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Public Order, Policingand Human Rights.

Carlsen Cloney LLB, LLM. 2011

ContentsIntroduction 5The Right to Protest 6Freedom of Expression 7Freedom of Assembly 12Freedom of Association 16Policing and Public Order 19Policing Protests 20The European Code of Police Ethics 13Garda Public Order Powers 24Criminal Justice (Public Order) Act 1994 28The Criminal Justice Act 2006 31Conclusion 34Bibliography 37

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Table of Cases

Adali v Turkey App 38187/97 Mar. 31, 2005AG v Guardian Newspapers and Others (No 2) [1988] 3 All ER 345AG v Paperlink Ltd [1984] ILRM 373Association Ekin v France (2002) 35 EHRR 35Anderson v United Kingdom 1999 EHRR CD 172Arzte fur das Leben v Austria (1982) 4 EHRR 204Association Ekin v France (2002) 35 EHRR 35Beatty v Gilbanks (1882) 9 QBD 308Birch v DPP 2000 Crim LR 301Commission v France [1997] ECR I-6959Coyne v Tweedy [1898] 2 Ir 167De Rossa v Indepenent Newspapers 1999 4 IR 432DPP v Jones1999 2 All ER 257Duncan v Jones [1936] 1 KB 218Dunne v Fitzpatrick [1958] IR 29Engel v Netherlands (1976) 1 E.H.R.R. 647Eugen Schmidberger, Internationale transporte und Planzuge v Austria (Case C-112/00)Freessoz and Roire v France (2001) 31 EHRR 2Handyside v United Kingdom (1976) 1 EHRR 737Harsh and Harrup v United Kingdom(2000) 30 EHRR 241Hirst v Chief Constable of West Yorkshire (1986) 85 CR App R 143Hubbard v Pitt [1976] QB 142Humphries v O Connor (1864) 17 Ir.CLR I.Konig v Germany (1978) 2 EGRR 170Lingens v Austria (1986) 8 EHRR 407McCartan Turkington Breen v Times Newspaper 2000 4 All ER 9134, 926Murphy v IRTC [1997] 2 ILRM 467Norris v AG 1984 I.R 36O‘Kelly v Harvey (1883) 14 L. R. Ir. 105O‘Leary v Attorney General [1993] 1IR 102R (Laporte) v Chief Constable of Gloucestershire [2007] 2 All ER 529R (on the application of McCann) v Manchester Crown Court, [2003] 1 A.C. 787R v Chief Constable of Sussex, ex parte ITF Ltd [1999] I all ER 129R v Howell [1982] QB 416 at 427Redmond-Bate v DPP [1999] Crim LR 998Reynolds v Times Newspapers Ltd[1999] 4 All ER 609, 628Steel and others v United Kingdom 1999 28 EHRR 603

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Introduction

At the time of writing, freedom of expression and police public order powers came into sharp focus across the globe. The Arab spring saw a wave of public protests from Tunisia to Syria while at the same time protests against government austerity broke out across the west. The Arab protests led to regime change, abdication, civil liberties concessions, repression, revolution and war. In this sense the power of the fundamental human right of freedom of expression and assembly cannot be understated.

The reaction of governments and their security forces reveal the nature of the political regimes in the states concerned. The protests in Egypt for example met an armed police response and the killing of several protesters, however the Egyptian military did not engage the public with force which meant that the protestors were not subject to the type of military repression that was seen in more tyrannical regimes in Libya, Bahrain, Saudi Arabia and Syria.

It could be argued that the more violent the government response to political protest, the more tyrannical the regime. Therefore the more democratic and developed a society is, the more the fundamental right to freedom of expression and assembly is protected and exercised.

The tyrannical regimes of the Arab world in Bahrain, Syria and Yemen have cracked down hardest on protesters calling for democracy, which shows how fundamental human rights are protected and exercised the least in those states. It must be said that in many cases those countries of the west that claim to protect and cherish fundamental human rights the most have turned a blind eye to the human rights abuses in Bahrain and elsewhere.

Nevertheless a states‘1 response to public unrest, protest and freedom of expression and assembly in the west is the subject of this work. The use of military force to engage the public was prohibited by the 1878 Posse Comitatus Act2 in the United States which was aimed at substantially l imit ing the powers of the federa l government t o use the mi l i t a ry for l a wEnforcement. It is generally not the policy of western governments to use the military in law enforcement however police forces in the west are becoming more militarized. ―The police –Military formula adopted in respect of domestic order maintenance is one index of the nature of state-society relations. ‖3 Emphasis on the military as a solution to public order problems is thought of as a ―signal of profound instability, whereas reliance on the police suggests a more stable pattern of social relations‖.4 The concept of organised police forces was first developed in Britain (London) partly to avoid reliance on the military as the standard response to urban rioting. According to Donatella della Porter and Herbert Reiter ―it was of decisive importance that the police should become the principle agency responsible for safeguarding internal security and public order, thus marginalizing the military in this role.5

1 "a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force Major Craig T. Trebilcock, U.S. Army Reserve The Myth of Posse Comitatus 2000 http://www.homelandsecurity.org/journal/articles/trebilcock.htm

3 John, D Brewer, Adrian Guelke, Ian Hume, Edward Moxon-Browne, Rick Wilford ―the Police, Public Order andthe State 1988 MacMillan Press

4 Ibid5 Donatella della Porter and Herbert Reiter Policing Protest ―The control of Mass Demonstrations in Western

Democracies‖ 1998 University of Minnesota Press.

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However when facing serious internal disorder, a number of states have adopted ―police militarisation‖ as a means of preventing or quelling disorder.6 Here the use of force is deployed in systematic and calculated ways in response to protesters, human rights defenders and those exercising their right to freedom of expression and assembly. 7

It has been argued that the police are not dutiful and dispassionate enforcers of order that they were once perceived to be, but that they are a political institution and a policy actor with decided views about the means they consider necessary to achieve social order.8

Therefore the condition of state-society relations can be gauged by the nature and form of police- society relations which is revealed in the realm of public order.9 To understand the public order/human rights paradigm it is essential to look at the legal formation of the right to protest, after which we will then turn to the police powers and responses to the exercise of these rights. Itwill be shown that the states reaction to the threat of public disorder is disproportionate and that individual police officers are over empowered to deal with public order offences. Therefore this tendency to create a crime control justice system10 has a detrimental effect on human rights, due process and democracy and lends itself to the creation of a police state. Vigilance against this trend is the price of liberty.11

The Right to Protest

According to Allen Buchanan and David Golove, human rights are by definition those ―moral entitlements that accrue to all persons, regardless of whether they are members of this or that particular polity, race, ethnicity, religion, or social grouping‖.12

Larry Alexander states that a human right is a moral right that can be invoked by any person at any place.13 For Immanuel Kant morality ―arises and can only arise from freedom‖. 14 John Locke

6 Ibid7 According to Amnesty International ―Human rights defenders expose violations and campaign for redress for

victims. They are the people who on their own or with others take action to ensure the promotion and protection of human rights for all. The important thing is not who they are, but what they do. Human rights defen ders take peaceful action and believe everybody has equal rights‖.

8 John, D Brewer, Adrian Guelke, Ian Hume, Edward Moxon-Browne, Rick Wilford ―the Police, Public Order andthe State 1988 MacMillan Press9 Ibid

10 Packer HL. Journal of Criminal Law, Criminology and Police Science 57 J. Crim. L. Criminology & Police Sci. (1966)

11 "But you must remember, my fellow-citizens, that eternal vigilance by the people is the price of liberty, and that you must pay the price if you wish to secure the blessing. It behoves you, therefore, to be watchful in yourStates as well as in the Federal Government." -- Andrew Jackson, Farewell Address, March 4, 183712Allen Buchanan and David Golove ―The Philosophy of International Law‖ in the Oxford Handbook ofJurisprudence and the Philosophy of Law (J. Coleman and Shapiro, eds., 2002): 868934,888.

13 Larry Alexander ―Is there a right to freedom of Expression?‖ 2005 Cambridge University Press

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14 MDA freeman Introduction to Jurisprudence p113 sweet and Maxwell 2008

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claimed that all humans15 have reason and are equal.16 Natural lawyers are not at idem however the proposition that human rights are derived from reason or from God and they vest in the person by virtue of their status as a human being is persuasive. This is evident in the American declaration of independence which claimed that ―that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...".17 Cicero described ―natural law as the right reason with nature‖.18 Human Rights can be claimed by any human being, they are superior and antecedent to any man made law.19

The right to protest is derived from a number of fundamental rights including freedom of expression, freedom of assembly and freedom of association which are recognised in natural law, constitutional law and international human rights law20. While no human rights instrument or national constitution grants the absolute right to protest, such a right to protest is a manifestation of the aforementioned rights.

Protest can be defined as the public manifestation of dissent or discontent. Protests are a form of human expression they include acts or even omissions. A protest may involve a single individual or a group and can be a manifestation of social conflict. Protests and demonstrations are often held in response to government policies, police brutality, capitalism, globalization, civil liberties, poverty, food prices and much more. They can include marches, sit-ins, strikes, boycotts, riots, destruction of property, obstruction, trespass, lock-ins, confrontations, rallies and disturbances to mention but a few forms. As the discourse between public order policing and protest continues, more and more inventive ways are conceived to protest which include tunnelling under construction works or people being erected onto tripods to block roads which create serious health and safety liabilities for all involved.

