Freedom Of Speech In Post-Riot London

Announcing a 30-day blanket ban on marches across five London boroughs (Tower Hamlets, Newham, Waltham Forest, Islington and Hackney), Home Secretary Theresa May yesterday derailed plans for English Defence League (EDL) demonstrations on 3 September.  Following a request from Scotland Yard Acting Commissioner Tim Godwin, May took the decision to ban ‘all marches’ after having ‘carefully considered the legal tests in the Public Order Act and balanced rights to protest against the need to ensure local communities and property are protected’.  Is this a step too far, illegitimately restricting free speech, or is there a genuine call for pre-emptive action on grounds of preventing public disorder?

Adding another dimension to the already thorny trade-off between liberty and security is the similar ban that May sanctioned in Telford on 13 August amidst similar fears of disorder.  The Met, citing receipt of ‘specific intelligence’ which led it to believe that ‘serious public disorder, violence and damage could be caused by the presence of marches in these areas’, suggested that a ban was the most effective avoidance strategy and cemented a dangerous precedent.  With many such demonstrations resulting in some degree of violence, both with opposition demonstrators and amongst EDL sympathisers, the argument that all future EDL demonstrations should be outlawed on similar grounds will gain momentum.  This would be a clear violation of free speech principles; while the outlook being championed may be abhorrent, such a reaction, flying in the face of liberal democratic values, would prove equally objectionable.  Furthermore, drawing attention to the ban not only allows the EDL to portray an image of a subjugated group, but also retracts some of the rope, through prevention of negative press coverage, afforded to the group with which to hang itself.  In this respect, an outright ban appears counterintuitive.

With Stephen Lennon, the EDL's founder (also known by the name Tommy Robinson), proclaiming that the EDL would ‘still show up’ in Tower Hamlets, vowing to hold a static demonstration and ‘have our voices heard’, the potential exists for any disorder to be amplified by the ban.  While a statement on the EDL website claimed that ‘[n]owadays, the anti-extremism aims of our organisation are clear, and there is no reason to think that an EDL demonstration would contain any dangerous elements’, such contentions are easily refuted by Lennon recently being charged with common assault following an altercation at a demonstration.  Similarly, the assertion is fundamentally flawed insofar as the EDL was formed with the specific objective of protesting against the alleged spread of Islamic extremism; with Tower Hamlets playing home to the sizeable East London Mosque and a large Muslim population, any such action is destined to stoke tensions unless it is starved of the oxygen of publicity.  Indeed, Lennon has already acknowledged that ‘the police have told us that it will be the most hostile environment they have seen. … They say marching through there will be absolute suicide’.  The question then arises as to whether a static meeting similar to that which eventually took place in Telford would pose a greater threat of public disorder than the initial demonstration, with the latter at least having the strategic benefit of wayfaring brevity.

It is indisputably true that disorder in London, in the wake of recent events, would be even more unwelcome than usual.  Nonetheless, rumours that budget constraints limiting further police overtime played a part in deliberations, coupled with favourable consideration for a police force under immense strain, would be detestable if proven.  Indeed, with the threat of a static demonstration, about which the Met are powerless to act, a visible police presence will likely be required regardless.   Equally, spurious links between Anders Behring Breivik and the EDL should not be allowed to carry any weight: many a convicted criminal will undoubtedly have (proven) sympathies to legitimate political groupings.

It would appear, then, that Peter Tatchell was accurate in labelling the blanket ban a ‘complete overreaction’, suggesting that such action has the potential to be vastly counter-productive and correctly asserting that anti-democratic groups can only be defeated through ‘exposing… bigoted and violent views’.  (However, his favouring of ‘mass counter protests’ would perhaps be undesirable in this instance, given the history of EDL disorder and the ethnic composition of the area in question.)  Indeed, the key to overcoming such divisive views in the long run is a policy of engagement and education, promoting tolerance of all views and allowing those based on prejudice and intolerance to be shown as such.  As Thomas Jefferson famously declared, ‘error of opinion may be tolerated where reason is left free to combat it’.

Criminal Justice: The Use Of Reasonable Force

Just before midnight on 22 June, four masked men attempted to break into the rear of a house on a quiet cul-de-sac in Salford.  One of the would-be burglars, 27-year-old John Leonard Bennell, was fatally stabbed, dying shortly after having been discovered nearby, abandoned by his accomplices fleeing from the approaching authorities.  The householder, Peter Flanagan, 59, was arrested on suspicion of murder (his son and son’s girlfriend were also initially arrested, though were both released without charge), having telephoned police to alert them to the crime.  Flanagan was later bailed until 25 July.

Chief Superintendent Kevin Mulligan stated that Bennell suffered ‘at least one stab wound’ during an altercation in the house, which involved at least one person from the address and four people breaking in, though Mulligan refused to be drawn on whether the weapon was taken into the property by the intruder or belonged to the householder.  The cause of death was later confirmed to have been a stab wound to the chest.  News of the disturbance has again stimulated discussion regarding the balance of rights between intruder and householder.

