Law and disorder
DEMONSTRATIONS R. A. CLINE
A peaceful political march is a sight to which Londoners and the inhabitants of other towns (not excluding Jarrow) have become almost complacently accustomed. This complacency took a nasty knock in Grosvenor Square re- cently, and the promised anti-Vietnam march in October has prompted many to wonder whether the ugly clashes between blackshirts and reds in the 'thirties are to be repeated under different political colouring. If so, how stands' the English law on. the maintenance of law and order in streets and public places, or, to use the more picturesque but historical phrase, the pre- servation of the Queen's Peace? What is the Englishman's right of public meeting which is the necessary auxiliary of his right of free speech? Are these rights badly tarnished or do they gleam with the same polish as when Dicey proudly formulated them in 1885?
Even at that date Dicey was at pains to point out that there was no specific right of public meeting granted by our constitution. It will not be found in any Act of Parliament. You can meet together in large numbers and form up in peaceable processions so long as you do not do so for some unlawful purpose. You can do so as long as you do not trespass on my property. You can do so provided that you are not in- tending to commit acts of violence or breaches of the peace or to violate my rights. In other words, your right to assemble lawfully together is recognised by the Common Law (that is, the decisions of High Court judges) as simply part of the ordinary law about the liberty of the per- son. If you do not infringe the criminal code, you cannot be punished. The right of lawful assembly resembles the white squares in the crossword puzzle, the spaces between the black ones which are the various prohibitions of the criminal law. Stick to the white and in theory no one can touch you.
Dicey proudly contrasted the English law with foreign codes on this very point, but his view has come under severe fire from those who demand the clarity of a written constitution. They contend that a man setting off on a pro- cession to Hyde Park, there to take part in some political or religious crusade, can never be sure whether he is infringing the law, even if he equips himself with a constitutional text- book and the best lawyer in the country strides beside him.
What would the textbook or the lawyer tell him? The highway is in strict law for passing and repassing on foot or in a vehicle with a right to stop for loading or unloading, and so marchers have to be kept moving, but certain areas have come to be recognised as hallowed spots for lawful assembly. There is no law pro- tecting assemblies in Trafalgar Square or Hyde Park, but these spaces adjoining the highway have with time acquired the patina of political sanctuary, and thus it is that unless things go wrong (for example, speakers or marchers be- come abusive or violent) no one is usually prose- cuted for obstructing the pavement on which he is standing although technically he is pre- venting others from passing across that spot. On such an unwritten, unstatutory basis does the famous Speaker's Corner rest.
Now the organisers of the anti-Vietnam march have protested their innocence of any intention to use or provoke violence. But sup- pose that their opponents were to resort to violence or a breach of the peace? Does this render a lawful assembly in some way unlaw- ful? This is not a new problem. It was familiar to the judges of the late Victorian period when, incredible though it now may seem, the Salva- tion Army was the centre of tumult, crusades and counter-crusades.
In the famous case of Beatty v. Gillbanks the Salvation Army was prosecuted for an unlaw- ful and tumultuous assembly at Weston-super- Mare in 1882. It knew when it met that it would be opposed by its antagonists, the Skeleton Army, and the-magistrate had put out a notice forbidding the meeting as it was very probable that its opponents would breach the peace. The Salvation Army ignored the notice and one of its members was brought to court. The High Court refused to accept that an innocent and lawful assembly could be transformed into a guilty and unlawful one by the unlawful behaviour of antagonists.
But comforting though this shining beacon may be to innocent and peace-loving marchers, there is much discouragement to come in the subsequent history of the law, particularly in the case of Duncan v. Jones. Mrs Duncan set up her box outside an unemployment training centre and was about to make a speech in de- fence of free speech. There were thirty others with her. The chief constable told her she could speak near by but not there. 'I'm going to do it,' she said, but she was taken into custody and submitted without resistance. She had not com- mitted or provoked any breach of the peace, but after a similar meeting previously there had been a disturbance at the centre. Not easily dis- tinguishable from the Salvation Army case? Most certainly not, but the year was 1936 and the presiding judge Lord Hewart, who de- scribed the Salvation Army case as 'thoroughly unsatisfactory.'
Notwithstanding this decision, Mrs Duncan would stand a pretty fair chance of an acquittal in the present climate of judicial opinion if she set up her box today. But let there be no mis- understanding about the powers of the Com- mon Law. If a marcher or a speaker uses words or conduct which are intended to provoke a breach of the peace, he will be committing no end of offences as well as infringing some local bye-laws; apart from obstructing police officers in the execution of their duty (a duty no differ- ent from that of any other citizen standing around, to preserve the Queen's Peace), he may, if he has three or more comrades-in-arms, be engaged in a riot or even, a rout. A riot is 'a tumultuous disturbance of the peace by three persons or more assembling together of their own authority with an intent mutually to assist one another against any who shall oppose them in the execution of some en- terprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner to the terror of the people whether the act intended were of itself lawful or unlawful.' That definition effectively de' scribes the Sorbonne clashes as well as group robberies in which night watchmen are coshed. Thus, had there been evidence of a concerted plan involving violence, then Grosvenor Square was legally the scene of a dol.
What is the significance of this legal concept? That everyone in the vic:nity s undiz a duty to put down a riot, not just the polize or the magis- trates or anyone else specially vsponsible for the maintenance of law and order. If a police- man asks for assistance, the ordinary citizen standing near by is under a saingent obligation to render it and a refusal is a criminal offence. If things get worse, a magistrate i bound, not merely permitted, to use considerable force in putting down the disorder. If he reads the Riot Act, not the whole of the Act of 1714 but k•st the proclamation to disperse in the schedule of the Act, and twelve rioters continue together for an hour afterwards, the magistrate may com- mand the troops to fire on the rioters . . .
But we must cool down. In practice the forces of law and order have a considerable armoury of laws which can be invoked if the need arises; but they rarely are. The right of lawful assembly and free speech does not and cannot depend on precise legal formulae. No written constitu- tion can be devised which will ensure the main- tenance of the delicate balance between liberty to speak and move in protest on the one hand and the peace and freedom from fear of non- protesters. The Salvation Army case can hap- pen only in a society which feels secure and whose judiciary, whose law enforcement agen- cies and, last but by no means least, whose dis- senters all act within a framework of security.
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