Freedom of Expression

Freedom of expression is absolutely fundamental to a free democratic society. The Universal Declaration on Human rights bears this out and provides that everyone has the right to freedom of opinion and expression.21 The First Amendment to the American Constitution expressly protects the freedom of speech and the Philosopher John Rawls believed that ―freedom of expression is a liberty that a just liberal society must grant‖.22 In order for a society to be

15 Excluding children and the mentally ill.16 MDA freeman Introduction to Jurisprudence p107 sweet and Maxwell 200817 In Congress, July 4, 177618 He claimed that ―a legislature which said that thief or forgery of wills or adultery was lawful would no more be

making laws then what a band of robbers might pass in their assembly” MDA Freeman Introduction toJurisprudence p107 sweet and Maxwell 2008

19 The American Declaration of Independence; We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

20 Article 10 ECHR and Article 19. UDHR Everyone has the right to freedom of opinion and expression; this rightincludes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

21 Article 19 UDHR22 John Rawls a ―theory of Justice” 222-51971

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considered democratic, this presupposes a right to freedom of expression. The legal and philosophical justifications for these rights will be dealt with in turn.

Freedom of expression is widely acknowledged as a fundamental right in a liberal democracy. 23

However while in the United States this right is strongly protected, in Europe the right is much more restricted. Academics argue that there are important and legitimate reasons why freedom of expression be restricted in order to protect other important rights and freedoms such as the right to a fair trial, the right to ones good name or to a private life.24 It is these competing interestswhich are referred to in the Irish Constitution of 1937.

An Bunreacht na hÉireann

Freedom of Expression is guaranteed under article 40.6.1 of the Irish Constitution 1937. According to Gerard Hogan and Gerry Whyte ―the right of freedom of expression has long been recognised as a cornerstone of any properly functioning democracy‖.25 The right is also recognised as an unenumerated right under Article 40.3.1 which is protected as an unspecifiedright implicit in the Irish constitution.

Article 40.6.1 states:

―The State guarantees liberty for the exercise of the following rights subject to public order and morality;-

(1) The right of the citizens to express freely their convictions and opinions.The education of public opinion being, however a matter of such grave import to the common good, the state shall endeavour to ensure that the organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of government policy, shall not be used to undermine public order or morality or the authority of the state.The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

Here it is evident that the state seeks to limit freedom of expression by reference to other competing interests including public order which demonstrates the tension that exists between the maintenance of public order and the protection of human rights.

The Constitution contains implicit and explicit restrictions on the rig ht which are designed to protect competing rights such as the right to ones good name in Article 40.3. Also the right to privacy has been recognised as an unenumerated right and is protected by Article 40.3 of the Constitution where freedom of expression would lead to a violation of the right to privacy it

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23 Micheline Ishay ―The History of Human Rights: From Ancient Times to the Globalization Era‖ University ofCalifornia Press 2008

24 Howard Davis ―Human Rights Law‖p332 2007 Oxford25 See Kelly, J. M. (John Maurice) The Irish constitution / J.M. Kelly.3rd ed. / by Gerard Hogan and Gerry Whyte.

Dublin, Buttersworth, 1994. And Moriarty and Mooney Cotter, Human Right Law, The Law Society of Ireland, Oxford University Press p134 2004

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might reasonably be restricted.

While the right to freedom of expression in Ireland has not seen the same level of litigation as the equivalent right in the United States, according to Moriarty and Mooney Cotter ―this does not mean that the right is not exercised,... however parties to litigations and the judiciary seem to be more concerned with the practical limits on the exercise of the right than its intellectual or constitutional basis‖26 Moriarty is correct that the right is exercised in Ireland however the protection of freedom of expression and freedom of speech in Ireland falls far short of that which is maintained in the United States.

The Common Law

Freedom of expression is well recognised at Common Law. Common law judges in Britain have on a number of occasions, insisted that that there is no incompatibility between the degree of protection afforded to expression under common law and the protection afforded to expression under Article 10 of the European Convention on Human Rights (ECHR).27

In AG v Guardian Newspapers and Others28 Lord Goff stated that,

―We may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long, if not longer than, it has existed in any other country in the world...the only difference is that where as Article 10 of the ECHR proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather on the assumption of freedom of speech, and turn only to our law to discover the established exceptions to it‖

Freedom of expression has been recognised by the Law Lords in England and has beenestablished with ―the statues as a constitutional right with attendant high normative force‖.29

In England the common law restrictions on freedom of speech can arise with regard to matters such as: defamation, the protection of confidential material or breach of confidence, intellectual property rights including copy right and trade mark and in criminal law, public order offences committed during political or other demonstrations.30

According to Lord Steyn ―freedom of expression is the rule and regulation of speech is the exception requiring justification‖.31 This places a strong level of protection on the right by the House of Lords implying that the right must only be restricted only in exceptional cases and in

26 Kelly, J. M. (John Maurice) The Irish constitution / J.M. Kelly.3rd ed. / by Gerard Hogan and Gerry Whyte.

Dublin, Buttersworth, 1994 and Moriarty and Mooney Cotter, Human Right Law, The Law Society of Ireland,

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Oxford University Press p135 200427 Howard Davis ―Human Rights Law‖p332 2007 Oxford28 (no 2) [1988] 3 All ER 545 65929 McCartan Turkington Breen v Times Newspaper 2000 4 All ER 9134, 92630 Richard Stone Civil liberties and Human Rights p25731 Reynolds v Times Newspapers Ltd[1999] 4 All ER 609, 628

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these cases the restriction must be justifiable. However both common law and statute law place restrictions on the right to freedom of expression in the interests of the administration of Justice, protecting other rights, public morality, obscenity and censorship.32

The European Convention on Human Rights

The European Court of Human Rights (ECtHR) has continuously recognised the importance of the right to freedom of expression within the Convention scheme since one of its earliest cases Handyside v United Kingdom33.

The court stated that ―freedom of expression is necessary for individual self-fulfillment, and an essential foundation of a democratic society. A democratic society, characterized by pluralism, tolerance and broadmindedness, is a necessary condition in which human rights can be protected and justice and peace can flourish‖.34

Article 10 is stated to include the freedom to hold opinions and to receive and impart information and ideas without interference by a public authority and regardless of frontiers. 35 The right to receive and impart information is presumed to encompass the right to attend events in public where information is imparted as well as the right to impart information at such events.36

The duality of Article 10 is demonstrated by the fact that it both protects and restricts freedom of expression and makes it clear that freedom of expression is not an absolute right and can be restricted in accordance with paragraph 2 of the same article.

Dr. Howard Davis states that the approach the European Court of Human Rights has been to ask...

―Is an act of speech, writing or some other type of expression in issue in the case? If the answer is yes then...

Is it a type of expression that is protected under the terms of the first paragraph of Article

10? If the answer is yes then... Has the expression been restricted by a court, state agency or police? If so then...

Has the state shown that the restriction is justified in terms of article 10 para 2 i.e. that it was imposed by law. That it was aimed to achieve one of the purposes listed in paragraph2 and that it was necessary in a democratic society in the sense of being a proportionate means of meeting a pressing society need?37

32 Censorship of Publications Acts 1929-1967 and Censorship of Films Acts 1923-199233 (1976) 1 EHRR 73734 Handyside v United Kingdom (1976) 1 EHRR 737. para 49 also see Lingens v Austria (1986) 8 EHRR 407, para

41 and Freessoz and Roire v France (2001) 31 EHRR 2 para 4535 Walsh D Human Rights and Policing in Ireland p216 Clarus Press 2009

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36 Ibid37 Howard Davis ―Human Rights Law‖ p 334 2007 Oxford

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According to Davis ―On the basis of this approach, a courts‘ job involves balancing the freedom of expression with the arguments for the restrictions. The latter may be in terms of a collective good that the restriction promotes or the rights of the individual that the restriction protects. In this balancing exercise the European Court of Human Rights gives greatest weight to political speech that is broadly defined as speech involving the discussion of public and social affairsfor which only the most compelling reasons justify a restriction.38

The European Court of Human rights has the final say on whether any restriction on freedom of expression is compatible with Article 10. It requires that national law must be narrowly construed and government actions be subject to close scrutiny. The court has summarized its role in this way...

―The Courts task, in exercising its supervisory jurisdiction, is not to take the place of the competent national courts but rather to review under article 10 the decisions they delivered in the exercise of the power of appreciation. This does not mean that supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was proportional to the legitimate aim pursued andWhether the reasons adduced by the national authorities to justify it are relevant and sufficient. ‖39

Depending on the issue the Court of Human rights allows a margin of appreciation to states, which is wide on moral issues and narrow on political speech.

At first sight the protection, which is afforded to freedom of expression by Article 10 ECHR, appears wider than that of the Irish Constitution Article 40.6.1. According to Moriarty and Mooney Cotter ―The latter is circumscribed by public order and morality while any interference with freedom of expression violates article 10 ECHR unless it is proscribed by law and is necessary in a democratic society‖.40

In the jurisprudence of the European Court of Human Rights (ECtHR) the word ―necessary‖ in this context implies both the existence of a ―pressing social need‖ and that the interference with the freedom of expression is no more than is ―proportionate to the legitimate aim pursued‖.

Hamilton CJ stated that it was his belief that ―there does not appear to be any conflict between Article 10 and the common law or the Irish Constitution‖ 41 Similar views were expressed by Geoghegan J in the earlier Supreme Court case of Murphy v IRTC42.

In 1997 Geoghegan J stated that, ―Although the European Convention on Human Rights is not part of Irish Municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed

38 Howard Davis ―Human Rights Law‖ p334 2007 Oxford39 Association Ekin v France (2002) 35 EHRR 35 para 5640 Kelly, J. M. (John Maurice) The Irish constitution / J.M. Kelly.3rd ed. / by Gerard Hogan and Gerry Whyte.

