CHAPTER TWO – WHAT IS PROTEST?
Protest is the expression or demonstration of dissent or objection. Protest has existed for as long as humans have held opinions and power over each other. It has accompanied every great change in history.
Talking of nonviolent direct action, Martin Luther King (in Why We Can’t Wait, 1964) said:
Nonviolence is a powerful and just weapon. It is a weapon unique in history, which cuts without wounding and ennobles the man who wields it. It is a sword that heals.
As protest has been met through history with intimidation, violence and restriction, the law has developed to give it protection and to set the limits of that protection.
1.1 The European Convention on Human Rights
The European Convention on Human Rights was adopted by the Council of Europe in 1950 and came into force in 1953. The Human Rights Act 1998 gave effect in the UK to the rights and freedoms protected under the European Convention on Human Rights.
The right to protest is protected by articles 9, 10 and 11 of the European Convention of Human Rights, although articles 10 and 11 are cited most often in the caselaw. As article 11 is to be interpreted in light of article 10, said to constitute the lex generalis, whether arguments refer to article 10 or article 11 is largely immaterial (see DPP v Ziegler [2021] UKSC 23 at para 61). In simple terms, freedom of assembly is generally exercised in furtherance of freedom of expression.
The rights under articles 9, 10 and 11 are qualified rights: they can be restricted but only where certain circumstances apply.
ARTICLE 9
Freedom of thought, conscience and religion
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
- Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
ARTICLE 10
Freedom of expression
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
ARTICLE 11
Freedom of assembly and association
- 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.
- No restrictions 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 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.
Freedom of expression under article 10 doesn’t just protect speech or writing, but also direct action protests. The European Court of Human Rights stated in Taranenko v Russia (Application No 19554/05) (at paragraph 70):
The Court has previously held that protests can constitute expressions of opinion within the meaning of Article 10. Thus, protests against hunting involving physical disruption of the hunt or a protest against the extension of a motorway involving a forcible entry into the construction site and climbing into the trees to be felled and onto machinery in order to impede the construction works were found to constitute expressions of opinion protected by Article 10 (see Steel and Others v. the United Kingdom, 23 September 1998, § 92, Reports of Judgments and Decisions 1998‑VII, and Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 28, ECHR 1999‑VIII).
It is worth pausing, before turning to the legal principles surrounding these rights, to consider why they are held as human rights. As the European Court of Human Rights states in Handyside v United Kingdom (Application No 5493/72) at paragraph 49, referring to the principles characterising a democratic society:
Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.
The test of necessity in a democratic society requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient (Taranenko v Russia at para 74).
When assessing whether a restriction on the Convention is necessary in a democratic society, the following set of sub-questions apply:
(1) Is the aim sufficiently important to justify interference with a fundamental right?
(2) Is there a rational connection between the means chosen and the aim in view?
(3) Are there less restrictive alternative means available to achieve that aim?
(4) Is there a fair balance between the rights of the individual and the general interest of the community, including the rights of others?
As identified by the Divisional Court in DPP v Ziegler [2019] EWHC 71 (Admin), in practice it will be last of these questions which will be of crucial importance, whether the restriction strikes the balance between competing rights.
It may be that conduct by protestors will fall outside the protection of articles 9, 10 and 11. As confirmed by Lord Reed in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 (‘AGNI’) at paragraph 54:
The conduct in question will fall outside the scope of those articles altogether if it involves violent intentions, or incites violence, or otherwise rejects the foundations of a democratic society (Kudrevičius, para 92), or if article 17 of the Convention applies (article 17 provides that the Convention does not confer any right on a person to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set out in the Convention or at their limitation to a greater extent than is provided in the Convention).
The individual facts of the case and the conduct of the offender will need to be considered carefully before making any concession that conduct falls outside the protection of articles 9, 10 and 11.
In Primov v Russia (Application No 17391/06) the European Court of Human Rights stated (at paragraph 155) that:
Article 11 does not cover demonstrations where the organisers and participants have violent intentions … However, an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual in question remains peaceful in his or her own intentions or behaviour…
The Supreme Court in Ziegler gave a salient reminder that “a protest is peaceful even though it may annoy or cause offence to the persons opposed to the ideas or claims that the protest is seeking to promote” (para 69).
