Ralph Roche: “Any restriction or limitation on the right to protest is a serious interference with a range of human rights”

Ralph Roche is a lawyer, specialised in human rights, judicial administration and policing. He has a wide range of experience in Northern Ireland and the Western Balkans region, working for police services and as a consultant for the Council of Europe. From 1998 to 2005, he lived in Bosnia and Herzegovina, working for a human rights court, the Office of the High Representative and the European Commission. SInce then, he has worked for the Police Service of Northern Ireland as Human Rights Legal Adviser, and for the Kosovo Specialist Chambers in the Hague as Head of Judicial Services Division.

He is a co-author of the Council of Europe handbook “The European Convention on Human Rights and Policing.”

1.- What strategies are police using in the area of public order?

Police services should adopt a flexible approach when dealing with public order events. The protection of the human rights of all persons affected by demonstrations and other public order events should be at the heart of any strategy. Compliance with human rights principles allows police services to apply a range of clear approaches, informed by the extensive case-law of the European Court of Human Rights, An overarching strategic analysis should be in place, informed by relevant and up to date information covering issues such as the threats and risks, and the likely causes and themes of any public order issues. Once this is in place, it allows for the deployment of adequate resources (both human and technical) and implementing planned operational responses to potential scenarios. 

It is critically important that police adopt a neutral approach, which does not effectively prohibit the expression of views by demonstrators that they or the public might find offensive. This is a key requirement of a democratic society, as confirmed by the European Court of Human Rights in many cases. For example, outright bans or imposing bureaucratic obstacles on protests have been found to be violations of the rights to freedom of association and expression. While police are not always responsible for making such decisions, in cases where they are, they should seek to ensure that decisions are taken on a defensible basis, in accordance with local law and overarching human rights principles. Police in the United Kingdom have adopted the National Decision-Making Model (available at the following link: https://www.college.police.uk/app/national-decision-model/national-decision-model), which provides a framework for making decisions in all areas of police activity. It is a simple and effective model, and when adopted by all elements of the police involved in an operation it provides a common understanding of how decisions should be made and implemented. It places ethics and professional standards at its heart, incorporating a range of key principles, including accountability, fairness and respect. I have been personally involved in a range of dynamic and complicated policing operations where it was used by a wide range of policing units to make fast-time and effective decisions that ensured the rights of all persons affected by the operation were protected.

Another key requirement is that police see their role as protecting the rights of members of the public. Police in a democratic society should not see themselves as an instrument of State power, but as defenders of the rights of participants in public events. Policing is not about control, but rather about facilitating the exercise of democratic freedoms. This will also assist in improving the relationship between the police and the public. 

2.- Is it possible to adopt a pre-established method of action, taking into account the different types of protests and the different evolutions they may have?

In my opinion, it is not possible for the police to adopt a pre-determined approach to demonstrations and other public events. Each demonstration or public order event is different and should be considered on its own merits. While police can, and should, rely on information gained from previous similar events, they should examine the information available re each individual event and tailor their response accordingly. The fact that a previous event may have led to disorder (e.g. between rival groups) is not of itself a ground for restricting or prohibiting future events. The dynamic nature of society means that events and participants change over time. 

Police should obviously plan for possible scenarios during demonstrations, and previous examples of demonstrations are a very good starting point for this. As police officers often say, if you fail to plan, you plan to fail. However, planning is an aid to decision-making, not an end in itself. As referred to above, an overarching strategic analysis assists in allowing police to prepare for potential scenarios. It also allows police to train officers in the required tactics, as well as in negotiation, engagement and information-gathering.

Another practical reason why police should not adopt a pre-determined approach is that people who wish to cause disorder may soon learn what these approaches are and learn how to undermine them. If police use the same tactics repeatedly, those who may wish to attack the police can learn from them and develop ways to harm or injure police. 

3.- What are the conditions that should be met for the right to protest to be interrupted or limited during the course of a rally or demonstration?

Any restriction or limitation on the right to protest is a serious interference with a range of human rights. It concerns the rights to freedom of expression and association, as well as the right to manifest one’s beliefs. Police action can also engage the right to freedom from inhuman treatment and, in extreme cases, even the right to life. However, there are circumstances where police action is required, for example to ensure the right to protest is upheld or to protect the rights and freedoms of others. Interventions during an event are more difficult and pose additional threats to the safety of participants, as well as to the lives and safety of police officers. 

Restrictions must  have a legal basis – there must be a provision in national law allowing for their imposition. Any restrictions must be for a legitimate aim. In practice, restrictions are most often imposed in order to prevent crime or disorder, or to protect the rights of others. Another key issue is that restrictions must be proportionate. For example, stopping a demonstration because of a minor or technical infringement may not be necessary in a democratic society. There are very many judgments of the European Court of Human Rights where restrictions were imposed on the basis of very minor issues, and it is clear that this is often done as a means of suppressing the expression of ideas that the authorities do not wish to be heard.