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Dublin, Buttersworth, 1994 and Moriarty and Mooney Cotter, Human Right Law, The Law Society of Ireland, Oxford University Press p135 2004

41 De Rossa v Indepenent Newspapers 1999 4 IR 432 at 45042 1997 2 ILRM 467, Supreme Court Judgement as at 1999 1 IR 12

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on the exercise of the right‖43 Article 10 extends to the right to organize and participate in public demonstrations, marches, protests and rallies, as well as to disseminate information, opinions and ideas verbally or otherwise. 44

Under the Good Friday Agreement the Irish Government is committed to ―ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland‖. The Irish Government also agreed to incorporate the European Convention on Human Rights into Irish Law and to that end, enacted the European Convention on Human Rights Act 2003.

Freedom of Assembly

The Common Law

In 1819 the Court of Common Council recognised ―the undoubted right of Englishmen to assemble together for the purpose of deliberating upon public grievances‖. Lord Denning referred to this in Hubbard v Pitt45 and continued that ―Such is the right to assembly, so also is the right to meet together, to go in procession, to demonstrate, and to protest matters of public concern. As long as all is done peaceably and in good order, without threats or incitement to violence or obstruction to traffic it is not prohibited‖.46

Richard Stone contends that Lord Denning is not talking about a very strong right and goes on to state that in Hohfeldian terms it appears to be simply a ―privilege‖ that is a freedom to act in a particular way as long as no one else is affected by the behaviour.47

Stone claims that this has been the general approach to meetings and demonstrations by the English Courts. ―They are permissible but if they constitute any type of interference with the rights of others, even politically insignificant rights, such as the use of a highway the courts will be quite prepared to intervene‖.48

In Beatty v Gilbanks49 the divisional Court held that a procession could not be regarded as an unlawful assembly simply because others were trying to disrupt it in a way that may well lead to a breach of the peace. Stone describes this judgement as one of the high points in the recognition of the right of assembly.50

In Duncan v Jones51 Lord Hewart CJ expressed the view that;

―English law does not recognise any special right to public meeting for political or other

43 Murphy v IRTC [1997] 2 ILRM 46744 Walsh D Human Rights and Policing in Ireland p216 Clarus Press 200945 [1976] QB 14246 Hubbard v Pitt [1976] QB 14247 Richard Stone ―Civil Liberties and Human Rights p 256 Oxford 200848 Ibid49 188250 Ibid51 [1936] 1 KB 218

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purposes. The right of assembly... is nothing more than a view by the court of individual libertyon the subject‖.52

In Hirst v Chief Constable of West Yorkshire53 demonstrators were convicted of obstruction because the magistrates took the view that the only lawful use of a highway was to pass and to re-pass about one's lawful business and for any purposes incidental to that.

Under common law there has been a tension and a discourse in the development of the right to protest whereby the right to protest and to demonstrate on the one hand and the need for peace and good order on the other must be balanced ―so that freedom to protest on issues of public concern would be given the recognition it deserves‖.54

This recognises the right to demonstrate as a relevant factor to be considered in assessing the reasonableness of a person‘s use of the highway.

In DPP v Jones55 the House of Lords gave some support to the right of assembly, Lord Irvine and Lord Hutton held that there was a right to peaceably assemble on a public highway provided that it does not obstruct the public's primary right of passage.

Subsequently the Divisional Court held in Birch v DPP56 that a person lying down in a road outside premises which were being targeted by a demonstration had no defence to a charge under (s) 137 of the highways Act 1980.57

Stone describes the approach of the English courts on this issue as ―ambivalent‖ On the one hand the right to protest and demonstrate has sometimes been recognised but, on the other hand, even where it has, obstruction to traffic may well be enough to override it. Stone states that it cannot be said that there has been any strong support given to the right.58

Bunreacht na hÉireann

The Right of Assembly is a constitutional right under Article 40.6.1 and is expressed in AG v

52 Duncan v Jones [1936] 1 KB 21853 (1986) 85 CR App R 14354 Richard Stone Civil liberties and Human Rights p257 2008

55 1999 2 All ER 25756 2000 Crim LR 30157 Interestingly the defendants defence revolved around the contention that there were illegal activities taking

place on the premises and that his action were designed to prevent a crime taking place and were therefore consistentwith s 3 of the Criminal law Act 1967. This defence has also been raised in Ireland where a US military Aircraftwas damaged by protestors seeking to disrupt military operations in Iraq which they believed to be illegal. InBirch v DPP the court held that this defence could not be used for a charge under s 137 of the Highways Act

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1980 and that this type of use of the highway was not reasonable.58 Richard Stone Civil Liberties and Human Rights p 258 2008

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Paperlink Ltd59

The Irish Constitution guarantees to the citizen the right to assemble peaceably and without arms. Again the right is not absolute; the exercise of this right is subject to public order and morality. The law prevents or controls meetings which are calculated to cause a riot or a breach of the peace. Also meeting on private property without the consent of the owner is a trespass and may cause a nuisance and may be restricted. It is a public nuisance to obstruct the highway with a meeting, though a parade or procession is not unlawful. The offence of ―watching and besetting‖ is committed when a premises are picketed though picket ing in furtherance of a tradedispute is permitted. 60

It is an offence under the Offences Against the State Act 1939 to hold a meeting or procession in any public place within one half mile of the Irish Parliament Building (Oireachtas) when either house is sitting, which has been prohibited by a Garda member not below the rank of Chief Superintendant and a Garda calls on the people taking part to disperse. It is also an offence topicket any court.61 In this sense the right of assembly is restricted and it must be said that publicassembly and protest in Ireland is allowed for, but only in circumstances which are permitted by the state. However the European Convention on Human Rights offers more by way of recognition and protection to the right.

European Convention on Human Rights

The Protection afforded to freedom of assembly and association by Article 11 differs from that afforded to article 10 ―in that it is more directly and narrowly focused on the collective right to assemble in public or to organise as a group.62 In many ways Article 11 provides the strongest protection for the right to protest because it protects the right to peaceful assembly, which meansin effect to hold and take part in peaceful meetings, marches and demonstrations. It also protectspeople‘s right to associate and there by join and be active in associations. 63

Article 11 of the ECHR protects the right of people to peacefully assemble, to hold meetings, marches and demonstrations. Democratic society demands the protection of individual rights to take part in public life and to be politically active. Article 11 is not concerned with the actions or words of the group or association once they have assembled or formed.64

Article 11 of the ECHR states that:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed

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59 [1984] ILRM 37360 Kelly, J. M. (John Maurice) The Irish constitution / J.M. Kelly.3rd ed. / by Gerard Hogan and Gerry Whyte.

Dublin, Buttersworth, 199461 Brian Doolan Principles of Irish Law 1989 p54 Gill and MacMillan62 Walsh D Human Rights and Policing in Ireland p216 Clarus Press 200963 Dr. Howard Davis, Human Rights Law, p363 Oxford 200764 Walsh D Human Rights and Policing in Ireland p216 Clarus Press 2009

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by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

State interference with the right must be proscribed by law under article 11. Interference must be for one of the purposes listed in paragraph 2 and not for any others. Interference with the right must also be proportionate and necessary.

It is worth noting that the prevention of disorder and crime is not specifically mentioned as a legitimate ground for restriction with respect to article 11.65

Politically Marches, meetings and demonstrations are protected by the convention however these activities can also be thought of as freedom of expression as opposed to freedom of assembly and therefore the ECHR may deal with them under Article 10.

According to Dr Howard Davis the ECHR will dismiss Article 11 claims unless a new issue is raised which has not been raised under Article 10 already. Which was the case in Steel and others v United Kingdom.66

It has been stated that there is only a limited jurisprudence from the ECtHR on how these rights impact directly on police public order powers.67

The protection for the right to protest under the ECHR only extends to peaceful assembly; this has been recognised by the European Court of Human Rights as a ―fundamental right in a democratic society... one of the foundations of such a society.68

Article 11 provides protection to meetings and marches which take place on public or private lands. However the protection does not extend to actions taken which are intended to stop others who are acting in a lawful capacity. 69

Therefore under the ECHR the police are entitled to take appropriate action which is necessary and proportionate in response to violent demonstrations or actions. In this regard they are limited by Article 3 of the Convention with regard to torture and inhuman treatment and also article 2 which permits the use of lethal force to quell a riot or insurrection.

Article 11 may also require a positive duty on the state to ensure that individuals are permitted to engage in a public demonstration. A demonstration should not be banned or dispersed simply because of the threat of a counter demonstration.70 Reasonable steps must be taken by police to

65 Walsh D Human Rights and Policing in Ireland p215 Clarus Press 200966 1999 28 EHRR 60367 Walsh D Human Rights and Policing in Ireland p217 Clarus Press 200968 Adali v Turkey App 38187/97 judgement of 31 March 200569 Dr Howard Davis Human Rights Law p362 Oxford University Press 200770 Walsh D Human Rights and Policing in Ireland p217 Clarus Press 2009

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facilitate both and to prevent one being disrupted or interfered with by the other.71

In Platform “Arzte fur das Leben” v Austria72 the court ruled that the Austria authorities had failed in their duty to take positive measures to protect the applicants rights under article 11 where an anti abortion demonstration was interfered with by a counter demonstration despite the heavy police presence.

Participants in counter demonstrations which are likely to cause a breach of the peace do not necessarily lose their article 11 rights. The state is still under an obligation to protect the right to demonstrate. In Redmond-Bate v DPP73 it was held that applying the convention to English law suggests that the right to protest must be respected even if others find it irritating andunwelcome.

Freedom of Association

Bunreacht na hÉireann

The State is generally not entitled to restrain parties from associating together or forming unions or associations based on a common interest or concern. By the same token, the State is generally precluded from forcing individuals to be part of an organisation of which those individuals disapprove.74

Freedom of Association however is not absolute; the Irish State can curtail such freedom where the curtailment is necessitated by considerations of public order and morality.

