The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

behaviour.124 It is objectionable because the scope of its preventive power goes unchecked as a result of the elasticity of the concepts 'breach of the peace' and 'good behaviour', and because it can be applied across a frightening spectrum, including acquitted defendants, witnesses, or persons who happen to be present in the courtroom, without any onus to prove that they have committed or threatened any offence.125 Furthermore, although its role is quite obviously less clear since the enactment of section 5 of the 1986 Act, there has been no real momentum to reconcile the relationship between the two powers. Finally, the temptation of this power, and that of imposition of bail conditions, intensifies when combined with continued public disorder--similar, for example, to that which was experienced during the miners' strike--allowing scope for abuse by the magistracy. It is thus unfortunate that, in the absence of a limitations clause which is more strongly worded than 'imposed in conformity with law', Article 21 may not catch this sort of abuse. Some scope may, however, be offered by the principle of proportionality imported by the neccesity limitation, particularly in the case of bind-overs deployed against witnesses and persons who merely happen to be present in the courtroom.


CONCLUSION

This review of United Kingdom public-order law has sought to highlight the problems which can emerge from the coincidence of absence of a constitutional, or statutory, right to demonstrate with delegation of a political discretion to the police and magistracy. It is submitted that the underpinnings of the freedom to assemble in United Kingdom law are in need of revision: relying on Diceyean residues makes the choking of this freedom all too easy and its decay all too likely.

The review undertaken here points up a triumvirate of tough questions for United Kingdom laws which maintain that they measure up to the standards of Article 21: first, has the expectation of order become impossible; secondly, is the extent of magisterial and police discretion damaging; and thirdly, in such an environment, what will be the future of the principle, and practice, of freedom of assembly in United Kingdom law? These are questions to which there are neither ready nor easy answers. If, however, we are to roll back the cloaking effect of a climate of

____________________
124
Wise v. Dunning [ 1902] 1 KB 167; Hughes v. Holley ( 1986) JP 233.
125
Law Commission Working Paper No 103, Criminal Law: Binding Over--The Issues ( London, 1987); Law Commission No 222, Binding Over: Report on a Reference under 7Section 3(1)(e) of the Law Commissions Act 1965 ( London, 1994).

-463-

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