LIMITS OF THE LAW

Kaikoura Star, Volume LVI, Issue 94, 30 November 1936, Page 4

LIMITS OF THE LAW

RIGHTS OF ASSEMBLY Those of us who were privileged to study constitutional law in the days which preceded the war had delightful (academic exercise with, the subject of public meetings, writes a legal corrspondent in the Manchester Guardian. Whether or not a meeting is unlawful is a question winch can lead to the fascinating hobby of splitting fine hairs into still liner filaineifts; but recent events have served to emphasise that

a legal theory which may appear perfect in a textbook may often prove difficult in its practical application. To constitute a. meeting, for legal purposes, there must be three or more persons; and three or more persons who assemble together for a purpose which in itself is unlawful present no difficulty. They constitute an unlawful assembly, which is a misdemeanour, and.it is almost inevitable that they will be guilty of a few other offences as well. Bitt the law also holds that an assemby of persons who have met for a perfectly lawful purpose, such, for instance, as the discussion of politics, may become unlawful and may be dispersed if it meets in “circumstances which inspire peaceful citizens in the locality with reasonable fear that a breach of the peace is imminent.” Difficulty comes, however, as soon as we

attempt to apply the principle to a concrete case, because then there arises the question: What is a reasonable fear of a breach of the peace? The Skeleton Army • In 1882 there came before a divisional court a case which for a time led to rather exaggerated views of our so-called right of public meetitng. On March 23 in that year about one hundred members of the Salvation Army assembled and, with music and flags, proceeded through the streets of Wes-ton-super-Mare. On previous occasions they had been opposed by an organised band which styled itself the Skeleton Army, and there had ensued a free fight, with considerable tumult, blows, and stone throwing; and similar disturbances occurred on the present occasion. Ultimately the police, having been reinforced, wore able to disperse the mob. The Salvation Army prepared for aonthcr meeting in Sunday, March 26. In the meantime the Justices issued a notice prohibiting the procession, and when the leaders of the Salvation Army acted in defiance of the notice they were arrested. The’evidence showed that none of the persons arrested had been seen on this or on any previous occasion to commit any acts of violence. On these facts it was held that none of the persons arrested could be convicted of unlawful assembly, and the following pasaage taken from the judgment is significant: — “Whlat has happened here is that an unlawful organisation has assumed to itself the right to prevent the appellants and others from lawfully assembling together and [the contention of the prosecution] amounts to this, that a njan may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition.” The Popular Tendency On the basis of this, there wins a tendency to assume, despite the warnings of text-writers, that, in most imaginable circumstances, people had a right to hold meetings and to ignore the consequences. Popular views of the law. however, were modified by a case which occurred in 1902. A Protestant lecturer had been conducting an open-air campaign, more vigorous than discreet, in a Roman Catholic quarter of Liverpool, and his meetings had been attended with grave disturbance caused by the 'fact that his utterances and his gestures were highly offensive to persons of the Catholic faith. In these circumstances it was held th|at he was rightly bound oved in recognisances to be of good behaviouar. After this decision it became customary for text-book-writers to point out that a meeting would become unlawful if conducted in such a manner as was likely, in the ordinary course of events, to provoke a breach of the peace. This view of the law is doubtless •correct, although in the Liverpool case the issue was complicated by the existence of a city by-law prohibiting the use of insulting language in the streets. Nevertheless, the view of the textbookwriters can be supported from other sources. There is, for instance, a late

nineteenth century Irish case in which a Magistrate was held justified in dispersing a meeting “if there were reasonable grounds for believing that there would be a breach of the peace . . . and there was no other way in which that breach . . . could be avoided but by stopping . . . the meeting.” And even in the Salvation Army case the Judge said that a conviction could have been sustained if it could have been proved that “this disturbance of the peace was the natural consequenece of the acts of the Aippellants. ’ ’ During the War Thus stood the law before the outbreak of war. A meeting did not become unlawful merely because opponents became turbulent, but it did become unlawful if it was conducted in a manner calculated to provoke turbulence. The distinction is reasonable, but it is apt to prove too fine for easy application. During the war difficulties which might have been experienced were avoided by rather stringent regulations made under the Defence of the Realm Act; but those Acts are no longer in force, and a postwar generation is left to cope with its alarming disorders by an application of delicate common law principles. It is true that postwar prosecutions have added a little to our knowledge. It lias been derided, for instance, that a street speaker, who refuses to move when requested to do so, 'may be convicted of obstructing the police in the. execution of their duty, that duty consisting apparently, in keeping free the highway for the passage and repjassago of the public. This decision gives to the police a useful power for a minority of cases. Again, it has been decided that

the police have the right to attend a meeting held on private premises if they have reasonable grounds to believe that a breach of the law may be committed there. But we are still without any authority for the view, propounded in some quarters, that the police may prohibit a proposed meeting in advance. Indeed, a most authoritative writer on the subject asserts roundly that, apart from local “a meeting assembling for a lawful object cannot be prohibited in advance.” That is because it is a fundamental principle of our law that, the liberty of nobody can be infringed unless he has committed or is about to commit an illegal act. It follows that normally a mooting cannot become unlawful until its participants have assembled, and even then, if turbulence is the cause of complaint, the authorities must consider the delicate question whether the turbulence is directly produced or provoked by the meeting itself or is merely the indepnedent wrong of opponents. It is not an easy question for the police to determine when they kuow that if they act wrongly they act at their own peril. Yet it is on the proper and impartial determination of it that wo must depend for order in times of strife; and it is difficult to conceive of fundamental changes in the law which would not be attended with a grave <risk of stifling free and legitimate discussion.