In the case of Norris v AG75 the Supreme Court noted that the right to associate with other persons was limited in that it did not privilege association for the purpose of engaging in homosexual acts. This interpretation of the limitations on freedom of association was rightly found to violate the European Convention on Human Rights but is still indicative of the judiciaries‘ willingness to restrict human rights based on their own conservative interpretation o f the Constitution.

The Irish Constitution guarantees to the citizen the right to freedom of association subject to public order and morality. The types of organisation which may be formed are unlimited; they may be sporting, social, charitable, commercial or political in nature. Except in the area of employment, the law does not prevent discrimination regarding membership. However associations formed for treasonable, anti-constitutional, or illegal purpose cannot claim thisfreedom of association.76

71 Walsh D Human Rights and Policing in Ireland p215 Clarus Press 200972 (1982) 4 EHRR 20473 [1999] Crim LR 99874 Fergus Ruan Constitutional Law p122 Roundhall 2002

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75 1984 I.R 3676 Kelly, J. M. (John Maurice) The Irish constitution / J.M. Kelly.3rd ed. / by Gerard Hogan and Gerry Whyte. Dublin, Buttersworth, 1994

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European Convention on Human rights

The Convention provides legal protection for freedom of association under article 11. Paragraph1of the Article enumerates the right and states that;

―Everyone has the right to freedom of peacefully assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests‖.

Paragraph 2 goes on to place limitations on the right, stating that;

―No restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of crime , for the protection of health or morals, for the protection of the reputation or rights of others. This article shall not prevent the imposition of lawful restrictions on the exercise of rights by members of the armed forces, of the police or of the administration of the state‖.

These associations may include political parties, pressure groups religions, and trade unions are expressly mentioned. Article 11 has been described as ―one of the rights by which political freedom (the right to political action or to participate in public affairs) is secured in the convention.77

The right of the individual to join and take part in the activities of association is recognised by the European Court of Human rights as being fundamental to the concept of a democratic society if it is to be pluralist and tolerant.

Article 11 Protects the right to associate in the sense of being in the company of others Anderson v United Kingdom78. The laws of a signatory state to the convention must properly recognise the groups and associations which are to be protected, the laws of the state must enable people to form, join and participate in the activities of such organisations.

Restrictions and interferences with the right must be justified under the terms of article 11 (2). The fact that a group is not recognised as an association under the laws of a state is not sufficient justification for and interference. The concept of an association is thought of as an autonomous convention concept.

Some of the most controversial cases hear by the European Court of Human rights have concerned association and political parties which have been proscribed. Article 11 allows organisations, associations and political parties to be proscribed in accordance with law.

It can be seen that the right to protest, to meet, assembly and to form associations designed to achieve a certain ends are all present throughout the historical development and recognition of fundamental rights in the common law jurisdiction. However the right to protest is heavily

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77 Ibid78 EHRR CD 172

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restricted in favour of public order which will not cause a problem as long as governments maintain the legitimacy obtained through the consent of the people. However in the absence of that factor Thomas Jefferson put it best when he said "A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self- preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us; thus absurdly sacrificing the endto the means."79

It is the creation of laws which restrict individual liberty without independent oversight, accountability and a system of checks and balances that poses a threat to a free society. It is to the powers granted to agents of the state to restrict individual liberty that we turn to now.

79 Thomas Jefferson to John Colvin, 1810

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POLICING AND PUBLIC ORDER

Introduction

In the past the proposition that the friendly police man is somehow tarnished by politics or acts as an agent of the state would have been dismissed as ―the fevered imaginings of the mad, bad or dangerous classes‖.80

However there have been attempts by conservative governments in Britain since 1979 to redefine the relationship between state and society which has lead to a critical reappraisal of the role of the police. This redefinition by political regimes has been mirrored in Ireland. The heavy emphasis on social order which is characteristic of neo-conservatism, together with its rejection of the post-war consensus, has generated a perception of the police at odds with the conventional view of them as the ―disinterested arbiters of social conflict‖.81

It has been argued that in Britain ―the role of the police in upholding the status quo was for much of the period after 1945, conducive to a broadly harmonious relationship with the vast majority of the wider population‖.82 However the role of police has now changed and they are no longer the dutiful and dispassionate enforcers of order, in fact, they are a political institution and a policy actor with decided views about the ways and means they consider necessary to achieve social order.83 This can be seen by police actions and omissions in England after the police officers shot Mark Duggan dead in a mini-cab in North London which lead to first peaceful protest, then rioting and looting.84

The type of rioting and looting London experienced in august 2011 must be distinguished from legitimate public protest and while the maintenance of public order is an important part of police operations it also may intrude deeply into the fundamental rights of citizens. As outlined earlier these fundamental rights are vitally important to democracy and they include the right to ―engagein public protest against government policies‖.85 It could be argued that the austerity policies andgettoization of minorities by successive British Governments has led to a backlash of civil disobedience, it must be noted that the sporadic looting, arson and rioting, although organised through social media such as ―tweeter‖ and ―black berry messenger‖ lacks the legitimacy of formal organised political demonstrations and protests.86

80 John, D Brewer, Adrian Guelke, Ian Hume, Edward Moxon-Browne, Rick Wilford ―the Police, Public Order andthe State 1988 MacMillan Press

81 Ibid82 Ibid83 John, D Brewer, Adrian Guelke, Ian Hume, Edward Moxon-Browne, Rick Wilford ―the Police, Public Order and

the State 1988 MacMillan Press84 http://www.bbc.co.uk/news/uk-england-london-1442394285 Walsh D Human Rights and Policing in Ireland p215 Clarus Press 2009

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86 If people lack the fundamental knowledge to understanding how to organise and mobilize against their own oppression and marginalization perhaps the only form of protest they may engage in is violence.

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The use or misuse of police power may facilitate, frustrate or repress the exercise of the right to protest in order to maintain public order depending on the political viewpoint which is being expressed. For example in September 2009 a protest held by farmers in Athlone, Co. Westmeath against the policies of the ruling government party in Ireland lead to an attempt to storm a building. Scuffles with Police officers were reported but no arrests. However the protest did leadto the political party agreeing to meet the Farmers organisation for talks.87 In contrast, Gardaresponses to political protests at the site of the Royal Dutch Shell Petroleum Company owned Corrib gas pipeline in Co Mayo have lead to 111 Complaints about Gardai conduct to the Garda Ombudsman Commission and a report from a human rights organisation (Frontline) criticizing private and public policing of the protests88

This uneven approach directly affects the health of the pluralist democracy envisaged by the constitution. Police power can and has been used to enforce social and economic norms by suppressing public demonstrations in opposition to the ―dominant economic and social order‖.89

In November 2010 members of the Gardai baton charged and clashed with students who were protesting a particular political viewpoint.90 By the 9 of November 28 complaints regarding Garda behaviour had been made to the Garda Ombudsman.91 Not only can police use of public order powers affect the political discourses but it can also pose a threat to individual liberty when police public order power and force is used without reasonable excuse.

Policing Protests

The European Court of Human Rights has not yet recognised that the right of liberty protected under Article 5 of the Convention extends to the free movement and presence of the citizen in a public place at any given time. Rather the Court restricts the right to include situations where a person is detained or arrested by the state. However, conventional protest and detention methods are developing quickly and the modern police practice of kettling protesters into an area such as a street or field amounts to a de facto detention. Often persons who have been kettled may besubject to searches and questioning before being released.92

A legal challenge has been brought the European Court of Human Rights93 claiming that these

87 The Irish Independent Newspaper ―Farmwers try to storm FF meeting in Athlone‖14/9/2009http://www.independent.ie/national-news/farmers-try-to-storm-ff-meeting-in-athlone-1886188.html

88 Brian Barrington for frontline ―A breakdown in trust‖ A report on the Corrib Gas dispute‖ http://www.frontlinedefenders.org/files/en/corrib_gas_report.pdf . The report, also found leading campaigner Willie Corduff had been assaulted even though no charges are being brought against security staff from I-RMS or Gardaí. The Garda Ombudsman has dealt with 111 complaints over policing but only seven files werecompiled for the DPP and only one of those may lead to internal disciplinary action. A spokesman for the Garda Ombudsman said: ―It would not seem to us now, with over 100 complaints investigated, it would not seem appropriate to start our original examination at this time. ―It is entirely at the minister ‘s discretion.‖

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89 Ibid90 RTE News ―Gardaí, students clash in Dublin‖ 3 November 2010

http://www.rte.ie/news/2010/1103/education.html91 The Journal.ie ―Garda Ombudsman investigates 28 student protest complaints‖ 9 Nov 2010

http://www.thejournal.ie/garda-ombudsman-investigates-28-student-protest-complaints-2010-11/92 Reports from student protests in London 201193 by Phil Shiner, of Public Interest Lawyers.

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police tactics breach articles 5, 10 and 11 of the European convention on human Rights.94

The ECHR has dealt with interference and restraint of the individuals‘ ―freedom of behaviour in a public place‖ under the headings of freedom of assembly, association and expression,95

which were dealt with in the previous chapter.

However the jurisprudence on this point will have to be expanded and the protection for individual rights increased. It has been argued that ―when the police intervene to prevent or break up a protest they will often resort to their common law power of arrest for breach of the peace (or behaviour likely to lead to a breach of the peace) against the individuals who resist or refuse to disperse‖.96 This amounts to ―an exceptionally broad discretionary power in the hands of the individual police officer which in turn does not satisfy the requirements of article 10 and 11‖.97

In order for the power to satisfy the convention, the power to interfere with the right must be proscribed by law.

