Public Order Bill ‘will almost certainly face challenges’ says lawyer

Somerset: Campaigners conga along Clevedon seafront in protest

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Top criminal barrister for Garden Court Chambers Tom Wainwright has exclusively told Express.co.uk that the new proposals put forward as part of the Public Order Bill “will almost certainly face legal challenges in the future”. The new proposals put forward in the Bill would allow police to intervene in a protest before it causes serious disruption, a move which has been described as an attack on democratic rights. 

Mr Wainwright told Express.co.uk: “These new proposals will almost certainly face challenges in the future. Giving police the power to shut down peaceful protests on the basis that they may cause serious disruption will undoubtedly lead to breaches of the right to freedom of expression and the right to protest in this country.

“For the right to protest to have any power or meaning it has to mean the right to get people’s attention.

“A right to protest only unobtrusively and with State approval is a right not worth having.

“The new guidance means that the police could lump together a number of disparate protests, taking place at different times and locations, which are causing minimal disruption and use that to argue that there is serious disruption.”

The right to freedom of expression forms part of the Human Rights Act 1998, a piece of British legislation that protects the rights of people living in the UK.

As to the international ramifications, some have warned the Uk could face international consequences to such proposals.

On this, Mr Wainwright said: “In terms of international ramifications, the wholesale erosion of protest rights would undoubtedly have an impact of the UK’s reputation.

“We would be in no position to criticise or challenge totalitarian regimes which carry out similar crackdowns on demonstrations.

“The UK has already been criticised a number of times by various United Nations bodies in recent years for its heavy handed approach to protests.”

Furthermore, last week a report from the Human Rights Watch said that if the UK didn’t change quickly, it would move from being categorised as a country which protects human rights to one that abuses them.

On the current situation in the UK, Mr Wainwright added: “The right to freedom of expression only has minimal protection in UK law, but has stronger protection in the ECHR.

“It of course isn’t a trump card which overrides the rights of others or concerns about public safety, but it appears to me that the Government are paying no attention to the balancing act required between these considerations and there is certainly a realistic prospect of challenges on this basis.”

The new proposals have received a strong reaction from independent bodies and human rights organisations. 

Tirana Hassan, HRW executive director, said: “A slew of legislation was passed last year where fundamental human rights are being challenged.

“The protest law is something we are deeply concerned about. When you talk about civic space and about people’s right to participate in a democratic society, the right to peaceful assembly and the right to protest are key pillars of that. We’ve seen an outright assault from this government on that.”

As to whether the laws violate the tenet that the actus reus (criminal act) and mens rea (desire to commit the act) must coincide in time is violated by these proposals, Mr Wainwright said: “I don’t think the proposals contravene the usual requirement that AR and MR coincide.

“There are offences where the offence is complete if someone does X and at the time of doing so intends to do Y as a result – trespassing with intent to steal within, going equipped for theft etc.

“I think the problem is that these are normally very focussed in terms of the necessary mens rea and the wider the definition of ‘serious disruption’, the lower the bar and the broader the scope for over-zealous, pre-emptive arrests and charges.”

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