 10(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities conditions, restrictions or penalties that are prescribed by law and necessary in a democratic society… • Prevention of disorder
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