In Steel and others v United Kingdom98 the European Court of Human Rights held that the concept of breach of the peace was sufficiently well defined by the case law to meet the standards of the convention.99 However in contrast the Law Commission of England and Wales considered the concept of breach of the peace to be too vaguely defined to satisfy the requirements of natural justice when used as the basis for a binding over order.100

Therefore it can be argued that the ECHR approach based on the loosely defined concept of breach of the peace leaves too much discretion in the hands of the individual police officer.

In Harsh and Harrup v United Kingdom101 the applications were bound over to keep the peace and be of good behaviour, where a prior breach of the peace had not been established. The Court concluded that the order was not prescribed by law and was not satisfied that what the applicants were being bound not to do would have been apparent to them. Although the court was concerned with an order restraining future behaviour on the part of the applicants, it has been claimed that the ruling ―has implications for the power of arrest based on breach of the peace orbehaviour likely to lead to a breach of the peace.102

The Case of Steel and others v United Kingdom103 does shed some light of the limits to which the state can restrain freedom of expression through arrest for behaviour likely to cause a breach of the peace.

94 Matthew Taylor, The Guardian Newspaper. ―student fees protest kittling human rights‖ 14 Dec 2010http://www.guardian.co.uk/education/2010/dec/14/student-fees-protest-kettling-human-rights

95 Walsh D Human Rights and Policing in Ireland p215 Clarus Press 200996 Walsh D Human Rights and Policing in Ireland p218 Clarus Press 200997 Ibid p21898 (1998) 28 EHRR 60399 Ibid100 Law Commission Binding Order (London HMSO, 1994) at para 4.3.4.101 (2000) 30 EHRR 241102 Walsh D ―Human Rights and Policing in Ireland‖ p219 Clarus Press 2009. Walsh states that ―If it would not be

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clear to the applicants what it was they were prevented from doing by an order binding them over to keep the peace.... it is difficult to see how they could be aware of the limits of the behaviour that would expose them to an arrest for breach of the peace.‖

103 1999 28 EHRR 603

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The case consisted of three situations, in the first situation the applicant disrupted a goose shoot by walking in the firing line of those taking part. She was arrested and detained in order to prevent her from engaging in any further breach of the peace.

The second situation involved the disruption of construction operations by the applicant during the course of a protest against the construction project. She was arrested while standing under a digging machine for behaviour likely to provoke a breach of the peace.

In the third situation the applicants were distributing anti-war leaflets while standing outside of a conference on fighter helicopters and were subsequently arrested for behaviour likely to lead to a breach of the peace.

The European Court of Human Rights found that in the first two situations the arrests were proscribed by law and were affected in accordance with the substance and procedure of the law. The court considered that the police were justified in fearing that the behaviour of the protestors might, if persisted in, provoke others to violence.

Professor Dermot Walsh points out that it was ―important the police fears arose due to the actions of the protestors by interfering with the lawful rights of others‖.104

The court also found that the police detention of the goose shooting protestor for 44 hours was not a disproportionate interference with her freedom of expression. This conclusion was based on the risks provoked by her particular form of protest.

In the third situation the police action was held not to have overcome the first hurdle of article10. The Court held that the arrests were not prescribed by law as the actions of the protestors were entirely peaceful and did not interfere with the rights and freedoms of others. Therefore there were no grounds that the police could have foreseen a likely breach of the peace even under the broad definition of the concept in English law.

In Commission v France105 the European Court of Justice found that the free movement of good provisions of the treaty of Rome can operate to restrict the exercise of the right of freedom of expression and assemble under Article 10 and 11 of the ECHR. Here the French government had not taken sufficient steps to control demonstrations by French farmers, which had the effect of impeding the free movement of goods between France and other member states, however ―it does not follow that the free movements of goods provisions under the Treaty of Rome cantrump the right to public protest‖106

In R v Chief Constable of Sussex,107 the House of Lords upheld a police constables decision to provide a limited police presence to allow the applicant exporting company carry on its business of exporting live animals in the face of an animal rights protest. The police need to balance the

104 Walsh D Human Rights and Policing in Ireland p219 Clarus Press 2009105 [1997] ECR I-6959

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106 Walsh D Human Rights and Policing in Ireland p220 Clarus Press 2009107 ex parte ITF Ltd [1999] I all ER 129

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competing rights of protestors and others but regard must be had to the limited resources of the police.108

In Eugen Schmidberger, Internationale Transporte und Planzüge v Austria109 the ECJ held that the Austrian governments‘ decisions to allow an environmental protest that temporary blocked the movement of goods on the main motorway between Germany and Italy did not breach the free movement of goods provisions of the Treaty of Rome. There had to be balance between these provisions and the right to freedom of expressions and assembly in article 10 and 11 of the ECHR.

Provided that the appropriate balance is struck between the competing interests and rights then there would be no infringement of EU law. In the present case it was held that the government had struck the appropriate balance.

The European Code of Police Ethics

The broad principles of the ECHR represent best practice in the area of public order and policing protest.110 Furthermore the European Code of Police Ethics also contains a number of broad principles that have a direct impact on public order. It states that ―the police may use force only when strictly necessary and only to the extent required to achieve a legitimate objective‖.111 This suggests that the police should deal with public order situations through dialogue, persuasion and containment as a first resort with the possibility of prosecution after the event rather than the immediate and direct application of force. Police practice in Britain and Ireland has shown that the use of police force is often the first resort as can be seen from recent student protests and police reactions in both jurisdictions.112

Where the use of force is necessary to maintain public order in the streets the police must be careful to maintain objectivity and impartiality between opposing factions and to avoid a subconscious bias in the manner in which they deal with individuals on the basis of age, appearance, colour and ethnic origins.113 Racial profiling and targeting police stop and search power can lead to an alienation of minorities and a breach of the European Convention.114

Therefore these powers must be used with cultural sensitivity and without prejudice.

The code requires the police to take positive steps to uphold the rights of individuals in public,

108 Walsh claims that ultimately police resources are limited and that the police have to strike a balance between theprotestors‘ rights and other economics rights.

109 (Case C-112/00)110 Walsh D Human Rights and Policing in Ireland p218 Clarus Press 2009111 The European Code of Police Ethics; Recommendations Rec (2001)10 Strasbourg: Council of Europe,2002)

at para.37.112 Phil Shiner guardian.co.uk, Thursday 16 December 2010 ―If you want to protest, prepare to be kettled The

student demos have shown that kettling is now the police's first resort – threatening our fundamental rights‖

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http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/16/police-kettling-protest-rights-student- demos

113 Ibid at para .40.114 Alan Travis ―European court condemns police misuse of stop and search‖ guardian.co.uk, 12 January 2010

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including the exercise of the right to peaceful assembly, freedom of expression and movement. Therefore that the police may have to give protection to a lawful public demonstration of views to which others including the police may take offence and or find objectionable.

Garda Public Order Powers

The Gardai enjoy extensive public order powers to encroach on the exercise of human rights by individuals and public assemblies.115

It has been stated that ―the jurisprudence on the interpretation and application of Constitutional rights and freedoms in the public order context is sparse‖.116 Post 1937 there has been very little reported case law on the constitutional limits of Garda public order powers to restrict or suppress the exercise of the Constitutional rights. This is so in the instances where individuals or groupsexpress controversial and provocative views in a public place, protest against the lawful activities of others by seeking to disrupt those activities, engaging in a public protest or marches or demonstrations likely to cause public disruption or provoke a counter demonstration, the holding of a meeting or assembly on a highway or even just being present in open spaces.117

In Dunne v Fitzpatrick118 the High Court Stated that ―if in the course of an assembly a citizen commits a breach of the peace or some other breach of the law , he or she will have disturbed public order and his or her action will not be protected by the Constitution. This does little to develop the potential of Article 40.6.I.ii. Walsh claims that ―the freedom of expression and assembly protections of the Constitution can easily be circumvented in public order matters by the creation of very broad public order offences‖.119 This is the case when one looks at the types of offences provided for under the 1994 Public Order Act.120

The constitutional protection for fundamental rights in Ireland is relatively weak in comparison to the provisions of the European Convention on Human Rights.121 The Constitutional Review group has been critical of the limited protection for the rights to freedom of expression and freedom of association.122

115 Walsh D Human Rights and Policing in Ireland p222 Clarus Press 2009116 Ibid117 Ibid118 [1958] IR 29119 Walsh D Human Rights and Policing in Ireland p223 Clarus Press 2009120 These offences include, intoxication in a public place, threatening, abusive or insulting behaviour in a

public place, distribution or display of threatening, abusive, insulting or obscene material, failure to comply with a direction of a Garda, trespass, riot, violent disorder, affray, assault or obstruction of a peace officer

121 The freedom of assembly, association and expression protections in the constitutional are easily circumvented in public order matters by the creation of very broad public order offences.121 These powers are so arbitrary anddiscretionary they essentially amount to a conveyance of executive and judicial power to the Gardai in matters of

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public order. The Constitutional protection for these rights should be reformulated along the lines of Article 11 of the ECHR to achieve a better balance between the individual‘s right to assembly and the states power to regulate that right.

122 Report of the Constitution Review Group ( Dublin: Government Publications Office 1996)

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Common law and statue convey powers onto the Gardai for the purposes of maintaining public order. Common law grants Gardai the power to arrest for a breach of the peace. It also conveys upon them the power to use force to restore public order where it has broken down.123

The Gardai may arrest any person whom he or she has reasonable grounds to believe is engaged in a breach of the peace or behaviour likely to lead to a breach of the peace.124 This element of―reasonable grounds‖ for the arrest can always be made up after an unlawful arrest has taken place. Therefore it is argued that the ―exceptionally broad‖ powers conferred on the Gardai by the Public Order Act 1994 amounts to an almost arbitrary power of arrest.

This power has been described as ―exceptional broad‖ because the offence of ―breach of the peace‖ is without a precise definition. The definition in R v Howell125 would appear to be the most widely accepted...

