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54 Victoria U. Wellington L. Rev. 155 (2023)
The Growing Complexity of a Human Right to Assemble and Protest Peacefully in the United Kingdom

handle is hein.journals/vuwlr54 and id is 157 raw text is: 155 THE GROWING COMPLEXITY OF A HUMAN RIGHT TO ASSEMBLE AND PROTEST PEACEFULLY IN THE UNITED KINGDOM David Feldman KC* Policing demonstrations is difficult, and prosecuting people for public order offences arising from protests may risk closing down some channels for democratic engagement. In the United Kingdom, delicate judgements by police, prosecutors and courts have become still more complex as a result of the domestic application, under the Human Rights Act 1998 (UK), of the rights to freedom of expression and of peaceful assembly under the European Convention on Human Rights. When is it permissible to interfere with those rights in order to protect other interests and rights? When is it necessary to strike a balance between them, and who is responsible for doing so? What are the limits of the responsibilities of the police, prosecutors and judges or juries respectively to make judgements about the appropriate balance, and when may a defendant be allowed to say, in answer to a criminal charge, that criminal legislation should be read and given effect in such a way as to respect the defendant's right to freedom of expression or peaceful assembly so as to entitle the defendant to be acquitted? This article examines developments in policing and prosecutorial practice and in case law responding to those issues. I INTRODUCTION My friend and sometime colleague Tony Smith is a leading expert on the law, policy and practice of policing to maintain public order in England and Wales.1 He has criticised the difficulties posed for judges trying to apply case law of the European Court of Human Rights to establish a convincing rationale for justifying police tactics to contain people in restricted spaces in order to limit risks from * KC (Hon), FBA, Emeritus Rouse Ball Professor of English Law and Emeritus Fellow of Downing College, University of Cambridge; Academic Associate, 39 Essex Chambers, London. I am grateful to the anonymous reviewer of this article for comments and suggestions which have helped me to improve this article significantly. Remaining errors, omissions and eccentricities are my own. 1 See for example ATH Smith The Offences Against Public Order: Including the Public OrderAct 1986 (Sweet & Maxwell, London, 1987).

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