In order to justify an intervention during an event, there must be a clear reason to do so. An obvious one is that there is a threat to the safety of persons (whether police officers, participants, or members of the public). The conduct of participants could also justify an intervention, for example if any lawful conditions on the event are not being complied with. For example, if the competent authority has imposed limitations on an event, these should in principle be complied with. However, a failure to comply with any limitations does not, by itself, justify an intervention. An assessment of the need for immediate action must be undertaken. In many cases, subsequent action will be sufficient to ensure compliance with the law.

Different countries have different approaches to the regulation of public assemblies. For example, in some countries, a Mayor or other elected official determines the conditions under which public events can proceed. In Northern Ireland, anyone wishing to organise a public procession must inform the Parades Commission, a public body established by law. In cases where the primary responsibility rests with police, they must ensure that all of their decisions are lawful and not motivated by any improper motivation, such as discrimination.

Decisions to intervene may also require the decision of a body other than the police. This can be problematic, as elected officials may not be best placed to understand the practical consequences of decisions to intervene. In my view, police, acting within a clear legal framework, and having consulted as widely as possible in the circumstances, are best placed to make decisions regarding the need for interventions in relation to public events. While this imposes significant burdens on police, it also provides them with an opportunity to apply their professionalism and expertise in a practical scenario.

It is also important to recall that a failure to comply with conditions imposed on a demonstration is not, of itself, a reason to intervene. If the deviation is unlikely to result in injury or undue disruption, it may be appropriate to allow the event to proceed. Investigations or other action can be taken after the event as necessary. Intervention against demonstrations that are in progress is a very difficult endeavour, and can lead to significant use of force and injury, both to participants and police officers.

4.- What responsibility should the organisers of a demonstration have with respect to its control and unforeseen consequences?

Organising or participating in a demonstration involves responsibilities. Organisers should ensure that the demonstration stays within the law, and also complies with any requirements or limitations imposed by the competent authorities. If the organiser considers that any such requirements are excessive or otherwise unlawful, they should seek to use any legal remedies available to them under local law. Failure to comply with requirements during a demonstration should be avoided as it may lead to criminal or other consequences. In respect of the liability of organisers for the actions of participants in demonstrations, it is important that they are only held responsible for actions that they are responsible for. If persons join a demonstration with the intent of causing disorder or other criminal offences, organisers may have very little power to prevent this. While marshals and other safety mechanisms should be in place as part of a well-organised demonstration, principles of strict liability or other legal means of holding organisers responsible for the actions of others should be avoided as they can be an undue restriction on the effective enjoyment of freedom of association.

Organisers should also engage with the police, in order to discuss issues of common concern. In Northern Ireland, police will often contact organisers of demonstrations to discuss relevant issues and to better understand the needs and expectations of demonstrators. This can help avoid misunderstandings and create a channel of communication for engagement during  the demonstration. In addition, the European Court of Human Rights has recognised that a refusal by an organiser to engage with police can be a justification for restrictions or other measures, where necessary. 

5.- What instruments do you think are acceptable to use in demonstrations with a certain degree of violence to restore social peace with the least possible damage? For example, water canons.

In the event that disorder arises, police need to have a range of tactical options available to them to deal with it. The first tactic should always be engagement – building on previous discussions with the organisers and participants and seeking to identify and address the issue. In situations where this is not possible, tactical options for the use of force are required. These are many and varied, and include personal protective equipment for officers, protected vehicles, barriers and communications devices. In cases of more serious disorder, other options such as water cannons or less lethal projectiles should be available. It is critically important, however, that the legal and human rights rules regarding the use of such tactics are respected. This requires them to be integrated into the police operating procedures and training. Clear chains of command and responsibility for the deployment and use of such tactics are necessary. A central command room, with live information being provided, should be established for large events where violence or disorder is a possibility.

Various international standards regulate the use of force by State authorities. Most importantly in this context, Article 2 of the European Convention on Human Rights requires that lethal force only be used where it is absolutely necessary to protect life. This means that such force should only be used as a last resort, where no other option is available. The case-law makes it clear that police tactics must not be such as to make the use of lethal force inevitable or highly likely. Less lethal alternatives (for example, e.g. bean bags or pepper projectiles) are frequently available to police, but there must be strict rules regarding their use. These tactics should only be used against individual aggressors, rather than against a crowd in general. Options such as water cannon can be useful in situations where it is necessary to maintain distance between opposing groups or to prevent a crowd from proceeding past a certain point.

The overarching requirement is that a “systems” approach is in place. This requires that only properly trained officers are authorised to carry and use methods of applying force, and that there are strict rules governing their use. The police operation must be commanded and controlled by experienced officers, working together with colleagues to ensure that the level of force used is the minimum necessary to achieve the awful objective. Force should never be used to punish, it should only be used to prevent disorder and return the situation to normality as soon as possible.

The most effective policing operations I have been part of, often providing real-time advice to commanders as the situation developed, involved properly trained commander and officers, working within a clear legal and practical framework, with clear strategic goals as to what the desired outcome was. Some of these involved the use of significant amounts of force against violent individuals in very dangerous circumstances. 


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