―We are emboldened to say that there has been a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.‖ 126

The inclusion of behaviour amounting to a disturbance which results in a person fearing he will he will be harmed means that the offence of breach of the peace potentially extends to a whole range of offences because of the vagueness of what is meant by disturbance and harm.

This adds to the creation of an excessive power of arrest conferred on the Gardai and allows him or her discretion to decide when and where to use it. The power can be used against someone who is neither engaged in a breach of the peace nor reasonably suspected of engaging in a breach of the peace due to the vague ambiguous nature of the power. It can be used as a preventative measure to restrain an individual on the basis that his behaviour is likely to lead to a breach of the peace. Thus the discretionary power of the Gardai to define and prohibit behaviour which is in breach of public order laws as he or she sees fit presents a considerable ―threat to the exerciseof democratic rights and freedoms‖.127

The individual political viewpoint of the Gardai involved in deciding which behaviour to allow and which to prohibit creates an unwelcome bias or imbalance in favour of his or her ideological perspective or lack thereof.

This presents a risk that the exercise of this almost arbitrary power of arrest may stifle the democratic discourse by prohibiting public protest against the government or their policies. These powers may be used against young people or other individuals who are behaving in a way which is not unlawful but a way which the Gardai do not approve of.

Generally the Irish courts have showed excessive deference to the discretion of the police officer on the ground that if he or she fears a breach of the peace the courts will uphold his or her

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123 Ibid124 Ibid125 [1982] QB 416 at 427126 R v Howell [1982] QB 416 at 427127 Walsh D Human Rights and Policing in Ireland p224 Clarus Press 2009

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actions in restraining freedom of expression or assembly where the restrains in question are calculated to avert the breach of the peace.128

According to Professor Dermot Walsh ―this is the case regardless of whether or not the behaviour was actually unlawful or not‖.129 He cites Humphries v O Connor130 to explain this where the courts upheld the actions of the police in removing an ―orange lily‖ from an individual where the officer had reason to believe that the wearing of the lily might lead to a breach in the peace by others.

In O‟Kelly v Harvey131 it was held lawful for the police to disperse a lawfully assembly where they had reasonable grounds to believe that it might lead to a breach of the peace by others. The police may arrest a person who has not committed a crime where they have reason to do so to prevent a breach of the peace by others against that person.132

It has been claimed that the Irish courts have not been given the opportunity in recent times to pronounce whether these cases still reflect the appropriate balance between the constitutional right to freedom of expression and police public order powers.133

The Jurisprudence of the European Court of Human Right and the English case law reflects what has been described as a ―more developed commitment to the rights and freedoms of the individual‖.134

Since the enactment of the Human Right Act 1998 the English court s have deviated from their nineteenth century pro-police approach and have adopted a more interventionist approach, which affords more respect for the rights of the individual.135

In Redmond-Bate v DPP136 a woman was arrested on the ground that the police officer believed that the woman‘s ―preaching‖ was attracting a hostile crowd, which might lead to a breach in the peace if she did not stop.

The divisional Court upheld the appeal against the conviction because the constables‘ apprehension of a breach of the peace had to be reasonable for an arrest to be lawful. The constable had to consider where the threat to the peace was coming from and whether the appellant‘s words or behaviour would provoke a violent reaction and whether that reaction would not entirely be unreasonable. The constable was required in making his assessment to bear in mind that freedom of expression extends to the freedom to say things that others might find objectionable or even offensive. In England the use of such words in the course of preaching or addressing a crowd would not necessarily amount to behaviour likely to lead to a breach of the

128 Ibid129 Ibid130 (1864) 17 Ir.CLR I.131 14 Lr Ir 105132 Coyne v Tweedy [1898] 2 Ir 167133 Walsh D Human Rights and Policing in Ireland p225 Clarus Press 2009134 Ibid135 Ibid136 [1999] Crim LR 998

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peace.

The European Court of Human Rights charts a similar course to the current approach of the English courts, the effect of which is to limit the police officers arbit rary power to restrict freedom of expression, assembly and association. The balance here has been corrected in favour of protecting the individuals rights against those who seek to drown them out. However the recent inquest jury verdict of unlawful police killing of Ian Tomlinson may prove that thebalance has yet to be struck in the minds of police officers before they act.137

The recent case of R (Laporte) v Chief Constable of Gloucestershire138 presents evidence that the English courts are willing to protect freedom of expression and assembly in the context of demonstrations and protest marches. Here the House of Lords overturned rulings of the Divisional Court and the Court of Appeal by unanimously declaring that the actions of the chief constable in stopping three coach loads of protesters from proceeding to and anti-war demonstration was unlawful as there was no grounds for believing that a breach of the peace wasimminent.139

This marked a departure from the previous decisions of the Court of Appeal where the court had upheld the actions of the police when they stopped miners from travelling to a protest at a colliery. In this case the police had acted on the belief that a breach of the peace was imminent.140

Therefore it was thought that the police enjoyed a broad discretionary power at common law to prevent individuals from proceeding to join or to participate in a public march or protest demonstration where the police believed that the event, or the individuals participation in the event, might lead to a breach in the peace.141

In Laporte the House of Lords declared that such police action would only be lawful if there were reasonable grounds to believe that a breach of the peace was sufficiently imminent to justify the arrest of the individuals concerned.142

Accordingly the police action would have to be proportionate, in the sense that they should not impose any more restraint on the freedom of the individual than was necessary to avert the imminent threat. 143

The DPP v Jones144 presents another example of the common law being developed to protect the right to protest at the expense of excessive use of police public order powers. Here the House of Lords declared that ―a reasonable user of a highway was not confined to a right to pass to and fro

137 BBC News ―Ian Tomlinson unlawfully killed by Pc at G20 protests‖ May 2011 http://www.bbc.co.uk/news/uk-13268633

138 [2007] 2 All ER 529139 R (Laporte) v Chief Constable of Gloucestershire [2007] 2 All ER 529140 Walsh D ―Human Rights and Policing in Ireland‖ p227 Clarus Press 2009

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141 Walsh D ―Human Rights and Policing in Ireland‖ p227 Clarus Press 2009142 R (Laporte) v Chief Constable of Gloucestershire [2007] 2 All ER 529143 Walsh D ―Human Rights and Policing in Ireland‖ p227 Clarus Press 2009144 [1999] 2 All ER 257

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and matters incidental thereto‖ The reasonable use could extend to the right to peaceful assembly on the highway where the assembly did not obstruct the general public‘s right of passage. In the case the convictions against those taking part in a roadside protest adjacent to Stonehenge on the Salisbury plains for tresspassory assembly were quashed.

It has been claimed that these English cases reflect the European Court of Human Rights norms and that therefore they would be well received in Ireland notwithstanding that the Irish courts have not yet been called upon to consider them.145 If these norms are expressed in the future jurisprudence of the Irish Courts it will limit the extent to which the Gardai can restrain orsuppress the right to protest and freedom of expression through the use of breach of the peace or the criminal offence of obstructing a police officer in the course of his or her duty where the expression or protest does not unduly interfere with the lawful activities of others. This tempering of Garda power would be welcome having regard to the remarkable powers which the Criminal Justice (Public Order) Act 1994 confers on the Gardai.

Criminal Justice (Public Order) Act 1994

In the period preceding the introduction of the Criminal Justice (Public Order) Act 1994 (CJPOA), public order crimes were dealt with [inter alia] under numerous nineteenth century statutes including the Dublin Police Acts of 1836146 and 1842. 147

This legislative scheme was limited in its effectiveness for example by the fact that the Dublin Police Acts could only be applied within the Dublin Metropolitan Area. The Law Reform Commission pointed out that ―the level of penalties for public order offences had been fixed historically, which resulted in that their deterrent efficacy had been eroded with the passage of time‖.148

Even in the mid 1980s under section 14(13) of the Dublin Police Act, 1842, a person found guilty of using threatening, abusive or insulting words could only be fined a maximum of £2.149

Responding to these difficulties the Law Reform Commission recommended a radical overhaul of the legislation relating to public order, including the range of penalties available to the courts.150

There are similarities between the nineteenth century legislation and the CJPOA in terms of t he language used and the types of behaviour encompassed by the statutory instruments. Like its predecessor, the 1994 Act deals with public drunkenness,151 disorderly behaviour,152

threatening,

145 Ibid146 Dublin Police Acts of 1836147 The Summary Jurisdiction (Ireland) Act, 1851, the Summary Jurisdiction (Ireland) Amendment Act, 1871,

and the Licensing Acts of 1872 and 1847.148 Law Reform Commission Report on Offences Under the Dublin Police Acts and Related Offences (1985) and

Report on Vagrancy and Related Offences (1985).149 Gearóid Carey The Rule of Law, Public Order Targeting and the Construction of Crime (1998) 8(1) ICLJ 26

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150 Report on Offences Under the Dublin Police Acts and Related Offences (1985) and Report on Vagrancy andRelated Offences (1985).

