1 These ideas are from a person, “P*”, who has been a ‘campaigner’ since the 1970s.
He came up with them based on an instinctive emotion-legal reaction to four decades (!) of observing ‘protest’ – a matured and considered reaction which says:
it is really time we updated our culture to take into account
the mix of common law, equity (cue: indignation..) involved in citizens’ protest of all types.
‘P’ has some experience in wrestling with these legal thoughts –
– he wrote legislation (a Private Bill) that Mrs Thatcher voted for (in 1977) !
– In 1976 (?) he was imprisoned BY the House of Commons.
– In 1976, in a case which he brought in person, before a high court judge sitting in Chambers, he established locus standi for a ratepayer to sue the Greater London Council for building without planning permission (using cases provided by then top law professor Jeffrey Jowell) – perhaps quite a step for administrative law at the time…
– So his instinct may offer some idea maybe for something – be it only a nuance, an inflection ..
2 The factors below are reasons that aim to express in common law and equity why one protests.
– a ‘Defense’ (the actual legal term),
not some vague ‘statement of motivation’ to be spoken by the defendant appealing to emotion, mercy or some other piety. The emotion is already in the law, in our tradition and history: as Lord Denning so ably pointed out: “The Law is in the heart of the judges.”
Protest must always be argued to be LAWFUL.
– because by the principles of our country, it in fact IS..
3 In the Law on public activity:
– A proposed principle for juridical/cultural convention on ‘opinion protest actions’:
I. Where there is (i) invasion of (a) public or (b) government space
– and (ii) no damage to property,nor assault
[the physical government-chartered plane of the Stansted 15 is a case of I. (i) (b) ] –
II. – then,
English custom, equity, history and liberty – and hence [if necessary, new,] common law –
require leniency and a charge no stronger than
‘invasion of public space contrary to regulations’
( – presumably punishable by, e.g., short community service ).
Custom – because: in school we are taught the nobility of England’s historic protesters;
Equity – because: government property or enterprise may be of such a scale and power
as to be asymmetric related to the citizen;
hence equality of power for the citizen as party in any matter between them
requires an asymmetric right of the citizen to question / challenge;
History – because: our school history lessons foster and exalt tales of courageous protest;
Liberty – because: with the imbalance represented by the scale of government power today,
there must be a presumption in favour of an absolute liberty to protest
i.e. the ‘scale of that liberty is not strained’ – it is presumed specifically unrestricted.
(For the Stansted 15) the charge ‘endangering an airport’ should be rejected:
(a) because no danger was caused, and
(b) due to the common-law/equity principle that : the relative powers of the ’endangered’ interest
(a government, a large airport, rife with security staff) and the accused, were unequal and thus asymmetric:
hence there can be no ‘offence’ of ‘endangerment’.
While thos 15 protesters were being tried for an offense (wrongly) ‘related to terrorism’ (something for which the A-Gen gave consent), a similar number were arrested for lying in the road in Parliament Square, no less, this week, and released without charge –
– serving as an example of an appropriate treatment for this case.
4 ( Comments from an experienced HRights barrister: )
“Very good. Inequality of power . No harm, no damage. Right to be represented, heard. Standing up for international humanitarian and human rights, refugee law, International Conventions our government is violating.
Carry on. People, civil society space shrinking dramatically, less opportunities to be heard in equality. Home Office in shambles , unlawful deportations.
So good luck on this. Really pursue this. Interesting. (.. — Trouble is that lawyers as a bunch are not that progressive. You should focus on Doughty Street. Try people there. ) ”
FURTHER comments / argument:
What are the new phenomena that did not exist in more ancient common law situations?
6. i) The Suffragettes were the first cases of demonstrative civil disobedience in favour of public policy.
The fact of civil action to promote idealistic causes (not one’s own case) is a new phenomenon in law
– a new phenomenon in our history, and thus a matter for creation of common law.
6. ii) Disobedience ( or disturbance etc ) for an issue of policy is not motivated by personal gain, by aggression against another, by a desire to deprive another party of rights or liberty.
6.(iii) It is an infringement – a misdemeanour perhaps – of a different type altogether.
a – a noble one; and
b – one with a noble intention.
6.v) where noble intention can be proven,
the Cape of Malignity,
– the Cloak of Crimiiality,
must be lifted – and discarded – by the Court.
6.vi) For Authority to have recourse in these cases to allegation of
– for example, damage to property – as some kind of golden ideal of law,
6.vii) is, before the transparent throne of the Common Law, a puny, even cowardly, subterfuge,
6.viii) – an attempt to punish and disguise idealism and statement-of-desire-about-policy
under the guise of malicious intent to damage property or disturb the peace for its own sake.
6.ix) Those who seek to damage or disturb the peace for gain or personal animosity,
or for simple lack of discipline, or aggressive intent, yes shall be coerced by the Courts.
6.x) Those who put stability temporarily at very minor risk for a greater cause,
6.xi) for an ideal of public policy which they believe, or which can demonstrate is
not being heard in the normal channels of democratic submission, debate and discourse
– something that if and when accepted might even be accepted by history as valid or needed..
6.x) – these defendants are free of the odium of acting against the Law.
They are free of the taint of illegality in its normal sense
6.xi) They are acting in favour of the Law (though by technically unlawful means. !
They are, indeed, acting in favour of Law – a principle even higher than ‘the Law’.
In favour of lawfulness itself –
6.xii) Their offence can only be at worst a misdemeanour.
6.xiii) If indeed they have infringed a public law of heavier import,
such as requirements for security from attack
(the case of airports and a temporary context of terrorism)
then yes the courts should make all aware that this is not to be tolerated
– but only in proportion to the degree of the vexation caused.
6.ix) Also: if in the situation the security is so lax that mere wire cutters give access
then the importance of that security cannot be very great
and this goes importantly to proportionality in the punishment.
6.x) Also if the access is to (for example) a plane that is
(perhaps inequitably, in their argument) doing wrong,
– for example to prevent a government ( a LARGE ORGANIZATION )
from causing loss of life
then the act is an act of public safety
6.xi) then – a principle of law – (in all these circumstances)
the scale of their misdemeanour must be mitigated by the Court.
6.xii) If the A-G, for example, sends an order saying
“try them under a law that will hang them”,
then the instruction of the A-G
must be mitigated (by the court) in the light of the circumstances of the case.
7) The point about that this argument is that it comes ‘from the heart of the litigant’
– someone who by chance has experienced first-hand
the rolling ineptitude of large systems in promoting failed plans;
the frustration that evil or incompetent plans are afoot
and the existing authorities are deaf or unable.
7a. In these circumstances the citizen must act, and in acting must be pardoned.
7b. And in his reaction there is equity, and common law, and .. justice –
– A particular type of justice that aims to promote the interest of the small against the large,
the weak against the strong, the individual against organised large-scale power, the citizen … against government.
“This is the law.”
And every new case, now, is a great moment to build it !