1.2 Sentence as a restriction on the right to protest
Restrictions on articles 9, 10 and 11 can arise at different stages and in different forms. The Supreme Court in Ziegler stated:
In Kudrevičius v Lithuania (2016) 62 EHRR 34, para 100 the European Court of Human Rights (“ECtHR”) stated that “The term ‘restrictions’ in article 11(2) must be interpreted as including both measures taken before or during a gathering and those, such as punitive measures, taken afterwards” so that it accepted at para 101 “that the applicants’ conviction for their participation in the demonstrations at issue amounted to an interference with their right to freedom of peaceful assembly”. Arrest, prosecution, conviction, and sentence are all “restrictions” within both articles. Different considerations may apply to the proportionality of each of those restrictions. (emphasis added)
Conviction and sentence are distinct restrictions requiring distinct assessments of proportionality.
Following a string of cases addressing reliance on Convention rights in criminal trials, we know that even where the rights are engaged (where the conduct is capable of being protected by the Convention rights), the Court is not necessarily required to undertake a proportionality assessment or consider those rights in deciding the case against the defendant at trial.
In AGNI, the Supreme Court outlined the correct approach where a defendant relies on articles 9, 10 or 11 as a defence to a protest-related offence (para 54 to 59). The Court sets out set of questions:
- Are the rights engaged? As set out earlier in this chapter, non-peaceful conduct will fall outside the protection of these rights (para 54).
- If engaged, is the offence one where the ingredients of the offence themselves strike the proportionality balance, so that if the ingredients are made out, and the defendant is convicted, there can have been no breach of his or her Convention rights? If the offence is so defined as to ensure that any conviction will meet the requirements of proportionality, the court does not have to go through the process of verifying that a conviction would be proportionate on the facts of every individual case (para 55).
- Where the conduct in question falls within the scope of articles 9, 10 or 11, and proof of the ingredients of the offence does not in itself ensure the proportionality of a conviction, the question is then whether there is a means by which the proportionality of a conviction can be ensured. A defence of lawful or reasonable excuse may provide a route by which a proportionality assessment can be carried out (see Ziegler).
- If interpretation in accordance with section 3 cannot resolve the incompatibility, then the court must give effect to primary legislation notwithstanding the violation of Convention rights: section 6(2) of the Human Rights Act.
Where there is no proportionality assessment at trial, this does not mean that articles 9, 10 and 11 will have no bearing on sentence.
In R v Trowland [2023] EWCA Crim 919 (addressed in detail in Chapter 3), lawful exercise of articles 9, 10 and 11 as a reasonable excuse to public nuisance was ruled out as an available defence by the trial Judge at the outset of trial. The Court of Appeal still held articles 10 and 11 were relevant to sentence.
In R v Hallam [2025] EWCA Crim 199 (addressed in detail below), in approving Trowland the Court of Appeal confirmed conscientious motive and the ECHR remain important factors at sentence even if they are not capable of forming any defence at trial.
This reflects the European jurisprudence. In Kudrevičius v Lithuania (Application no. 37553/05) the Grand Chamber stated:
- The nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (see Öztürk v. Turkey [GC], no. 22479/93, § 70, ECHR 1999-VI; Osmani and Others, cited above; and Gün and Others, cited above, § 82). Where the sanctions imposed on the demonstrators are criminal in nature, they require particular justification (see Rai and Evans, cited above). A peaceful demonstration should not, in principle, be rendered subject to the threat of a criminal sanction (see Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, § 43, 17 May 2011), and notably to deprivation of liberty (see Gün and Others, cited above, § 83). Thus, the Court must examine with particular scrutiny the cases where sanctions imposed by the national authorities for non-violent conduct involve a prison sentence (see Taranenko, cited above, § 87).
In finding that the sanction imposed was not disproportionate (a suspended sentence), the Court focused on the minimal impact of the sanction on the Applicants’ private and professional lives.
In Taranenko v Russia, it was the length of pre-trial detention and exceptional seriousness of the sanctions (three years imprisonment suspended for three years) that lead the Court to conclude there had been a violation of article 10, even though arrest and prosecution were not found to amount to a violation.
See also DPP v Eastburn [2023] EWHC 1063 (Admin) where the Divisional Court confirmed there is no requirement on the Court to conduct a standalone proportionality assessment in relation to a charge under section 14 of the Public Order Act 1986. The Divisional Court found that although the Court was not required to undertake an assessment of the proportionality of the conviction, even with the limited interference with the rights and freedoms of others, this would be relevant to sentence.