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Reflections on the Black Lives Matter case – the right to free speech needs to be refreshed

Posted on 20th January 2017

HJA represented all 9 clients in the Black Lives Matter case that finished at Wilesden Magistrates Court on Thursday 19 January 2017. All of our clients were convicted of obstructing the highway under section 137(1) of the Highways Act 1980.

The case revolved around a protest that took place on 5 August 2016 – the 5th anniversary of the killing of Mark Duggan. The defendants had staged a protest on the M4 Spur Road, some by holding a banner and others by lying down on the road and “locking on”.

The defence at trial centred on whether the defendants’ actions were reasonable – in particular when considering the right to free speech and this blog is based, in part on the representations that were made in court.

As referred to in Westminster City Council v Brian Haw [2002} EWHC 2073 QB, the right to free speech is significant factor when considering what is reasonable in obstruct cases.

It has been held that free speech is “one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of man”.

It is easy to see why. It is only by allowing individuals to express themselves (particularly for political views) that we can inform ourselves as citizens, so we can debate and challenge each other and our democratic institutions.

Peaceful protest is public, it is open, it is visible. It is designed to inform, to persuade and cajole. It may be a nuisance, it may even be intended to be. It is often noisy and inconvenient. It is there to inform.

It is there to inform. As ever, the State is not a bystander.

Indeed, the State has a positive duty to facilitate peaceful protest and indeed, the European Court of Human Rights was held that “essence of democracy is its capacity to resolve problems through open debate”

Yet what happens where there is press disinterest, ignorance or indeed bias that issues are ignored.

Our democracy can allow column inches for celebrity news or sports results but it cannot find a place to discuss the issues that matter.

The mainstream media have failed ; perhaps the human imperfections in all of us have meant that we have all failed – we have failed to keep ourselves informed , to ensure that there is an open debate about the issues that affect people of colour in the UK.

Who could say that they knew that:

  • Black people are overrepresented by more than a factor of two for deaths in police custody since 1998.
  • Black people are up to 37 times more likely to be stopped and searched than white people.
  • Black people are three times more likely to be arrested than white people.
  • Black people are 44% more likely to be detained under the mental health act than white people.
  • Black people are three times more likely to be unemployed than white people.
  • Black Caribbean pupils are almost four times more likely to be permanently excluded from school than the school population as a whole.
  • There has been a 57% increase in reported racist hate crimes since the Brexit vote.
  • 3034 people have drowned in the Mediterranean in 2016 alone.

Those are the facts that should be imprinted on all our minds and tattooed on politicians and policy makers until there is justice. It should be a national scandal but it ordinarily hardly raises a whimper. Yet with this action, they sought to break through.

We cannot belittle the subject matter at the heart of the defendants protest. Their action was aimed at raising public and political awareness about the treatment of black people in the UK with the group aiming to bring the debate into the mainstream in order to have a greater impact on government policy. We heard from some of the defendants how other alternatives such as lobbying, petitioning and marching simply do not attract media attention and fail to reach the ears of the country’s decision makers.

The group believed, given the significance of the issues, that there was no alternative but for peaceful direct action. And they succeeded. Conversation and mobilisation around these issues significantly increased in the wider community as a result of the publicity raised by their protest. Not only the groups action but the issues themselves became headline news.

The right to free speech is priceless yet it is of no value if you cannot be heard – if debate is confined to metaphorical ghettos

The defendants in this case sought to exercise their rights to free speech – not in a theoretical/ abstract manner but in a practical way – in a way that seeks to implement what free speech is about – it is after all to inform us/to challenge us. It was not lost on us that this trial was taking place two days day after Martin Luther King day and perhaps, it is apt to quote him in that.

“Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity.”

These defendants were to disseminate, to inform and to debate that this action took place.

It is only by actions like this that the debate is happening.

That might be a damning indictment of our democratic institutions and our press, but it is one that we all recognise.

Of course, inconvenience was caused that day but consider the inconvenience and disruption caused to people trying to get home from work; or pick up children; or even perhaps trying to get to an airport on December 1, 1955, when in Montgomery, Alabama Rosa Parks refused to obey a bus driver’s order to give up her seat on a bus to a white passenger.

This action of course resulted in Park’s arrest for civil disobedience in violating Alabama segregation laws and culminated in a successful lawsuit against the bus company. And ultimately a change in the law.

Of course we don’t dare question Park’s decision as being unreasonable because her decision to express herself helped define the American Civil Rights movement and without doubt helped bring about great change for the better!

But we can have little doubt that Park’s actions that day, which effectively delayed that bus journey for hours, would have been an inconvenience to many.

Who knows how far back the traffic in Montgomery tailed back that afternoon?

Who knows how many children were left stranded outside of their schools waiting to be collected?

Who knows how many passengers may have even missed their flights from Mongomery Regional Airport?

History has shown Rosa Parks not just to be reasonable, but a hero of the civil rights movement

We argued that the defendants actions were reasonable. Ultimately, we lost. However, we maintain that for free speech to mean anything, you must have an ability to be heard. The courts may need to consider in future how free speech is to be interpreted. For our clients, the focus has to remain on the issues facing people of colour in the UK.

Raj Chada, Darrell Ennis Gayle, Freya Colvin, Elena Papamichael
Hodge Jones Allen
20 January 2017

The Black Lives Matter case was extensively reported in the press:

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