151 (section 4)

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abusive or insulting words or behaviour,153 assault154 and obstructing or assaulting a peace officer.155 In addition the offence of failure to comply with the direction of a member of An Garda Síochána, section 8 of the Act gives the Gardaí power to order persons to desist, and to move them along. Furthermore, failure to comply156 with such an order was itself made an offence.157

According to Gearóid Carey the Criminal Justice (Public Order) Act 1994158 is ―controversial‖159 in the sense that ―the volume of criticism of this Act has been much more than the fashionable norm‖.160

Gardai now enjoy an extensive range of statutory powers that impact on the rights of individuals and groups in public places.161 According to Professor Dermot Walsh the most sweeping of these powers is conferred onto the Gardai by section 8 of the CJPOA 1994. This sections gives a member of the Garda Síochána the power to [inter alia] give a direction to a person (or persons)in a public place to stop what they are doing and to leave the place where he (or they are) in a peaceful and orderly manner. Failure to obey exposes the individual or the group to criminal liability and summary arrest.162

The discretion the police are afforded under this legislation and the way this is exercised becomes a central issue in any worthwhile assessment of the Act. The Act was ostensibly enacted to deal with a perceived problem with ―urban street crime‖– loitering as an individual or in groups, drunkenness and generally threatening behaviour. The need for legislative reform was recognised as far back as 1985.163

The offences contained within Part II of the Act represent a significant extension to police street powers by virtue of their criminalising various activities. It has been claimed that these offences are set out ―in vague and ambiguous terms, their indeterminate definitions of the actus reus affording the Garda Síochána almost absolute discretion in determining whether the relevant offences have been committed.‖164

152 (section 5)153 (section 6)154 (section 18 and 19)155 A peace officer can be a member of An Garda Síochána, a prison officer or a member of the Defence Forces.156 (section 8 (2))157 [ No. 2 of 1994. ]158 [ No. 2 of 1994. ]159 Gearóid Carey claims that that the Act is ―undoubtedly... one of the most controversial of recent years‖. ―Even

though it has been on the statute books for almost four years now, the dispute surrounding it has not yet abated, with it coming into sharp focus again during the 1997 general election campaign. The Irish Times, June 12, 1997reported This the arrest of a candidate under the Act for addressing a meeting in the build–up to the election. TheRule of Law, Public Order Targeting and the Construction of Crime (1998) 8(1) ICLJ 26

160 Gearóid Carey ―The Rule of Law, Public Order Targeting and the Construction of Crime‖ (1998) 8(1) ICLJ 26161 Walsh D Human Rights and Policing in Ireland p227 Clarus Press 2009162 Ibid163 Law Reform Commission, Report on Offences Under the Dublin Police Acts and Related Offences (Dublin,

1985) (LRC-14).164 In contrast with this type of legislative approach is the U.S. Model Penal Code, Art. 250(iii) of which

provides that such laws should ―safeguard civil liberty by careful definition of offences so that they do not

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cover, for example, arguing with a policeman, peaceful picketing or disseminating religious or political views‖.

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The Section 8 powers have been described as ―especially objectionable from a human rights perspective primarily because of the excessive discretion it places in the hands of the individual Garda with respect to the freedom of the individual‖. 165

The Act places Garda members in charge of the streets and public places and affords them the power to ―control‖ them in accordance ―with his or her perception of what is acceptable in terms of public gatherings and who will enjoy the freedom to hang out in a group and who must move on‖.166 The Garda power in this sense is almost absolute as any challenge to his authority will invite an increased risk arrest and a criminal conviction and the associated social and economic consequences.

The manner in which section 8 is drafted is sufficiently ambiguous and vague as to place in doubt the success of any challenge to it depending on the appearance and the social back ground or ―class‖ of those concerned and the location in which they are present.

The ―move on‖ power conferred on the Garda by section 8 is accompanied by other powers that have the potential to restrict the rights and freedoms of individuals and groups in public places. They are based on ill defined conditions such as intoxication or conduct likely to cause annoyance to another person.

The aforementioned vague and ill-defined conduct and behaviour is now proscribed by law and are offences in themselves, they also trigger the ―move on‖ powers provided to the Gardai by the Act. Failure to obey the Garda ―move on‖ order is an arrestable criminal offence. According to Professor Dermot Walsh ―this places into the hands of each individual member of the Garda the de facto power to determine what, when, where and by whom raucous or potentially insulting behaviour will and will not be tolerated on the streets.167 According this creates the potential for abuse by those who can arbitrarily decide on what will and will not pass for public order on thestreets of Ireland. How this fits into the pluralist democratic society envisaged by the constitution remains to be seen.

The public order powers of the Garda are sufficiently broad to encompass forms of political protest where the protest may include the use of what could be subjectively interpreted as insulting or obscene posters, images or text. Therefore Gardai could use their power under the Public Order Act 1994 to require the removal of the poster and even the abandonment of the protest or dispersal of the protestors.

Section 9 creates the offence of preventing or interrupting the free passage of any person or vehicle in any public place without lawful authority or reasonable excuse. The legislation places an ―exceptionally broad discretionary power in the hands of the individual Garda member to determine which public protests impacting on the free flow of traffic will be tolerated and whichwill not‖.168 When the House of Lords was called upon to interpret similar provisions concerning

165 Walsh D Human Rights and Policing in Ireland p228 Clarus Press 2009166 Ibid

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167 Walsh D Human Rights and Policing in Ireland p228 Clarus Press 2009168 Ibid at p229

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tresspassory assembles it extended the traditional understanding of reasonable user of the highway to include a limited right to use it for peaceful assembly. Walsh states that ―it may well be that this provision pre-empts the more human rights friendly interpretation of the common law in this area by the House of Lords in DPP v Jones169. If this is true, that the drafting of section 9is an attempt by the government to pre-empt a developing human rights based approach to protesting on public roads. This sheds a sinister light on government policy.

In any event section 9 triggers the ―move on‖ powers of the Garda to issue an order to the individual concerned to desist and to move on. The legislations places exceptionally broads discretionary power in the hands of each individual member of the Garda to determine which public protests impacting on the free flow of persons and vehicles will be tolerated and which will not. The Act creates the new offence of trespassing on any building in such a manner as causes or is likely to cause fear in any person.

This new offence and associated ―move on‖ power can be used to suppress protests in public building and combat anti-social behaviour in residential apartment complexes.170

The Act also confers power upon a Garda not below the rank of superintendent to control access to a public event that attracts or is likely to attract a large assembly of persons. Where it appears to a superintendent that it is necessary in the interest of public safety or to preserve public order the power to authorise any member of the Garda to erect barriers across streets etc, up to one mile from the event is triggered. The associated queuing and kettling of people can facilitate individual surveillance and may be a deterrent to individuals attending such events. Notwithstanding that, in terms of public safety and crowd control this power can be useful, it is too broad and could easily lend itself to abuse.

The Criminal Justice Act 2006

The Criminal Justice Act 2006 makes provision for the use of civil orders which are backed by the criminal law. These orders are designed to combat antisocial behaviour.

According to Clare Hamilton BL ―Serious concerns must be expressed about the way in which important changes to the Bill were made after the introduction of the Bill to the Oireachtas. This procedure is not conducive to a full debate on the weighty issues outlined above and represents a clear departure from standard legislative processes. Proposals to provide for ASBOs form one of the significant changes to the Bill. An ASBO is a civil order made by the court to protect the public from anti-social behaviour defined as ―behaviour which causes harassment, alarm and distress‖. Although the order is civil in nature, breach of an ASBO does not invoke the normal contempt of court procedure for breach of a civil order, but in fact constitutes a criminal offencepunishable by a maximum penalty of five years imprisonment‖.171

169 [1992] 2 All ER 257170 Walsh D ―Human Rights and Policing in Ireland” p229 Clarus Press 2009

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171 Claire Hamilton LL.B. ―Anti-Social Behaviour Orders and the Presumption of Innocence‖ Irish Law Times(2005) 23 ILT 215

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Under the Act the Gardai have power to issue a behaviour warning to a person who has behaved in an antisocial manner. The definition of antisocial behaviour is loosely defined in part II of the Act.172 For the purposes of this Part, a person behaves in an antisocial manner if the person causes or, in the circumstances, is likely to cause, to one or more persons who are not of the same household as the person (a) harassment, (b) significant or persistent alarm, distress, fear or intimidation, or(c) significant or persistent impairment of their use or enjoyment of their property.

The warning will state what the nature of the behaviour is and when and where it took place. The warning will require the person to desist from the behaviour and put the subject on notice that failure to desist may result in an application to the courts for an Antisocial Behaviour Order which is a term that does not appear in the Act itself. Nevertheless the warning stays active for a period of three months. Therefore Gardai now have the power to issued behavioural orders forperiods of three months with very few safeguards in terms of checks and balances. 173

The Act does not specify how the Garda member should make the determination of that a person has behaved in an antisocial manner. ―In practice, the complaint is not that the law is unduly oppressive on ‗sub-criminal‘ behaviour but that the ASBO is being used to avoid the due process protections of the criminal justice system in genuinely criminal cases.‖174

There is no requirement that the Garda must have seen or witness the behaviour. Ashworth describes the structure of the equivalent English legislation as ―sailing as close to the wind as possible‖,175 in that the civil rules of evidence and procedure applied here. So that hearsay evidence from frightened and intimidated people within the community could be adduced in court, without such persons giving direct evidence.

Walsh claims the determination of what constitutes antisocial behaviour may be made on reports of secondary evidence in Ireland.176 The determination that the behaviour in question was antisocial may be made up to a month after the behaviour has taken place. 177 The Garda member is not required to have reasonable grounds for believing that the behaviour in question was antisocial nor is he or she required to prove to a court beyond a reasonable doubt that the behaviour actually occurred. The procedure could be used as a means of subverting the structures of the criminal law, including fundamental legal values such as the presumption of innocence. It must be said that this severely impacts the rights and freedoms of the individual in terms of freedom of expression and assembly and due process. Walsh argues that these powers may impact on the rule of law itself.178 This unprecedented discretion empowers Garda members to make a determination as he or she see fit. Antisocial behaviour is defined in such ambiguous and vague terms that it encompasses even non criminal behaviour for which a Garda member has discretion to determine as antisocial and issue an order which may last up to three months on the behaviour of the individual.

