The right to protest

Protestors in Northern Ireland won't be prosecuted

The Public Prosecution Service in Northern Ireland — equivalent to the Crown Prosecution Service in England and Wales — has announced that 14 suspects will not be prosecuted in connection with protests a year ago in support of the Black Lives Matters campaign group. The cases had been referred to prosecutors by the police.

Prosecutors decided the protestors had a reasonable excuse under the coronavirus regulations that were in force last June. The Northern Ireland regulations were similar to those in England and Wales.

Regulation 5 of the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 begins:

(1) During the emergency period, no person may leave the place where they are living without reasonable excuse.

(2) For the purposes of paragraph (1), a reasonable excuse includes the need—

A number of exceptions then follow. None of those is the right to protest. But the word “includes” indicates that the list is non-exhaustive: there may be other reasonable excuses that were not mentioned.

Regulation 6 says:

During the emergency period, no person may participate in a gathering in a public place of more than two people except—

That restriction is followed by a limited list of exceptions.

It is an offence to contravene regulation 6 — but only if the suspect acts “without reasonable excuse”.

Martin Hardy, assistant director of public prosecutions for Northern Ireland, said today:

It was concluded that, in respect of each of the 14 individuals reported, there was no reasonable prospect of conviction for any offence. This was on the basis that the evidence would allow the suspects to successfully raise the statutory defence of reasonable excuse. In these circumstances the test for prosecution was not met.

The prosecution service listed some of the arguments that the protesters might have used to establish that they had a reasonable excuse:

  • The potential breadth of the reasonable excuse defence and the need to interpret the regulations and the defence in accordance with rights guaranteed by articles 10 (freedom of expression) and 11 (freedom of peaceful assembly) of the European Convention of Human Rights.

  • The fact that the gatherings involved protests relating to a matter of important social concern, were peaceful, and were organised in a manner that sought to minimise any risk of transmission of the virus. For example, steps taken at the different protests included encouraging social distancing by arranging the attendance of stewards, marking the ground with chalk squares and delivering relevant announcements by loud speaker. Protestors were also encouraged to attend in smaller groups of no more than six; and masks and hand sanitiser were also made available.

  • The presence of provisions within the regulations which created, in certain respects, a lack of legal clarity as regards what activity would be lawful. These included the absence of any definition of a “gathering” or what constituted “outdoor activity”; the absence of any provisions (at that time) dealing specifically with gathering for the purposes of protest; the tension within the provisions that allowed unrestricted numbers to gather for the purpose of an outdoor film, live concert or theatre performance; and the fact that the reasonable excuses specified within the regulations were non-exhaustive.

  • Issues in relation to the proportionality and consistency of the policing approach to different protests, as set out in a report published by the Police Ombudsman for Northern Ireland pursuant to Section 62 of the Police (Northern Ireland) Act 1998.

Some of this reasoning applies only to Northern Ireland. But the broader arguments must surely be equally applicable to similarly worded regulations in England and Wales.