The incident in Salford occurred mere hours after David Cameron confirmed families should ‘feel safe in their homes’, promising that homeowners would not be punished for using ‘reasonable force’ to protect themselves and their property.  Seeking to appease public opinion as he announced that controversial proposals concerning plea bargaining are to be scrapped, Cameron said that the new Justice Bill would ‘put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted’.  This pledge will now be put to an immediate test, with the problem of quantifying what is ‘reasonable’ once more being brought to the fore by an encounter that evokes memories of the case of Norfolk farmer Tony Martin.

Current CPS guidelines dictate that anyone in England and Wales can use ‘reasonable force’ to protect themselves, or others, as well as to make a citizen’s arrest or prevent crime.  Similarly, homeowners are safeguarded so long as they act ‘honestly and instinctively’; according to the guidelines, ‘fine judgements’ pertaining to the force employed cannot be expected in the heat of the moment.

To simplify, employing force in self-defence is legally justifiable so long as there is a genuine perceived threat, irrespective of whether this estimation proves to be accurate.  Rightly, homeowners are not required to wait for the smoking gun in defending themselves or their property; to do so would render the homeowner powerless to defend his right to quiet enjoyment of property and potentially produce fatal consequences.  Applying this rule, Flanagan’s arrest is not indicative that he will be charged with an offence.  Instead, this provides an opportunity for law enforcement and prosecution services to establish precisely the chain of events that led to Bennell’s death.

By extrapolation, self-defence can remain reasonable in instances where the intruder dies as a result.  This raises an interesting point alluded to by Mulligan: can a weapon be justifiably used in self-defence only if the attacker is in possession a similar instrument (or if it is the attacker’s weapon that is used against him)?  Morally, such a directive would appear attractive.  However, with no way of confirming whether an intruder is armed, such a precautionary measure is overly prudent: given that an intruder’s presence is necessarily unsolicited and impinges a homeowner’s right to freedom, a default assumption of intent to cause harm or damage is not unreasonable.

Importantly, CPS guidelines require an element of proportionality, warning that prosecution could result from ‘very excessive and gratuitous force’; the 2009 case of Munir and Salem Hussain, for instance, demonstrates that should a homeowner give chase to a fleeing intruder, the reasonableness assessment needs to be recalculated to accommodate the reduced threat posed to the householder.  Equally, the perceived threat emanating from multiple intruders is undoubtedly greater than that posed by a single burglar, thereby vindicating greater force.  This was a factor in the Martin case and will unquestionably be a central consideration in determining whether to prosecute Flanagan.

Clearly, the legal framework concerning reasonable force is inherently subjective, leaving an element of circumstantial consideration for jurors; as no two cases are identical, the principles of the law must be applied to the facts of each case individually.  However, contrary to Cameron’s assertion that protection from prosecution needs to be clearer, the current legal stance evidently favours the householder, permitting the application of force, fatal if necessary, to protect oneself and one’s property.  Correctly so.  While not providing license for unremitting aggression, this is consistent with Cameron’s suggestion, in 2010 when leader of the opposition, that ‘[t]he moment a burglar steps over your threshold and invades your property, with all the threat that gives to you, your family and your livelihood, … they leave their human rights outside’.

Given current knowledge of the facts of the case, to prosecute Flanagan would not appear to be in keeping with precedent or in the public interest.  In November 2001, a jury took only fifteen minutes to clear a householder who fatally stabbed an armed intruder in his home.  With Flanagan telephoning police to alert them to the developing situation, a reasonable person would suggest that Flanagan took appropriate steps to prevent a violent situation developing.   Moreover, with multiple intruders being involved in the incident, the use of force in self-defence within his property does not appear to be disproportionate; heavily outnumbered, whether the intruders were armed is a seemingly moot point.

The coincidence of the altercation with Cameron’s speech may prove to be a win-win situation for the Conservative Party.  While CPS guidance concerning reasonable force was issued under a Labour government, a decision not to prosecute will be remembered as having been taken under a Conservative-led coalition.  Alternatively, should the case go to trial, Cameron’s assertions will be proved correct, potentially restoring faith in the Conservatives as a stalwart of law and order following the debacle surrounding proposed sentence reductions.

*UPDATE*

• Ken Clarke, the Justice Secretary, seeking to address the ‘constant doubt’ surrounding the current legal position and in a seeming reference to the Flanagan case, confirmed on 29 June that a householder who knifes a burglar will not be adjudged to have committed a criminal offence.  Individuals should, Clarke opined, be afforded the right to use ‘whatever force necessary’ in protecting themselves and their home, though this does not extend to shooting a fleeing intruder in the back.  This proclamation is wholly in kilter with the spirit of the current legal stance, though replacing direct use of the problematic term “reasonable force” with more assertive phraseology will doubtlessly be portrayed as a deepening of the policy by a Conservative-led government attempting to reinforce their traditional image.