173 Walsh D Human Rights and Policing in Ireland p231 Clarus Press 2009174 . N. Padfield ―The Anti-social Behaviour Act 2003: the Ultimate Nanny-state Act?‖ [2004] Crim L.R. 712 at 713175 A. Ashworth ―Social Control and ―Anti-Social Behaviour‖: The Subversion of Human Rights?‖ (2004) 120

L.Q.R. 263 at 289.176 Walsh D Human Rights and Policing in Ireland p231 Clarus Press 2009177 Ibid at p231

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178 Ibid at p230

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The Act defines the behaviour as antisocial if the behaviour causes or is likely to cause to another person or persons who are not of the same household as the perpetrator harassment, significant or persistent alarm, distress, fear or intimidation, or significant or persistent impairment of their use or enjoyment of the property.179

Behaviour warnings carry with them the immediate restraint on the liberty of the individual. While adjudicating on the matter in R (on the application of McCann) v Manchester Crown Court,180 Lord Hope was of the view that ―an anti social behaviour order may well restrict the freedom of the defendant to do as he wants and to go where he pleases. But these restrictions are imposed for preventative reasons, not as punishment.‖ 181 Traditionally punishment would have only been issued by a judicial authority, who acts in a transparent, public and deliberative process. In that sense a behaviour warning is much more powerful than a mere caution which merely registers that the individual has been cautioned by the police. Now Police power in terms of restraining individual freedoms has been ramped up, giving them the discretion to act as an―executive agent of the State‖.182 Here the usual checks and balances of criminal due process have been abandoned in favour of empowering the Gardai to restrain the liberty of the individualthrough the exercise of low-visibility police discretion.183

Ashworth has questioned the approach of the English courts to the issue and has drawn attention to the robust case law developed by the European Court of Human Rights in this area.184 The court has held on several occasions that, in order to prevent subversion of the procedural safeguards guaranteed in the fair trial provisions of Article 6 of the Convention, that the term―charged with a criminal offence‖ should be given an autonomous meaning that looks to the substance rather than the form. This is known as the ―antisubversion doctrine‖ and exists toprevent states simply reclassifying criminal proceedings as civil in order to avoid the protections attaching to defendants in criminal proceedings.185

The consequences of breaching three behavioural warnings in a period of six months are serious allowing an application to be brought to the district court for an antisocial behaviour order. The application is civil; however it is made by a senior member of the Gardai who may rely on the unlimited power and resources of the state in compiling the case. Prof. William Binchy has claimed that ―this rigorous segregation between the two stages of the ASBO process is less than convincing. There is integration between each stage: the civil element is a necessary precondition of the criminal element: it defines the outer limits—and indeed may well define the full scope— of the conduct that can constitute a crime. There may turn out to be further interconnections, such as placing the onus on a defendant accused of breach to show that any breach was based on―just cause or reasonable excuse‖.186 The defendant is without the usual protection of the

179 Criminal justice Act 2006 (s) 113 (2)180 [2003] 1 A.C. 787 . ]181 [2003] 1 A.C. 787 , 824.

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182 Walsh D Human Rights and Policing in Ireland p232 Clarus Press 2009183 Walsh D Human Rights and Policing in Ireland p232 Clarus Press 2009184 Konig v Germany (1978) 2 EGRR 170 and Engel v Netherlands (1976) 1 E.H.R.R. 647 .185 A. Ashworth ―Social Control and ―Anti-Social Behaviour‖: The Subversion of Human Rights?‖ (2004) 120

L.Q.R. 263.186 W. Binchy ―Anti-Social Behaviour Orders and the Constitution‖ paper delivered at Conference on ―Anti-Social

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standards in criminal proceedings including proof beyond a reasonable doubt. The role of the Gardai in the process has been described as ―quasi-Judicial‖187 in the sense that they can enforce the acceptable standards of behaviour by individuals in the streets and around there homes.

While the use of behavioural warnings and the associated antisocial behaviour orders may be perceived as a positive intervention by those communities whose private property rights and infringed by the behaviour of other individuals the real questions is are these police powers a balanced reaction to competing rights and interests or could they lead to arbitrary abuse, misallocation and misinterpretation of police power in a much wider set of circumstances than they were originally designed for.

The 2006 Criminal Justice Act also provides for the introduction of a fixed penalty notice which empowers Gardai to issue a fixed penalty to a person whom he or she has reasonable grounds for believing is committing or has committed a disorderly conduct offence between midnight and7am.188 Disorderly conduct includes any unreasonable behaviour which, having regard to all the circumstances is likely to cause serious offence or serious annoyance to any person who is, orwho might reasonably be expected to be, aware of such behaviour.189 Again there is no requirement that the Garda member have witness or seen the offence. Once the notice has issuedthe recipient has the option to pay a fine within a fixed period or exercise his or her rights to have the matter brought before a competent judicial authority. This adjudication may lead to anacquittal or a more adverse penalty. Where the recipient chooses to pay the fixed penalty notice the role of the Gardai member has effectively merged the role of police investigator, prosecutor,and Judge allowing the member to exercise administrative discretion on the streets. This has beendescribed as ―a major shift in the structural balance of the criminal process‖.190

Therefore police power has grown and expanded from preventing, investigating and detecting crime to including the determination of guilt and administration of punishment in certain cases.

Conclusion

Traditionally the functions of the criminal process had been separated but it can now be argued that they have been merged. The reason for the original separation was respect for human rights and the rule of law. Calls have been made for the ―provision of checks and balances to maximise transparency in the exercise of the exceptional broad discretion that the power reposes in theindividual Gardai‖.191 Without these checks and balances the risk of human rights abuses remainbecause of the exceptionally broad discretionary power of the police to control the streets in conditions of low visibility and in the absence of independent scrutiny.

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On this point the Human Rights Commissioner Alvaro Gil-Robles in his recent report on his visit

Behaviour Orders: Social Policy and Human Rights‖, Trinity College Dublin, June 22, 2005 at p.15.187 Ibid at p233188 Section 184 Criminal Justice Act 2006189 Ibid190 Walsh D Human Rights and Policing in Ireland p233 Clarus Press 2009191 Ibid at 234

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to the UK stated that ―for my part, I find the combination of a criminal burden of proof with civil rules of evidence rather hard to square; hearsay evidence and the testimony of police officers or‗professional witnesses‘ do not seem to me to be capable of proving alleged behaviour beyondreasonable doubt.‖192

The effect of Garda members acting in a quasi-judicial capacity, without the restraint of due process, endangers the exercise of human rights and therefore presents and obstacle to the creation of the type of pluralist society envisaged by the Irish Constitution.

Where the Gardai are placed in de facto control of the streets and the behaviour of others including individuals and groups this creates an unwelcome imbalance between the power of the state and citizens rights. It could be argued that a tension and discourse between these rights and powers is much healthier for a free democratic society. However any individual or groups who refuse to obey the orders of a Garda all risk being arrested pursuant to the Garda members public order powers regardless of whether or not they were acting lawfully and exercising their rightsand freedoms.193

Accordingly the individual Garda member who because of his or her particular beliefs, virtues, morals or lack thereof perceives behaviour to be anti-social or disorderly may subject an otherwise law abiding citizen to a severe restraint on his or her liberty in the shape of an arrest, behavioural warning, move on instruction or fixed penalty notice.

It has been argued that the individual will be pressurised to obey the members‘ direction because it is so difficult to mount a successful defence to a Garda action in these situations, even where it appears that the Garda in question is acting arbitrarily or beyond his or her powers.194

While it may be argued that these powers are safe in the hands of ―our boys in blue‖ who would never abuse them, the very existence of such broad discretionary powers over the exercise of human rights is unwarranted and objectionable. The danger is that these powers will be used arbitrarily and oppressively against individuals and groups who are perceived on the part of the Gardai to be undesirable, therefore resulting in a denial of human rights of certain individualsand minority groups.195 The effect of which is to hamper the proper functioning of a pluralistdemocracy which could lead to a society where only the mainstream interests and protest may be expressed and allowed, where the establishment interests are nurtured and expressed while decent and opposition are arrested, fined, oppressed and prosecuted. This leads to a break down in relations between the police and the affected groups which must be prevented through mechanisms designed to mitigate the exercise of discretionary and arbitrary police power against individuals and selected minorities.

192 [ Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his Visit to the United Kingdom, November 4–12, 2004 for the attention of the Committee of Ministers and the Parliamentary Assembly, Strasbourg, June 8, 2005, paragraph 115. ]

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193 McCann may prove persuasive should issues arise in relation to the compatibility of the legislation with Article 6 of the ECHR subject, of course, to a ruling by the European Court of Human Rights on the issue. Under s.2 ofthe European Convention on Human Rights Act 2003 , Irish courts are bound to interpret Irish law in the light of the E.C.H.R. and the corresponding case law.

194 Walsh D Human Rights and Policing in Ireland p234 Clarus Press 2009195 Ibid

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It has been argued that the very least that could be done to mitigate the exercise of these broad powers is to develop a transparent code of practice governing the exercise of police public order powers.196 This code of practice could be based on the code proposed for the stop and search powers. Calls of been made for the implementation of provisions in the code to proscribe theproper approach to public order issues, whereby the wide variety of situations in which the powers might be used would be reflected.197 The provisions would set out the appropriate police methods when dealing with anti-social behaviour by individuals or groups. The police approach to dealing with marches demonstrations, protests and meeting would be proscribed in this code of practice and would provide guidance for individual Garda members in the exercise of their powers. This would create a level of uniformity in the application of public order powers, and avoid discriminations because of the subjective believes of individual members about ideology,race, politics and lifestyle.

Restrictions on liberty, freedom of expression and the use of force by police should only be allowed for as a last report where it is not possible to strike a reasonable balance between the competing interests in a society in these instances a written record of the use of the powers should be submitted in each case and an independent periodic review of compliance carried out.

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196 Ibid at 235197 Ibid at 235

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